Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brenda Turcotte Case No. 17-cv-150-PB v. Opinion No.

Comcast Cable Communications Management, LLC

MEMORANDUM AND ORDER

Brenda Turcotte alleges that Comcast Cable Communications

Management, LLC (“Comcast”), her former employer, violated the

Americans with Disabilities Act (“ADA”) and its state-law

analogue by failing to reassign her to a vacant position within

the company as an accommodation for her disability. Comcast

argues that it is entitled to summary judgment because Turcotte

cannot prove at trial that she was entitled to a reassignment.

I. BACKGROUND

Turcotte worked at Comcast from November 2008 until August

2014. She was hired as a Customer Account Executive to field

inbound telephone calls from Comcast customers. Her performance

in this job was unsatisfactory. See Def.’s Ex. B (Doc. No. 15-

3). Starting in March 2010, Turcotte took an 18-month leave of

absence protected by the Family and Medical Leave Act (“FMLA”)

due to work-related panic attacks and bereavement, her mother

having recently died. Her medical providers furnished Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 2 of 35

documentation to Comcast to support her entitlement to FMLA

leave and her need for an accommodation. See Pl.’s Ex. 1,

Attach. B1-B5 (Doc. No. 23-1).

During her leave, Comcast placed Turcotte on an extended

internal job search to explore new positions as an accommodation

for her disability. In September 2011, she accepted a transfer

to the position of Pre-Caller. In this role, she made outbound

calls to customers to verify service appointments and do limited

troubleshooting. See Def.’s Ex. H at 27 (Doc. No. 15-9).

Turcotte performed satisfactorily in this job. See Pl.’s Ex. 1

¶ 10 (Doc. No. 21-2).

After about two years, in mid-2013, Comcast automated the

Pre-Caller function and all Pre-Callers transitioned to Dispatch

positions, tasked with receiving inbound calls from field

technicians. See Def.’s Ex. H at 92 (Doc. No. 15-9); Def.’s Ex.

J at 160-61 (Doc. No. 15-11). Comcast trained all Pre-Callers,

including Turcotte, on how to perform the Dispatch job. See

Def.’s Ex. H at 69-70 (Doc. No. 15-9). Before the transition

became fully effective, Pre-Callers started fielding a small

number of inbound calls from technicians, in addition to their

outbound call duties. See Def.’s Ex. J at 118-19 (Doc. No. 15-

11). Turcotte struggled with inbound calls.

.

Her poor performance led Comcast to retrain her for three weeks

in the fall of 2012, which involved an experienced employee

2 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 3 of 35

sitting side-by-side with Turcotte throughout her shift. See

Def.’s Ex. M (Doc. No. 15-14). Turcotte either observed the

calls that the trainer fielded or had the trainer guide her

through her own calls. See

Despite retraining, Turcotte’s performance did not improve.

When the transition to Dispatch was complete in mid-2013,

Turcotte’s supervisor, Bonnie Fournier, began receiving

complaints about Turcotte from field technicians. See Def.’s

Ex. N (Doc. No. 15-15). When Fournier sought to discuss some of

those complaints as part of Turcotte’s mid-year review in August

2013, Turcotte refused to meet with her. See

Instead,

Turcotte emailed an HR rep, indicating that she was frustrated

at work and would consult her attorney. See Def.’s Ex. O (Doc.

No. 15-16).

Within a few days of that incident, HR reps met with

Turcotte on two occasions. See Def.’s Ex. P (Doc. No. 15-17).

During each meeting, Turcotte said that she could no longer

field inbound calls because of a medical condition. See

She requested as an accommodation either a transfer to a new job

or lower inbound call volume in her Dispatch position.

Comcast asked Turcotte to provide a medical certification

to substantiate her claim and, in the interim, placed her in a

temporary light-duty assignment performing “install intercepts,”

which involved making outbound calls to customers. See Def.’s

3 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 4 of 35

Ex. R (Doc. No. 15-19). Turcotte requested that this be made

into a permanent position for her. Comcast refused and told her

the assignment would end shortly due to a lack of work.

A few days later, on August 20, Comcast received a

certification from Turcotte’s healthcare provider, Nurse Tracey

Bottazzi. See Pl.’s Ex. 1, Attach. B-7 (Doc. No. 23-1). When

asked whether Turcotte had a physical or mental impairment and

whether such an impairment substantially limited a major life

activity, Bottazzi answered “No” to both questions. See

She also stated that Turcotte could do the essential functions

of her job (fielding inbound calls) without any accommodation.

See

In response, Comcast offered to reinstate Turcotte to her

Dispatch position and to retrain her again, which she accepted.

Fournier developed a four-week retraining program. See Def.’s

Ex. S (Doc. No. 15-20). Turcotte says that her retraining was

not successful and that she continued to experience anxiety and

panic attacks during that period. See Pl.’s Ex. 1 ¶ 18 (Doc.

No. 21-2). At one point, Fournier told her she should seek

another job within the company. 1 See id. ¶ 22.

1 Turcotte alleged in her complaint that Fournier harassed her during this period in violation of the ADA and New Hampshire Revised Statutes Section 354-A (Counts III and IV). In response to Comcast’s motion for summary judgment, Turcotte did not object to the dismissal of her harassment claims. Accordingly, I do not summarize the facts relating to those claims.

4 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 5 of 35

In mid-September, toward the end of her retraining,

Turcotte stopped working and informed Comcast that she had filed

for short-term disability leave benefits. See Def.’s Ex. T

(Doc. No. 15-21). She was approved for those benefits, as well

as FMLA leave. Nurse Bottazzi’s supporting paperwork, which was

sent to Comcast’s third-party disability leave administrator,

Sedgwick, stated that Turcotte was “[u]nable to fully perform

job functions” and noted that she was exhibiting increased blood

pressure and pulse, tearfulness, and panic attacks. See Pl.’s

Ex. 1, Attach. B-8 (Doc. No. 23-1). Bottazzi projected that

Turcotte could return to work in three weeks. See id. About

three weeks later, Bottazzi again furnished a similar form to

Sedgwick and extended Turcotte’s leave for three additional

weeks. See Pl.’s Ex. 1, Attach. B-9 (Doc. No 23-1).

Unbeknownst to Comcast, the following month Bottazzi

refused Turcotte’s request to further extend her leave and

dismissed Turcotte from her practice. See Def.’s Ex. V (Doc.

No. 16-4). Bottazzi did so because she believed that Turcotte

had dissembled and not followed her treatment plan. 2 See Def.’s

Ex. A at 14-17 (Doc. No. 16-1).

2 According to Bottazzi’s treatment notes, Turcotte reported that her anxiety had not improved on medication, but the pharmacy informed Bottazzi’s office that Turcotte never picked up the medication. See Def.’s Ex. V (Doc. No. 16-4). In addition, Turcotte told Bottazzi that she had scheduled a counseling appointment in November, but the counselor’s office

5 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 6 of 35

In December 2013, while on leave, Turcotte applied for two

vacancies at Comcast using the company’s public website:

Business Services Customer Care Virtual Business Class Billing

Rep, Cycle 1 (“Virtual Rep”) and Coordinator 2, Facilities

(“Facilities Coordinator”). See Pl.’s Ex. 1, Attach. A (Doc.

No. 21-3). She did not notify Comcast that she was seeking

those jobs as an accommodation for her disability, and neither

application led to a job offer. See id.

Comcast wrote a letter to Turcotte in January 2014,

informing her that her right to FMLA leave had expired in

December and that her short-term disability benefits had ended

in January. See Def.’s Ex. W (Doc. No. 15-24). The letter

explained that, if she needed an accommodation in order to

return to work, a healthcare provider should complete an

enclosed certification form on her behalf. See id.

On January 31, 2014, a new provider, Counselor Gretchen

Grappone, supplied that certification. She stated that Turcotte

suffered from social phobia and that this impairment

substantially limited a major life activity. See Pl.’s Ex. 1,

Attach. B-10 (Doc. No. 23-1). Because Turcotte had “anxiety

around high volume of inbound calls,” Grappone opined that she

confirmed that was not the case. See id. In her deposition, Turcotte denied making the statements that Bottazzi found untruthful and stated that there were miscommunications between her and Bottazzi. See Pl.’s Ex. 2 at 281-85 (Doc. No. 23-2).

6 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 7 of 35

could not perform the essential functions of her Dispatch job.

See id. A reasonable accommodation, according to Grappone,

would be a “reduced inbound call requirement,” at least until

Turcotte gained confidence she could handle the work. See id.

In response, Comcast informed Turcotte in February that

taking inbound calls was an essential function of her job and

that the company was not able to reduce or control the number of

inbound calls she would take. See Def.’s Ex. Y (Doc. No. 15-

26). Comcast, however, offered to engage in an interactive

process and place her on a 60-day internal job search to

identify a vacant position to which she could be reassigned as

an accommodation. 3 See id.

Comcast assigned Jim Lewis, an HR manager, to oversee and

facilitate Turcotte’s job search. See Def.’s Ex. F ¶ 13 (Doc.

No. 15-7). Lewis tracked down open positions within her

geographic area, compiled them into a bulleted list, and

generally emailed the list to Turcotte twice a week. See id.;

Pl.’s Ex. 1 ¶ 33 (Doc. No. 21-2). They had weekly telephone

calls to discuss potential jobs. See Def.’s Ex. F ¶ 14 (Doc.

3 Comcast acknowledged that Turcotte had “already effectively begun the job search process” through dialogue with HR, so her job search would “be much longer than 60 days.” See Def.’s Ex. Y (Doc. No. 15-26). That dialogue began on February 3, when HR Rep Lisa Southworth called Turcotte regarding the job search, and they began exchanging emails concerning new vacancies. See Pl.’s Ex. 1, Attach. A-3 (Doc. No. 21-6).

7 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 8 of 35

No. 15-7); Pl.’s Ex. 1 ¶ 33 (Doc. No. 21-2). Turcotte believes

that on some occasions Lewis did not send her every vacancy.

See Pl.’s Ex. 1 ¶ 32 (Doc. No. 21-2). This is because, she

explains, she found additional positions in her area that

Comcast had advertised on external websites. See id.

On February 5, 2014, Turcotte told HR Rep Southworth that

she had applied for the position of Coordinator 1, Technical

Product Sales (BSS) (“BSS Coordinator”) through an external

website, CareerBuilder.com. See Pl.’s Ex. 1, Attach. A-3 (Doc.

No. 21-6). Southworth told her not to apply through external

websites because she would “show up as an external candidate,

not a Comcast employee.” See id. Instead, Turcotte should

apply through Lewis so that he could work directly with the

assigned recruiter. See id. Turcotte replied that she

understood. See id. Although Southworth said she would contact

the recruiter for the BSS Coordinator position, Turcotte never

received a response. 4 See id.; Pl.’s Ex. 1, Attach. A (Doc. No.

21-3).

A week later, on February 12, Turcotte told Lewis she was

interested in a vacancy for a Coordinator 2, Product Sales (MDU)

(“MDU Coordinator”) position. See Pl.’s Ex. 1, Attach. A-4

(Doc. No. 21-7). Lewis responded on February 22 that her

4 The company says it has no record of her application. See Def.’s Ex. PP, Attach. 1 & 2 (Doc. No. 27-2).

8 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 9 of 35

medical restrictions precluded her from performing the essential

functions of that job because she would have to field 63-72

inbound calls per day. See Def.’s Ex. II (Doc. No. 15-36); see

also Def.’s Ex. PP ¶¶ 2-3 (Doc. No. 27-2). Turcotte rejected

Lewis’s assessment, insisted that she was qualified for the

position, and asked for a certification form so that her

healthcare provider could reassess her restrictions. See Def.’s

Ex. PP ¶ 4 (Doc. No. 27-2). Lewis explained that if she could

do the MDU Coordinator job, then she would likely be reinstated

to her Dispatch position because this would mean she could in

fact field a large volume of inbound calls. See id. ¶ 5.

Two days later, Turcotte applied for the position of Rep 2,

Credit & Collections (Outbound) (“Collections Rep”). See Pl.’s

Ex. 1, Attach. A-5 (Doc. No. 21-8). On March 14, Lewis told her

that Comcast would consider her for this position, but she would

need to sign a medical records release form to answer concerns

about her work restrictions. See Pl.’s Ex. 1, Attach. A-6 (Doc.

No. 21-9). When it sent her the release form, Comcast asked

Turcotte to “include the contact information for the medical

provider completing the Certification form on your behalf.” See

Def.’s Ex. KK (Doc. No. 15-38). The release form had space for

the contact information of a single provider and options to

limit the type of information disclosed, including by condition

9 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 10 of 35

and time period. See id. The information would be disclosed to

Comcast’s clinical review officer. See id.

Turcotte refused to complete the release form because she

believed that Comcast had no valid reason to request it. See

Pl.’s Ex. 1 ¶¶ 35-38 (Doc. No. 21-2). She was also concerned

that the release would have allowed Comcast to obtain medical

records from all her healthcare providers and to speak to her

providers, effectively giving the company unfettered access to

her medical history. See id. ¶ 35.

It is unclear whether Turcotte told Comcast that she would

not complete the release form. On March 21, however, Lewis

informed her that the Collections Rep position remained open,

but he reiterated that the company would need the release form.

See Def.’s Ex. LL (Doc. No. 15-39).

That same day, Counselor Grappone reassessed Turcotte’s

work restrictions at her request. 5 See Pl.’s Ex. 1, Attach. B-11

(Doc. No. 23-1). The certification states that Turcotte’s

social phobia did not limit any major life activities, that the

condition was “well managed with medication [and] skill use,”

5 Turcotte requested this reassessment after Lewis informed her in February that her existing work restrictions precluded her from applying for the MDU Coordinator job. See Pl.’s Ex. 1, Attach. G (Doc. No. 21-25). This certification is the most recent medical evidence in the record.

10 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 11 of 35

and that she could perform the essential functions of her job

without an accommodation. 6 See id.

Grappone’s assessment of Turcotte’s ability to work is

consistent with her treatment notes recording Turcotte’s

statements during three appointments in February and March.

Turcotte had reported that she felt “able to handle phone calls

in any new Comcast position,” was “ready to return to work with

no restrictions or need for accommodations,” and was “ready and

able to return to work.” See Def.’s Ex. DD (Doc. No. 16-7);

Def.’s Ex. QQ (Doc. No. 27-3). Grappone’s notes also indicate

that in March, Turcotte had asked her “not to provide any

information by phone to any Comcast representatives under the

advice of her attorney.” See Def.’s Ex. DD (Doc. No. 16-7).

Based on Grappone’s March certification, Comcast offered to

reinstate Turcotte to her Dispatch position effective April 8.

See Def.’s Ex. BB (Doc. No. 15-29). Turcotte refused, claiming

that she was medically incapable of performing that job and that

Grappone had been given an incorrect job description. See

Def.’s Ex. CC (Doc. No. 15-30); Def.’s Ex. MM (Doc. No. 15-40).

Comcast’s next move was to extend Turcotte’s job search for

an additional 30 days, through May 21, 2014. See Def.’s Ex. CC

6 It is disputed whether Grappone was referring to Turcotte’s Dispatch job (fielding inbound calls) or her prior Pre-Caller position (fielding outbound calls).

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(Doc. No. 15-30). In April, she applied for three positions: NH

Facilities / Mailroom (“Mailroom”) and two Intern/Co-op,

Administrative Services positions (“Intern 1” and “Intern 2”).

Turcotte used Comcast’s public website to apply for the Intern 1

position and did not notify Comcast that she was applying as an

accommodation candidate. See Def.’s Ex. PP, Attach. 1 (Doc. No.

27-2). Comcast eventually informed her via email that it

“decided to consider other candidates” for that position. See

Pl.’s Ex. 1, Attach. A-12 (Doc. No. 21-15). The other two

positions she pursued through the internal job search. Comcast

determined that she was not qualified for the Mailroom position, 7

but the company offered her the Intern 2 position.

The internship, which was paid but offered no benefits, was

scheduled to run from June until August 2014. Lewis informed

Turcotte that if she accepted it, her internal job search would

end, and she would need to go through the normal bidding process

for future positions. See Def.’s Ex. FF (Doc. No. 15-33);

Def.’s Ex. F ¶¶ 16-17 (Doc. No. 15-7). Turcotte nonetheless

7 Lewis informed her that she was not qualified because she lacked experience using hand tools, a ladder, and a pallet jack. See Pl.’s Ex. 1, Attach. A-9 (Doc. No. 21-12). At the motion hearing, Turcotte’s counsel conceded that Turcotte was not qualified for this position and does not assert that Comcast’s failure to hire her violated the ADA. See Jan. 23, 2019 Hearing Tr. (“Tr.”) at 98.

12 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 13 of 35

accepted, and Lewis hired her over other, potentially more

qualified, applicants. See Def.’s Ex. F ¶ 17 (Doc. No. 15-7).

During the internship and after her internal job search had

ended, Turcotte applied for two new vacancies at Comcast:

Administrative Assistant, Hudson, NH (“Admin Assistant 1”) and

Assistant 2, Administrative Services, Customer Care (“Admin

Assistant 2”). See Pl.’s Ex. 1, Attach. A (Doc. No. 21-3). She

applied for those jobs via internal postings available to all

Comcast employees. See Def.’s Ex. PP, Attach. 2 (Doc. No. 27-

2). Although she had contact with the company’s recruiters for

those positions, Turcotte did not notify them, or anyone else at

Comcast, that she was requesting those positions as an

accommodation for her disability. See Pl.’s Ex. 1, Attach. A-11

(Doc. No. 21-14); Pl.’s Ex. 1, Attach. A-13 (Doc. No. 21-16).

She was interviewed for the Admin Assistant 2 position but was

not offered either job. See Pl.’s Ex. 1, Attach. A (Doc. No.

21-3).

Turcotte separated from the company on August 29, 2014,

when her internship ended. See Pl.’s Ex. 1 ¶¶ 3, 41 (Doc. No.

21-2). That fall, she applied for two more jobs at Comcast:

Rep, Revenue Assurance (“Revenue Rep”) and Rep 2, Credit &

Collections (Outbound) (“Collections Rep 2”). See id. ¶¶ 48-49.

Neither application succeeded.

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Turcotte filed this suit in March 2017 in New Hampshire

Superior Court, alleging that Comcast failed to accommodate her

disability and created a hostile work environment in violation

of the ADA and the state anti-discrimination statute. Comcast

removed the action to federal court. In due course, Comcast

moved for summary judgment on all claims. Turcotte objected

with respect to her failure-to-accommodate claims but agreed to

dismiss her hostile-work-environment claims.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

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

56(a); Tang v. Citizens Bank, N.A.,

(1st Cir.

2016). In this context, a “material fact” is one that has the

“potential to affect the outcome of the suit.” Cherkaoui v.

City of Quincy,

(1st Cir. 2017) (internal

quotation marks omitted). A “genuine dispute” exists if a jury

could resolve the disputed fact in the nonmovant’s favor. Ellis

v. Fidelity Mgmt. Trust Co.,

(1st Cir. 2018).

The movant bears the initial burden of presenting evidence

that “it believes demonstrates the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986); accord Flovac, Inc. v. Airvac, Inc.,

(1st Cir. 2016). Once the movant has properly carried that

14 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 15 of 35

burden, the burden shifts to the nonmoving party to designate

“specific facts showing that there is a genuine issue for

trial,” Celotex,

, and to “demonstrate that a

trier of fact could reasonably resolve that issue in its favor.”

Flovac,

(internal quotation marks and brackets

omitted). If the nonmovant fails to adduce such evidence on

which a reasonable factfinder could base a favorable verdict,

the motion must be granted. See

In considering the

evidence presented by either party, all reasonable inferences

are to be drawn in the nonmoving party’s favor. See Theriault

v. Genesis HealthCare LLC,

(1st Cir. 2018).

III. ANALYSIS

The ADA prohibits a covered employer from discriminating

against a “qualified individual,” defined as a person “who, with

or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds

or desires.”

(8), 12112(a). Failure to

reasonably accommodate a qualified employee’s known physical or

mental impairment is a form of disability discrimination, unless

such an accommodation would impose an undue hardship on the

employer. Audette v. Town of Plymouth,

(1st

Cir. 2017).

Reasonable accommodation may include “reassignment to a

vacant position.”

(9)(B). An employer is not

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required to create a new job for a disabled employee or turn a

temporary position into a permanent one. See Phelps v. Optima

Health, Inc.,

(1st Cir. 2001); Hendricks-

Robinson v. Excel Corp.,

(7th Cir. 1998).

Rather, an employee must demonstrate that a vacant position

existed and that she was qualified for it. Audette,

-21 & n.10; Phelps,

.

To prevail on a failure-to-accommodate claim, an employee

must establish that (1) she was disabled within the meaning of

the ADA; (2) she was qualified to perform the essential

functions of either her existing position or another available

job, with or without reasonable accommodation; and (3) the

employer knew of her disability and did not reasonably

accommodate it. 8 See Audette,

.

Turcotte does not contend that she could return to her

Dispatch position with a reasonable accommodation. Instead, she

8 With one limited exception, both parties assume that Turcotte’s state-law claim for failure to accommodate, see

-A:7, is governed by the same legal standards as her ADA claim. The exception is Comcast’s argument, made for the first time in a supplemental brief filed after the motion hearing, that the definition of disability is more stringent under Section 354-A:7. Given the lack of thorough briefing on the issue, I assume that federal and state law do not differ. Cf. Lang v. Wal-Mart Stores E., L.P.,

(1st Cir. 2016) (assuming, without deciding, that elements of disability discrimination claim are same under New Hampshire statute and ADA). In any event, the sole distinction argued by Comcast is not dispositive because I grant the summary judgment motion on other grounds.

16 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 17 of 35

argues that she requested as an accommodation a transfer to

nearly a dozen other positions that she was qualified to perform

and that Comcast unreasonably failed to reassign her to one of

those positions.

Comcast responds by claiming that it is entitled to summary

judgment for three distinct reasons. First, it contends that no

reasonable jury could find that Turcotte was disabled and

therefore entitled to an accommodation. Second, Comcast

maintains that there is no evidence that Turcotte was qualified

for some of the positions she sought. Third, says Comcast,

Turcotte cannot show that it failed to reasonably accommodate

her with respect to the remaining positions. I address each

argument in turn.

A. Whether Turcotte was disabled

The ADA defines disability as “a physical or mental

impairment that substantially limits one or more major life

activities,”

(1)(A), having “a record of such

an impairment,”

§ 12102(1)(B), or “being regarded as having

such an impairment,” id. § 12102(1)(C). The first definition,

referred to as the actual disability prong, is at issue here. 9

9 Turcotte makes an undeveloped argument that the “regarded as” and “record of” prongs are also applicable here. That is plainly wrong. First, an employer “is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the ‘regarded as’ prong.”

(o)(4). Second, the “record of” prong

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Comcast concedes that Turcotte has a triable claim that she

suffered from social phobia, a mental impairment, and that this

impairment can impact the major life activity of social

interaction. The question then is whether Turcotte has

presented enough evidence for a jury to find that social phobia

“substantially limited” her social interaction.

EEOC regulations explain that the term “substantially

limits” must be “construed broadly in favor of expansive

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

“should not demand extensive analysis.”

(j)(1). “An impairment need not prevent, or

significantly or severely restrict, the individual from

performing a major life activity in order to be considered

substantially limiting.”

§ 1630.2(j)(1)(ii). Rather, the

inquiry is whether a person is substantially limited in

performing a major life activity “as compared to most people in

the general population.” Id.

Whether an impairment is substantially limiting must be

judged “without regard to the ameliorative effects of mitigating

measures” such as “medication, medical supplies, equipment . . .

pertains to an employee who has a history of an actual disability and who is seeking “a reasonable accommodation if needed and related to the past disability.” Id. § 1630.2(k)(3). For example, an employee may need leave or a schedule change because her past disability requires follow-up appointments with a healthcare provider. Id.

18 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 19 of 35

or learned behavioral . . . modifications.”

(4)(E). 10 In other words, an impairment must be evaluated

in its unmitigated state. See Summers v. Altarum Inst., Corp.,

, 330 & n.3 (4th Cir. 2014); Gogos v. AMS Mech.

Sys., Inc.,

(7th Cir. 2013); Rohr v. Salt

River Project Agric. Imp. & Power Dist.,

, 861–62

(9th Cir. 2009). For example, “diabetes will be assessed in

terms of its limitations on major life activities when the

diabetic does not take insulin injections or medicine and does

not require behavioral adaptations such as a strict diet.”

Rohr,

.

With these principles in mind, a reasonable jury could find

that Turcotte’s social phobia substantially limited a major life

activity during the relevant period. Counselor Grappone,

Turcotte’s healthcare provider, said so in her January 31, 2014

certification. See Pl.’s Ex. 1, Attach. B-10 (Doc. No. 23-1).

Specifically, she answered “Yes” to Question 1, which asked

whether Turcotte had an impairment, and she explained that the

10 This provision was enacted as part of the ADA Amendments Act of 2008 (“ADAAA”). Congress expressly abrogated the Supreme Court’s decision in Sutton v. United Air Lines, Inc.,

(1999), which held that whether an impairment substantially limits a major life activity must be determined with reference to corrective measures. See ADAAA, § 2(b)(2), Pub. L. No. 110– 325,

. In Congress’s view, Sutton improperly “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.”

§ 2(a)(4).

19 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 20 of 35

type of impairment was social phobia. See id. She also

answered “Yes” to Question 2, which asked whether the

“impairment as described in response to Question 1 substantially

limits any major life activities.” See id. The certification

form included a list of major life activities. See id.

Grappone’s March 21, 2014 certification, the most recent

medical evidence in the record, creates ambiguity on this score.

There, she answered “No” to Question 2, which again asked

whether Turcotte’s impairment was substantially limiting. See

Pl.’s Ex. 1, Attach. B-11 (Doc. No. 23-1). She also asserted,

however, that Turcotte’s “social phobia [is] currently well

managed with medication [and] skill use” even though the

certification form instructed her “not [to] take into

consideration any ameliorative effects of mitigating measures,

such as medication.” Id. Viewing the evidence in the light

most favorable to Turcotte, a reasonable jury could conclude

that Grappone evaluated Turcotte in a medicated state despite

the contrary instruction on the form. Therefore, the jury could

disregard Grappone’s answer to Question 2 in the March

certification and only credit her answer to the same question in

the January certification.

Comcast also points to Turcotte’s own statements that she

could handle inbound calls and did not need an accommodation,

but that argument goes to the weight of the evidence, not its

20 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 21 of 35

sufficiency. To be sure, a jury would be amply justified in

finding that Turcotte was not disabled. She told Grappone that

she could handle phone calls in any new position and felt ready

to return to work with no restriction or accommodation. See

Def.’s Ex. DD (Doc. No. 16-7); Def.’s Ex. QQ (Doc. No. 27-3).

She also told Comcast that she wanted the MDU Coordinator

position even after Lewis explained that she would need to field

a high volume of inbound calls, the same function that she

allegedly could not perform in Dispatch. See Def.’s Ex. PP

¶¶ 2-4 (Doc. No. 27-2). But in light of the summary judgment

standard and the easily satisfied test for determining whether

an impairment substantially limits a major life activity,

Turcotte has presented minimally sufficient evidence to give

rise to a genuine dispute of material fact on this question.

B. Whether Turcotte was qualified for a vacant position

The second element of a failure-to-accommodate claim

requires an employee to identify a vacant position and

demonstrate that she was qualified for it. Audette,

-21 & n.10; Phelps,

. To show that she was

qualified, the employee must satisfy a two-part test:

[T]he plaintiff must demonstrate both that she satisfies the prerequisites for the position, that is, that she has the proper training, skills, and experience, and that she could perform the essential functions of [the] job, either with or without reasonable accommodation.

21 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 22 of 35

Soto-Ocasio v. Fed. Exp. Corp.,

(1st Cir. 1998);

see

(m).

“An essential function is a fundamental job duty,” as

opposed to “marginal tasks.” Kvorjak v. Maine,

(1st Cir. 2001) (internal quotation marks omitted). Evidence of

whether a function is essential includes, inter alia, “[t]he

employer’s judgment as to which functions are essential,”

“[w]ritten job descriptions prepared before advertising or

interviewing applicants for the job,” and “[t]he amount of time

spent on the job performing the function.”

(n)(3). Absent evidence of discriminatory animus,

courts “generally give substantial weight to the employer’s view

of job requirements.” Mulloy v. Acushnet Co.,

(1st Cir. 2006) (internal quotation marks omitted).

Between December 2013 and August 2014, when her employment

ended, Turcotte applied for eight positions that she claims she

was qualified to perform. 11 See Pl.’s Ex. 1, Attach. A (Doc. No.

11 In her brief, Turcotte also argued that Comcast failed to consider her for the position of Technical Logistic Controller (“TLC”), previously known as Field Traffic Controller (“FTC”). She asserted that Comcast converted Install Intercepts, a role she performed briefly in August 2013, into permanent TLC/FTC positions. At the hearing, however, Turcotte’s counsel conceded that TLC/FTC was not the same job as Install Intercepts. See Tr. at 43-44. The undisputed evidence is that the TLC position was established in July 2018, several years after Turcotte left, and that until 2016, its predecessor FTC required fielding a large volume of incoming calls. See Pl.’s Ex. 3 at 56-64 (Doc. No. 21-27); Def.’s Ex. OO ¶ 4 (Doc. No. 27-1). Because there is

22 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 23 of 35

21-3). There is no evidence in the record that she was

qualified for six of those positions. Two of these positions

entailed a high volume of inbound calls, an essential job

function that Turcotte does not (and could not) argue she could

perform. She has presented no evidence that she had the

credentials required for the other four positions.

1. Positions requiring a high volume of inbound calls

Comcast has presented uncontroverted evidence that two

positions Turcotte sought had the same essential job function

that disabled Turcotte from working in Dispatch – fielding a

high volume of incoming calls. The Virtual Rep position

required fielding around 40 inbound calls per day. Def.’s Ex.

PP ¶ 6 (Doc. No. 27-2). Comcast expected that Virtual Reps

would take inbound calls all day.

Similarly, the MDU

Coordinator position required fielding 63-72 inbound calls per

day. Id. ¶¶ 2-3; Def.’s Ex. II (Doc. No. 15-36).

Turcotte’s only response is that the job descriptions for

those two positions did not mention a high inbound call volume.

She has not presented a job description for the Virtual Rep

position, however, so there is no evidence disputing Comcast’s

assessment. Further, the MDU Coordinator job description is

no dispute that Install Intercepts was a temporary light-duty assignment involving outbound calls and that Comcast did not have a permanent position whose sole function was to perform that assignment, Turcotte’s claims regarding this position fail.

23 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 24 of 35

consistent with significant inbound calling and thus cannot

create a genuine dispute of material fact. 12 See Pl.’s Ex. 1,

Attach. A-4 (Doc. No. 21-7).

Because there is no dispute that the Virtual Rep and MDU

Coordinator positions entailed a large volume of inbound calls

and that Turcotte could not perform this essential job function,

her claims fail. See Soto-Ocasio,

. More

importantly, given that this was the very job function that

Turcotte claims she could not perform in Dispatch, it defies

logic to argue that those jobs would have been a reasonable

accommodation. If she could perform this function, Comcast

would have no obligation to accommodate her at all.

2. Failure to satisfy job prerequisites

Turcotte has failed to adduce any evidence that she had the

skills, training, and experience required for four of her

desired transfer positions: Facilities Coordinator, BSS

Coordinator, Admin Assistant 1, and Admin Assistant 2. 13

12 As with many other deficiencies in this case, Turcotte could have obtained evidence during discovery to substantiate her claims. For example, her counsel could have deposed employees working in those positions concerning their work experience. See

(n)(3) (listing “working experience of past incumbents in the job” and “current work experience of incumbents in similar jobs” as evidence of essential job functions). 13 Comcast also argues that Turcotte’s claims regarding the Admin Assistant 1 and 2 positions cannot stand because she applied after she agreed to end her internal job search by accepting the Intern 2 job, and by that time, she had exceeded

24 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 25 of 35

The record contains no evidence as to the job requirements

for either the BSS Coordinator or Admin Assistant 2 position.

Turcotte has not produced a job description or other evidence of

qualifications for those jobs. Nor are the requirements

otherwise apparent from the job titles. It would therefore be

impossible for a factfinder to conclude that Turcotte satisfied

her burden to show that she was qualified for either post. 14 Cf.

Lang,

(affirming summary judgment in favor of

employer on employee’s reassignment claim in part because

plaintiff’s affidavit failed to mention “specific circumstances”

of desired job opportunities and “said nothing about the

essential functions of the jobs in question”).

Although the job descriptions for the Facilities

Coordinator and Admin Assistant 1 positions are in the record,

Turcotte has made no effort to show that she had the credentials

for either job. The only evidence of her skills, training, and

experience in the record is the job descriptions for the three

jobs she held at Comcast (Customer Account Executive, Pre-

the amount of time that Comcast was reasonably required to engage in the interactive process. Because Turcotte has not shown that she was qualified for those positions, I do not address Comcast’s alternative arguments. 14 Turcotte’s conclusory statements in her affidavit that she reviewed the job descriptions and was qualified for every position she sought are insufficient. See Mancini v. City of Providence,

(1st Cir. 2018) (“It is hornbook law that a plaintiff cannot avoid summary judgment by relying solely on conclusory allegations.”).

25 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 26 of 35

Caller, and Dispatch). Those job functions do not match the

requirements of either position she sought. Compare Pl.’s Ex.

1, Attach. A-2 (Doc. No. 21-5) (Facilities Coordinator,

requiring “2-5 years related experience”), and Pl.’s Ex. 1,

Attach. A-11 (Doc. No. 21-14) (Admin Assistant 1, requiring “2-5

years related experience”), with Pl.’s Ex. 1, Attach. A-7 (Doc.

No. 21-10) (Dispatch), Pl.’s Ex. 1, Attach. G (Doc. No. 21-25)

(Pre-Caller), and Def.’s Ex. B (Doc. No. 15-3) (Customer Account

Executive). Turcotte’s claims thus fail because there is no

evidence from which a jury could find that she met the

prerequisites for those positions.

C. Whether Comcast failed to reasonably accommodate Turcotte

The third element of an ADA claim is that an employer

unreasonably failed to accommodate an employee’s known

disability. Audette,

. Turcotte cannot satisfy

this requirement for eight positions because she (1) failed to

put Comcast on notice that she sought five of those positions as

an accommodation, (2) failed to cooperate in the interactive

process for one position, and (3) was not entitled to a

reassignment to two positions after her employment ended.

1. Failure to give notice of demand for accommodation

To trigger a duty to accommodate, an employer must be on

notice that an employee is seeking an accommodation. Freadman

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

(1st Cir.

26 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 27 of 35

2007); Reed v. LePage Bakeries, Inc.,

(1st

Cir. 2001). This means the employee “must explicitly request an

accommodation, unless the employer otherwise knew one was

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

(1st Cir. 2012). Special words, like reasonable accommodation,

are not necessary, but the employee’s request “must be

sufficiently direct and specific, and it must explain how the

accommodation is linked to [her] disability.”

“This means

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

between the major life activity that is limited and the

accommodation sought.”

(internal quotation marks omitted).

Turcotte has not mustered sufficient evidence to show that

Comcast knew she was seeking an accommodation with respect to

five positions: Virtual Rep, Facilities Coordinator, Intern 1,

Admin Assistant 1, and Admin Assistant 2. 15

She applied for the Virtual Rep and Facilities Coordinator

positions as an external candidate in December 2013. There is

no evidence in the record that Turcotte made a reasonably

specific and direct request for an accommodation when she

applied. Nor is there any evidence that Comcast otherwise knew

she had applied as an accommodation. This was more than a month

before Comcast received Counselor Grappone’s January

15 As discussed above, her claims regarding each of those positions except Intern 1 also fail the qualifications prong.

27 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 28 of 35

certification that Turcotte needed an accommodation and promptly

started her internal job search. The lone fact that Turcotte

was on FMLA and short-term disability leave at the time is

insufficient to show that Comcast was on notice that Turcotte

sought an accommodation when she applied. 16

Assuming Turcotte could assert a viable claim for the

Intern 1 position, which is dubious, 17 there is likewise no

evidence that Comcast knew this was a desired accommodation.

Turcotte applied in mid-April as an external candidate, as

opposed to applying through the internal job search. See Def.’s

16 Turcotte’s argument that Comcast was on notice because Fournier, her supervisor, told her to look for another job before she went on leave, is likewise without merit. Nothing in the record suggests that Fournier’s statement was in recognition of Turcotte’s need for an accommodation, as opposed to performance issues. Further, at the time, Nurse Bottazzi told Comcast that Turcotte was not disabled and did not need any accommodation. 17 Turcotte does not dispute that Intern 1 was a temporary position comparable to the Intern 2 position that Comcast offered her in May 2014. See Def.’s Ex. PP ¶ 8 (Doc. No. 27-2). Her claim is that, as Intern 1, she would have returned to work from unpaid leave a month and a half sooner. See Tr. at 96. The viability of this claim is doubtful for three reasons. First, it is illogical for Turcotte to maintain that this position would have been a reasonable accommodation when she argues that the term-limited nature of the Intern 2 position rendered it an unreasonable accommodation. Second, there is no evidence in the record that Turcotte would have returned to work a month and a half sooner if given this position. Since she applied for the two internships within a two-week period, it is not a reasonable inference that the start dates would have been so divergent. Third, at least one circuit has held that the ADA does not require an employer to place a permanently disabled employee into a temporary position. See Thompson v. E.I. DuPont deNemours & Co.,

(6th Cir. 2003).

28 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 29 of 35

Ex. PP, Attach. 1 (Doc. No. 27-2). She did so despite Comcast

informing her in February that she needed to apply internally

through Lewis to be considered for an accommodation position.

See Pl.’s Ex. 1, Attach. A-3 (Doc. No. 21-6).

Lastly, Turcotte applied for the Admin Assistant 1 and 2

positions after her internal job search had ended. She applied

via Comcast’s internal job postings available to all employees.

See Def.’s Ex. PP, Attach. 2 (Doc. No. 27-2); Pl.’s Ex. 1,

Attach. A-11 (Doc. No. 21-14). As with the other three

positions, the record contains no evidence that Turcotte

indicated in her applications or otherwise told Comcast that she

was requesting either position as an accommodation.

Comcast is entitled to summary judgment on Turcotte’s

claims concerning those five positions. As Turcotte was well

aware, the company had a process available to employees seeking

accommodations. Instead of utilizing that process, she

submitted the applications outside her internal job search,

without informing Comcast that those were accommodation

requests. In fact, Turcotte ignored Comcast’s specific

instruction to notify HR when she applied as an accommodation

candidate. As a result, Comcast had no idea the applications

were accommodation requests. Contrary to Turcotte’s suggestion,

it is not a reasonable inference that a large company like

Comcast would intuit that her applications, submitted via

29 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 30 of 35

regular channels, doubled as requests for an accommodation.

Turcotte’s failure to alert Comcast that she was seeking those

five positions as an accommodation is fatal to her claims. 18

2. Failure to cooperative in the interactive process

Where an employer engages in an interactive process with an

employee to discuss potential accommodations, both parties have

a duty to participate in good faith. See E.E.O.C. v. Kohl’s

Dep’t Stores, Inc.,

(1st Cir. 2014); Enica v.

Principi,

(1st Cir. 2008). In the event a

breakdown occurs, “courts should look for signs of failure to

participate in good faith or failure by one of the parties to

make reasonable efforts to help the other party determine what

specific accommodations are necessary.” Enica,

(quoting Beck v. Univ. of Wis. Bd. of Regents,

(7th Cir. 1996)). An employee’s failure to participate in

good faith precludes liability under the ADA. Kohl’s,

.

An employee who refuses to comply with an employer’s

reasonable request for medical information pertaining to her

18 Turcotte argues that Comcast unreasonably terminated the internal job search before she applied for the Admin Assistant 1 and 2 positions. To the extent she is arguing that Comcast’s action excused her failure to request an accommodation with respect to those positions, I need not address her undeveloped argument. Her claims would still fail because she has proffered no evidence that she was qualified for either job.

30 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 31 of 35

disability can be found to have obstructed the process. See

Beck,

(affirming summary judgment for employer

where employee refused to sign medical records release form that

employer requested due to insufficient information about her

work restrictions); Templeton v. Neodata Servs., Inc.,

(10th Cir. 1998) (affirming summary judgment for

employer because employee refused to authorize her physician to

release medical information that employer reasonably requested).

The employer’s request must be “job-related and consistent with

business necessity.”

(d)(4)(A). EEOC

enforcement guidance provides that

when the disability or the need for the accommodation is not known or obvious, it is job-related and consistent with business necessity for an employer to ask an employee for reasonable documentation about his/her disability and its functional limitations that require reasonable accommodation.

E.E.O.C., Enforcement Guidance: Disability-Related Inquiries and

Medical Examinations of Employees under the Americans with

Disabilities Act (2000),

at *9. Ordinarily,

the employer cannot ask for an employee’s complete medical

records. Id. at *10. But the employer is entitled to seek more

limited records sufficient to substantiate the claimed

disability and accommodation if the employee has presented

insufficient supporting documentation. Id. Documentation

provided by the employee may be insufficient where “other

31 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 32 of 35

factors indicate that the information provided is not credible

or is fraudulent.” Id. at *11.

Turcotte cannot maintain her claims regarding the

Collections Rep position because she failed to participate in

the interactive process in good faith with respect to that job.

Comcast asked for a release of medical records, and Turcotte

refused. Comcast’s request was reasonable, job-related, and

consistent with business necessity. The request came in March

2014, a few weeks after Turcotte provided flatly inconsistent

information about the nature and extent of her disability. She

told Comcast in February that she could do the MDU Coordinator

job, despite being informed that the position involved fielding

a high volume of inbound calls. See Def.’s Ex. PP ¶¶ 2-4 (Doc.

No. 27-2); Def.’s Ex. II (Doc. No. 15-36). This was the same

job function that she insisted she could not perform in

Dispatch. Under those circumstances, there was sufficient

indication that the information she had provided, including

Counselor Grappone’s January certification, was not credible.

Thus, Comcast was within its rights to ask for a release of

relevant medical records.

The scope of Comcast’s request was also “no broader or more

intrusive than necessary.” See Conroy v. N.Y. State Dep’t of

Corr. Servs.,

, 98 (2d Cir. 2003). Contrary to

Turcotte’s assertion, Comcast did not seek her complete medical

32 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 33 of 35

records or unfettered access to her medical providers. Rather,

the release form had space for Turcotte to fill in the name and

address of a single provider. See Def.’s Ex. KK (Doc. No. 15-

38). Comcast told Turcotte that this should be “the medical

provider completing the Certification form on your behalf” (that

is, Counselor Grappone). See id. The release also had options

for Turcotte to limit the information disclosed by type of

condition and time period. See id. For example, she could have

specified that the information Grappone could disclose must

pertain to her social phobia from January 2014 (when Grappone

filled out the first certification) onward. Lastly, the

information would be disclosed to Comcast’s clinical review

officer, further limiting the scope of the request. Cf. Fraser

v. Avaya Inc., No. 10-CV-00800-RPM,

, at *2 (D.

Colo. Sept. 4, 2013) (ADA “does not justify requiring the

applicant to sign a medical authorization form that would

authorize disclosure of confidential medical information to more

persons than those necessarily involved in the evaluation of the

application”).

Turcotte’s refusal to sign the release form that Comcast

reasonably requested to answer questions concerning her work

restrictions caused the breakdown in the interactive process.

Accordingly, Comcast is entitled to summary judgment on

33 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 34 of 35

Turcotte’s claims regarding the Collections Rep position for

which the company declined to consider her as a result. 19

3. Post-termination vacancies

After her employment with Comcast ended, Turcotte applied

for the Revenue Rep and Collections Rep 2 positions. Her claims

regarding these positions fail because requests for

accommodation that post-date a termination of employment cannot

give rise to a duty to accommodate. See, e.g., Severson v.

Heartland Woodcraft, Inc.,

(7th Cir. 2017),

cert. denied,

(2018) (discarding claims

regarding vacancies that became available after plaintiff’s

employment ended; noting that “it was [plaintiff’s] burden to

prove that there were, in fact, vacant positions available at

the time of his termination”); Johnson v. Otter Tail Cty., No.

00-3098,

, at *1 (8th Cir. June 14, 2001) (per

curiam) (employer “had no continuing duty to accommodate

[plaintiff] by reassigning her to a vacant position [requested

after] her employment . . . had terminated”); Wooten v. Farmland

Foods,

(8th Cir. 1995) (“[Plaintiff’s] evidence

that he applied but was not chosen for a job that would have

19 Given Turcotte’s failure to participate in the interactive process, Comcast would have been justified had it ended the internal job search and terminated Turcotte at that time.

34 Case 1:17-cv-00150-PB Document 38 Filed 02/14/19 Page 35 of 35

accommodated his limitations is not material because the job

became available only after he was terminated.”).

IV. CONCLUSION

In summary, Turcotte has failed to show that she was

qualified for the Virtual Rep, MDU Coordinator, BSS Coordinator,

Facilities Coordinator, Admin Assistant 1, and Admin Assistant 2

positions. Further, she cannot show that Comcast unreasonably

failed to accommodate her disability with respect to the Virtual

Rep, Facilities Coordinator, Intern 1, Admin Assistant 1, Admin

Assistant 2, Collections Rep, Collections Rep 2, and Revenue Rep

positions. Lastly, she has conceded her claims regarding the

Mailroom and Install Intercepts positions. Accordingly, I grant

Comcast’s motion for summary judgment (Doc. No. 15) on all

claims. The clerk is directed to enter judgment accordingly and

close the case.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

February 14, 2019

cc: Leslie H. Johnson, Esq. Brian J. Bouchard, Esq. Christopher Cole, Esq.

35