United States District Court, D. New Hampshire
MEMORANDUM AND ORDER Opinion No. 2014 DNH 265.
PAUL BARBADORO, District Judge.
Mark Bellerose, a former custodian at the Mont Vernon Village School ("MVVS"), has sued School Administrative Unit #39 ("SAU #39") for violations of the Americans with Disabilities Act (the "ADA") and New Hampshire state law. Bellerose claims that SAU #39 violated the ADA by refusing to renew his contract and later failing to rehire him because he suffers from Asperger's Disorder. He bases his state law claims on the alternative theory that SAU #39 refused to employ him because he spoke out about health and safety issues at the school. SAU #39 has challenged Bellerose's claims in a motion for summary judgment.
Bellerose began working as a custodian for MVVS in the fall of 2006. He reported to Dennis Melanson, the Facilities Manager for the school. Melanson, in turn, reported to the Building Director, Jim Miner. In May 2007, Bellerose received an annual performance appraisal (the only one he received), in which he was rated "Outstanding" in eight categories and "Very Good" in three categories, for a total of 52 out of a possible 55 points.
A. Oral Reports of Concerns
From the winter of 2008-2009 through the winter of 2009-2010, Bellerose made a number of oral reports to various people about conditions at MVVS and about Melanson's failure to address those conditions. For example, in December 2008, Bellerose reported to a firefighter that his supervisor (presumably Melanson, but the facts cited are not more specific) made no attempt to shut off the water supply to the school when the school's power was out for several days. The firefighter directed Bellerose's supervisor to shut off the water supply.
At other points, Bellerose voiced his concerns about MVVS's maintenance practices to his supervisors and to other governmental employees and members of the public. For example, he expressed concerns about mold growing on classroom walls, ice dams on the school roof, and Melanson's inadequate response to many maintenance problems. Bellerose believed that some practices, such as when Melanson set up a fan in front of a moldy wall and when Melanson failed to inspect the smoke alarm system, violated the building rules and the health code. On two occasions, Bellerose voiced his concerns to his supervisors, Melanson, and Miner. On other occasions, however, he complained to selectmen, parents, teachers, and members of the fire department and school board.
B. Warning Letters to Bellerose
In a letter dated November 2, 2009, Miner wrote to Bellerose about following a "chain of command" ("Chain of Command Letter"). The letter reprimanded Bellerose for bypassing the chain of command by "cho[osing] to directly voice any thoughts regarding disagreement or criticism" about the school's conditions and maintenance practices to people outside the school. Doc No. 11-9 at 3. The letter continued, "It is imperative that all employees, yourself included, follow the established chain of command on all issues and concerns." Id . Bellerose had never before been told about the chain of command. He nevertheless signed the letter, but wrote "Some Disagreement" beneath his name.
On January 8, 2010, Miner wrote another letter to Bellerose with the subject, "2nd Written Warning." The letter reprimanded Bellerose for failing to "complete the task of snow removal" during the 2009-2010 holiday period. Doc. No. 11-9 at 2. It stated:
During discussions of this issue with the Principal and Facility Manager on Monday, January 4th, your responses were belligerent and disrespectful.... In October, both you and your supervisor were instructed to have a daily meeting to communicate the routine status and needs of the school. You have failed to contribute to that effort and chose to not participate in a constructive manner.
Id. The letter warned that he could be terminated if he did not change his behavior.
Bellerose signed the letter, writing, "Strongly Disagree" beneath his name. Bellerose was at school on Monday through Friday of the holiday period to clean the school, but it did not snow so there was no need to shovel. Bellerose did not meet daily with Melanson because Melanson usually left the school before Bellerose arrived at 3:00 p.m.
On February 1, 2010, Miner wrote a letter to Bellerose with the subject, "Final Warning." While helping a Mont Vernon citizen unload furniture at the school, the letter stated that Bellerose had used "profanity with a hostile tone" in front of the citizen and his eight and ten year-old children. Doc. No. 11-9 at 1. The letter warned that "[f]ailure to immediately correct this [unprofessional] behavior will result in further action up to and including termination." Id . The space marked for Bellerose's signature is blank. Below it, a handwritten notation reads, "REFUSED TO SIGN 2/2/10." Id . Bellerose did help unload furniture, but he did not use profanity or a hostile tone during this event.
Following his receipt of the final warning letter, Bellerose tried to correct the false allegations in the letter. He asked two people who were at the school when he unloaded the furniture to record statements about what happened. John Matte, another custodian at MVVS who helped unload furniture that night, wrote a statement in which he denied hearing Bellerose say anything inappropriate. Additionally, the basketball coach, Bill Pike, wrote a letter stating he held a practice at the school when the furniture was unloaded and he did not hear any inappropriate language or behavior. Bellerose provided these statements to Principal Sue Blair shortly after receiving the final warning.
C. Meetings with Principal Blair
Bellerose suffers from Asperger's Disorder. At some point during the winter of 2009-2010, Bellerose learned that his disorder potentially qualified as a disability. He also learned that communication problems were a symptom of Asperger's Disorder. Because he had been criticized for communication problems in the Chain of Command Letter, he brought information about the disorder to Principal Blair so that she could help him avoid issues in the future. Bellerose handed Blair four pages of information about Asperger's Disorder from the website Asperger-advice.com, which described symptoms of Asperger's Disorder. Blair responded to the papers by asking, "Is this you?" to which Bellerose replied, "Yes." Doc. No. 12-3 at 2. Blair did not ask any follow-up questions.
On May 5, 2010, Blair met with Bellerose to inform him that his contract would not be renewed for the 2010-2011 school year. During the meeting, Blair said to Bellerose, "Your Asperger's got in the way of your ability to interact with your boss, and we are tired of it." Doc. No. 12-3 at 2. Miner was also present at the meeting and told Bellerose that he should have gone to counseling. Bellerose's contract expired at the end of June 2010.
In October 2010, Bellerose filed a complaint with the New Hampshire Commission for Human Rights (the "NHCHR"). In the spring of 2011, Bellerose applied for a part-time custodial position at MVVS. He was not selected for the position.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The evidence submitted in support of the motion must be considered in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the absence of any genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A material fact "is one that might affect the outcome of the suit under the governing law.'" United States v. One Parcel of Real Prop. with Bldgs., 960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the moving party satisfies this burden, the nonmoving party must then "produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it; if that party cannot produce such evidence, the motion must be granted." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
Bellerose presents four ADA claims and three state law claims. Under the ADA, he asserts claims for disability discrimination (Count IV), "regarded as" disability discrimination (Count VII), failure to engage in an interactive process (Count V), and retaliation (Count VI). Under state law, he asserts a claim under the Whistleblowers' Protection Act (Count I), a claim under the Public Employee Freedom of Expression Act (Count II), and ...