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Cass v. Airgas USA, LLC

United States District Court, D. New Hampshire

August 2, 2018

David F. Cass
Airgas USA, LLC


          Joseph A. DiClerico, Jr. United States District Judge

         David F. Cass brings suit against his former employer, Airgas USA, LLC, alleging claims under state and federal law for discrimination because of his sleep apnea, retaliation against him for his complaints about discrimination, violation of the Whistleblower's Protection Act RSA chapter 275-E, and wrongful constructive discharge. Airgas has moved for summary judgment. Cass objects.

         Standard of Review

         Summary judgment is appropriate when the moving party "shows that there is 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). "A genuine issue of material fact only exists if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Town of Westport v. Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal quotation marks omitted); Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015) . The facts and reasonable inferences are taken in the light most favorable to the nonmoving party. McGunigle v. City of Quincy, 835 F.3d 192, 202 (1st Cir. 2016).

         "On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing 'that there is an absence of evidence to support the nonmoving party's case.'" OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If the moving party provides evidence to show that the nonmoving party cannot prove a claim, the burden shifts to the nonmoving party to show that there is at least a genuine and material factual dispute that precludes summary judgment. Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013).

         Under the local rules in this district, a party moving for summary judgment must "incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried." LR 56.1(a). A party opposing the motion must also incorporate a statement of material facts with appropriate record citations to show that a genuine factual dispute exists. LR 56.1(b). "All properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party." Id.

         Airgas did not incorporate its statement of material facts in its memorandum in support of summary judgment and instead filed a separate factual statement. Cass stated in a footnote in his objection to the motion for summary judgment that Airgas did not provide a factual statement in support of its motion and did not note the disputed facts, as required by LR 56.I.[1] Cass included a section in his memorandum titled "Statement of Facts," but identified the disputed facts in a chart, rather than in a narrative statement of facts. Cass also provided a response to Airgas's facts but did not provide record citations. In its reply, Airgas states that "Cass failed to comply with Local Rule 56.1(b) because he has not properly identified any facts contained in Airgas's Statement of Material Facts to which he objects." Doc. no. 20, at *1. Cass responded that Airgas had made no attempt to comply with LR 56.1.

         Airgas erred in filing a separate factual statement, in support of its motion for summary judgment, which should have been incorporated into the memorandum. LR 56.1(a). In addition, Airgas's memorandum is twenty-one pages, and the separate factual statement is ten pages, making the total length thirty-one pages. A memorandum in support of summary judgment is limited to twenty-five pages, and Airgas did not seek leave to file a memorandum in excess of that limit. LR 7.1(a)(3).

         Although presented in an unusual format, Cass did identify disputed facts with citations to the record in the chart. Cass also provided a "Response to Defendant's Factual Background," which includes some record citations, but not all statements are properly supported. Additional facts that Cass provided only in the argument section of his memorandum are not properly presented under LR 56.1.

         Therefore, neither Airgas nor Cass fully complied with the requirements of LR 56.1. The court could impose sanctions for failure to comply with LR 56.1 and require Airgas to refile the motion. LR 1.3. It is unfortunate that neither counsel took care to follow the local rules. Had they done so, they and the court would not be spending time and resources discussing the matter. To avoid unnecessary delay, the court will consider the papers as filed.


         Airgas represents that its business is to supply "gases, and related equipment and supplies, to customers in a host of industries." Doc. 10-2, ¶ 1. Cass was a Specialty Air Gas Filler Analyst at Airgas's facility in Salem, New Hampshire, who worked on the second shift from 2:00 p.m. to 11:00 p.m. He had worked for Airgas for about twenty-one years in total during two different employment periods. His job was to analyze gases, liquids, and carbon dioxide, stored in metal cylinders, to determine whether they met industry standards.

         While employed at Airgas, Cass suffered from sleep apnea. He fell asleep during safety meetings, and a manager or another employee would often say as Cass walked into a meeting, "don't fall asleep." Cass states that the most recent time he fell asleep during a meeting was February of 2014.

         During the spring of 2014, Cass found a carbon dioxide cylinder that was contaminated and noted a noxious odor. He quarantined the cylinder and brought it to the attention of his manager, Tom Trobley. Cass also reported a safety concern to his manager about a large bulk oxygen tank located next to an outdoor electrical panel that was covered by a tarp. Cass believed that arrangement was dangerous because water could get into the panel which could then cause the tank to explode. When that situation was not changed, Cass discussed it during a safety meeting.

         Airgas represents that in July of 2014, a supervisor found Cass sleeping at his desk in the laboratory. Although Cass disputes that the supervisor saw him asleep, he does not dispute that he was drowsy and fell asleep while working. Airgas's Safety Program Manager, Dana Leith, the human resources representative, Patty Wachel, and Cass's supervisor, Matt Kachur, conferred about the incident because Airgas thought Cass's work was "safety-sensitive." Leith, Wachel, and Kachur decided that Cass should undergo a "fitness-for-duty examination." Cass disputes that his job was "safety-sensitive ." The plant manager, Jason Lattig, met with Cass. Cass told Lattig that he was feeling fatigued. Cass had been evaluated for sleep apnea in 2013 by Dr. George Neal at the New England Sleep Center, Catholic Medical Center. In addition, Cass's primary care doctor, Dr. Stephen Michaud, had prescribed a CPAP machine to treat his sleep apnea. Cass told Lattig that he had not been using the CPAP machine as frequently as Dr. Michaud recommended. Lattig told Cass that he would have to have a fitness-for-duty evaluation.

         On July 23, 2014, Cass was evaluated at Salem Occupational & Acute Care. The report stated that he could perform the essential job functions as were listed on "the provided job description."[2] Doc. no. 10-6, at 196. He returned to work after the evaluation. The evaluation report recommended that Cass be re-evaluated after seeing a specialist for sleep apnea and obtaining a report about Cass's use of a CPAP machine.

         In response to the recommendation, Cass made an appointment with Dr. Michaud about his sleep apnea and his fitness for work. Dr. Michaud provided a statement dated September 17, 2014, in which he said that his "only concern would be [Cass's] diagnosis of severe sleep apnea. If this is inadequately treated, I would have concerns about daytime fatigue and his safe operation of a forklift." Doc. 10-6, at 197.

         Cass also saw Dr. Neal again on September 30, 2014. Dr. Neal reported to Dr. Michaud that Cass used his CPAP machine an average of thirty minutes on only 65 days out of 365 days. Dr. Neal noted that was not adequate use of the machine. Cass asked Dr. Neal about driving a forklift, and Dr. Neal responded that he should not do that because of his drowsiness. Dr. Neal also discussed the risks of drowsy driving with Cass. He suggested a return visit in four to six weeks.

         A forklift was used to transport the metal gas cylinders in and out of the laboratory where Cass worked. The parties dispute whether operating a forklift was an essential part of Cass's job. Cass states that although he did occasionally operate a forklift to move cylinders, he did it for convenience not as an essential part of his job. He also states that his supervisors did not want him to operate the forklift to move cylinders because it took him away from his work in the laboratory. After the issue arose about fatigue and the evaluation for fitness for work, Cass did not operate forklifts.

         Cass submits an affidavit from another Airgas employee, Scott Thorpe, who states that he was diagnosed with narcolepsy and sleep apnea more than ten years before Cass's fatigue issue arose. Thorpe states that he can fall asleep instantly and that Airgas is aware of his diagnoses. He further states that despite his diagnoses and several warnings for knocking over gas cylinders and mislabeling, Airgas allows him to operate forklifts and has never required him to undergo fitness-for-duty testing as was required of Cass.[3]

         In October of 2014, a doctor evaluated Cass's fitness for duty on behalf of Concentra Medical Centers, Airgas's "third-party medical provider." The doctor also reviewed Dr. Neal's report. He found that Cass could not perform the essential functions of his work because of fatigue caused by sleep apnea, which could be helped with regular use of the CPAP machine. Concentra scheduled a follow-up appointment in thirty days.

         Wachel, Leith, and Kachur decided that Airgas should put Cass on a paid leave of absence from work for a month, from October 3, 2014, to November 6, 2014. On November 3, Cass saw another doctor from Concentra for the follow-up examination. His CPAP machine record showed that he was using it for more than four hours only 43% of the time.[4] The doctor told Cass he could return to work if his usage increased to 70%.

         A week later, the record showed usage for 70% of the time, and Concentra cleared Cass to return to work with a follow-up on December 5. Cass returned to work and resumed his duties. At the follow-up appointment, Cass's records showed good CPAP usage and he was cleared to continue work. ...

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