BILODEAU v. MEGA INDUSTRIES

50 F. Supp.2d 27 (1999) | Cited 0 times | D. Maine | June 7, 1999

MEMORANDUM OF DECISION AND ORDER

Plaintiff, Barbara Bilodeau, brought suit against Defendant,Mega Industries, alleging that Defendant wrongfully terminatedher on the basis of her alcoholism and seeking damages under theAmericans with Disabilities Act ("the ADA" or "the Act"),42 U.S.C. § 12101 et seq., and the Maine Human Rights Act("MHRA"), 5 M.R.S.A. § 4551 et seq. See Complaint (DocketNo. 1). Plaintiff claims that she was discriminated againstbecause of an actual and/or perceived disability in violationof the ADA and the MHRA. She sought redress from both the MaineHuman Rights Commission and the Equal Employment OpportunityCommission. Both agencies issued right-to-sue letters. SeeComplaint, Exhibits 1, 2. Defendant disputes the allegations ofdiscrimination, and before the Court is Defendant's motion forsummary judgment on both counts of the Complaint (Docket No. 5).Plaintiff has filed an objection thereto (Docket No. 7). Forthe reasons set forth below, the Court will deny, in part, andgrant, in part, Defendant's motion for summary judgment.

I. STANDARD OF REVIEW

Summary judgment is appropriate when the record shows thatthere is no genuine issue as to any material fact and that themoving party is entitled to summary judgment as a matter of law.Fed.R.Civ.P. 56(c). Once the moving party has come forwardidentifying those portions of "the pleadings, depositions,answers to interrogatories, and admissions on file, together withaffidavits, if any" which "it believes demonstrate the absence ofa genuine issue of material fact," the adverse party may avoidsummary judgment only by providing properly supported evidence ofdisputed material facts that would require trial. Celotex Co.v. Catrett, 477 U.S. 317,322, 106 S.Ct. 2548, 2551-52, 91 L.Ed.2d 265 (1986).

The trial court must "view the entire record in the light mosthospitable to the party opposing summary judgment, indulging allreasonable inferences in that party's favor." Griggs-Ryan v.Smith, 904 F.2d 112, 115 (1st Cir. 1990). The court willnot, however, pay heed to "conclusory allegations, improbableinferences [or] unsupported speculation." Medina-Munoz v.R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).Because Defendant has moved for summary judgment, where the factsare in dispute, the Court presents them in the light mostfavorable to Plaintiff.

II. BACKGROUND

Mega Industries, located in Raymond, Maine, is in the businessof manufacturing high-power, low-frequency passive microwavecomponents for the transmission of microwave, energy in linearaccelerators, cyclotrons, large radar systems, and communicationssystems such as weather radar, tracking systems for aircraft, andweapons systems aboard ships. Defendant Mega Industries'Statement of Material Facts in Support of Its Motion for SummaryJudgment (Docket No. 6) ("Defendant's Statement of MaterialFacts") ¶ 1. Plaintiff was hired by Mega Industries onSeptember 28, 1995, as a lab technician, and she performedelectrical tests and assembled parts. Plaintiffs Statement ofMaterial Facts (Docket No. 9) ¶ 1; Defendant's Statement ofMaterial Facts ¶¶ 2, 5. Throughout her period of employment,Plaintiffs job performance was rated "very good, " her attitudeand attendance were rated "excellent," and she received a meritincrease in pay on March 11, 1996. Plaintiffs Statement ofMaterial Facts ¶ 2; Defendant's Statement of Material Facts¶¶ 5, 6, 7.

Defendant terminated Plaintiff in November of 1997. Plaintiff'sStatement of Material Facts ¶ 8; Defendant's Statement ofMaterial Facts ¶ 19. The rationale behind Plaintiffsdischarge lies at the heart of this suit. Plaintiff contends thatDefendant terminated her due to her disability--alcoholism.Defendant disagrees, contending that Plaintiff severely damagedthe flanges of four directional couplers that she worked on andknowingly passed them on as qualified parts to the final workarea prior to shipping, thus, concealing her faulty workmanshipwithout correcting it.

Plaintiff suffers from alcoholism. She started drinking whenshe was fourteen years old and her battle with alcoholismcontinues to this day. Plaintiff's Statement of Material Facts¶ 21. In 1986, Plaintiff left her job to enter St. Mary'schemical dependency program, where she was enrolled for twenty-eightdays. Id. ¶ 23. After she completed the program, Plaintiffreceived out-patient, alcohol-related services, which includedattending Alcoholics Anonymous ("AA") meetings at least three timesper week for several years. Id. Over time, the intensity of hertreatment decreased and by July of 1996, when she was working forMega Industries, Plaintiff was attending AA meetings only one timeevery two months. Id. Plaintiff remained sober for ten years andeleven months after receiving treatment in 1986. Id. ¶ 25.Unfortunately, in the summer of 1996, while she was working forDefendant, Plaintiff experienced a relapse of her alcoholism andsought help on July 5, 1996. Id. ¶¶ 26, 27.

Plaintiff entered St. Mary's chemical dependency program andremained enrolled in the program until July 15, 1996. PlaintiffsStatement of Material Facts ¶ 3; Defendant's Statement ofMaterial Facts ¶ 8. Upon experiencing her relapse, Plaintiffcalled Defendant on July 8, 1998, and spoke with Raymond Backman,Mega Industries' vice president of operations, and told him thatshe had experienced a relapse of her alcoholism and had soughttreatment. Plaintiffs Statement of Material Facts ¶ 3;Defendant's Statement of Material Facts ¶¶ 9, 10. Thiswas the first time that Defendant was made aware ofPlaintiff's alcoholism. Plaintiff's Statement of Material Facts ¶ 3;Defendant's Statement of Material Facts ¶ 9. When Plaintiffwas released from St. Mary's, her follow-up care included AAmeetings, medication, and counseling. Plaintiffs Statement ofMaterial Facts ¶ 27.

When Plaintiff returned to work, she was treated coldly bymanagement employees. Plaintiffs Statement of Material Facts¶¶ 4, 7. For example, on one occasion, Raymond Backmancommunicated to Plaintiff his skepticism that she was maintainingher sobriety. Id. In addition, Defendant was not supportive ofPlaintiffs ongoing need to see her psychiatrist periodically formedication management. Id. ¶ 5. Specifically, Plaintiffsimmediate supervisor, would become angry when Plaintiff had toleave work half an hour early in order to attend her appointments,and Raymond Backman refused to permit her to make up the timemissed the next day despite the fact that other employees wereallowed to do so.1 Id. Furthermore, Beverly Paul, the wife ofthe president and owner of Mega Industries, avoided contactand conversation with Plaintiff, despite their prior friendship,once she learned that Plaintiff was an alcoholic. Id. ¶ 7. To supporther claim that she was treated differently by members of Defendant'smanagement when they learned of her alcoholism, Plaintiff submitsan affidavit of another employee, Verna Ellison, who swears thatshe experienced similar treatment by Raymond Backman when shereturned to work after being admitted to Togus for alcoholcounseling for two weeks in 1997. Id. ¶ 6.

On November 14, 1996, Plaintiff was fired from her labtechnician position by Raymond Backman. Plaintiffs Statement ofMaterial Facts ¶ 8; Defendant's Statement of Material Facts¶ 19. As mentioned above, Defendant's stated reason, inPlaintiff's termination notice, for terminating Plaintiffsemployment is that she severely damaged the flanges of fourdirectional couplers that she worked on and knowingly passed themon as qualified parts to the final work area prior to shipping,thus concealing her faulty workmanship without correcting it.Defendant's Statement of Material Facts ¶ 20; PlaintiffsStatement of Material Facts ¶ 10. It is undisputed that thedamaged flanges were brought to Raymond Backman's attention byJohn Muchleisen, manager of quality control. Defendant'sStatement of Material Facts ¶ 22. In addition, one of Defendant'semployees, Ron Adams, informed Raymond Backman that it wasPlaintiff who had damaged the parts. Id. ¶ 23; Plaintiffs Statementof Material Facts ¶ 18. This was confirmed by Linda Sellick,a second employee. Defendant's Statement of Material Facts ¶ 23;Plaintiffs Statement of Material Facts ¶ 18.

Defendant's usual policy is to issue a written warning to anemployee prior to termination. Defendant's 30(B)(6) Depositionthrough Raymond Backman ("Defendant's Deposition") at 12-13.Defendant did not issue a written warning to Plaintiff for thedamaged parts in November 1997, despite the fact that she had anemployment record that contained no prior written warnings.Plaintiffs Statement of Material Facts ¶¶ 11, 12. The companyhandbook lists "inefficiency and failure to adhere to qualitystandards" as reason number fifteen for the termination of anemployee. Defendant's Statement of Material Facts ¶ 32. Thecompany handbook provides that "certain offenses, because oftheir severity, warrant immediate temporary suspension orpermanent discharge without prior warning." Id. Terminationwithout warning is not unprecedented at the company. Plaintiffadmits that, not including herself, two of the fifty-four employeesterminated by Defendant were terminated without a warning. Plaintiff'sStatement of Material Facts ¶ 12. Defendant contendsthat seven other employees were terminated without awarning, and numerous other employees were terminatedfor poor-quality workmanship. Defendant's Statement of MaterialFacts ¶¶ 35, 36; Plaintiffs Statement of Material Facts ¶ 12. Noemployee has been terminated without a warning for the specificreason that Plaintiff was terminated. Defendant's Deposition at17, 21. Finally, Defendant has employed at least four employeesbesides Plaintiff between 1991 and the present who managementis aware have received treatment related to alcohol abuse.Defendant's Statement of Material Facts ¶ 37.

Plaintiffs battle with alcoholism continues today. Still soberafter her treatment at St. Mary's, she returned to the workforcein April of 1997 and worked as a test technician in theelectrical field for another company, but was laid off for lackof work on November 15, 1997. Plaintiffs Statement of MaterialFacts ¶ 29. In October 1997, Plaintiff had a relapse of heralcoholism, which is ongoing. Id. ¶ 31. Plaintiff presently worksat two jobs--both of which are unskilled and not in the electricalfield. Id. ¶ 32. She contends that she experiences headachesand chronic diarrhea, that her drinking interferes with her sleep,that she does not take care of her appearance, that she criesconstantly, that she is suicidal and self-abusive, is depressedand very emotional, has memory problems, misses work because ofsevere hangovers, and is unable to maintain healthy relationships. Id.¶¶ 35, 36.

III. DISCUSSION

Both the ADA and its state law analog, the MHRA, seek to rootout discrimination against disabled individuals. See42 U.S.C. § 12101(b)(1) (it is the purpose of the ADA "to provide aclear and comprehensive national mandate for the elimination ofdiscrimination against individuals with disabilities."); 5M.R.S.A. § 4552 (The MHRA prohibits "discrimination in employment,housing or access to public accommodations on account of race,color, sex, physical or mental handicap."). "In analyzing theADA and MHRA, the Court need not continuously distinguish betweenthe two statutes as to their scope and general intent becauseMaine courts consistently look to federal law in interpretingstate anti-discriminatory statues." Soileau v. Guilford of Maine,Inc., 928 F. Supp. 37, 45 (D.Me. 1996), aff'd 105 F.3d 12(1st Cir. 1997) (citing Winston v. Maine Technical College Sys.,631 A.2d 70, 74-75 (Me. 1993); Bowen v. Dep't. of Human Serv.,606 A.2d 1051, 1053 (Me. 1992); Plourde v. Scott Paper Co.,552 A.2d 1257, 1261-62 (Me. 1989)); see also Quint v. Staley Mfg.Co., 172 F.3d 1, 9-12, 16 (1st Cir. 1999); Arnold v. United ParcelServ., 136 F.3d 854, 857 n. 2 (1st Cir. 1998).2Accordingly, the Court will focus on the ADA and its implementingregulations; however, this analysis applies with equal force toPlaintiffs MHRA claim.

The United States Court of Appeals for the First Circuit hasexplained that,

[i]n the employment context, the ADA prohibits a covered entity (defined as a person engaged in an industry affecting commerce who has fifteen or more employees) from discriminating against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 510 (1st Cir. 1996)(internal citations omitted); 42 U.S.C. § 12112(a). The statutedefines "[a] qualified individual with a disability" as "anindividual with a disability who, with or without reasonableaccommodation, can perform the essential functions of theemployment position that such individual holds or desires."42 U.S.C. § 12111(8).

To establish a claim of disability discrimination under theADA, a plaintiff must prove three things by a preponderance ofthe evidence: first, that he or she was disabled within themeaning of the Act; second, that with or without reasonableaccommodation, he or she was able to perform the essentialfunctions of the job; and third, that the employer discharged himor her because of his or her disability. See Criado v. IBMCorp., 145 F.3d 437, 441 (1st Cir. 1998); Jacques, 96 F.3d at511 (quoting Katz v. City Metal Co., Inc., 87 F.3d 26, 30 (1st Cir.1996)); Soileau, 928 F. Supp. at 45. If a plaintiff lacks directevidence of discrimination, he or she can prove his or her case"by using the prima facie case and burden shifting methods thatoriginated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Jacques, 96 F.3d at 511(quoting Katz, 87 F.3d at 30); Soileau, 928 F. Supp. at 45.Maine courts also employ this burden-shifting framework to analyzeMHRA claims in certain discrimination cases. Maine Human RightsComm'n for Use of Kellman v. Dep't. of Corrections,474 A.2d 860, 866-67 (Me. 1984); Maine Human Rights Comm'n v. City ofAuburn, 408 A.2d 1253, 1261-62 (Me. 1979).

As applied to a motion for summary judgment, the first prong ofthe McDonnell Douglas analysis, requires the plaintiff to initiallydemonstrate a prima facie case of discrimination by showing thathe or she,

(i) has a disability within the meaning of the Act; (ii) is qualified to perform the essential functions of the job with or without reasonable accommodations; (iii) was subject to an adverse employment action by a company subject to the Act; (iv) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (v) suffered damages as a result.

Jacques, 96 F.3d at 511. It is not contested in thepapers filed for purposes of summary judgment that Plaintiffwas "denied an employment opportunity" or, in other words,"was subject to an adverse employment action by a companysubject to the Act" and that she suffered damagesas a result; The facts indicate that she was fired on November14, 1996. Also, no dispute exists between the parties thatPlaintiff was "otherwise qualified" or "qualified to performthe essential functions of the job with or without reasonableaccommodations." The point of contention between the partiesis whether Plaintiff can present evidence on the first andfourth parts of the prima facie case: (1) that she is disabledunder the ADA and MI-IRA and (4) that Plaintiff was treatedless favorably than were nondisabled persons at the company.

A. Prima Facie Case of Discrimination.

1. "Disabled" Under the ADA and the MHRA.

The Court turns to the standards governing a disability under theADA.

If an individual is not "disabled" within the meaning of one of the three prongs, the ADA does not protect that person against discrimination on the basis of his [or her] disability and we need not proceed beyond this threshold issue to determine either whether any adverse action has been taken based upon the person's disability or whether the employer should have reasonably accommodated that disability.

Arnold, 136 F.3d at 858-59. The ADA defines a "disability" as(A) a physical or mental impairment that substantially limits oneor more of the major life activities of such individual; (B) havinga record of such an impairment; or (C) being regarded as havingsuch an impairment. See 42 U.S.C. § 12102(2). Plaintiff claimsthat she qualifies as disabled under the three ADA definitions.As the discussion below demonstrates, the Court will deny summaryjudgment as to whether Plaintiff is disabled under the firstdefinition and will grant summary judgment for Defendant as towhether Plaintiff is disabled under the "record of" and "regardedas" definitions.

(i) A physical or mental impairment that substantially limits a major life activity.

A disability under subsection (A) turns on three requirements:(1) a physical or mental impairment, that (2) "substantiallylimits," one of the plaintiffs (3) "major life activities."See 42 U.S.C. § 12102 (2)(A); Soileau v. Guilford of Maine,Inc., 105 F.3d 12, 15 (1st Cir. 1997). Plaintiff and Defendantagree that alcoholism is a mental impairment within the meaningof the ADA. See Defendant's Motion for Summary Judgment (DocketNo. 5) at 5; see also Leary v. Dalton, 58 F.3d 748, 752 (1st Cir.1995); Cook v. State of Rhode Island Dep't. of Mental Health,Retardation & Hosps., 10 F.3d 17, 24 (1st Cir. 1993). That Plaintiffsuffers from a mental impairment alone, however, does not qualifyher as disabled under the ADA.3 See Soileau, 105 F.3d at 15.Indeed, the parties disagree as to whether Plaintiffs alcoholismrose to the level of a disability as defined under the ADA inthat it substantially impaired a major life activity.

Plaintiff contends that her alcoholism interferes with twomajor life activities: (1) her ability to care for herself and(2) her ability to work. It is undisputed that "caring foroneself" and "working" are major life activities, that, ifsubstantially impaired, confer disabled status to Plaintiff underthe Act.4

To determine whether Plaintiffs ability to care for herself andto work were substantially limited by her alcoholism, the Courtturns to the ADA's implementing regulations that define "substantiallylimits." Title 29 C.F.R. § 1630.2 (j)(1)defines "substantially limits" as:

(i) Unable to perform a major life activity that the average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

Title 29 C.F.R. § 1630.2 (j)(2) lists the following asfactors to be considered in determining whether an individual issubstantially limited in a major life activity: (i) the natureand severity of the impairment; (ii) the duration or expectedduration of the impairment; and (iii) the permanent or long-termimpact or the expected permanent or long-term impact of orresulting from the impairment. See Quint, 172 F.3d at 5.

Plaintiff has been drinking on and off since she was fourteenyears of age, has been hospitalized twice for treatment, thefirst time for twenty-eight days in 1986 and the second time in1996 for eleven days and, at the time of this motion, Plaintiffwas continuing to drink alcohol. Plaintiffs Statement of MaterialFacts ¶¶ 21, 23, 26, 27, 31. From these facts, the Court canconclude that Plaintiffs alcoholism is severe and, if leftuntreated, is likely to have a permanent long-term impact on herlife. However, to be eligible to sue under the ADA, Plaintiffmust still demonstrate that her alcoholism renders her incapableof working or caring for herself or significantly restricts thecondition, manner, or duration under which she can work or carefor herself as compared with that of an average person.See 29 C.F.R. § 1630.2 (j).

The Court will first address whether Plaintiff is substantiallylimited in the major life activity of caring for herself and willthen examine whether she is substantially limited in working.See Katz, 87 F.3d at 31 n. 3. The determination of whether animpairment substantially limits a major activity is a fact-specificinquiry and must be made on an individual basis. See id. at 32.Furthermore, a court must make its determination "withoutconsidering the ameliorative effects of medication, prostheses,or other mitigating measures," on the underlying mental condition.Arnold, 136 F.3d at 863. Furthermore, the determination of whether.Plaintiff was substantially limited in her ability to care forherself must be assessed as of the time that she was employedby Defendant. See Pritchard v. The Southern Co. Serv., 92 F.3d 1130,1133 (11th Cir. 1996), amended in part on reh'g, 102 F.3d 118,cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211(1997); O'Neal v. Atlanta Gas and Light Co., 968 F. Supp. 721,725 (S.D.Ga. 1997).

A genuine issue of material fact exists as to whether Plaintiffsuffered symptoms when she was terminated that substantiallylimited a major life activity. As stated above, the recorddemonstrates that Plaintiff suffers from alcoholism that, exceptfor ten years of sobriety, has had a serious permanent impact onher life. Depositions of Plaintiffs psychiatrist and Plaintiffshow that, in order to remain sober, Plaintiff requiresmaintenance treatment for her alcoholism that includes regularattendance at AA meetings, one-on-one counseling, and anti-depressantmedications. Plaintiffs Statement of Material Facts ¶¶ 27-28, 34.In the summer of 1996, during the time that Plaintiff was employedby Defendant, Plaintiff experienced a relapse of her alcoholism.Id. ¶ 26; Plaintiff's Deposition at 30-31. She testifies inher deposition that "within two months . . . [she] found [herself]drunk" and with the "`spins.'" Plaintiff's Statement of MaterialFacts ¶ 26; Plaintiff's Deposition at 30. At that time, she andher husband separated. Id. Upon the advice of a friend, Plaintiffenrolled in St. Mary's chemical dependency program on July 5,1996. Id. ¶ 27; Plaintiff's Depositionat 30-31. Plaintiff also testified in her deposition that,while she was drinking during the two months prior to hertreatment at St. Mary's, she suffered from chronic diarrhea,did not eat properly, did not take good care of herappearance, did not sleep well, and cried all of the time.Plaintiff's Deposition at 51. In addition, after returningto work following her treatment at St. Mary's, Plaintiff was"very emotional" and felt a lot of shame and embarrassment forhaving had a relapse. Id. at 52-53.5 Plaintiff's psychiatrist,Scott Treworgy, M.D., testified in his deposition that Plaintiffwas experiencing "fleeting suicidal thoughts," difficulty inrelationships, difficulty concentrating, had conflict withcoworkers and had a poor energy level and appetite. Dr. Treworgy'sDeposition (Plaintiff's Statement of Material Facts, Exh. E)at 34-38.

Prevailing case law has not borne out the exact parameters of"caring for oneself." It is clear from the case law that a mereinability to get along or interact with others is not sufficientto imply that a person is unable to care for oneself. SeeSoileau, 928 F. Supp. at 48. Here, Plaintiff has presentedevidence of symptoms resulting from her alcoholism that are moresevere than an inability to get along with others, includingdifficulty sleeping, difficulty eating, difficulty concentrating,and being severely emotional. The Court finds that a jury mayconclude from this evidence that Plaintiff is unable to carry onthe normal activities of daily life as well as an average person.Plaintiff and Dr. Treworgy will testify that she is unable toeat, sleep, take care of her appearance, has chronic diarrhea, isvery emotional, and cries all of the time. Thus, the Courtconcludes that during the time that Plaintiff worked forDefendant between her relapse and leading up to her terminationin November of 1997, Plaintiff has presented sufficient evidencefrom which a jury could conclude that her alcoholism"significantly restricts" her ability to care for herself "ascompared to that of the average person." See29 C.F.R. § 1630.2(j).

The Court also concludes that Plaintiff has presentedsufficient evidence that her alcoholism, in its untreatedcondition, see Arnold, 136 F.3d at 863, impairs her ability towork. An ADA claimant assumes a more "fact-specific burden ofproof in attempting to demonstrate that her impairment `substantiallylimits' the major life activity of `working.'" Quint, 172 F.3d at11. Furthermore, an impairment does not substantially limit theability to work unless the impairment significantly restrictsthe employee in the ability to perform either a class of jobsor a broad range of jobs in various classes as compared withthe average person having comparable training, skills andabilities. See id. The inability to perform a single, particularjob does not constitute a substantial limitation in the majorlife activity of working. 29 C.F.R. § 1630.2 (j)(3)(i).

When asked whether she believed that alcoholism had limited herability to work while employed by Defendant, Plaintiff testifiedin her deposition that she was not able to think as quickly,react as quickly, and move as quickly, and "was doing the best[she] could to keep up with all of the demands, but maybe not aswell as [she] could have or would have if [she] had never pickedup a drink again." Plaintiff's Deposition at 52-53. Thistestimony is corroborated by that of Dr. Treworgy. Dr. Treworgy'sDeposition at 33-34. In addition, Plaintiffs employment recordshows that when she is receiving treatment for her alcoholism,she is able to work in the electrical field in which she wastrained. Plaintiffs Statement of Material Facts ¶ 23-25, 27-29.When she has experienced a relapse in her drinking and is notsober, however, Plaintiff works in unskilled jobs ranging fromassembly line stitching to waiting tables. Id. A jury couldconclude from this evidence that Plaintiff's alcoholism substantiallyimpairs her ability to work in a broad range of jobs in thefield in which she was trained. See Criado, 145 F.3d at 442(finding that evidence that plaintiff was having trouble dealingwith stress and relating with coworkers, depression, and anxietycausing sleep deprivation, which affected her ability to reportto work, was adequate evidence that plaintiff was disabled underthe ADA). Accordingly, the Court concludes that Plaintiff hassubmitted sufficient evidence from which a jury could find thather alcoholism substantially limits her ability to care forherself and to work.

(ii) Record of Such Impairment.

The ADA's implementing regulations define a person who "has arecord of such impairment" as one who "has a history of; or hasbeen misclassified as having, a mental or physical impairmentthat substantially limits one or more major life activities."29 C.F.R. § 1630.2 (k). Plaintiff contends that she has a recordof alcoholism by virtue of the fact that she was hospitalizedtwice for treatment. She cites the Supreme Court case SchoolBoard of Nassau County, Florida v. Arline, 480 U.S. 273, 281,107 S.Ct. 1123 1128, 94 L.Ed.2d 307 (1987), wherein the Courtnoted that the defendant conceded that the plaintiffs hospitalizationfor tuberculosis demonstrated that she had a record of a physicalimpairment, for her per se rule that a hospitalization establishesa record of an impairment. However, United States AppellateCourts, citing the lack of analysis conducted by the Court inArline, have reasoned that such a per se rule would not make senseand have refused to interpret Arline to stand for the propositionthat if a plaintiff suing under the ADA has been hospitalized atsome point for her physical or mental impairment, she has a "recordof such impairment" for purposes of being eligible to sue under42 U.S.C. § 12102 (2). See Demming v. Housing and Redev. Auth. ofDuluth, Minnesota, 66 F.3d 950, 955 (8th Cir. 1995) (citingByrne v. Bd. of Educ., School of West Allis-West Milwaukee,979 F.2d 560, 566 (7th Cir. 1992); Taylor v. U.S. Postal Service,946 F.2d 1214, 1217 (6th Cir. 1991)). This Court agrees with the decisionsof the Courts of Appeal for the Sixth, Seventh and Eighth Circuitsthat a hospitalization for an impairment does not in and of itselfestablish a record of such disability. This conclusion is underscoredby the plain language of the implementing regulation which, asstated above, defines a "record of such impairment" as existingwhen a plaintiff has "a history of, or has been misclassified ashaving, a mental or physical impairment that substantially limitsone or more major life activities." 29 C.F.R. § 1630.2(k). Thus,to have a "record of such impairment" under the ADA, the Courtconcludes that a plaintiff must have been misclassified as notjust having an impairment, as a hospital stay may connote, but ashaving an impairment that substantially limits one or more majorlife activities. See Burch v. Coca-Cola Co., 119 F.3d 305, 321(5th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 871, 139L.Ed.2d 768 (1998); Buckley v. Consol. Edison Co., 155 F.3d 1 50,154 (2d Cir. 1998) (en banc); Goldsmith v. Jackson Mem'l. Hosp.Public Health Trust, 33 F. Supp.2d 1336, 1340 (S.D.Fla. 1998).To conclude that evidence of hospitalization for alcoholismestablishes a record of disability would classify a treatedalcoholic as having a per se disability under the Act, and theCourt declines to adopt this position.

It is undisputed that the first time that Defendant was madeaware that Plaintiff suffered from alcoholism was in July of1996, when Plaintiff called Raymond Backman and told him that shewas going to be at St. Mary's for alcohol treatment. Plaintiffnever provided Defendant with any medical restrictions throughouther term of employment with Defendant. Defendant's Statement ofMaterial Facts ¶ 15. Plaintiff's personnel file is devoid ofany indication that she suffered from alcoholism. As discussedabove, the fact that Plaintiff was hospitalized in 1986 and 1996for alcoholism does not establish that she had a "record of suchdisability" meaning that she has a history of alcoholism thatsubstantially limits a major life activity. See29 C.F.R. § 1630.2 (k); see also Goldsmith, 33 F. Supp.2dat 1341-42 (holding that a record of a disability was notestablished under the ADA by mere assertion of status as arecovering alcoholic). Accordingly, the record establishes as amatter of law that Plaintiff does not have a record of adisability, and the Court will grant summary judgment forDefendant as to this issue.

(iii) Regarded as Being Impaired.

Finally, Plaintiff claims that Defendant regarded her alcoholismas an impairment that substantially limits a major life activity.The implementing regulations define an individual who is regardedas having an impairment as one who:

(1) Has a physical or mental impairment that does not substantially limit life activities but is treated by a covered entity as constituting such limitation;

(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

(3) Has none of the impairments defined in (h)(i) or (ii) of this section but is treated by a covered entity as having a substantially limiting impairment.

29 C.F.R. § 1630.2(1). Here, Plaintiff has argued thatsubsection (1) of the regulations is potentially applicable.Under this subsection, a jury may find that an individual who hasan impairment that is not substantially limiting is nevertheless"disabled" if he is treated by the employer as having animpairment that does substantially limit major life activities.

The purpose of subsection (C) is to protect impairedindividuals from discrimination on the part of their employerswho exclude such individuals because of the stereotypes, myths,and fears they hold of people who are so impaired. See29 C.F.R. § 1630.2 (1), App. To determine whether Defendant regardedPlaintiff as disabled because she suffered from alcoholism, theCourt's focus must be on the effect that Plaintiffs alcoholismhad on Defendant. See Byrne, 979 F.2d at 567. Plaintiff must showmore than just that Defendant believed she had an impairment. Toprevail under subsection (C), Plaintiff must show that Defendantperceived her as disabled in the sense that she had an impairmentthat substantially limited a major life activity. See Soileau, 928F. Supp. at 51; see also Goldsmith, 33 F. Supp.2d at 1340. Thus, tosurvive summary judgment at this stage, Plaintiff must presentevidence sufficient to show that Defendant regarded her asincapable of working generally, rather than performing certainfunctions, as discussed above, because an impairment thatdisqualifies a person from only a narrow range of jobs is notconsidered a substantially limiting one. See Soileau, 928 F. Supp.at 51; 29 C.F.R. § 1630.2 (j)(3)(i).

In this case, Defendant was made aware that Plaintiff sufferedfrom alcoholism when Plaintiff told Raymond Backman that she wascommencing alcoholism treatment at St. Mary's. Viewing the factsin a light most favorable to Plaintiff, as the Court must onsummary judgment, the record shows that Raymond Backman treatedPlaintiff differently after he learned that she was an alcoholic.Specifically, Raymond Backman was no longer friendly to Plaintiffand expressed skepticism concerning Plaintiffs ability to remainsober and comply with treatment. Plaintiffs Statement of MaterialFacts ¶¶ 4, 5. Raymond Backman also told Plaintiff that shemust work faster despite the fact that she was doing the best shecould with five or six projects assigned at once. Id. ¶ 4. Tobolster her claim that she was treated differently, Plaintiff hassubmitted the affidavit of Verna Ellison, another employee whosought treatment for alcoholism in 1997 while working forDefendant, who attests that she was also treated differently byRaymond Backman when she returned to work. Id. ¶ 6, Exhibit A.Verna Ellison swears that Raymond Backman was less friendlytoward her when she returned from treatment and, if she mademistakes, would ask whether she was still with "the program."Id. The record also shows that Plaintiff was treated differentlyby Beverly Paul, who avoided contact with Plaintiff after shereturned to work from St. Mary's and was given a hard time byher immediate supervisor when she left work early once a monthfor her treatment. Id. ¶ 7.

Notwithstanding Plaintiffs evidence, the facts indicatethat Plaintiff was not restricted or limited in her workresponsibilities when she returned from St. Mary's, that sheremained in her position as lab technician, and that she wasentrusted with her normal responsibilities. Furthermore, RaymondBackman and Donald Paul, Sr. testified in their depositions thatthey viewed Plaintiffs overall work performance as average fromthe time she started up to the date of her termination and didnot have any concerns about Plaintiffs ability to do her job.Defendant's Statement of Material Facts ¶¶ 12, 14. Plaintiffhas offered no evidence that Defendant considered her substantiallylimited in her ability to work either for Defendant or generallyin the electrical testing field. The evidence arguably supportsa finding that Raymond Backman was aware that Plaintiff was analcoholic and may have believed that alcoholics generally are not.capable of maintaining sobriety. Cast in a light most favorableto Plaintiff, the record also shows that Raymond Backman believedPlaintiffs work rate to be slower and believed, in the case ofanother employee, that work-related mistakes were due to thatemployee's alcoholism. However, even if Raymond Backman did findPlaintiff slower at her job or that her mistakes were due to heralcoholism, such perceptions do not indicate that he consideredPlaintiff to be substantially limited in her work. Thus, thatalone would not be actionable under the ADA. See Soileau, 928F. Supp. at 51 (finding that even if employer considered employeeincapable of performing certain functions, that alone wouldnot be actionable under the ADA); Goldsmith, 33 F. Supp.2d at1340-41 (finding that record contained evidence that employerregarded plaintiff as incapable of performing one procedurerather than incapable of working in the profession and, thus,claim, not actionable under the ADA).

To be "regarded as having a disability," Plaintiff must beperceived by Defendant as "generally unable to work in either aclass of jobs or a broad range of jobs in various classes ascompared with the average person having comparable training,skills and abilities." 29 C.F.R. § 1630.2 (j)(3)(i). "The propertest is whether the impairment, as perceived, would affectthe individual's ability to find work across the spectrum of sameor similar jobs." Soileau, 928 F. Supp. at 51 (citingcases). Nothing suggests that Raymond Backman believed thatPlaintiffs slower performance or mistakes, even ifbelieved to have been caused by her alcoholism, precluded herfrom working as a lab technician or in the electrical fieldgenerally. Members of Defendant's management testified thatthey were not concerned that Plaintiff's alcoholism wouldinterfere with her job performance, and the record shows thatDefendant has employed several other employees who had soughttreatment for alcoholism who were not terminated from thecompany. Defendant's Statement of Material Facts ¶¶ 13, 14, 37.Thus, Plaintiff does not succeed in making a showing sufficientto create a genuine dispute of material fact as to whetherDefendant regarded her alcoholism as a bar to her employment,and the Court will grant summary judgment for Defendant in regardto this issue.

2. Treated less favorably than nondisabled employees.

The fourth prong of the prima facie case requires Plaintiff topoint to evidence that shows either that she was replaced by anondisabled employee or that she was treated less favorably thansimilarly situated nondisabled employees. See Jacques, 96 F.3dat 511. Plaintiff does not directly address this element ofthe prima fade case in her brief. However, the Court gleansfrom her papers that she contends that she was treated lessfavorably than nondisabled employees because she was terminatedwithout being issued a written warning, as was customary, andbecause no other employee, disabled or nondisabled, has beenterminated for a reason similar to that purported to justifyPlaintiff's termination. See Plaintiffs Objection to Defendant'sMotion for Summary Judgment at 15.

A genuine dispute exists as to whether Plaintiff was treatedless favorably than nondisabled employees. Plaintiff submitsevidence that Defendant has a general policy of giving writtenwarnings prior to terminating its employees and that, other thanPlaintiff, only two of the fifty-four other employees terminatedby Defendant were not given a written warning. Plaintiff'sStatement of Material Facts ¶ 12. In addition, Plaintiffsubmits evidence that no other employee has been terminatedwithout warning by Defendant for a reason similar to that ofPlaintiff. Id. Plaintiff's facts are disputed by Defendant.Defendant's employment records demonstrate that at least sevenother employees with no known disabilities were terminatedwithout prior written warning and at least six other employeeswith no known disabilities were terminated for poor qualityworkmanship in 1997 and 1998. Defendant's Statement of MaterialFacts ¶¶ 35, 36. The employee identification number of employeesterminated for poor quality workmanship do not match those ofemployees terminated without a warning, suggesting that poor-qualityworkmanship is usually grounds for a warning rather than fortermination. Id. A jury, thus, could infer from this evidence thatPlaintiff was treated less favorably than nondisabled employeesin that she was fired for poor-quality workmanship withoutreceiving a warning. Furthermore, the record demonstrates that,although a nondisabled employee was not hired to replace Plaintiffwhen she was terminated, her work was redistributed to nondisabledemployees. Plaintiffs Statement of Material Facts ¶ 20; Defendant'sStatement of Material Facts ¶ 33. Accordingly, Plaintiff haspresented sufficient evidence that she was treated less favorablythan nondisabled employees.

The foregoing demonstrates that Plaintiff has submittedsufficient evidence from which a jury may infer that she isdisabled according to the first definition of "disability" underthe ADA. The Court further concludes that Plaintiff has failed topresent sufficient evidence that she had a record of suchimpairment or was regarded by Defendant as having such animpairment. The parties do not dispute that Plaintiff is"otherwise qualified" or "qualified to perform the essentialfunctions of the job with or without reasonable accommodations,"that she was subject to an adverse employment action by a companysubject to the Act, and that she suffered damages as a result.Finally, the Court concludes that Plaintiff has presentedsufficient evidence to create a genuine dispute of material factas to whether she was treated less favorably than nondisabledemployees. Thus, although summary judgment will be granted forDefendant as to whether Plaintiff is disabled under the ADA'ssecond and third definitions of disability, Plaintiff has,overall, presented sufficient evidence of a prima facie case ofdiscrimination, and summary judgment will be denied as to thefirst prong of the McDonnell Douglas analysis.

B. Pretext for Discrimination.

Having found that Plaintiff has presented sufficient evidenceto establish her prima facie case, pursuant to the McDonnellDouglas framework, a presumption of discrimination has risen.The Court must now examine whether Plaintiffs evidence issufficient to survive summary judgment on the remaining twoprongs of the McDonnell Douglas test. Once Plaintiff hasestablished her prima face case, the burden of production thenshifts to the defendant who must point to evidence indicatingthat there existed a legitimate, nondiscriminatory reason for thecomplained-of action. See Dichner v. Liberty Travel,141 F.3d 24, 30 (1st Cir. 1998). A defendant meets this burden byproffering admissible evidence of an explanation that would belegally sufficient to justify a judgment for the defendant. Thedefendant need not persuade the trier of fact that there was nointentional discrimination; it need only produce evidence on thatpoint. See id.; see also St. Mary's Honor Center v. Hicks,509 U.S. 502, 506-08, 113 S.Ct. 2742, 2747- 48, 125 L.Ed.2d 407 (1993).Finally, if the Defendant meets its burden, Plaintiff must showthat there is sufficient potential proof for a reasonable juryto find Defendant's proffered reason a mere pretext for impermissiblediscrimination. See Dichner, 141 F.3d at 30.

Here, Defendant has produced sufficient evidence of alegitimate, nondiscriminatory reason for terminating Plaintiff inNovember 1996. Defendant explains that Plaintiff was terminatedon November 14, 1996, without warning, because managementdetermined that she had severely damaged the flanges of fourdirectional couplers she had worked on and knowingly passed themas qualified parts to the final work area prior to shipping,concealing her faulty workmanship without correcting it.Plaintiff's Statement of Material Facts ¶ 10; Defendant's Statementof Material Facts ¶ 20. This was explained in Plaintiffs terminationnotice, a memorandum included in her personnel file, and a"reject report," required to be issued by quality control whena part does not meet military specification, was issued inregard to the parts damaged on November 14, 1996. Defendant'sStatement of Material Facts ¶¶ 21 30, Exhibits D, E, F. Defendantalso provides evidence of why it considered Plaintiff's behaviorparticularly egregious and to justify termination withoutwarning. In his deposition, Raymond Backman explains why Plaintiff'sconduct was particularly serious.

In the lab, which I said previously is the last quality check we have, basically, and the lab does the low power testing, most of all the assembly they do the critical things. When it leaves the lab, our confidence level is that it's correct and it's ready to be maybe painted if it has to be or pressure tested, which is the final thing, and then packaged and shipped. Very important that we know that when a part comes out of the lab and goes to the final step that the part is absolutely correct, very important. If it isn't we lose customers. It's that simple. We cannot afford to have someone passing parts to the next final step, phase, that are incorrect and knowing they're incorrect, just can't.

Id. ¶ 24; Defendant's Deposition at 23-24.Defendant emphasizes that it was Plaintiff'sactive concealment of the damaged parts, rather than herfaulty workmanship, that prompted the decision to terminateher. Defendant's Statement of Material Facts ¶¶ 25, 27;Defendant's Deposition at 13-14, 23-24. In his deposition,the following colloquy took place:

Q. What was the reason for Barbara Bilideau's termination?

A. She installed some alignment pins in the flanges of four couplers, directional couplers. And when she did, she distorted the tube that they were connected to very much out of shape. It was very obvious that they were damaged, the parts. And the only reason she was terminated is that she moved them to the next and final work area for pressure test prior to being shipped knowing--had to know that they were damaged, and she did that without coming forth with she'd made a mistake. She was trying to conceal the error.

Q. Is that the only reason for her termination?

A. It's a willful concealment of the error, that's right.

Q. That's the only reason?

A. That's the primary--yes. Because we can't have people in the lab, which is our last line of inspection for proper parts to be shipped, tested and shipped, passing on product that's inferior. Just can't do it.

Q. I'm just making sure that I understand Mega's position with regard to her termination and I'm wondering if that is the sole reason for her termination?

A. Yes, it is.

Defendant's Deposition at 13-14. The Court finds that Defendanthas satisfied its burden of presenting evidence of a nondiscriminatoryreason for Plaintiff's termination and will grant summary judgmentfor Defendant on this prong of the McDonnell Douglas test.

Once the defendant satisfies the burden of presenting anondiscriminatory reason for the adverse employment decision, asDefendant has done here, the presumption of discriminationestablished by the plaintiff's prima facie case dissolves.See Dichner, 141 F.3d at 30; Texas Dep't of Community Affairs v.Burdine, 450 U.S. 248, 255 n. 10, 101 S.Ct. 1089, 1095 a. 10,67 L.Ed.2d 207 (1981). At this point, Plaintiff must produceevidence, unaided by the original inference created by her primafacie case, that Defendant's proffered reason is a mere pretext,the real reason for her termination having been based on animpermissible animus directed toward her because of her alcoholism.See Dichner, 141 F.3d at 30. In the First Circuit, the ultimateburden of proof of intentional discrimination rests at all timeson the plaintiff; it is "insufficient for a plaintiff merely toundermine the veracity of the employer's proffered justification,"and the plaintiff is required to show both that employer's articulatedreason is false and that discrimination was the actual reason forthe employment action. Dichner, 141 F.3d at 30.

In this case, as in most discrimination cases, the issue is afactual question of motivation: could a reasonable jury find thatthe adverse action was taken because of the employee's disabilityrather than because of the purported nondiscriminatory reason?"Where a plaintiff in a discrimination case makes out a primafacie case and the issue becomes whether the employer's statednondiscriminatory reason is a pretext for discrimination, courtsmust be `particularly cautious' about granting the employer'smotion for summary judgment." Hodgens v. General Dynamics Corp.,144 F.3d 151, 167 (1st Cir. 1998) (citing Stepanischen v. MerchantsDespatch Transp. Corp., 722 F.2d 922, 928 (1st Cir. 1983)).Summary judgment is not, however, automatically precluded evenin cases where motive or intent is at issue. See id. If a plaintiffin a discrimination action rests merely upon "conclusory allegations,improbable inferences, and unsupported speculation," summaryjudgment may he appropriate even where intent isan issue. See id. (quoting Smith v. Stratus Computer, Inc.,40 F.3d 11, 12 (1st Cir. 1994), cert. denied 514 U.S. 1108,115 S.Ct. 1958, 131 L.Ed.2d 850 (1995)). However, the role of the trialjudge at the summary judgment stage "is not . . . to weigh the evidenceand determine the truth of the matter, but to determine whetherthere is a genuine issue for trial." See id. (quoting Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511,91 L.Ed.2d 202 (1986)). With these principles to guide it, theCourt turns to the question of whether Plaintiff has submittedevidence strong enough to create "a sufficient disagreement torequire submission to a jury" the issue of whether Defendant'sexplanation is pretext for discrimination. See id.

An evaluation of the record, in a light most favorable toPlaintiff, leads the Court to conclude that a genuine issue ofmaterial fact exists as to whether Defendant terminated Plaintiffbecause she is an alcoholic rather than because she bent fourflanges and concealed her faulty workmanship. Plaintiff contendsthat the true reason for her termination is more likely,discriminatory than not and that Defendant's explanation isunworthy of credence, Plaintiff puts forth undisputed evidencethat she had a good employment record and her honesty had notbeen questioned in the past, thus suggesting that a terminationwithout a warning for her first error was malapropos. PlaintiffsStatement of Material Facts ¶ 11; Defendant's Deposition at17-19, 9; D. Paul, Sr. Deposition at 4, 10. Plaintiffs evidencealso shows that she was not the last person to check the parts atthe company because they went on to a pressure testingdepartment, shipping and receiving, and a quality controlstation. Plaintiff's Statement of Material Facts ¶¶ 15, 16;Defendant's Deposition at 24. Whether or not the parts worked onby Plaintiff on the day she was terminated were to go on to theother stages, and whether Plaintiff knew that to be so, is notclear on this record and must be sorted out at trial. Plaintiffalso presents evidence that other couplers were severely damagedthe same day she was terminated and, as a result, eight of theflanges needed to be replaced, yet none of the other employeesresponsible were fired or disciplined.6 Plaintiff's Statementof Material Facts ¶ 19. A reasonable inference from this evidenceis that Defendant is exaggerating the egregiousness of Plaintiffsconduct and that a warning, rather than a termination, wouldhave been more appropriate and in line with Defendant's protocol.

Moreover, a genuine dispute exists as to whether Defendant hadany basis upon which to ground its conclusion that Plaintiffattempted to conceal her faulty work. Defendant emphasizes thatits reason for terminating Plaintiff without a warning was notbecause of the faulty workmanship per se, but because sheattempted to conceal her mistake and passed the parts withoutreporting her error. Defendant's Statement of Material Facts¶¶ 25, 27; Defendant's Deposition at 13-14. "The ADA clearlycontemplates distinguishing the issue of misconduct from anemployee's status as an alcoholic," McKey v. Occidental Chem.Corp., 956 F. Supp. 1313, 1319 (S.D.Texas 1997), and theCourt will not interfere with a company's decision as to whatmisconduct is unacceptable in an industry and warrants atermination. The Court does not question that active concealmentof badly damaged parts toward the end of the assembly line isunacceptable misconduct and that immediate termination isappropriate for employees that a company cannot trust to report errors.However, here, Plaintiff has presented evidence tendingto show that she did not try to conceal her faulty workmanshipand that Defendant did not have grounds to believe that she haddone so in regard to the parts damaged on November 14, 1996.Defendant acknowledges in its deposition that it did not askPlaintiff whether she knowingly concealed the parts and did notdo anything to determine whether Plaintiff had knowingly passedthe parts. Plaintiffs Statement of Material Facts ¶ 13. Therecord supports an inference that Defendant did not properlyinvestigate whether Plaintiff intended to conceal her faultyworkmanship or was responsible in the first instance. Plaintifftestifies, and Defendant acknowledges in its deposition, that shewrote her identification number on the "move ticket" when shepassed the parts and, thus, did not seriously attempt to concealher workmanship. Plaintiff's Statement of Material Facts ¶18; Defendant's Deposition at 30. Plaintiffs evidence also showsthat she was not the last person to check the parts at thecompany because they went on to a pressure testing department,shipping and receiving, and a quality control station. PlaintiffsStatement of Material Facts ¶ 15, 16; Defendant's Depositionat 24. In addition, it is disputed whether Plaintiff even damagedthe most severely bent fourth flange, and Defendant admits thatPlaintiff was not confronted with this flange when asked aboutthe incident. Plaintiffs Statement of Material Facts ¶ 13.Because the foregoing evidence supports an inference thatDefendant's reason for terminating Plaintiff was not justifiedunder the circumstances and that the egregiousness of Plaintiff'sconduct may have been exaggerated by Defendant, based upon suchevidence, a jury could find that Defendant's explanation lackscredence.

As stated above, it is "insufficient for a plaintiff merely toundermine the veracity of the employer's proffered justification"and Plaintiff is required to present evidence of discriminatorymotive. Dichner, 141 F.3d at 30. Here, Plaintiff has presentedcircumstantial evidence that Defendant had animus toward herbecause of her alcoholism. Plaintiff testified in her depositionthat she was treated differently by members of management whenDefendant first learned of her alcoholism. Plaintiff's Statementof Material Facts ¶¶ 4, 5; Plaintiffs Deposition at 19-22. Thisis corroborated by the sworn statement of a second employee whoclaims that she experienced the same poor treatment when shereturned from an alcoholism rehabilitation center. PlaintiffsStatement of Material Facts ¶ 6. Plaintiff also testifies that shewas given a hard time when she left work early to attend counselingappointments and was not permitted to make up the time even thoughother employees were allowed to do so. Id. ¶ 5. Finally, closetemporal proximity between two events may give rise to an inferenceof a causal connection. See Hodgens, 144 F.3d at 168. Plaintiff hada positive employment record which included no prior written warningsfor errors, and Defendant had not expressed any concerns about herintegrity or her work ethic prior to the incident in November of1996. Plaintiff's Statement of Material Fact ¶¶ 2, 11; Defendant'sDeposition at 9, 17-19. Despite Plaintiff's employment record,four months after Defendant learned that Plaintiff is an alcoholicand at the first instance of poor workmanship, she was terminatedwithout warning. The Court concludes that this evidence, coupledwith Plaintiffs evidence that Defendant's concern with her activeconcealment is unfounded, is sufficient to create a genuine disputeof material fact as to whether Defendant's explanation is pretext fordiscrimination.

Although Defendant presents evidence that weakens Plaintiffsevidence, the weight of Defendant's evidence is not "so one-sidedthat [it] must prevail as a matter of law." Anderson,477 U.S. at 251-52, 106 S.Ct. at 2511-12. Records of pastterminations demonstrate that a termination without awarning is not unprecedented at the company. Employmentrecords show that at least seven other employees with no knowndisabilities were terminated without prior written warningand at least six other employees with no known disabilitieswere terminated for poor quality workmanship in 1997 and1998, thus indicating that. Plaintiffs termination was not outof the ordinary.7 Defendant's Statement of Material Facts ¶¶ 35, 36.The company handbook also permits Defendant to terminate anemployee without written warning and provides that inefficiencyand failure to adhere to quality standards is grounds for termination.Id. ¶ 31. The handbook provides that

whether these actions lead to a verbal warning, a written warning, a suspension or permanent discharge depends on the severity of the offense, its effects on others, your previous performance, and other considerations. Generally, you will be warned (Verbally, then in writing) and have an opportunity to rectify your conduct. However, certain offenses, because of their severity, warrant immediate temporary suspension or permanent discharge without prior warning.

Id. ¶ 32, Exhibit G. Despite Defendant's showing, thereis no evidence in the record that an employee has been terminatedwithout a warning in the past for the same reason that Plaintiffwas terminated.

Raymond Backman and Donald Paul, Sr. explain in theirdepositions that when the damaged parts were brought to theirattention, they made up their minds, without knowing thatPlaintiff was responsible, that whoever was responsible would beterminated. Id. ¶ 22, 26; Defendant's Deposition at 30-33; D.Paul, Sr. Deposition at 4-6. The damaged flanges were broughtto Raymond Backman's attention by John Muehleisen, manager ofquality control. Defendant's Statement of Material Facts ¶ 22;Defendant's Deposition at 14-16. In addition, Defendant contendsthat the fact that Ron Adams and Linda Sellick, nonmanagementemployees, told Raymond Backman that Plaintiff was responsibleindicates that they did not discriminate against Plaintiff.Defendant's Statement of Material Facts ¶ 23. Raymond Backmantestified in his deposition that he was surprised when helearned that Plaintiff was responsible for the error. Id. ¶ 22.Furthermore, Raymond Backman and Donald Paul, Sr. testify intheir depositions that they had zero concern with Plaintiffsability to do her work because of her alcoholism. Id. ¶¶ 12, 14;Defendant's Deposition at 12; D. Paul, Sr.'s Deposition at 15.Plaintiff does not dispute that Ron Adams and Linda Sellickinformed Raymond Backman that Plaintiff had worked on thedamaged parts but disputes the assertion in her depositionthat Raymond Backman and Donald Paul, Sr. made up their mindsto terminate the person who damaged the parts before they knewit was her. She does not, however, provide specific facts thattend to show that her version of events is correct. WhetherDefendant determined that whoever made the error would beterminated before it knew that Plaintiff was responsible raisesan issue of credibility that must be determined by the factfinder after trial. The record also shows that Defendant hasemployed at least four other people who suffered from alcoholismin the past who were not terminated. Defendant's Statement ofMaterial Facts ¶ 37, Exhibit H. Defendant's evidence certainlyweakens Plaintiffs characterization of events. However, evenif termination without warning is precedented and supported bycompany policy under warranting circumstances, includingimproper concealment of error, this evidence does notresolve whether Plaintiff actively concealed her errorin this case.

The question of summary judgment here is a close one becauseboth Defendant and Plaintiff have presented evidence tending tosupport their respective versions of the facts on the question ofwhether Defendant's reason for terminating Plaintiff waslegitimate or whether it was pretext to terminate her because shewas an alcoholic. A jury could find that Defendant's decision toterminate Plaintiff without a warning was justified because ofthe seriousness of her mistake and its belief that she attemptedto conceal her faulty workmanship. A jury could also findthat Plaintiff did not actively conceal her mistake and thatPlaintiffs alcoholism was the true reason that she was terminated.On this record, the weighing of the alternative factual scenariosrequires evaluation of the credibility of the witnesses and will,thus, be left to the finder of fact after trial. Accordingly,the Court will deny Defendant summary judgment on the pretextprong of the McDonnell Douglas analysis of the ADA and MHRAdiscrimination claims.

IV. CONCLUSION

Caution is appropriate when considering summary judgment for anemployer in a discrimination action, and for the purposes of thismotion, the evidence and all reasonable factual inferences havebeen viewed in the light most favorable to Plaintiff. To prevailon her discrimination claim under the ADA and the MHRA, Plaintiffmust qualify as disabled as defined under the statutes and showthat she was subject to an adverse employment action by Defendantbecause she had a disability and suffered damages as a result.Plaintiff has submitted evidence on summary judgment from which ajury could infer that she is disabled under the first of thethree theories of disability under the ADA. She has, however,failed to meet her burden in regard to the second and thirdtheories of disability under the ADA, and Defendant is entitledto summary judgment on these parts of the first prong of theprima facie case. In addition, Plaintiff has met her burden onthe fourth part of her prima facie case and the remaining prongsgo unchallenged on summary judgment. Accordingly, the Courtwill deny summary judgment on the first prong (presentation ofPlaintiffs prima fade case) of the McDonnell Douglas analysis.

Defendant has produced evidence of a nondiscriminatory reasonfor Plaintiff's termination and, thus, the Court will grantsummary judgment for Defendant on this prong of the analysis.Finally, Plaintiff has presented sufficient evidence to create agenuine dispute as to whether Defendant's stated reason for hertermination was pretext for discrimination on the basis ofPlaintiff's alcoholism. The Court will thus deny summary judgmenton this prong. Whether Defendant's stated reason for Plaintiffstermination is pretext for discrimination may be fully exploredat trial.

Accordingly, the Court ORDERS that Defendant's motion forsummary judgment be and, it is hereby, DENIED in part andGRANTED in part in accordance with the foregoing paragraph.

1. Defendant points out that none of the employees permittedto make up missed time were in Plaintiff's department anddisputes that there was any problem with Plaintiff attending toher treatment. Defendant's Statement of Material Facts ¶13.

2. Plaintiff contends that the definition of disability underthe MHRA is broader than that of the ADA. The Court disagrees.The MHRA defines a disabled individual as a person who: "A. Has aphysical or mental disability; B. Has a record of a physical ormental disability; or C. Is regarded as having a physical ormental disability." 5 M.R.S.A. § 4553(7). A physical ormental disability under the MHRA is defined as meaning,

any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness, and includes the physical or mental condition of a person that constitutes a substantial disability as determined by a physical or, in the case of mental disability, by a psychiatrist or psychologist, as well as any other health or sensory impairment that requires special education, vocational rehabilitation or related services.

5 M.R.S.A. § 4553 (7-A). Plaintiff points out that the ADA,on the other hand, defines a "disability" as (A) a physical ormental impairment that substantially limits one or more of themajor life activities of such individual. See 42 U.S.C. § 12102(2). Plaintiff contends that the ADA is more limited inthat, in order to be eligible to sue under the ADA, an individualmust suffer from an impairment that "substantially limits" a"major life activity," which is not required to be eligible tosue under the MHRA.

No other court considering claims under both the ADA and theMHRA have conducted the analysis of whether an individual isdisabled separately. See Quint, 172 F.3d at 9-12. 16; Arnold,136 F.3d at 557 is. 2; Soileau, 928 F. Supp. at 45. Moreover,the Supreme Judicial Court of Maine noted that the statutorydefinition of physical or mental disability under the MHRA hasbeen supplemented by regulation as follows:

An applicant or employee who has a `physical or mental handicap' means any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, has a record of such impairment, or is regarded as having such an impairment.

Winston, 631 A.2d at 74 (citing Me. Human Rights Comm'n.Employment Reg. § 3.02(C)(1)). Accordingly, the Courtrejects Plaintiff's contention and applies the same analysis toboth the ADA the MI-IRA claims.

3. "The determination of whether an individual has adisability is not necessarily based on the name or diagnosis ofthe impairment the person has, but rather on the effect of thatimpairment on the life of the individual." 29 C.F.R. §16302(j), App.

4. "Major life activities" are defined by the ADA implementingregulations as "functions such as caring for oneself, performingmanual tasks, walking, seeing, hearing, speaking, breathing,learning, and working" 29 C.F.R. § 16302(i).

5. Plaintiff describes other more severe symptoms prevalentwhen she is actively drinking that are relevant to her ability tocare for herself including losing weight on a diet of coffee andbeer, suicidal feelings and self abuse including cutting herarms, and missing work due to severe hangovers. Plaintiff'sStatement of Material Facts ¶ 35; Plaintiff's Deposition at50. In her papers submitted on summary judgment, Plaintiff groupsthese symptoms together with those that she specificallyidentifies as having experienced while she was employed withDefendant. In her deposition, however, Plaintiff indicates thatsome of the symptoms that she describes are ones that she hasexperienced only recently and not while she was employed byDefendant. Plaintiff's Deposition at 50-51. The severity of thesymptoms experienced by Plaintiff during the time she wasemployed by Defendant is not exactly clear on this record.

The Court notes that the United States Court of Appeals for theFirst Circuit has not held that the determination of whether aperson is disabled for purposes of suing under the ADA must bedetermined at the time of termination or adverse employmentdecision. As the Court's discussion, demonstrates, however, evenwithout considering the most severe symptoms, Plaintiff haspresented sufficient evidence from which a jury could concludethat her alcoholism substantially limited her ability to care forherself during the time that she was employed by Defendant.

6. Defendant challenges the strength of this evidence becausePlaintiff asserted this fact in her deposition on the basis ofwhat another employee, not working for Defendant in November of1997, told her. It is not the role of the Court at summaryjudgment to weigh the evidence and it must look at the record ina light most favorable to Plaintiff. See Anderson, 477 U.S. at249, 106 S.Ct. at 2511. Accordingly, the Court will considerthis evidence for purposes of this motion.

7. Plaintiff contends that only two of the fifty-fouremployees terminated by Defendant were terminated without awarning. Plaintiff's Statement of Material Facts ¶ 12.Plaintiff rests this contention on the testimony of RaymondBackman in his deposition. Whether it is two or seven employees,the evidence shows that despite Defendant's usual policy ofgiving a warning prior to terminating an employee. Plaintiff'stermination without a warning is not unprecedented.

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