United States District Court, D. New Hampshire
Mariah J. Gage
Rymes Heating Oils, Inc. Opinion No. 2016 DNH 038
MEMORANDUM AND ORDER
BARBADORO, District Judge.
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
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.
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.
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.
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. Doc. No. 14-2 at 6.
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
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.
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
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.
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.
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."
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.
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.
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.
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.
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." Id . Gage also gave a
doctor's note to Tremblay.
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.
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
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. 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."
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.
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. 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."
STANDARD OF REVIEW
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).
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.
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 ...