UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mariah J. Gage

v. Case No. 14-cv-480-PB Opinion No.

Rymes Heating Oils, Inc.

MEMORANDUM AND ORDER

Mariah J. Gage sued her former employer, Rymes Heating

Oils, Inc., alleging that Rymes violated both the Americans with

Disabilities Act (“ADA”) and New Hampshire’s Law Against

Discrimination by demoting and firing her on the basis of her

disability, an episodic migraine condition. She also claims

that Rymes wrongfully discharged her in violation of New

Hampshire law. Rymes has responded with a motion for summary

judgment.

I. BACKGROUND

Gage worked at Rymes for approximately nine months, from

September 2012 until June 25, 2013. Rymes hired Gage to work as

a receptionist at the company’s Pembroke, NH office, where her

responsibilities included greeting and assisting customers,

scanning and filing documents, and running various errands

outside the office. Gage’s immediate supervisor at Rymes was

Megan Enright. At the outset of her employment, Gage signed a document

outlining the company’s personal and sick time policy. Doc. No.

12-3. That document detailed how Rymes employees accrued, and

were required to use, paid vacation and “personal time,” which

employees could use for “temporary absence due to appointments,

illness or injuries.” Id. at 3. Employees accrued vacation and

personal time on a weekly basis. After a ninety-day

probationary period, full-time employees were entitled to ten

vacation days per year, accrued at a rate of 1.5396 hours per

week, plus six paid personal days, accrued at a rate of .93

hours per week. In addition, Rymes gave all of its full-time

employees eight hours of unpaid personal time. The policy

provided that, “[i]n the event an employee exceeds the limits

outlined in this document an employee will be terminated

immediately.” Id. at 3.

Rymes’ operations manager, Charles Cosseboom, was

responsible for hiring and firing decisions at Rymes. As

Cosseboom explained during his deposition, Rymes did not always

fire an employee who missed work without previously accruing

sufficient personal time. See Doc. No. 14-3 at 4. Cosseboom

stated, however, that Rymes did not have any “written

guideline[s]” regarding whether an employee would be fired for

excessive absenteeism. Id.

2 From the beginning of her employment through June 11, 2013,

Gage had fourteen unexcused absences, where she either arrived

to work late, left work early, or missed work for an entire day

without having accrued the necessary personal time. Doc. No.

12-5 at 2. Neither party has provided a detailed explanation

for these absences. At her deposition, however, Gage stated

that she missed work for several reasons, including to care for

her son when he was ill, to attend family court proceedings, and

to travel to visit her boyfriend in another state.1 Doc. No. 14-

2 at 6.

Gage also missed work due to her own illnesses. On March

27 and 28, 2013, she was out due to a flu-like illness.

According to Gage, she was stricken with “a virus” on March 27,

and “suffered uncontrollable bouts of nausea on March 27, 2013

and the following day.” Doc. No. 14-4 at 1. Gage visited her

1 The record also contains a note from Concord Pediatrics certifying that Gage was absent from work on October 19, 2012, and would be absent again on October 22, to bring her son to the doctor. Doc. No. 14-7 at 32. In addition, the record contains four Rymes “employee requests for vacation/personal time payout” forms. Id. at 28-31. These documents suggest that Gage requested, and her supervisor approved, 8.5 hours off on April 5, 2013 for an unspecified reason; 4.5 hours off on April 8, 2013, apparently for an appointment for her son; four hours off on June 5, 2013, apparently for her son’s surgery; and eight hours off on July 18, 2013 for an unspecified reason. Id. During the deposition of Gage’s former supervisor, Megan Enright, Gage’s counsel asked Enright about several of Gage’s specific absences. Id. at 13-14. Enright stated that she could not recall why Gage left early or arrived late on the specific dates discussed. Id. 3 doctor on March 27, who wrote a note stating “[p]lease excuse

[Gage] from work today, March 27, 2013 and March 28, 2013, for

legitimate medical reasons. If you have any questions, please

call.” Doc. No. 14-7 at 27 (doctor’s note).

Gage returned to work on March 29, 2013 and gave the

doctor’s note to her supervisor, Megan Enright, and to HR

Generalist Dean Tremblay. That same day, Enright and Tremblay

met with Gage to discuss her absences. During the meeting,

Enright and Tremblay reminded Gage of the company’s attendance

policy, and told her that her job was in jeopardy because she

had been absent without the appropriate personal time accrued.

Doc. No. 14-4 at 1-2. Gage further recalls that, during that

meeting, Tremblay “specifically warned [her] that the next time

[she] missed work for any reason [she] would be terminated.”

Id. at 2.

On April 1, 2013, several days after Gage missed work due

to her “flu like” illness, Gage and Enright discussed Gage’s

health condition via instant message. Enright asked Gage

whether she was feeling better, and Gage responded that she had

“a massive migraine right now, slightly queasy stomach but over

all not bad, I think I have a sinus coming AGAIN.” Doc. No. 14-

7 at 35 (emphasis in original).

Gage had no additional unexcused absences until June 12,

2013. That morning, Gage awoke at approximately 5:30 a.m. with

4 a severe right-sided headache and numbness on the left side of

her body. Doc. No. 14-4 at 2. She was unable to dress herself,

unable to “compose a text [message to a coworker describing her

symptoms] that made any sense,” and was unable to “find words”

when trying to speak with her mother, Debra Gage. Id. Fearing

that Gage was having a stroke, Gage’s mother called 911. Gage

was taken by ambulance to Concord Hospital for treatment. Id.;

Doc. No. 14-6 at 1.

At about 6:30 or 7:00 a.m. on June 12, Debra Gage called HR

Generalist Tremblay, and left a voicemail explaining that Gage

would not be at work that day, that she “believed that [Gage]

was suffering a stroke, and that an ambulance had just taken

[Gage] to Concord Hospital.” Doc. No. 14-6 at 1. When Tremblay

did not return Ms. Gage’s call, Ms. Gage called Rymes again

later in the day. The person who answered her call responded

that Tremblay was not available “but that [her] message had been

received.” Id.

An emergency room report memorializes Gage’s treatment at

Concord Hospital. The report describes Gage as a “23-year-old

female with a history of chronic migraines” and a family history

of migraines. Doc. No. 12-4 at 2. According to the report,

Gage explained her condition as “her typical headache,” but that

she had never before “had the other symptoms,” namely the

numbness and cognitive impairments, alongside her headache. Id.

5 The doctor notes that he had “a long conversation with [Gage and

Gage’s mother] about the suspicion that [her condition]

represents a complex migraine and not a TIA [transient ischemic

attack] or stroke.” Id. at 3. The report further indicates

that the doctor did “not think this represents a TIA.” Id.

Instead, the doctor diagnosed Gage with a “[c]omplex

migraine,” which had likely been exacerbated by Gage’s new birth

control medication. Id. at 3-4. The doctor recommended “close

follow up with the primary care in the next 24 hours” and out-

patient MRI and MRA imaging. Id. The doctor also recommended

that Gage see a headache specialist “as she clearly states to me

that she gets headaches on a regular basis going back to an

early age of 8 with a strong family history.” Id. at 4. The

report, which the doctor signed electronically at 11:15 that

morning, indicates that Gage’s symptoms had “completely

resolved.” Id. at 3.

Meanwhile, also on June 12, several of Gage’s co-workers

discussed her condition via instant message. At 1:05 that

afternoon, Enright sent a message to her immediate supervisor,

Megan Wilson, stating that Enright was “super annoyed with the

whole [Gage] thing.” Doc. No. 14-7 at 43. Wilson responded

that she had “already made [operations manager Cosseboom] aware”

and said that “it was just a matter of time . . . .” Id.

Enright replied that she knew that Gage was not “feeling good on

6 Monday and she had to go to the doctor’s [M]onday night because

they thought she had a blood clot, then she was taken by

ambulance last night or this morning, [I] would really like to

know why the hell she couldn’t call in herself.” Id. at 43.

Several minutes later, Enright told Wilson that she had “just

talked to [Gage’s friend and co-worker Crystal Rockwell, who]

said that they think that [Gage] had a stroke, she was sluring

[sic] her words this morning and every [sic] confused and

couldn’t form a sentence. She is in the [emergency room] and

they are running test[s] to see what is going on.” Id.

Later that afternoon, Enright, Wilson, Cosseboom, and

Tremblay decided to “have a talk” with Gage when she returned to

work. Id. at 7. Gage’s superiors considered firing her

following her June 12 absence, but instead decided to move her

to a different desk in the office and to take away some of her

previous job tasks. Id. at 8.

In describing this decision, Enright explained that Gage’s

superiors “felt at that time that she was not able to sit up at

the front receptionist desk as . . . her attendance wasn’t there

to help walk in customers, which was what [Rymes] really

needed.” Id. Enright said that Cosseboom “simply moved [Gage]

away from the front desk so she didn’t have to help walk in

customers, as she constantly had migraines, and she was never

there to help walk in customers.” Id. at 9. Following June 12,

7 Gage kept her same pay rate and “all the same benefits,” as well

as “the same job duties as she was doing [before] minus helping

walk the customers or driving to the bank or the Post Office.”

Id.

Gage returned to work on June 13, 2013, the day after her

hospitalization. That morning, Enright asked Gage about the

June 12 incident via instant message, writing “[h]ey, we never

got in touch with your mom yesterday, what’s going on?” Id. at

36. Gage responded “transient [i]schemic attack (mini stroke),”

but said that she was “alright though, just have to have an MRA

and stuff done.”2 Id. Gage also gave a doctor’s note to

Tremblay.

That same day, Enright and Tremblay again met with Gage to

discuss her absences. According to Gage’s version of that

conversation, Tremblay “did not ask [her] anything about [her]

condition and instead just told [her] that he was demoting [her]

from [the] receptionist position.” Doc. No. 14-4 at 2.

According to Tremblay’s summary of that same meeting, Enright

and Tremblay told Gage that her job was in jeopardy because of

her absences, and said that Gage would be moved to a different

desk, and would no longer greet customers or run errands.

2 A magnetic resonance angiogram, or MRA, is a noninvasive test that is used in evaluating the blood vessels in a patient’s brain and neck. 8 Gage reports that she was “humiliated” and “saddened by the

loss of job responsibilities.” Doc. No. 14-4 at 3. A number of

Gage’s coworkers apparently noticed the change too. In a June

21, 2013 instant message exchange, Wilson told Enright that “so

far 3 people have asked [Gage] why she is back here,” to which

Enright responded, “good! Must be embarrassing for her.” Doc.

No. 14-7 at 46. In that same conversation, Enright told Wilson

that she was “dieing [sic] to catch [Gage] on her cell phone or

online so we can just send her home.” Id.

The final incident preceding Gage’s termination allegedly

occurred on June 24, 2013, although the parties dispute what

happened that day. According to Tremblay, another Rymes

employee told Tremblay that Gage was crying in the basement of

Rymes’ office building.3 Enright then went to the basement to

look for Gage, but could not find her there or anywhere else in

the building. Doc. No. 14-8 at 11. Tremblay then went into the

basement himself and looked around, but was similarly unable to

find Gage. Tremblay reported that Gage “was nowhere to be found

for 30 minutes.” Id.

3 This apparently was not the first time that Gage was found crying in the basement. In a June 21, 2013 instant message conversation, Enright told Tremblay that Gage “is at the filing cabinets now . . . I just went down stairs and she was filing. She isn’t crying anymore but I asked why she was cring [sic] and she said that she just has a wicked headache.” Doc. No. 14-7 at 39. 9 Gage disputes this account. She reports that she was

filing documents in the basement on June 24, and was “suddenly

overcome with emotion” because she “felt as though [she] was

walking on eggshells at Rymes and that the company was going to

fire me the first chance it got.” Doc. No. 14-4 at 3. Gage

claims that both “Ms. Enright, and later Mr. Tremblay, came down

to the basement where [she] was filing” documents, and Gage

states that she “separately spoke with each of them.” Id. Gage

contends that she “never went missing from the Rymes building on

June 24, 2013, nor did anyone . . . ever question [her] about

supposedly having been absent from the workplace” that day. Id.

Following Gage’s alleged thirty-minute absence from the

Rymes offices on June 24, Tremblay consulted with Cosseboom, and

Cosseboom decided to fire Gage. The next day, June 25, Enright

and Tremblay told Gage that her employment had been terminated.

Rymes reports that it fired Gage “for performance issues and

attendance issues,” Doc. No. 14-7 at 49, though Cosseboom stated

at his deposition that Gage’s attendance was “the primary

reason” for her firing.4 Doc. No. 14-3 at 7. More specifically,

at Cosseboom’s deposition, Gage’s counsel asked, “under Rymes’

strict attendance policy, [does it] matter what the reason was

4 For the purposes of its summary judgment motion, Rymes assumes that Gage’s absences were the sole reason for her firing. Doc. No. 16 at 6 n.2.

10 for her absence on June 12[?]” Id. Cosseboom responded that

“[t]he last [absence] is always the one that’s the problem, but

the ones before that, there wasn’t an individual event with

[Gage], one absenteeism.” Id.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and [that] the movant is

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

56(a). The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor. See Navarro v.

Pfizer Corp.,

(1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine dispute of material fact. Celotex Corp.

v. Catrett,

(1986). A material fact “is one

‘that might affect the outcome of the suit under the governing

law.’” United States v. One Parcel of Real Prop. with Bldgs.,

, 204 (1st Cir. 1992) (quoting Anderson v. Liberty

Lobby, Inc.,

(1986)). If the moving party

satisfies this burden, the nonmoving party must then “produce

evidence on which a reasonable finder of fact, under the

appropriate proof burden, could base a verdict for it; if that

party cannot produce such evidence, the motion must be granted.”

11 Ayala—Gerena v. Bristol Myers—Squibb Co.,

(1st

Cir. 1996); see Celotex,

.

III. ANALYSIS

Gage has brought three claims against Rymes. She first

alleges that she suffered a disability – an episodic migraine

condition – while she was employed at Rymes, and claims that

Rymes violated both the ADA (Count I) and Section 354-A of the

New Hampshire Revised Statutes Annotated (Count II) by (1)

“demoting” and ultimately firing her on the basis of her

disability, and (2) otherwise failing to accommodate her

disability. In Count III, Gage asserts that her firing also

constituted a wrongful discharge under New Hampshire law.

Rymes presents various challenges to Gage’s claims. It

argues that Gage’s ADA and Section 354-A claims fail because she

did not suffer from a “disability,” as defined by the ADA and

Section 354-A. It further contends that, even assuming that

Gage had such a disability, summary judgment is appropriate on

Counts I and II because (1) any adverse employment action

against Gage was a result of her excessive absenteeism rather

than her disability, and (2) Gage never requested an

accommodation for her disability. Rymes also asserts that

Gage’s wrongful discharge claim fails because Gage cannot show

either that her termination was motivated by bad faith,

12 retaliation, or malice, or that she was fired for performing an

act encouraged by public policy. I address each argument below.

A. Disability Claims5 1. Disability

Title I of the ADA prohibits discrimination “against a

qualified individual on the basis of disability.”

(a). A plaintiff can bring two types of ADA claims: a so-

called “accommodation claim” and a “discrimination claim.”

To make out a viable “accommodation claim,” a plaintiff must

show that “(1) [she] is disabled within the meaning of the ADA,

(2) [she] was able to perform the essential functions of the job

with or without a reasonable accommodation, and (3) [her

employer], despite knowing of [her] disability, did not

reasonably accommodate it.” Rocafort v. IBM Corp.,

(1st Cir. 2003). To survive summary judgment on a

“discrimination claim,” a plaintiff must present sufficient

evidence for a reasonable juror to find “(1) that [she] was

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

5 Gage has brought virtually identical claims pursuant to both the ADA (Count I) and Section 354-A (Count II). As both this court and the New Hampshire Supreme Court have recognized, claims under Section 354-A are construed in conformity with the ADA. See Montemerlo v. Goffstown Sch. Dist., SAU No. 19,

. Accordingly, and as both Rymes and Gage agree, the parties’ arguments regarding Gage’s Section 354-A claim rise and fall on the same bases as their ADA arguments. See Doc. Nos. 12-1 at 15; 14-1 at 13 n.3. My analysis of Gage’s ADA claim therefore applies equally to Gage’s Section 354-A claim.

13 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.” See Thornton v. United Parcel Serv., Inc.,

(1st Cir. 2009). Thus, both a discrimination claim

and an accommodation claim require proof that the plaintiff was

“disabled” within the meaning of the ADA.

The ADA defines “disability” with respect to an individual

as “(A) a physical or mental impairment that substantially

limits one or more major life activities of such individual; (B)

a record of such an impairment; or (C) being regarded as having

such an impairment . . . .”

(1). Here, Gage

proceeds primarily under the first (“actual disability”)

category of the disability definition.6

Gage argues that she is disabled because she suffers from

disabling episodic migraine headaches. Rhymes responds by first

claiming that Gage waived her episodic migraine claim because

she disavowed any such claim during her deposition. In the

6 Gage does not assert that she was “regarded as” being disabled pursuant to

(1)(C). She does argue, however, that she had a “record of” disability when she was fired. Doc. No. 14-1 at 21-22. This argument consists almost exclusively of Gage stating that she “had a record of receiving emergency room treatment on June 12, 2013 . . . .”

Because Gage did not develop this secondary argument, and because it ultimately has no impact on Rymes’ motion, I do not address her claim in detail.

14 alternative, it argues that the evidence Gage points to in

support of her claim is simply insufficient to satisfy her

burden of proof on the issue. I begin with Rymes’s waiver

argument.

a. Waiver

Gage alleged in her complaint that she is disabled in part

because she “suffers from migraine headaches that substantially

limit her in major life activities.” Doc. No. 1 at 4. During

her deposition, however, Gage engaged in the following exchange

with Rymes’ attorney:

Q: [Y]our lawsuit . . . alleges that you suffer from a disability; is that right? A: At the time, yes. Q: Okay. And that disability was migraines? A: I had a stroke. Q: And the stroke was your disability? A: That day, yes. Q: Okay. Did you have any other disability during your course of your employment at Rymes? A: No.

Doc. No. 14-2 at 4. Rymes argues that this exchange effectively

waived any claim that Gage suffers from disabling migraine

headaches.

Rymes bases its waiver argument on decisions from other

jurisdictions in which courts have ruled that a plaintiff’s

deposition testimony waived a cause of action or theory of

liability asserted in the plaintiff’s complaint. See, e.g.,

Buenrostro v. Potter,

(9th Cir. 2006);

15 Johnson v. E.A. Miller, Inc.,

(10th Cir. 1999);

Butler v. Exxon Mobile Corp.,

(M.D. La.

2012). The First Circuit has not adopted such a rule, however,

and I decline to do so here.

Rymes finds no support for its waiver argument in either

the rules of civil procedure or the rules of evidence. Although

the rules of civil procedure specify that an admission made in

response to a request for admission under Fed. R. Civ. P. 36

conclusively establishes the fact admitted, the rules governing

depositions do not give similar effect to deposition testimony.

Further, the applicable rule of evidence, Fed. R. Evid.

801(d)(2), is flatly inconsistent with Rymes’ argument as it

treats a party opponent’s statement in a deposition as an

“evidentiary admission,” which may be offered in evidence by an

adversary without preventing the deponent from later introducing

other evidence that explains or contradicts the admission. See

Keller v. United States,

, 1198 n.8 (7th Cir. 1995).

I am reluctant to treat an evidentiary admission in a

deposition as the functional equivalent of an admission under

Rule 36. Few deponents are trained lawyers. Litigants do not

necessarily understand the legal theories on which their claims

are based. They make honest mistakes, forget pertinent facts,

and misunderstand the significance of the questions being asked.

See Weiss v. Union Cent. Life Ins. Co.,

(2d

16 Cir. 2002); Guadagno v. Wallack Ader Levithan Assocs.,

(S.D.N.Y. 1997). In the interests of fairness,

then, a party should ordinarily be allowed to explain or

controvert an admission made during a deposition. See Lee v.

Smith & Wesson Corp.,

(6th Cir. 2014).

Here, pursuant to this general rule, it is appropriate to

treat Gage’s deposition testimony as an evidentiary admission.

At the deposition, Rymes counsel asked Gage to describe her

“disability,” Doc. No. 14-2 at 4, a question that required Gage,

a lay-person, to understand both her medical condition, and the

legal definition of “disability.” Gage’s response – that her

only “disability” was a “stroke” on June 12 – was inconsistent

with both the disability pled in her complaint (migraine), and

her June 12 diagnosis (complex migraine). Under these

circumstances, it would be inequitable to treat Gage’s testimony

as a binding admission. See Lee,

(“A tort

plaintiff should be able to testify honestly to his memory of

what happened and still have his lawyer argue that on the

evidence as a whole it is more probable than not that the memory

was faulty.”).7

7 Rymes is also off base in claiming that this issue is governed by the so-called “sham affidavit” rule. According to this rule, “[w]hen an interested witness has given clear answers to unambiguous questions, [s]he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of 17 I accordingly reject Rymes’ argument that Gage’s deposition

testimony prevents her from arguing that her episodic migraine

condition constituted a disability under the ADA.8

b. Sufficiency

Gage asserts that she was actually disabled when she worked

for Rymes due to an episodic migraine condition, and that her

June 12, 2013 complex migraine9 was a severe manifestation of

why the testimony is changed." Colantuoni v. Alfred Calcagni & Sons, Inc.,

(1st Cir. 1994). The rule thus allows courts, under appropriate circumstances, to ignore an affidavit that was produced solely to defeat summary judgment. That rule is inapposite here, however, because Gage does not rely upon a self-serving affidavit to oppose Rymes’ motion for summary judgment. Instead, as explained below, Gage cites other evidence - medical records, instant message exchanges, and others’ deposition testimony – to show that she in fact suffered from chronic migraines. The sham affidavit rule therefore does not bar Gage from advancing an evidentiary theory that is inconsistent with her deposition testimony. 8 Rymes attempts to bolster its waiver argument by pointing to the fact that Gage waited until her surreply memorandum to present her episodic migraine argument. Although there is precedent at the appellate level for the proposition that an argument that is not presented in an opening brief is waived, see, e.g., North American Specialty Ins. Co.,

(1st Cir. 2001), Rymes does not cite to this case law or otherwise explain how such a rule should be applied in the trial courts. Because this argument has not been properly developed as a distinct basis for the relief Rymes seeks, I decline to consider it. 9 At various times, including in her briefs, Gage has suggested that she suffered a transient ischemic attack or “mini stroke” or “stroke” on June 12. See Doc. Nos. 14-1 at 14; 14-2 at 4; 14-7 at 36. There is, however, no medical evidence in the record to support her claim. Instead, Gage was actually diagnosed with a complex migraine, and the emergency report repeatedly indicates that the doctor did “not think [Gage’s 18 that condition. The ADAAA provides that “[a]n impairment that

is episodic or in remission is a disability if it would

substantially limit a major life activity when active.”

(4)(D). Courts must consider whether an episodic

impairment substantially limits a plaintiff’s major life

activities “without regard to the ameliorative effects of

mitigating measures,” such as medication.

at § 12102(4)(E);

see

(j)(1)(vi). Here, Gage argues that, when

active and unmitigated, her migraine condition substantially

limits her major life activities of “feel[ing],” “speak[ing],”

and “communicat[ing].” Doc. No. 20 at 2.

In response, Rymes does not dispute that, in some

circumstances, an episodic migraine impairment could constitute

a disability. Instead it argues that Gage has proffered

insufficient evidence to show either that she actually suffered

from migraines, or that her condition substantially limited her

with respect to major life activities. For the reasons set

forth below, Gage has provided minimally sufficient evidence to

support her episodic migraine claim.

First, there is enough evidence for a reasonable juror to

find that Gage actually suffered from a migraine condition.

That evidence includes Gage’s June 12, 2013 “chronic migraine”

condition] represents a TIA.” Doc. No. 12-4 at 2. I therefore refer to Gage’s June 12 impairment as a migraine. 19 diagnosis, and her statements, recorded in the June 12 hospital

report, that she had experienced migraines on a “regular basis”

since age eight. Doc. No. 12-4. Megan Enright’s statements,

including her reference in an instant message exchange to Gage

having a “wicked headache” on June 21, 2013, and her deposition

testimony that Gage “constantly had migraines,” substantiate

Gage’s claim. See Doc. No. 14-7 at 9, 39.

Second, there is also sufficient evidence to support Gage’s

contention that her migraine condition substantially limited her

major life activities of “feel[ing],” “speak[ing],” and

“communicat[ing]” when active. Doc. No. 20 at 2. That evidence

again largely consists of Gage’s comments regarding her June 12

migraine, which produced numbness and cognitive impairments.

See Doc. Nos. 12-4; 14-4. And, again, Enright’s deposition

testimony that Gage “constantly had migraines, and . . . was

never [at the reception desk] to help walk in customers”

arguably corroborates Gage’s claim that her migraine condition

was substantially limiting when active.

This evidence is undoubtedly thin. There is no evidence,

for example, that Gage’s migraines were as debilitating on any

other occasion as during her June 12 episode - the evidence in

fact suggests that her June 12 migraine was unusually serious.

Moreover, Gage has not provided medical evidence, or even her

own affidavit, describing the frequency or intensity of her

20 headaches. Nonetheless, the ADAAA and accompanying regulations

demand a generous view of Gage’s proffer. The substantial

limitation standard “is not meant to be . . . demanding,” and a

plaintiff “usually will not [be required to produce] scientific,

medical, or statistical analysis” to show that her impairment

imposes a substantial limitation.

(j)(1)(i)-

(v). Based upon the ADAAA’s plaintiff-friendly standard, then,

and when drawing every reasonable inference in Gage’s favor, a

reasonable juror could find that Gage’s migraine condition, when

active and unmitigated, substantially limited her with respect

to the major life activities of feeling, speaking and

communicating. I thus decline to grant Rymes’ motion for

summary judgment on this basis.10

2. Discrimination Claims

Rymes next contends that, even assuming that Gage had a

qualifying disability, her disability discrimination claims fail

because Rymes fired her for excessive unexcused absences rather

than because she suffered from migraines. Gage responds that

10 In her initial objection to Rymes’ motion for summary judgment, Gage argued that her June 12 migraine – standing alone, and without any evidence that she had previously experienced a similar event - was sufficiently severe to qualify as a disability. At oral argument, however, Gage’s counsel abandoned this argument. I therefore need not consider whether that single episode, which produced serious symptoms for about six hours before Gage’s symptoms “completely resolved,” could qualify as a disability under the ADA and the ADAAA.

21 Rymes’ proffered justification for her “demotion” and dismissal

was a pretext for discrimination, and that she was actually

“demoted” and fired because of her disability.11

In ADA cases that lack direct evidence of discriminatory

motive, courts apply the familiar burden shifting framework

established in McDonnell Douglas Corp. v. Green,

(1973). See Patten v. Wal-Mart Stores East, Inc.,

(1st Cir. 2002). Under this framework, the plaintiff must

first establish a prima facie case of discrimination. Duhy v.

Concord Gen. Mut. Ins. Co.,

. If the

plaintiff succeeds in establishing a prima facie case, the

burden shifts to the employer to provide a non-discriminatory

reason for the adverse employment action.

If the employer

satisfies this burden, the burden shifts back to the plaintiff

to show that employer’s stated reason for the adverse employment

action was a pretext for discrimination.

Rymes contends that Gage cannot show that its proffered

justification for moving and then firing her – namely, her

11 Rymes also argues that Gage’s move from the reception desk did not constitute an adverse employment action. Doc. No. 12-1 at 9-10. I need not resolve this issue here, however, in light of my ultimate conclusion that Gage’s discrimination claim survives summary judgment. Although I refer to this move as a “demotion” for the sake of brevity, I express no opinion regarding whether Gage’s change in responsibilities constituted an adverse employment action.

22 failure to abide by the company’s personal time policy - was a

pretext for discrimination. There is no “mechanical formula for

finding pretext,” and instead “it is the type of inquiry where

everything depends on the individual facts.” Kelley v.

Correctional Med. Servs., Inc.,

(1st Cir.

2013) (citations and alterations omitted). A plaintiff can show

pretext in a variety of ways, including through “evidence of

differential treatment in the workplace, statistical evidence

showing disparate treatment, temporal proximity of an employee's

protected activity to an employer's adverse action, and comments

by the employer which intimate a retaliatory mindset.” Mesnick

v. Gen. Elec. Co.,

(1st Cir. 1991) (internal

citations omitted); see Bellerose v. SAU No. 39,

. Finally, the First Circuit has cautioned courts to be

“particularly cautious about granting the employer’s motion for

summary judgment” in cases where “the issue becomes whether the

employer’s stated nondiscriminatory reason is a pretext for

discrimination.” Kelley,

.

Here too, Gage has produced minimally sufficient evidence

to support her claim that Rymes’ proffered reason for firing her

was a pretext for unlawful disability discrimination. That

evidence includes Enright’s instant message exchanges regarding

Gage’s headaches, and her deposition testimony that Gage was

moved from the reception desk after June 12, 2013 in part

23 because she “constantly had migraines, and . . . was never there

to help walk in customers.” Doc. No. 14-7 at 9. Viewed

generously, these statements suggest that Gage’s supervisors

were aware of her migraine condition, and believed that her

condition adversely affected her job performance. These remarks

are particularly helpful to Gage’s claim given Enright’s role in

the discussion that led to Gage’s termination, and the close

temporal connection between the conversations, Gage’s change in

responsibilities, and her June 25 firing. See Kelley,

(“One well-established method of demonstrating pretext is

to show that discriminatory comments were made by the key

decisionmaker or those in a position to influence the

decisionmaker.”) (citations and internal punctuation omitted).

Thus, viewed in the light most favorable to Gage, there is

sufficient record evidence that Rymes’ proffered reason for

firing her was a pretext for discrimination.

3. Accommodation Claims

Although Gage has presented minimally sufficient disability

discrimination claims, Rymes is entitled to summary judgment on

Gage’s accommodation claims. See Doc. No. 12-1 at 14-15.

Gage contends that, because she disclosed that she was

absent from work on June 12, 2013 due to “stroke-like symptoms,”

Rymes was obligated to allow her a one-day leave of absence as

an accommodation for her disability. Doc. No. 14-1 at 22-24.

24 She also appears to argue that Rymes violated the ADA by failing

to initiate an interactive dialogue with Gage to address her

potential need for an accommodation. Id. at 22-23. In

response, Rymes argues that Gage’s disclosure was insufficient

to trigger any duty to accommodate.

An employer must make reasonable accommodations for an

employee’s known disability. See

(b)(5)(A).

In assessing whether a proposed accommodation is “reasonable,”

federal regulations provide that “it may be necessary for [an

employer] to initiate an informal, interactive process with the

individual with a disability in need of the accommodation.”

(o)(3). According to EEOC interpretive guidance,

an employer’s duty to engage in interactive process is triggered

“[o]nce an individual with a disability has requested provision

of a reasonable accommodation.” 29 C.F.R. pt. 1630, app. §

1630.9.

In the First Circuit, “[a] plaintiff must explicitly

request an accommodation, unless the employer knew one was

needed.” Jones v. Nationwide Life Ins. Co.,

(1st Cir. 2012). Thus, “[a]n accommodation request must be

sufficiently direct and specific, and it must explain how the

accommodation is linked to plaintiff’s disability.”

“This

means not only notice of a condition, but of a causal connection

between the major life activity that is limited and the

25 accommodation sought.”

(internal quotation marks omitted).

Typically, the ADA’s reasonable accommodation requirement is not

triggered until the employee makes such a request “[b]ecause an

employee’s disability and concomitant need for an accommodation

are often not known to the employer until the employee requests

an accommodation.” Reed v. LePage Bakeries, Inc.,

(1st Cir. 2001).

Here, Gage has presented insufficient evidence to support a

viable accommodation claim. First, Gage concedes that she never

actually requested an accommodation. See Doc. No. 14-2 at 5.

Second, even viewing the evidence in the light most favorable to

Gage, she has not adequately shown that Rymes knew of her

alleged need for an accommodation following her June 12

hospitalization. Instead, the record shows that, upon returning

to work on June 13, Gage told co-workers that she had missed

work on June 12 because of a TIA or “stroke.” When Enright

asked about Gage’s condition on June 13, Gage said that she had

suffered a “transient [i]schemic attack (mini stroke),” but said

that she was “alright though, just have to have an MRA and stuff

done.” Doc. No. 14-7 at 36. Thus, in describing the June 12

episode, Gage gave no indication that her hospitalization was

connected with her migraine condition. She likewise did not

suggest that she had ever experienced a TIA before, or that she

might experience a similar condition in the future. Under these

26 circumstances, Gage’s disclosure was insufficient to trigger any

duty to engage in interactive process or accommodate her

disability. Accordingly, her accommodation claim fails as a

matter of law.

B. Wrongful Discharge Claim

Gage finally alleges that she was wrongfully discharged in

violation of New Hampshire law, specifically contending that she

was fired “with bad faith and malice, in retaliation against her

for performing acts encouraged by public policy, including

seeking necessary medical treatment at an emergency room and

staying home when instructed to do so by her doctors.” Doc. No.

1 at 6. Rymes moves for summary judgment, arguing both that

Gage’s firing was a product of her absenteeism, not bad faith,

retaliation, or malice, and that New Hampshire law does not

recognize taking sick time as an actionable public policy.

Under the facts of this case, Rymes’ second argument is

persuasive, and entitles it to summary judgment on Count III.

To make out a viable wrongful discharge claim under New

Hampshire law, a plaintiff must show that (1) her termination

was motivated by bad faith, retaliation or malice; and (2) that

she was terminated for performing an act that public policy

would encourage or for refusing to do something that public

policy would condemn. Lacasse v. Spaulding Youth Ctr.,

(2006). Thus, “[t]he first prong focuses on the nature

27 of the employer’s actions, while the public policy prong

pertains to the employee’s acts.” Duhy,

(citations and punctuation omitted). “[O]rdinarily the issue of

whether a public policy exists is a question for the jury, [but]

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.” Short v. Sch. Admin. Unit No. 16,

(1992)

(citations and punctuation omitted). This is one of those

times.

Gage claims that she was fired for engaging (or refusing to

engage) in three actions that implicate public policy. She

principally argues that public policy encourages an employee to

take time off from work when seriously ill. In the alternative,

she argues that public policy encourages “a person suffering

from stroke-like symptoms to seek emergency medical treatment,”

and “discourage[s] such a person from getting behind the wheel

and driving to work, endangering herself and others.” Doc. No.

14-1 at 25; see Doc. No. 20 at 5. I address, and ultimately

reject, each argument in turn.12

Gage does not appear to base her wrongful discharge claim on an 12

argument that firing a disabled person violates public policy. To the extent that she is making that argument, her argument fails as a matter of law. The second element of a wrongful discharge claim “focus[es] on the acts of the employee and on their relationship to public policy, not on the mere articulation of a policy by the employee.” Frechette v. Wal- Mart Stores, Inc.,

(D.N.H. 1995). 28 As a preliminary matter, I recognize that there may be

circumstances in which public policy would encourage an employee

to take sick time. See Duhy,

. Barring

unusual circumstances not present here (i.e. a highly contagious

and life threatening illness), however, public policy only

encourages such conduct where the employee has some enforceable

right to take sick time. Thus, public policy may encourage an

employee to take sick time where the employee has a contractual

right to sick time under her employment agreement. But cf.

Gavin v. Liberty Mut. Group Inc.,

(rejecting

argument that public policy encourages employees to take sick

leave pursuant to the employer’s “flexible time off” policy);

Duhy,

(rejecting “as a broad proposition,

[that] public policy encourages employees to take vacation days

or file health insurance claims through the policy offered by

their employer”). Public policy may also encourage an employee

to use sick time that she is entitled to take under state or

Accordingly, “[a] condition that is protected by public policy, such as sickness, disability, and age, as distinguished from acts by the employee that are protected by public policy, does not satisfy the second element of a wrongful discharge claim.” Schomburg v. Dell, Inc.,

(D.N.H. Oct. 4, 2006) (emphasis in original). Indeed, “the New Hampshire Supreme Court has made clear [that] the common law cause of action for wrongful discharge is not the proper means by which to remedy a discharge that was motivated by someone’s status or physical condition.” Parker v. MVM, Inc.,

. Thus, to the extent that Gage bases her wrongful discharge claim upon her status as a disabled person, her claim fails. 29 federal law. For example, if an employee is entitled to sick

time as an accommodation for her disability pursuant to the ADA,

and the employer fires the employee for taking that leave, the

employee might be able to make out a viable wrongful discharge

claim. See Faulkner v. Mary Hitchcock Mem’l Hosp.,

(rejecting argument that Section 354-A preempts wrongful

discharge claim based upon employer’s alleged failure to

accommodate employee’s disability).

Here, however, Gage had neither a contractual right to sick

time nor a statutory right to miss work on June 12. According

to Rymes’ leave policy, employees are entitled to eight hours of

unpaid personal time per year, and accrue paid vacation and

personal time (after a ninety-day probationary period) on a

weekly basis. See Doc. No. 12-3. If an employee misses work

without first accruing sufficient personal time, that employee

is subject to immediate termination. Yet, when Gage missed work

on June 12, 2013, she did not have enough leave time accrued to

cover that absence. In fact, she had fourteen absences in

excess of her accrued time before June 12, none of which were

due to her claimed disability. Doc. No. 12-5 at 2. She

likewise had no statutory right to miss work that day. As

explained above, Gage had no right to a reasonable accommodation

30 pursuant to the ADA or Section 354-A.13 Accordingly, the absence

of Gage’s proffered public policy is sufficiently clear that I

may reject her claim as a matter of law.

Gage’s alternative public policy arguments are more easily

dispatched. Without providing legal authority or other support,

Gage contends that public policy “would encourage a person

suffering stroke-like symptoms to seek emergency medical

treatment” and “would also discourage such a person from getting

behind the wheel and driving to work, endangering herself and

others.” Doc. No. 14-1 at 25. Even assuming that public policy

encourages individuals to seek necessary medical care and

discourages impaired driving, Gage has presented no evidence

that she was actually fired for such conduct. Instead, the

record at most shows that she was fired for taking an

unauthorized absence from work on June 12. And, as explained

above, that conduct cannot form the basis of a viable wrongful

discharge claim under the facts of this case.

IV. CONCLUSION

For the reasons set forth above, Rymes’ motion for summary

judgment (Doc. No. 12) is granted in part and denied in part as

to Count I and Count II, and granted as to Count III. The only

13Gage also has not argued that she was entitled to take sick leave under the Family and Medical Leave Act. 31 claims that remain are Gage’s claims that she was discriminated

against because of her disability in violation of state and

federal law.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

March 1, 2016

cc: Benjamin T. King, Esq. David W. McGrath, Esq. Courtney H.G. Herz, Esq.

32