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Colligan v. Mary Hitchcock Memorial Hospital

United States District Court, D. New Hampshire

February 19, 2019

R. Lacey Colligan
v.
Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Clinic

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge.

         R. 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) claims.[1]

         Colligan 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.

         Dartmouth-Hitchcock also filed a motion for reconsideration of the summary judgment order as to Colligan's NIED claim. Colligan objects to Dartmouth-Hitchcock's motion.

         Standard of Review

         Reconsideration 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).

         Discussion

         I. Colligan's Motion for Reconsideration

         Colligan 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.

         A. Timing of Dartmouth-Hitchcock's Imposition of Access Restrictions

         As is 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).

         Colligan 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.

         In 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.

         B. Escort Requirement

         Colligan 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[2] “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.

         On 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 ...

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