UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Wanda Duryea

v. Civil No. 15-cv-164-LM Opinion No.

MetroCast Cablevision of New Hampshire, LLC, et al.

O R D E R

Wanda Duryea brings this lawsuit against her former

employer, MetroCast Cablevision of New Hampshire, LLC, asserting

claims for unlawful discrimination and harassment under RSA 354-

A and the Americans with Disabilities Act (“ADA”),

et seq., as well as claims for retaliation under RSA 354-

A:19, the ADA, and the Family and Medical Leave Act (“FMLA”).1

Before the court is defendants’ motion for summary judgment on

all counts. Duryea objects. For the reasons explained herein,

the court grants defendants’ motion for summary judgment on all

claims except those alleging a hostile work environment.

1 Duryea also sues Harron Entertainment Co. and Harron Communications, L.P., companies apparently associated with MetroCast Cablevision of New Hampshire, LLC. For simplicity, the court refers to the defendants, collectively, as “MetroCast.” STANDARD OF REVIEW

A movant is entitled to summary judgment if it “shows that

there is no genuine dispute as to any material fact and [that

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

P. 56(a). In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to

the nonmovant. Kelley v. Corr. Med. Servs., Inc.,

(1st Cir. 2013). Summary judgment is inappropriate when

“the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc.,

(1986).

BACKGROUND

On March 30, 2009, MetroCast hired Duryea as a Technical

Service Representative in its Rochester, New Hampshire call

center. Her job duties included providing phone, email, and

chat support to MetroCast customers. Duryea worked at MetroCast

for more than five years, until her termination on August 27,

2014.

Throughout her employment, Duryea suffered from a number of

alleged disabilities, including bilateral tibial tendinitis (a

condition that results in severe foot pain, especially when

walking), asthma and emphysema, daily back pain, ear pain,

vertigo, nausea, tinnitus, and loss of hearing. During her

2 employment at MetroCast, Duryea requested that MetroCast provide

certain accommodations for her disabilities. Duryea claims that

as a result of her disabilities and accommodation requests she

suffered discrimination and retaliation, culminating in her

termination. She also claims that supervisors and coworkers

regularly harassed her because she was disabled. The court

summarizes her allegations chronologically.2

Harassment in the Early Years of Duryea’s Employment

In 2009, early in her tenure with MetroCast, Duryea

experienced alleged harassment from a coworker who made

inappropriate comments about her gender and her disabilities and

from supervisors who made repetitive negative comments about her

need to wear sneakers at work.

The incident involving a coworker occurred between June and

August 2009. The coworker, Casey Fontneau, harassed Duryea for

being out sick and using a handicapped parking spot at work. He

made comments like “you don’t look sick to me,” “you don’t look

handicapped to me,” and “those spots are for people in

wheelchairs, you can walk.” Doc. no. 27-2 at ¶ 1. Fontneau

also made derogatory gender-based comments to Duryea about her

2 The record in this case is quite lengthy. The court recites here only those facts necessary to analyze Duryea’s claims. In so doing, the court construes the record in the light most favorable to Duryea, drawing all reasonable inferences in her favor.

3 “breast size” and “girly” selection of candy.

On August

13, 2009, Duryea reported Fontneau’s harassment to MetroCast.

MetroCast investigated Duryea’s complaint that same day and

issued Fontneau a written disciplinary notice.

The negative comments about Duryea’s sneakers began in late

2009. MetroCast’s Employee Handbook required all employees at

the Rochester facility to wear “business casual” footwear. Doc.

no. 23-7 at ¶ 8. On November 22, 2009, Duryea requested

permission to wear sneakers at work due to her foot pain. On

November 25, MetroCast granted Duryea’s request. Thereafter,

Duryea claims that several of her supervisors, including Bill

Schwartz, criticized her for wearing sneakers “on a weekly basis

. . . with 20 of those times being by Schwartz himself . . . .”

Doc. no. 27-2 at ¶ 5; see also doc. no. 23-6 at 5 of 10 (“[A]t

least weekly . . . Bill Schwartz or another supervisor commented

that I was wearing sneakers and I had to tell them that I have a

doctor’s note.”). Duryea testified at her deposition that the

negative comments continued for “[m]onths.” See doc. no. 23-3

at 27 of 91. One of Duryea’s former coworkers, Richard

Chojnacki, states in an affidavit that he

overheard various supervisors including Jason Lamontagne, Roy Rudd, and Tony Graves tell [Duryea] repeatedly that she shouldn’t be wearing sneakers at work, and I would hear Wanda respond that she had a doctor’s note and that it was a work modification. But they continued to tell her she shouldn’t be

4 wearing sneakers. I heard these comments at least eight times.

Doc. no. 27-4 at ¶ 6. In February 2011, for reasons not

clear from the record, Schwartz was terminated and

Lamontagne became Duryea’s supervisor.

Issues at Work Following Duryea’s Surgery

Beginning in 2011, following surgery on her right foot,

Duryea alleges that she suffered numerous instances of

harassment and discrimination. The first such incident occurred

on January 14, when Duryea returned to work after surgery in a

wheelchair. Upon her return, Schwartz sent her home, telling

her that she could not return to work unless she had a note from

her doctor. Although Duryea obtained a doctor’s note dated

January 14 verifying that she could return to work using a

wheelchair, see doc. no. 23-11 at 1 of 3, she remained out of

work until January 20.

In addition to wearing sneakers, Duryea also used a scooter

or walker at work, when needed, to lessen the pain from walking.

Duryea alleges that, starting in 2011, she was harassed because

of her scooter and walker use. Lamontagne and Graves required

her to keep the walker and scooter away from her desk so that

they were not in the walkway. Duryea says that walking from her

desk to the scooter and walker caused her pain. Duryea states

that “[e]very time I had to use my scooter, from 2011-2014, Tony

5 Graves would say, ‘You know, if you quit smoking, you would not

need to use that scooter.’” Doc. no. 23-6 at 3 of 10. In her

objection, Duryea appears to clarify that her use of the scooter

“occurred approximately eight (8) times over three years.” Doc.

no. 27-1 at 4.

Finally, Duryea alleges that she experienced a further

incident of harassment in January or February 2011 at a work-

related dinner. Duryea, who was in a wheelchair at the time,

spilled a drink on the floor during the dinner. Duryea’s

supervisor, Alex Laklas, told her to clean up the floor herself.

Duryea “crawled out of the wheelchair onto the ground, and was

watched by many people . . . .” Doc. no. 27-2 at ¶ 18. Laklas

initially refused to let two coworkers help her clean, but he

eventually allowed a coworker to assist her.

Duryea’s FMLA Leave and Her Raise and Bonus

In addition to the allegations of harassment and

discrimination, Duryea also claims that MetroCast retaliated

against her for taking FMLA leave. Specifically, Duryea alleges

that MetroCast gave her lower raises and bonuses in 2011 and

2012 because she took FMLA leave in those years.

At the end of the calendar year, MetroCast gave each

employee a raise and bonus based on the overall performance

rating that employee received in her annual performance

6 evaluation. MetroCast calculates an employee’s overall

performance rating by averaging the employee’s scores in five

different categories. Those five categories have a total of 28

subcategories. One of those 28 subcategories is entitled

“Attendance, punctuality, time management” (“Attendance

Category”).3

In both 2011 and 2012, Duryea received the lowest possible

rating, “Needs Improvement,”4 in the Attendance Category. In its

comments in both years, MetroCast wrote that it “would like to

see her attendance managed better.” See doc. no. 23-3 at 76 of

91, 81 of 91. MetroCast explained in the comments that Duryea

had used her allotted paid time off—vacation, personal, and sick

days—well before the end of each calendar year.5 When Duryea

received her 2012 evaluation, her supervisor told her that she

received a lower rating in the Attendance Category “because of

[her] absences.”

at 12 of 91. Duryea claims that MetroCast

retaliated against her by using her FMLA-protected leave, which

3 Beginning in 2013, MetroCast removed the Attendance Category from its annual performance evaluations.

4 MetroCast defines “Needs Improvement” as “Consistently falls short of performance standards. Performance has declined significantly, or employee has not sustained adequate improvement, as required, since the last performance review.” See doc. no. 23-3 at 75 of 91.

5 Duryea does not dispute that she exhausted her paid time off in both 2011 and 2012.

7 she took at various times in 2011 and 2012, to calculate her low

ratings in the Attendance Category, thereby reducing her raises

and bonuses in those years.

In 2011, although Duryea’s overall performance rating was

2.7 out of 4, she received a raise (2.66%) higher than the

company standard (2.5%) and received the highest bonus ($1,000)

she was eligible to receive.6 In 2012, Duryea’s overall

performance rating was 2.8 out of 4, and she received a raise

(2.8%) slightly lower than the company standard (3%) and

received a bonus ($933) that was 93% of the highest bonus

($1,000) she could receive. In December 2012, Duryea complained

to her department manager that her FMLA-protected leave had

affected her raise and bonus, but MetroCast did not change

either her raise or bonus.

Duryea’s Request for a Parking Accommodation

Duryea alleges that, in November 2013, MetroCast

discriminated against her by waiting 10 days before

accommodating her request for a parking space closer to the

employee entrance to the building. Prior to 2013, MetroCast

6 MetroCast does not explain how it determined the company standard raise. MetroCast states that individual employee “[b]onuses and raises are calculated at the corporate level based upon the amounts budgeted by the company for annual raises and bonuses, and the overall performance rating given by the employee’s supervisor.” Doc. no. 23-7 at ¶ 6.

8 permitted employees to enter the building through the main

customer entrance, and Duryea had a designated handicap parking

space near that entrance. By the fall of 2013, MetroCast had a

new employee entrance and announced to employees that they could

no longer enter the building through the main customer entrance

and had to use the employee entrance. There were no handicap

parking spaces located near the employee entrance.

On November 1, 2013, Duryea was experiencing increased foot

pain and asked her department manager, Roy Rudd, if she could

park closer to the employee entrance “during her overtime

shifts.” Doc. no. 27-2 at ¶ 23.7 Rudd verbally denied her

request. Duryea then informed her other supervisors that “she

could not work her scheduled overtime” shifts because she “would

have trouble walking from her car into the building.” Id. at ¶

24.

On November 4, Duryea gave MetroCast a note, signed by Dr.

Nancy Stoll, requesting that she be allowed to park closer to

the employee entrance for the next two weeks until she could

evaluate Duryea and determine the extent of her disability. Dr.

Stoll’s note states:

Please allow Wanda Duryea to park close to the employee entrance door over the next 2 weeks until she can make an appointment at our office to assess the

7It is unclear from the record why Duryea limited her request to overtime shifts.

9 extent of her disability. Unfortunately, as her covering provider for this practice, I am not able to confirm that Ms. Duryea is significantly disabled to require long-term accommodation regarding her parking situation at work.

Doc. no. 23-15.8 MetroCast did not immediately provide Duryea

with a closer parking space.

On November 5, Duryea left work and went to Barrington

Urgent Care due to intense foot pain, which she claims was

caused by additional walking at work. Duryea was seen by Dr.

Stoll the next day, and Dr. Stoll faxed a note to MetroCast

stating that Duryea “must be excused from work” until November

13. See doc. no. 23-16. The note also states:

She may return to [work] on Wednesday, 11/13/2013, under the following terms: accommodations to be made to allow Mrs. Duryea to park closer to the new employee entrance or provide a key for the front lobby of the building due to her chronic medical condition.

Id. MetroCast then sent Dr. Stoll an “ADA Certification Form”

to substantiate the requested parking accommodation. See doc.

no. 23-18 at 9-10 of 10.9

8Dr. Stoll was not Duryea’s regular doctor but was filling in for her primary care physician.

9MetroCast uses a standard two-page form, which it refers to as an “ADA Certification Form,” to substantiate a disabled employee’s accommodation request. The employee’s physician signs the form and describes any accommodations that would allow the employee to perform the essential functions of her job. See doc. no. 23-18 at 9-10 of 10.

10 On November 11, Dr. Stoll returned the form to MetroCast,

confirming Duryea’s need for the parking accommodation. By

letter dated November 11, MetroCast approved the accommodation

request and provided Duryea with a parking space near the

employee entrance.

Duryea’s Request for a Desk Accommodation

Duryea also claims that MetroCast discriminated against her

by denying her a timely accommodation regarding the location of

her desk. On January 27, 2014, after Duryea returned to work

from three weeks of FMLA leave, she discovered that MetroCast

had moved her desk to the far end of the call center, away from

the employee entrance. Duryea told Lamontagne “that walking the

extra distance to her new seat would be painful on her feet.”

Doc. no. 27-2 at ¶ 33. Lamontagne did not offer to move her

desk, but instead explained that Rudd had moved her desk so that

new employees could be closer to Lamontagne for training

purposes.

Duryea made a formal request for a desk accommodation after

returning from a three-month-long medical leave on May 29, 2014.

On that date, Duryea provided MetroCast with a note dated

February 15, 2014, from Dr. Joseph Martinez of Wentworth Health

Partners, stating that “her desk needs to be located as close to

the entrance/exit as possible to limit the distance she is

11 required to walk.” Doc. no. 24-2. That same day, MetroCast

faxed an ADA Certification Form to Wentworth Health Partners.

One day later, on May 30, MetroCast moved Duryea’s desk as close

to the employee entrance as possible, pending receipt of the ADA

Certification Form. On June 12, MetroCast received the

completed form and notified Duryea that her desk would continue

to be located as close to the employee entrance as possible.

Assignment of Training Tasks Following Medical Leave

Duryea alleges that during roughly the same period in 2014

that she requested the parking and desk accommodations,

MetroCast also discriminated against her by giving her training

assignments upon her return from two separate medical leaves.

First, when Duryea returned to work after taking leave from

January 31 through February 11, 2014, she claims that MetroCast

assigned to her “tasks that trainee employees are assigned.”

Doc. no. 23-6 at 6 of 10. She had not been assigned such

trainee tasks in over three years. Shortly thereafter, Duryea

took medical leave from February 13 through May 29, 2014, due to

ear pain, vertigo, and nausea. Duryea claims that, upon her

return on May 30, MetroCast placed her on “training status” for

one week, until June 6. Id.

12 Termination of Duryea’s Employment

On May 27, 2014, Duryea filed a charge of discrimination

against MetroCast with the Equal Employment Opportunity

Commission (“EEOC”). On June 10, 2014, MetroCast received

notice of the complaint from the EEOC.

Duryea’s health deteriorated in the summer of 2014, as she

began to experience problems with vertigo and breathing. On

June 17, Duryea gave MetroCast a doctor’s note indicating that

she was being treated for vertigo and could work when she did

not experience dizziness. After receiving an ADA Certification

Form from her physician, MetroCast granted Duryea an

accommodation to take intermittent unpaid leave when needed

because of her vertigo.

Then, in July 2014, Duryea experienced asthma and breathing

difficulties unrelated to her vertigo. On July 8, Duryea called

out of work for breathing problems, and she was treated for

bronchial asthma and chronic sinusitis. Duryea’s doctor

indicated that she could return to work on July 28.

On July 22, 2014, MetroCast notified Duryea, that she had

no remaining paid time off—vacation, personal, or sick days—for

the year. MetroCast informed Duryea that she would only be

eligible to take additional time off for: (1) approved unpaid

leave under the FMLA; (2) approved unpaid leave as a reasonable

13 accommodation under the ADA; or (3) leave that is specifically

provided for in the Employee Handbook. MetroCast did not

otherwise permit employees to take unpaid time off and remain

employed.

On July 26, while still out of work, Duryea inquired about

her remaining FMLA leave. MetroCast advised her that she was

not eligible to take FMLA leave until November 2014. MetroCast

explained, however, that if her asthma and breathing

difficulties qualified as a disability, Duryea may be eligible

for additional unpaid time off as an ADA accommodation. As

such, MetroCast asked her to obtain an ADA Certification Form

regarding her asthma and breathing difficulties.

On August 14, Duryea’s primary care physician, Dr. Girish

Joshi, sent MetroCast an ADA Certification Form indicating that

Duryea, who remained out of work, had chronic obstructive

pulmonary disease (COPD) and was not expected to improve. Dr.

Joshi stated that Duryea could not perform the essential

functions of her position as a Technical Service Representative

because she had difficulty “with talking and breathing at work

and is not able to talk for long periods on phone.” Doc. no.

24-16. He did not indicate any reasonable accommodations that

would allow her to return to work.

14 On August 26, MetroCast’s Director of Human Resources, Joan

McGlinn, spoke with Duryea to determine whether she agreed with

Dr. Joshi that there was no accommodation that would allow her

to return to work. Duryea said that she did not think she would

ever be able to return to work.

On August 27, McGlinn sent Duryea a letter terminating her

employment, which stated in part:

In particular, your health care provider did not list any accommodation that the Company could provide to you, and also indicated that your condition was permanent. When you and I spoke yesterday, I asked you whether you agreed with your health care provider or whether you thought that there might be some accommodation that we could provide to you. In response, you did not disagree with your health care provider’s position and indicated that you couldn’t breathe and that you didn’t think that you would ever be able to return to work.

Since no accommodation has been identified to allow you to continue to work, the Company is hereby terminating your employment, effective today.

Doc. no. 24-17.10

Duryea Files This Lawsuit

On December 15, 2014, Duryea amended her EEOC complaint to

include her termination. On January 6, 2015, the EEOC issued

Duryea a Notice of Right to Sue. On April 4, 2015, Duryea filed

a complaint against MetroCast in state court, alleging claims

10There is no dispute that the Social Security Administration had declared Duryea totally disabled as of at least August 27, 2014.

15 for disability discrimination and harassment under RSA 354-A and

the ADA (Counts I and III), retaliatory discharge under RSA 354-

A:19 and the ADA (Counts II and IV), and retaliation under the

FMLA (Count V). See doc. no. 1-1. MetroCast removed the case

to this court and now moves for summary judgment.

DISCUSSION

I. Disability Discrimination / Hostile Work Environment (Counts I and III)

In Counts I and III, Duryea asserts claims against

MetroCast for disability discrimination and harassment under RSA

354-A and the ADA, respectively. She contends that she was

discriminated against because of her disabilities and subjected

to harassment that created a hostile work environment. The

parties agree that the analysis of Duryea’s claims is the same

under RSA 354-A and the ADA; thus, the court relies on cases

interpreting the ADA to assess both her state and federal

claims. See Posteraro v. RBS Citizens, N.A.,

(D.N.H. 2016); Gallagher v. Unitil Serv. Corp., No. 14-

cv-20-SM,

, at *15 (D.N.H. Sept. 17, 2015); see

also Madeja v. MPB Corp.,

(2003) (relying on

cases interpreting federal employment discrimination law to aid

interpretation of RSA 354-A).

16 A. Hostile Work Environment

Duryea first claims that MetroCast employees, including

supervisors, harassed her because of her disabilities. To

succeed on a hostile work environment claim based on disability

harassment, an employee must show that (1) she was disabled, (2)

she was subjected to a hostile environment, and (3) the

hostility was directed at her because of her disability. See

Quiles-Quiles v. Henderson,

, 5 & n.1 (1st Cir. 2006).

The employee must present evidence that the harassment was

“sufficiently severe or pervasive so as to alter the conditions

of [her] employment and create an abusive work environment.”

Ponte v. Steelcase Inc.,

(1st Cir. 2014)

(quoting Forrest v. Brinker Int’l Payroll Co.,

(1st Cir. 2007)). MetroCast argues that the evidence of alleged

harassment in this case is insufficient to constitute a hostile

work environment.

While there is “no mathematically precise test to determine

whether a plaintiff presented sufficient evidence that she was

subjected to a severely or pervasively hostile work

environment,” Pomales v. Celulares Telefonica, Inc.,

(1st Cir. 2006) (internal quotation marks and alteration

omitted), she must show that her “workplace was permeated with

discriminatory intimidation, ridicule, and insult that was

17 sufficiently severe or pervasive to alter the conditions of

[her] employment and create an abusive working environment.”

Quiles-Quiles,

(alterations omitted) (quoting

Harris v. Forklift Sys., Inc.,

(1993)). The

harassment must be “both objectively and subjectively offensive,

such that a reasonable person would find it hostile or abusive

and the victim in fact did perceive it to be so.” Ponte,

(quoting Forrest,

).

Courts consider factors such as the “frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work

performance.” Noviello v. City of Boston,

(1st

Cir. 2005) (quoting Faragher v. City of Boca Raton,

(1998)). “Case law is clear that simple teasing,

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms

and conditions of employment to establish an objectively hostile

or abusive work environment.” Colón-Fontánez v. Municipality of

San Juan,

(1st Cir. 2011) (internal quotation

marks omitted). The court must “distinguish between the

ordinary, if occasionally unpleasant, vicissitudes of the

18 workplace and actual harassment.”

(quoting Noviello,

).

Here, Duryea points to numerous incidents of alleged

harassment, including the following:

 Fontneau’s disparaging comments in 2009 about her disability and gender

 Repetitive comments from Duryea’s supervisors from 2009- 2011 about her sneakers, despite their awareness of her foot-related disability

 The incident at a work-related dinner in 2011 where she dropped a drink on the floor while in a wheelchair and a supervisor humiliated her in front of others by demanding that she clean up the floor by herself

 Graves’s negative comments from 2011-2014 about Duryea’s use of a scooter, despite his awareness that she used a scooter as an accommodation for her foot-related disability.

MetroCast argues, in passing, that Duryea’s claims of

disability-based harassment are time barred. However, construed

favorably to Duryea, her hostile work environment claim alleges

a continuing violation. See Tobin v. Liberty Mut. Ins. Co.,

(1st Cir. 2009) (a continuing violation “is

composed of a series of separate acts that collectively

constitute one ‘unlawful employment practice’” (quoting Nat’l

R.R. Passenger Corp. v. Morgan,

(2002))); see

also Ayala v. Shinseki,

(1st Cir. 2015) (“Under

the ‘continuing violation’ doctrine, a plaintiff may obtain

recovery for discriminatory acts that otherwise would be time-

19 barred so long as a related act fell within the limitations

period.” (quoting Tobin,

)); Johnson v. Univ. of

P.R.,

(1st Cir. 2013) (“Discrete acts and

hostile work environment claims are ‘different in kind,’ because

hostile work environment claims by their nature involve repeated

conduct and a single act of harassment may not be actionable on

its own.” (internal citations omitted)). Construed in Duryea’s

favor, she has described a pattern of disability-related

harassment that continued from 2009 through at least January

2014, when Graves made comments about her use of the scooter.

“As [the First Circuit has] observed, the hostile

environment question is commonly one of degree—both as to

severity and pervasiveness—to be resolved by the trier of fact

on the basis of inferences drawn from a broad array of

circumstantial and often conflicting evidence.” Billings v.

Town of Grafton,

(1st Cir. 2008) (internal

quotation marks omitted). Here, based on the number of

supervisor-initiated comments and incidents at issue, and the

severity of the incident at the work-related dinner, the

question of whether the alleged disability harassment was severe

or pervasive enough to constitute a hostile work environment

should be resolved by a jury. Accordingly, the court denies

MetroCast’s motion for summary judgment on Counts I and III with

20 respect to Duryea’s hostile work environment claims based on

disability harassment.11

B. Disability Discrimination

Duryea also claims that MetroCast discriminated against her

because of her disabilities. Her discrimination claim appears

to assert two distinct theories of liability: (1) failure to

accommodate her disabilities and (2) disparate treatment. See

Carroll v. Xerox Corp.,

(1st Cir. 2002). The

court analyzes each claim in turn.

1. Reasonable Accommodation Claim

Employers are required to make “reasonable accommodations”

for “the known physical or mental limitations” of an otherwise

“qualified individual with a disability.” See

(b)(5)(A); RSA 354-A:7, VII(a). An employee may bring a

discrimination claim based on her employer’s failure to

reasonably accommodate her disability. See, e.g., Lang v. Wal-

Mart Stores East, L.P.,

(1st Cir. 2016). In

order to survive a motion for summary judgment on a reasonable

11In Duryea’s objection to MetroCast’s summary judgment motion, she advances a constructive-discharge claim for the first time. Duryea did not bring a claim for constructive discharge in her complaint, and she cannot amend the complaint through her objection. See Asociación de Suscripción Conjunta del Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez,

(1st Cir. 2011).

21 accommodation claim, the employee must produce enough evidence

for a reasonable jury to find that (1) she was disabled within

the meaning of the ADA; (2) she was an “otherwise qualified

individual,” meaning she was able to perform the essential

functions of her job, either with or without a reasonable

accommodation; and (3) the defendant, despite knowing of the

employee’s disability, did not reasonably accommodate it. See

Valle-Arce v. P.R. Ports Auth.,

, 198 (1st Cir.

2011); Rocafort v. IBM Corp.,

(1st Cir. 2003).

Duryea claims that MetroCast failed to provide reasonable

accommodations in response to her requests for a parking space

and desk near the employee entrance. Although MetroCast granted

both accommodations upon receiving disability paperwork from her

physicians, Duryea contends that MetroCast failed to provide the

accommodations within a reasonable period of time because of the

delay between her requests and MetroCast’s approval.

Duryea provides no support for her argument that an

employer’s delay while waiting for supporting medical

documentation constitutes a failure to provide a reasonable

accommodation, and neither RSA 354-A nor the ADA requires an

employer to grant accommodation requests within a certain number

of days. Even viewing the facts most favorably to Duryea, no

reasonable jury could conclude that MetroCast’s delay in

22 providing these accommodations constitutes disability

discrimination. Accordingly, Duryea’s claim that MetroCast

failed to reasonably accommodate her disabilities is

insufficient to get to a jury.

2. Disparate Treatment Claim

Duryea also alleges disability discrimination based on

disparate treatment. To establish a prima facie case of

disability discrimination based on disparate treatment, an

employee must show “(1) that she was ‘disabled’ within the

meaning of the ADA; (2) that she was able to perform the

essential functions of her job with or without accommodation;

and (3) that she was discharged or adversely affected, in whole

or in part, because of her disability.” Jones v. Walgreen Co.,

(1st Cir. 2012) (quoting Ruiz Rivera v. Pfizer

Pharms., LLC,

(1st Cir. 2008)). If the

plaintiff establishes a prima facie case, then the employer must

articulate a legitimate, non-discriminatory reason for its

action, and, if the employer does so, the burden then shifts

back to the plaintiff to show that the employer’s justification

is mere pretext. See Tobin v. Liberty Mut. Ins. Co.,

(1st Cir. 2005).

“An adverse employment action typically involves discrete

changes in the terms of employment, such as hiring, firing,

23 failing to promote, reassignment with significantly different

responsibilities, or a decision causing significant change in

benefits.” Garmon v. Nat’l R.R. Passenger Corp.,

(1st Cir. 2016) (internal quotation marks omitted). “To be

adverse, an employment action must materially change the

conditions of plaintiffs’ employ.” Cham v. Station Operators,

Inc.,

(1st Cir. 2012) (internal quotation marks

omitted). The First Circuit has indicated that to constitute an

adverse action, the employer must either

(1) take something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsi- bilities, or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service.

Blackie v. Maine,

(1st Cir. 1996) (internal

citations omitted). “[T]he mere fact that an employee is

displeased by an employer’s act or omission does not elevate

that act or omission to the level of a materially adverse

employment action.”

Duryea’s argument regarding what constitutes an adverse

employment action for purposes of this claim is less than clear.

The only allegation that comes close to constituting an adverse

action is her claim that MetroCast gave her a quasi-demotion by

requiring her to complete assignments for employees in training

24 on two occasions after she returned to work following extended

medical absences.12 Duryea argues that it “was insulting to be

given training tasks after several years of employment.” Doc.

no. 27-1 at 24.

Despite Duryea’s characterization of the training

assignments as a temporary demotion, MetroCast placed her on

training status for only a limited period of time, and she did

not lose status, wages, or benefits as a result. No reasonable

jury could conclude that placing Duryea on temporary training

status was an adverse employment action related to her

disabilities. Moreover, even assuming Duryea could establish

that placing her on temporary training status was an adverse

action, she has presented no evidence that MetroCast’s stated

reason for this action was a pretext for discriminatory animus.

Duryea does not allege that MetroCast treated other employees

12Duryea’s complaint mentions a number of other incidents, but not one constitutes an adverse action based on her disabilities. For example, Duryea argues that MetroCast discriminated against her by requiring her to obtain a doctor’s note before allowing her to return to work in a wheelchair, causing her to miss several days of work. But, Duryea was not terminated, demoted, or placed into any lesser employment status as a result of this incident. Additionally, Duryea has failed to show that MetroCast would not have required other employees to obtain a doctor’s note under the same or similar circumstances.

25 returning from extended leaves of absences any differently, and

there is no evidence in the record that MetroCast treated Duryea

differently because of her disabilities when it gave her the

training assignments. In fact, the record shows that MetroCast

placed employees returning from extended leaves of absence,

regardless of the reason for that leave, on temporary training

status to become familiar with any new programs, policies, or

procedures that went into effect while they were out of work.

See doc. no. 23-4 at 2 of 4; doc. no. 23-5 at 3-4 of 4.

In sum, there is no genuine dispute of material fact as to

whether MetroCast discriminated against Duryea on the basis of

her disabilities. Accordingly, MetroCast is entitled to summary

judgment on Duryea’s disparate treatment and failure to

accommodate claims in Counts I and III.

II. Retaliatory Discharge (Counts II and IV)

In Counts II and IV, Duryea asserts claims against

MetroCast for retaliatory discharge under RSA 354-A:19 and the

ADA,

, respectively. Because the analysis is

the same under RSA 354-A and the ADA, the court again relies on

cases interpreting the ADA to assess both Duryea’s state and

federal retaliation claims. See Madeja,

.

Duryea alleges that MetroCast terminated her employment because

26 she requested accommodations for her disabilities and filed a

charge of discrimination with the EEOC.13

“A retaliation claim under the ADA is analyzed under the

familiar burden-shifting framework drawn from cases arising

under Title VII.” Kelley,

. To make out a prima

facie retaliation claim under the ADA, the plaintiff must show

that “(1) she engaged in protected conduct; (2) she experienced

an adverse employment action; and (3) there was a causal

connection between the protected conduct and the adverse

employment action.”

(internal quotation marks omitted). If

the plaintiff makes a prima facie showing of retaliation, the

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

retaliatory reason for its employment decision.

Finally,

if the defendant meets this burden, then the plaintiff “must

show that the proffered legitimate reason is pretextual” and

that the employment decision was “the result of the defendant’s

retaliatory animus.”

(internal quotations marks omitted).

13In her objection to MetroCast’s summary judgment motion, Duryea characterizes Counts II and IV as asserting claims for retaliatory discharge and retaliatory harassment. Counts II and IV in Duryea’s complaint clearly allege “retaliatory termination” based on Duryea’s accommodation requests and EEOC complaint. See doc. no. 1-1 at ¶ 60, 61, 68. However, they do not allege retaliatory harassment. While the complaint includes allegations concerning harassment, there is no indication that Counts II and IV are based on that conduct. Duryea cannot amend the complaint through her objection. See Juarbe-Jiménez,

.

27 MetroCast does not dispute that Duryea engaged in protected

conduct by requesting reasonable accommodations for her

disabilities and filing an EEOC complaint. Nor does it dispute

that she experienced an adverse action when her employment was

terminated. Rather, MetroCast argues that Duryea’s retaliation

claim fails because the record contains insufficient evidence

for a reasonable jury to conclude that she would not have been

terminated but for the protected conduct, and, in any event, she

cannot establish pretext.

A. Causal Connection

To establish causation, “the plaintiff must show a nexus

between the protected conduct and the alleged retaliatory act.”

Colón-Fontánez,

(citations omitted). Duryea

makes no argument as to causation in her objection or surreply.

The record contains no evidence suggesting that MetroCast

harbored any retaliatory animus on the basis of either Duryea’s

requests for accommodations or her filing of the EEOC complaint.

Although Duryea does not argue causation, the court notes

that temporal proximity alone can, in certain circumstances,

establish causation. See

(“One way of showing causation is

by establishing that the employer’s knowledge of the protected

activity was close in time to the employer’s adverse action.”

(internal quotation marks omitted)); DeCaire v. Mukasey, 530

(1st Cir. 2008) (“[O]ur law is that temporal

proximity alone can suffice to meet the relatively light burden

of establishing a prima facie case of retaliation.” (internal

quotation marks omitted)). Here, MetroCast terminated Duryea’s

employment approximately two and one-half months after MetroCast

received notice of the EEOC complaint. Viewing the evidence in

the light most favorable to Duryea, such temporal proximity

could be sufficient to establish causation. See Clark Cty. Sch.

Dist. v. Breeden,

(2001) (“The cases that

accept mere temporal proximity between an employer’s knowledge

of protected activity and an adverse employment action as

sufficient evidence of causality to establish a prima facie case

uniformly hold that the temporal proximity must be ‘very

close.’” (citations omitted)); Planadeball v. Wyndham Vacation

Resorts, Inc.,

(1st Cir. 2015) (holding that

“two-month gap between protected activity and a material adverse

action is sufficiently short to establish a prima facie case of

retaliation”); Sánchez-Rodríguez v. AT&T Mobility P.R., Inc.,

(1st Cir. 2012) (holding that three-month gap

between filing EEOC complaint and employer discipline was “close

enough to suggest causation”). The court will presume that

Duryea has established a prima facie case of retaliation. As

explained below, however, Duryea fails to show pretext.

29 B. Legitimate Non-retaliatory Reason

Duryea does not dispute that MetroCast articulated a

legitimate, non-retaliatory reason for terminating Duryea’s

employment. On August 14, 2014, Dr. Joshi informed MetroCast

that Duryea could not perform the essential functions of her job

because she had COPD. Dr. Joshi stated that Duryea was not

expected to improve, and he did not indicate any accommodations

that would allow her to return to work. On August 26, MetroCast

spoke with Duryea. Duryea did not disagree with Dr. Joshi’s

prognosis and indicated that she did not think she would ever be

able to return to work. On August 27, MetroCast terminated

Duryea’s employment because she had exhausted her available

leave time and could no longer perform the essential functions

of her job, with or without a reasonable accommodation.

C. Pretext

Because MetroCast has articulated a legitimate, non-

retaliatory reason for terminating Duryea’s employment, Duryea

must show that MetroCast’s stated reason is mere pretext offered

to disguise its retaliatory animus. In order to show pretext,

Duryea must show both that MetroCast’s reason for terminating

her was false, and that MetroCast actually terminated her in

retaliation for her accommodation requests and EEOC complaint.

30 See Lang,

(citing St. Mary’s Honor Ctr. v.

Hicks,

(1993)). Temporal proximity alone is

insufficient to meet her burden. See, e.g., Planadeball,

; Hubbard v. Tyco Integrated Cable Sys., Inc.,

(D.N.H. 2013).

Duryea does not argue that MetroCast’s stated reason for

terminating her employment was false, nor does she point to any

evidence of pretext. Duryea instead seems to suggest that

MetroCast only requested an ADA Certification Form regarding her

asthma and breathing difficulties so that MetroCast would have a

reason to fire her. No reasonable jury could come to such a

conclusion.

As of August 2014, Duryea had exhausted her available paid

and unpaid time off, including FMLA leave. Duryea was not

entitled to remain employed if she took additional unpaid time

off. MetroCast, however, attempted to provide Duryea with

intermittent unpaid leave as an accommodation for her asthma and

breathing difficulties, which would have allowed her to remain

employed.

The uncontroverted evidence shows that MetroCast requested

the ADA Certification Form not because it was looking for a

reason to fire Duryea, but in an effort to accommodate her

asthma and breathing difficulties so that she could take

31 additional unpaid time off and keep her job. Despite

MetroCast’s efforts, Dr. Joshi certified that no such accommo-

dation would allow Duryea to return to work. The record

establishes that MetroCast only terminated Duryea’s employment

after it learned that she could not return to work—and after

Duryea told MetroCast that she did not think she would ever be

able to return to work—with or without the accommodation of

additional unpaid leave. Duryea has pointed to no evidence

suggesting that this was not the actual reason for her

termination.

Moreover, Duryea provides no evidence that MetroCast

harbored retaliatory animus on the basis of either her EEOC

complaint or accommodation requests. In fact, MetroCast

actually granted every accommodation she requested. See Soileau

v. Guilford of Maine, Inc.,

(1st Cir. 1997)

(“Evidence that an employer willingly granted an employee’s

request for an accommodation, though by no means dispositive of

the matter, tends to militate against making an inference of

retaliation . . . .”); cf. Kelley,

(employer’s

resistance and confrontation in response to employee’s

accommodation requests was evidence of pretext). Notably, in

July 2014, after receiving notice of her EEOC complaint,

MetroCast offered and granted Duryea intermittent leave as an

32 accommodation, which allowed her to miss work when she

experienced vertigo symptoms. The record shows that throughout

Duryea’s five years of employment, MetroCast routinely made an

effort to accommodate her disabilities and allowed her to take

time off when needed.

Duryea points to statements allegedly made by three

supervisors that suggest those supervisors viewed her as

“faking” her disabilities and “trying to not work.” See doc.

no. 27-4 at ¶ 10. Two of those supervisors were overheard

saying that they “had decided to let Wanda go and that they

needed to up come with an excuse to fire her.” Id. at ¶ 11.

There are several problems with Duryea’s reliance upon

these statements as support for her pretext argument. First,

there is no evidence that those supervisors played any role in

Duryea’s termination. Second, there is no evidence suggesting

either a temporal or causal relationship between the statements

and Duryea’s termination. Indeed, Duryea provides no evidence

as to when any of these statements were made.

“A ‘stray remark’ is a statement that, while on its face

appears to suggest bias, is not temporally or causally connected

to the challenged employment decision and thus not probative of

discriminatory animus.” Barry v. Moran,

(1st

Cir. 2011). “‘[S]tray workplace remarks,’ as well as statements

33 made either by nondecisionmakers or by decisionmakers not

involved in the decisional process, normally are insufficient,

standing alone, to establish either pretext or the requisite

discriminatory animus.” Gonzalez v. El Dia, Inc.,

(1st Cir. 2002). Comments are not probative of pretext when

“they were made in a situation temporally remote from the date

of the employment decision, or were not related to the employ-

ment decision in question, or were made by nondecisionmakers.”

Straughn v. Delta Air Lines, Inc.,

(1st Cir.

2001) (internal quotation marks and alteration omitted).

Here, there is no evidence linking the comments by Duryea’s

supervisors to her ultimate termination in August 2014. Thus,

even assuming the comments suggest that certain supervisors

harbored discriminatory animus toward her, Duryea fails to

explain any temporal or causal connection between those undated

comments and MetroCast’s decision to terminate Duryea. Although

certain supervisors may have wanted to fire Duryea, there is no

evidence in the record that those supervisors played any role in

MetroCast’s decision to terminate Duryea’s employment. See,

e.g., Santiago-Ramos v. Centennial P.R. Wireless Corp.,

(1st Cir. 2000) (“Typically, statements made by one who

neither makes nor influences [a] challenged personnel decision

are not probative in an employment discrimination case.”

34 (internal quotation marks omitted)); Laurin v. Providence Hosp.,

(1st Cir. 1998) (“[S]tatements by decisionmakers

unrelated to the decisional process itself normally are

insufficient to establish discriminatory animus.” (internal

quotation marks omitted)). Given the “compelling stated reason”

for Duryea’s termination, see Rivera-Aponte v. Rest. Metropol

#3, Inc.,

(1st Cir. 2003), the comments unrelated

to her termination are insufficient to create a triable issue on

pretext.

In sum, viewing the record in Duryea’s favor, no reasonable

jury could conclude that MetroCast’s stated reason for her

termination—that by her own admission she could not return to

work due to her medical condition—was mere pretext, and that

MetroCast actually terminated Duryea in retaliation for

requesting accommodations and filing an EEOC complaint.

Accordingly, MetroCast is entitled to summary judgment on Counts

II and IV.

III. FMLA Retaliation (Count V)

In Count V, Duryea alleges that MetroCast retaliated

against her for taking FMLA leave by counting FMLA-protected

absences against her in calculating her annual raises and

bonuses in 2011 and 2012.

35 “[T]he FMLA prohibits retaliation against employees who

take FMLA leave.” Pagán-Colón v. Walgreens of San Patricio,

Inc.,

(1st Cir. 2012). For example, “employers

cannot use the taking of FMLA leave as a negative factor in

employment actions, such as hiring, promotions or disciplinary

actions; nor can FMLA leave be counted under ‘no fault’

attendance policies.”

(quoting

(c)). To

make out a prima facie case of FMLA retaliation, an employee

must show: “(1) she availed herself of a protected FMLA right;

(2) she was adversely affected by an employment decision; and

(3) there was a causal connection between her protected conduct

and the adverse employment action.” Carrero-Ojeda v. Autoridad

de Energia Electrica,

(1st Cir. 2014)

(internal quotation marks and alteration omitted).

Duryea alleges that MetroCast used her FMLA leave as a

negative factor in calculating her raise and bonus. In both

2011 and 2012, MetroCast gave Duryea the lowest possible rating

in the Attendance Category, which measured an employee’s annual

performance in terms of attendance, punctuality, and time

management. Duryea claims that she received the low ratings

because she took time off from work, including FMLA-protected

absences. And, because the Attendance Category was one of 28

subcategories MetroCast used to calculate raises and bonuses,

36 Duryea claims that her raises and bonuses in 2011 and 2012 were

lower than they otherwise would have been if she had not taken

FMLA leave. MetroCast argues that Duryea’s FMLA claim is barred

by the FMLA’s statute of limitations. The court agrees.

A person alleging a violation of the FMLA generally must

bring her claim within two years from “the date of the last

event constituting the alleged violation for which the action is

brought.”

(c)(1). However, in the case of a

willful violation of the FMLA, the statute of limitations is

extended to three years.

(c)(2). Duryea filed

her complaint on April 4, 2015, more than three years after she

received her 2011 raise and bonus, but only two years and four

months after she received her 2012 raise and bonus. Thus, while

Duryea’s 2011 claim is time barred, her 2012 claim would be

within the three-year statute of limitations for a willful

violation. Duryea must therefore present evidence that

MetroCast willfully retaliated against her in 2012 for taking

FMLA leave.

Although the FMLA does not define “willful,” the First

Circuit has held that “in order to establish a willful violation

of the FMLA, a plaintiff must show that ‘the employer either

knew or showed reckless disregard for the matter of whether its

conduct was prohibited by the statute.’” Hillstrom v. Best

37 Western TLC Hotel,

(1st Cir. 2003) (quoting

McLaughlin v. Richland Shoe Co.,

(1988)).

There is no such evidence in the record here.

Duryea’s 2012 performance evaluation indicates that her low

rating in the Attendance Category was based on poor management

of her paid time off, since she ran out of paid absences well

before the end of the calendar year. The only evidence Duryea

points to even remotely suggesting that MetroCast considered her

unpaid FMLA leave as part of the evaluation is the single

comment from Duryea’s supervisor that she lost points in the

Attendance Category because she had taken time off from work,

which Duryea argues may have included both her paid and unpaid

absences. But to establish a willful violation of the FMLA,

Duryea must do more than speculate that MetroCast may have

considered FMLA leave as part of her rating in the Attendance

Category. Duryea must show that MetroCast knew it would violate

the FMLA, or that MetroCast recklessly disregarded Duryea’s FMLA

rights, when it gave Duryea her rating in the Attendance

Category and then used that rating as one of 28 subcategories to

calculate her raise and bonus. She has presented no such

evidence.

In 2012, MetroCast gave Duryea a raise (2.8%) slightly

lower than the company standard (3%) and a bonus ($933) slightly

38 below the highest bonus ($1,000) for which she was eligible to

receive. No reasonable jury could find that MetroCast willfully

violated Duryea’s FMLA rights when it calculated her raise and

bonus in 2012.

Therefore, Duryea’s FMLA claim is barred by the two-year

statute of limitations. See

(c)(1).

Accordingly, MetroCast is entitled to summary judgment on Count

V.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary

judgment (doc. no. 23) is denied as to Counts I and III with

respect to Duryea’s hostile work environment claims, and is

otherwise granted.

The court’s case manager will reschedule the trial, the

final pretrial conference, and all other deadlines. All pending

motions in limine are denied without prejudice to the parties’

right to file motions in limine relevant to Duryea’s hostile

work environment claims.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge April 21, 2017 cc: Debra Weiss Ford, Esq. Leslie H. Johnson, Esq. K. Joshua Scott, Esq. Martha Van Oot, Esq.

39