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Equal Employment Opportunity Commission v. Windmill International, Inc.

United States District Court, First Circuit

September 4, 2013

Equal Employment Opportunity Commission, Plaintiff,
Windmill International, Inc., Defendant. Opinion No. 2013 DNH 116


STEVEN J. McAULIFFE, District Judge.

On April 12, 2010, Windmill International fired Nancy Hajjar from her job as an accountant, citing poor performance. Subsequently, the Equal Employment Opportunity Commission ("EEOC") filed this action, charging that Windmill engaged in unlawful disability discrimination, in violation of the Americans with Disabilities Act ("ADA"), by terminating Hajjar's employment because of an actual and/or perceived disability. On behalf of Hajjar, the EEOC seeks compensatory and punitive damages, as well as injunctive relief. Windmill denies that its decision to fire Hajjar was in any way discriminatory or unlawful.

Windmill seeks summary judgment, insisting that its decision to fire Hajjar was entirely unrelated to any real or perceived disability she may have. The EEOC, in turn, seeks partial summary judgment on two discrete points: first, its factual contention that Hajjar was diagnosed with (and actually suffers from) Thoracic Outlet Syndrome, as well as partial blockages of her carotid arteries; and, second, that it is entitled to judgment as a matter of law as to Windmill's sixth affirmative defense (Windmill's assertion that Hajjar failed to mitigate her damages).

For the reasons discussed, Windmill's motion for summary judgment is granted, and the EEOC's motion for partial summary judgment is denied.

Standard of Review

When ruling on a motion for summary judgment, the court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith , 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals "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). In this context, "a fact is material' if it potentially affects the outcome of the suit and a dispute over it is genuine' if the parties' positions on the issue are supported by conflicting evidence." Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr. , 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). Nevertheless, if the non-moving party's "evidence is merely colorable, or is not significantly probative, " no genuine dispute as to a material fact has been proved, and "summary judgment may be granted." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50 (1986) (citations omitted).

The key, then, to defeating a properly supported motion for summary judgment is the non-movant's ability to support his or her claims concerning disputed material facts with evidence that conflicts with that proffered by the moving party. See generally Fed.R.Civ.P. 56(c). It naturally follows that while a reviewing court must take into account all properly documented facts, it may ignore a party's bald assertions, speculation, and unsupported conclusions. See Serapion v. Martinez , 119 F.3d 982, 987 (1st Cir. 1997). See also Scott v. Harris , 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").


The material facts are almost entirely undisputed. The primary dispute identified by the EEOC is whether Windmill had made a "final decision" to terminate Hajjar's employment prior to the date on which she disclosed her medical condition, or whether it was still entertaining thoughts of retaining her as an employee and putting her on a performance improvement plan. But, that so-called genuine factual dispute arises from little more than the EEOC's own implausible reading of the factual record, speculation, and unsupportable inferences drawn from the witnesses' sworn testimony - none of which is sufficient to defeat Windmill's motion for summary judgment. The relevant facts are as follows.

Windmill hired Nancy Hajjar as an accountant in June of 2008. In her performance review, in March of 2009, Hajjar received a generally satisfactory evaluation, "meeting" expectations in six categories, and "partially meeting" expectations in three. Nevertheless, her supervisors were concerned about what they perceived to be performance issues. Those issues are well-documented in the record and need not be recounted. It is sufficient to note that, by the fall of 2009, Hajjar's direct supervisor (Jill Kwitkiwski) had become sufficiently displeased with Hajjar's performance that she recommended to John Katz (Director of Human Resources) and John Sullivan (Vice President for Business Support Services) that Windmill terminate Hajjar's employment. See Affidavit of Jill Kwitkiwski (document no. 23-2) at para. 10; Affidavit of John Katz (document no. 23-18) at para. 7; Affidavit of John Sullivan (document no. 23-33) at para. 10.[1] The EEOC concedes that, in late 2009, Kwitkiwski recommended that Windmill fire Hajjar. See EEOC's Amended Objection (document no. 36) at 3. The EEOC also concedes that Kwitkiwski, Katz, and Sullivan began more serious and substantive discussions about terminating Hajjar's employment in January of 2010. Id. at 5. See also Kwitkiwski affidavit at 14; Katz affidavit at para. 10; Sullivan affidavit at para. 10. Katz thought Hajjar's employment should only be terminated after a plan had been put in place to redistribute her work to other Windmill Employees. Katz affidavit at para. 7. See also EEOC's Amended Objection at 5. And, all understood that it could take a few months to actually implement the decision to fire Hajjar. See, e.g., Sullivan affidavit at para. 15.

In February of 2010, Sullivan proposed to Kwitkiwski and Katz the possibility of putting Hajjar on a performance improvement plan ("PIP"). Each testified, however, that the proposed use of a PIP was simply part of an overall plan to more fully document Hajjar's shortcomings and terminate her employment; none believed that she was capable of satisfactorily completing a PIP. See Kwitkiwski affidavit at para. 19; Katz affidavit at paras. 14 and 15; Sullivan affidavit at paras. 12. In an e-mail she sent to both Katz and Sullivan on February 18, 2010, Kwitkiwski explained the parties' planned reallocation of Hajjar's duties once she was fired from her position at Windmill:

Obviously, this [reallocation of duties] would need to happen after [Hajjar] is removed from her role. Pursuant to our discussion last week, I plan to place [Hajjar] on a P.I.P. the week of the 22nd [of February, 2010]. I will need your support to review the plan I generate, and also add anything you feel would cover Windmill from a legal perspective.

Exhibit 9 to Kwitkiwski affidavit (document no. 23-11).

By March 5, 2010, however, the group determined that Hajjar would not be put on a PIP and, instead, her employment would simply be terminated. See Kwitkiwski affidavit at para. 24; Katz affidavit at para. 19; Sullivan affidavit at para. 14. Accordingly, in anticipation of the termination of Hajjar's employment, Kwitkiwski sent an e-mail to both Katz and Sullivan, outlining how Hajjar's duties at Windmill would be redistributed to employees in both the accounting and human resources departments. Exhibit 13 to Kwitkiwski affidavit (document no. 23-15) ("Attached please find the plan to redistribute Nancy's current duties."). Three days later, she sent an e-mail to Katz, making reference to "mov[ing] forward with our plan." Exhibit 14 to Kwitkiwski affidavit (document no. 23-16). Both Kwitkiwski and Katz testified that they understood her reference to "our plan" to mean their decision to terminate Hajjar's employment. Kwitkiwski affidavit at para. 25 ("I referred to moving forward with our plan' which is a reference to the plan to terminate Ms. Hajjar's employment."); Katz affidavit at para. 20 ("On March 8, 2010, Ms. Kwitkiwski e-mailed me... In this e-mail, Ms. ...

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