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Gallagher v. Unitil Service Corp.

United States District Court, D. New Hampshire

September 17, 2015

Elaine Gallagher, Plaintiff
Unitil Service Corp., Defendant Opinion No. 2015 DNH 179

Leslie H. Johnson, Esq.

Christopher J. Pyles, Esq.


Steven J. McAuliffe, United States District Judge.

Elaine Gallagher brings this action against her former employer, Unitil Service Corp., claiming she was the victim of unlawful discrimination. Specifically, she says Unitil violated the Americans with Disabilities Act (“ADA”) by discriminating against her on the basis of her disability and by refusing to reasonably accommodate that disability. She also alleges that Unitil unlawfully interfered with her rights under the Family and Medical Leave Act (“FMLA”) by failing to provide her with proper notification of her statutory rights and by denying her request for intermittent leave when she returned to work after having received treatment for a serious medical condition. Finally, she brings a state law claim of disability discrimination under N.H. Rev. Stat. Ann. (“RSA”) 354-A, over which she asks the court to exercise supplemental jurisdiction.

Pending before the court is Unitil’s motion for summary judgment on all three claims advanced in Gallagher’s complaint. Gallagher objects. 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 non-moving 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). 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.”). Importantly - at least as it relates to this case - the non-moving party cannot create a factual dispute by simply submitting an affidavit or deposition testimony that contradicts his or her earlier sworn testimony without providing an adequate explanation for that discrepancy. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994). See also Torres v. E.I. DuPont de Nemours & Co., 219 F.3d 13, 20 (1st Cir. 2000).


In April of 2010, Unitil hired Gallagher as a temporary systems analyst. A few months later, she was hired as a fulltime, salaried systems analyst/programmer, with benefits. She worked in Unitil’s “Information Systems Department, ” where she reported to Michelle Gamble who, in turn, reported to Sean Baker. At her deposition, Gallagher testified that she understood that, in her new position, she would be expected to work more than 40 hours per week, if necessary. And, she often did.

At the end of 2010, Gamble prepared Gallagher’s “Performance Appraisal, ” and gave her a very good (if not excellent) review (a “2” on a scale of 1 to 5, with lower scores being better). Based upon that positive performance review, Gallagher received a 3.1% salary increase, effective January 1, 2011. Later that year, Gallagher began working on a sizeable project known as the “Mobile Dispatch System.” Her workload increased and she began working as many as 60 hours per week (occasionally more). Then, in the fall of 2011, Gallagher learned that she needed abdominal surgery and notified Gamble.

On November 10, 2011, Unitil sent Gallagher a package of materials advising her of her rights under the FMLA. Two weeks later, Gallagher provided Unitil with a letter from her treating physician stating that she was scheduled for surgery on December 2, 2011, after which she would require approximately six weeks to recover. Gallagher requested, and Unitil provided, FMLA leave that extended into late January of 2012. Although Gamble did not prepare a year-end “Performance Appraisal” for Gallagher (apparently because Gallagher was on leave), Unitil again gave her another excellent performance rating. It also gave her a 3% raise, effective January 1, 2012.

A little more than seven weeks after her surgery, on January 24, 2012, Gallagher returned to work and gave Unitil a note from her doctor that provided:

Ms. Gallagher was seen and evaluated in our office today, and may return to work this afternoon. She is still recovering from major abdominal surgery. She is cleared to return to work, but may work part-time from home at her discretion, for the next two weeks, or until February 13, 2012.

Letter from Anne Shapter, M.D., dated January 24, 2012 (document no. 18-12). Gallagher admits that, as expressed in that note, her treating physicians expected her to be able to return to a full-time work schedule by Monday, February 13, 2012. Gallagher Deposition at 83. She claims, however, that her doctors had placed additional restrictions upon her (such as advising her not to sit for too long, not to gain weight, and not to lift heavy objects). She says those additional restrictions were conveyed to her orally, but concedes that neither she nor any of her treating physicians shared that information with Unitil, nor did she ask her physicians to convey that information to Unitil. Id., at 84. After providing Unitil with Dr. Shapter’s letter on January 24, Gallagher gave Unitil no additional information from her treating physicians concerning her health, her recovery, the need for work-place accommodations, or her alleged disability.

Gallagher says that during the two week period immediately following her return to work (i.e., when her doctor indicated she might need to work part-time from home, at her option), she approached Gamble “on a few occasions” to say that she was “ready to call it quits for the day.” Gallagher Deposition at 82. In response, says Gallagher, Gamble “started giving [her] a list of things that had not yet been accomplished.” Id. From that, Gallagher inferred that she could not (or at least should not) leave the office until that work was completed and, therefore, she did not go home. But, she did not tell Gamble she needed to rest as a result of her surgery the prior December. Nor did she remind Gamble of her doctor’s recommendation that she be permitted to work from home, if she felt it necessary. Nor did she speak with anyone else at Unitil about going home and working on a part-time schedule. Id. In short, Gallagher gave no indication (to Gamble or anyone else at Unitil) that she was unwilling or unable to return to work on those “few occasions” she told Gamble she was ready to go home for the day, nor did she mention any need for rest, nor did she even allude to her alleged disability.

After February 13, 2012 (i.e., the date her doctor indicated she could return to full-time work, without restriction), Gallagher says she often complained that she “was working excessive work hours, ” id. at 84, and asked either Gamble or Baker “if there was something that we could do about maybe shifting some of the responsibility off to other people that shared the same title as myself and were certainly capable of completing some tasks, ” id. at 90. According to Gallagher, little was done to reduce her workload. As further evidence of her difficult working conditions, Gallagher also claims that at some point in February or March of 2012, Gamble told her, “Why don’t you climb to the roof and jump.” Transcript of Appeal Tribunal Hearing (June 14, 2012) (document no. 18-14) at 25.

According to Gallagher, her repeated complaints about the number of hours she was working each week, and her calls for Gamble to re-allocate her work to others, constituted requests for accommodation under the ADA. She says they also implicitly amounted to requests for “intermittent leave” under the FMLA. She concedes, however, that she never used the words “accommodation” or “intermittent leave, ” nor did she ever specifically invoke the ADA or FMLA. Nor did she ever expressly link her need to assume a lighter workload to her surgery in 2011. Instead, says Gallagher, because Unitil knew she had undergone abdominal surgery in December of 2011 and because it (allegedly) understood the recovery process was lengthy, Unitil was on notice that she might require some form of accommodation. According to Gallagher, those accommodations were never forthcoming and her implicit requests for “intermittent leave” under the FMLA were ignored.[1]

In late March of 2012, with much (if not all) of the work on the Mobile Dispatch System project complete, Gallagher took a one-week paid vacation. She returned to work on Monday, April 2. That day, she spoke with Baker about resigning from Unitil. At this point, Gallagher’s account of the events surrounding her separation from Unitil becomes somewhat inconsistent. And, she has not adequately explained the reason for her inconsistent recollection of relevant events. See generally Colantuoni, 44 F.3d at 4-5; Torres, 219 F.3d at 20.

At her deposition, which was taken in January of 2015 (almost three years after her resignation) Gallagher described a conversation with Baker in which she raised issues about her health, the demands that upcoming projects would place on her time, and the “possibility” of resigning.

So I proceeded to have a conversation with Mr. Baker about the ongoing issues, [which] he was well aware of since I had discussed them with him many times. And during 2011 and in 2012, you know, expressing my concern that I wasn’t able to heal properly, it was going to be a year recovery, as they were aware. And that I saw the upcoming projects becoming more demanding than the MDS project had already been. In that conversation, I told Mr. Baker that I didn’t see any other options since it had been addressed so many times. Nothing changed. Possibly resigning. We discussed that possibility.

Gallagher Deposition at 98. In response, says Gallagher, Baker asked her not to resign, told her to take the remainder of the afternoon off so she could rest, and said he would “be back in contact with [her] as to when we would be meeting with HR.” Id. at 99. Gallagher now claims that the anticipated meeting with human resources was to address “accommodations she needed due to her disability, ” Plaintiff’s Memorandum at 10 - a factual claim unsupported by either her deposition testimony or any other evidence in the record. Indeed, as discussed below, that claim is contradicted by testimony Gallagher gave more than two years earlier.

During her unemployment benefits hearing, which was held in June of 2012 - about two months following her separation from Unitil - Gallagher’s testimony was decidedly different. She testified that, on April 2, 2012, she unequivocally informed Baker that she intended to resign, effective immediately. In response, Baker “asked if I could hold off on my resignation being effective immediately because there were some exit interviews that HR wanted to go through and there were some other processes.” Transcript of Appeal Tribunal Hearing (June 14, 2012) (document no. 18-14) at 33. Gallagher further testified as follows:

Question: So you originally told him that you were resigning immediately?
Answer: But then he convinced me not to do that. He asked me and as a professional courtesy I did say that I would continue to stay on
* * *
Question: What was it that he wanted you to stay on for, to do what? Something specific?
Answer: Just to hand things over and make sure everything was in good order, have my exit interview with Kim.

Id. qt 33-34 (emphasis supplied). Baker testified similarly, saying that Gallagher was very clear that she intended to resign immediately, without the traditional two weeks’ notice.

I remember her saying specifically, “I’m not giving two weeks’ notice” as being important, near the beginning of the conversation, and I can’t say the exact wording, but I know ...

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