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Morissette v. Cote Corp.

United States District Court, D. Maine

May 31, 2016




         Michael Morissette is a heavy equipment mechanic with thirty-five years’ experience and a history of artery disease that includes a completely blocked right carotid artery. In June 2011, he suffered a mild stroke that continues to affect the left side of his body: he claims that his left arm remains somewhat weaker than his right arm and that he occasionally feels numbness in the fingers of his left hand. The defendant, Cote Corporation (“Cote Corp.”), is a company that provides crane and rigging services and other trucking services. In May 2013, Cote Corp. hired Morissette as its shop mechanic but then terminated him within two weeks.

         Morissette and Cote Corp. dispute the basis for his termination. Cote Corp. asserts that Morissette was insubordinate and unable to cope with the relatively minor stress of obtaining a medical clearance. Morissette alleges that Cote Corp. discriminated and retaliated against him based on his artery disease and stroke history.

         Morissette filed a Complaint in this court alleging that Cote Corp. violated his rights under the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq.; the Maine Human Rights Act (the “MHRA”), 5 M.R.S. § 4551 et seq.; and the Maine Whistleblowers’ Protection Act (the “WPA”), 26 M.R.S. § 831 et seq.[1] ECF No. 1. He alleges that he is disabled within the meaning of the ADA and the MHRA by virtue of his stroke history, related neurological disorder, and carotid artery disease, id. at 5, ¶ 36, and that Cote Corp. discriminated against him when it terminated his employment on account of his disability, id. at 7, ¶¶ 49, 50, 51. Morissette also contends that Cote Corp. failed to reasonably accommodate his disability, id. at ¶ 52, and later retaliated against him by terminating his employment after he requested an accommodation and opposed Cote Corp.’s discriminatory treatment, id. at ¶ 53.

         Cote Corp. has filed a Motion for Partial Summary Judgment (ECF No. 34) in which it seeks dismissal of Counts I and II of the Complaint (alleging the ADA and MHRA claims, respectively). For the reasons discussed below, Cote Corp.’s motion is granted in part and denied in part.


         The following facts are gleaned from Morissette’s Complaint (ECF No. 1) and Opposing Statement of Material Facts and Statement of Additional Facts (ECF No. 39) and are viewed in the light most favorable to Morissette, as the non-moving party. Johnson v. Univ. of P. R., 714 F.3d 48, 52 (1st Cir. 2013).

         Morissette is a heavy equipment mechanic who, in June 2011, suffered a stroke caused by carotid artery disease that completely blocked his right carotid artery. ECF No. 39 at 11, ¶¶ 1 and 15, ¶ 23. The stroke caused Morissette to experience “heaviness, weakness[, ] and pins and needles in his left arm and hand as well as weakness in his left lower face.” Id. at 12, ¶ 8. The following month, a physical therapy evaluation found that Morissette suffered “left side weakness, mostly in the left hand, with dysmetria (lack of coordination) and decrease in sensation in his left hand.” Id. By November 2012, Morissette’s left hand weakness had improved but he continued to experience residual weakness in his left arm, which he estimated to be at 75% of the strength in his right arm. Id., ¶ 9. In May 2013, Morissette’s right carotid artery remained blocked, but Morissette’s treating nurse practitioner, Elizabeth Herdrich, estimated his risk of stroke to be “less than 5% per year for the next 5 years, similar to the general population.” ECF No. 39-6 at 1. Herdrich did not assess the extent to which Morissette’s condition interfered with his major life activities. See id.

         Also, in May 2013, Morissette applied to Cote Corp. for a position as a shop mechanic. ECF No. 1 at 3, ¶ 16. On his job application form, Morissette answered that he could perform the job “with or without reasonable accommodations, ” and left blank the line that appeared after “[i]f accommodations are needed, please describe[.]” ECF No. 39 at 3, ¶ 5.

         Morissette was invited to a job interview on May 11. ECF No. 1 at 3, ¶ 17. He claims that during the interview, he disclosed the fact that he had a stroke in 2011. ECF No. 39 at 14, ¶ 16 (citing ECF No. 39-1 at 8). Daniel A. Cote, Cote Corp.’s chief executive officer, [2] claims that Morissette did not mention his stroke during the interview and that Cote was “surprised” to hear of it later. ECF No. 40-2 at 2.

         On May 20, Morissette was hired by Cote Corp. as a shop mechanic, and agreed to undergo a United States Department of Transportation (“DOT”) medical exam in order to obtain a DOT medical certification (“DOT medical card”) which Cote Corp. required as a condition of employment. ECF No. 1 at 3, ¶ 19; ECF No. 39 at 13, ¶ 14 and 14, ¶ 19; ECF No. 35-2 at 5. When Morissette returned from the medical exam, Daniel A. Cote asked him how the exam went, and Morissette replied that he did not pass the medical exam because the examiner, Central Maine Partners in Health (“CMPH”), “[was] going to do some more follow-up” as a result of his stroke history. ECF No. 40 at 17.

         CMPH later informed Cote Corp. that Morissette would not be issued the DOT medical card until Morissette’s doctor provided more information about his stroke. ECF No. 39 at 16, ¶ 27. Thereafter, Daniel A. Cote questioned Morissette each day about whether his medical records had been provided to CMPH. Id. at ¶ 28.

         On May 27, Morissette asked Daniel A. Cote why he needed the DOT medical card, and if he would still have a job if he could not pass the DOT physical. Id. at ¶ 30; ECF No. 39-1 at 11. Cote replied that “he would have to talk about it.” ECF No. 39-1 at 11.

         On May 28, CMPH again informed Cote Corp. that it would not provide an opinion as to whether Morissette was medically qualified until it received more information. ECF No. 39 at 16-17, ¶ 33. Around the same time, Morissette alleges that he complained to his co-workers that he did not need a DOT medical card to perform the work of the shop mechanic position, and stated that if Cote Corp. fired him, he would call OSHA, and Cote Corp. would have to “open up [their] checkbook, [and] they will pay dearly.” Id. at 17, ¶¶ 34, 35; ECF No. 1 at 4, ¶ 30; ECF No. 39-1 at 9. On May 31, Cote Corp. terminated Morissette’s employment, based on its belief that he could not handle the stress of obtaining the DOT medical card. ECF No. 35 at 3, ¶ 18; ECF No. 39 at 17, ¶ 40; ECF No. 40 at 21. Later the same day, CMPH sent Cote Corp. a fax stating that it had determined that Morissette had passed the DOT medical exam. ECF No. 39 at 18, ¶ 43.

         Shortly after being terminated, Morissette filed a Notice of Complaint against Cote Corp. with the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”). See ECF No. 40-2 at 1. In response, Daniel A. Cote wrote a letter to OSHA dated June 27, 2013, stating, among other things, that Morissette had not previously disclosed his stroke history, and that:

I was surprised to hear of the stroke as he had not mentioned it prior. He claims he told us during the interview. The interview team included: Daniel A. Cote (myself), Daniel P. Cote (VP Operations), and Kevin Robinson (Fleet Manager). If Mr. [Morissette] had stated or mentioned a stroke we certainly would have questioned him further. All three of us concurred. It was not brought up. Our concern with the stroke is that it potentially could prevent a DOT Medical Card from being obtained. We need our mechanic to drive Class A and Class B vehicles for road test and evaluation, it is a critical aspect of the job responsibilities.

Id. at 2.


         A. Federal Rule of Civil Procedure 56

         Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In making that determination, a court must view the evidence in the light most favorable to the non-moving party. Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013). “[A] judge’s function at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (citations and quotations omitted).

         B. Local Rule 56

         Local Rule 56 defines the evidence that this court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment. First, the moving party must file a statement of material facts that it claims are not in dispute, with each fact presented in a numbered paragraph and supported by a specific citation to the record. See Loc. R. 56(b).

         Second, the non-moving party must submit its own short and concise statement of material facts in which it admits, denies, or qualifies the facts alleged by the moving party, making sure to reference each numbered paragraph of the moving party’s statement and to support each denial or qualification with a specific citation to the record. Loc. R. 56(c). The non-moving party may also include its own statement of additional facts that it contends are not in dispute. Id. These additional facts must also be presented in numbered paragraphs and be supported by a specific citation to the record. Id.

         Third, the moving party must then submit a reply statement of material facts in which it admits, denies, or qualifies the non-moving party’s additional facts, if any. Loc. R. 56(d). The reply statement must reference each numbered paragraph of the non-moving party’s statement of additional facts and each denial or qualification must be supported by a specific citation to the record. Id.

         The court may disregard any statement of fact that is not supported by a specific citation to the record, Loc. R. 56(f), and the court 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., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2). Properly supported facts that are contained in a statement of material or additional facts are deemed admitted unless properly controverted. Loc. R. 56(f).


         A. Discriminatory Termination

         The ADA defines a “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment[.]” 42 U.S.C.A. § 12102(1) (2016). To prevail on a disability discrimination claim, Morissette must establish by a preponderance of the evidence that (1) he has a disability within the meaning of the ADA; (2) he is qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) he was subject to an adverse employment action based in whole or part on his disability. Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 186 (1st Cir. 2011) (citing Jacques v. Clean-Up Grp., Inc., 96 F.3d 506, 511 (1st Cir. 1996)) (other citation omitted); see also Dudley v. Hannaford Bros. Co., 190 F.Supp.2d 69, 73 (D. Me. 2002), aff’d 333 F.3d 299 (1st Cir. 2003) (“Courts have interpreted the ADA and MHRA statutes as coextensive.”) (citations omitted). Morissette may either present direct evidence of discrimination or prove discrimination indirectly with circumstantial evidence “by using the prima facie case and burden shifting methods that originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973).” Ramos-Echevarría, 659 F.3d at 186 (quoting Jacques, 96 F.3d at 511).

         1. Direct Evidence of Discriminaton

         a. OSHA Letter

         Morissette claims to have direct evidence of disability discrimination by Cote Corp. in the form of Daniel A. Cote’s June 27, 2013, letter to OSHA. ECF No. 38 at 11-12, 13-14 (citing ECF No. 39 at 15, ¶ 26 (citing ECF No. 40-2 at 2)). Morissette contends that the letter “epitomizes the unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities that the ADA bars from consideration in employment decisions[, ]” ECF No. 38 at 12 (citation and quotation marks omitted), and relieves him of the obligation to establish a prima facie case of ADA discrimination under the McDonnell Douglas framework, see Id. at 13. Instead, Morissette argues that he “need prove only that the discriminatory action was a motivating factor in an adverse employment decision.” Id. (quoting Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir. 2002) (quotation marks omitted)).

         Direct evidence is that which “unambigously implicates a disability discrimination motive[, ]” Patten, 300 F.3d at 25, and “consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision, ” id. (quoting Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000) (citation and quotation marks omitted)); see also Wennik v. Polygram Grp. Distrib., Inc., 304 F.3d 123, 132-33 (1st Cir. 2002) (quoting Kirk v. Hitchcock Clinic, 261 F.3d 75, 79 (1st Cir. 2001)). For a statement to constitute direct evidence, the First Circuit requires that the statement give a “‘high degree of assurance’ that a termination was attributable to discrimination.” Patten, 300 F.3d at 25 (quoting Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999) (quotation marks omitted) (abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). “A statement that can plausibly be interpreted two different ways-one discriminatory and the other benign-does not directly reflect illegal animus, and, thus, does not constitute direct evidence.” Id. (quoting Fernandes, 199 F.3d at 583 (quotation marks omitted)). Consequently, “direct evidence is relatively rare.” Id. (quoting Fernandes, 199 F.3d at 580 (quotation marks omitted)).

         Daniel A. Cote’s statements in his June 2013 letter to OSHA are not direct evidence of discrimination. Both statements, that “[i]f Mr. [Morissette] had stated or mentioned a stroke, we certainly would have questioned him further[, ]” and that “[the stroke] potentially could prevent a DOT Medical Card from being obtained[, ]” ECF No. 40-2 at 2, can plausibly be interpreted as benign expressions of a business concern regarding whether or not a new employee can satisfy a licensing requirement reasonably related to the employment position. Cote also stated in the OSHA letter that “[w]e need our mechanic to drive Class A and Class B vehicles for road test and evaluation, ” and that “it is a critical aspect of the job responsibilities.” Id. Therefore, Daniel A. Cote’s statements do not unambiguously ...

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