United States District Court, D. Maine
ORDER ON THE DEFENDANT’S MOTION FOR PARTIAL
LEVY U.S. DISTRICT JUDGE.
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
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
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. 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.
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.
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).
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.
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.
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,  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.
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.
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.
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.
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,
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,
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.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56
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).
Local Rule 56
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).
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.
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.
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.
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).
Direct Evidence of Discriminaton
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)).
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)).
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 ...