Hughes v . Southern NH Services, Inc. 11-CV-516-SM 11/26/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Patricia Hughes, Plaintiff

v. Case N o . 11-cv-516-SM Opinion N o .

Southern New Hampshire Services, Inc., Defendant

O R D E R

Plaintiff, Patricia Hughes, brings this action against her

former employer, Southern New Hampshire Services, Inc. (“SNHS”),

seeking damages for alleged acts of discrimination. More

specifically, she says SNHS violated the Americans with

Disabilities Act (“ADA”) by failing to reasonably accommodate her

disability: type 1 diabetes. She also advances numerous claims

under state statutory and common law. SNHS moves for summary

judgment, asserting that there are no genuinely disputed material

facts and claiming it is entitled to judgment as a matter of law.

That motion is granted in part, and denied in part.

Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party’s favor.” Griggs-Ryan v . Smith,

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it

is ‘genuine’ if the parties’ positions on the issue are supported

by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted).

Nevertheless, if the non-moving party’s “evidence is merely

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

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

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

, 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the non-

movant’s ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(c). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore a party’s

bald assertions, unsupported conclusions, and mere speculation.

See Serapion v . Martinez,

(1st Cir. 1997). See

also Scott v . Harris,

(2007).

2 Background

SNHS was established in 1965 and serves as the Community

Action Partnership for Hillsborough County, under the Economic

Opportunity Act of 1964. It operates pre-school programs and

child care centers, serving approximately 30 New Hampshire

communities, and is subject to the Federal Head Start Performance

Standards and the New Hampshire Child Care Program Licensing

Rules.

In September of 2007, SNHS hired Hughes as a preschool

teacher in the Silver One classroom, in Manchester, New

Hampshire. Hughes suffers from type 1 diabetes, and requires a

strict diet and insulin injections 15 minutes prior to any meals.

She also requires insulin testing five to eight times each day.

Nevertheless, as part of the hiring process, Hughes completed a

disclosure form for new employees, in which she certified that

she did not need any special accommodations to perform the

position for which she was hired. See New Employee Information

Form (document n o . 1 5 - 8 ) .

Hughes’s claims against SNHS center on her special dietary

needs. Consequently, of particular relevance to this proceeding

are those federal regulations and Head Start programming

guidelines governing the manner in which children and their

3 teachers participate in mealtime interactions. For example, the

Head Start programming guidelines require teachers to “set good

examples by demonstrating a positive attitude toward all foods

served.” Head Start Programming Guidelines at 111, Exhibit 2 to

Defendant’s Memorandum (document n o . 1 5 - 4 ) . Pertinent federal

regulations require that “all toddlers and preschool children and

assigned classroom staff, including volunteers, eat together

family style and share the same menu to the extent possible.”

(c)(4). Those regulations also require SNHS to

comply with “all applicable Federal, State, Tribal, and local

food safety and sanitation laws, including those related to the

storage, preparation and service of food and the health of food

handlers.”

at § 1304.23(e)(1). Given those regulations and

guidelines, and to avoid safety, allergy, and sanitation

problems, SNHS says it does not allow “outside food” - that i s ,

food not prepared in its kitchens - to be brought into the

classrooms or consumed in front of the children during their

mealtimes.

Hughes claims that, because she suffers from type 1

diabetes, she is disabled within the ADA’s meaning, and,

therefore, entitled to reasonable accommodations. She says SNHS

violated the ADA when, first, it denied her requests for

reasonable accommodations and, again, when it terminated her

4 employment in retaliation for having made such requests. She

also advances several state law claims of unlawful

discrimination, retaliation, wrongful termination, and

intentional infliction of emotional distress.

Discussion

Turning first to Hughes’s federal claims, she advances three

distinct causes of action. First, she says SNHS intentionally

discriminated against her on the basis of her disability and

unlawfully terminated her employment (count 5 ) . Next, she says

SNHS failed to reasonably accommodate her disability (count 6 ) .

And, finally, she claims SNHS unlawfully retaliated against her

(by terminating her employment) after she requested reasonable

accommodations for that disability (count 7 ) .

With regard to her “failure to accommodate” claim, Hughes

complains that, during the children’s lunch break, she was not

permitted to eat meals that she had prepared at home. She claims

to have “made two requests for accommodation during her

employment.” Plaintiff’s memorandum (document n o . 19-1) at 4 .

In January of 2008, Hughes says she “first requested to bring her

own meals from home into the classroom, consistent with a meal

plan prescribed by her doctor.” Id. But, she never provided any

such medically prescribed meal plan, and she claims “management

5 responded that no outside food should be brought into the

classroom.” Id. She says, “[i]n the alternative, plaintiff

requested that defendant’s kitchen prepare low carbohydrate

meals, which would not be considered outside food.” Id. But,

she claims SNHS responded by saying that although it accommodates

special dietary needs of the children, it does not prepare

special meals for its teachers. Id. at 5 .

As to her retaliation and wrongful termination claims under

the ADA, Hughes asserts that a day or two after she made her

second request for accommodation from SNHS, she was fired. She

says there was a direct causal connection between her requests

for accommodation and SNHS’s decision to fire her, and claims

that decision amounted to unlawful, disability-based

discrimination.

I. The ADA and Diabetes.

SNHS’s first line of defense to Hughes’s ADA claims is

straightforward: because her type 1 diabetes is well-controlled

through medication and diet, it does not “substantially limit” a

major life activity (i.e., eating). Accordingly, says SNHS,

Hughes is not disabled within the meaning of the ADA. On this

record and given the parties limited briefing of the issue, the

court cannot agree.

6 The ADA prohibits covered employers from discriminating

against qualified individuals with a disability.

(a). A person is “disabled” under the ADA if he or she

suffers from a “physical or mental impairment that substantially

limits one or more major life activities.”

(1)(A). A “qualified individual” is one “who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds

or desires.”

at § 12111(8). Under the ADA, unlawful

discrimination includes “not making reasonable accommodations to

the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or

employee, unless . . . the accommodation would impose an undue

hardship on the operation of the business.” Id. at

§ 12112(b)(5)(A).

In 2008, the ADA Amendments Act altered several provisions

of the ADA. One of the goals of those amendments was to “reject

the requirement enunciated by the Supreme Court in Sutton v .

United Air Lines, Inc.,

(1999) and its companion

cases that whether an impairment substantially limits a major

life activity is to be determined with reference to the

ameliorative effects of mitigating measures.” See Pub.L. N o .

110-325, sec. 2(b)(2),

(emphasis supplied)

7 (codified at

(4)(E) (2008)). Consequently, “the

question of whether an individual’s impairment is a disability

under the ADA [no longer] demand[s] extensive analysis.”

Consistent with those statutory amendments, the relevant

regulations now provide that:

Applying the principles set forth in [this section], the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under paragraphs (g)(1)(i) (the “actual disability” prong) or (g)(1)(ii) (the “record of” prong) of this section. . . . .

For example, applying the principles set forth [in this section], it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: . . . diabetes substantially limits endocrine function; . . . .

(j)(3) (emphasis supplied).

As noted above, SNHS’s assertion that Hughes is not disabled

is based entirely on “reference to the ameliorative effects of

mitigating measures” she takes - that i s , a restricted diet and

insulin injections. Plainly, however, that approach was

abrogated by the recent amendments to the ADA.

(4)(E)(ii).

8 The amendments to the ADA went into effect on January 1 ,

2009 - at approximately the midpoint of Hughes’s employment at

SNHS. But, like most courts that have addressed the issue, the

Court of Appeals for the First Circuit has concluded that the

amendments are not retroactive. Carreras v . Sajo, Garcia &

Partners,

5 , 33 n.7 (1st Cir. 2010). See also Valle-

Arce v . P.R. Ports Auth.,

, 198 n . 5 (1st Cir. 2011)

(“The ADA Amendments Act of 2008, which broadened the scope and

protections of the ADA, does not apply to this case. That act

does not apply retroactively to conduct that occurred before its

effective date of January 1 , 2009.”) (citation omitted). Neither

party has discussed those amendments to the ADA, nor has either

addressed their effect on the court’s determination of whether

Hughes i s , in fact, disabled under the ADA.1

S o , for purposes of addressing defendant’s motion for

summary judgment, the court will assume that Hughes is disabled

under the ADA and was, therefore, entitled to reasonable

accommodations.

1 The judicial opinions on which SNHS relies, including Carreras, supra, and Aponte-Navedo v . Nalco Chemical, Inc.

(D.P.R. 2012), are of little persuasive value. The courts in those cases specifically noted that the amendments did not apply because the conduct in question occurred prior to January 1 , 2009. Here, at least some of the conduct of which Hughes complains occurred after the amendments went into effect.

9 II. Failure to Accommodate.

Unless an employer knows, or reasonably should know, that an

accommodation is necessary, the employee must explicitly request

one.

An accommodation request must be sufficiently direct and specific, and it must explain how the accommodation is linked to plaintiff’s disability. The obligation is on the employee to provide sufficient information to put the employer on notice of the need for accommodation. This means not only notice of a condition, but of a causal connection between the major life activity that is limited and the accommodation sought.

Jones v . Nationwide Life Ins. Co.,

8 , 89 (1st Cir.

2012) (citations and internal punctuation omitted). And, of

course, it is well-established that when an employee is entitled

to a reasonable accommodation, she is not necessarily entitled to

the accommodation of her choosing. See, e.g., E.E.O.C. v . Sears

Roebuck & Co.,

(7th Cir. 2005) (“It is the

employer’s prerogative to choose a reasonable accommodation; an

employer is not required to provide the particular accommodation

that an employee requests.”); Trepka v . Bd. of Edu.,

(6th Cir. 2002) (“The employer need not provide

the accommodation that the employee requests or prefers.

Instead, the employer retains the ‘ultimate discretion’ to choose

another effective accommodation, even if less expensive or easier

to provide.”).

10 Here, Hughes signed a document at the start of her

employment in which she represented that she did not require any

special accommodations to perform the position for which she was

hired. See New Employee Information Form (document n o . 1 5 - 8 ) .

It was, then, incumbent upon her to directly and specifically

request an accommodation if one became necessary. She claims to

have requested two different accommodations, both of which were

rejected. First, she asked SNHS to allow her to prepare her own

meals at home and then eat them with the children during their

lunch break. When that request was denied, she says she asked

that the kitchen prepare low-carbohydrate meals for her. That

request was also denied.

But, says SNHS, it did reasonably accommodate Hughes’s

special eating and dietary needs: it permitted her to eat her

meals - food that she had prepared at home - in the staff break

room, apart from the children. See, e.g., Deposition of Patricia

Hughes (document n o . 15-26) at 27-28, 5 9 , 103, 108, 113. And, as

Hughes’s own expert opined, that is precisely the type of

“reasonable accommodation” that would be appropriate for someone

with Hughes’s medical condition. Plaintiff’s Answers to

Interrogatories (document n o . 15-27) at 17 (“Reasonable

accommodations for the needs of a person with diabetes do not

have to disrupt the entire work place. Examples of such

11 reasonable accommodations could include providing her with a list

[of] known and suspected allergens with instructions to not bring

them to the workplace, allowing her to eat her meal apart from

the children in the kitchen setting, or having kitchen staff

prepare a suitable meal to her needs.”) (emphasis supplied).

SNHS also points out that Hughes testified (and her expert

reported) that Hughes’s co-workers were aware of her condition

and whenever she experienced hypoglycemic symptoms, her co-

workers covered for her and she was able to “go to the kitchen

and the classroom and do what [she] needed to do.” Hughes

Deposition at 120. Hughes also testified that she always had

access to her glucose pills and testing equipment, she was never

prevented from performing whatever testing she felt was necessary

or appropriate, and she was never prevented from taking whatever

remedial measures she needed. See, e.g., Id. at 120, 137.

Given that SNHS allowed Hughes to eat meals that she had

prepared for herself (rather than those prepared for staff and

children in the school’s kitchen) and allowed her to take those

meals apart from the children, in the staff break room (precisely

one of the accommodations recommended by Hughes’s own expert), it

appears that the real substance of her failure-to-accommodate

claim is this: during the children’s lunch break, SNHS required

12 Hughes to sit with the children, expected that she would take

servings of the food that had been prepared for the children, and

did not allow her to eat a special meal that she had prepared for

herself at home during the childrens’ mealtime.

As noted above, however, Hughes was not required to eat any

of the food prepared for the children; she was merely required to

present a “positive attitude” toward that food. But, she claims

that requiring her to sit with the children and then “putting

high carbohydrate foods in front of her was like putting beer in

front of an alcoholic.” Plaintiff’s Objection at 1 3 . See also

Id. at 15 (“Hughes informed defendant’s management continuously

of her diabetic condition which prevented her from eating the

meals high in carbohydrates. She also informed Jessica Emond and

Carrie Marshall, Education Disabilities Managers, that she was a

diabetic and could not participate in the meals served.”); Hughes

Deposition at 108 (acknowledging that “the issue from [Hughes’s]

perspective is that [she] was not allowed to bring outside food

into the classroom.”).

While Hughes may have found that sitting with the children

during their lunch break was inconvenient or even unpleasant,

requiring her to do so did not run afoul of the ADA. The

accommodations SNHS afforded Hughes were entirely reasonable.

13 Accordingly, the record evidence supports SNHS’s claim that, as a

matter of law, it provided Hughes with all to which she was

entitled under the ADA: a reasonable accommodation of her type 1

diabetes (though not necessarily the accommodation she would have

preferred). SNHS i s , then, entitled to summary judgment on count

6 of Hughes’s complaint.

III. Unlawful Retaliation.

As to Hughes’s assertions of unlawful termination (count 5 )

and retaliation (count 7 ) under the ADA, the record does not

support such claims.

The ADA’s retaliation provision states that “[n]o person

shall discriminate against any individual because such individual

has opposed any act or practice made unlawful by this chapter.”

(a). For purposes of that provision, seeking an

accommodation is protected conduct. Freadman v . Metro. Prop. &

Cas. Ins. Co.,

1 , 106 (1st Cir. 2007). To establish a

retaliation claim under the ADA, Hughes “must show that: (1) she

was engaged in protected conduct; (2) suffered an adverse

employment action; and (3) there was a causal connection between

the protected conduct and the adverse action.” Colon-Fontanez v .

Municipality of San Juan,

7 , 36 (1st Cir. 2011). If

Hughes is able to make out a prima facie case of unlawful

14 retaliation, “the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its employment decision.

The employer’s burden is one of production, not persuasion.”

Carreras,

(citations and internal punctuation

omitted).

Assuming Hughes has made out a prima facie case, SNHS has

responded with a non-discriminatory reason for terminating her

employment: “recurring performance issues.” Affidavit of Susan

Will, Exhibit 1 to Defendant’s Memorandum (document n o . 15-3) at

para. 9. See also Exhibits 9 through 20 (Hughes’s performance

appraisals and Supervision Summary Sheets which, although

positive in many respects, document ongoing issues with improper

distribution of classroom materials, trouble separating personal

and work issues, and problems relating to interacting with the

children in the manner prescribed by SNHS). S o , the burden

reverts to Hughes to point to record evidence sufficient to

permit a reasonable jury to conclude that SNHS’ proffered

explanation is merely a pretext for unlawful discrimination and

that her employment was actually terminated in retaliation for

having sought reasonable accommodation of her disability. She

has failed to do s o .

15 The evidence upon which Hughes relies i s : (1) the temporal

proximity between her meeting with human resources on June 9, and

her termination two days later; and (2) a vague suggestion that

“Defendant’s assertion that Hughes’ termination was discussed

[prior to her meeting with human resources] is suspicious at

best.” Plaintiff’s memorandum at 19-20. While temporal

proximity between protected conduct and an adverse employment

action can give rise to an inference of causation that is

sufficient to make out a prima facie case of discrimination, it

is not, without more, sufficient in this case to permit a trier-

of-fact to conclude that Hughes was the victim of unlawful

discrimination. See, e.g., Alvarado v . Donahoe,

(1st Cir. 2012) (“As the [employer] has articulated a

legitimate reason for [its] decision to suspend Alvarado,

Alvarado bears the ultimate burden to show that this reason is in

fact a pretext and that the job action was the result of

retaliatory animus. With the exception of underscoring that he

received his suspension a week after filing EEO charges against

Ríos, Alvarado does not present any arguments or evidence that

would allow us to conclude that his employer’s stated legitimate

reason masked retaliatory motives. Accordingly, Alvarado’s

reliance on any temporal proximity between his January 2008 EEO

activity and his suspension is unavailing.”).

16 Moreover, Hughes’s “suspicion” that she was terminated in

retaliation for having sought reasonable accommodations is just

that - a suspicion. In response to that claim, SNHS has

submitted an affidavit from Susan Wall, stating that the decision

to terminate Hughes’s employment was made before Hughes went to

Human Resources to speak with Mr. Tabory about accommodations

and, therefore, that decision had nothing to do with Hughes’s

request. Will Affidavit at para. 1 1 . Mr. Tabory confirmed that

point, testifying that, “management had come to me prior to

[Hughes’s request for accommodation] and [stated] that they were

not satisfied with her performance and did not intend to invite

her back.” Deposition of Michael E . Tabory, Exhibit 26 to

defendant’s memorandum (document n o . 15-28) at 5 3 . See also

at 5 9 .

Plaintiff, on the other hand, has failed to point to any

evidence suggesting that there is a genuine dispute about whether

SNHS decided to terminate her employment prior to her meeting

with human resources. Given the factual record presented, the

court is constrained to conclude that Hughes has not identified

(and cannot identify) sufficient evidence to suggest that there

are any genuinely disputed material facts on the question of

causality - that i s , whether there was a causal link between her

request for accommodations and her discharge. See generally

17 Clark County Sch. Dist. v . Breeden,

(2001)

(“Employers need not suspend previously planned transfers upon

discovering that a Title VII suit has been filed, and their

proceeding along lines previously contemplated, though not yet

definitively determined, is no evidence whatever of causality.”).

See also Mariani-Colon v . Dep’t of Homeland Sec.,

(1st Cir. 2007) (“Appellant offers no additional evidence to

show that the reasons the government offered for his termination

are pretextual. While appellant engages in much speculation and

conjecture, a plaintiff cannot defeat summary judgment by relying

on conclusory allegations, or rank speculation.”) (citation and

internal punctuation omitted).

Hughes has not rebutted SNHS’s proffered legitimate reasons

for having fired her, nor has she established a causal connection

between her protected conduct and her discharge. She has also

failed to demonstrate that there are any genuinely disputed

material facts relative to that issue. At the same time, SNHS

has shown that it is entitled to judgment as a matter of law on

Hughes’s claims of unlawful discrimination and retaliation

(counts 5 and 7 ) .

18 IV. Hughes’s State Law Claims.

Having concluded that defendants are entitled to judgment as

a matter of law as to Hughes’s three federal claims under the

ADA, the court must next determine whether it is appropriate to

exercise supplemental jurisdiction over her state law claims of

unlawful discrimination, retaliation, wrongful termination, and

intentional infliction of emotional distress. It declines to do

so. See generally

.

Section 1367 provides that the court may decline to exercise

supplemental jurisdiction over a plaintiff’s state law claim

when:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(c) (emphasis supplied). To assist district

courts, the Court of Appeals for the First Circuit has identified

the following additional factors that should be considered when

determining whether to exercise supplemental jurisdiction over

state law claims: (1) the interests of fairness; (2) judicial

19 economy; (3) convenience; and (4) comity. See Camelio v .

American Fed’n,

(1st Cir. 1998). With regard

to principles of fairness and comity, the Supreme Court has

observed:

Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers v . Gibbs,

(1966) (footnote

omitted).

Given that the court has dismissed all of the federal claims

in Hughes’s complaint, and taking into consideration the factors

identified in Camelio, the court declines to exercise

supplemental jurisdiction over Hughes’s state law claims.

Conclusion

For the forgoing reasons, defendant’s motion for summary

judgment (document n o . 15) is granted in part, and denied in

part. To the extent it seeks judgment as a matter of law on

plaintiff’s claims under the American’s with Disabilities Act

(counts 5 , 6, and 7 ) , that motion is granted. In all other

respects, however, it is denied.

20 Because this matter was removed from state court, the Clerk

of Court shall remand plaintiff’s state law claims to the

Hillsborough County North (New Hampshire) Superior Court, and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 2 6 , 2012

cc: Simon Dixon, Esq. Edward M. Kaplan, Esq. Christopher J. Pyles, Esq.

21