JEFFREY C. BEARCE, Plaintiff
CITY OF WATERVILLE, Defendant
Plaintiff Jeffrey C Bearce represented by Kevin Haskins Preti, Flaherty, Beliveau, & Pachios, LLP, Matthew J. Lamourie Preti, Flaherty, Beliveau, & Pachios, LLP, Stephen E. F. Langsdorf, Preti, Flaherty, Beliveau, Pachios & Haley, LLP
Defendant City of Waterville represented by Edward R. Benjamin, JR. Thompson & Bowie, LLP, Rosie M. Williams, Thompson & Bowie, LLP
RECOMMENDED DECISION ON MOTION FOR SUMMARY JUDGMENT
John H. Rich III, United States Magistrate Judge
In this action alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, the Rehabilitation Act, 29 U.S.C. § 794, and the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4572, brought by a former sergeant of the Waterville Police Department, the defendant city moves for summary judgment on all claims set out in the complaint. I recommend that the court grant the motion.
I. Legal Standard A. Federal Rule of Civil Applicable Procedure 56
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Rodríguez-Rivera v. Federico Trilla Reg’l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(c). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).
B. Local Rule 56
The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts[.]” Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party’s statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant’s statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.
Failure to comply with Local Rule 56 can result in serious consequences. “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loc. R. 56(f). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of fact.” Id.; see also, e.g., Sánchez-Figueroa v. Banco Popular de P.R., 527 F.3d 209, 213-14 (1st Cir. 2008); Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).
II. Factual Background
The following material facts are undisputed and properly supported in the parties’ respective statements of material facts submitted in accordance with Local Rule 56.
The plaintiff was employed by the Waterville Police Department beginning on March 15, 1988. Plaintiff’s Statement of Additional Material Facts (“Plaintiff’s SMF”) included in Plaintiff Jeffrey C. Bearce’s Opposing Statement of Material Facts (“Plaintiff’s Responsive SMF”) (ECF No. 23), beginning at 9, ¶ 56; Defendant’s Reply to Plaintiff’s Statement of Additional Material Facts (“Defendant’s Responsive SMF”) (ECF No. 25) ¶ 56. During his employment the plaintiff rose to the rank of sergeant. Id. ¶ 57. The position of sergeant is subordinate only to the chief and deputy chief of the Waterville Police Department. Id. ¶ 58. At all relevant times, Joseph Massey was the chief of the Waterville Police Department and, in that position, exercised supervisory authority over the plaintiff. Defendant’s Statement of Material Facts in Support of Motion for Summary Judgment (“Defendant’s SMF”) (ECF No. 21) ¶ 44; Plaintiff’s Responsive SMF ¶ 44.
On December 5, 2009, the plaintiff began a medical leave of absence from his job after being diagnosed with leukemia. Id. ¶ 1. At the urging of his treating oncologist, Dr. Hertler, the plaintiff applied for disability benefits from the Maine Public Employees Retirement System, and was awarded disability benefits in March 2010. Id. ¶ 4. He did not collect any benefits until March 2011. Plaintiff’s SMF ¶ 61; Defendant’s Responsive SMF ¶ 61.
By August 2010, the plaintiff had run out of sick time and vacation time of his own, and the defendant agreed to allow other city employees to donate their own vacation time to the plaintiff so that he could remain on the city’s payroll and receive full pay and benefits. Defendant’s SMF ¶ 5; Plaintiff’s Responsive SMF ¶ 5. In December 2010, the plaintiff advised Chief Massey that he had been granted the right to retire on a disability pension from the Maine Public Employees Retirement System. Id. ¶ 6. At the same time, he expressed concern about air quality issues at the police station. Id. The plaintiff discussed with Chief Massey the option of retiring and inquired whether the defendant would pay his individual health care insurance premium for a period of either 12 or 18 months so that he would not face a gap in coverage if he retired. Id. ¶¶ 7-8.
After consulting with the city’s attorney, the city manager determined that the city could not pay employee health insurance benefits to the plaintiff if he were no longer a city employee. Id. ¶ 8. The city manager was also the city’s personnel director, with ultimate decision-making authority with regard to personnel matters. Id. ¶ 48. After being advised of this, the plaintiff advised Chief Massey that he was returning to work, presenting a note from his oncologist dated December 29, 2010, that cleared him to work without any restrictions. Id. ¶ 9. The chief was surprised to have the plaintiff tell him that he was returning to work without any restrictions. Id. ¶ 10.
The plaintiff never asked the defendant for any kind of light duty assignment and never indicated that he needed any kind of workplace accommodation whatsoever, but simply indicated that he was capable of returning to his former position as sergeant without any restrictions. Id. ¶ 11. Dr. Hertler testified that, as an oncologist, clearing the plaintiff to return to work is very different from the analysis that would be used by an occupational therapist, and in the plaintiff’s case was mainly based on this view that the plaintiff looked about the same in December 2010 as he did when he began treatment with Dr. Hertler a year earlier. Id. ¶ 13. At the time he presented the December 29, 2010, note from his oncologist, the plaintiff’s position was that he could perform his job as sergeant without restriction or accommodations. Id. 14.
Because the plaintiff had been out of work for a year fighting a life-threatening illness and had advised the defendant that he had been deemed disabled upon his application to the Maine Public Employees Retirement System, the defendant decided that it needed to ascertain whether the plaintiff could physically perform the essential functions of the sergeant’s position. Id. ¶ 15.The plaintiff’s employment with the Waterville Police Department was governed by the terms of a collective bargaining agreement between the plaintiff’s union and the city, which included the rights of the plaintiff and the city with regard to the return to work of a city employee following an absence due to a major illness. Id. ¶ 16.
The collective bargaining agreement provides that the city has the right to require an employee to undergo a physical examination by a physician designated by the city, if the employee has missed three consecutive days due to illness, and is not required to accept a statement from the employee’s own physician regarding the specific nature and projected duration of the illness. Id. ¶ 17. The collective bargaining agreement also provides that, if there is a dispute between the physician designated by the city and the employee’s own physician about the employee’s fitness to return to work, the question will be submitted to a third physician, mutually agreeable to the parties, whose decision will resolve the dispute. Id. ¶ 18.
The city manager decided to have the plaintiff submit to an evaluation by Dr. John Bielecki, a board-certified occupational health specialist, to determine the plaintiff’s fitness to return to work without restrictions. Id. ¶ 19. The city manager provided Dr. Bielecki with basic information about the plaintiff’s history with the city and the reason for the requested evaluation, while Chief Massey provided job descriptions for the positions of sergeant and patrol officer. Id. ¶ 20. As part of his evaluation, Dr. Bielecki interviewed the plaintiff and confirmed the accuracy of the information he had been given by the city manager. Id. ¶ 21.
Dr. Bielecki reviewed the plaintiff’s treatment records documenting the plaintiff’s cancer treatment, as well as taking a medical history from the plaintiff. Id. ¶ 22. The plaintiff advised Dr. Bielecki that his chemotherapy regimen left him fatigued and generally run down, and that he had suffered at least a couple of serious infections as a result of the adverse effect of the chemotherapy on the plaintiff’s immune system. Id. ¶ 23. The plaintiff reported being out of bed for 12.5 hours each day, which was significant to Dr. Bielecki. Id. ¶ 25. In the initial evaluation by Dr. Bielecki, the plaintiff was ...