United States District Court, D. New Hampshire
STEVEN J. McAULIFFE, District Judge.
Christyna Faulkner brings this action against her former employer and others, advancing claims under both the Americans with Disabilities Act and the Family Medical Leave Act. She also brings state law claims of wrongful discharge, intentional infliction of emotional distress, and defamation. Although she was initially represented by counsel, Faulkner is now proceeding pro se.
Currently before the court is defendants' motion for summary judgment as to all counts advanced in Faulkner's second amended complaint. For the reasons discussed, that motion is granted.
Standard of Review
When ruling on a motion for summary judgment, the court must "constru[e] the record in the light most favorable to the nonmoving party and resolv[e] all reasonable inferences in that party's favor." Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). 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). See also Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). But, 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 her claims concerning disputed material facts with admissible 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, unsupported conclusions, and mere speculation, see Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997), as well as those allegations "which have since been conclusively contradicted by [the non-moving party's] concessions or otherwise, " Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). 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.").
Faulkner's objection to defendants' motion for summary judgment was originally due in mid-March. Subsequently, however, the court granted her motion seeking additional time to file her objection. By order dated May 6, 2015, the court directed that Faulkner "shall file a response to the pending motion for summary judgment on or before July 31, 2015" - more than four months after its original due date. Document no. 63 (emphasis in original). Faulkner did not comply with that order and failed to file a timely objection. Nor has she sought additional time to file an objection. Accordingly, the court necessarily takes as admitted the factual statements recited in defendants' motion, as supported by the attached exhibits. See Local Rule 56.1(b) (formerly, Local Rule 7.2(b)(2)) ("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."). See also Puerto Rico American Ins. Co. v. Rivera-Vazquez, 603 F.3d 125, 131 (1st Cir. 2010) (discussing Puerto Rico's analog to Local Rule 56.1(b), also known as the "antiferret rule, " and holding that, "This type of rule is aimed at enabling a district court to adjudicate a summary judgment motion without endless rummaging through a plethoric record. Given this root purpose, we have held with a regularity bordering on the monotonous that parties ignore the strictures of an anti-ferret' rule at their peril.") (citations omitted).
Of course Faulkner's failure to object does not automatically entitle defendants to judgment as a matter of law. The court must still determine whether the uncontested facts presented by defendants, when viewed in the light most favorable to Faulkner, warrant entry of summary judgment in favor of defendants. See, e.g., Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102 (1st Cir. 2003).
The relevant factual background to this case is largely undisputed. In May of 2008, Faulkner signed a written employment agreement with Mary Hitchcock Memorial Hospital ("MHMH") and, in July, she began the first year of a medical residency program in diagnostic radiology. Early in 2009, she revealed to some of the attending physicians, and the director of the residency program, that she suffered from insomnia and was sleeping for only a few hours each night. Faulkner obtained medical treatment for insomnia and, in March of 2009, her treating physician (Dr. Sateia) contacted the residency program director (Dr. Chertoff) to request a schedule modification as an accommodation. Dr. Chertoff provided that accommodation. See Email from Dr. Chertoff to Dr. Sateia, dated March 4, 2009 (document no. 56-6) ("I will certainly do anything you think is needed to help her.... I know she is hesitant to ask for any special treatment, but I keep trying to reassure her that this is no different than any other medical problem, and we will follow whatever her providers recommend, no questions asked."). A few weeks later, in May of 2009, Dr. Sateia requested a modification to Faulkner's call schedule, which request was also granted.
Even with those accommodations, however, Faulkner's work performance remained, at best, inconsistent and below expectations. Still, in June of 2009, she was advanced to the second year of residency, and signed another employment contract with MHMH. In July, her treating physician again asked that Faulkner's schedule be modified, so she might have more time to study for an examination. Defendants, Dr. Chertoff and Dr. Silas, granted that request as well. Later that same year, Faulkner was given yet another accommodation to her schedule and she was afforded additional time to study for her examinations. But, despite the numerous accommodations given to Faulkner, her work performance remained unacceptable.
Nevertheless, MHMH remained committed to assisting Faulkner. Accordingly, Dr. Chertoff wrote to Faulkner's treating physician to see if there was anything else that might be done to help her succeed in the program.
It seems pretty clear that our plan for your patient, my resident, isn't really working. She is aware of this, but [she] assumed I would either fire her or put her on probation. I wouldn't even consider doing either of those things.
Is there a time we can talk about how to manage her, so that hopefully she can still succeed in this program?... She just isn't learning this way, and I'm hearing rumbling about whether or not she can "make it."
I look at this as a medical problem, and something that we have to be committed to managing.
E-mail from Dr. Chertoff to Dr. Sateia, dated October 7, 2009 (document no. 56-12). Subsequently, Dr. Sateia acknowledged the support Faulkner was receiving from the administrators of her program and wrote, "Christyna is fortunate to have such a supportive faculty addressing this." E-mail from Dr. Sateia, dated October 13, 2009 (document no. 56-13).
On October 14, 2009, Faulkner and Dr. Sateia met with Drs. Chertoff, Silas, and Lewis (Faulkner's advisor), and the residency program coordinator, Willo Sullivan. The group reviewed (and everyone, including Faulkner, signed) a written plan for Faulkner to follow until she left for a required residency rotation at Boston Children's Hospital. See Meeting Summary (document no. 56-14). As part of that plan, MHMH, in consultation with Faulker's treating physician, temporarily suspended her night call obligations. All agreed that this accommodation "will require some degree of buy in from the other residents." Id . Accordingly, Faulkner agreed that, while her fellow residents would "not be given any confidential medical information, [w]ith Dr. Faulkner's permission, they will be told that she has significant issues with insomnia, that this is a medical condition, being managed by physicians at DHMC, and [that] these recommendations are accommodations, supported by her physicians, in accordance with the Americans with Disabilities Act." Id.
Additionally, MHMH agreed to contact Boston Children's Hospital to help implement program accommodations for Faulkner while she worked there. Faulker agreed that BCH would be informed that she cannot take night call, as "an accommodation necessary for a medical condition." Id . Additionally, Faulkner agreed that:
There is a strong likelihood that Christyna will need additional time (at full pay and benefits) in the program, due to medically related time lost.
There is a strong likelihood that Christyna will need to delay taking boards. Christyna will need to spend a significant amount of time and effort to catch up to her expected level of knowledge, and to progress. ...