United States District Court, D. Maine
DECISION AND ORDER ON MOTION FOR SUMMARY
BROCK HORNBY UNITED STATES DISTRICT JUDGE.
an employment discrimination case. The plaintiff-employee
claims that his employer terminated his employment because of
his disability and because he took medical leave. He seeks
relief under the Americans With Disabilities Act (ADA), the
Maine Human Rights Act (MHRA), the federal Family and Medical
Leave Act (FMLA), and Maine's Family Medical Leave
Requirements Act (FMLR). Compl. ¶¶ 69-86 (ECF No.
1). The defendant-employer has moved for summary judgment on
all counts. I Grant the motion in part and
Deny it in part.
purposes of ruling on the motion I credit the employee's
account since he is the nonmoving party. Although the
employer has put forward a strong alternative version to the
employee's account, it is for a jury to decide between
Discrimination and Failure to Accommodate Under the ADA and
Deny the motion for summary judgment on
Counts I and III, the ADA and MHRA claims, respectively.
There is a genuine dispute as to one or more material facts
over the reason for, and circumstances of, the employee's
employee initially obtained approved medical leave based upon
a note from his primary care provider. Defs.' Statement
of Material Facts (Defs.' SMF) ¶ 11 (ECF No. 29).
The employee has testified that after initially receiving
that leave, he received approval from his medical provider to
return to work, informed his employer of that fact
repeatedly, but was not permitted to return to work.
Pl.'s Statement of Additional Material Facts (Pl.'s
SAMF) ¶¶ (54)-(59) (ECF No. 34). The employee was
never advised that there was a time limit on his leave nor
given any warning that it was about to expire. Id.
¶¶ (65)-(66). He was told by management that he
needed a note from a psychiatrist to return to work,
Pl.'s Opposing Statement of Material Facts (Pl.'s
OSMF) ¶ 14 (ECF No. 34), but a Human Resources employee
later testified at an unemployment compensation hearing that
a medical note would have been sufficient and that she would
have accepted such a note from the physician's assistant
who provided the initial note that resulted in his taking
leave. Id. ¶ 43. When the employee first
received his notice of termination he asked for “a
couple of days” to get a medical provider's note,
Murray Dep. at 125:18-20 (ECF No. 30-1); Pl.'s SAMF
¶ (69), but management told him it was too late. His
supervisor also told him that he “wasn't mentally
stable to work.” Murray Dep. at 111-12; Pl.'s OSMF
¶ 21. After unemployment compensation hearing testimony
that his primary medical provider's note would have been
sufficient, the employee provided such a note, but the
employer again said it was too late. Pl.'s OSMF ¶
43. The manager who made the recommendation to terminate the
employee, see Morang Dep. at 74 (ECF No. 30-14),
testified that an earlier 2012 conversation with the employee
when the employee was distraught and obtained leave
“never left my mind” and that the manager was
“afraid of-of something happening in the
workplace.” Pl.'s SAMF ¶ (27); Morang Dep. at
conclude that there are factual issues over whether the
employer's explanation that it terminated the employee
for his failure to obtain a health care provider's note
was pretextual for disability discrimination and whether the
refusal to give the employee the extra “couple of
days” that he requested for the note was a denial of a
recognize the parties' disagreement over whether the MHRA
requires the employer to engage in an interactive process.
Compare Carnicella v. Mercy Hosp., 168 A.3d 768, 775
(Me. 2017) (no such obligation on the employer's part
because it is only an affirmative defense); Kezer v.
Cent. Me. Med. Ctr., 40 A.3d 955 (Me. 2012) (same),
with Code Me. R. tit. 94-348 Ch. 3, § 3.02
(“To determine the appropriate reasonable accommodation
it may be necessary for the covered entity to initiate an
informal, interactive process with the individual with a
physical or mental disability in need of the
accommodation.”) The defendant seems to have the better
of that argument, given the Law Court's unambiguous
language,  but my resolution of that disagreement
awaits the development of a trial record.
Grant the motion for summary judgment as to
Counts II and IV, the FMLA claim and the Maine FMLR claim,
respectively. The employee asserts a retaliation claim under
these two statutes, Pl.'s Opp'n to Mot. for Summ. J.
at 16 (Pl.'s Opp'n) (ECF No. 33), claiming that his
employer terminated his employment because he took medical
leave. For summary judgment purposes, the
employer concedes that the employee engaged in protected
activity by taking leave and that his termination in June
2016 was an adverse employment action. Defs.' Mot. for
Summ. J. (Defs.' Mot.) at 25 (ECF No. 28). But the
employer disputes causation (that his taking medical leave
motivated the termination), id., a necessary part of
the three-element analysis. Carrero-Ojeda v. Autoridad de
Energia Electrica, 755 F.3d 711, 719 (1st Cir. 2014)
(“To make out a prima facie case of FMLA
retaliation, an employee must show: . . . ‘there was a
causal connection between [his] protected conduct and the
adverse employment action.'”).
opposing summary judgment on causation on these two Counts,
the employee is very brief: “For the same reasons
stated above on these issues [ADA and MRHA arguments on
causation and pretext], [the plaintiff] has presented more
than enough evidence to reach [a] jury on whether he was
fired for taking FMLA and Maine FMLR leave.” Pl.'s
Opp'n at 16. That argument is insufficient.
to the First Circuit, “[i]n an FLMA retaliation case,
the employer's intent-i.e., why the
employer fired or acted against the employee- matters.”
Carrero-Ojeda, 755 F.3d at 719 (emphasis in
original). Carrero-Ojeda was decided on a 12(b)(6)
motion where the plaintiff had to show only a plausible
claim. See id. at 722. Even under that relaxed
standard, the First Circuit rejected the claim, saying that
“temporal proximity . . . is not enough” to infer
bad motive. Id. at 720. In Carrero-Ojeda,
the adverse action occurred during the FMLA leave.
Id. But in this case, the FMLA leave expired about
three months before the termination. So temporal
proximity here is even weaker.
said that there are disputed facts from which a jury could
find that the employee's disability was a factor in his
ultimate termination or that his employer did not
sufficiently accommodate his needs under federal and state
anti-discrimination law. But those disputed facts, viewed in
the light most favorable to the employee, do not translate
into an inference that his 12 weeks of medical leave
motivated his termination. Like the record in
Carrero-Ojeda, the employee “gives us no facts
beyond the timing of [his] discharge-e.g., no
negative comments, complaints, or expressions of reluctance
by [his] superiors or co-workers about [his] FMLA
leave-taking, no discussion of [his] FMLA leave status in
performance reviews, etc.-that would lead us to think that
defendants took [his] FMLA requests or leave status into
account when deciding to discharge [him].” Id.
(internal citation omitted). I have carefully reviewed the
employee's opposing and additional statements of material
facts, and I see nothing to ...