United States District Court, D. Maine
LEO S. PARASKEVOPOULOS, Plaintiff
CENTRAL MAINE MEDICAL CENTER, Defendant
RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
H. Rich III United States Magistrate Judge
employment discrimination action, defendant Central Maine
Medical Center (“CMMC” or the
“defendant”) moves for summary judgment as to all
claims in Count I of plaintiff Leo Paraskevopoulos's
two-count complaint, namely, claims of disability
discrimination, failure to accommodate, and retaliation in
violation of the Maine Human Rights Act (“MHRA”),
5 M.R.S.A. § 4551 et seq., the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., and Section 504 of the Rehabilitation Act
(“Rehabilitation Act”), 29 U.S.C. § 701
et seq., and interference with and retaliation for
leave taken pursuant to the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq.,
and the Maine Family Medical Leave Requirements law
(“MFMLR”) 26 M.R.S.A. § 844. See
Defendant's Partial Motion for Summary Judgment
(“Motion”) (ECF No. 69) at 1-2; Second Amended
Complaint (ECF No. 10) ¶ 122. The defendant also seeks
summary judgment with respect to any punitive damages
requested in connection with those claims. See
Motion at 1-2. The plaintiff has filed a cross-motion for
partial summary judgment on an unrelated theory, see
generally ECF No. 66, which is the subject of a separate
main, the defendant argues that, after duly accommodating the
plaintiff's disability, it terminated him because of his
poor performance. The plaintiff counters that he was fired
because of his disability, either because he sought
accommodations for it, or because his unaccommodated
disability produced the poor performance cited by the
defendant. Because the parties dispute genuine issues of
material fact, I recommend that the court deny the Motion,
except to the limited extent that it is conceded by the
plaintiff. Specifically, I recommend that the court
grant the defendant's motion for partial summary judgment
with respect to (i) the plaintiff's MHRA and ADA claims
based on discrete adverse actions that occurred more than 300
days before his MHRC complaint was filed and (ii) any
requested punitive damages pursuant to his Rehabilitation
Act, FMLA, and MFMLR claims, and otherwise deny it.
Applicable Legal Standards
Federal Rule of Civil Procedure 56
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); Ahmed v. Johnson, 752 F.3d 490,
495 (1st Cir. 2014). “A dispute is genuine if
‘the evidence about the fact is such that a reasonable
jury could resolve the point in favor of the non-moving
party.'” Johnson v. Univ. of P.R., 714
F.3d 48, 52 (1st Cir. 2013) (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)).
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. Johnson, 714 F.3d at 52.
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.”
Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d
579, 586 (1st Cir. 2007) (quoting Clifford v.
Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis
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).
framework is not altered by the presence of cross-motions for
summary judgment.” Cochran v. Quest Software,
Inc., 328 F.3d 1, 6 (1st Cir. 2003). “[T]he court
must mull each motion separately, drawing inferences against
each movant in turn.” Id. (citation omitted);
see also, e.g., Wightman v. Springfield Terminal Ry.
Co., 100 F.3d 228, 230 (1st Cir. 1996) (“Cross
motions for summary judgment neither alter the basic Rule 56
standard, nor warrant the grant of summary judgment per
se. Cross motions simply require us to determine whether
either of the parties deserves judgment as a matter of law on
facts that are not disputed. As always, we resolve all
factual disputes and any competing, rational inferences in
the light most favorable to the [nonmovant].”)
Local Rule 56
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.
Rule 56 directs that “[f]acts 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., 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)
(“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
parties' statements of material facts, credited to the
extent that they are either admitted or supported by record
citations in accordance with Local Rule 56, with disputes
resolved in favor of the plaintiff as the nonmovant, reveal
July 2011 and January 2014, the plaintiff was a medical
resident enrolled in the defendant's three-year family
medicine residency, which is accredited by the American
Council for Graduate Medical Education (“ACGME”).
Defendant's Statement of Material Facts with Opposing
Statement (“Defendant's Consolidated SMF”),
commencing at page 1 of Parties' Consolidated Statement
of Material Facts (Defendant's Motion for Summary
Judgment) (“Parties' Consolidated SMF”) (ECF
No. 86), ¶¶ 1, 4, 14; Plaintiff's Statement of
Additional Facts with Defendant's Reply Statement
(“Plaintiff's Consolidated SMF”), commencing
at page 128 of Parties' Consolidated SMF, ¶
The defendant's residency program was headed by Dr.
Donald Woolever, who has served as the director since 2009.
Id. ¶ 8.
December 2011, the plaintiff was treated for depression.
Id. ¶ 150. In February 2012, he received a
letter from Dr. Deborah Taylor, the program's associate
director, citing two instances of tardiness. Id.
¶¶ 15-16. In July 2012, the plaintiff met with Dr.
Taylor, told her he was “feeling fatigued, depressed[,
] and mentally unwell, ” and asked if he should request
a medical leave of absence to seek treatment. Id.
¶¶ 151-52. Dr. Taylor advised the plaintiff not to
seek a leave of absence but instead to seek counseling,
providing him the contact information for the defendant's
“Employee Assistance Program.” Id.
¶¶ 29, 152. Later that month, the plaintiff
received a memorandum of understanding placing him on
probation for an initial term of six months and outlining the
terms of his probation. Id. ¶¶
18-19. In November 2012, the plaintiff received
feedback, both positive and negative, from Dr. Stephanie
Youd, his advisor. Id. ¶¶ 21-22, 154-55.
She informed the plaintiff that there would be a meeting with
Dr. Woolever on December 7, 2012. Id. ¶ 22.
December 4, 2012, Drs. Woolever, Youd, and Dieter Kreckel,
one of the plaintiff's supervising attending physicians,
met to discuss the plaintiff's record and whether he
should continue in the program. Id. ¶¶
23-24. On December 6, the plaintiff sent an email to Dr. Youd
stating, in part, “I have complained of feelings of
anxiety, depression, getting distracted by environmental
triggers and fatigue during the last year and a half . . . .
I think a medical mental health evaluation would be
beneficial because I can certainly say I'm intrinsically
motivated and want to improve, I feel frustrated when I'm
not improving at the rate expected.” Id.
December 7, 2012, the plaintiff met with Drs. Woolever, Youd,
and Kreckel as well as Lisa Burger, a representative of the
defendant's human resources department. Id.
¶¶ 31, 161. The plaintiff was given a choice
between resignation and termination, after which he explained
that he had emailed Dr. Youd the previous day concerning his
need for time off to seek a medical evaluation. Id.
¶¶ 32-33, 162-163. Prior to this, Dr. Woolever had
been unaware of the plaintiff's communication to Dr.
Youd. Id. ¶¶ 34, 164. Dr.
Woolever gave the plaintiff until December 10 to decide
whether to resign or be terminated. Id. ¶ 166.
the meeting, Dr. Woolever emailed the residency faculty that
the plaintiff was choosing between resignation or
termination, and Ms. Burger prepared a termination notice.
Id. ¶¶ 167-68. On December 9, 2012, the
plaintiff sent an email to the residency faculty in which he
shared his desire for medical leave. Id. ¶ 169.
Following the plaintiff's email to faculty, Dr. Bethany
Picker, a member of the faculty who became the
plaintiff's academic advisor in March 2013, emailed Dr.
Woolever to say, “I agree with you, [Dr. Woolever],
that it seems this card has only been played because the
consequences are so immediate and dire.” Id.
¶¶ 42, 170.
December 10, 2012, the plaintiff was informed that his
termination had been revoked and that he would be permitted
to take a medical leave that also was to be characterized as
a disciplinary suspension. Id. ¶¶ 37, 171.
When the plaintiff went out on leave in December 2012, Dr.
Woolever required him to enroll in the Maine Professionals
Health Program (“MPHP”), which is “very
substance abuse oriented.” Id. ¶ 172. The
plaintiff met with MPHP representative Dr. Margaret Palmer, a
psychologist who generally works with “impaired”
physicians and focuses on substance abuse problems.
Id. ¶¶ 39, 41, 173-74. Dr. Palmer referred
him to a psychiatrist, Dr. Cindy Boyack. Id. ¶
December 2012, Dr. Boyack diagnosed the plaintiff with
bipolar disorder. Id. ¶ 38. Sleep deprivation
is among the factors that can trigger the plaintiff's
bipolar symptoms. Id. ¶¶ 112, 178, 181.
However, the defendant requires its family medicine residents
to complete overnight shifts and has never made an exception
to that requirement. Id. ¶¶ 57,
179-80. The plaintiff exhibited symptoms of
bipolar disorder that Dr. Boyack believed were exacerbated by
working overnight shifts. Id. ¶¶ 181-85,
February 2013, Dr. Boyack contacted Dr. Palmer to inquire if
the defendant could be “flexible” with the
plaintiff regarding overnight shifts and advised a
“gradual” return to work, but internally, Drs.
Woolever and Palmer expressed skepticism about whether the
program could accommodate the plaintiff on a part-time basis.
Id. ¶¶ 44, 190-92. While the plaintiff
told Dr. Woolever he was able to return to work on or shortly
after February 23, 2019, Dr. Woolever delayed his return to
work to March 18, 2013, at which point the plaintiff had been
out of work for more than three months. Id.
April 2013, there was a dispute between the plaintiff and Dr.
Woolever over the plaintiff's one-day absence from work
due to depression symptoms. See Id. ¶¶ 48,
200-06. On April 23, 2013, the plaintiff was called into a
meeting with Dr. Woolever, who informed him that his use of
one sick day for his bipolar disorder and his email to
another individual, Kim Elliot, suggesting a schedule change
had caused Dr. Woolever to question his integrity,
professionalism, and readiness to function as a normal
full-time resident. Id. ¶¶ 201-02. The
plaintiff asked Dr. Woolever if he would be allowed to use
accrued sick leave to take intermittent leave for bipolar
symptoms such as unusually deep depression. Id.
¶ 203. Dr. Woolever responded that he was concerned
about the fact that the plaintiff had called out sick one day
that week because of depression symptoms of his bipolar
disorder. Id. The plaintiff told Dr. Woolever he
felt that he was providing him with a negative consequence
for calling out sick due to symptoms of his disease,
whereupon Dr. Woolever stated, “it sounds like you are
threatening me, if you go there things will end up very badly
for you.” Id. ¶ 204. Thereafter, the
plaintiff took approximately three other sick days and
several vacation days in December 2013 to study for the U.S.
Medical Licensing Step III examination, a full two-day
licensing exam. Id. ¶¶ 49, 265.
April 26, 2013, the plaintiff met with Dr. Picker, who
informed him that the defendant was going to increase his
workload to full time, including overnight shifts.
Id. ¶ 207. The plaintiff “mentioned the
ADA and how it is on the front of the resident
handbook” and “mentioned that he feels that if
his hours get pushed and he does not succeed then the answer
should be to reduce hours and not end his residency
here.” Id. ¶ 209. In a letter to Dr.
Palmer dated April 30, 2013, Dr. Boyack expressed
“concerns about the deleterious effects of sleep
deprivation” on the plaintiff, stating that “he
may well require ongoing accommodations regarding work hours
in particular in order to ensure he continues to have a
successful recovery[.]” Id. ¶ 212.
and June of 2013, a time period when the plaintiff was not
yet working night shifts, Dr. Picker reported to the MPHP
that he was performing satisfactorily in all areas.
Id. ¶¶ 213-14. As of July 1, 2013, the
plaintiff was no longer on probation. Id.
¶¶ 50, 216. The next day, Dr. Woolever informed the
plaintiff that he would have to repeat the second year of his
residency, including all overnight call and night float
requirements. Id. ¶ 217. The plaintiff asked if
he could be credited for the night shifts he had already
completed, reiterating his concern that night shifts would
trigger his bipolar symptoms, but his request was denied.
Id. ¶¶ 219-23, 226.
16, 2013, after Dr. Woolever rejected that request, the
plaintiff offered to complete two consecutive weeks of night
float. Id. ¶ 59. The plaintiff wanted to
participate fully in the program and did not want Dr. Boyack
to prohibit him from working overnight shifts unless it was
absolutely necessary to do so. Id. ¶¶ 61,
248. The plaintiff informed Kirk Miklavic, one of the
defendant's human resources employees, that he and Dr.
Woolever had “worked things through.”
Id. ¶ 53.
returning to night shifts, the plaintiff was rated as
performing “unsatisfactorily” in two of three
areas. Id. ¶¶ 227-28. On August 19, 2013,
Dr. Boyack called Dr. Palmer and expressed concern about the
plaintiff working overnight because lack of sleep can trigger
bipolar symptoms. Id. ¶¶ 60, 230. She told
Dr. Palmer, who summarized the conversation for others
including Dr. Woolever, that Maine Medical Center “has
had more than a dozen residents with [bipolar disorder] for
whom accommodations around 24 hour call had to be
made.” Id. ¶ 230. On August 20, 2013, Dr.
Woolever responded that he had “some concerns about
[Dr. Boyack's] call recommendations[, ]” noting
that “not doing 24 hour call or Night Float . . . does
not seem like an equivalent experience to [the
plaintiff's] other resident peers.” Id.
¶ 231. He stated that he did not “see many other
alternatives for our program, so I am still feeling reluctant
to make that accommodation at this point.” Id.
August 22, 2013, Dr. Boyack's treatment notes reflected a
need to monitor the plaintiff closely, “especially
regarding sleep deprivation on call and night float, ”
“based on a history where a previous episode of night
float, [the plaintiff] literally did not sleep all week, not
one hour of sleep in a week.” Id. ¶ 242.
August 2013 and January 2014, the defendant received mixed
feedback, some positive and some negative, about the
plaintiff's performance. Id. ¶¶ 71-76,
86-94, 98-101, 137-42, 146-49, 244-45. For example, in
January 2014, the plaintiff failed the Neonatal Resuscitation
Program examination for a second time, which was
unprecedented for a resident in Dr. Woolever's
experience. Id. ¶¶ 88-93. However, the
plaintiff never failed a rotation during his residency and
passed his U.S. Medical Licensing Examination, Step III, in
December 2013. Id. ¶¶ 138, 142.
November 14, 2013, the plaintiff met with Dr. Woolever and
was informed that he was going to be placed back on
probation, with a more formal meeting scheduled for November
18, 2013. Id. ¶ 77. The following day, Dr.
Boyack called Dr. Picker, again expressing concern about the
plaintiff's overnight shifts and their effect on his
bipolar disorder and his behavior. Id. ¶¶
246-47, 249-51. Dr. Boyack shared with Dr. Picker that she
was “considering pulling [the plaintiff] from call and
wanted to know how that would be received.”
Id. ¶ 253. Dr. Picker told her that she did not
think it would be “received well.” Id.
the plaintiff's November 18, 2013, meeting with Drs.
Woolever and Picker, he told Dr. Woolever he wanted to give
him a print-off “explicitly explaining problems
I've had with my disability.” Id. ¶
255. Dr. Woolever refused to take the piece of paper or to
let the plaintiff read it. Id. That day, the
defendant placed the plaintiff back on probation pursuant to
terms including a provision that “no schedule change
requests will be granted” during the probationary
period. Id. ¶ 262.
defendant admits that it would not have been a hardship to
excuse the plaintiff from performing night float shifts or
28-hour call shifts in 2013, that 28-hour shifts are not a
requirement of the defendant's accrediting body, and that
not all family medicine physicians are required to handle
overnight call as part of their job duties. Id.
¶¶ 266-68, 273.
January 21, 2014, the plaintiff was unexpectedly called into
a meeting with Drs. Woolever and Picker and Mr. Miklavic.
Id. ¶¶ 103, 278. Dr. Woolever informed him
that he was being terminated from the program. Id.
¶ 104. The plaintiff asked for scheduling accommodations
or a leave of absence, but Dr. Woolever told him that was not
an option. Id. ¶ 279. Dr. Woolever initially
stated that the plaintiff would not be given the option of
resigning because he had not previously availed himself of
it; however, the plaintiff ultimately was provided that
option and resigned. Id. ¶¶ 280-81.
the plaintiff's resignation, Dr. Woolever wrote the
plaintiff a letter of recommendation. Id. ¶
108. In February 2016, after the plaintiff filed a complaint
with the MHRC and the Equal Employment Opportunity
Commission, the program director of a residency program for
which the plaintiff had applied contacted Dr. Woolever for an
employment reference, seeking more detail on the
plaintiff's difficulties in the program that had been
referenced in the letter. Id. ¶¶ 109, 282.
Dr. Woolever refused to speak with her, and CMMC informed her
that it could not release any more information than was
contained in the letter and that she should contact its
lawyers for more information. Id. ¶¶
282-83. Dr. Woolever issued another letter providing such
details after the plaintiff agreed to sign a waiver releasing
any claims he might have against CMMC based on that letter.
Id. ¶¶ 109-110, 283.
Discussion A. ...