Hess v . Roch. School Dist. CV-04-110-JD 10/18/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gerald R. Hess v. Civil N o . 04-cv-110-JD Opinion N o .

Rochester School District, et a l .

O R D E R

Gerald R. Hess, appearing pro s e , has sued his former

employer, the Rochester School District, alleging violations of

the Americans with Disabilities Act (“ADA”), the Family and

Medical Leave Act (“FMLA”), and state law, arising from the

termination of his employment as a teacher at the Rochester

Middle School.1 Hess contends that his teaching contract was not

renewed because of his impairments caused by Attention Deficit

Hyperactivity Disorder (“ADHD”) and anxiety. The District moves to dismiss five of the counts in Hess’s complaint and moves for

summary judgment on the remaining thirteen counts. Hess has

1 Although Hess also names Superintendent Raymond Yeagley, and Principal Walter Helliesen, as parties, he has sued them in their official capacities only, meaning that his claims are brought against the governmental entity, the Rochester School District. See Wood v . Hancock County Sheriff’s Dep’t,

7 , 58 n.1 (1st Cir. 2003). In addition, although neither the First Circuit nor the Supreme Court has decided the question, this district follows the majority rule that the ADA does not impose individual liability. See Lee v . Trs. of Dartmouth Coll.,

7 , 45 (D.N.H. 1997). agreed to dismiss four of his claims but otherwise opposes the

District’s motions.

I. Motion to Dismiss

Because the District has filed its answer to Hess’s

complaint, the motion is properly considered as a motion for

judgment on the pleadings. See Fed. R. Civ. P. 12(c). The

standard for considering a motion for judgment on the pleadings

is essentially the same as for a motion to dismiss. Pasdon v .

City of Peabody,

(1st Cir. 2005). When

considering a motion for judgment on the pleadings, the “court

must accept all of the nonmoving party’s well-pleaded factual

averments as true and draw all reasonable inferences in her

favor.” Feliciano v . Rhode Island,

8 0 , 788 (1st Cir.

1998). Judgment on the pleadings is not appropriate “‘unless it

appears beyond doubt that the plaintiff can prove no set of facts

in support of her claim which would entitle her to relief.’”

Santiago de Castro v . Morales Medina,

(1st Cir.

1991) (quoting Rivera-Gomez v . De Castro,

3 1 , 635 (1st

Cir. 1988)).

In Count 1 5 , Hess alleges a claim of wrongful termination

under New Hampshire Revised Statutes Annotated (“RSA”) § 189:14-

a,III. The District contends that this court lacks jurisdiction

2 to hear a claim under RSA 189:14-a,III. Hess responds that he

does not understand the District’s motion.

RSA 189:14 states the process to be followed when a teacher

with certain credentials is not renominated to his position but

does not include a right of review in this or any other court.2

Instead, RSA 189:14-b provides for review of the local school board’s decision by the state board of education. Further, “the

decision of the state board shall be final and binding upon both

parties.” RSA 189:14-b. Notwithstanding the finality provision,

the state board of education’s decision may be reviewed by the

New Hampshire Supreme Court which “will grant certiorari and

RSA 189:14-a,III provides:

In cases of nonrenomination because of unsatisfactory performance, the superintendent of the local school district shall demonstrate, at the school board hearing, by a preponderance of the evidence, that the teacher had received written notice that the teacher’s unsatisfactory performance may lead to nonrenomination, that the teacher had a reasonable opportunity to correct such unsatisfactory performance, and that the teacher had failed to correct such unsatisfactory performance. Nothing in this paragraph shall be construed to require the superintendent or the school board to provide a teacher with remedial assistance to correct any deficiencies that form the basis for such teacher’s nonrenomination.

3 reverse the decision of an agency such as the State Board where

it exceeded its jurisdiction or authority, otherwise acted

illegally, abused its discretion or acted arbitrarily,

unreasonably, or capriciously.” Petition of Dunlap,

(1991) (internal quotation marks omitted).

The statutory process and review by the supreme court do not provide a cause of action in this court under RSA 189:14-a. See,

e.g., Thomas v . Contoocook Valley Sch. Dist.,

1 , 42-43

(1st Cir. 1998) (discussing state procedure in contrast to

federal claim). Therefore, the District is entitled to judgment

on the pleadings on Count 1 5 . The District is also entitled to

judgment on the pleadings on Counts 9, 1 0 , 1 3 , and 16 as

acknowledged by Hess in his response to the District’s motion.

II. Motion for Summary Judgment

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 a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v . Catrett,

1 7 , 323 (1986). A party

4 opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v . Liberty Lobby, Inc.,

4 2 ,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

Background

Gerald Hess was first employed by the Rochester School

District for the 1986-1987 school year. He taught computer

education at Rochester Middle School from 1986 through the 2000

to 2001 school year. He was successful in that position during

the tenure of the previous principal and assistant principal.

Hess was diagnosed with Attention Deficit Disorder (“ADD”)

in 1995, and he was diagnosed with ADHD and anxiety in 2000. He

began treating with a psychiatrist, Doris Citron, in September of

2000. Both Rochester Middle School Principal Helliesen and

Superintendent Yeagley were aware of Hess’s ADD diagnosis. D r .

Citron states that Hess’s ADHD and anxiety cause inattention,

hyperactivity, and impulsivity, impair his ability to learn new

aspects of computer teaching without assistance, and cause him to

be very forgetful.

In the fall of 2001, Hess was moved to the Structured

Thought and Review Subjects (“STARS”) program, where he worked

5 with students who had failed a class the previous year and were

required to attend the program for additional assistance. During

a meeting with Helliesen on January 1 1 , 2002, Hess complained

that if he had too many students, there would be too many

behavior problems in his class. Hess states that on January 2 8 ,

2002, he gave a letter to Helliesen in which he asked the school to buy computer software to help him handle hyperactive students

and asked that no additional hyperactive students be assigned to

his class. He characterizes those requests as an accommodation

for his disability. He states that his requests were denied or

ignored.

In the spring of 2002, Hess was also teaching a computer

class along with his STARS classes. One day in April of 2002

Helliesen learned that Hess had left his computer class

unsupervised, and when he went to the classroom, he found no teacher. Helliesen made an “all call” announcement on the

intercom system, summoning Hess back to the classroom. Hess

returned in response to the call. Hess explains that he thought

the class would be away on a field trip that day based on the

school’s attendance slip and that he went to another classroom to

prepare an activity for a later class. Hess believes that

Helliesen accepted his explanation because he was not reprimanded

for that incident.

6 On May 7 , 2002, Hess requested in writing that Helliesen

move him back to teaching computer education because he was

discouraged by the lack of progress made by the STARS students

and he was “burned out” by the work load and his attention

deficit disorder. Helliesen explained that Hess could not return

to computer education because his position had been eliminated. Hess continued with the STARS program. At the beginning of

the school year in September of 2002, Hess’s classroom was

prepared for installation of ten computers, and while he waited

for the installation, Hess used the computer lab almost every

day. During October of 2002, Hess started an after school

program in which he used computers, Nintendo, and music with

students. He asked for money from the school to buy two CD

players, but his request was denied. In December, Hess was told

that the computers would not be installed in his classroom, and the rules for computer lab use were changed, making it less

available for him to use with his STARS students. Hess requested

computers for his classroom and asked to have students use

Nintendo games and head phones to listen to music during class.

Hess characterizes these requests as an aid to him in the class

room to quiet disruptive students.

On October 2 5 , Hess left three sixth grade girls and two

eighth grade boys unsupervised in his classroom for approximately

7 twenty minutes. While they were there, the girls became

concerned for their safety because of comments made by the boys.

A student found Helliesen in the hallway and asked where Hess had

gone. Helliesen found the unsupervised students in the classroom

who told him that Hess had gone to another classroom in another

wing of the school. Hess returned when Helliesen summoned him through the intercom system.

Hess provided a written explanation for that incident. He

wrote that earlier that morning he had worked with the two eighth

grade boys who were having behavior and learning problems and was

excited to find that they had relaxed and gained trust when he

let them play Nintendo and talked with them while they played.

The boys went back to their classroom, and he told them they

could come back when they finished their work. The three sixth

grade girls arrived for their STARS period, and then the boys returned. Hess stated that he “was so excited about finding out

how to help the boys, the teacher, and everyone involved in their

lives that [he] wanted to tell the Special Ed teacher what she

could do during the rest of the day to continue the positive

behavior.” Def. Ex. B at 2 . Hess gave the girls “free time” and

thought the boys were engrossed in Nintendo so that he could

leave them to talk with the Special Ed teacher. He explained

that he lost track of time but that when he returned the boys

8 were still playing Nintendo and the girls were gone so everything

seemed to be fine. Several days later he realized that the

reason that incident occurred was because he had stopped taking

his antidepressant medication for three weeks. Despite Hess’s

explanation, Superintendent Yeagley issued a written reprimand to

Hess on October 2 8 , 2002. Helliesen told Hess that he could no longer use Nintendo in his classroom.

Helliesen states in his affidavit that on November 7 , 2002,

Hess left his entire class in the hallway outside of his

classroom without asking another teacher to supervise the

students. One of the students was injured while the group was

left unsupervised in the hallway and was seen by the school

nurse. The nurse reported the incident to Helliesen. Hess

disputes that this incident ever occurred, and no reprimand

resulted from i t . Hess left a student unsupervised in the classroom working on

a computer on December 2 0 , 2002. While Hess was gone, another

student, who had been assigned to his class while her class was

away on a field trip, came into the classroom and joined the

first student at the computer. Together the two students

attempted approximately twenty-five times to access pornographic

sites on the Internet. The school’s Computer Information Center

notified Helliesen that the computer was being used to attempt

9 access to pornographic sites. Helliesen went to Hess’s classroom

and found the two students there, unsupervised. After moving

them away from the computer, he checked the Internet history and

found attempts to access blocked sites. The students said that

Hess was in another room across the hall. On his return, Hess

admitted leaving the first student unsupervised. Helliesen recommended that Hess be suspended for five days because of his

repeated failures to properly supervise his students, and Yeagley

issued the suspension on January 3 , 2003.

Hess returned from the suspension on January 2 1 , 2003. Two

days later, a female student reported to Helliesen that Hess

slapped her in the face during class because she was laughing

loudly. Helliesen met with Hess who agreed with the student’s

version of events except that he said he had not slapped her but

had only “cupped” his hands along her face to get her attention. The Assistant Superintendent interviewed Hess with a

representative of the Rochester Teachers Union present. Hess

admitted cupping the student’s face but explained he was trying

to quiet her because she had a very loud voice that hurt his ears

and startled him. Hess was suspended, with pay, pending the

completion of the investigation. A disruptive student, whom Hess

had sent to the office on several occasions in December, was

removed from the STARS class before Hess’s replacement took over

10 the class.

On February 2 , 2003, Yeagley notified Hess by letter that he

was suspended from his teaching position indefinitely, without

pay, and informed him of the further proceedings that would

occur. The letter also reviewed the incidents from the past fall

and stated that his “failure to appropriately supervise students

under [his] care has directly or indirectly resulted in injury,

harassment or fear of harassment, and student discipline that

could probably have been avoided had you carried out your

responsibilities adequately.” Def. Ex. F. Yeagley warned Hess

that if the investigation substantiated the student’s charge that

he touched her “in a manner that was unwelcome, such an action

would be further substantiation of your lack of ability to

adequately and appropriately supervise students in accordance

with the standards expected of professional teachers.” Id. Yeagley notified Hess on March 1 1 , 2003, that he intended to

recommend that his teaching contract not be renewed for the next

year. Hess requested a ninety-day unpaid leave of absence which

was approved the next day. Yeagley sent Hess a letter on March

2 5 , 2005, that further explained the reasons for recommending

nonrenewal. On May 1 5 , 2003, the School Board held a hearing to

consider Yeagley’s recommendation for nonrenewal of Hess’s

contract. D r . Citron, Helliesen, and Yeagley testified. Dr.

11 Citron testified that Hess required accommodations to do his job,

that i s , that he should be allowed to have his students play

Nintendo games and listen to music with headphones during class

to reduce student disruptive behavior that increases Hess’s

“distractiveness” due to his ADHD and anxiety.

The Board accepted Yeagley’s recommendation that Hess’s contract not be renewed on June 3 , 2003. Hess filed a claim with

the New Hampshire Human Rights Commission on October 1 5 , 2003,

claiming discrimination due to his disability and retaliation

beginning on September 2 , 2002. He received a right to sue

notice on December 2 4 , 2003, and filed suit in March of 2004.

A. ADA Claims

Counts 1 through 7 in the complaint raise claims under the

ADA. Hess alleges that the District treated him differently,

denied him reasonable accommodations, terminated him because of

his disability or because of a stereotype of his disability,

refused to engage in an interactive process with him, and

retaliated against him for requesting reasonable accommodation,

all in violation of the ADA. The District moves for summary

judgment on the grounds that some of Hess’s claims are barred as

untimely or because he failed to exhaust administrative remedies

and that, as to the remaining claims, he cannot prove

12 discrimination or retaliation in violation of the ADA.

1 . Exhaustion of administrative remedies and timeliness.

Before bringing an ADA claim in this court, a plaintiff must

exhaust his administrative remedies by bringing the claim before

the Equal Employment Opportunity Commission (“EEOC”) or the

appropriate state agency within the time allowed. Bonilla v .

Muebles J.J. Alvarez, Inc.,

(1st Cir. 1999).

When, as here, the plaintiff brings his claim to a state agency,

the claim must be brought within 300 days after the alleged

discrimination occurred.

(citing 42 U.S.C. § 2000e-5(e)).

An unexcused failure to exhaust administrative remedies bars

those claims from being considered here. Id.

The District contends that Hess’s disparate treatment claim

in Count 1 was not included in his EEOC complaint and is also

time-barred. Hess alleges in Count 1 that the District treated

him “differently than other non-disabled employees by failing to

provide him with the same training, equipment, help in obtaining

‘computer teacher’ certification and resources as other similarly

situated employees; consequently [his] position as a computer

teacher was eliminated and, eventually, [he] was terminated.”

Am. Comp. ¶ 3 0 . Hess also alleges that the disparate treatment

13 occurred between March of 1997 and June of 2001. Id. ¶ 1 6 . That

claim is not included in his EEOC complaint, which is limited to

the period between September of 2002 and June of 2003.

In response, Hess explains that he sent a 125-page report to

the EEOC on September 8 , 2003, and did not receive a response

until he enlisted help from Representative Bradley’s office.

Then, on October 1 5 , 2003, Ben Nidus from the EEOC called Hess

and asked him questions about his complaint. A completed

complaint form, which stated claims for discrimination based on

disability and retaliation between September 2 , 2002, and June 3 ,

2003, based on a five-paragraph description of the circumstances,

was sent to Hess with the instruction that he had thirty-three

days to return i t . On November 1 9 , 2003, when only three days

were left to return the complaint, Nidus called to tell Hess to

send back the complaint or his charge would be dismissed and that

he could add other charges to his complaint later. Hess sent in the complaint as it had been drafted for him. A month later he

sent Nidus a letter saying that he planned to send more

information. On December 2 4 , 2003, Hess received a notice of

dismissal of his complaint and of his right to sue. Although

Hess appealed that decision, he did not include in the record

here copies of his submissions to the EEOC in support of his

request for reconsideration.

14 Hess’s claims based on events and circumstances between 1997

and 2001, which are the basis for Hess’s claim in Count 1 , were

barred by the 300 day limit when he filed his complaint. The

only claims that have been administratively exhausted are the

claims stated in the EEOC complaint. The record does not support

any grounds for excusing his failure to exhaust additional claims or to timely file a complaint stating those claims. See Bonilla,

.

2. ADA discrimination.

The District contends that it terminated Hess’s employment

not because he had been diagnosed with ADHD and anxiety but

because he was not able to perform the essential functions of his

teaching position: teaching and supervising students. Hess

argues that he was qualified as a teacher and would have been

able to properly supervise his students if he had been provided

with the reasonable accommodation of letting his students play

Nintendo and computer games and listen to music with headphones

during class. Hess asserts that those “Child Diversity Tools”

would have alleviated his stress caused by the excessively

disruptive students in his class and that a reduction in stress

would have prevented the negative effects of his ADHD which led

to the incidents for which he was terminated.

15 “The ADA prohibits discrimination against ‘a qualified

individual with a disability because of the disability of such

individual in regard to . . . terms, conditions, and privileges

of employment.’” Estades-Negroni v . Assocs. Corp. of N . Am.,

8 , 63 (1st Cir. 2004) (quoting

(a)). To

establish disability discrimination under the ADA a plaintiff must show: “(1) that he suffers from a disability; (2) that he

was nevertheless able to perform the essential functions of his

job, either with or without reasonable accommodation; and (3)

that [the defendant] took adverse action against him because of

his disability.” Wright v . CompUSA, Inc.,

7 2 , 475 (1st

Cir. 2003).

a. Disability.

In the ADA context, “[h]aving a ‘disability’ means having or

being ‘regarded as’ having a mental or physical impairment that

‘substantially limits one or more . . . major life activities.’”3

Guzman-Rosario v . U.P.S.,

(1st Cir. 2005) (quoting

(2)(A),(C)). An ADD or ADHD diagnosis is not

sufficient to establish a disability under the ADA. Wright, 352

3 The “regarded as” part of the statute is the basis for Hess’s claim in Count 4 that the District discriminated against him based on its perception of his inability to properly supervise his students.

16 F.3d at 476-77; Calef v . Gillette Co.,

5 , 83 (1st Cir.

2003). A plaintiff claiming a disability based on such a

diagnosis must also show a substantial limitation of a major life

activity. Wright, 352 F.3d at 477. Both working and learning

are considered major life activities within this context.4

(i). A plaintiff’s impairment is considered on a case-by-case basis in the context of his own experience. Toyota

Motor Mfg., Inc. v . Williams,

8 4 , 198 (2002).

The impact of an impairment such as ADD or ADHD is assessed

based on the plaintiff’s abilities when he is receiving proper

counseling and medication. Calef,

3 . The record

indicates that during the school year 2002 to 2003, Hess was not

being properly medicated. He stated in his explanation for the

October 2 5 , 2002, incident that it occurred because he had

stopped taking the medication prescribed by his psychiatrist, D r . Citron. Information provided by Hess’s primary care physician,

Dr. Mathes, and D r . Citron indicates that his then current

medications were not entirely effective and that other medication

would have been more appropriate. Therefore, as a preliminary

matter, Hess has not shown that when he is properly medicated for

4 While working is assumed to be a major life activity under the ADA, the First Circuit has noted the inherent difficulties of an analysis based on work disability. See Sullivan v . Neiman Marcus Group, Inc.,

1 0 , 115-16 (1st Cir. 2004).

17 ADD or ADHD he nevertheless is substantially limited in a major

life function such as working or learning.

i. Working.

Hess contends that he is disabled because his impairments

have caused substantial problems in his work as a teacher. In

particular, Hess contends that his impairments make it difficult

for him to cope with disruptive students because the stress of

their disruptive behavior or his anticipation of disruption

causes him pain that makes him act impulsively. “[A] plaintiff

is ‘disabled’ even if [he] can still work but if [he] is

significantly restricted in or precluded from performing either a

‘class’ of jobs--a set of jobs utilizing similar skills,

knowledge, and training to her prior job--or a ‘broad range’ of

jobs in various classes--a large set of jobs that vary in what

skills are required.” Guzman-Rosario,

-11 (quoting

§ 1630.2(j)(3)(ii)- (iii)).

As is noted above, Hess has not shown that he is

significantly impaired when he is properly medicated. In

addition, over his long career in teaching, when he presumably

encountered disruptive students on a regular basis and while he

also was coping with the effects of ADHD and anxiety, he did not

experience the problems that occurred during the 2002 to 2003

18 school year. He argues that he had avoided problems during his

career because he was allowed to use “Child Diversity Tools,”

such as computers, Nintendo games, and music, to control

disruptive students.

During the fall of 2002, when several of the incidents

occurred that led to his termination, however, Hess was using “Child Diversity Tools,” and, in fact, students were playing

Nintendo and using a computer when he left them unsupervised

during the challenged incidents. After the October 2 5 , 2002,

incident, Hess explained that his excitement over his success

with two disruptive students, not pain caused by the stress of

disruptive students or his disability, caused him to leave the

class unsupervised. Therefore, based on Hess’s own experience in

the workplace, he has not shown that a triable issue exists as to

whether his impairment restricted or precluded him from working as a teacher.

ii. Learning.

Hess contends that he is substantially limited in his

ability to learn by ADHD and anxiety because he fails to attend

to detail, has difficulty in sustaining attention, and does not

listen, follow through, or complete tasks. He also states that

he has problems with organization, sustaining mental energy,

19 distractibility, and memory. Hess further contends that his

symptoms of hyperactivity interfere with his ability to learn.

He states that while he is able to learn, the process requires

more time and effort from him than for non-disabled individuals.

Despite his disability, Hess completed secondary school,

college, a master’s degree, and other post-graduate work. Hess also stated that he has received “A” grades in computer and

administration courses that he has taken. Although Hess

describes problems that he has experienced in school and in jobs,

which he ascribes to an impaired ability to learn due to ADHD and

anxiety, the results of his efforts shown by his life experiences

undercut any evidence of a significant impairment in his ability

to learn. See, e.g., Calef,

4 .

iii. Regarded as disabled.

Hess argues that the District also regarded him as disabled.

The ADA protects an employee from discrimination based on the

employer’s mistaken impression that he is disabled. Sullivan,

. An employee proves this claim by showing that

his employer either mistakenly believed that he had an impairment

that substantially limited one or more major life activities or

his employer mistakenly believed that the employee’s actual but

non-limiting impairment did limit one or more major life

20 activities.

at 117 (citing Sutton v . United Airlines, Inc.,

7 1 , 489 (1999)).

Hess misunderstands the standard for a “regarded as” claim.

Instead of showing that the District mistakenly believed he had

an impairment or was disabled by an actual impairment, he shows

only that the District recognized that he had been diagnosed with ADD and ADHD. Hess has not shown or even suggested that the

District mistakenly thought he had been diagnosed or mistakenly

thought he was impaired when he was not.

Because Hess has not provided sufficient evidence to show a

disputed factual issue on the question of whether he has a

disability within the meaning of the ADA, the District is

entitled to summary judgment on his ADA claims. In addition,

even if Hess were able to show a trialworthy issue as to

disability, he cannot sustain his burden on the issue of whether he was a qualified individual under the ADA.

b . Qualified individual.

To make a claim under the ADA, a plaintiff must show that he

is a “qualified individual,” meaning that he is “an individual

with a disability who, with or without reasonable accommodation,

can perform the essential functions of the employment position

that such individual holds or desires.” Sullivan,

115 (quoting and citing

(a) & § 12111(8)). To

avoid summary judgment on the issue of whether a plaintiff is a

qualified individual under the ADA, he “must produce enough

evidence for a reasonable jury to find that (1) he is disabled

within the meaning of the ADA, (2) he was able to perform the

essential functions of the job with or without a reasonable accommodation, and (3) [his employer], despite knowing of [his]

disability, did not reasonably accommodate it.” Rocafort v . IBM

Corp.,

(1st Cir. 2003). The employer’s

judgment as to what constitutes an essential job function is to

be given consideration. § 12111(8); Calef,

6 .

Based on the affidavit of Principal Helliesen, the District

states that “the duty to properly supervise students is an

essential function of any teacher’s job. Proper supervision is

essential to ensure that students are not allowed to be in dangerous or potentially dangerous situation [sic] while at

school.” Def. Ex. 1 ¶ 1 7 . The District further contends that

“disruptions, whether from students, loud bells, announcements or

other sources is [sic] part of doing the job. It is essential

that teachers be able to teach despite disruptions. M r . Hess’

strategy of using computer games and Nintendo to pacify students

is not teaching.” Def. Ex. 1 ¶ 1 8 .

In response, Hess argues that he had effectively used

22 Nintendo and computer games to control disruptive students in the

past. He contends that when students are permitted to play those

games, he is able to properly supervise them. He provides

testimonials from other teachers and a student that students were

less disruptive when they were permitted to use computer games

and Nintendo during class. The student reported that Hess allowed the class to listen to music “for the whole day” and that

one disruptive student “totally stopped disrupting when he

started to use the headphones. The music/gum chewing took out a

lot of the back and forth chitter chatter between several boys

and girls in the class.” P l . Ex. 3 5 . A math teacher reported

that when Hess tried his “Child Diversity Tools” in her

classroom, the behavior improved because they were listening to

music instead of to the teacher, that the class’s written work

output improved, and that using the music as a reward for ADHD students appeared to be a useful tool. P l . Ex. 1 8 . A reading

teacher who had worked in the STARS program said she used

headphones with some students limited to times when they were

writing and when she was not giving instructions but that she did

not have problems with disruptive students and did not use

Nintendo or other computer games. A shop teacher said that he

and Hess used headphones with a few students during an after

school detention that seemed to help them. A special education

23 teacher who had taught with Hess in Stamford, Connecticut, prior

to 1986, stated in a letter that he had successfully used Hess’s

suggestion of having students listen to music in class.

Hess contends that his “Child Diversity Tools” were

reasonable accommodations that would have permitted him to

properly supervise his classes. Hess ignores the District’s requirement that he teach the students rather than pacify them by

allowing them to listen to music and play games for as much as

half of their class time. He also ignores the District’s

decision that letting students play games and listen to music for

purposes of pacifying them is not teaching. Contrary to Hess’s

view of the impact of the ADA, “an employer is under no

obligation to modify an essential job function to accommodate a

disabled employee.” Calef,

n.8. Further, as is

noted above, several of the incidents when Hess left his students without supervision occurred while students were using Nintendo

and computers, demonstrating that the accommodations he requests

were not effective with respect to controlling Hess’s

impairments. “Put simply, the ADA does not require that an

employee whose unacceptable behavior threatens the safety of

others be retained, even if the behavior stems from a mental

disability.”

at 8 7 .

24 Therefore, the District is entitled to summary judgment on

Hess’s ADA discrimination claims, Counts 2 through 6.

3. ADA retaliation.

In Count 7 , Hess alleges that the District retaliated

against him because of his requests for accommodation of his ADHD

and anxiety. The ADA provides: “No person shall discriminate

against any individual because such individual has opposed any

act or practice made unlawful by this chapter or because such

individual made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under this

chapter.”

(a). A plaintiff’s failure to

succeed on an ADA discrimination claim does not preclude his ADA

retaliation claim. Wright,

. For an ADA retaliation

claim, a plaintiff “must establish that (1) he engaged in

protected conduct, (2) he suffered adverse employment action, and

(3) there was a causal connection between his conduct and the

adverse action.” Benoit v . Tech. Mfg. Corp.,

(1st Cir. 2003). If a plaintiff can satisfy the three elements

of retaliation, the inquiry shifts to the defendant to articulate

a legitimate reason for the adverse employment action. Wright,

. The plaintiff, however, retains the burden to

show that the reason given was a pretext.

25 Hess contends that his requests for reasonable

accommodations for the effects of his ADHD and anxiety annoyed

and angered the District. The District disputes Hess’s claim

that he asked for accommodations for his disability. Further,

the District points out that because Hess claims to have

requested accommodations beginning in 1997 but did not suffer any adverse actions until after the incidents occurred in the fall of

2002 and winter of 2003, he cannot show any causal connection

between his requests and his eventual termination. In addition,

the District provides a legitimate reason for its decision to

terminate Hess, that i s , that he failed to properly and

appropriately supervise his students, which Hess has not

countered with evidence of pretext. Based on the record, Hess

has not shown a triable issue on his retaliation claim.

B. FMLA Claims

“The Family and Medical Leave Act of 1993 (FMLA or Act)

. . . creates a private right of action to seek both equitable

relief and money damages ‘against any employer’ . . . ‘should

that employer interfere with, restrain, or deny the exercise of’

FMLA rights. . . .” Nev. Dep’t of Human Res. v . Hibbs,

(2003) (quoting 29 U.S.C. § § 2617(a)(2) & 2615(a)(1)).

Hess alleges that the District violated the FMLA by “restricting

26 and/or failing to grant his requests for medical leave.” Am.

Compl. ¶ 6 2 . He also alleges that the District failed to

properly notify him about his rights under the FMLA. He further

alleges that the District retaliated against him for requesting

FMLA leave.

In the motion for summary judgment, the District points out

that it granted Hess’s request for FMLA leave. Then, when Hess’s

attorney asked that he be allowed to use his sick time instead of

FMLA leave and be paid for the time he was out of work, the

District also granted that request, which covered the time he was

out from March 1 3 , 2003, through the end of the year. Hess

responds by arguing that the District unlawfully assigned four

weeks to the FMLA leave when that time was “covered by a state

statute for suspension and non-renewing of teachers.” O b j . at

36. He does not identify the statute. He also argues that the

District failed to provide the required notice of FMLA rights.

Even assuming the District erroneously attributed suspension

time to FMLA leave, which cannot be determined on the present

record, it remains unclear what effect such an error might have

had on Hess’s right to FMLA leave, particularly because his FMLA

leave was changed to sick time at his request. With respect to

the District’s failure to post or provide notice of the FMLA,

such failure may provide a cause of action only if the lack of

27 notice harmed or prejudiced the plaintiff. See, e.g., Conoshenti

v . Pub. Serv. Elec. & Gas Co.,

(3d Cir. 2004);

Sarno v . Douglas Elliman-Gibbons & Ives, Inc.,

(2d Cir. 1999); Mion v . Aftermarket Tool & Equip. Group,

(W.D. Mich. 1997). Because Hess requested and was

granted FMLA leave, any failure to post notice of the FMLA did not prejudice him. Hess provides no supported argument of

retaliation. Therefore, the District is entitled to summary

judgment on Hess’s claims under the FMLA.

C. State Law Claims

Hess alleges claims under the New Hampshire Laws Against

Discrimination, RSA 354-A, and other state law claims. The

District argues that Hess’s disability discrimination claims

under RSA 354-A fail for the same reasons that his claims under

the ADA fail. See, e.g., McCusker v . Lakeview Rehab. Ctr., Inc.,

, at *2 n.3 (D.N.H. Sept. 1 7 , 2003). Because

Hess’s federal claims, which were the basis for jurisdiction in

this case, have been resolved against him, however, the court

declines to exercise supplemental jurisdiction over the remaining

state law claims.

(c); Gonzalez-De Blasini v .

Family Dep’t,

1 , 89 (1st Cir. 2004).

28 Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document n o . 30) is granted. The defendant’s motion for summary

judgment (document n o . 29) is granted as to the plaintiff’s federal claims and is terminated as to the state law claims. The

court dismisses the state law claims without prejudice for lack

of subject matter jurisdiction.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

d M ^ . fp Joseph A. DiClerico, Jr. United States District Judge October 1 8 , 2005

cc: Daniel P. Schwarz, Esquire Gerald R. Hess, pro se

29