United States District Court, D. New Hampshire
R. Lacey Colligan
Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Clinic
A. DiClerico, Jr. United States District Judge.
Lacey Colligan brought suit against Mary Hitchcock Memorial
Hospital and Dartmouth Hitchcock Clinic
(“Dartmouth-Hitchcock”), alleging discrimination
based on her disability, post-traumatic stress disorder, and
state law claims for negligent and intentional infliction of
emotional distress, defamation, and invasion of privacy.
Dartmouth-Hitchcock moved for summary judgment. The court
granted that motion as to Counts I, IV-VI, and VIII-X, but
denied it as to Colligan's public accommodation
discrimination (Counts II-III) and negligent infliction of
emotional distress (“NIED”) (Count VII)
moves for reconsideration of the summary judgment order in
Dartmouth-Hitchcock's favor on her federal and state
interference claims (Counts IV-V). Dartmouth-Hitchcock
objects to Colligan's motion.
also filed a motion for reconsideration of the summary
judgment order as to Colligan's NIED claim. Colligan
objects to Dartmouth-Hitchcock's motion.
of an order “is an extraordinary remedy which should be
used sparingly.” Palmer v. Champion Mortg., 465 F.3d
24, 30 (1st Cir. 2006) (internal quotation marks omitted). To
succeed, a movant must “demonstrate that the order was
based on a manifest error of fact or law . . . .” LR
7.2(d). Reconsideration is not “a vehicle for a party
to undo its own procedural failures” or a means to
“advance arguments that could and should have been
presented to the district court prior to” its decision.
Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir. 2006).
As such, the court will not grant reconsideration based on
arguments that were not previously made or based on arguments
that were rejected in the prior order. Biltcliffe v.
CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014).
Colligan's Motion for Reconsideration
argues that the court erred by granting
Dartmouth-Hitchcock's motion for summary judgment on her
claims that Dartmouth-Hitchcock interfered with her exercise
of her right to access Dartmouth-Hitchcock's facilities
contrary to 42 U.S.C. § 12203(b) and NH RSA §
354-A:11. In support, she contends that the court incorrectly
found that “all the restrictions on [her] access to
Dartmouth-Hitchcock were imposed immediately after her
encounter on September 1, 2015”; that “it
incorrectly assumed Dartmouth-Hitchcock's later
requirement that Dr. Colligan must be escorted to her
appointments was the quickly-corrected mistake of a security
officer”; and that “it failed to recognize that
after Dr. Colligan filed her charges of discrimination,
Dartmouth-Hitchcock responded by stating that she could no
longer go to any of its facilities.” Doc. 56-1 at 1-2.
Colligan also contends that the court incorrectly stated the
reason that she moved to Massachusetts. Dartmouth-Hitchcock
responds, arguing that Colligan relies on facts that find no
support in the record and that the issues she raises are not
material to her interference claims.
Timing of Dartmouth-Hitchcock's Imposition of Access
stated in the summary judgment order, to establish a claim
for interference, a plaintiff must prove that “(1) she
engaged in, or aided others in engaging in, conduct protected
by the ADA; (2) she suffered an adverse action prohibited by
§ 12203(b); and (3) there was a causal connection
between her conduct and the adverse action.” Doc. 55 at
23 (citing Goldblatt v. Geiger, 867 F.Supp.2d 201, 211
(D.N.H. 2012)). The causal connection requires the plaintiff
to show that the defendant's interference occurred when
she was exercising an ADA protected right or because she
engaged in protected conduct. Feeley v. New Hampshire, 2010
WL 4774274, at *5 (D.N.H. Aug. 20, 2010).
finds it significant that Dartmouth-Hitchcock did not
“immediately” impose the access restrictions on
September 1, the day of the incident with Nancy Birkmeyer.
She asserts that Dartmouth-Hitchcock waited until the next
day, September 2, 2015, to impose the restrictions in a
letter. Based on the record evidence, however,
Dartmouth-Hitchcock made its decision to impose the
restrictions on September 1. Doc. 48-18 at 4.
addition, it is unclear why the decision date makes any
difference in this case. Colligan does not show or even argue
that she engaged in protected conduct after
Dartmouth-Hitchcock made its decision to impose the
restrictions but before she received the September 2 letter.
Therefore, for the purpose of Colligan's interference
claim, the date of Dartmouth-Hitchcock's decision to
impose the restrictions is not material. Colligan has not
shown that the court erred in using the September 1 date in
the discussion regarding Colligan's interference claim.
also argues that the court erred in finding that the
restrictions never increased after they were initially
imposed. She contends that the restrictions were increased
when a security officer “was advised” to provide
her an escort to a September 29, 2015, medical appointment.
She disputes Dartmouth-Hitchcock's characterization of
that incident as a “mistake” that was quickly
corrected because Dartmouth-Hitchcock did not acknowledge it
until two months later.
October 19, 2015, Colligan's attorney sent
Dartmouth-Hitchcock a letter raising several issues about the
events of September 1, 2015, and Colligan's termination.
Among those issues, Colligan's attorney noted the
September 29, 2015, incident with Dartmouth-Hitchcock's
security officers, stating the following:
[O]n this visit, [Colligan] was advised that she could not
proceed directly to see her treatment provider but had to
present at Security. When she presented at Security, she was
subjected to the distress of having to stand in the hallway
while her colleagues passed by. Members of Security were
loudly asking her to declare where her appointment was
scheduled. It was a visit to her mental health provider and
she was humiliated by having to disclose this in this ...