Duhy v . Concord General Mutual Ins. CV-08-192-JL 06/10/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Janet Duhy

v. Civil N o . 1:08-cv-00192-JL Opinion N o .

Concord General Mutual Insurance Company

O R D E R

The plaintiff, Janet Duhy, brought this action against her

former employer, Concord General Mutual Insurance Company, in

Grafton County Superior Court, alleging retaliation in violation

of the Family and Medical Leave Act,

(“FMLA”),

and employment discrimination in violation of the Americans with

Disabilities Act,

(“ADA”), and its state law

analog,

-A (“RSA”). She also brought a

claim under New Hampshire law for wrongful discharge. Concord

General removed the case to this court, see

(b),

and moved for summary judgment on all claims.

The court has subject-matter jurisdiction under

(federal question) and 1367 (supplemental jurisdiction).

After oral argument, and for the reasons set forth below, the

court grants Concord General’s motion. I. APPLICABLE LEGAL STANDARD

Summary judgment is appropriate when “the pleadings, the

discovery and disclosure materials on file, and any affidavits

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

that the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). “An issue is genuine if it may reasonably

be resolved in favor of either party at trial, and material if it

possesses the capacity to sway the outcome of the litigation

under the applicable law.” Iverson v . City of Boston,

4 , 98 (1st Cir. 2006) (internal quotation marks, bracketing, and

citation omitted). In ruling on a motion for summary judgment,

the court examines the record evidence in the light most

favorable to the nonmovant, indulging all reasonable inferences

in that party’s favor. See

“The nonmovant may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that a

trialworthy issue persists.”

But “a measure of factual

specificity is required; a conglomeration of conclusory

allegations, improbable inferences, and unsupported speculation

is insufficient to discharge the nonmovant’s burden.”

(internal quotation marks omitted). The nonmovant’s evidence

“cannot be conjectural or problematic; it must have substance in

2 the sense that it limns differing versions of the truth which a

factfinder must resolve at an ensuing trial.” Mesnick v . Gen.

Elec. Co.,

(1st Cir. 1991) (internal quotation

marks and citation omitted). On the other hand, “when the facts

support plausible but conflicting inferences on a pivotal issue

in the case, the judge may not choose between those inferences at

the summary judgment stage.” Coyne v . Taber Partners I ,

(1st Cir. 1995).

II. BACKGROUND1

Concord General hired Duhy in 2003 as a personal lines

underwriter. Duhy’s job primarily entailed reviewing insurance

coverage applications, submitted by independent insurance

agencies on behalf of their clients, “to make sure the business

[was] right for [Concord General].”2 Because these agencies

directed business to Concord General, the position required

underwriters like Duhy to maintain a strong working relationship

with their insurance agents. Among Concord General’s client

1 Consistent with the summary judgment standard, the court states the facts in the light most favorable to the nonmovant, Duhy. See Iverson, 452 F.3d at 9 8 . 2 (Duhy Dep. 2 4 ) .

3 agencies were Eaton & Berube Insurance Agency, Bessey Insurance

Agency, and Allied Insurance Agency.

Until the fall of 2005, Duhy’s employment at Concord General

was generally marked by good health and positive performance

reviews from her supervisors. That fall, however, Duhy missed

several workdays because of medical problems, and, at least in

the opinions of some of her client agencies, became inattentive

and unresponsive to their inquiries.

A . Leg pain

Duhy’s first health problem at Concord General began, and

ended, in the fall of 2005. In late October, after experiencing

a sudden and sharp pain in her left calf, Duhy saw her physician,

who detected abnormal reflexes that he conjectured could be

caused by multiple sclerosis or Parkinson’s disease and referred

Duhy to a neurologist. Shortly thereafter, but before she was

seen by the neurologist, Duhy informed her direct supervisor at

Concord General, Jennifer McLean,3 that Duhy “had to schedule an

MRI because [she] went to the doctor and he said that my reflexes

were abnormal . . . and he was concerned, not to make me worry,

3 It appears that while the facts relevant to the present motion were unfolding, Jennifer McLean changed her name to Jennifer Cassidy. For clarity’s sake, the court will hereinafter refer to her as “McLean.”

4 but it is a sign of MS or Parkinson’s.”4 By the middle of

December, Duhy’s neurologist concluded that she had neither of

these serious conditions. Furthermore, the calf pain soon

relented and Duhy returned to work without restrictions. Duhy

did not inform anyone at Concord General of the neurologist’s

negative findings until January 3 0 , 2006.

B . Complaints about Duhy’s work performance

Soon after the onset of Duhy’s calf pain, several of her

client agencies began to complain about her. On November 4 ,

2005, Marc Berube, a principal at Eaton & Berube, called Mike

Nolin, a manager in Concord General’s underwriting department, to

complain about Duhy’s “lack of timely response/reply/service.”5

Several days later, Berube reiterated his own concerns, as well

as those of his employees, in a meeting with Al Brack and Tracie

Wilson, two of Concord General’s marketing representatives.

According to Brack, “[Berube] advised that his people had

mentioned to him and Marty Thibodeau, the manager, that the

underwriter, Janet Duhy, was very slow to get back to people and

oftentimes [forgot] what they called for. He asked that he be

4 (Duhy Dep. 5 5 ) . 5 (Def.’s Mot. for Summ. J., Ex. B ) .

5 assigned a new underwriter . . . .” 6 Around this same time,

Concord General received similar complaints about Duhy from

employees at Bessey Insurance and Allied Insurance.7

In December, McLean spoke directly with employees at Eaton &

Berube and Bessey Insurance about the complaints. An Eaton &

Berube agent complained to McLean “that it sometimes took weeks

to get a response from [Duhy] and that when an agent called to

follow-up on a prior discussion [Duhy] would not recall the prior

conversation forcing the agent to go through everything again.”8

Bessey Insurance’s employee told McLean that Duhy “was difficult

to reach and that they would have to keep calling her to get a

response.”9 McLean discussed the negative feedback with Nolin,

but decided to wait until after the holidays to discuss the

matter with Duhy.10

6 (Def.’s Mot. for Summ. J., Ex. C ) . 7 (Def.’s Mot. for Summ. J., Ex. D; McLean Aff. ¶¶3 and 8 ) . 8 (McLean Aff. ¶4). 9 (Id.). 10 (See McLean Aff. ¶5).

6 C . Shingles

On Monday, January 9, 2006, Duhy was diagnosed with the

“shingles” virus. The diagnosing nurse practitioner excused Duhy

from work through the end of the week.11 Duhy relayed this

information to McLean, who passed it along to Concord General’s

human resources department. That week, the human resources

department sent Duhy a notice of her rights under the FMLA, along

with a cover letter stating: “Enclosed please find FMLA

paperwork that protects your job while you are out of work. We

were not sure how long you may be out so I thought I would send

this along should you need it.”12 Duhy was advised that, in the

event she sought to have her leave protected under the FMLA, her

health care provider would need to return a “medical

certification form of a serious health condition” by January 2 6 ,

2006.13 See

(a) (permitting employer to require

that a request for leave be supported by health care provider’s

certification).

11 (Def.’s Mot. for Summ. J., Ex. A , p . 4 ) . 12 (Def.’s Mot. for Summ. J., Ex. E , p . 1 ) . 13 (Def.’s Mot. for Summ. J., Ex. E , p . 3 ) .

7 The following Monday, Duhy called McLean to request an

additional week as “vacation just to get back up on my feet.”14

McLean quickly approved this request.15 Duhy also presented the

medical certification form to her nurse practitioner, who

notified Concord General that Duhy’s illness did not qualify as a

“serious health condition” within the meaning of the FMLA. See

§ 2611(11).

D . Concord General’s response to agents’ complaints

On January 2 5 , 2006, days after Duhy returned to work from

her two-week absence, McLean and Nolin met with her to discuss

“her job performance and health related stress issues.”16 After

discussing the “recent feed back from several of [Duhy’s] agents

indicating a less than favorable response time in her getting

back to their service requests,” which Duhy conveyed was “related

to ongoing health concerns by her doctor and the many tests she

has had to undergo as a result,” the parties “were able to key in

on a few areas where we think [Duhy] will be able to restructure

14 (Duhy Dep. 73). 15 According to Duhy, McLean mistakenly believed she “was out job hunting.” (Duhy Dep. 7 9 ) . 16 (McLean Aff. ¶9).

8 and make effort to change her work habits.”17 Concord General

provided Duhy with guidelines to follow to address these issues,

and decided that “at the end of 10-12 weeks, [Duhy, Nolin, and

McLean would] meet again.”18 Several days later, Duhy received

and initialed a corresponding plan of action and a memorandum

memorializing the substance of the meeting. Duhy then asked

McLean the names of the clients who had complained about her

performance. In a disclosure she would later regret, McLean

“mentioned Eaton & Berube, Bessey, and Allied as the primary

agents.”19

On February 3 , 2006, McLean spoke with Berube about Duhy.20

Berube expressed concern over an e-mail Duhy had sent to his

staff, the specific contents of which are not before the court.

Berube expressed displeasure because “his staff would [now] know

that [negative] feedback [had been] given and it could place them

in an uncomfortable position when communicating with [Duhy].”21

Early the following month, McLean met with Duhy and asked

“how her workload was and if some of the items [they] had 17 (Def.’s Mot. for Summ. J., Ex. H , p . 1 - 2 ) . 18 (Def.’s Mot. for Summ. J., Ex. H , p . 3 ) . 19 (McLean Aff. ¶ 1 1 ) . 20 (See Def.’s Mot. for Summ. J., Ex. F ) . 21 (McLean Aff. ¶ 1 2 ) .

9 identified [in the plan of action] were helpful . . . . Duhy

said things were better and that she was adjusting.”22 McLean

then reported to Nolin “that things were going well and that it

seemed like we had put [Duhy’s] performance issues behind us.”23

Nevertheless, Concord General decided to assign a new underwriter

to Eaton & Berube, a reassignment that Duhy viewed as a “good

thing” because, she said, Eaton & Berube’s agents were “not very

thorough” and “not one of the best agents to have.”24

E . Contacts with Eaton & Berube

On March 1 7 , 2006, Duhy e-mailed an Eaton & Berube agent:

I was made aware that your agency has a less than favorable rapport with me and requested a new underwriter. I was unhappy to hear that as I have tried to accommodate the best I could throughout the last 3 years while your agency has been reunderwriting and on a moratorium plan.25

The second quoted sentence from the e-mail was, in the context of

the business relationship, somewhere in the range between

22 (McLean Aff. ¶ 1 3 ) . 23 (Id.). 24 (Duhy Dep. 103-04). 25 (Def.’s Mot. for Summ. J., Ex. K ) .

10 passive-aggressive26 and overtly insulting. Duhy later

apologized to Berube for having sent this e-mail to one of his

employees.27 On April 1 4 , 2006, she sent an e-mail to a

different employee, stating:

I have to ask you a question as it has been bothering me immensely since I was made aware that your agency had less than a favorable relationship with me . . . . It was also mentioned that I did not make calls back to the agency or e-mails within a certain time frame. I was a little disappointed to hear that it was enough to request a new underwriter . . . . When I heard that [Berube] mentioned that he would no longer place insurance with Concord [General] if this wasn’t addressed, I was horrified to think how bad could I have been for someone to say that. Regrettably, I have been written up over this and to be honest this is the first time in my working career that this has happened to me and I have worked for some very large agencies. I just need to know for my own personal mental state of mind--was I really that dreadful of an underwriter to result in this decision? If you are not comfortable answering this I completely understand.28

Three days later, Duhy again contacted Berube about his

agents’ complaints. Nolin then spoke with Duhy about this

26 Passive-aggressive: “being marked by, or displaying behavior characterized by negative feelings, resentment and aggression in an unassertive way.” Merriam-Webster’s Medical Dictionary (2002). 27 (See Def.’s Mot. for Summ. J., Ex. L ) . 28 (Def.’s Mot. for Summ. J., Ex. M ) .

11 contact, and expressed his concern about her communicating with

Eaton & Berube employees about their complaints. After speaking

with Nolin, Duhy contacted Berube via e-mail:

I just wanted to say thank you for talking with me this AM. I really didn’t want to put you in the middle of things, but there are times in our lives that we have to ask questions when we need assistance. I did talk private [sic] with Mike Nolin regarding the issue and he will get back to me later. I do not believe he is very happy with me that I called you as he worries about the company relationship.

I want to apologize for the way you interpreted [the March 1 7 , 2006] e-mail that I sent to [Eaton & Berube]. I never in anyway meant to make you think that Concord [General] does not think of the agency with respect. That is not true . . . your agency is respected here at Concord [General] and I know that as I worked with you for three years.

Hopefully, that makes you feel better and I won’t e-mail anymore as I may upset my employer.29

Later that day, Nolin advised Paul Rocheford, Concord General’s

vice president of underwriting, about Duhy “having contacted Marc

Berube of [Eaton & Berube] following complaints agents had made

about her in November 2005.”30

29 (Def.’s Mot. for Summ. J., Ex. L ) . 30 (Rocheford Aff. ¶ 2 ) .

12 Troubled by Duhy’s repeated contacts with Eaton & Berube,

Rocheford met with Duhy the next day.31 Rocheford recalls that

Duhy “kept insisting that the memorandum that [McLean] had

written in January 2006 was a ‘personal attack’ on her and that

[McLean] had lied to her.”32 Later that afternoon, Duhy e-mailed

a co-worker to relay the contents of her meeting with Rocheford:

Paul Rocheford called me into his office and he is extremely disappointed with me because I talked with Marc Berube regarding the statements [McLean] made against me . . . he thinks I am over reacting to my write u p , over reacting to having them call me while I was on vacation to review my work performance, and he is sure that I miss [sic] understood [McLean] . . . and he isn’t sure if we will be able to go forward I 33 guess I had no right to defend myself.

Following his meeting with Duhy, and after further investigation,

Rocheford made the decision to terminate Duhy. His affidavit,

submitted by Concord General in support of its summary judgment

motion, specified four reasons:

• “inappropriate and disruptive behavior,”

• “inappropriate contacts with employees of [Eaton & Berube] about complaints first made about her in November 2005,”

31 (Id.). 32 (Rocheford Aff. ¶ 3 ) . 33 (Def.’s Mot. for Summ. J., Ex. N ) .

13 misinterpretation of comments made by McLean, and

• “overreact[ion] to . . . a reasonable response to the complaints that had been made about her by a number of agents.”34

According to Rocheford, his decision to terminate Duhy “had

nothing to do with any medical problem she may have had or

thought she had, any disability or perceived disability, or any

absence from work.”35

III. ANALYSIS

In employment discrimination cases where there is no direct

evidence of discrimination, whether brought under the FMLA or

ADA, courts apply the burden shifting framework established in

McDonnell Douglas Corp. v . Green,

(1973). 36 See

Hodgens v . Gen. Dynamics Corp.,

5 1 , 160 (1st Cir. 1998)

(FMLA claims); Patten, 300 F.3d at 24-25 (ADA claims). Under

that framework, the plaintiff must first establish a prima facie

34 (Rocheford Aff. ¶4). 35 (Rocheford Aff. ¶5). 36 Duhy argues that the McDonnell-Douglas burden shifting analysis is inapplicable to this case, and a “mixed-motive” analysis applies, because she has presented the court with direct evidence of employment discrimination. See Patten v . Wal-Mart Stores E . , Inc.,

1 , 24 (1st Cir. 2002). Based on the court’s review of the record, there is none.

14 case of discrimination. See Thompson v . Coca-Cola Co.,

(1st Cir. 2008).

Establishing a prima facie case “creates a presumption of

discrimination, shifting the burden to the employer to articulate

a legitimate, non-discriminatory reason” for the adverse

employment action. Billings v . Town of Grafton,

9 , 55

(1st Cir. 2008); see also Reeves v . Sanderson Plumbing Prods.,

Inc.,

(2000) (noting that the employer’s “burden is

one of production, not persuasion; it can involve no credibility

assessment”). If the employer creates a genuine issue of

material fact, the presumption of discrimination “drops from the

case” and the burden shifts back to the plaintiff to “show that

the employer’s stated reason for [the challenged action] was in

fact a pretext” for discrimination. Billings,

5 .

“After plaintiff and defendant bear their preliminary burdens,

plaintiff bears the ultimate burden of proving that the alleged

discriminatory action was the determining factor in an adverse

employment action.” Patten,

.

A . FMLA retaliation

“The FMLA contains two distinct types of provisions: those

establishing substantive rights and those providing protection

for the exercise of those rights.” Colburn v . Parker

15 Hannifin/Nichols Portland Div.,

(1st Cir.

2005). Chief among the substantive rights granted by the FMLA is

the right for an eligible employee to take up to twelve weeks of

unpaid medical leave each year due to a serious health condition

that renders the employee unable to perform the functions of her

position. See

(a)(1)(D).37 In order to protect

the exercise of that right, the FMLA makes it unlawful for an

employer to discriminate or retaliate against an employee who

takes, or attempts to take, medical leave protected by the

statute. See

§ 2615(a)(1)-(2); Hodgens,

.

Duhy alleges such retaliation, contending that Concord General,

unhappy that she had taken time off to deal with her medical

problems, and fearful that she may take additional leave,

terminated her employment.

To establish a prima facie case of FMLA retaliation, a

plaintiff must show that (1) she engaged in a “protected action;”

(2) she “suffered an adverse employment action;” and (3) “there

was some possibility of a causal connection between the

employee’s protected activity and the employer’s adverse

employment action, in that the two were not wholly unrelated.”

37 Protected medical leave need not be taken all at once, but may be taken intermittently “when medically necessary.” Hodgens,

(quoting

(b);

).

16 Colburn,

n.10. Here, Duhy’s prima facie case

never gets out of the starting blocks; she never took “protected

action” as that term is used under the FMLA.

In order for an employee’s time off to be protected by the

FMLA, the employee’s leave must fall into one of four enumerated

categories: (a) childbirth; (b) foster care placement or

adoption; (c) caring for immediate family with a serious health

condition; or (d) the employee’s serious health condition. See

(a)(1). Duhy brings her claim under the fourth

category; she contends that she suffered from a serious health

condition rendering her unable to perform the functions of her

position as an underwriter. But an employee requesting FMLA

leave due to a serious health condition must in fact suffer from

such a condition. See

§ 2612(a)(1)(D). Such an employee’s

inability to present evidence that her medical problem

constitutes a serious health condition renders the resulting

leave unprotected under the FMLA, and is fatal to the required

prima facie showing. See Greenwald v . Tambrands, Inc.,

(D. M e . 2005) (noting that a prima facie case

of FMLA retaliation fails where the plaintiff did not suffer from

a serious health condition).

Without expounding on what it means to suffer from a serious

health condition, it suffices to say that Duhy did not. First,

17 and most important, Duhy fails to present any evidence that

either her leg pain or shingles virus amounted to a serious

health condition entitling her to FMLA leave. See

(11) (defining “serious health condition”). Specifically,

there is no evidence before the court that her health problems

involved “inpatient care” or “continuing treatment by a health

care provider,” which, at the FMLA’s broadest level of

generality, are the standards used to determine whether an

“illness, injury, impairment, or physical or mental condition”

amounts to a serious health condition. See

§§ 2611(11)(A)

and ( B ) .

Further, Duhy presents no authority for the proposition she

asks the court to adopt: that a plaintiff who is not entitled to

FMLA leave may nonetheless maintain an FMLA retaliation claim

based on her attempts to seek FMLA protection. Contra Greenwald,

; Schmittou v . Wal-Mart Stores, Inc., N o .

Civ. 011763,

, at *7 (D. Minn. Aug. 2 2 , 2003)

(plaintiff “was not eligible for leave under the FMLA, so it was

impossible for her to engage in any activity protected by the

statute”); Rogers v . Bell Helicopter Textron, Inc., N o . 99-CV-

988-R,

, at *3 (N.D. Tex. Aug. 1 7 , 2000) (same).

Second, Duhy’s own health care provider concluded that

Duhy’s medical issues did not amount to a serious health

18 condition. As is permitted under the FMLA, Concord General

required that Duhy’s request for leave “be supported by a

certification issued by [her] health care provider.”

(a). Concord General informed Duhy of this requirement

when it provided her with FMLA paperwork on January 1 1 , 2006, and

in its employee handbook.38 The nurse practitioner chosen by

Duhy to perform this assessment, who was uniquely qualified to

address her medical issues, concluded that Duhy’s situation was

“not a serious health condition.”39

Finally, Duhy cannot bootstrap her prima facie case by

arguing that, due to her delayed disclosure that she did not

suffer from multiple sclerosis or Parkinson’s Disease, Concord

General “regarded” her as suffering from a serious health

condition. Even assuming that Concord General erroneously

regarded her as suffering from a serious health condition--a

proposition for which there is no evidence--the FMLA, unlike the

ADA, does not provide for claims based on an employer’s mistaken

38 (See Def.’s Mot. for Summ. J., Ex. O , p . 2 4 ) . Concord General’s employee handbook notifies employees that “[w]hen the leave is due to a serious health condition, a physician’s or practitioner’s written statement or certification concerning the serious health condition . . . will be required prior to commencement of the leave, or in cases or emergency, within 15 days after the commencement of the leave.” 39 (See Def.’s Mot. for Summ. J., Ex. E , p . 5 ) .

19 perception of its employee’s health. Compare

et

seq., with

(3) (recognizing ADA claim where

plaintiff is “regarded as” disabled), and infra Part III.B. Duhy

provides no authority to the contrary. Furthermore, recognizing

a “regarded as” claim here would allow Duhy to benefit from her

failure to disclose to Concord General that, despite what she had

initially told i t , the pain in her calf was not attributable to

multiple sclerosis or Parkinson’s disease; indeed, her

neurologist had ruled out both of these serious conditions by the

middle of December 2005.

Because she did not suffer from a “serious health condition”

as required and defined by the FMLA, her leave to address her

temporary, short-lived health issues did not constitute

“protected action.” Colburn,

n.10. This is

fatal to her required prima facie showing. Summary judgement is

therefore granted to Concord General on Duhy’s claim of FMLA

retaliation.

B . ADA disability discrimination

The ADA provides that no covered employer “shall

discriminate against a qualified individual with a disability

because of the disability . . . .”

(a); see

also RSA § 354-A:7 (using similar language). Duhy’s claim--

20 clarified at oral argument--is not that Concord General

discriminated against her on the basis of an actual disability,

but rather that Concord General mistakenly “regarded” her as

disabled, and terminated her employment on the basis of that

erroneous belief. Specifically, Duhy argues that she had an

actual, nonlimiting impairment (i.e., the shingles virus) that

Concord General mistakenly believed impaired her ability to work

as an underwriter. See Sullivan v . Neiman Marcus Group, Inc.,

1 0 , 117 (1st Cir. 2004); infra Part III(B)(1).

1 . Prima facie case

In order to establish a prima facie case of ADA employment

discrimination, a plaintiff must show: “(1) that she was

‘disabled’ within the meaning of the ADA; (2) that she was able

to perform the essential functions of her job with or without

accommodation; and (3) that she was discharged or adversely

affected, in whole or in part, because of her disability.” Ruiz

Rivera v . Pfizer Pharm., LLC,

6 , 82 (1st Cir. 2008).

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.”

21

(2). 40 In order to show that Concord General

regarded her as disabled, Duhy must either show that (1) though

she was not impaired at all, Concord General mistakenly believed

that she had an impairment that substantially limited a major

life activity; or (2) she had an actual, nonlimiting impairment

that Concord General mistakenly believed was substantially

limiting. See Sullivan,

. Duhy explained at oral

argument that her claim is the latter type--that Concord General

mistakenly believed that her actual ailment (shingles)

substantially limited her ability to work.

Unfortunately for Duhy, there is no evidence that anyone at

Concord General ever regarded her as disabled within the meaning

of the ADA. As she conceded at oral argument, the only evidence

in the record on this point is the plan of action issued to her

40 Although the ADA Amendments Act of 2008, Pub. L . N o . 110- 325,

(2008), changed the evaluation of ADA claims and the definition of the term “disability” under the ADA, its provisions, by their own terms, did not become effective until January 1 , 2009. When a case implicates a federal statute enacted after the events in a suit, that statute will not be construed to have a retroactive effect absent clear congressional intent. See Landgraf v . USI Film Prods.,

4 4 , 245 (1994) (declining to retroactively apply the 1991 amendments to Title VII case). Accordingly, this court applies the ADA as it existed when the complained-of acts occurred. See, e.g., E.E.O.C. v . Agro Distrib., LLC,

6 2 , 469 n.8 (5th Cir. 2009); Kiesewetter v . Caterpillar, Inc.,

5 0 , 851 (7th Cir. 2008); Fournier v . Payco Foods Corp., N o . 07-1667,

, at *5 n.9 (D.P.R. May 1 , 2009).

22 in February 2006. But this evidence fails to address what, if

any, mistaken perceptions Concord General entertained about the

limiting effect the shingles virus had on her ability to work.

Rather, the plan of action demonstrates, at most, that Concord

General was aware Duhy was under stress--which she attributed to

her ongoing health concerns, overwhelming workload, and lengthy

commute--and that Duhy (not Concord General) believed that this

stress (and not the shingles) impaired her ability to make

efficient decisions at work. The record is bereft of evidence,

circumstantial or otherwise, demonstrating that Concord General

mistakenly attributed her poor work performance to the shingles

virus.

Further, Duhy fails to make the “weighty showing” required

to establish an ADA claim where the claimed major life activity

is the plaintiff’s ability to work. See Bailey v . Ga.-Pac.

Corp.,

(1st Cir. 2002).

When working is the major life activity at issue, a plaintiff must demonstrate not only that the employer thought that [s]he was impaired in [her] ability to do the job that [s]he held, but also that the employer regarded [her] as substantially impaired in either a class of jobs or a broad range of jobs in various classes as compared with the average person having comparable training, skills and abilities.

23 Ruiz Rivera,

(internal quotation marks omitted).

“This demonstration generally requires the introduction of

evidence on the accessible geographic area, the numbers and types

of jobs in the area foreclosed due to the impairment, and the

types of training, skills, and abilities required by the jobs.”

Sullivan,

(internal quotation marks omitted).

Here, Duhy fails to raise a genuine issue of material fact that

Concord General regarded her as unable to perform a class of jobs

or a broad range of jobs in various classes; indeed, she fails to

even mention the “broad range of jobs” requirement other than the

cursory and wholly unsupported allegation that Concord General

believed that the shingles virus “precludes [her] from a broad

range of jobs.”41 “[C]onclusory allegations, improbable

inferences, and unsupported speculation,” are insufficient to

defeat a properly supported motion for summary judgment. See

Benoit v . Tech. Mfg. Corp.,

(1st Cir. 2003).

2 . Pretext

Even assuming arguendo that Duhy was able to establish a

prima facie case, she fails to show that Concord General’s

proffered justification for her termination--which she conceded

41 (Pl.’s Opp’n to Def.’s Mot. for Summ. J. 2 2 ) .

24 at oral argument sustained the employer’s burden under the

McDonnell-Douglas framework--was pretextual. See Reeves,

(evidence of pretext is such that a “trier of fact

can reasonably infer from the falsity of the explanation that the

employer is dissembling to cover up a discriminatory purpose”).

“In assessing pretext, the court must look at the total package

of proof offered by the plaintiff.” Tobin, 433 F.3d at 105.

Duhy’s proof “has to clear two significant hurdles before

[s]he is able to show pretext.” Id. First, she must refute

Concord General’s evidence showing that it was her inappropriate

contacts with clients, and not disability, that constituted the

real reason for her termination. See id. Second, she must

present evidence of her own showing that Concord General’s

“asserted reason was a pretext hiding discrimination.” Id. Duhy

fails to clear either of these hurdles.

Concord General provides a well-documented account of Duhy’s

repeated communications with several of the agencies that

complained about her performance. This evidence shows that:

(1) some of Concord General’s clients viewed Duhy as slow to respond to their inquiries;

(2) these clients complained to Concord General about her performance;

(3) Duhy contacted several of these clients to contest their complaints in ways that were, in their best light,

25 distracting, and in their worst light, annoying, off- putting, and even insulting; and

(4) after becoming aware that at least some of her superiors at Concord General would be upset if she continued to contact unhappy clients, she contacted Eaton & Berube about its complaints anyway.

Duhy has done nothing to refute this evidence.

Nor does Duhy produce affirmative evidence to establish that

Concord General’s stated reason for terminating her employment

was merely a pretext to disguise discrimination. Instead, she

argues that the temporal proximity between her time off from work

and her termination give rise to an inference of pretext. While

protected conduct closely followed by adverse action may justify

an inference of retaliatory motive, temporal proximity standing

alone is not enough to establish pretext. See Wright v . CompUSA,

Inc.,

7 2 , 478 (1st Cir. 2003) (“chronological proximity

does not by itself establish causality, particularly if the

larger picture undercuts any claim of causation”). Duhy fails to

submit any credible evidence to augment her pretext argument.

As opposed to establishing pretext, the evidence shows that,

prior to the events precipitating her termination (i.e., her

repeated contacts with insurance agencies that complained about

her performance), Concord General regarded Duhy as capable of

continuing to work as a personal lines underwriter; took steps to

help her address the problems she was having with clients;

26 replaced her as the underwriter for Eaton & Berube, the agency

that complained the most about her responsiveness; observed her

performance gradually improve; and remained optimistic “that if

[Duhy] applies herself she can bring her performance issues back

up to the appropriate expectation levels.” No discernable

evidence in the record demonstrates that Duhy’s termination was

for any reason other than her inappropriate contacts with Concord

General’s clients and the performance deficiencies giving rise to

those contacts. This lack of evidence of pretext, coupled with

her failure to establish a prima facie case, entitles Concord

General to summary judgment on Duhy’s ADA discrimination claim.

C . Wrongful discharge

Under New Hampshire law, a plaintiff alleging wrongful

discharge must establish that (1) her employer was motivated by

bad faith, retaliation or malice; and (2) she was terminated

because she performed acts that public policy would encourage or

refused to perform acts that public policy would condemn. See

Lacasse v . Spaulding Youth Ctr.,

(2006). “The

first prong focuses on the nature of the employer’s actions,

while the public policy prong pertains to the employee’s acts.”

Antonis v . Electronics for Imaging, Inc., N o . 07-cv-163-JL, 2008

, at *3 (D.N.H. Nov. 2 5 , 2008) (citing Porter v . City

of Manchester,

0 , 39 (2004)).

Duhy contends that Concord General wrongfully terminated her

employment in retaliation for her “obtaining medical treatment,

taking time off for illness, and allowed use of vacation, sick

and other time, as well as processing her medical bills through

health insurance provided by the employer . . . .” 4 2 Concord

General responds with the following three arguments: (1) Duhy’s

common law claim is superseded by the FMLA; (2) that, as a

general proposition, there is no public policy protecting the

conduct for which Duhy claims she was terminated; and (3) even if

there were such a public policy, there is no evidence that Duhy

was fired for engaging in conduct involving that public policy.

Concord General first argues that Duhy’s wrongful discharge

claim is superseded by the FMLA because that statute was intended

to provide a cause of action to employees retaliated against for

taking protected medical leave. See Murdy v . Nashua School

Dist., N o . 05-cv-175-PB,

, at *3 (D.N.H. Dec. 1 9 ,

2006) (noting that “a plaintiff may not pursue a common law

remedy where the legislature intended to replace it with a

statutory cause of action”). While an accurate statement of the

42 (Compl. ¶49).

28 law, this argument fails to carry the day for Concord General

because Duhy’s wrongful discharge claim extends beyond the

protections afforded by the FMLA. In addition to arguing that

Concord General terminated her for taking FMLA leave, Duhy

alleges that she was fired for taking vacation time and

processing medical bills through her employer’s health insurance

policy. Thus, only so much of Duhy’s complaint that alleges she

was terminated for taking protected medical leave is superseded

by the FMLA. See

The remainder of Duhy’s wrongful discharge claim ultimately

founders because she fails to persuade the court that New

Hampshire law recognizes the public policies she has suggested.

“Although ordinarily, the issue of whether a public policy exists

is a question for the jury, at times the presence or absence of

such a public policy is so clear that a court may rule on its

existence as a matter of law and take the question away from the

jury.” Short v . School Admin. Unit N o . 1 6 ,

6 , 84

(1992) (internal citation omitted). This is such a time. Duhy

presents no authority--under New Hampshire law or elsewhere--or

convincing argument supporting her claim that, as a broad

proposition, public policy encourages employees to take vacation

days or file health insurance claims through the policy offered

by their employer. While there undoubtedly are specific

29 circumstances where public policy could encourage employees to

engage in the activities offered by Duhy (e.g., obtaining medical

treatment to address a highly contagious virus), there are myriad

scenarios where public policy would not (e.g., malingering,

taking excessive vacation, filing bogus insurance claims). Based

on a review of all the evidence in this case, viewed in the light

most favorable to Duhy, the court cannot conclude, and New

Hampshire law has not held, that there is a public policy

encouraging employees to engage in the sort of conduct for which

Duhy alleges she was fired.

But even if the court were to assume, without deciding, that

there were public policies encouraging an employee to take

vacation and file insurance claims, there is no evidence that

Duhy was terminated for engaging in any conduct encouraged by

those policies. Rather, as already discussed at length, the

evidence instead shows that Concord General terminated Duhy’s

employment for inappropriate contacts with clients and a general

lack of responsiveness to their inquiries. See Part III.B.2.

Because Duhy has failed to persuade the court that New

Hampshire law recognizes the public policies she has suggested,

or that there is any evidence to support an inference that she

was terminated for public policy-encouraged conduct, the court

finds that she has failed to establish her prima facie case.

30 Concord General, therefore, is entitled to summary judgment on

Duhy’s wrongful discharge claim.

IV. CONCLUSION

For the foregoing reasons, Concord General’s motion for

summary judgment43 is GRANTED in its entirety. The clerk is

ordered to enter judgment accordingly and close the case.

SO ORDERED.

____ ep _____ L __ lante Jo ited States District Judge

Dated: June 1 0 , 2009

cc: Leslie H . Johnson, Esq. William D. Pandolph, Esq.

43 Document n o . 1 0 .

31