Pimental v. Dartmouth-Hitchcock CV-01-292-M 12/30/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Mary Ann Pimental, Plaintiff

v. Civil No. 01-292-M Opinion No.

Dartmouth-Hitchcock Clinic, Defendant

O R D E R

Mary Ann Pimental brings this action against her former

employer, Dartmouth-Hitchcock Clinic ("DHC"), seeking damages for

alleged violations of the Americans with Disabilities Act,

, et. seg. She also advances state law claims for

breach of contract and wrongful termination, over which she says

the court should exercise supplemental jurisdiction. DHC denies

any wrongdoing and moves for summary judgment as to all of

plaintiff's claims. Plaintiff objects.1

1 Parenthetically, the court notes that plaintiff has exhausted her administrative remedies by filing a charge of discrimination with the EEOC. After conducting an investigation, the EEOC notified her that it was "unable to conclude that the information obtained establishes violations of the statutes," and informed her of her right to sue. Exhibit 1-G to plaintiff's memorandum (document no. 25) . Standard of Review

When ruling on a party's motion for summary judgment, the

court must "view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party's favor." Griqqs-Rvan v. Smith,

(1st Cir. 1990). Summary judgment is appropriate

when the record reveals "no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). In this context, "a fact is

'material' if it potentially affects the outcome of the suit and

a dispute over it is 'genuine' if the parties' positions on the

issue are supported by conflicting evidence." Intern'1 Ass'n of

Machinists and Aerospace Workers v. Winship Green Nursing Center,

(1st Cir. 1996) (citations omitted).

If, however, the non-moving party's "evidence is merely

colorable, or is not significantly probative," no genuine dispute

as to a material fact has been proved, and "summary judgment may

be granted." Anderson v. Liberty Lobby, Inc.,

, 249-

50 (1986) (citations omitted). As the Court of Appeals for the

First Circuit has observed, "the evidence illustrating the

2 factual controversy cannot be conjectural or problematic; it must

have substance in the sense that it limns differing versions of

the truth which a factfinder must resolve at an ensuing trial.

Conclusory allegations, improbable inferences, and unsupported

speculation will not suffice." Cadle Co. v. Haves,

(1st Cir. 1997) (citations and internal guotation marks

omitted).

Background

Viewed in the light most favorable to plaintiff, the

material facts are as follows. Plaintiff is a licensed

registered nurse who began working at DHC in 1992 in various non­

salaried, part-time positions, for between 20 and 24 hours each

week. In April of 1997, she applied for, but did not receive, a

position as the "Operations Manager for Nurse First." In May,

however, she was promoted to the core management team of the

Nurse First Program. At that point, she was made a salaried,

exempt employee, with the expectation that she would work a 35

hour week.

3 In September of 1998, plaintiff was diagnosed with stage III

breast cancer. As a conseguence, she was given approximately

eight months of medical leave, during which time she underwent a

modified radical mastectomy, radiation treatment, and

chemotherapy (subseguently, she also underwent reconstructive

surgery). She does not deny that DHC afforded her all the

medical leave she reguested under the Family Medical Leave Act or

that she was provided with all disability pay to which she was

entitled.

While plaintiff was on leave, the Nurse First management

team was reorganized and two of the management positions,

including hers, were eliminated. Shortly before returning to

work, plaintiff expressed an interest in securing a position as a

staff nurse in the Nashua Pediatrics Department. But, although

the position entailed 40 hours of work per week, plaintiff said

she wanted to work only 35 (or 32, depending upon whether one

credits her deposition testimony or her EEOC charge of

discrimination). Plaintiff did not get the job, and she claims

that the woman who did was less gualified than she for the

4 position and further claims that DHC refused to hire her because

of her cancer.2

In June of 1999, plaintiff was offered a position as a staff

nurse in the Nurse First Program, a job that required 35 hours

per week. It appears that she declined that offer and, shortly

thereafter, inquired about a staff nursing position in the Nashua

Urgent Care center - a position that called for only 20 hours of

work per week. Notwithstanding that fact, plaintiff proposed

working for 24 hours per week in that position and combining it

with an additional 6 hours per week of quality assurance work.

Her goal was to fashion a job that provided at least 30 hours of

work per week, thereby making her eligible for "H3" status and

greater benefits. DHC, however, declined that proposal, saying

the department was not budgeted for an "H3" position and all it

2 At her deposition, plaintiff testified that, notwithstanding the fact that DHC was "leaning towards a 40-hour workweek" for the vacant position, she told DHC that she was "only committed to 35 hours a week." Pimental deposition, day 2 at 7. Nevertheless, three or four days after making those comments, plaintiff says she attempted to contact her interviewer to say she was "planning to take the position." I d . at 8. But, she was unable to reach her interviewer that day and, when she finally was able to speak with her, plaintiff learned that the position had already been offered to another person - someone willing to work 40 hours per week.

5 needed was someone to work 20 hours per week. Although

disappointed, plaintiff appears to have accepted the position as

originally offered. She does, however, seem to suggest that

DHC's rejection of her efforts to combine various positions to

obtain "H3" status constitutes a failure to reasonably

accommodate her claimed disability. See Plaintiff's memorandum

at 6.

Shortly thereafter, plaintiff interviewed for the West

Center Manager of the Nashua Division of DHC. DHC did not hire

her for that position, claiming that the woman who was eventually

hired was simply more gualified than plaintiff.

Finally, in September of 1999, plaintiff expressed interest

in an Urgent Care position in Manchester, but was soon told that

DHC was not going to fill the position at that time. As part of

her (implicit) evidence of unlawful discrimination, plaintiff

says she saw that very position advertised in the newspaper

approximately two months later. DHC suggests that the decision

to fill the position in December, rather than September, was

purely financial; in December, its budget permitted it to fill

6 that vacant position, albeit for only 30 hours per week, rather

than the 36 hours per week originally contemplated. Plaintiff,

on the other hand, suspects she was not given the position when

she originally inguired about it because DHC harbored some

discriminatory animus against her based upon her cancer. See

Pimental deposition, day 2 at 107 ("I don't see any other reason

whey they would have not hired me for the position.").3

In October of 1999, plaintiff applied for, and obtained, a

full-time position as a school nurse in the Londonderry School

District. She began working there in early November, while

remaining in her position at DHC. In December of 1999, however,

she notified DHC that she was resigning, effective January 1,

2000. She did, however, remain as a per diem employee,

apparently making herself available to DHC when its need for

additional nursing staff coincided with her availability (though

it is unclear whether she ever actually worked on a per diem

basis after her resignation).

3 Although DHC publically advertised for the vacant position in December - prior to plaintiff's resignation - she never applied for (nor, necessarily, was she ever interviewed for) that position.

7 DHC contends that it declined to hire plaintiff for the

various positions she sought because other, better qualified

applicants were hired instead, or because plaintiff sought hours

and/or benefits above those for which the particular department

was presently budgeted. It categorically denies that plaintiff's

cancer played any role in its hiring decisions. Plaintiff, on

the other hand, says DHC's refusal to hire her for those

positions was motivated by a discriminatory animus, based upon

her cancer.

Discussion

Title I of the ADA prohibits employers from discriminating

against qualified individuals with disabilities. To establish a

prima facie case of disability discrimination under the ADA,

plaintiff must show that: during the time frame relevant to this

suit, she suffered from a disability, as that term is used in the

ADA; she was able to perform the essential functions of her job,

either with or without reasonable accommodation; and she suffered

an adverse employment action because of her disability. See, e.g., Lebron-Torres v. Whitehall Labs.,

(1st

Cir. 2001) .4

The ADA defines "disability" as: "(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). Plaintiff asserts that she is a gualified

individual with a disability under each of these three

definitions. DHC disagrees.

I. Plaintiff's Impairment and Section 12102(2) (A).

In determining whether an employee falls within the scope of

section 12102(2)(A), courts apply a three-part test.

First, we consider whether [the plaintiff's] condition constitutes a mental or physical "impairment." Second, we identify the life activities upon which [the

4 As is the case in most employment discrimination suits, absent direct evidence of discriminatory animus on the part of the employer, the court employs the familiar McDonnell-Douqlas burden shifting paradigm with regard to most claims brought under the ADA. An exception to that general rule applies when an ADA plaintiff advances a "failure to accommodate" claim, in which case the principles articulated in McDonnell-Douqlas do not apply. See generally Higgins v. New Balance Athletic Shoe, Inc., 194 F .3d 252, 264 (1st Cir. 1999) plaintiff] relies to determine whether they constitute "major life activities." Major life activities are only those that are "of central importance to daily life." Third, we must determine whether the impairment substantially limits the major life activity identified. To be substantially limiting, the impairment's impact must be permanent or long-term.

Bailey v. Georgia-Pacific Corp.,

(1st Cir.

2002) (citations omitted). See also Braqdon v. Abbott,

(1998) .

There is no guestion that plaintiff's breast cancer

constitutes an "impairment" for purposes of the ADA. See

(h). See also Ellison v. Software Spectrum, Inc.,

(5th Cir. 1996) (holding that the plaintiff's

breast cancer was an impairment under the ADA ) ; Treiber v.

Lindbergh School Dist.,

(E.D. Mo. 2002)

(same). But, although plaintiff's cancer gualifies as an

impairment, it does not necessarily follow that she is also

"disabled" within the meaning of the ADA. See Bailey, 30 6 F.3d

at 1167. See also Godron v. Hillsborough County,

*2, n.3,

(D.N.H. March 21, 2000) ("Cancer is not a

per se disability under the A D A " ) . Thus, the more difficult

guestion presented in this case is whether, during the time

10 period relevant to her ADA claims, plaintiff's breast cancer

substantially limited one or more of her major life activities.

In attempting to demonstrate that an impairment

substantially limits a major life activity, it is not enough for

a plaintiff to simply submit evidence of a medical diagnosis of

an impairment. See Toyota Motor Mfg., K v . , Inc. v. Williams,

(2002) ("Merely having an impairment does not make

one disabled for purposes of the ADA. Claimants also need to

demonstrate that the impairment limits a major life activity.").

Conseguently, the Supreme Court has held that, "the ADA reguires

those claiming the Act's protection to prove a disability by

offering evidence that the extent of the limitation caused by

their impairment in terms of their own experience is

substantial." I d . at 198 (citations, internal guotation marks,

and internal punctuation omitted). See also 29 C.F.R. p t . 1630,

A p p . § 1630.2(j) ("The determination of whether an individual has

a disability is not necessarily based on the name or diagnosis of

the impairment the person has, but rather on the effect of that

impairment on the life of the individual. . . . The determination

of whether an individual is substantially limited in a major life

11 activity must be made on a case by case basis."). In other

words, determining whether a plaintiff has a disability under the

ADA involves an "individualized inquiry." Sutton v. United Air

Lines, Inc.,

(1999).

In construing the scope and proper application of the ADA,

the Supreme Court has concluded that the phrases "substantially

limits" and "major life activity" must be "interpreted strictly

to create a demanding standard for qualifying as disabled."

Williams,

. The Court has also held that "to be

substantially limited in performing manual tasks, an individual

must have an impairment that prevents or severely restricts the

individual from doing activities that are of central importance

to most people's daily lives. The impairment's impact must also

be permanent or long-term." I d . at 198 (emphasis supplied). In

short, to demonstrate that he or she falls within the scope of

the ADA, an individual bears a substantial burden of proof. See,

e.g., Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C.,

(1st Cir. 2001) (holding that to prevail, the

plaintiff must establish that her impairment "was profound enough

12 and of sufficient duration . . . to hamper her ability" to

engage in one or more major life activities).

In support of her claim that, during the time period

relevant to this litigation, her cancer (and the various side-

effects of the surgical and medical treatments she received)

substantially affected one or more major life activities,

plaintiff says her:

disability [a]ffected practically all major life functions. The cancer [a]ffected [plaintiff's] ability to care for herself, sleep, to concentrate. In essence it affected all her major life functions. The cancer also [a]ffected [her] ability to reproduce and have sexual activity. The treatment forced [plaintiff] into early menopause and interfered with her relations with her husband. [Plaintiff] was forced to take chemotherapy and [several medications]. Many of these medicines pose a positive risk to a fetus if taken during pregnancy. The Court has found that "reproduction and sexual dynamics surrounding it are central to the life process itself" and that the ability to reproduce and bear children constitutes a major life activity.

Plaintiff's memorandum at 11-12 (citations omitted) (emphasis

supplied).

13 Turning to the evidence adduced by plaintiff in support of

those claims - her deposition testimony and her affidavit - the

court is compelled to conclude that she has failed to demonstrate

that her breast cancer had a substantial limiting effect on her

ability to care for herself, sleep, or concentrate. See Pimental

deposition, day 2, at 138-53; Pimental affidavit at paras. 3 and

7. While that testimony plainly reveals the terrible effect the

cancer had upon her, it also discloses that during the period

relevant to this litigation, the most substantial side-effects

were (relatively speaking) short-lived. That is to say, they did

not have a substantial and lasting effect on the major activities

of her daily life. See, e.g., Pimental deposition, day 2, at

140-41 (stating that her concentration was not impaired to the

point that it prevented her from doing her job); 145 (stating

that prescription medications reduced her hot flashes and helped

her sleep); 148 (stating that her memory problems did not affect

her ability to do her job and she was able to accommodate her

periodic forgetfulness); 148 (stating that she no longer suffers

from radiation burns); 149-51 (stating that while she still has

some difficulty reaching high above her head and carrying heavy

objects, she was able to perform a range of household chores);

14 152 (stating that she no longer experiences shortness of breath);

152-53 (in response to a guestion asking whether concentration

problems had a "significant impact" on her life, saying they had

"some impact").

Moreover, plaintiff's own assertions that the cancer did not

substantially impair her ability to perform various tasks

associated with her employment tend to undermine her claim that

it did substantially affect her ability to, for example, care for

herself on a long-term basis. See, e.g.. Plaintiff's memorandum

at 12 (stating that plaintiff "does not claim that her major life

activity of working has been substantially compromised"); i d . at

4 (stating that, upon her return from medical leave, plaintiff

"had no problems performing her duties as a nurse"). Thus, she

has failed to demonstrate that her illness substantially affected

her ability to care for herself, sleep, or to concentrate on a

permanent or long-term basis.

Finally, plaintiff says the chemotherapy she received

essentially precluded her from conceiving a child (because of the

risk posed to the fetus by such treatment) and, ultimately.

15 caused her to undergo premature menopause. Thus, she says it

adversely (and permanently) affected her ability to reproduce.

The Supreme Court has held that the ability to reproduce is a

"major life activity." See Braqdon,

("Reproduction falls well within the phrase 'major life

activity.' Reproduction and the sexual dynamics surrounding it

are central to the life process itself."). Thus, says plaintiff,

on that ground alone she is plainly "disabled" within the meaning

of section 12102(A).

There is little doubt that had plaintiff become pregnant

during her chemotherapy treatment, the fetus might well have been

placed at substantial risk. Nor is there any doubt that, to the

extent the chemotherapy caused her to undergo premature

menopause, it adversely affected her ability to bear more

children. Importantly, however, plaintiff points to nothing in

the record that suggests she intended to have more children.

And, because assessing an individual's disability under the ADA

reguires an "individualized inguiry," it is not enough to simply

say that she can no longer have children. Instead, plaintiff

must point to something that suggests she at least contemplated

16 having more children. Chief Justice Rehnquist addressed this

issue in his separate opinion in Braqdon, writing:

According to the Court, the next question is 'whether reproduction is a major life activity." That, however, is only half of the relevant question. As mentioned above, the ADA's definition of a "disability" requires that the major life activity at issue be one "of such individual." The Court truncates the question, perhaps because there is not a shred of record evidence indicating that, prior to becoming infected with HIV, respondent's major life activities included reproduction (assuming for the moment that reproduction is a major life activity at all). . . . There is absolutely no evidence that, absent the HIV, respondent would have had or was even considering having children.

Braqdon,

(Rehnquist, C.J., concurring in part

and dissenting in part). See also Treiber,

(concluding that while plaintiff's breast cancer was

certainly an impairment, she failed to demonstrate that it

substantially affected a major life activity; although

chemotherapy affected her ability to have children, plaintiff did

not assert any interest in having children and, therefore, that

side-effect of her treatment did not render her disabled under

the A D A ) .

17 So it is in this case. While the record reveals that

plaintiff has two children (ages nine and eleven ) , there is

simply no evidence that, prior to being diagnosed with cancer,

she had considered having more.5 She has likewise failed to

point to sufficient evidence in the record to support the

conclusion that her cancer had a permanent or long-lasting and

substantial effect on her intimate relations with her husband.

See Pimental deposition, day 2 at 153 (stating that while she

remains self-conscious, her intimate relationship with her

husband has, following her reconstructive surgery, changed for

the better: "It's improved. I don't know if it will ever be the

same as it was prior to my diagnosis, but it's definitely

improved since I had reconstruction.").

In light of the record evidence upon which plaintiff relies

in her memorandum, she has failed to make a prima facie showing

that she was, during the period relevant to her claims against

DHC, "disabled" under section 12102(A). See Gillen v. Fallon

5 At the final pretrial conference held on December 20, 2002, the court discussed this shortcoming in the evidence upon which plaintiff relies. Through counsel, plaintiff candidly acknowledged that she could not, in good faith, make the reguired representation regarding reproductive intent.

18 Ambulance Service, Inc.,

(1st Cir. 2002) ("A

plaintiff must proffer evidence from which a reasonable inference

can be drawn that a major life activity is substantially or

materially limited.") (quoting Snow v. Ridgeview Medical Center,

(8th Cir. 1997)) (internal punctuation

omitted) .

II. Plaintiff Lacks a "Record of Such an Impairment."

In support of her asserted entitlement to the protections

afforded by the ADA by virtue of section 12102(2) (B) , plaintiff

says :

It is undisputed that [plaintiff] has a record of breast cancer. [Plaintiff] received her treatment for cancer at the Defendant's facility. It is undisputed that the Defendant was aware that [plaintiff] had taken leave of absence due to her breast cancer. The defendant provided her with Family Medical Leave Act time off for her cancer and provided her disability benefits. . . .

[Plaintiff] had claimed protection of the ADA under the auspices of having a record of an impairment. As there is undisputed evidence of a "record" of impairment and the Defendant has failed to address this claim in its motion for summary judgment[,] [t]his claim should be allowed to proceed to a jury.

19 Plaintiff's memorandum at 14. While it is true that plaintiff

has a demonstrated "record" of an impairment - her breast cancer

- that, standing alone, is insufficient to entitle her to the

protections afforded by the ADA. As the Act itself provides, to

qualify as "disabled" under section 12102(2) (B) , an individual

must demonstrate that he or she has a "record of such an

impairment." That is to say, a record of an impairment that

"substantially limits one or more of the major life activities of

such individual." And, as noted above, plaintiff's evidence on

that point is legally insufficient to deflect summary judgment.

See Santiago Clemente v. Executive Airlines,

(D.P.R. 1998) ("While her employer's awareness might be

enough to establish a record of her condition, it does not, by

any means, establish a record of disability. Again, evidence of

impairment alone is not enough to establish disability.").

III. Plaintiff was not "Regarded as Having Such an Impairment."

Finally, plaintiff asserts that she is entitled to the

protections afforded by the ADA because DHC regarded her as

disabled - that is, suffering from an impairment that

substantially limited one or more major life activities. See 42

(2)(C). See also

(1). As the

Supreme Court has observed.

[t]here are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual - it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.

Sutton,

.

Here, plaintiff seems to suggest that the major life

activity that DHC mistakenly believed was substantially limited

by her cancer was her ability to work.6 In support of that

claim, plaintiff says:

6 The Supreme Court has yet to decide whether working constitutes a major life activity under the ADA. See Williams,

; Sutton,

. For purposes of addressing defendant's motion for summary judgment, however, the court will assume that working is a major life activity. See, e.g., Gelabert-Ladenheim v. American Airlines, Inc.,

(1st Cir. 2001) (assuming, arguendo, that working is a "major life activity"); Carroll v. Xerox Corp.,

, 239 n.7 (1st Cir. 2002) (same) . See generally

(j) (3) (suggesting that working is a "major life activity").

21 The Defendant regarded Ms. Pimental to be disabled as of October 10, 1998. Diane Dwyer, Southern New Hampshire Region HR Manager placed her on disability leave. The undisputed comments regarding the "stress" of Ms. Pimental's illness also demonstrates [sic] the fact that the Defendant regarded Ms. Pimental as disabled. They [sic] felt she could not handle the "stress" of management with her disability. Upon her application for a job as a staff nurse in the West Center Pediatrics it is undisputed that the interviewer, Ms. Thomas, made inguiries regarding her disability. Pre-employment inguiries are prohibited under the ADA.

Plaintiff's memorandum at 14-15 (citations omitted).

First, plaintiff has a somewhat mistaken view of the extent

to which employers may make "pre-employment inguiries" into

candidates' disabilities. The regulation upon which she relies

provides that, generally speaking, employers may not ask whether

an individual suffers from a disability or inguire into the

nature or severity of that disability. See

(a). Importantly, however, the next section of the Code

of Federal Regulations, which plaintiff overlooks, specifically

authorizes employers to "make pre-employment inguiries into the

ability of an applicant to perform job-related functions, and/or

[to] ask an applicant to describe or to demonstrate how, with or

22 without accommodation, the applicant will be able to perform job-

related functions."

.

In support of her view that DHC violated section 1630.13,

the sole evidence identified by plaintiff is page 19 of her

deposition, see plaintiff's memorandum at 15, where, in response

to a question about why she thought she was denied a job because

of her impairment, she testified:

Well, Jan asked me where I was in my treatment, and I told her I was going to have to go for further treatment, radiation treatments for four to six weeks after my return to work. I told her I would try to schedule that around department needs.

Pimental deposition, day 2 at 19. Nothing about that isolated

question posed by the interviewer suggests that it was made in

violation of section 1630.13. First, DHC was well aware that

plaintiff had been diagnosed with cancer; in fact, it had given

her substantial medical leave in order to obtain treatment -

treatment she received at DHC. Thus, there was no need for DHC

to violate section 1630.13 by making "inquiries as to whether

[plaintiff] is an individual with a disability."

23 Moreover, plaintiff's response to the question reveals that

she interpreted it as an inquiry into whether she would require

any further accommodations in order to perform the tasks

associated with the position she souqht (e.g., additional medical

leave time) - a line of inquiry permitted by section 1630.14. In

short, plaintiff has pointed to insufficient evidence to support

even the inference that DHC violated the provisions of section

1630.13 during the course of that particular interview.

Next, plaintiff says evidence that DHC regarded her as

disabled can be found in comments made by DHC employees

concerning her stress. In support of that assertion, plaintiff

again points to her deposition. Overlooking potential hearsay

and admissibility issues for the moment, plaintiff testified that

two DHC employees told her they had heard that other DHC

employees did not believe she was the right person for a

particular managerial job since she was experiencing so much

stress dealing with her cancer. Pimental deposition, day 1 at 64

and 71. Again, however, that isolated, anecdotal evidence is

insufficient to sustain her burden of showing that DHC regarded

24 her as substantially limited in her ability to work. As the

Court of Appeals for the Second Circuit has noted:

"substantially limited" in the ability to work means that a plaintiff is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs. An impairment that disgualifies a person from only a narrow range of jobs is not considered a substantially limiting one.

Thus, in order to prove that [defendant] perceived her as substantially limited in her ability to work, [plaintiff] bore the burden of presenting evidence that [defendant] perceived her to be incapable of working in a broad range of jobs suitable for a person of her age, experience, and training because of her disability.

Ryan v. Grae & Rybicki, P.C.,

(2d Cir. 1998)

(citations and internal punctuation omitted). See also Carroll

v . Xerox Corp.,

(1st Cir. 2002) (same) Sinkler

v. Midwest Property M n q t . Ltd. Pshp.,

(7th Cir.

2000) (same); Tardie v. Rehab. Hosp. of Rhode Island,

(1st Cir. 1999) (same); Ellison,

(same).

See generally

(j) (3).

Even viewing the evidence upon which plaintiff relies in the

light most favorable to her, a reasonable, properly instructed

trier of fact could not conclude that DHC regarded her as

25 incapable of performing a wide range of jobs for which she was

trained. See, e.g., Doval v. Oklahoma Heart, Inc.,

(10th Cir. 2000) (holding that "isolated comments" that

plaintiff was "incapacitated" and that her "difficulties at work

were not a fixable problem" were insufficient to "support the

conclusion that management misperceived her as being

substantially limited in learning, sleeping, thinking, or

interacting with others."); Ellison,

(holding

that notwithstanding the fact that supervisor made comments about

plaintiff's breast cancer that were insensitive, crass, and

"beneath contempt," they were insufficient to support her claim

that her employer "regarded her" as disabled by reason of her

illness); Pikoris v. Mount Sinai Medical Center,

*13 (S.D.N.Y. May 30, 2000) (holding that employer's comments

indicating that, given plaintiff's recent treatment for breast

cancer, it believed her position as an anesthesiology resident

was too stressful for her were insufficient to support conclusion

that employer perceived her as generally unable to work because

of her illness). In fact, it is undisputed that the three DHC

employees plaintiff listed on her resume as references provided

her with strong recommendations for the position with the

26 Londonderry School District that plaintiff ultimately secured.

See, e.g., Pimental Deposition, day 2 at 79. Those strong

recommendations certainly suggest that DHC did not consider

plaintiff unable to perform a wide range of jobs for which she

was gualified. See, e.g., Ryan,

(holding that

statement to plaintiff that "this job is too stressful for you

because you have colitis" did not, in light of employer's having

given her strong employment recommendations, support conclusion

that employer misperceived her as being disabled).

In light of the sparse evidence of record upon which

plaintiff relies, she has failed to carry her burden of

demonstrating that DHC regard her as disabled under section

12102(2)(C). At most, plaintiff has demonstrated that DHC

regarded her as suffering from an impairment that did not

substantially limit one or more of her major life activities.

See Tardie,

.

Conclusion

There is no guestion that plaintiff's cancer has

dramatically affected her life, and that the associated

27 impairment has been real and extraordinarily difficult for her

and her family. The narrow issue before the court, however, is

whether, during the time period at issue, her cancer rendered her

"disabled," as that term is used in the ADA. Based upon the

record presented, the court is compelled to conclude that

plaintiff has not, and cannot, point to sufficient evidence to

support a claim of disability under the ADA, given that term's

statutory meaning. Conseguently, as to plaintiff's claims under

the ADA, the defendant, DHC, is entitled to judgment as a matter

of law.

As to plaintiff's state law claims, which, among other

things, raise difficult state law guestions involving statutory

preemption of common law causes of action and whether N.H. Rev.

Stat. Ann. 275:49 provides a private right of action, the court

declines to exercise its supplemental jurisdiction. See

generally Camelio v. American Federation,

(1st Cir.

1998) . See also Dennis v. Husqvarna Forrest & Garden Co . ,

at *7 (D.N.H. Dec. 27, 1994) ("[T]his court is and

should be hesitant to blaze new, previously uncharted state-law

trails. Expansive reading of New Hampshire statutes and

28 recognition of novel causes of action under those statutes is a

realm best occupied by the New Hampshire Supreme Court.").

Because plaintiff's state law claims are best pursued in a state

court of competent jurisdiction, this court will not resolve them

in this case.

Defendant's motion for summary judgment (document no. 19) is

granted in part. Defendant is entitled to judgment as a matter

of law with regard to counts 1, 2, and 3 of plaintiff's amended

complaint. As to the remaining counts (4 and 5), which advance

state law claims, the court declines to exercise its supplemental

jurisdiction and they are dismissed without prejudice to pursuing

them in state court. Defendant's motion to exclude plaintiff's

expert testimony (document no. 12) is denied as moot. The Clerk

of Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge December 30, 2002

cc: John S. Krupski, Esg. Emily G. Rice, Esg.

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