UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kimberly Andersen

v. Civil No. 13-cv-477-JD Opinion No.

Dartmouth Hitchcock Medical Center

O R D E R

Kimberly Andersen brings federal and state law claims against Dartmouth Hitchcock Medical Center (“DHMC”), her former

employer, that arose from the circumstances of her employment

termination.1 Andersen is deaf and contends that DHMC did not

provide her with reasonable accommodation for her disability

during the termination process. Andersen moves for summary

judgment on her claims under the Americans with Disabilities Act

(“ADA”), the Rehabilitation Act, and the New Hampshire Law

Against Discrimination, RSA chapter 354-A, which are Counts I,

II, and V. DHMC moves for summary judgment in its favor on all

of Andersen’s claims.

Standard of Review

Cross motions for summary judgment proceed under the same

standard applicable to all motions for summary judgment, but the

motions are addressed separately. Fadili v. Deutsche Bank Nat’l

1 DHMC represents that Andersen was employed by Mary Hitchcock Memorial Hospital, not DHMC, but acknowledges that DHMC may be used to refer to its related entities, including Mary Hitchcock Memorial Hospital. Tr. Co.,

(1st Cir. 2014). When the party

moving for summary judgment bears the burden of proof on an

issue, that party “cannot prevail unless the evidence that he

provides on that issue is conclusive.” E.E.O.C. v. Union Indep.

de la Autoridad de Acueductos y Alcantarillados de P.R.,

(1st Cir. 2002) (internal quotation marks omitted). In

addition, Federal Rule of Civil Procedure 56 requires that a

motion for summary judgment be granted “against a party who fails

to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex Corp. v.

Catrett,

(1986). Therefore, an absence of

evidence weighs against the party with the burden of proof.

Sanchez-Rodriguez v. AT&T Mobility P.R., Inc.,

(1st Cir. 2012).

Summary judgment is appropriate when “the movant shows that

there is 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). “A genuine issue is one that can be resolved in favor

of either party, and a material fact is one which has the

potential of affecting the outcome of the case.” Jakobiec v.

Merrill Lynch Life Ins. Co.,

(1st Cir. 2013)

(internal quotation marks omitted). In deciding a motion for

summary judgment, the court draws all reasonable factual

inferences in favor of the nonmovant. Kenney v. Floyd,

(1st Cir. 2012).

2 I. Statement of Facts

In its reply, DHMC challenges statements in Andersen’s

objection to DHMC’s motion for summary judgment as not being

supported by appropriate record citations. The cited statements

are part of the “Argument” section of Andersen’s objection and do

not have supporting citations to the record.

Litigants in this district are required to “incorporate a

short and concise statement of material facts, supported by appropriate record citations” to support or oppose a motion for

summary judgment. LR 56.1(a) & (b). “All properly supported

material facts set forth in the moving party’s factual statement

may be deemed admitted unless properly opposed by the adverse

party.” LR 56.1(b). Further, a party opposing summary judgment

must provide competent record evidence to show a genuine factual

dispute. Fed. R. Civ. P. 56(c)(1); see also Anderson v. Liberty

Lobby, Inc.,

(1986); Mosher v. Nelson,

(1st Cir. 2009).

Andersen did not provide a statement of material facts in

her objection as is required by LR 56.1(b). Instead, Andersen

stated in her objection: “Ms. Andersen incorporates by this

reference the motion with memorandum of law and exhibits she has

submitted, asking the Court to grant partial Summary Judgment in

her favor.” For its part, DHMC filed a statement of undisputed

material facts in a separate document, which is an exhibit

attached to its memorandum.

3 Neither of these practices appear to strictly comply with LR

56.1(a), and both could lead to unnecessary confusion. See,

e.g., P.R. Am. Ins. Co. v. Rivera-Vazquez,

(1st Cir. 2010). In addition, the Local Rules impose a page

limitation on memoranda, see LR 7.1(a)(3), and both practices

could be used to circumvent that rule. For purposes of the

pending motions only, the court will consider the factual

statement in Andersen’s motion for partial summary judgment as a

factual statement in support of her objection and will consider DHMC’s factual statement that was filed as an exhibit to DHMC’s

motion for summary judgment. Similar accommodations may not be

granted in the future in this or other cases. Counsel are

directed to read and follow the local rules of this district.

Andersen did not support, by record citation, the following

challenged statements in her objection to DHMC’s motion for

summary judgment or in her memorandum for partial summary

judgment:

1. “Kimberley Andersen worked successfully in the billing

department at Dartmouth, receiving regular raises, and

commendations for her performance.”

2. “Not surprisingly, Ms. Andersen received the lowest

possible scores for communication skills and interpersonal skills

during that meeting.”

3. “And when the attempt to obtain an interpreter for the

scheduled termination meeting failed, Ms. Andersen’s supervisor,

[sic] misled Ms. Andersen about the nature of the meeting,

4 allowing Ms. Andersen to believe that the meeting was to identify

which of the positions in the newly reorganized department she

would have.”

Therefore, those statements will not be considered for

purposes of summary judgment.

II. Factual Background

Andersen graduated from the National Institute for the Deaf

at Rochester Institute of Technology in May of 1985 with an “AAS” medical record technician degree. The Institute provided an

evaluation of her communication skills and stated that Andersen’s

recommended mode of communication with Andersen in a one-to-one

situation was through speech. The evaluation also stated that

Anderson had good speech abilities, that her speech reading

abilities were excellent particularly one-to-one, that she

understood more than half of a message by hearing, and that

appropriate environmental conditions such as proper lighting and

no excessive background noise would help her understanding.

Andersen was hired by Mary Hitchcock Memorial Hospital,

after graduation, as a clinical information analyst. She used

speech and lipreading as her primary modes of communication but

later also relied on email, which helped her ability to

communicate. On some occasions, beginning in the 1990s, Andersen

requested an American Sign Language interpreter, which was

provided when requested. Her managers would ask if she wanted an

interpreter for meetings or events.

5 Andersen worked in clinical information services as an

inpatient coder until 1995. Because she could not meet the

accuracy requirements for that position, Andersen was transferred

to a temporary position in the Patient Financial Services

department to provide her time to find another job. She

performed well in that position and stayed in that department,

which was renamed the Revenue Management Division.

In 2011, Andersen’s performance evaluation noted that she

was not following directions given by the manager and that her responses bordered on insubordination. She was given a low

rating as a result. Andersen signed the evaluation.

The Revenue Management Division began a reorganization

process for a reduction in force in early 2012. During the

reorganization process, DHMC terminated the employment of all

employees in the Revenue Management Division and then offered

those employees the opportunity to apply and be interviewed for

positions in the reorganized department.

Andersen did not understand why she was being asked to apply

for a new position but submitted applications for her current

position, Special Representative II, and for two other positions,

Special Representative III and Team Leader. Andersen was

interviewed by a management group, which included Sheila Locke,

the billing operations manager in the Revenue Management

Division, on February 21, 2012. Andersen was offered an

interpreter for the interview meeting, but she declined when

6 Locke, her supervisor, said she would be at the interview.2

Andersen’s evaluations from the interview noted specific

deficiencies in skills related to positions in the department and

showed low scores. The interview group concluded that Andersen

would not be offered a position in the reorganized department.

A follow up meeting was scheduled for March 6, 2012, to

inform Andersen that she would not be hired back in the

reorganized department and to give her the DHMC severance

package. Locke attempted to find an interpreter for the meeting, but no interpreter was available. Locke then asked Andersen if

she wanted to have an interpreter present for the meeting, and

Andersen declined to have an interpreter.3

Locke attended the meeting along with Barbara Moore,

director of billing operations, and Kimberly Carboneau, an

employee relations specialist in the human resources department.

Locke stated in her deposition that at the beginning of the

meeting she told Andersen that she would not be offered a

position in the reorganized department and that Carboneau would

explain what opportunities and options Andersen would have.

Andersen remembers that at the beginning of the meeting Locke put

her hand out and said: “Give me your badge.” Andersen was

2 In her factual statement in support of her motion for summary judgment, Andersen appears to confuse the circumstances of the offer of an interpreter for the interview on February 21 with the offer of an interpreter for the March 6 meeting. 3 Andersen contends that she did not understand the importance of the meeting.

7 flabbergasted and felt that the wind had been knocked out of her.

Andersen does not remember that Carboneau explained the severance

package to her, and instead remembers that Locke told her not to

show the severance agreement to a lawyer. Andersen took the

severance package, including the severance agreement, told the

group that she would show it to her lawyer, and left the meeting.

Andersen read the severance agreement at home and then

reviewed it with her brother, who is a financial advisor with

offices in New York and Boston. Her brother explained each paragraph to Andersen so that she understood the agreement.

Based on her review with her brother, Andersen signed the

agreement on March 17, 2012, and returned it to DHMC.

The severance package began with a sheet titled “Important

Information and Resources” that listed the documents provided in

the package. A letter to Andersen was the first page of the

severance agreement and notified her that her employment was

terminated effective on March 6, 2012, and that the severance

agreement provided the terms under which DHMC would provide

severance pay and benefits. The letter stated that Andersen

would have twelve weeks of severance pay, health insurance

through COBRA, and outplacement services provided by Lee Hecht

Harrison. The letter further explained that Andersen had forty-

five days to decide whether to sign the agreement and directed

Andersen to sign the agreement and initial each page if she

agreed to the terms and conditions offered.

8 In the first numbered paragraph, the agreement explains the

severance pay offered, that DHMC would subsidize one month of

health benefits under COBRA, and that outplacement services would

be provided by Lee Hecht Harrison. The second paragraph is

titled “Release” and states that “[i]n return for the severance

pay and benefits described above, you agree to release [DHMC],

and its parents, subsidiaries, divisions, affiliates, successors,

and assigns, and current and former officers, directors,

employees, and agents (in this paragraph collectively referred to as the ‘released parties’) from any and all liability or claims,

of any nature.” The released claims include claims arising

“under any federal, state or local human rights, civil rights,

employment, wage-hour, pension or labor laws, rules and/or

regulations, public policy, contract or tort laws, or any claim

for misrepresentation, defamation, promissory estoppel, or

invasion of privacy, or otherwise.”

In the confidentiality provision, the agreement states that

a terminated employee was not precluded from discussing the

agreement with a spouse, lawyer, accountant, or financial

advisor. At the end of the agreement, the signing party

“represent[s] that (a) [she has] had sufficient time to consider

[her] options regarding this Agreement; (b) [she has] had an

opportunity to consult with an attorney of [her] choice; (c) [she

has] been provided with accurate and complete information

regarding [her] obligations and the benefits that are available

to [her] under the terms of this Agreement; (d) [she has] not

9 been subjected to any threats, intimidation or coercion in

connection with the Agreement; and (e) the terms of this

Agreement have been written in a manner [she] understand[s].”

Andersen signed the agreement and received all of the benefits to

which she was entitled under the agreement.

After the termination of her employment, Andersen applied

for other positions at DHMC, but she was not hired. Andersen

attended a training session provided by Lee Hecht Harrison on

March 30, 2012. The trainer at the session was Irene Sinteff, who had not been told that Andersen was deaf. Andersen did not

request an interpreter for the session. Because Andersen was the

only one who attended the session, Sinteff was able to provide

one-on-one training. Sinteff noted that Andersen would have been

lost in a larger class.

III. Andersen’s Motion for Summary Judgment

Andersen moves for summary judgment on her claims that DHMC

violated Title I of the ADA, the Rehabilitation Act, and the New

Hampshire Law Against Discrimination, RSA 354-A, by failing to

provide an interpreter for her at meetings that occurred during

the reorganization and termination process. DHMC objects,

contending that Andersen’s motion fails to provide the grounds

for summary judgment with reasonable clarity and asserting that

DHMC provided interpreter services when requested, Andersen

signed a release of most of the claims, Andersen cannot show any

harm caused by a lack of an interpreter at the termination

10 meeting, and DHMC was not obligated to provide an interpreter for

the placement services provided after her termination.

A. Sufficiency of the Motion

DHMC challenges Andersen’s motion as insufficient because it

does not provide the grounds she asserts for summary judgment

with reasonable clarity. The court agrees. The motion itself

states only that Andersen seeks summary judgment on Counts I, II,

and V “for the reasons detailed in the accompanying memorandum of law.” The accompanying memorandum provides a factual statement,

a three-paragraph law section, and two paragraphs of argument to

support the motion. The first paragraph of argument merely

repeats facts that Andersen contends are undisputed. The second

paragraph is a general statement of the purpose of the ADA, taken

from a Sixth Circuit case, without any attempt to analogize that

case or any legal theory to the facts of this case.

In her reply, Andersen provides some argument that DHMC

should have provided an interpreter for the March 6, 2012,

termination meeting and that Andersen’s deafness was a

substantial factor in her lack of success in applying for jobs at

DHMC after her termination. A party generally cannot raise or

develop arguments for the first time in a reply. Mills v. U.S.

Bank, NA,

, 55 n.5 (1st Cir. 2014); Alamo-Hornedo v.

Puig,

(1st Cir. 2014); West v. Bell Helicopter

Textron, Inc.,

, at *13, n.13 (D.N.H. Sept. 30,

2014); Gen. Linen Serv., Inc. v. Gen. Linen Serv. Co., Inc., 25

(D.N.H. 2014). In addition, even with the

reply, Andersen’s motion is not sufficient to support summary

judgment in her favor.

B. Merits of the Motion

Further, DHMC has demonstrated that material facts exist

which do not support judgment in Andersen’s favor. Without

addressing all of the reasons DHMC raises in its objection to

Andersen’s motion, the following circumstances preclude summary judgment in Andersen’s favor.

DHMC contends that under the terms of the severance

agreement, Andersen released her claims in Count I, Count II, and

Count V to the extent those claims are based on events that

occurred prior to March 17, 2012. Andersen did not address the

release or its effect on her claims. Therefore, she is not

entitled to summary judgment on Counts I, II, and V.

In addition, to the extent Andersen intended to allege

claims in Counts I, II, and V based on events after March 17, she

has not provided evidence or argument to support those claims for

purposes of her motion for partial summary judgment. DHMC

asserts and provides evidence to show that its decisions not to

hire Andersen for positions after her termination were based on

legitimate and non-discriminatory reasons, which leaves Andersen

with the burden of showing those reasons were pretext for

discrimination. See Cruz v. Bristol-Myers Squibb Co., PR, Inc.,

(1st Cir. 2012); Rios-Jimenez v. Principi, 520

, 40-41 (1st Cir. 2008); Madeja v. MPB Corp.,

(2003).

If Andersen claims that DHMC violated the ADA because Lee

Hecht Harrison failed to provide an interpreter for the training

session she attended, she has not supported that claim. DHMC

points out that after March 6, Andersen was no longer an employee

of DHMC, and argues that Title I of the ADA applies only to job

applicants and current employees. See Hatch v. Pitney Bowes,

Inc.,

(D.R.I. 2008). Further, as Andersen acknowledges, Lee Hecht Harrison is an independent contractor,

and Andersen has not shown that DHMC would be liable under the

ADA for Lee Hecht Harrison’s actions.

Therefore, Andersen has not shown that she is entitled to

summary judgment on Counts I, II, and V.

IV. DHMC’s Motion for Summary Judgment

DHMC moves for summary judgment on all of Andersen’s claims

on the grounds that Andersen lacks evidence of discrimination,

that the release in the severance agreement precludes all of her

claims which are based on events before March 17, 2012, and that

she received all of the benefits she was entitled to under the

severance agreement. In response, Andersen asserts that DHMC did

not make reasonable efforts to communicate with her during the

reorganization process, did not know what she understood during

13 the meetings related to her termination, and did not inform Lee

Hecht Harrison that Andersen was deaf.

A. Release

As is discussed above in the context of Andersen’s motion

for partial summary judgment, the severance agreement that

Andersen signed includes a release provision. In support of

summary judgment, DHMC asserts that Andersen has released it from

all claims to the extent they are based on events that occurred prior to the date she signed the severance agreement, March 17,

2012. Andersen did not address or even mention the release

provision in her objection to summary judgment.

The release provides that Andersen “agree[s] to release

[DHMC] . . . from any and all liability or claims, of any

nature.” Andersen does not dispute that by signing the severance

agreement she agreed to release all claims against DHMC as stated

in the release provision. She also does not challenge the

validity of the severance agreement or the release provision.

Therefore, based on the release, DHMC is entitled to summary

judgment on all of Andersen’s claims to the extent they are based

on events that occurred before the severance agreement was signed

on March 17, 2012.

B. Discrimination Claims - Counts I, II, and V

DHMC contends that Andersen cannot prove that DHMC

discriminated against her, for purposes of Counts I, II, and V,

14 based on events that occurred after March 17, 2012. Andersen did

not respond to DHMC’s argument or evidence.

Discrimination claims under Title I of the ADA, the

Rehabilitation Act, and RSA 354-A are evaluated under the same

standard. Freadman v. Metro. Prop. & Cas. Ins. Co.,

(1st Cir. 2007); Parker v. Accellent, Inc.,

, at *6 (D.N.H. Nov. 3, 2014); Montemerlo v. Goffstown

Sch. Dist., SAU No. 19,

, at *5 (D.N.H. Oct. 4,

2013). To prove discrimination for Counts I, II, and V, Andersen would have to show that she was disabled within the meaning of

the ADA, that she was able to perform the essential functions of

her job with or without accommodation, and that she was adversely

affected by DHMC’s actions because of her disability. Thornton

v. United Parcel Serv., Inc.,

(1st Cir. 2009).

When, as here, the plaintiff lacks direct evidence of

discrimination, she may prove her claim by first making a prima

facie showing of the elements of the claim, which shifts the

burden to the defendant “to articulate a legitimate, non-

discriminatory reason for its action.” Ramos-Echevarria v.

Pichis, Inc.,

(1st Cir. 2011). If the

defendant provides legitimate, nondiscriminatory reasons, the

burden moves back to the plaintiff to show that the reasons given

are merely a pretext for discriminatory animus.

15 1. Post-termination applications.

Andersen applied for seven positions at DHMC after her

termination. She applied for each position through an electronic

application system, and her applications were considered by

recruiters in Recruitment Services at DHMC. The application

system did not reveal her deafness. She was not interviewed for

any of the positions.

Suzanne M. Blish, the Manager of Recruitment Services at

DHMC, explained as to each position why Andersen was not interviewed for the positions. Blish stated that other

applicants were more qualified for the receptionist position,

Andersen lacked the necessary qualifications for the provider

auditor position, her prior performance evaluations precluded the

clinical secretary position, others were more qualified and

Andersen lacked the coding background for the human resources

service center representative position, her prior performance

evaluations precluded the regulatory auditor position, the coding

advisor position was eliminated, and Andersen was not a

registered nurse as was required to be a clinical documentation

specialist. The reasons given are legitimate and

nondiscriminatory, and Andersen has not shown that those reasons

were pretextual.

2. Outplacement services with Lee Hecht Harrison.

Andersen contends that the training session she attended was

useless because she did not have an interpreter. She faults DHMC

16 for failing to provide an interpreter for that session and

contends that DHMC discriminated against her on that basis.

As DHMC points out and Andersen does not dispute, Andersen

was no longer a DHMC employee when she attended the training

session. Andersen does not provide any theory through which DHMC

would violate the ADA, the Rehabilitation Act, or RSA 354-A by

failing to provide an interpreter for a non-employee in post-

termination training. In addition, Lee Hecht Harrison was an

independent contractor, not a part of DHMC, and did not know that Andersen was deaf. Andersen does not explain why DHMC would have

a duty to provide an interpreter for services through an

independent contractor or would be required, under the cited

statutes, to inform Lee Hecht Harrison that Andersen was deaf.

Andersen did not notify Lee Hecht Harrison that she was deaf.

Further, in an email she sent to Irene Sinteff at Lee Hecht

Harrison immediately following the training, Andersen thanked

Sinteff for her efforts and said that the meeting was very

informative and very good.

Andersen has not shown that she has any evidence to prove

her claims in Counts I, II, and V based on her post termination

applications or outplacement services. Therefore, DHMC is

entitled to summary judgment on Counts I, II, and V.

C. State Law Contract and Tort Claims

In addition to the discrimination claims in Counts I, II,

and V, Andersen brings state law claims for intentional

17 infliction of emotional distress, negligence, and breach of

contract (Count III), interference with economic advantage (Count

IV), respondeat superior (Count VI), and enhanced compensatory

damages (Count VII). DHMC moves for summary judgment on these

claims as barred by the release. Andersen did not respond to

summary judgment on the state law claims in her objection to

summary judgment.

The claims in Counts III, IV, VI, and VII are, for the most

part, generic restatements of Andersen’s discrimination claims and are barred by the release. In support of her breach of

contract claim in Count III, Andersen alleged that DHMC breached

the severance agreement by not providing an interpreter for her

training session with Lee Hecht Harrison. DHMC contends that it

agreed to provide outplacement services but did not provide any

warranty about the nature or quality of the services. Andersen

does not point to any provision in the severance agreement that

would obligate DHMC to provide an interpreter for her training

session. Further, as is noted above, although Andersen now

denigrates the value of the one-on-one training she received, at

the time she indicated that it was very informative.

DHMC is entitled to summary judgment on all of Andersen’s

claims.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

partial summary judgment (document no. 15) is denied. The

18 defendant’s motion for summary judgment (document no. 16) is

granted.

The defendant’s motion to challenge expert qualification

(document no. 25) is terminated as moot.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

February 26, 2015

cc: Katherine DeForest, Esq. Edward M. Kaplan, Esq. Kirk C. Simoneau, Esq. David P. Slawsky, ESq.

19