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Duryea v. Metrocast Cablevision of New Hampshire LLC

United States District Court, D. New Hampshire

April 21, 2017

Wanda Duryea
MetroCast Cablevision of New Hampshire, LLC, et al. Opinion No. 2017 DNH 078


          Landya McCafferty United States District Judge.

         Wanda 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”).[1]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.


         A 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).


         On 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, 2014.

         Throughout 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 chronologically.[2]

         Harassment in the Early Years of Duryea's Employment

         In 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.

         The 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.

         The 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.

         Issues at Work Following Duryea's Surgery

         Beginning 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.

         In 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.

         Finally, 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.

         Duryea's FMLA Leave and Her Raise and Bonus

         In 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.

         At the 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” (“Attendance Category”).[3]

         In both 2011 and 2012, Duryea received the lowest possible rating, “Needs Improvement, ”[4] 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.[5] 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 years.

         In 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.[6] 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.

         Duryea's Request for a Parking Accommodation

         Duryea 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.

         On 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.[7] 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.

         On 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.[8] MetroCast did not immediately provide Duryea with a closer parking space.

         On 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 medical condition.

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 10.[9]

         On 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.

         Duryea's Request for a Desk Accommodation

         Duryea 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.

         Duryea 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 possible.

         Assignment of Training Tasks Following Medical Leave

         Duryea 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.

         Termination of ...

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