United States District Court, D. New Hampshire
McCafferty United States District Judge.
Duryea brings this lawsuit against her former employer,
MetroCast Cablevision of New Hampshire, LLC, asserting claims
for unlawful discrimination and harassment under RSA 354-A
and the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq., as well as claims for
retaliation under RSA 354-A:19, the ADA, and the Family and
Medical Leave Act (“FMLA”).Before the court
is defendants' motion for summary judgment on all counts.
Duryea objects. For the reasons explained herein, the court
grants defendants' motion for summary judgment on all
claims except those alleging a hostile work environment.
movant is entitled to summary judgment if it “shows
that there is no genuine dispute as to any material fact and
[that it] is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In reviewing the record, the court
construes all facts and reasonable inferences in the light
most favorable to the nonmovant. Kelley v. Corr. Med.
Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013). Summary
judgment is inappropriate when “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
March 30, 2009, MetroCast hired Duryea as a Technical Service
Representative in its Rochester, New Hampshire call center.
Her job duties included providing phone, email, and chat
support to MetroCast customers. Duryea worked at MetroCast
for more than five years, until her termination on August 27,
her employment, Duryea suffered from a number of alleged
disabilities, including bilateral tibial tendinitis (a
condition that results in severe foot pain, especially when
walking), asthma and emphysema, daily back pain, ear pain,
vertigo, nausea, tinnitus, and loss of hearing. During her
employment at MetroCast, Duryea requested that MetroCast
provide certain accommodations for her disabilities. Duryea
claims that as a result of her disabilities and accommodation
requests she suffered discrimination and retaliation,
culminating in her termination. She also claims that
supervisors and coworkers regularly harassed her because she
was disabled. The court summarizes her allegations
in the Early Years of Duryea's Employment
2009, early in her tenure with MetroCast, Duryea experienced
alleged harassment from a coworker who made inappropriate
comments about her gender and her disabilities and from
supervisors who made repetitive negative comments about her
need to wear sneakers at work.
incident involving a coworker occurred between June and
August 2009. The coworker, Casey Fontneau, harassed Duryea
for being out sick and using a handicapped parking spot at
work. He made comments like “you don't look sick to
me, ” “you don't look handicapped to me,
” and “those spots are for people in wheelchairs,
you can walk.” Doc. no. 27-2 at ¶ 1. Fontneau also
made derogatory gender-based comments to Duryea about her
“breast size” and “girly” selection
of candy. Id. On August 13, 2009, Duryea reported
Fontneau's harassment to MetroCast. MetroCast
investigated Duryea's complaint that same day and issued
Fontneau a written disciplinary notice.
negative comments about Duryea's sneakers began in late
2009. MetroCast's Employee Handbook required all
employees at the Rochester facility to wear “business
casual” footwear. Doc. no. 23-7 at ¶ 8. On
November 22, 2009, Duryea requested permission to wear
sneakers at work due to her foot pain. On November 25,
MetroCast granted Duryea's request. Thereafter, Duryea
claims that several of her supervisors, including Bill
Schwartz, criticized her for wearing sneakers “on a
weekly basis . . . with 20 of those times being by Schwartz
himself . . . .” Doc. no. 27-2 at ¶ 5; see also
doc. no. 23-6 at 5 of 10 (“[A]t least weekly . . . Bill
Schwartz or another supervisor commented that I was wearing
sneakers and I had to tell them that I have a doctor's
note.”). Duryea testified at her deposition that the
negative comments continued for “[m]onths.” See
doc. no. 23-3 at 27 of 91. One of Duryea's former
coworkers, Richard Chojnacki, states in an affidavit that he
overheard various supervisors including Jason Lamontagne, Roy
Rudd, and Tony Graves tell [Duryea] repeatedly that she
shouldn't be wearing sneakers at work, and I would hear
Wanda respond that she had a doctor's note and that it
was a work modification. But they continued to tell her she
shouldn't be wearing sneakers. I heard these comments at
least eight times.
Doc. no. 27-4 at ¶ 6. In February 2011, for reasons not
clear from the record, Schwartz was terminated and Lamontagne
became Duryea's supervisor.
at Work Following Duryea's Surgery
in 2011, following surgery on her right foot, Duryea alleges
that she suffered numerous instances of harassment and
discrimination. The first such incident occurred on January
14, when Duryea returned to work after surgery in a
wheelchair. Upon her return, Schwartz sent her home, telling
her that she could not return to work unless she had a note
from her doctor. Although Duryea obtained a doctor's note
dated January 14 verifying that she could return to work
using a wheelchair, see doc. no. 23-11 at 1 of 3, she
remained out of work until January 20.
addition to wearing sneakers, Duryea also used a scooter or
walker at work, when needed, to lessen the pain from walking.
Duryea alleges that, starting in 2011, she was harassed
because of her scooter and walker use. Lamontagne and Graves
required her to keep the walker and scooter away from her
desk so that they were not in the walkway. Duryea says that
walking from her desk to the scooter and walker caused her
pain. Duryea states that “[e]very time I had to use my
scooter, from 2011-2014, Tony Graves would say, ‘You
know, if you quit smoking, you would not need to use that
scooter.'” Doc. no. 23-6 at 3 of 10. In her
objection, Duryea appears to clarify that her use of the
scooter “occurred approximately eight (8) times over
three years.” Doc. no. 27-1 at 4.
Duryea alleges that she experienced a further incident of
harassment in January or February 2011 at a work-related
dinner. Duryea, who was in a wheelchair at the time, spilled
a drink on the floor during the dinner. Duryea's
supervisor, Alex Laklas, told her to clean up the floor
herself. Duryea “crawled out of the wheelchair onto the
ground, and was watched by many people . . . .” Doc.
no. 27-2 at ¶ 18. Laklas initially refused to let two
coworkers help her clean, but he eventually allowed a
coworker to assist her.
FMLA Leave and Her Raise and Bonus
addition to the allegations of harassment and discrimination,
Duryea also claims that MetroCast retaliated against her for
taking FMLA leave. Specifically, Duryea alleges that
MetroCast gave her lower raises and bonuses in 2011 and 2012
because she took FMLA leave in those years.
end of the calendar year, MetroCast gave each employee a
raise and bonus based on the overall performance rating that
employee received in her annual performance evaluation.
MetroCast calculates an employee's overall performance
rating by averaging the employee's scores in five
different categories. Those five categories have a total of
28 subcategories. One of those 28 subcategories is entitled
“Attendance, punctuality, time management”
2011 and 2012, Duryea received the lowest possible rating,
“Needs Improvement, ” in the Attendance Category.
In its comments in both years, MetroCast wrote that it
“would like to see her attendance managed
better.” See doc. no. 23-3 at 76 of 91, 81 of 91.
MetroCast explained in the comments that Duryea had used her
allotted paid time off-vacation, personal, and sick days-well
before the end of each calendar year. When Duryea received her
2012 evaluation, her supervisor told her that she received a
lower rating in the Attendance Category “because of
[her] absences.” Id. at 12 of 91. Duryea
claims that MetroCast retaliated against her by using her
FMLA-protected leave, which she took at various times in 2011
and 2012, to calculate her low ratings in the Attendance
Category, thereby reducing her raises and bonuses in those
2011, although Duryea's overall performance rating was
2.7 out of 4, she received a raise (2.66%) higher than the
company standard (2.5%) and received the highest bonus ($1,
000) she was eligible to receive. In 2012, Duryea's
overall performance rating was 2.8 out of 4, and she received
a raise (2.8%) slightly lower than the company standard (3%)
and received a bonus ($933) that was 93% of the highest bonus
($1, 000) she could receive. In December 2012, Duryea
complained to her department manager that her FMLA-protected
leave had affected her raise and bonus, but MetroCast did not
change either her raise or bonus.
Request for a Parking Accommodation
alleges that, in November 2013, MetroCast discriminated
against her by waiting 10 days before accommodating her
request for a parking space closer to the employee entrance
to the building. Prior to 2013, MetroCast permitted employees
to enter the building through the main customer entrance, and
Duryea had a designated handicap parking space near that
entrance. By the fall of 2013, MetroCast had a new employee
entrance and announced to employees that they could no longer
enter the building through the main customer entrance and had
to use the employee entrance. There were no handicap parking
spaces located near the employee entrance.
November 1, 2013, Duryea was experiencing increased foot pain
and asked her department manager, Roy Rudd, if she could park
closer to the employee entrance “during her overtime
shifts.” Doc. no. 27-2 at ¶ 23. Rudd verbally
denied her request. Duryea then informed her other
supervisors that “she could not work her scheduled
overtime” shifts because she “would have trouble
walking from her car into the building.” Id.
at ¶ 24.
November 4, Duryea gave MetroCast a note, signed by Dr. Nancy
Stoll, requesting that she be allowed to park closer to the
employee entrance for the next two weeks until she could
evaluate Duryea and determine the extent of her disability.
Dr. Stoll's note states:
Please allow Wanda Duryea to park close to the employee
entrance door over the next 2 weeks until she can make an
appointment at our office to assess the extent of her
disability. Unfortunately, as her covering provider for this
practice, I am not able to confirm that Ms. Duryea is
significantly disabled to require long-term accommodation
regarding her parking situation at work.
Doc. no. 23-15. MetroCast did not immediately provide
Duryea with a closer parking space.
November 5, Duryea left work and went to Barrington Urgent
Care due to intense foot pain, which she claims was caused by
additional walking at work. Duryea was seen by Dr. Stoll the
next day, and Dr. Stoll faxed a note to MetroCast stating
that Duryea “must be excused from work” until
November 13. See doc. no. 23-16. The note also states:
She may return to [work] on Wednesday, 11/13/2013, under the
following terms: accommodations to be made to allow Mrs.
Duryea to park closer to the new employee entrance or provide
a key for the front lobby of the building due to her chronic
Id. MetroCast then sent Dr. Stoll an “ADA
Certification Form” to substantiate the requested
parking accommodation. See doc. no. 23-18 at 9-10 of
November 11, Dr. Stoll returned the form to MetroCast,
confirming Duryea's need for the parking accommodation.
By letter dated November 11, MetroCast approved the
accommodation request and provided Duryea with a parking
space near the employee entrance.
Request for a Desk Accommodation
also claims that MetroCast discriminated against her by
denying her a timely accommodation regarding the location of
her desk. On January 27, 2014, after Duryea returned to work
from three weeks of FMLA leave, she discovered that MetroCast
had moved her desk to the far end of the call center, away
from the employee entrance. Duryea told Lamontagne
“that walking the extra distance to her new seat would
be painful on her feet.” Doc. no. 27-2 at ¶ 33.
Lamontagne did not offer to move her desk, but instead
explained that Rudd had moved her desk so that new employees
could be closer to Lamontagne for training purposes.
made a formal request for a desk accommodation after
returning from a three-month-long medical leave on May 29,
2014. On that date, Duryea provided MetroCast with a note
dated February 15, 2014, from Dr. Joseph Martinez of
Wentworth Health Partners, stating that “her desk needs
to be located as close to the entrance/exit as possible to
limit the distance she is required to walk.” Doc. no.
24-2. That same day, MetroCast faxed an ADA Certification
Form to Wentworth Health Partners. One day later, on May 30,
MetroCast moved Duryea's desk as close to the employee
entrance as possible, pending receipt of the ADA
Certification Form. On June 12, MetroCast received the
completed form and notified Duryea that her desk would
continue to be located as close to the employee entrance as
of Training Tasks Following Medical Leave
alleges that during roughly the same period in 2014 that she
requested the parking and desk accommodations, MetroCast also
discriminated against her by giving her training assignments
upon her return from two separate medical leaves. First, when
Duryea returned to work after taking leave from January 31
through February 11, 2014, she claims that MetroCast assigned
to her “tasks that trainee employees are
assigned.” Doc. no. 23-6 at 6 of 10. She had not been
assigned such trainee tasks in over three years. Shortly
thereafter, Duryea took medical leave from February 13
through May 29, 2014, due to ear pain, vertigo, and nausea.
Duryea claims that, upon her return on May 30, MetroCast
placed her on “training status” for one week,
until June 6. Id.