United States District Court, D. New Hampshire
JOSEPH A. DiCLERICO, Jr., District Judge.
Kimberly Andersen brings federal and state law claims against Dartmouth Hitchcock Medical Center ("DHMC"), her former employer, that arose from the circumstances of her employment termination. Andersen is deaf and contends that DHMC did not provide her with reasonable accommodation for her disability during the termination process. Andersen moves for summary judgment on her claims under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, and the New Hampshire Law Against Discrimination, RSA chapter 354-A, which are Counts I, II, and V. DHMC moves for summary judgment in its favor on all of Andersen's claims.
Standard of Review
Cross motions for summary judgment proceed under the same standard applicable to all motions for summary judgment, but the motions are addressed separately. Fadili v. Deutsche Bank Nat'l Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014). When the party moving for summary judgment bears the burden of proof on an issue, that party "cannot prevail unless the evidence that he provides on that issue is conclusive." E.E.O.C. v. Union Indep. de la Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2002) (internal quotation marks omitted). In addition, Federal Rule of Civil Procedure 56 requires that a motion for summary judgment be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Therefore, an absence of evidence weighs against the party with the burden of proof. Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 14 (1st Cir. 2012).
Summary judgment is appropriate when "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). "A genuine issue is one that can be resolved in favor of either party, and a material fact is one which has the potential of affecting the outcome of the case." Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 223 (1st Cir. 2013) (internal quotation marks omitted). In deciding a motion for summary judgment, the court draws all reasonable factual inferences in favor of the nonmovant. Kenney v. Floyd, 700 F.3d 604, 608 (1st Cir. 2012).
I. Statement of Facts
In its reply, DHMC challenges statements in Andersen's objection to DHMC's motion for summary judgment as not being supported by appropriate record citations. The cited statements are part of the "Argument" section of Andersen's objection and do not have supporting citations to the record.
Litigants in this district are required to "incorporate a short and concise statement of material facts, supported by appropriate record citations" to support or oppose a motion for summary judgment. LR 56.1(a) & (b). "All properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party." LR 56.1(b). Further, a party opposing summary judgment must provide competent record evidence to show a genuine factual dispute. Fed.R.Civ.P. 56(c)(1); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Mosher v. Nelson, 589 F.3d 488, 492 (1st Cir. 2009).
Andersen did not provide a statement of material facts in her objection as is required by LR 56.1(b). Instead, Andersen stated in her objection: "Ms. Andersen incorporates by this reference the motion with memorandum of law and exhibits she has submitted, asking the Court to grant partial Summary Judgment in her favor." For its part, DHMC filed a statement of undisputed material facts in a separate document, which is an exhibit attached to its memorandum.
Neither of these practices appear to strictly comply with LR 56.1(a), and both could lead to unnecessary confusion. See, e.g., P.R. Am. Ins. Co. v. Rivera-Vazquez, 603 F.3d 125, 131-32 (1st Cir. 2010). In addition, the Local Rules impose a page limitation on memoranda, see LR 7.1(a)(3), and both practices could be used to circumvent that rule. For purposes of the pending motions only, the court will consider the factual statement in Andersen's motion for partial summary judgment as a factual statement in support of her objection and will consider DHMC's factual statement that was filed as an exhibit to DHMC's motion for summary judgment. Similar accommodations may not be granted in the future in this or other cases. Counsel are directed to read and follow the local rules of this district.
Andersen did not support, by record citation, the following challenged statements in her objection to DHMC's motion for summary judgment or in her memorandum for partial summary judgment:
1. "Kimberley Andersen worked successfully in the billing department at Dartmouth, receiving regular raises, and commendations for her performance."
2. "Not surprisingly, Ms. Andersen received the lowest possible scores for communication skills and interpersonal skills during that meeting."
3. "And when the attempt to obtain an interpreter for the scheduled termination meeting failed, Ms. Andersen's supervisor, [sic] misled Ms. Andersen about the nature of the meeting, allowing Ms. Andersen to believe that the meeting was to identify which of the positions in the newly reorganized department she would have."
Therefore, those statements will not be considered for purposes of summary judgment.
II. Factual Background
Andersen graduated from the National Institute for the Deaf at Rochester Institute of Technology in May of 1985 with an "AAS" medical record technician degree. The Institute provided an evaluation of her communication skills and stated that Andersen's recommended mode of communication with Andersen in a one-to-one situation was through speech. The evaluation also stated that Anderson had good speech abilities, that her speech reading abilities were excellent particularly one-to-one, that she understood more than half of a message by hearing, and that appropriate environmental conditions such as proper lighting and no excessive background noise would help her understanding.
Andersen was hired by Mary Hitchcock Memorial Hospital, after graduation, as a clinical information analyst. She used speech and lipreading as her primary modes of communication but later also relied on email, which helped her ability to communicate. On some occasions, beginning in the 1990s, Andersen requested an American Sign Language interpreter, which was provided when requested. Her managers would ask if she wanted an interpreter for meetings or events.
Andersen worked in clinical information services as an inpatient coder until 1995. Because she could not meet the accuracy requirements for that position, Andersen was transferred to a temporary position in the Patient Financial Services department to provide her time to find another job. She performed well in that ...