United States District Court, D. New Hampshire
H. Johnson, Esq., Brian J. Bouchard, Esq., Christopher Cole,
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE.
Turcotte alleges that Comcast Cable Communications
Management, LLC (“Comcast”), her former employer,
violated the Americans with Disabilities Act
(“ADA”) and its state-law analogue by failing to
reassign her to a vacant position within the company as an
accommodation for her disability. Comcast argues that it is
entitled to summary judgment because Turcotte cannot prove at
trial that she was entitled to a reassignment.
worked at Comcast from November 2008 until August 2014. She
was hired as a Customer Account Executive to field inbound
telephone calls from Comcast customers. Her performance in
this job was unsatisfactory. See Def.'s Ex. B (Doc. No.
15-3). Starting in March 2010, Turcotte took an 18-month
leave of absence protected by the Family and Medical Leave
Act (“FMLA”) due to work-related panic attacks
and bereavement, her mother having recently died. Her medical
providers furnished documentation to Comcast to support her
entitlement to FMLA leave and her need for an accommodation.
See Pl.'s Ex. 1, Attach. B1-B5 (Doc. No. 23-1).
her leave, Comcast placed Turcotte on an extended internal
job search to explore new positions as an accommodation for
her disability. In September 2011, she accepted a transfer to
the position of Pre-Caller. In this role, she made outbound
calls to customers to verify service appointments and do
limited troubleshooting. See Def.'s Ex. H at 27 (Doc. No.
15-9). Turcotte performed satisfactorily in this job. See
Pl.'s Ex. 1 ¶ 10 (Doc. No. 21-2).
about two years, in mid-2013, Comcast automated the
Pre-Caller function and all Pre-Callers transitioned to
Dispatch positions, tasked with receiving inbound calls from
field technicians. See Def.'s Ex. H at 92 (Doc. No.
15-9); Def.'s Ex. J at 160-61 (Doc. No. 15-11). Comcast
trained all Pre-Callers, including Turcotte, on how to
perform the Dispatch job. See Def.'s Ex. H at 69-70 (Doc.
No. 15-9). Before the transition became fully effective,
Pre-Callers started fielding a small No. of inbound calls
from technicians, in addition to their outbound call duties.
See Def.'s Ex. J at 118-19 (Doc. No. 15-11). Turcotte
struggled with inbound calls. Id. at 116-18. Her
poor performance led Comcast to retrain her for three weeks
in the fall of 2012, which involved an experienced employee
sitting side-by-side with Turcotte throughout her shift. See
Def.'s Ex. M (Doc. No. 15-14). Turcotte either observed
the calls that the trainer fielded or had the trainer guide
her through her own calls. See id.
retraining, Turcotte's performance did not improve. When
the transition to Dispatch was complete in mid-2013,
Turcotte's supervisor, Bonnie Fournier, began receiving
complaints about Turcotte from field technicians. See
Def.'s Ex. N (Doc. No. 15-15). When Fournier sought to
discuss some of those complaints as part of Turcotte's
mid-year review in August 2013, Turcotte refused to meet with
her. See Id. Instead, Turcotte emailed an HR rep,
indicating that she was frustrated at work and would consult
her attorney. See Def.'s Ex. O (Doc. No. 15-16).
a few days of that incident, HR reps met with Turcotte on two
occasions. See Def.'s Ex. P (Doc. No. 15-17). During each
meeting, Turcotte said that she could no longer field inbound
calls because of a medical condition. See Id. She
requested as an accommodation either a transfer to a new job
or lower inbound call volume in her Dispatch position.
asked Turcotte to provide a medical certification to
substantiate her claim and, in the interim, placed her in a
temporary light-duty assignment performing “install
intercepts, ” which involved making outbound calls to
customers. See Def.'s Ex. R (Doc. No. 15-19). Turcotte
requested that this be made into a permanent position for
her. Comcast refused and told her the assignment would end
shortly due to a lack of work. Id.
days later, on August 20, Comcast received a certification
from Turcotte's healthcare provider, Nurse Tracey
Bottazzi. See Pl.'s Ex. 1, Attach. B-7 (Doc. No. 23-1).
When asked whether Turcotte had a physical or mental
impairment and whether such an impairment substantially
limited a major life activity, Bottazzi answered
“No” to both questions. See Id. She also
stated that Turcotte could do the essential functions of her
job (fielding inbound calls) without any accommodation. See
response, Comcast offered to reinstate Turcotte to her
Dispatch position and to retrain her again, which she
accepted. Fournier developed a four-week retraining program.
See Def.'s Ex. S (Doc. No. 15-20). Turcotte says that her
retraining was not successful and that she continued to
experience anxiety and panic attacks during that period. See
Pl.'s Ex. 1 ¶ 18 (Doc. No. 21-2). At one point,
Fournier told her she should seek another job within the
company. See Id. ¶ 22.
mid-September, toward the end of her retraining, Turcotte
stopped working and informed Comcast that she had filed for
short-term disability leave benefits. See Def.'s Ex. T
(Doc. No. 15-21). She was approved for those benefits, as
well as FMLA leave. Nurse Bottazzi's supporting
paperwork, which was sent to Comcast's third-party
disability leave administrator, Sedgwick, stated that
Turcotte was “[u]nable to fully perform job
functions” and noted that she was exhibiting increased
blood pressure and pulse, tearfulness, and panic attacks. See
Pl.'s Ex. 1, Attach. B-8 (Doc. No. 23-1). Bottazzi
projected that Turcotte could return to work in three weeks.
See Id. About three weeks later, Bottazzi again
furnished a similar form to Sedgwick and extended
Turcotte's leave for three additional weeks. See
Pl.'s Ex. 1, Attach. B-9 (Doc. No. 23-1).
to Comcast, the following month Bottazzi refused
Turcotte's request to further extend her leave and
dismissed Turcotte from her practice. See Def.'s Ex. V
(Doc. No. 16-4). Bottazzi did so because she believed that
Turcotte had dissembled and not followed her treatment
plan. See Def.'s Ex. A at 14-17 (Doc. No.
December 2013, while on leave, Turcotte applied for two
vacancies at Comcast using the company's public website:
Business Services Customer Care Virtual Business Class
Billing Rep, Cycle 1 (“Virtual Rep”) and
Coordinator 2, Facilities (“Facilities
Coordinator”). See Pl.'s Ex. 1, Attach. A (Doc. No.
21-3). She did not notify Comcast that she was seeking those
jobs as an accommodation for her disability, and neither
application led to a job offer. See id.
wrote a letter to Turcotte in January 2014, informing her
that her right to FMLA leave had expired in December and that
her short-term disability benefits had ended in January. See
Def.'s Ex. W (Doc. No. 15-24). The letter explained that,
if she needed an accommodation in order to return to work, a
healthcare provider should complete an enclosed certification
form on her behalf. See id.
January 31, 2014, a new provider, Counselor Gretchen
Grappone, supplied that certification. She stated that
Turcotte suffered from social phobia and that this impairment
substantially limited a major life activity. See Pl.'s
Ex. 1, Attach. B-10 (Doc. No. 23-1). Because Turcotte had
“anxiety around high volume of inbound calls, ”
Grappone opined that she could not perform the essential
functions of her Dispatch job. See Id. A reasonable
accommodation, according to Grappone, would be a
“reduced inbound call requirement, ” at least
until Turcotte gained confidence she could handle the work.
response, Comcast informed Turcotte in February that taking
inbound calls was an essential function of her job and that
the company was not able to reduce or control the No. of
inbound calls she would take. See Def.'s Ex. Y (Doc. No.
15-26). Comcast, however, offered to engage in an interactive
process and place her on a 60-day internal job search to
identify a vacant position to which she could be reassigned
as an accommodation. See id.
assigned Jim Lewis, an HR manager, to oversee and facilitate
Turcotte's job search. See Def.'s Ex. F ¶ 13
(Doc. No. 15-7). Lewis tracked down open positions within her
geographic area, compiled them into a bulleted list, and
generally emailed the list to Turcotte twice a week. See id.;
Pl.'s Ex. 1 ¶ 33 (Doc. No. 21-2). They had weekly
telephone calls to discuss potential jobs. See Def.'s Ex.
F ¶ 14 (Doc.
15-7); Pl.'s Ex. 1 ¶ 33 (Doc. No. 21-2). Turcotte
believes that on some occasions Lewis did not send her every
vacancy. See Pl.'s Ex. 1 ¶ 32 (Doc. No. 21-2). This
is because, she explains, she found additional positions in
her area that Comcast had advertised on external websites.
February 5, 2014, Turcotte told HR Rep Southworth that she
had applied for the position of Coordinator 1, Technical
Product Sales (BSS) (“BSS Coordinator”) through
an external website, CareerBuilder.com. See Pl.'s Ex. 1,
Attach. A-3 (Doc. No. 21-6). Southworth told her not to apply
through external websites because she would “show up as
an external candidate, not a Comcast employee.” See
Id. Instead, Turcotte should apply through Lewis so
that he could work directly with the assigned recruiter. See
Id. Turcotte replied that she understood. See
Id. Although Southworth said she would contact the
recruiter for the BSS Coordinator position, Turcotte never
received a response. See id.; Pl.'s Ex. 1, Attach. A (Doc.
later, on February 12, Turcotte told Lewis she was interested
in a vacancy for a Coordinator 2, Product Sales (MDU)
(“MDU Coordinator”) position. See Pl.'s Ex.
1, Attach. A-4 (Doc. No. 21-7). Lewis responded on February
22 that her medical restrictions precluded her from
performing the essential functions of that job because she
would have to field 63-72 inbound calls per day. See
Def.'s Ex. II (Doc. No. 15-36); see also Def.'s Ex.
PP ¶¶ 2-3 (Doc. No. 27-2). Turcotte rejected
Lewis's assessment, insisted that she was qualified for
the position, and asked for a certification form so that her
healthcare provider could reassess her restrictions. See
Def.'s Ex. PP ¶ 4 (Doc. No. 27-2). Lewis explained
that if she could do the MDU Coordinator job, then she would
likely be reinstated to her Dispatch position because this
would mean she could in fact field a large volume of inbound
calls. See Id. ¶ 5.
days later, Turcotte applied for the position of Rep 2,
Credit & Collections (Outbound) (“Collections
Rep”). See Pl.'s Ex. 1, Attach. A-5 (Doc. No.
21-8). On March 14, Lewis told her that Comcast would
consider her for this position, but she would need to sign a
medical records release form to answer concerns about her
work restrictions. See Pl.'s Ex. 1, Attach. A-6 (Doc. No.
21-9). When it sent her the release form, Comcast asked
Turcotte to “include the contact information for the
medical provider completing the Certification form on your
behalf.” See Def.'s Ex. KK (Doc. No. 15-38). The
release form had space for the contact information of a
single provider and options to limit the type of information
disclosed, including by condition and time period. See
Id. The information would be disclosed to
Comcast's clinical review officer. See id.
refused to complete the release form because she believed
that Comcast had no valid reason to request it. See Pl.'s
Ex. 1 ¶¶ 35-38 (Doc. No. 21-2). She was also
concerned that the release would have allowed Comcast to
obtain medical records from all her healthcare providers and
to speak to her providers, effectively giving the company
unfettered access to her medical history. See Id.
unclear whether Turcotte told Comcast that she would not
complete the release form. On March 21, however, Lewis
informed her that the Collections Rep position remained open,
but he reiterated that the company would need the release
form. See Def.'s Ex. LL (Doc. No. 15-39).
same day, Counselor Grappone reassessed Turcotte's work
restrictions at her request. See Pl.'s Ex. 1, Attach. B-11
(Doc. No. 23-1). The certification states that Turcotte's
social phobia did not limit any major life activities, that
the condition was “well managed with medication [and]
skill use, ” and that she could perform the essential
functions of her job without an accommodation. See id.
assessment of Turcotte's ability to work is consistent
with her treatment notes recording Turcotte's statements
during three appointments in February and March. Turcotte had
reported that she felt “able to handle phone calls in
any new Comcast position, ” was “ready to return
to work with no restrictions or need for accommodations,
” and was “ready and able to return to
work.” See Def.'s Ex. DD (Doc. No. 16-7);
Def.'s Ex. QQ (Doc. No. 27-3). Grappone's notes also
indicate that in March, Turcotte had asked her “not to
provide any information by phone to any Comcast
representatives under the advice of her attorney.” See
Def.'s Ex. DD (Doc. No. 16-7).
on Grappone's March certification, Comcast offered to
reinstate Turcotte to her Dispatch position effective April
8. See Def.'s Ex. BB (Doc. No. 15-29). Turcotte refused,
claiming that she was medically incapable of performing that
job and that Grappone had been given an incorrect job
description. See Def.'s Ex. CC (Doc. No. 15-30);
Def.'s Ex. MM (Doc. No. 15-40).
next move was to extend Turcotte's job search for an
additional 30 days, through May 21, 2014. See Def.'s Ex.
CC (Doc. No. 15-30). In April, she applied for three
positions: NH Facilities / Mailroom (“Mailroom”)
and two Intern/Co-op, Administrative Services positions
(“Intern 1” and “Intern 2”). Turcotte
used Comcast's public website to apply for the Intern 1
position and did not notify Comcast that she was applying as
an accommodation candidate. See Def.'s Ex. PP, Attach. 1
(Doc. No. 27-2). Comcast eventually informed her via email
that it “decided to consider other candidates”
for that position. See Pl.'s Ex. 1, Attach. A-12 (Doc.
No. 21-15). The other two positions she pursued through the
internal job search. Comcast determined that she was not
qualified for the Mailroom position, but the company offered her
the Intern 2 position.
internship, which was paid but offered no benefits, was
scheduled to run from June until August 2014. Lewis informed
Turcotte that if she accepted it, her internal job search
would end, and she would need to go through the normal
bidding process for future positions. See Def.'s Ex. FF
(Doc. No. 15-33); Def.'s Ex. F ¶¶ 16-17 (Doc.
No. 15-7). Turcotte nonetheless accepted, and Lewis hired her
over other, potentially more qualified, applicants. See
Def.'s Ex. F ¶ 17 (Doc. No. 15-7).
the internship and after her internal job search had ended,
Turcotte applied for two new vacancies at Comcast:
Administrative Assistant, Hudson, NH (“Admin Assistant
1”) and Assistant 2, Administrative Services, Customer
Care (“Admin Assistant 2”). See Pl.'s Ex. 1,
Attach. A (Doc. No. 21-3). She applied for those jobs via
internal postings available to all Comcast employees. See
Def.'s Ex. PP, Attach. 2 (Doc. No. 27-2). Although she
had contact with the company's recruiters for those
positions, Turcotte did not notify them, or anyone else at
Comcast, that she was requesting those positions as an
accommodation for her disability. See Pl.'s Ex. 1,
Attach. A-11 (Doc. ...