EEOC v . Windmill International 11-CV-454-SM 9/4/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Equal Employment Opportunity Commission, Plaintiff

v. Case N o . 11-cv-454-SM Opinion N o .

Windmill International, Inc., Defendant

O R D E R

On April 1 2 , 2010, Windmill International fired Nancy Hajjar

from her job as an accountant, citing poor performance.

Subsequently, the Equal Employment Opportunity Commission

(“EEOC”) filed this action, charging that Windmill engaged in

unlawful disability discrimination, in violation of the Americans

with Disabilities Act (“ADA”), by terminating Hajjar’s employment

because of an actual and/or perceived disability. On behalf of

Hajjar, the EEOC seeks compensatory and punitive damages, as well

as injunctive relief. Windmill denies that its decision to fire

Hajjar was in any way discriminatory or unlawful.

Windmill seeks summary judgment, insisting that its decision

to fire Hajjar was entirely unrelated to any real or perceived

disability she may have. The EEOC, in turn, seeks partial

summary judgment on two discrete points: first, its factual

contention that Hajjar was diagnosed with (and actually suffers from) Thoracic Outlet Syndrome, as well as partial blockages of

her carotid arteries; and, second, that it is entitled to

judgment as a matter of law as to Windmill’s sixth affirmative

defense (Windmill’s assertion that Hajjar failed to mitigate her

damages).

For the reasons discussed, Windmill’s motion for summary

judgment is granted, and the EEOC’s motion for partial summary

judgment is denied.

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,

1 2 , 115

(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

2 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.,

4 2 , 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, speculation, and

unsupported conclusions. See Serapion v . Martinez,

8 2 ,

987 (1st Cir. 1997). See also Scott v . Harris,

7 2 , 380

(2007) (“When opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no

reasonable jury could believe i t , a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary judgment.”).

Background

The material facts are almost entirely undisputed. The

primary dispute identified by the EEOC is whether Windmill had

3 made a “final decision” to terminate Hajjar’s employment prior to

the date on which she disclosed her medical condition, or whether

it was still entertaining thoughts of retaining her as an

employee and putting her on a performance improvement plan. But,

that so-called genuine factual dispute arises from little more

than the EEOC’s own implausible reading of the factual record,

speculation, and unsupportable inferences drawn from the

witnesses’ sworn testimony - none of which is sufficient to

defeat Windmill’s motion for summary judgment. The relevant

facts are as follows.

Windmill hired Nancy Hajjar as an accountant in June of

2008. In her performance review, in March of 2009, Hajjar

received a generally satisfactory evaluation, “meeting”

expectations in six categories, and “partially meeting”

expectations in three. Nevertheless, her supervisors were

concerned about what they perceived to be performance issues.

Those issues are well-documented in the record and need not be

recounted. It is sufficient to note that, by the fall of 2009,

Hajjar’s direct supervisor (Jill Kwitkiwski) had become

sufficiently displeased with Hajjar’s performance that she

recommended to John Katz (Director of Human Resources) and John

Sullivan (Vice President for Business Support Services) that

Windmill terminate Hajjar’s employment. See Affidavit of Jill

4 Kwitkiwski (document n o . 23-2) at para. 1 0 ; Affidavit of John

Katz (document n o . 23-18) at para. 7 ; Affidavit of John Sullivan

(document n o . 23-33) at para. 10. 1 The EEOC concedes that, in

late 2009, Kwitkiwski recommended that Windmill fire Hajjar. See

EEOC’s Amended Objection (document n o . 36) at 3 . The EEOC also

concedes that Kwitkiwski, Katz, and Sullivan began more serious

and substantive discussions about terminating Hajjar’s employment

in January of 2010.

at 5 . See also Kwitkiwski affidavit at

1 4 ; Katz affidavit at para. 1 0 ; Sullivan affidavit at para. 1 0 .

Katz thought Hajjar’s employment should only be terminated after

a plan had been put in place to redistribute her work to other

Windmill Employees. Katz affidavit at para. 7 . See also EEOC’s

Amended Objection at 5 . And, all understood that it could take a

few months to actually implement the decision to fire Hajjar.

See, e.g., Sullivan affidavit at para. 1 5 .

In February of 2010, Sullivan proposed to Kwitkiwski and

Katz the possibility of putting Hajjar on a performance

improvement plan (“PIP”). Each testified, however, that the

proposed use of a PIP was simply part of an overall plan to more

fully document Hajjar’s shortcomings and terminate her

1 It is probably worth noting that Kwitkiwski, Katz, and Sullivan are no longer employed at Windmill and, therefore, have no real interest or personal stake in the outcome of this litigation.

5 employment; none believed that she was capable of satisfactorily

completing a PIP. See Kwitkiwski affidavit at para. 1 9 ; Katz

affidavit at paras. 14 and 1 5 ; Sullivan affidavit at paras. 1 2 .

In an e-mail she sent to both Katz and Sullivan on February 1 8 ,

2010, Kwitkiwski explained the parties’ planned reallocation of

Hajjar’s duties once she was fired from her position at Windmill:

Obviously, this [reallocation of duties] would need to happen after [Hajjar] is removed from her role. Pursuant to our discussion last week, I plan to place [Hajjar] on a P.I.P. the week of the 22nd [of February, 2010]. I will need your support to review the plan I generate, and also add anything you feel would cover Windmill from a legal perspective.

Exhibit 9 to Kwitkiwski affidavit (document n o . 23-11).

By March 5 , 2010, however, the group determined that Hajjar

would not be put on a PIP and, instead, her employment would

simply be terminated. See Kwitkiwski affidavit at para. 2 4 ; Katz

affidavit at para. 1 9 ; Sullivan affidavit at para. 1 4 .

Accordingly, in anticipation of the termination of Hajjar’s

employment, Kwitkiwski sent an e-mail to both Katz and Sullivan,

outlining how Hajjar’s duties at Windmill would be redistributed

to employees in both the accounting and human resources

departments. Exhibit 13 to Kwitkiwski affidavit (document n o .

23-15) (“Attached please find the plan to redistribute Nancy’s

current duties.”). Three days later, she sent an e-mail to Katz,

6 making reference to “mov[ing] forward with our plan.” Exhibit 14

to Kwitkiwski affidavit (document n o . 23-16). Both Kwitkiwski

and Katz testified that they understood her reference to “our

plan” to mean their decision to terminate Hajjar’s employment.

Kwitkiwski affidavit at para. 25 (“I referred to moving ‘forward

with our plan’ which is a reference to the plan to terminate M s .

Hajjar’s employment.”); Katz affidavit at para. 20 (“On March 8 ,

2010, M s . Kwitkiwski e-mailed me . . . In this e-mail, M s .

Kwitkiwski specifically referenced the planned termination of M s .

Hajjar’s employment. M s . Kwitkiwski referred to moving ‘forward

with our plan’ which I understood to mean the plan to terminate

M s . Hajjar’s employment that M r . Sullivan, M s . Kwitkiwski and I

had been working on in earnest since January 2010.”).

Approximately two weeks later, on March 2 2 , 2010, Hajjar

informed Kwitkiwski that she needed to consult with a specialist

regarding a blocked carotid artery. All agree that this was the

first time Hajjar mentioned this medical condition to anyone at

Windmill. See EEOC Amended Objection at 7 . Two days later,

Kwitkiwski sent an e-mail to Katz in which she said she hoped

that, notwithstanding Hajjar’s recent disclosure, corporate

counsel would permit them to “move forward.” Both Kwitkiwski and

Katz testified that the statement about “moving forward” was a

reference to their decision to terminate Hajjar’s employment.

7 Kwitkiwski affidavit at para. 27 (“By e-mail dated March 2 4 ,

2010, I wrote to M r . Katz: ‘I hope Peter [Bennet, corporate

counsel] says we can still move forward.’ I was referring to my

wanting to move forward with the termination of M s . Hajjar’s

employment in early April.”). In his affidavit, M r . Katz

testified about that e-mail as follows:

On March 2 4 , 2010, M s . Kwitkiwski e-mailed me regarding another performance issue related to M s . Hajjar. As part of this e-mail, Kwitkiwski wrote: “I hope Peter says we can still move forward.” Peter W . Bennett is Windmill’s corporate attorney. I understood that M s . Kwitkiwski was expressing hope that Windmill’s corporate attorney would inform us that we could still move forward with the termination of M s . Hajjar’s employment since the decision to terminate her predated her disclosure of the carotid artery issue by months.

Katz affidavit at para. 2 2 .

Windmill did move forward with the termination of Hajjar’s

employment. On April 1 2 , 2010, Katz met with Hajjar and notified

her of Windmill’s decision to fire her. Katz affidavit at para.

23. All three of Windmill’s former employees who were involved

in the decision to terminate Hajjar’s employment testified that:

(1) they jointly reached the decision to fire Hajjar and, after

some discussion, agreed not to put her on a PIP; (2) the decision

to fire Hajjar was reached well before she disclosed her medical

condition to anyone at Windmill; (3) that decision was based

solely on performance issues and was entirely unrelated to her

8 later-disclosed medical condition; and (4) the timing of her

discharge and its temporal proximity to her disclosure were

entirely coincidental. See Kwitkiwski affidavit at para. 2 9 ;

Katz affidavit at para. 2 4 ; Sullivan affidavit at para. 2 1 . The

EEOC has pointed to no evidence that contradicts, undermines, or

otherwise casts doubt upon that testimony.

Discussion

Title I of the ADA prohibits covered employers from

discriminating “against a qualified individual on the basis of

disability in regard to . . . . the discharge of employees, . . .

and other terms, conditions, and privileges of employment.”

(a). The burden-shifting framework employed in

discrimination cases of this sort is by now well-known. See

generally McDonnell Douglas Corp. v . Green,

(1973).

In short, the EEOC must make out a prima facie case of disability

discrimination by showing that: (a) Hajjar was “disabled” within

the meaning of the ADA; (b) she was able to perform the essential

functions of her job, with or without accommodation; and (c) she

was subject to an adverse employment action based, at least in

part, on her disability. x See, e.g., Ruiz Rivera v . Pfizer

Pharms., LLC,

(1st Cir. 2008). In response,

Windmill must articulate a legitimate, non-discriminatory basis

for its action. If Windmill carries that burden, “the initial

9 inference of discrimination evaporates and the burden then shifts

back to the plaintiff to proffer evidence to establish that [the

defendant’s] non-discriminatory justification is mere pretext,

cloaking discriminatory animus.” Freadman v . Metro. Prop. & Cas.

Ins. Co.,

1 , 99 (1st Cir. 2007) (citations omitted).

See also Tobin v . Liberty Mut. Ins. Co.,

0 0 , 105 (1st

Cir. 2005).

Here, the court will assume that, based upon the temporal

proximity between Hajjar’s disclosure and her termination, the

EEOC has carried its modest burden of making out a prima facie

case of unlawful discrimination. In response, Windmill has

proffered a legitimate, non-discriminatory reason for its action,

and has presented uncontradicted evidence supportive of its claim

to have discharged Hajjar for reasons entirely unrelated to her

medical condition. Accordingly, the burden of proof reverts to

the EEOC to point to sufficient evidence in the record to support

a jury’s finding that Windmill engaged in unlawful disability

discrimination. It has failed to carry that burden.

The core of the EEOC’s argument in opposition to summary

judgment is the following: because there was still talk of

putting Hajjar on a performance improvement plan as late as

February of 2010, and because of the temporal proximity between

10 Hajjar’s disclosure and her termination, a jury could reasonably

infer that, until it learned of her medical condition, Windmill

had planned to retain Hajjar as an employee and put her on a PIP.

In other words, the EEOC says the record supports a reasonable

inference that Windmill decided to fire Hajjar only after it

learned of her medical issues, on March 2 2 , 2010. See, e.g.,

EEOC’s Amended Objection at 18 (“There is evidence that, prior to

learning about Hajjar’s carotid artery impairment, Defendant made

plans by February 2010 to place her on a performance improvement

plan. . . A jury could therefore reasonably infer that before

learning about Hajjar’s carotid artery impairment, Defendant

planned to provide Hajjar an opportunity to remain employed for

at least the duration of her performance improvement plan.”).

The court disagrees.

The last reference in the record suggesting that Windmill

was contemplating putting Hajjar on a PIP is dated February 1 2 ,

2010. See EEOC’s Amended Objection at 1 1 , para. 22 (citing

Exhibits 8 and 9 to Kwitkiwski affidavit). But, even assuming

the discussion about putting Hajjar on a PIP was not part of the

overall plan to fire her, the uncontradicted sworn testimony of

Kwitkiwski, Katz, and Sullivan is that by early March of 2010,

they decided to forego the use of a PIP and agreed to simply

terminate Hajjar’s employment outright - a decision that they

11 reached well before Hajjar ever disclosed her medical condition

to Windmill. See Kwitkiwski affidavit at paras. 24 and 2 9 ; Katz

affidavit at paras. 1 9 , 2 3 , and 2 4 ; Sullivan affidavit at paras.

1 4 , 1 7 , and 21. 2

Little more need be said. The inference the EEOC would have

a jury draw - that until Windmill learned of Hajjar’s medical

condition, it intended to retain her as an employee and put her

on a PIP - is neither reasonable nor is it even plausible in

light of the unrebutted sworn testimony of Windmill’s former

employees Kwitkiwski, Katz, and Sullivan. Consequently, the EEOC

cannot, as a matter of law, sustain its burden of proof and

Windmill is entitled to summary judgment on the sole count of the

EEOC’s complaint.

Conclusion

For the foregoing reasons, as well as those set forth in

defendant’s memoranda (documents n o . 23-1 and 3 4 ) , the

2 Parenthetically, the court notes that it was not unusual for Windmill to fire an employee without first putting him or her on a PIP. The evidence of record suggests that only twice did Windmill use a PIP and, on both occasions, it involved employees Windmill apparently considered receptive t o , and capable o f , improvement. Both of those employees satisfactorily completed their performance improvement plans and remained employed with Windmill. That Windmill fired Hajjar without first putting her on a PIP is not evidence of disability based discrimination.

12 uncontroverted evidence of record demonstrates that the decision

to terminate Hajjar’s employment predated - by a significant

period of time - her March 2 2 , 2010, medical disclosure. On this

substantial record, the EEOC cannot demonstrate that her

termination was in any way related to that disclosure, rather

than the well-supported and non-discriminatory reason given:

unacceptable job performance. Accordingly, Windmill is entitled

to judgment as a matter of law on the sole count in the EEOC’s

complaint and its motion for summary judgment (document n o . 23)

is granted. The Equal Employment Opportunity Commission’s motion

for partial summary judgment (document n o . 25) is denied. All

remaining pending motions are denied as moot.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

C—^^^*^^^^^^

St/even J./McAuliffe fnited States District Judge

September 4 , 2013

cc: Elizabeth A . Grossman, Esq. Markus L . Penzel, Esq. Raechel Adams, Esq. Robert D. Rose, Esq. Justin Mulaire, Esq. Peter Bennett, Esq. Frederick B . Finberg, Esq.

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