Holland v. Chubb Am. Serv. Corp. CV-95-201-SD 08/21/96 P UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jay Holland

v. Civil No. 95-201-SD

Chubb America Service Corporation

O R D E R

In this civil action, plaintiff Jay Holland alleges, inter

alia, a claim for unlawful discrimination in violation of the

Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-

336,

(codified at

, et sea.

(1995)), against defendant Chubb America Service Corporation.

Due to the federal guestion raised in plaintiff's complaint,

Chubb removed the action to this court from the Strafford County

(New Hampshire) Superior Court.

Presently before the court is defendant's motion for summary

judgment, to which plaintiff objects. Both parties have filed

reply memoranda.

Background

Jay Holland began his employment with Chubb America Service Corporation on or about January 4, 1988. He was employed by

Chubb as a senior analyst programmer at Chubb's Concord, New

Hampshire, facility. Some six years later, Holland's employment

with Chubb was terminated on March 31, 1994.

Holland asserts that he requested a work schedule

modification in early 1993 to accommodate a panic disorder that

he had developed. This modification would have shifted Holland

from Chubb's "flextime" schedule, which permitted employees to

work either the 7:30 a.m. to 3:30 p.m. shift, the 8:00 a.m. to

4:00 p.m. shift, or the 8:30 a.m. to 4:30 p.m. shift, to a 6:30

a.m. to 2:30 p.m. shift of his own design. Holland's request was

granted, albeit with certain performance qualifications and

temporal limitations. When the time event arrived, Holland's

special schedule was continued, again with performance

qualifications.

At a March 29, 1994, meeting between Holland and his

immediate supervisor, Michael Williams, Holland was notified that

he was to resume working within the "core hours" of Chubb's

flextime schedule, e.g., the block of time between 9:00 a.m. and

3:00 p.m., within thirty days. Holland's termination followed

two days later, on March 31, 1994.

2 Discussion

1. Summary Judgment Standard

The entry of summary judgment is appropriate when the

"pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."

Rule 56(c), Fed. R. Civ. P. Thus, the role of summary judgment

among the array of pretrial devices is to "pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Wynne v. Tufts

Univ. Sch. of Med.,

(1st Cir. 1992), cert.

denied,

(1993).

Among the guidelines to be followed by the court in assaying

the summary judgment record is "to interpret the record in the

light most hospitable to the nonmoving party, reconciling all

competing inferences in that party's favor." McIntosh v.

Antonino,

(1st Cir. 1995) (citation omitted).

"Nonetheless, a party contesting summary judgment must offer the

court more than posturing and conclusory rhetoric."

(citations omitted).

"Moreover, summary judgment may be appropriate '[e]ven in

cases where elusive concepts such as motive or intent are at

3 issue, ... if the non-moving party rests merely upon conclusory

allegations, improbable inferences, and unsupported

speculation.'" Woods v. Friction Materials, Inc.,

(1st Cir. 1994) (guoting Medina-Munoz v. R.J. Reynolds

Tobacco C o .,

(1st Cir. 1990)).

2. ADA Title III Claim (Count II)

Defendant has moved for summary judgment on Holland's claim

for relief under Title III of the ADA, maintaining that such

title is inapplicable to employment situations. Plaintiff

concedes the point, and summary judgment is accordingly granted

as to Count II.

3. New Hampshire "Law Against Discrimination"

Count III of plaintiff's complaint purports to assert a

claim for relief under New Hampshire Revised Statutes Annotated

(RSA) 354-A. "As this court has had occasion to make clear in

its prior rulings, RSA 354-A establishes an administrative

process as a precursor to judicial review. It does not create a

private right of action for individuals aggrieved by unlawful

discriminatory factors." Evans v. Work Opportunities Unlimited,

Inc.,

(D.N.H. 1996) (citing Tsetseranos v.

Tech Prototype, Inc.,

(D.N.H. 1995);

4 Doukas v. Metropolitan Life Ins. Co.,

(D.N.H. 1995)). Accordingly, defendant's motion for summary

judgment must be and herewith is granted as to Count III.

4. Emotional Distress Claims

Plaintiff asserts claims for intentional (Count IV) and

negligent (Count V) infliction of emotional distress.

RSA 281:12, the "exclusivity" provision of New Hampshire's

Worker's Compensation Law, "'clearly prohibits an employee from

maintaining a common-law action against his employer for personal

injuries arising out of the employment relationship.'" Miller v.

CBC Cos., Inc.,

(D.N.H. 1995) (guoting

O'Keefe v. Associated Grocers of New England, Inc.,

,

(1980)). This provision has been

interpreted to bar emotional distress claims irrespective of

whether they charge the employer with intentional or negligent

conduct, because "[e]motional distress is a personal injury, not

subject to recovery in a common law action under [the] state

workmen's compensation statute." Censullo v. Brenka Video, Inc.,

(1st Cir. 1993) (citing Bourque v. Town of Bow,

(D.N.H. 1990)).

"Although the relationship between employer and employee is

severed upon an employee's termination, the harms of emotional

5 distress . . . which may spring from such termination clearly

arise out of 'the course of employment'--a phrase which

necessarily contemplates and includes an employee's termination."

Kopf v. Chloride Power Elecs., Inc.,

(D.N.H. 1995). Accordingly, the court herewith grants

defendant's motion for summary judgment as to Counts IV and V.

5. Breach of Contract

In Count VI of the complaint, Holland asserts a claim for

breach of employment contract. The contours of such claim, as

originally asserted, were as follows:

74. Defendant's written employee handbook, and defendant's conduct relative to this employee and other employees established a contract of employment, a part of which contract included the right and opportunity for employees to work a modified work schedule[]. 75. Plaintiff relied upon said contract term permitting flexible work hours. 76. Plaintiff further relied on the contract terms established in the employee handbook and further established through the defendant's conduct relative to disciplinary proceedings and reguirements prior to termination of employees. 77. Defendant breached said contract by, among other things, failing to follow its established procedures prior to terminating an employee, and failing to allow an employee. Jay Holland, to work flexible hours as set forth in its written policies and procedures.1

1This argument--that the employer breached a contract of employment by failing to follow its termination procedures--has

6 Complaint 55 74-77. Characterizing the employment relationship

between Chubb and Holland as one of employment-at-will, defendant

counter asserts that there was no employment contract in

existence that could be breached and thus Holland's claim fails

as a matter of law.

In response to Chubb's summary judgment campaign, Holland

now submits "that the employment-at-will statement relied upon by

Chubb and contained within the Chubb handbook was not in his

employee handbook when he joined the company," Plaintiff's

Objection at 13-14, and thus the handbook language does not

describe the parameters of Holland's relationship with Chubb and

vice versa. Rather, as a result of certain pre-hire

conversations between Holland, Chubb representatives, and the

professional recruiters who put the parties together,

Holland contends that there was a valid employment contract the terms of which entitled him to a job

been previously rejected by both this court and the New Hampshire Supreme Court. See Kern v. Kollsman,

(D.N.H. 1995) ("Although the Butler court indicated that a 'plaintiff well might make a case asserting damages from failure to follow the step discipline procedure as a contractual incident of employment, unrelated to any durational claim . . . [t]he ultimate act of termination would be a thin reed for such a case . . . .'" (guoting Butler v. Walker Power, Inc.,

,

(1993)); see also Burr v. Melville Corp.,

(D. Me. 1994) ("even if Defendants had failed to follow the procedures outlined in the personnel policy, such failure cannot constitute a 'breach of implied contract'") (interpreting New Hampshire law).

7 as long as he did the job using his technical skills. Chubb may have attempted to modify this contract when it created the employee handbook; however, it created the handbook which it now relies upon well after Jay Holland started working at Chubb. Plaintiff specifically rejected the attempted modification when he refused to sign the acknowledgment form.

Id. at 16 (citation omitted).

Taking the parties' positioning at face value, it is

important, in aid of ultimate resolution, to identify what is

truly in contention. Plaintiff now makes no attempt to argue

that subseguent modifications to his employment arrangement

transformed same from at-will to tenured status. See Plaintiff's

Reply at 6 ("It is plaintiff's position that the contract was

formed at the date of hiring, and that there was no subseguent

modification of the contract changing the original terms.

Plaintiff admits that defendant attempted to modify the contract,

but that such modification was specifically rejected by the

plaintiff . . . ."). Thus, irrespective of the employee handbook

language, and notwithstanding which version of Chubb's employee

handbook is deemed to apply, Holland's position is that "the

issue of whether he would have a job so long as he performed the

technical aspects of the job, was discussed and negotiated, and

that this term of his employment contract was reaffirmed on more

than one occasion after his hiring." Id. Summary judgment is thus forestalled, for the present, because a genuine issue

allegedly remains over whether defendant breached its contract

with Holland: "a contract of employment lasting for the work

life of the plaintiff, so long as [he] performed the technical

aspects of the job." Id. at 7.

Under the law of this state, "the at-will status of an

employment relationship is 'one of prima facie construction.'"

Smith v. F.W. Morse & Co.,

(1st Cir. 1996)

(guoting Panto v. Moore Business Forms, Inc.,

,

(1988)). "That is to say, unless an employment

relationship explicitly provides for a definite duration, it is

presumed to be at-will."

(citing

,

,

) (emphasis added). Thus, "when an

employee challenges [his] ouster . . . unless a statute, a

collective bargaining agreement, or some aspect of public policy

proscribes firing the employee on a particular basis,"

the

employer can give such employee his "walking papers at any time,

for any reason or no reason,"

Moreover, despite the fact that the New Hampshire Supreme

Court "has not explicitly addressed the contours of contracts for

lifetime employment," id. at 427, the prevailing view, and the

one the court would adopt, "regards such contracts as out of the

ordinary, and insists that an offer of lifetime employment must be expressed in clear and unequivocal terms to be enforceable,"

id. (emphasis added) (collecting cases).

When compared to this yardstick, the comments allegedly made

to Holland--"that I could be [at Chubb] as long as I wanted to,"

Holland Deposition, vol. I, at 173 (attached to Plaintiff's

Objection as Exhibit D); "I was looking for a place to retire and

. . . [was told] that Chubb was the place that I could do it at,"

id. at 174--whether by Chubb or others, "do not stand

sufficiently tall to confer lifetime employment,"

(citing, inter alia, Skaqerberq v. Blandin Paper

C o .,

(1936) (finding that the terms "permanent

employment," "life employment," and "as long as the employee

chooses" established only an at-will contract)).

Accordingly, summary judgment must be and herewith is

granted as to Count V I .

6. ADA Claim

Claims for relief founded upon the ADA, as with the federal

anti-discrimination statutes generally, are evaluated by the

court under the familiar and well-established burden-shifting

framework first enunciated in McDonnell Douglas Corp. v. Green,

(1973). See Nedder v. Rivier College,

(D.N.H. 1995). Under this paradigm, the first inguiry is

10 whether plaintiff has established a prima facie case of

discrimination, Udo v. Tomes,

(1st Cir. 1995). The

burden of proving each element thereof rests squarely with

Holland. See Cook v. Department of Mental Health, Retardation,

and Hosps.,

(1st Cir. 1993).

"The Americans with Disabilities Act is a federal civil

rights statute, enacted 'to provide a clear and comprehensive

national mandate for the elimination of discrimination against

individuals with disabilities.'" Katz v. City Metal Co.,

(1st Cir. 1996) (quoting

(b)(1)).

To obtain relief under the Act, a plaintiff must prove three things. First, that he was disabled within the meaning of the Act. Second, that with or without reasonable accommodation he was able to perform the essential functions of his job. And third, that the employer discharged him in whole or in part because of this disability.

(footnote omitted).

Under the ADA,

The term "disability" means with respect to an individual-- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

(2). A "physical impairment" is "[a]ny mental

or psychological disorder, such as . . . emotional or mental

illness . . . ."

(h)(2) (1995). "Major life

11 activities" are defined as "functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working."

(1).

"Substantially limited" is defined as:

(i) Unable to perform a major life activity that the average person in the general population can perform; or (11) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

(j)(1). Whether an individual is substantially

limited in a major life activity depends upon a multi-factor

assessment, including,

(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (ill) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

(j)(2). "'Some conditions may be long-term or

potentially long-term, in that their duration is indefinite and

unknowable or is expected to be at least several months. Such

conditions, if severe, may constitute disabilities.'" Katz,

s u p r a ,

(guoting 2 E E O C C o m p l i a n c e M a n u a l , In t e r p r e t a t i o n s

(CCH) § 902.4, 5 6884, p. 5319 (1995)).

[WJhether an impairment substantially limits a

12 major activity must be made on an individual basis: The determination of whether an individual has a disability is . . . based . . . on the effect of that impairment on the life of the individual. Some impairments may be disabling for particular individuals but not for others.

Id. at 32 (quoting 29 C.F.R. p t . 1630, Ap p . at 402) (other

citation omitted).

For the purposes of the instant motion, Chubb concedes that

Holland's "panic disorder" qualifies as an ADA impairment.2 Its

chief argument, rather, is that plaintiff's alleged impairment is

not "substantially limiting" as required for relief under the

ADA. Although some evidence exists, albeit self-serving, that

Holland's condition substantially limits a major life activity

other than working, the court assumes arguendo, as part of its

analysis of the motion sub judice, that plaintiff is not

substantially limited in a major life activity other than

working. Accordingly, the analysis now turns to whether Holland

is substantially limited in his ability to work. See, e.g., id.

at 31 n.3 ("if an individual is substantially limited in a major

life activity other than working, or is so regarded, 'no

2Although Chubb actually concedes "disability", its argument evinces the erroneous nature of their concession, and the court construes their concession to be a more limited acknowledgment that Holland's panic disorder qualifies as an ADA "impairment".

13 determination should be made as to whether the individual is

substantially limited in working.'" (quoting 29 C.F.R. p t . 1630,

app. at 403)) .

To be considered substantially limited in the major life

activity of working, an ADA plaintiff must present evidence of

being "significantly restricted in the ability to perform either

a class of jobs or a broad range of jobs in various classes as

compared to the average person having comparable training, skills

and abilities."

(j) (3) (i). However, "[t ]he

inability to perform a single, particular job does not constitute

a substantial limitation in the major life activity of working."

Supplementing the factors listed in

(j) (2),

the following

may be considered in determining whether an individual is substantially limited in the major life activity of "working": (A) The geographical area to which the individual has reasonable access; (B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or (C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various

14 classes) .

.2 (j) (3) (11) .

Holland was, at the time of his termination, seeing both a

cardiologist and a psychologist for treatment of his panic

disorder. Specific symptoms of such ailment included "chest

pain, sweating, neck pain, agitation, and fears of fainting

and/or having a heart attack." July 20, 1994, Letter of Eric R.

Niler, Ph.D. (attached to Plaintiff's Objection as Exhibit C ) .

Per the cardiologist's direction, Holland was taking the

prescription antianxiety medicine Xanax. Dr. Niler opined that

[w]hile the goal of cognitive-behavioral treatment for panic disorder involves having individuals learn to face their fears via in vivo (i.e. "real life") exposure practice, it would have been unreasonable and counterproductive for Mr. Holland to return to his previous work schedule prior to his having learned how to handle these frightening symptoms.

Moreover, Dr. Niler concluded "that Mr. Holland's work

restrictions with respect to his schedule were medically

necessary . . . ." Id. at 2; see also July 26, 1993, Niler

Letter ("although the goal of Mr. Holland's treatment is to

eventually make him panic-free, at this time I believe that his

. . . 'flex' schedule is psychologically necessary to allow him

to function in his job") (attached to Plaintiff's Objection as

Exhibit B ) .

15 Plaintiff's evidence on this sub-element of the disability

prong, although a very close case, is susceptible of differing

interpretations and should therefore be presented before a jury.

C f . Soileau v. Guilford, Inc.,

(D. Me. 1996)

(plaintiff's depression and concomitant "inability to interact

with others at work" did not substantially limit the major life

activity of working).

"The second element of proof is ability to perform the

essential functions of the job with or without reasonable

accommodation."

(citing

(8)). "Reasonable accommodations include, inter alia, 'job

restructuring [and] part-time or modified work schedules.'"

(guoting

(9)).

"With respect to known disabilities, however, the emphasis is on encouraging the employer to 'engage in an interactive process with the individual to determine an effective reasonable accommodation.' Guidance § IV.B.6b (citing H.R. Rep. No. 485 (Pt. 2), supra, at 65-66, U.S.C.C.A.N. at 347-48."

Id. (guoting Grenier v. Cvanamid Plastics, Inc.,

(1st Cir. 1995)). Although Chubb is permitted to attempt to show

that accommodating Holland would, or did, impose on it an "undue

hardship",

(10), this second element of the ADA

claim is fraught with genuine issues and thus cannot be

determined by the court on summary judgment.

16 "The third element of plaintiff's case, that [Holland] was

fired because of a disability, or that his disability was a

motivating factor in [Chubb's] decision to fire him,"

(citing Pedigo v. P.A.M. Transp., Inc.,

(8th Cir. 1995)), also is a guestion for the

jury. As in Katz, the timing of Holland's firing, two days

subseguent to a meeting wherein Holland was reguired to return to

his pre-accommodation work schedule, is "circumstantial evidence

from which the jury [can] find that [Holland's] disability

triggered, in whole or in part, his firing by [Chubb]."

"[U]nder the second step of the McDonnell Douglas outline,

the burden . . . shift[s] to [Chubb] to articulate a legitimate,

non-discriminatory reason for [Holland's] termination." Bunevith

v. CVS/Pharmacy,

(D. Mass. 1996) (citing

). Chubb provides a detailed account of the

last year of Holland's employment, wherein, the court so finds,

numerous legitimate, nondiscriminatory reasons for the adverse

employment action are asserted.

12. On March 10, 1993, Holland was given his 1993 review. In this review, Holland was asked to continue to improve working relations with his peers. Specifically, he was told that he sometimes lets his personal opinion of peers cloud his interaction with them. It was also mentioned that his work schedule was inflexible.

14. On or about March of 1993, I became aware

17 that Holland was keeping hours different from those outlined in the employee handbook. Specifically, Holland was coming in at 6:30 a.m. and leaving at 2:30 p.m.

18. I allowed Holland to continue his flexible hours. I told him I would monitor the situation and that he could work early hours as long as he could still communicate effectively with Team members. 19. I became aware that other employees were commenting that he was difficult to reach. It was difficult for Holland's peers to schedule times when Holland could be part of a discussion.

22. On February 16, 1994, a production problem occurred and remained unresolved for almost two weeks. It was finally resolved on February 28, 1994. It was Holland's job to coordinate the resolution of this problem. 23. During this two week period, I learned that Holland's hours were becoming irregular. He no longer came to work predictably at 6:30 a.m. but arrived and departed work at different times each day. This was not something that I had agreed to and is specifically disapproved in the employee handbook.

29. On March 29, 1994, I met with Holland for a formal documentation meeting. A formal documentation meeting is used to provide a written documentation of an employee's performance problems and as a final warning prior to termination of the employee.

38. I terminated Holland's employment with Chubb on March 31, 1994. 39. Holland was fired because he was rude and disrespectful. He consistently refused to acknowledge that his supervisors might have valid criticism. After the documentation meeting, it was apparent to me that Holland was not going to change. Holland was inflexible in his opinion that he was right and any criticism of his behavior was wrong. The meeting was further and

18 final proof of his insubordinate attitude and absolute unwillingness to listen or change. Knowing this, I felt that further conversation with Holland would be unproductive. I felt that it was impossible to allow him to continue his employment at Chubb.

Affidavit of Michael Williams at pp. 3-9 (attached to Defendant's

Motion as Exhibit 6).

Chubb has, in view of the foregoing assertions, sustained

its burden at McDonnell Douglas stage two.

Once a case moves successfully beyond stages one and two,

the final step of the McDonnell Douglas framework reguires

Holland to introduce evidence sufficient to support findings that

"would allow a jury to find that [Chubb's] articulated reason for

his termination was a pretext for discrimination based upon his

claimed disability."

.

There is a bounty of memoranda, e-mails, letters, and

performance reviews before the court, all submitted by the

parties in aid of establishing the summary judgment record.

See, e.g. May 5, 1993, Informal 11 Month Performance Appraisal of

Jay Holland (attached to Plaintiff's Objection as Exhibit F);

February 15, 1994, e-mail from Jay Holland to George Hill

(attached to Defendant's Motion as Exhibit 3); February 24, 1994,

e-mail from Jay Holland to Michael Williams (attached to

Defendant's Motion as Exhibit 4); March 24, 1994, Memorandum from

19 Michael Williams to Jay Holland (attached to Plaintiff's

Objection as Exhibit G ) . Such record is supplemented by the

deposition excerpts of both Holland and Michael Williams, as well

as the Williams affidavit.

This record, taken in sum, lays bare the competing

allegations strenuously asserted on each party's behalf. When

viewed, as the summary judgment record must be, in the light most

favorable to Holland, the nonmovant, the court cannot say that he

has not presented evidence that would enable a rational jury to

find that his termination for work-related issues was merely a

pretext for discrimination based on his alleged disability or for

Chubb's unwillingness to effectively accommodate same.

Plaintiff's alleged attitude incompatibility may indeed be

related to his claimed disability, but Chubb would be well within

its rights to cashier plaintiff for the former so long as such

action does not serve as a veil for the latter. On this record,

however, the court cannot parse the permissible from the

impermissible.

In light of the jury guestions raised at each of the three

elements reguired to prove Holland's ADA prima facie case, as

well as the genuine issues raised in Holland's rebuttal of

Chubb's legitimate reason for his termination, defendant's motion

for summary judgment as to Count I must be and herewith is

20 denied.

Conclusion

For the reasons set forth herein, defendant's motion for

summary judgment (document 8) is granted as to Counts II, III,

IV, V, and VI, and denied as to Count I. Trial will go forward

on plaintiff's ADA claim, with such trial currently calendared to

commence during the two-week period beginning on January 27,

1997 .

SO ORDERED.

Shane Devine, Senior Judge United States District Court

August 21, 1996

cc: Christine M. Rockefeller, Esg. Debra Weiss Ford, Esg.

21