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Paraskevopoulos v. Central Maine Medical Center

United States District Court, D. Maine

August 9, 2019



          John H. Rich III United States Magistrate Judge

         In this 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 recommended decision.

         In the 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.[1] 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.

         I. Applicable Legal Standards

         A. Federal Rule of Civil 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); 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)).

         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. 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).

         “This 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].”) (citations 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.

         Local 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 motion[.]”).

         II. Factual Background

         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 the following.[2]

         Between 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, ¶ 278.[3] The defendant's residency program was headed by Dr. Donald Woolever, who has served as the director since 2009. Id. ¶ 8.

         In 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.[4] 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.

         On 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. ¶ 160.

         On 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.

         Following 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.

         On 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. ¶ 173.

         In 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.[5] The plaintiff exhibited symptoms of bipolar disorder that Dr. Boyack believed were exacerbated by working overnight shifts. Id. ¶¶ 181-85, 187-89.

         In 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. ¶¶ 194-96.

         In 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.

         On 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.

         In May 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.

         On July 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.

         After 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.

         As of 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.

         Between 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.

         On 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.

         During 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.

         The 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.

         On 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.

         Following 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.

         III. Discussion A. ...

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