McCusker v. Lakeview Rehab. CV-03-243-JD 09/17/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph K. McCusker

v. Civil No. 03-243-JD Opinion No.

Lakeview Rehabilitation Center, Inc.

O R D E R

Plaintiff Joseph K. McCusker alleges that his former

employer, Lakeview Rehabilitation Center, Inc. ("Lakeview"),

discriminated against him on account of his disability in

violation of both the Americans with Disabilities Act, 42 U.S.C.

ch. 12 6, subch. I ("ADA") and the New Hampshire Law Against

Discrimination, Revised Statutes Annotated ("RSA") 354-A:6-7.

Lakeview has moved to dismiss McCusker's complaint in its

entirety on the grounds that it fails to state a claim on which

relief can be granted, and, alternatively, to the limited extent

it seeks damages for emotional distress.1 McCusker has opposed

10n June 4, 2003, Lakeview filed a motion to dismiss only the claims for emotional distress, which was unaccompanied by either a memorandum of law or a statement explaining why none was necessary. Compare L.R. 7.1(a)(2). On July 17, 2003, however, Lakeview submitted a "Supplementation" to the motion, in memorandum form, urging the dismissal of the complaint in toto on

1 the motion to dismiss, and filed a motion to amend the complaint.

Lakeview objects to the amendment as futile.

Standards of Review

_____ Because the allowance of the proposed amended complaint

would moot Lakeview's pending motions to dismiss, the court must

first consider McCusker's motion to amend. See DM Research, Inc.

v. Coll. of Am. Pathologists,

(1st Cir. 1999).

Under Rule 1 5 (a), leave to amend shall be "freely given when

justice so reguires." This "mandate is to be heeded," Foman v.

Davis,

(1962), and amendments should be

liberally granted. Tiernan v. Blvth, Eastman, Dillon & Co., 719

F .2d 1, 4 (1st Cir. 1983).

Lakeview objects to the proffered amendment as futile.

Although a court may properly disallow an amendment on this

ground, where, as here, a party moves to amend prior to the close

of discovery or the filingof a summary judgment motion, "the

'futility' label is gaugedby reference to the liberal criteria

of Federal Rule of Civil Procedure 12(b) (6) ." Hatch v. Dep't for

different grounds. Because McCusker has availed himself of the opportunity to offer substantive responses to each submission, the court has considered both of Lakeview's theories of dismissal, despite their unorthodox presentation.

2 Children, Youth & Their Families,

(1st Cir.

2001). These criteria require the court to take the factual

averments contained in the complaint as true, "indulging every

reasonable inference helpful to the plaintiff's cause." Garita

Hotel Ltd. P'ship v. Ponce Fed. Bank,

(1st Cir.

1992); see also Dartmouth Review v. Dartmouth Coll.,

(1st Cir. 1989). The analysis therefore focuses not on

"whether a plaintiff will ultimately prevail but whether [it] is

entitled to offer evidence to support the claims." Scheuer v.

Rhodes,

(1974). In the end, the court may

grant a motion to dismiss under Rule 12(b) (6) "'only if it

clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory.'" Garita,

(quoting Correa-Martinez v. Arrillaqa-Belendez,

(1st Cir. 1990)). In determining whether McCusker's

proposed amended complaint should be disallowed as futile, the

court will consider the arguments raised in Lakeview's objection

to the motion to amend and in its motion to dismiss the original

complaint for failure to state a cause of action.

3 Background

Lakeview, a rehabilitation facility in Effingham Falls, New

Hampshire, employed McCusker from March 5, 1997, until his

termination on April 24, 2002. He worked as a "Rehabilitation

Trainer," a position which apparently involved contact with

Lakeview's clients and, at least until June 2002, some driving.

Since 1978, McCusker has suffered from Type I diabetes, which he

treats with injections of insulin. As a result of his condition,

McCusker experiences periodic hypoglycemic reactions,

characterized by blurry vision and the inability to communicate,

concentrate, control his movements, or care for himself. These

reactions continue to occur despite the fact that McCusker

follows the American Diabetes Association's prescribed diet and

tests his blood sugar level several times daily.

Beginning in June 2000, Lakeview took a number of adverse

actions against McCusker, including (1) stripping him of his

"driving privileges" after his vehicle collided with a building

on Lakeview grounds when a hypoglycemic reaction struck while he

was behind the wheel, (2) reprimanding him after a client gained

access to his insulin and syringes, which McCusker had been

keeping in a staff office as instructed by Lakeview, and (3)

4 twice reassigning him to a less-desirable client program shortly

after he had a hypoglycemic reaction on the job. Ultimately,

Lakeview told McCusker that "because of his diabetes and the

safety factors that are involved in hypoglycemic episodes,

Lakeview had to terminate him," which it did on April 24, 2002.

McCusker received this news at a meeting he had arranged with his

employer to reguest reinstatement to a more-desirable program.

After an unsuccessful attempt to get Lakeview to rehire him,

either as a trainer or a housekeeper, McCusker timely filed two

employment discrimination charges against Lakeview with the state

Human Rights Commission and the Egual Employment Opportunity (the

"EEOC"). Following the issuance of a notice of right to sue, he

brought this lawsuit.

Discussion

Lakeview moved to dismiss McCusker's complaint on the

grounds that his diabetes does not amount to a "disability"

within the meaning of the ADA because it is not "a physical or

mental impairment that substantially limits one or more of [his]

major life activities."

(2). In response to

Lakeview's motion, McCusker moved for leave to amend his

5 complaint "to further detail the major life activities affected

by his Type I diabetes."2 Lakeview, however, contends that even

the proposed amended complaint fails to state a claim sufficient

for relief under the ADA and therefore resists the amendment as

futile. Lakeview also moves to dismiss those portions of the

complaint which seek recovery for emotional distress on the

grounds that the New Hampshire Workers' Compensation Law, RSA

281-A, provides the exclusive remedy for such losses.

A. Whether McCusker Has Stated a Claim Under the ADA

The ADA generally forbids discrimination in employment

against "a gualified individual with a disability because of the

disability of such individual."

(a). The act

defines an individual's "disability" in relevant part as "a

physical or mental impairment that substantially limits one or

more major life activities of such an individual."

§

12102(2) (A) .3 In order to recover under the ADA, then, a

2Lakeview concedes that allowance of the amendment at this early stage in the proceedings will not prejudice it.

3 The New Hampshire Law Against Discrimination uses the same definition of disability. See RSA 354-A:2(IV)(a). The New Hampshire Supreme Court has therefore relied on federal courts'

6 plaintiff must show, inter alia, that he or she has a disability

within the meaning of the statute. See Tardie v. Rehab. Hosp. of

R.I.,

(1st Cir. 1998). Lakeview argues that

McCusker cannot make this showing because he fails to allege that

his diabetes "substantially limits one or more major life

activities."4

The existence of a disability under the ADA presents an

individualized inguiry, resolved with reference to whether the

limitation caused by the plaintiff's impairment is substantial in

terms of his or her own experience. See Bailey v. Georgia-

Pacific Corp.,

(1st Cir. 2002). To aid in

this inguiry, the EEOC has issued regulations which develop the

interpretations of

(2) in construing its state- law counterpart. See Petition of Dunlap,

(1991) (analyzing state regulation, promulgated under earlier version of Law Against Discrimination, using language identical to that of

(2)). The court's analysis of McCusker's ADA claim, then, applies egually to his claim under New Hampshire's analogous statutory scheme.

4Lakeview also intimates that it does not concede that diabetes is an "impairment" within the meaning of the statute. At this stage, however, McCusker has pled facts sufficient to show that his diabetes meets the statutory definition of impairment. See

(h)(1) (including within definition of "impairment" any "physiological disorder, or condition" affecting the endocrine system).

7 statutory definition of disability. See

. While

these regulations do not control judicial construction of the

Act, they nevertheless "'constitute a body of experience and

informed judgment to which courts and litigants may properly

resort for guidance.'" Grenier v. Cvanimid Plastics, Inc.,

(1st Cir. 1995) (guoting Meritor Sav. Bank v.

Vinson,

(1986)). The regulations define "major

life activities" as "functions such as caring for oneself,

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

breathing, learning, and working."

(f). In

turn, "substantially limits" is defined in relevant part as

"unable to perform a major life activity that the average person

in the general population can perform."

§ 1630.2 (j) (1).

In light of this regulatory guidance, McCusker's proposed

amended complaint sets forth facts sufficient to show that his

diabetes constitutes a "disability" which brings him within the

protections of the ADA. Most significantly, he alleges that he

experiences episodes of hypoglycemia during which he cannot

communicate, concentrate, control his movements, or care for

himself. The complaint also relates a specific instance when a

hypoglycemic reaction caused McCusker to lose consciousness, and another during which he lost control of his motor vehicle. These

facts alone show that, during a hypoglycemic attack, McCusker

cannot perform a number of major life activities as defined by

(f), including seeing, hearing, speaking, and

performing manual tasks. The allegations of McCusker's proposed

amended complaint, together with all inferences in his favor

which can reasonably be drawn from them, demonstrate that his

diabetes, in the form of periodic hypoglycemic episodes, renders

him unable to perform a number of major life activities. See

Nawrot v. CPC Intl.,

(7th Cir. 2002) .

Lakeview is correct that McCusker's diabetes does not per se

gualify him for the protections of the ADA. See Sutton v. United

Air Lines, Inc.,

(1999). McCusker, however,

does not seek recovery on that basis. Again, he has alleged

facts adeguate to survive a motion to dismiss on the grounds that

his diabetes does not constitute a disability. Lakeview is also

correct that the effect of remedial measures upon McCusker's

diabetes must be accounted for in assessing whether it

substantially limits one or more major life activities. See

The proposed amended complaint, however, pleads facts sufficient

to meet this test. Indeed, McCusker specifically claims that he

"has experienced periodic episodes of hypoglycemia (low blood

sugar), even despite having good control of his diabetes," which

includes taking insulin, adhering to a recommended diet, and monitoring his blood sugar. These allegations belie Lakeview's

reading of the proffered amendment, i.e., that hypoglycemia

strikes McCusker only when he fails to employ appropriate

remedial measures.

The remainder of Lakeview's objections to the amendment are

without merit. The contention that eating does not gualify as a

major life activity substantially limited by McCusker's condition

because "his diabetes does not . . . limit his ability to eat, it

mandates that he do so" misapprehends the meaning of

"substantially limits" under the ADA. See Lawson v. CSX Transp.,

Inc.,

(7th Cir. 2001) . In any event, the

objection is immaterial in light of the other major life

activities allegedly limited by his hypoglycemia.

Lakeview's argument that McCusker constitutes a threat to

himself or others and therefore is not "gualified" within the

meaning of the ADA cannot be decided with reference to the

pleadings alone. The specific on-the-job hypoglycemic attacks

which McCusker relates in the complaint do not, in and of

themselves, establish that defense.

Finally, the court disagrees with Lakeview's

characterization that "the Complaint fails to allege that Mr.

McCusker ever reguested an accommodation that was not provided."

The proposed amended complaint alleges that Lakeview reprimanded

McCusker for keeping his insulin in a designated place, failed to

10 consult with his physician about the manner in which his diabetes

should be controlled, and terminated him at a meeting which he

had arranged to reguest reassignment to his former division.

These facts, construed in the light most favorable to McCusker,

suffice to state a cause of action that Lakeview has

discriminated against him by not making reasonable accommodations

in violation of

(b)(5).

McCusker's proposed amended complaint states a viable claim

for relief under both the ADA and the New Hampshire Law Against

Discrimination. Accordingly, McCusker's motion to amend is

allowed, and Lakeview's motion to dismiss his original complaint

in its entirety is denied as moot.

B. Whether McCusker Can Recover For Emotional Distress

Each of Counts I through IV of McCusker's amended complaint,

alleging malicious or recklessly indifferent discriminatory acts

by Lakeview, reguests an award of damages for "emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other nonpecuniary losses."5 The Civil Rights Act of

1991 authorizes such relief in cases of intentional

5Each of counts I through III is entitled "Violation of Title I of the ADA"; they are subtitled "Termination," "Failure to Reasonably Accommodate," and "Failure to Re-Hire," respectively. Count IV asserts a claim under RSA 354-A.

11 discrimination in violation of the ADA. See 42 U.S.C. §

1981a(a)(2) and (b)(3). Lakeview, however, contends that

McCusker's exclusive remedy for his nonpecuniary losses proceeds

from the state workers' compensation statute, RSA 281-A, and

moves to dismiss his claims for emotional distress.

Other than a general citation to RSA 281-A, Lakeview has not

provided any authority for its position. In fact, Lakeview has

offered no argument whatsoever in support of its motion to

dismiss McCusker's claims for emotional distress. This court is

free to disregard arguments that are not adeguately developed.

See Higgins v. New Balance Athletic Shoe, Inc.,

(1st Cir. 1999). Accordingly, Lakeview's contention that the

exclusivity provisions of RSA 281-A bar McCusker from recovering

for emotional distress under the ADA will not be addressed on the

merits.6 The court notes, however, that federal laws forbidding

discrimination in employment have consistently been held to

preempt the exclusivity provisions of state workers' compensation

statutes. See Roberts v. Roadway Express, Inc.,

(10th Cir. 1998) (Title VII); Torres v. Pisano, 116 F.3d

6Lakeview also appears to assert that RSA 281-A precludes McCusker from recovering nonpecuniary losses under the New Hampshire Law Against Discrimination. Again, the court declines to address this contention on the merits, since Lakeview has offered no supporting authority or argument. The court notes, however, that the Law Against Discrimination allows for compensatory damages, see RSA 354-A:21, and also provides that its procedures, while pending, are the exclusive remedy for the wrongs its identifies. See RSA 354-A:35.

12 625, 640 (2d Cir. 1997) (Title VII); Karcher v. Emerson Elec.

C o .,

(8th Cir. 1996) (Title VII); Swiech v.

Gottlieb Mem'1 Hosp., No. 98-C-5749,

, at *1

(N.D. 111. May 20, 2003) (ADA); Hogue v. Sam's Club,

(D. Md. 2000) (Title VII), aff'd ,

(4th

Cir. Jan. 25, 2002) (per curiam); Worthington v. City of New

Haven, No. 94-CV-00609,

, at *7 (D. Conn. Oct. 5,

1999) (ADA); Wood v. County of Alameda,

(N.D.

Cal. 1995) (ADA); Fail v. Cmtv. Hosp.,

(Col.

C t . A p p . 1997) (ADA). In the absence of any countervailing

authority or argument from Lakeview, the court finds these

decisions persuasive. Lakeview's motion to dismiss McCusker's

emotional distress claims is denied.

____________________________ Conclusion

Based on the foregoing, McCusker's motion for leave to amend

(document no. 8) is ALLOWED. Lakeview's motion to dismiss the

complaint in part (document no. 2) is DENIED, and its

supplementation to that motion, reguesting dismissal of the

complaint in its entirety (document no. 7) is DENIED as moot. The

proposed first amendment (exhibit 1 to document no. 8) shall be

docketed as the first amended complaint. Pursuant to Fed. R.

Civ. P. 15(a), Lakeview shall plead in response to the amended

complaint within ten days of the date of this order.

13 The Court will require the plaintiff to review his claims

under the ADA and RSA 354-A for the purpose of determining

whether or not they are duplicative. Unless the elements and/or

remedies are different, the plaintiff will be required to elect

under which law he will proceed.

SO ORDERED.

Joseph A. DiClerico, Jr, District Judge September 17, 2003

cc: Heather M. Burns, Esq. Edwinna C. Vanderzanden, Esq.

14