Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gage v. Rymes Heating Oils, Inc.

United States District Court, D. New Hampshire

March 1, 2016

Mariah J. Gage
Rymes Heating Oils, Inc. Opinion No. 2016 DNH 038


          PAUL BARBADORO, District Judge.

         Mariah J. Gage sued her former employer, Rymes Heating Oils, Inc., alleging that Rymes violated both the Americans with Disabilities Act ("ADA") and New Hampshire's Law Against Discrimination by demoting and firing her on the basis of her disability, an episodic migraine condition. She also claims that Rymes wrongfully discharged her in violation of New Hampshire law. Rymes has responded with a motion for summary judgment.

         I. BACKGROUND

         Gage worked at Rymes for approximately nine months, from September 2012 until June 25, 2013. Rymes hired Gage to work as a receptionist at the company's Pembroke, NH office, where her responsibilities included greeting and assisting customers, scanning and filing documents, and running various errands outside the office. Gage's immediate supervisor at Rymes was Megan Enright.

         At the outset of her employment, Gage signed a document outlining the company's personal and sick time policy. Doc. No. 12-3. That document detailed how Rymes employees accrued, and were required to use, paid vacation and "personal time, " which employees could use for "temporary absence due to appointments, illness or injuries." Id. at 3. Employees accrued vacation and personal time on a weekly basis. After a ninety-day probationary period, full-time employees were entitled to ten vacation days per year, accrued at a rate of 1.5396 hours per week, plus six paid personal days, accrued at a rate of.93 hours per week. In addition, Rymes gave all of its full-time employees eight hours of unpaid personal time. The policy provided that, "[i]n the event an employee exceeds the limits outlined in this document an employee will be terminated immediately." Id. at 3.

         Rymes' operations manager, Charles Cosseboom, was responsible for hiring and firing decisions at Rymes. As Cosseboom explained during his deposition, Rymes did not always fire an employee who missed work without previously accruing sufficient personal time. See Doc. No. 14-3 at 4. Cosseboom stated, however, that Rymes did not have any "written guideline[s]" regarding whether an employee would be fired for excessive absenteeism. Id.

         From the beginning of her employment through June 11, 2013, Gage had fourteen unexcused absences, where she either arrived to work late, left work early, or missed work for an entire day without having accrued the necessary personal time. Doc. No. 12-5 at 2. Neither party has provided a detailed explanation for these absences. At her deposition, however, Gage stated that she missed work for several reasons, including to care for her son when he was ill, to attend family court proceedings, and to travel to visit her boyfriend in another state.[1] Doc. No. 14-2 at 6.

         Gage also missed work due to her own illnesses. On March 27 and 28, 2013, she was out due to a flu-like illness. According to Gage, she was stricken with "a virus" on March 27, and "suffered uncontrollable bouts of nausea on March 27, 2013 and the following day." Doc. No. 14-4 at 1. Gage visited her doctor on March 27, who wrote a note stating "[p]lease excuse [Gage] from work today, March 27, 2013 and March 28, 2013, for legitimate medical reasons. If you have any questions, please call." Doc. No. 14-7 at 27 (doctor's note).

         Gage returned to work on March 29, 2013 and gave the doctor's note to her supervisor, Megan Enright, and to HR Generalist Dean Tremblay. That same day, Enright and Tremblay met with Gage to discuss her absences. During the meeting, Enright and Tremblay reminded Gage of the company's attendance policy, and told her that her job was in jeopardy because she had been absent without the appropriate personal time accrued. Doc. No. 14-4 at 1-2. Gage further recalls that, during that meeting, Tremblay "specifically warned [her] that the next time [she] missed work for any reason [she] would be terminated." Id. at 2.

         On April 1, 2013, several days after Gage missed work due to her "flu like" illness, Gage and Enright discussed Gage's health condition via instant message. Enright asked Gage whether she was feeling better, and Gage responded that she had "a massive migraine right now, slightly queasy stomach but over all not bad, I think I have a sinus coming AGAIN." Doc. No. 14-7 at 35 (emphasis in original).

         Gage had no additional unexcused absences until June 12, 2013. That morning, Gage awoke at approximately 5:30 a.m. with a severe right-sided headache and numbness on the left side of her body. Doc. No. 14-4 at 2. She was unable to dress herself, unable to "compose a text [message to a coworker describing her symptoms] that made any sense, " and was unable to "find words" when trying to speak with her mother, Debra Gage. Id . Fearing that Gage was having a stroke, Gage's mother called 911. Gage was taken by ambulance to Concord Hospital for treatment. Id .; Doc. No. 14-6 at 1.

         At about 6:30 or 7:00 a.m. on June 12, Debra Gage called HR Generalist Tremblay, and left a voicemail explaining that Gage would not be at work that day, that she "believed that [Gage] was suffering a stroke, and that an ambulance had just taken [Gage] to Concord Hospital." Doc. No. 14-6 at 1. When Tremblay did not return Ms. Gage's call, Ms. Gage called Rymes again later in the day. The person who answered her call responded that Tremblay was not available "but that [her] message had been received." Id.

         An emergency room report memorializes Gage's treatment at Concord Hospital. The report describes Gage as a "23-year-old female with a history of chronic migraines" and a family history of migraines. Doc. No. 12-4 at 2. According to the report, Gage explained her condition as "her typical headache, " but that she had never before "had the other symptoms, " namely the numbness and cognitive impairments, alongside her headache. Id . The doctor notes that he had "a long conversation with [Gage and Gage's mother] about the suspicion that [her condition] represents a complex migraine and not a TIA [transient ischemic attack] or stroke." Id. at 3. The report further indicates that the doctor did "not think this represents a TIA." Id.

         Instead, the doctor diagnosed Gage with a "[c]omplex migraine, " which had likely been exacerbated by Gage's new birth control medication. Id. at 3-4. The doctor recommended "close follow up with the primary care in the next 24 hours" and outpatient MRI and MRA imaging. Id . The doctor also recommended that Gage see a headache specialist "as she clearly states to me that she gets headaches on a regular basis going back to an early age of 8 with a strong family history." Id. at 4. The report, which the doctor signed electronically at 11:15 that morning, indicates that Gage's symptoms had "completely resolved." Id. at 3.

         Meanwhile, also on June 12, several of Gage's co-workers discussed her condition via instant message. At 1:05 that afternoon, Enright sent a message to her immediate supervisor, Megan Wilson, stating that Enright was "super annoyed with the whole [Gage] thing." Doc. No. 14-7 at 43. Wilson responded that she had "already made [operations manager Cosseboom] aware" and said that "it was just a matter of time...." Id . Enright replied that she knew that Gage was not "feeling good on Monday and she had to go to the doctor's [M]onday night because they thought she had a blood clot, then she was taken by ambulance last night or this morning, [I] would really like to know why the hell she couldn't call in herself." Id. at 43. Several minutes later, Enright told Wilson that she had "just talked to [Gage's friend and co-worker Crystal Rockwell, who] said that they think that [Gage] had a stroke, she was sluring [sic] her words this morning and every [sic] confused and couldn't form a sentence. She is in the [emergency room] and they are running test[s] to see what is going on." Id.

         Later that afternoon, Enright, Wilson, Cosseboom, and Tremblay decided to "have a talk" with Gage when she returned to work. Id. at 7. Gage's superiors considered firing her following her June 12 absence, but instead decided to move her to a different desk in the office and to take away some of her previous job tasks. Id. at 8.

         In describing this decision, Enright explained that Gage's superiors "felt at that time that she was not able to sit up at the front receptionist desk as... her attendance wasn't there to help walk in customers, which was what [Rymes] really needed." Id . Enright said that Cosseboom "simply moved [Gage] away from the front desk so she didn't have to help walk in customers, as she constantly had migraines, and she was never there to help walk in customers." Id. at 9. Following June 12, Gage kept her same pay rate and "all the same benefits, " as well as "the same job duties as she was doing [before] minus helping walk the customers or driving to the bank or the Post Office." Id.

         Gage returned to work on June 13, 2013, the day after her hospitalization. That morning, Enright asked Gage about the June 12 incident via instant message, writing "[h]ey, we never got in touch with your mom yesterday, what's going on?" Id. at 36. Gage responded "transient [i]schemic attack (mini stroke), " but said that she was "alright though, just have to have an MRA and stuff done."[2] Id . Gage also gave a doctor's note to Tremblay.

         That same day, Enright and Tremblay again met with Gage to discuss her absences. According to Gage's version of that conversation, Tremblay "did not ask [her] anything about [her] condition and instead just told [her] that he was demoting [her] from [the] receptionist position." Doc. No. 14-4 at 2. According to Tremblay's summary of that same meeting, Enright and Tremblay told Gage that her job was in jeopardy because of her absences, and said that Gage would be moved to a different desk, and would no longer greet customers or run errands.

         Gage reports that she was "humiliated" and "saddened by the loss of job responsibilities." Doc. No. 14-4 at 3. A number of Gage's coworkers apparently noticed the change too. In a June 21, 2013 instant message exchange, Wilson told Enright that "so far 3 people have asked [Gage] why she is back here, " to which Enright responded, "good! Must be embarrassing for her." Doc. No. 14-7 at 46. In that same conversation, Enright told Wilson that she was "dieing [sic] to catch [Gage] on her cell phone or online so we can just send her home." Id.

         The final incident preceding Gage's termination allegedly occurred on June 24, 2013, although the parties dispute what happened that day. According to Tremblay, another Rymes employee told Tremblay that Gage was crying in the basement of Rymes' office building.[3] Enright then went to the basement to look for Gage, but could not find her there or anywhere else in the building. Doc. No. 14-8 at 11. Tremblay then went into the basement himself and looked around, but was similarly unable to find Gage. Tremblay reported that Gage "was nowhere to be found for 30 minutes." Id.

         Gage disputes this account. She reports that she was filing documents in the basement on June 24, and was "suddenly overcome with emotion" because she "felt as though [she] was walking on eggshells at Rymes and that the company was going to fire me the first chance it got." Doc. No. 14-4 at 3. Gage claims that both "Ms. Enright, and later Mr. Tremblay, came down to the basement where [she] was filing" documents, and Gage states that she "separately spoke with each of them." Id . Gage contends that she "never went missing from the Rymes building on June 24, 2013, nor did anyone... ever question [her] about supposedly having been absent from the workplace" that day. Id.

         Following Gage's alleged thirty-minute absence from the Rymes offices on June 24, Tremblay consulted with Cosseboom, and Cosseboom decided to fire Gage. The next day, June 25, Enright and Tremblay told Gage that her employment had been terminated. Rymes reports that it fired Gage "for performance issues and attendance issues, " Doc. No. 14-7 at 49, though Cosseboom stated at his deposition that Gage's attendance was "the primary reason" for her firing.[4] Doc. No. 14-3 at 7. More specifically, at Cosseboom's deposition, Gage's counsel asked, "under Rymes' strict attendance policy, [does it] matter what the reason was for her absence on June 12[?]" Id . Cosseboom responded that "[t]he last [absence] is always the one that's the problem, but the ones before that, there wasn't an individual event with [Gage], one absenteeism." Id.


         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.

         III. ANALYSIS

         Gage has brought three claims against Rymes. She first alleges that she suffered a disability - an episodic migraine condition - while she was employed at Rymes, and claims that Rymes violated both the ADA (Count I) and Section 354-A of the New Hampshire Revised Statutes Annotated (Count II) by (1) "demoting" and ultimately firing her on the basis of her disability, and (2) otherwise failing to accommodate her ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.