236 F. Supp.2d 177 (2002) | Cited 0 times | D. New Hampshire | December 30, 2002


Mary Ann Pimental brings this action against her former employer,Dartmouth-Hitchcock Clinic ("DHC"), seeking damages for allegedviolations of the Americans with Disabilities Act, 42 U.S.C. § 12101,et. seq. She also advances state law claims for breach of contract andwrongful termination, over which she says the court should exercisesupplemental jurisdiction. DHC denies any wrongdoing and moves forsummary judgment as to all of plaintiff's claims. Plaintiff objects.1

Standard of Review

When ruling on a party's motion for summary judgment, the court must"view the entire record in the light most hospitable to the partyopposing summary judgment, indulging all reasonable inferences in thatparty's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).Summary judgment is appropriate when the record reveals "no genuine issueas to any material fact and . . . the moving party is entitled to ajudgment as a matter of law." Fed.R.Civ.P. 56(c). In this context, "afact is `material' if it potentially affects the outcome of the suit anda dispute over it is `genuine' if the parties' positions on the issue aresupported by conflicting evidence." Intern'l Ass'n of Machinists andAerospace Workers v. Winship Green Nursing Center, 103 F.3d 196, 199-200(1st Cir. 1996) (citations omitted).

If, however, the non-moving party's "evidence is merely colorable, oris not significantly probative," no genuine dispute as to a material facthas been proved, and "summary judgment may be granted." Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). Asthe Court of Appeals for the First Circuit has observed, "the evidenceillustrating the factual controversy cannot be conjectural orproblematic; it must have substance in the sense that it limns differingversions of the truth which a factfinder must resolve at an ensuingtrial. Conclusory allegations, improbable inferences, and unsupportedspeculation will not suffice." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1stCir. 1997) (citations and internal quotation marks omitted).


Viewed in the light most favorable to plaintiff, the material facts areas follows. Plaintiff is a licensed registered nurse who began workingat DHC in 1992 in various non-salaried, part-time positions, for between20 and 24 hours each week. In April of 1997, she applied for, but didnot receive, a position as the "Operations Manager for Nurse First." InMay, however, she was promoted to the core management team of the NurseFirst Program. At that point, she was made a salaried, exemptemployee, with the expectation that she would work a 35 hour week.

In September of 1998, plaintiff was diagnosed with stage III breastcancer. As a consequence, she was given approximately eight months ofmedical leave, during which time she underwent a modified radicalmastectomy, radiation treatment, and chemotherapy (subsequently, she alsounderwent reconstructive surgery). She does not deny that DHC affordedher all the medical leave she requested under the Family Medical LeaveAct or that she was provided with all disability pay to which she wasentitled.

While plaintiff was on leave, the Nurse First management team wasreorganized and two of the management positions, including hers, wereeliminated. Shortly before returning to work, plaintiff expressed aninterest in securing a position as a staff nurse in the Nashua PediatricsDepartment. But, although the position entailed 40 hours of work perweek, plaintiff said she wanted to work only 35 (or 32, depending uponwhether one credits her deposition testimony or her EEOC charge ofdiscrimination). Plaintiff did not get the job, and she claims that thewoman who did was less qualified than she for the position and furtherclaims that DHC refused to hire her because of her cancer.2

In June of 1999, plaintiff was offered a position as a staff nurse inthe Nurse First Program, a job that required 35 hours per week. Itappears that she declined that offer and, shortly thereafter, inquiredabout a staff nursing position in the Nashua Urgent Care center — aposition that called for only 20 hours of work per week. Notwithstandingthat fact, plaintiff proposed working for 24 hours per week in thatposition and combining it with an additional 6 hours per week of qualityassurance work. Her goal was to fashion a job that provided at least 30hours of work per week, thereby making her eligible for "H3" status andgreater benefits. DHC, however, declined that proposal, saying thedepartment was not budgeted for an "H3" position and all it needed wassomeone to work 20 hours per week. Although disappointed, plaintiffappears to have accepted the position as originally offered. She does,however, seem to suggest that DHC's rejection of her efforts to combinevarious positions to obtain "H3" status constitutes a failure toreasonably accommodate her claimed disability. See Plaintiff'smemorandum at 6.

Shortly thereafter, plaintiff interviewed for the West Center Managerof the Nashua Division of DHC. DHC did not hire her for that position,claiming that the woman who was eventually hired was simply morequalified than plaintiff.

Finally, in September of 1999, plaintiff expressed interest in anUrgent Care position in Manchester, but was soon told that DHC was notgoing to fill the position at that time. As part of her (implicit)evidence of unlawful discrimination, plaintiff says she saw that veryposition advertised in the newspaper approximately two months later. DHCsuggests that the decision to fill the position in December, rather thanSeptember, was purely financial;in December, its budget permitted it tofill that vacant position, albeit for only 30 hours per week, rather thanthe 36 hours per week originally contemplated. Plaintiff, on the otherhand, suspects she was not given the position when she originallyinquired about it because DHC harbored some discriminatory animus againsther based upon her cancer. See Pimental deposition, day 2 at 107 ("Idon't see any other reason whey they would have not hired me for theposition.").3

In October of 1999, plaintiff applied for, and obtained, a full-timeposition as a school nurse in the Londonderry School District. She beganworking there in early November, while remaining in her position at DHC.In December of 1999, however, she notified DHC that she was resigning,effective January 1, 2000. She did, however, remain as a per diememployee, apparently making herself available to DHC when its need foradditional nursing staff coincided with her availability (though it isunclear whether she ever actually worked on a per diem basis after herresignation).

DHC contends that it declined to hire plaintiff for the variouspositions she sought because other, better qualified applicants were hiredinstead, or because plaintiff sought hours and/or benefits above thosefor which the particular department was presently budgeted. Itcategorically denies that plaintiff's cancer played any role in itshiring decisions. Plaintiff, on the other hand, says DHC's refusal tohire her for those positions was motivated by a discriminatory animus,based upon her cancer.


Title I of the ADA prohibits employers from discriminating againstqualified individuals with disabilities. To establish a prima facie caseof disability discrimination under the ADA, plaintiff must show that:during the time frame relevant to this suit, she suffered from adisability, as that term is used in the ADA; she was able to perform theessential functions of her job, either with or without reasonableaccommodation; and she suffered an adverse employment action because ofher disability. See, e.g., Lebron-Torres v. Whitehall Labs., 251 F.3d 236,239 (1st Cir. 2001).4

The ADA defines "disability" as: "(A) a physical or mental impairmentthat substantially limits one or more of the major life activities ofsuch individual; (B) a record of such an impairment; or (C) beingregarded as having such an impairment." 42 U.S.C. § 12102(2).Plaintiff asserts that she is a qualified individual with a disabilityunder each of these three definitions. DHC disagrees.

I. Plaintiff's Impairment and Section 12102(2)(A).

In determining whether an employee falls within the scope of section12102(2)(A), courts apply a three-part test.

First, we consider whether [the plaintiff's] condition constitutes a mental or physical "impairment." Second, we identify the life activities upon which [the plaintiff] relies to determine whether they constitute "major life activities." Major life activities are only those that are "of central importance to daily life." Third, we must determine whether the impairment substantially limits the major life activity identified. To be substantially limiting, the impairment's impact must be permanent or long-term.

Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st Cir. 2002)(citations omitted). See also Bragdon v. Abbott, 524 U.S. 624, 631(1998).

There is no question that plaintiff's breast cancer constitutes an"impairment" for purposes of the ADA. See 29 C.F.R. § 1630.2(h).See also Ellison v. Software Spectrum, Inc., 85 F.3d 187, 190 (5th Cir.1996) (holding that the plaintiff's breast cancer was an impairment underthe ADA); Treiber v. Lindbergh School Dist., 199 F. Supp.2d 949, 958(E.D.Mo. 2002) (same). But, although plaintiff's cancer qualifies as animpairment, it does not necessarily follow that she is also "disabled"within the meaning of the ADA. See Bailey, 306 F.3d at 1167. See alsoGodron v. Hillsborough County, 2000 WL 1459054 *2, n. 3, 2000 DNH 77(D.N.H. March 21, 2000) ("Cancer is not a per se disability under theADA"). Thus, the more difficult question presented in this case iswhether, during the time period relevant to her ADA claims, plaintiff'sbreast cancer substantially limited one or more of her major lifeactivities.

In attempting to demonstrate that an impairment substantially limits amajor life activity, it is not enough for a plaintiff to simply submitevidence of a medical diagnosis of an impairment. See Toyota MotorMfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002) ("Merely having animpairment does not make one disabled for purposes of the ADA. Claimantsalso need to demonstrate that the impairment limits a major lifeactivity."). Consequently, the Supreme Court has held that, "the ADArequires those claiming the Act's protection to prove a disability byoffering evidence that the extent of the limitation caused by theirimpairment in terms of their own experience is substantial." Id. at 198(citations, internal quotation marks, and internal punctuation omitted).See also 29 C.F.R. pt. 1630, App. § 1630.2(j) ("The determination ofwhether an individual has a disability is not necessarily based on thename or diagnosis of the impairment the person has, but rather on theeffect of that impairment on the life of the individual. . . . Thedetermination of whether an individual is substantially limited in amajor life activity must be made on a case by case basis."). In otherwords, determining whether a plaintiff has a disability under the ADAinvolves an "individualized inquiry." Sutton v. United Air Lines, Inc.,527 U.S. 471, 483 (1999).

In construing the scope and proper application of the ADA, the SupremeCourt has concluded that the phrases "substantially limits" and "majorlife activity" must be "interpreted strictly to create a demandingstandard for qualifying as disabled." Williams, 534 U.S. at 197. TheCourt has also held that "to be substantially limited in performingmanual tasks, an individual must have an impairment that prevents orseverely restricts the individual from doing activities that are ofcentral importance to most people's daily lives. The impairment's impactmust also be permanent or long-term." Id. at 198 (emphasis supplied).In short, to demonstrate thathe or she falls within the scope of theADA, an individual bears a substantial burden of proof. See, e.g.,Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30,33 (1st Cir. 2001) (holding that to prevail, the plaintiff must establishthat her impairment "was profound enough and of sufficient duration . . .to hamper her ability" to engage in one or more major lifeactivities).

In support of her claim that, during the time period relevant to thislitigation, her cancer (and the various side-effects of the surgical andmedical treatments she received) substantially affected one or more majorlife activities, plaintiff says her:

disability [a]ffected practically all major life functions. The cancer [a]ffected [plaintiff's] ability to care for herself, sleep, to concentrate. In essence it affected all her major life functions. The cancer also [a]ffected [her] ability to reproduce and have sexual activity. The treatment forced [plaintiff] into early menopause and interfered with her relations with her husband. [Plaintiff] was forced to take chemotherapy and [several medications]. Many of these medicines pose a positive risk to a fetus if taken during pregnancy. The Court has found that "reproduction and sexual dynamics surrounding it are central to the life process itself" and that the ability to reproduce and bear children constitutes a major life activity.

Plaintiff's memorandum at 11-12 (citations omitted) (emphasis supplied).

Turning to the evidence adduced by plaintiff in support of those claims— her deposition testimony and her affidavit — the court iscompelled to conclude that she has failed to demonstrate that her breastcancer had a substantial limiting effect on her ability to care forherself, sleep, or concentrate. See Pimental deposition, day 2, at138-53; Pimental affidavit at paras. 3 and 7. While that testimonyplainly reveals the terrible effect the cancer had upon her, it alsodiscloses that during the period relevant to this litigation, the mostsubstantial side-effects were (relatively speaking) short-lived. That isto say, they did not have a substantial and lasting effect on the majoractivities of her daily life. See, e.g., Pimental deposition, day 2, at140-41 (stating that her concentration was not impaired to the point thatit prevented her from doing her job); 145 (stating that prescriptionmedications reduced her hot flashes and helped her sleep); 148 (statingthat her memory problems did not affect her ability to do her job and shewas able to accommodate her periodic forgetfulness); 148 (stating thatshe no longer suffers from radiation burns); 149-51 (stating that whileshe still has some difficulty reaching high above her head and carryingheavy objects, she was able to perform a range of household chores); 152(stating that she no longer experiences shortness of breath); 152-53 (inresponse to a question asking whether concentration problems had a"significant impact" on her life, saying they had "some impact").

Moreover, plaintiff's own assertions that the cancer did notsubstantially impair her ability to perform various tasks associated withher employment tend to undermine her claim that it did substantiallyaffect her ability to, for example, care for herself on a long-termbasis. See, e.g., Plaintiff's memorandum at 12 (stating that plaintiff"does not claim that her major life activity of working has beensubstantially compromised"); id. at 4 (stating that, upon her return frommedical leave, plaintiff "had no problems performing her duties as anurse"). Thus, she has failed to demonstrate that her illnesssubstantially affected her ability to care for herself, sleep, orto concentrate on a permanent or long-term basis.

Finally, plaintiff says the chemotherapy she received essentiallyprecluded her from conceiving a child (because of the risk posed to thefetus by such treatment) and, ultimately, caused her to undergo prematuremenopause. Thus, she says it adversely (and permanently) affected herability to reproduce. The Supreme Court has held that the ability toreproduce is a "major life activity." See Bragdon, 524 U.S. at 638("Reproduction falls well within the phrase `major life activity.'Reproduction and the sexual dynamics surrounding it are central to thelife process itself."). Thus, says plaintiff, on that ground alone sheis plainly "disabled" within the meaning of section 12102(A).

There is little doubt that had plaintiff become pregnant during herchemotherapy treatment, the fetus might well have been placed atsubstantial risk. Nor is there any doubt that, to the extent thechemotherapy caused her to undergo premature menopause, it adverselyaffected her ability to bear more children. Importantly, however,plaintiff points to nothing in the record that suggests she intended tohave more children. And, because assessing an individual's disabilityunder the ADA requires an "individualized inquiry," it is not enough tosimply say that she can no longer have children. Instead, plaintiff mustpoint to something that suggests she at least contemplated having morechildren. Chief Justice Rehnquist addressed this issue in his separateopinion in Bragdon, writing:

According to the Court, the next question is `whether reproduction is a major life activity." That, however, is only half of the relevant question. As mentioned above, the ADA's definition of a "disability" requires that the major life activity at issue be one "of such individual." The Court truncates the question, perhaps because there is not a shred of record evidence indicating that, prior to becoming infected with HIV, respondent's major life activities included reproduction (assuming for the moment that reproduction is a major life activity at all). . . . There is absolutely no evidence that, absent the HIV, respondent would have had or was even considering having children.

Bragdon, 524 U.S. at 658-59 (Rehnquist, C.J., concurring in part anddissenting in part). See also Treiber, 199 F. Supp.2d at 960 (concludingthat while plaintiff's breast cancer was certainly an impairment, shefailed to demonstrate that it substantially affected a major lifeactivity; although chemotherapy affected her ability to have children,plaintiff did not assert any interest in having children and, therefore,that side-effect of her treatment did not render her disabled under theADA).

So it is in this case. While the record reveals that plaintiff has twochildren (ages nine and eleven), there is simply no evidence that, priorto being diagnosed with cancer, she had considered having more.5 Shehas likewise failed to point to sufficient evidence in the record tosupport the conclusion that her cancer had a permanent or long-lastingand substantial effect on her intimate relations with her husband. SeePimental deposition, day 2 at 153 (stating that while she remainsself-conscious, her intimate relationshipwith her husband has, followingher reconstructive surgery, changed for the better: "It's improved. Idon't know if it will ever be the same as it was prior to my diagnosis,but it's definitely improved since I had reconstruction.").

In light of the record evidence upon which plaintiff relies in hermemorandum, she has failed to make a prima facie showing that she was,during the period relevant to her claims against DHC, "disabled" undersection 12102(A). See Gillen v. Fallon Ambulance Service, Inc.,283 F.3d 11, 24 (1st Cir. 2002) ("A plaintiff must proffer evidence fromwhich a reasonable inference can be drawn that a major life activity issubstantially or materially limited.") (quoting Snow v. Ridgeview MedicalCenter, 128 F.3d 1201, 1207 (8th Cir. 1997)) (internal punctuationomitted).

II. Plaintiff Lacks a "Record of Such an Impairment."

In support of her asserted entitlement to the protections afforded bythe ADA by virtue of section 12102(2)(B), plaintiff says:

It is undisputed that [plaintiff] has a record of breast cancer. [Plaintiff] received her treatment for cancer at the Defendant's facility. It is undisputed that the Defendant was aware that [plaintiff] had taken leave of absence due to her breast cancer. The defendant provided her with Family Medical Leave Act time off for her cancer and provided her disability benefits. . . .

[Plaintiff] had claimed protection of the ADA under the auspices of having a record of an impairment. As there is undisputed evidence of a "record" of impairment and the Defendant has failed to address this claim in its motion for summary judgment[,] [t]his claim should be allowed to proceed to a jury.

Plaintiff's memorandum at 14. While it is true that plaintiff has ademonstrated "record" of an impairment — her breast cancer —that, standing alone, is insufficient to entitle her to the protectionsafforded by the ADA. As the Act itself provides, to qualify as"disabled" under section 12102(2)(B), an individual must demonstrate thathe or she has a "record of such an impairment." That is to say, a recordof an impairment that "substantially limits one or more of the major lifeactivities of such individual." And, as noted above, plaintiff'sevidence on that point is legally insufficient to deflect summaryjudgment. See Santiago Clemente v. Executive Airlines, 7 F. Supp.2d 114,118 (D.P.R. 1998) ("While her employer's awareness might be enough toestablish a record of her condition, it does not, by any means, establisha record of disability. Again, evidence of impairment alone is notenough to establish disability.").

III. Plaintiff was not "Regarded as Having Such an Impairment."

Finally, plaintiff asserts that she is entitled to the protectionsafforded by the ADA because DHC regarded her as disabled — thatis, suffering from an impairment that substantially limited one or moremajor life activities. See 42 U.S.C. § 12102(2)(C). See also29 C.F.R. § 1630.2(l). As the Supreme Court has observed,

[t]here are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.

Sutton, 527 U.S. at 489.

Here, plaintiff seems to suggest that the major life activity that DHCmistakenly believed was substantially limited by her cancer was herability to work.6 In support of that claim, plaintiff says:

The Defendant regarded Ms. Pimental to be disabled as of October 10, 1998. Diane Dwyer, Southern New Hampshire Region HR Manager placed her on disability leave. The undisputed comments regarding the "stress" of Ms. Pimental's illness also demonstrates [sic] the fact that the Defendant regarded Ms. Pimental as disabled. They [sic] felt she could not handle the "stress" of management with her disability. Upon her application for a job as a staff nurse in the West Center Pediatrics it is undisputed that the interviewer, Ms. Thomas, made inquiries regarding her disability. Pre-employment inquiries are prohibited under the ADA.

Plaintiff's memorandum at 14-15 (citations omitted).

First, plaintiff has a somewhat mistaken view of the extent to whichemployers may make "pre-employment inquiries" into candidates'disabilities. The regulation upon which she relies provides that,generally speaking, employers may not ask whether an individual suffersfrom a disability or inquire into the nature or severity of thatdisability. See 29 C.F.R. § 1630.13(a). Importantly, however, thenext section of the Code of Federal Regulations, which plaintiffoverlooks, specifically authorizes employers to "make pre-employmentinquiries into the ability of an applicant to perform job-relatedfunctions, and/or [to] ask an applicant to describe or to demonstratehow, with or without accommodation, the applicant will be able to performjob-related functions." 29 C.F.R. § 1630.14.

In support of her view that DHC violated section 1630.13, the soleevidence identified by plaintiff is page 19 of her deposition, seeplaintiff's memorandum at 15, where, in response to a question about whyshe thought she was denied a job because of her impairment, shetestified:

Well, Jan asked me where I was in my treatment, and I told her I was going to have to go for further treatment, radiation treatments for four to six weeks after my return to work. I told her I would try to schedule that around department needs.

Pimental deposition, day 2 at 19. Nothing about that isolated questionposed by the interviewer suggests that it was made in violation of section1630.13. First, DHC was well aware that plaintiff had been diagnosedwith cancer; in fact, it had given her substantial medical leave in orderto obtain treatment — treatment she received at DHC. Thus, therewas no need for DHC to violate section 1630.13 by making "inquiries as towhether [plaintiff] is an individual with a disability."

Moreover, plaintiff's response to the question reveals that sheinterpreted it as an inquiry into whether she would require any furtheraccommodations in order to perform the tasks associated with the positionshe sought (e.g., additional medical leave time) — a line ofinquiry permitted by section 1630.14. In short, plaintiff has pointed toinsufficient evidence to support even the inference that DHC violated theprovisions of section 1630.13 during the course of that particularinterview.

Next, plaintiff says evidence that DHC regarded her as disabled can befound in comments made by DHC employees concerning her stress. Insupport of that assertion, plaintiff again points to her deposition.Overlooking potential hearsay and admissibility issues for the moment,plaintiff testified that two DHC employees told her they had heard thatother DHC employees did not believe she was the right person for aparticular managerial job since she was experiencing so much stressdealing with her cancer. Pimental deposition, day 1 at 64 and 71.Again, however, that isolated, anecdotal evidence is insufficient tosustain her burden of showing that DHC regarded her as substantiallylimited in her ability to work. As the Court of Appeals for the SecondCircuit has noted:

"substantially limited" in the ability to work means that a plaintiff is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs. An impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one.

Thus, in order to prove that [defendant] perceived her as substantially limited in her ability to work, [plaintiff] bore the burden of presenting evidence that [defendant] perceived her to be incapable of working in a broad range of jobs suitable for a person of her age, experience, and training because of her disability.

Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872 (2d Cir. 1998)(citations and internal punctuation omitted). See also Carroll v. XeroxCorp., 294 F.3d 231, 240 (1st Cir. 2002) (same) Sinkler v. MidwestProperty Mngt. Ltd. Pshp., 209 F.3d 678, 686 (7th Cir. 2000) (same);Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d 538, 542 (1st Cir. 1999)(same); Ellison, 85 F.3d at 192 (same). See generally29 C.F.R. § 1630.2(j)(3).

Even viewing the evidence upon which plaintiff relies in the light mostfavorable to her, a reasonable, properly instructed trier of fact couldnot conclude that DHC regarded her as incapable of performing a widerange of jobs for which she was trained. See, e.g., Doyal v. OklahomaHeart, Inc., 213 F.3d 492, 499 (10th Cir. 2000) (holding that "isolatedcomments" that plaintiff was "incapacitated" and that her "difficultiesat work were not a fixable problem" were insufficient to "support theconclusion that management misperceived her as being substantiallylimited in learning, sleeping, thinking, or interacting with others.");Ellison, 85 F.3d at 192-93 (holding that notwithstanding the fact thatsupervisor made comments about plaintiff's breast cancer that wereinsensitive, crass, and "beneath contempt," they were insufficient tosupport her claim that her employer "regarded her" as disabled by reasonof her illness); Pikoris v. Mount Sinai Medical Center, 2000 WL 702987*13 (S.D.N.Y. May 30, 2000) (holding that employer's comments indicatingthat, given plaintiff's recent treatment for breast cancer, it believedher position as an anesthesiology resident was too stressful for her wereinsufficient to support conclusion that employer perceived her asgenerally unable to work because of her illness). In fact, it isundisputed that the three DHC employees plaintiff listed on her resumeas references provided her with strong recommendations for the positionwith the Londonderry School District that plaintiff ultimately secured.See, e.g., Pimental Deposition, day 2 at 79. Those strong recommendationscertainly suggest that DHC did not consider plaintiff unable to perform awide range of jobs for which she was qualified. See, e.g., Ryan, 135F.3d at 871 (holding that statement to plaintiff that "this job is toostressful for you because you have colitis" did not, in light ofemployer's having given her strong employment recommendations, supportconclusion that employer misperceived her as being disabled).

In light of the sparse evidence of record upon which plaintiff relies,she has failed to carry her burden of demonstrating that DHC regard heras disabled under section 12102(2)(C). At most, plaintiff hasdemonstrated that DHC regarded her as suffering from an impairment thatdid not substantially limit one or more of her major life activities. SeeTardie, 168 F.3d at 542.


There is no question that plaintiff's cancer has dramatically affectedher life, and that the associated impairment has been real andextraordinarily difficult for her and her family. The narrow issuebefore the court, however, is whether, during the time period at issue,her cancer rendered her "disabled," as that term is used in the ADA.Based upon the record presented, the court is compelled to conclude thatplaintiff has not, and cannot, point to sufficient evidence to support aclaim of disability under the ADA, given that term's statutory meaning.Consequently, as to plaintiff's claims under the ADA, the defendant,DHC, is entitled to judgment as a matter of law.

As to plaintiff's state law claims, which, among other things, raisedifficult state law questions involving statutory preemption of commonlaw causes of action and whether N.H. Rev. Stat. Ann. 275:49 provides aprivate right of action, the court declines to exercise its supplementaljurisdiction. See generally Camelio v. American Federation, 137 F.3d 666(1st Cir. 1998). See also Dennis v. Husqvarna Forrest & Garden Co.,1994 WL 759187 at *7 (D.N.H. Dec. 27, 1994) ("[T]his court is and shouldbe hesitant to blaze new, previously uncharted state-law trails.Expansive reading of New Hampshire statutes and recognition of novelcauses of action under those statutes is a realm best occupied by the NewHampshire Supreme Court."). Because plaintiff's state law claims are bestpursued in a state court of competent jurisdiction, this court will notresolve them in this case.

Defendant's motion for summary judgment (document no. 19) is granted inpart. Defendant is entitled to judgment as a matter of law with regard tocounts 1, 2, and 3 of plaintiff's amended complaint. As to the remainingcounts (4 and 5), which advance state law claims, the court declines toexercise its supplemental jurisdiction and they are dismissed withoutprejudice to pursuing them in state court. Defendant's motion to excludeplaintiff's expert testimony (document no. 12) is denied as moot. TheClerk of Court shall enter judgment in accordance with this order andclose the case.


1. Parenthetically, the court notes that plaintiff has exhausted heradministrative remedies by filing a charge of discrimination with theEEOC. After conducting an investigation, the EEOC notified her that itwas "unable to conclude that the information obtained establishesviolations of the statutes," and informed her of her right to sue.Exhibit 1-G to plaintiff's memorandum (document no. 25).

2. At her deposition, plaintiff testified that, notwithstanding thefact that DHC was "leaning towards a 40-hour workweek" for the vacantposition, she told DHC that she was "only committed to 35 hours a week."Pimental deposition, day 2 at 7. Nevertheless, three or four days aftermaking those comments, plaintiff says she attempted to contact herinterviewer to say she was "planning to take the position." Id. at 8.But, she was unable to reach her interviewer that day and, when shefinally was able to speak with her, plaintiff learned that the positionhad already been offered to another person — someone willing towork 40 hours per week.

3. Although DHC publically advertised for the vacant position inDecember — prior to plaintiff's resignation — she neverapplied for (nor, necessarily, was she ever interviewed for) thatposition.

4. As is the case in most employment discrimination suits, absentdirect evidence of discriminatory animus on the part of the employer, thecourt employs the familiar McDonnell-Douglas burden shifting paradigmwith regard to most claims brought under the ADA. An exception to thatgeneral rule applies when an ADA plaintiff advances a "failure toaccommodate" claim, in which case the principles articulated inMcDonnell-Douglas do not apply. See generally Higgins v. New BalanceAthletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999).

5. At the final pretrial conference held on December 20, 2002, thecourt discussed this shortcoming in the evidence upon which plaintiffrelies. Through counsel, plaintiff candidly acknowledged that she couldnot, in good faith, make the required representation regardingreproductive intent.

6. The Supreme Court has yet to decide whether working constitutes amajor life activity under the ADA. See Williams, 534 U.S. 193; Sutton,527 U.S. at 492. For purposes of addressing defendant's motion forsummary judgment, however, the court will assume that working is a majorlife activity. See, e.g., Gelabert-Ladenheim v. American Airlines,Inc., 252 F.3d 54, 58 (1st Cir. 2001) (assuming, arguendo, that workingis a "major life activity"); Carroll v. Xerox Corp., 294 F.3d 231, 239n. 7 (1st Cir. 2002) (same). See generally 29 C.F.R. § 1630.2(j)(3)(suggesting that working is a "major life activity").

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