77 F. Supp.2d 149 (1999) | Cited 0 times | D. Maine | October 27, 1999


Plaintiff Ann Ridge has brought this discrimination actionagainst Defendant Cape Elizabeth School Department ("CESD") as aresult of its termination of Plaintiff's employment. Plaintiff'sfour-count Amended Complaint (Docket No. 2) alleges that CESDviolated the Americans With Disabilities Act, 42 U.S.C. § 12101et seq. ("ADA") (Count I), the Age Discrimination inEmployment Act of 1967 ("ADEA") (Count II), the Civil Rights Actof 1991, 42 U.S.C. § 1981 and 1981a (Count III), and theMaine Human Rights Act, 5 M.R.S.A. § 4551 et seq. ("MHRA")(Count IV). Now before the Court is Defendant CESD's Motion forSummary Judgment with respect to all four counts of Plaintiff'sAmended Complaint. See Defendant's Motion for Summary Judgmentand Incorporated Memorandum of Law (Docket No. 9). For thereasons stated below, the Court will grant CESD's Motion forSummary Judgment as to Plaintiff's claims of actual and perceiveddiscrimination under the ADA in Count I and under the MHRA inCount IV. The Court will also grant CESD's Motion for SummaryJudgment as to Plaintiff's claims of age discrimination under theADEA in Count II and under the MHRA in Count IV. Finally, theCourt will grant CESD's Motion for Summary Judgment as toPlaintiff's claims under 42 U.S.C. § 1981and 1981a in Count III of the Amended Complaint.


In 1988, Plaintiff Ann Ridge began work in the Cape ElizabethHigh School library ("CEHS library") as an Education TechnicianII. Defendant's Statement of Undisputed Material Facts ¶ 1(Docket No. 10); Plaintiff's Reply to Defendant's Statement ofUndisputed Material Fact ¶ 1 (Docket No. 14). Approximatelytwo years later, Joyce Bell became the head librarian of the CEHSlibrary. Deposition of Ann Ridge at 7. For some years thereafter,Plaintiff and Bell enjoyed a good working relationship. Id. at12. Their relationship, however, changed in December of 1994, Id.at 13.

Prior to the Christmas break of that year, Plaintiff and Bellhad a disagreement over the manner in which Plaintiff had handleda student disciplinary matter. Ridge Dep. at 17. AlthoughPlaintiff believed that she had handled the situation properly,she felt that Bell should not have questioned her judgment in thematter. Id. at 18. Following the Christmas break, therefore,Plaintiff reported the incident between herself and Bell to CapeElizabeth Assistant Principal Randy Ray in order to voice herconcerns about Bell's treatment of her. Id. at 19. Plaintiffwanted Ray to facilitate a discussion between herself and Bell inorder to resolve the matter. Id. at 20. Ray, however, respondedto Plaintiff's request by indicating that Bell was Plaintiff's"boss," and that she should do what Bell told her. Id. Plaintiffbelieved that Ray's response to her request was "inappropriate,"and that CESD should have sought to foster a better relationshipbetween herself and Bell. Id.

Thereafter, the relationship between Bell and Plaintiffdeteriorated. Plaintiff's Reply to Defendant's Statement ofUndisputed Material Facts ¶ 6. The two individuals no longerexchanged friendly banter and from Plaintiff's viewpoint, the twohardly communicated at all. Id. As a result of the growing riftbetween Bell and Plaintiff, and the negative effect the twowomen's relationship was having on the CEHS library, a meetingwas held on March 15, 1995 at the behest of the CESDSuperintendent Connie Goldman. Id. at ¶ 7. Also in attendanceat that meeting were Plaintiff, Bell, Cape Elizabeth PrincipalRick Difusco, and Plaintiff's union representative. Id. Themeeting itself was informal, and was not intended to be adisciplinary session. Id. Rather, the meeting was an attempt onGoldman's part to mediate a solution to Plaintiff's and Bell'sinability to work together. Id. Unfortunately, the meeting provedto be ineffective as the relationship between Bell and Plaintiffcontinued to decline throughout the remainder of the 1995 schoolyear and into the following fall.

In September of 1995, issues regarding the remagnetizing ofbooks arose in the CEHS library. Defendant's Statement ofUndisputed Material Facts ¶ 9; Plaintiff's Reply toDefendant's Statement of Undisputed Material Facts ¶ 9.Specifically, at that time, Plaintiff was the only person in thelibrary doing the remagnetizing work and she was concerned,primarily, with the health risks associated with prolongedexposure to electromagnetic fields ("EMFs"). Plaintiff's Reply toDefendant's Statement of Undisputed Material Facts ¶ 10.Plaintiff raised this concern with Bell, but Bell assuredPlaintiff that the remagnetizing of books was safe. Ridge Dep. at65-66. Unpersuaded, in November of 1995, Plaintiff went to herphysician, Dr. Margaret Shepp, to express her concern regardingthe exposure to the EMFs; Plaintiff also at that time told Sheppthat the repetitive nature of the re-magnetizing work botheredher arms, Ridge Dep. at 69-72; Shepp Dep., at 17.

Shepp provided Plaintiff with a medical letter addressing thehealth issues associated with EMFs and the hazards of repetitivemotion. Bell Dep., Exhibit 5. In that letter, Shepp indicatedthat it would beprudent for CESD to minimize its employees' exposure to the EMFsso much as was possible for liability reasons. Id. Moreimportantly, however, Shepp voiced her concerns about the needfor repetitive, uninterrupted hand and arm motions in Plaintiff'sworkplace. Id. Plaintiff brought the substance of the letter toBell's attention, yet Bell did not take any steps at that time toreduce Plaintiff's remagnetizing duties. Ridge Dep. at 72-73.

Then a few months later, in February of 1996, Plaintiff soughtmedical treatment for shoulder pain. Bell Dep., Exhibit 8. Aftera medical examination, Plaintiff was given a medical noterecommending that she avoid repetitive motions with her shoulderfor two weeks. Id. As a result, Bell took Plaintiff offremagnetizing duty for a two-week period. Ridge Dep. at 128.

Thereafter, in April of 1996, Bell conducted evaluations of thelibrary support staff, including an evaluation of Plaintiff. BellDep. at 70-71. This was the first time that Bell had everconducted support staff evaluations, and Bell's evaluation ofPlaintiff was generally negative. Id. However, the other twolibrary support staff personnel whom Bell evaluated received thehighest ratings in all categories. Plaintiff's Statement ofMaterial Facts ¶ 46. With respect to Plaintiff's evaluation,Bell indicated that although Plaintiff "was well qualified forher job and accurately completes most tasks required of her," sheneeded to develop the "skills that [would] help her become a teamplayer." Bell's Dep., Exhibit 10. Additionally, Bell, withoutinforming Plaintiff, indicated in Plaintiff's evaluation forminformation that Plaintiff did not take the evaluation seriously.Plaintiff's Statement of Material Facts ¶ 47; Bell Dep.,Exhibit 10. Plaintiff disagreed so strongly with Bell'sassessment of her job performance that she refused to sign theevaluation form. Bell Dep., Exhibit 10.

About a month later, another incident between Plaintiff andBell occurred. Specifically, on May 29, 1996, Bell assignedPlaintiff to work an extra shift in the CEHS library. Plaintiff'sStatement of Material Facts ¶¶ 48, 49. Bell had also left alist of tasks to be done by Plaintiff during this shift; this wasunusual in that Bell had never given any other full-timeeducation technicians written assignments before. Id. at ¶49. Plaintiff did not complete all of the assigned work becauseshe had spent some time that evening assisting a student in thelibrary. Ridge Dep. at 104. The next day, however, when Bellinquired of Plaintiff as to the amount of work that she hadcompleted, there was an exchange of words between the twoindividuals, and Plaintiff, who had become upset, left thelibrary. Id. Following this latest incident, on June 7, 1996,Bell wrote a letter to Principal DiFusco concerning her ongoingissues with Plaintiff. Bell Dep., Exhibit 2. In particular, Belloutlined the troubles in her relationship with Plaintiff, andended her letter to Principal DiFusco with the conclusion thather "ability to manage the library effectively" was beingsubstantially affected. Id. Furthermore, Bell requested that CESDresolve the matter. Id.

On June 20, 1996, another meeting was held among SuperintendentGoldman, Plaintiff and two other school teachers; notably,Principal DiFusco and Bell were not present. Goldman Dep. at52-53. During this meeting, the deteriorating situation between Belland Plaintiff was discussed. Id. Later that same day, Goldmansent Plaintiff a letter summarizing, in her opinion, the contentof the meeting. Bell Dep., Exhibit 4. In particular, Goldman'sletter indicated to Plaintiff that the CEHS library was being"negatively impacted" as a result of the "pattern ofinterpersonal conflict" between Bell and Plaintiff. Id. Moreover,Goldman wrote that Plaintiff should consider a job change if aposition should become available over the summer, and that, if notransfer option became available, the possibility of dismissalexisted. Id.

In July of 1996, Cynthia Mowles took over the position ofSuperintendent of CESD. Mowles Aff. ¶ 1 (Docket No. 11)1Upon assuming the position, Mowles became aware of the situationbetween Plaintiff and Bell. Id. at ¶ 2. Because Mowlesbelieved the situation needed to be addressed immediately, shemet with Plaintiff, Bell, and Principal DiFusco on July 29, 1996.Id. at ¶ 3. Following this meeting, Mowles sent Plaintiff aletter indicating that she could see no other "viablealternative" to the situation in the CEHS library than toterminate Plaintiff's services. Id. at ¶ 6; Mowles Aff.,Exhibit A. Consequently, on August 16, 1996, Mowles terminatedPlaintiff's employment. Mowles Aff., Exhibit A.


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 Corp.v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551-52, 91L.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 will not,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). If nogenuine issue of material fact emerges, then the motion forsummary judgment may be granted.

A. Count I: The ADA

Congress enacted the ADA to "provide a clear and comprehensivenational mandate for the elimination of discrimination againstindividuals with disabilities." 42 U.S.C. § 12101 (b)(1). Infurtherance of this mandate, the ADA provides that "[n]o coveredentity shall discriminate against a qualified individual with adisability because of the disability of such individual in regardto job application procedures, the hiring, advancement, ordischarge of employees, employee compensation, job training, andother terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).

Under the ADA, to succeed on a discrimination claim a plaintiffmust prove: (1) that she was disabled within the meaning of theADA; (2) that she was able to perform the meaningful functions ofher job, either with or without reasonable accommodation; and (3)that her employer terminated her in whole or in part because ofher disability. See Katz v. City Metal Co., 87 F.3d 26, 30 (1stCir. 1996). If the plaintiff cannot prove her case directly, shemay do so indirectly by "using the prima facie case and burdenshifting methods that originated in McDonnell Douglas Corp. v.Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) [andits progeny]." Id. at 30 n. 2. This means that the plaintiff hasthe burden of presenting a prima facie case of discrimination,proving by a preponderance of the evidence, that 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 v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir.1996). The defendant then must offer a legitimatenondiscriminatory reason for the negative employment action.Watkins v. J & S Oil Co., 977 F. Supp. 520, 524 (D.Me. 1997),aff'd, 164 F.3d 55 (1st Cir. 1998). Finally, the plaintiff hasthe opportunity and the burden of proving that the defendant's"proffered reason is merely a pretext for disabilitydiscrimination." Hodgens v. General Dynamics Corp., 963 F. Supp. 102,107 (D.R.I. 1997), aff'd on other grounds, 144 F.3d 151 (1stCir. 1998). Here, Count I of Plaintiff's Amended Complaintalleges that CESD violated the ADA by discriminating against herin two ways: (1) on the basis of an actual disability; and (2) onthe basis of a perceived disability. CESD has moved for summaryjudgment with respect to both of these claims. The Court,therefore, will address each claim in turn.

1. Actual disability

(i) Plaintiff's prima facie case

CESD argues that it is entitled to summary judgment withrespect to Plaintiff's actual disability claim because, under theADA, Plaintiff is not, in fact, disabled. CESD argues thatalthough Plaintiff may be physically impaired as a result of hershoulder tendonitis, she is not substantially limited in anymajor life activity. Specifically, CESD maintains that "heavylifting" and performing "repetitive motion tasks" are notconsidered "major life activities" within the meaning of the ADA.Defendant's Motion for Summary Judgment and IncorporatedMemorandum of Law p. 9. Therefore, CESD argues, Plaintiff cannotestablish her prima facie case of actual disabilitydiscrimination. Id.

Plaintiff argues in opposition that lifting and performingrepetitive motion tasks are considered major life activitiesunder the ADA. Therefore, Plaintiff maintains that she hasestablished a prima facie case of discrimination, and the Motionfor Summary Judgment must be denied. Plaintiff's Memorandum ofLaw in Opposition to Defendant's Motion for Summary Judgment p.10.

It is well-established that if an individual is not "disabled"within the meaning of the ADA, then the ADA does not protect thatperson against discrimination on the basis of his or herdisability. Arnold v. United Parcel Service, Inc., 136 F.3d 854,858-59 (1st Cir. 1998). The ADA defines a "disability" as: (A) aphysical or mental impairment that substantially limits one ormore of the major life activities of such individual; (B) havinga record of such an impairment; or (C) being regarded as havingsuch an impairment. Id.; see 42 U.S.C. § 12102 (2). Because,for present purposes, Plaintiff's claim is based on an actualdisability, the Court is concerned only with the first prong ofthe definition.

A disability under subsection (A) turns on three requirements:(1) a physical or mental impairment, that (2) "substantiallylimits," one of the plaintiff's (3) "major life activities."42 U.S.C. § 12102 (2)(A); Soileau v. Guilford of Maine, Inc.,105 F.3d 12, 15 (1st Cir. 1997). Plaintiff has been diagnosed byher treating physician, Dr. Shepp, with recurrentactivity-related tendonitis in her right shoulder. Plaintiff's Statementof Material Facts ¶ 30; Shepp Dep. at 40. Therefore, forpurposes of addressing CESD's Motion for Summary Judgment, theCourt will assume, without deciding, that tendonitis of theshoulder constitutes a physical impairment under the ADA. SeeDePaoli v. Abbott Laboratories, 140 F.3d 668, 672 (7th Cir. 1998)(court assumed tendonitis physical impairment for purposes ofsummary judgment); see also Quint v. A.E. Staley ManufacturingCo., 172 F.3d 1, 11 (1st Cir. 1999),petition for cert. filed, (U.S. June 21, 1999) (No. 98-9984).Based on this assumption, Plaintiff has met the first requirementfor a disability under 42 U.S.C. § 12102 (2)(A).

The fact, however, that Plaintiff suffers from a physicalimpairment alone does not make her disabled under the ADA. SeeSoileau, 105 F.3d at 15. Indeed, for Plaintiff to be disabledunder the ADA, her shoulder tendonitis must substantiallyinterfere with a major life activity. Id. Plaintiff contends thather tendonitis interferes with her ability to do "heavy lifting"and "repetitive motion tasks," and that these two functionsqualify as major life activities. Plaintiff's Memorandum of Lawin Opposition to Defendant's Motion for Summary Judgment p. 8-10(Docket No. 13). For the following reasons, the Court agrees withPlaintiff that lifting is a major life activity under the ADA.

"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. § 1630.2 (h)(2)(i). The ADAdefinition of major life activities, however, is not exhaustive.See Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d540 (1998); 29 C.F.R. § 1630.2 (i). Indeed, 29 C.F.R. Pt.1630, App. § 1630.2(i), provides in relevant part:

"Major life activities" are those basic activities that the average person in the general population can perform with little or no difficulty. Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. For example, other major life activities include, but are not limited to . . . lifting . . . . (Emphasis added).

Although the issue of whether lifting is a major life activityunder the ADA has not been settled within this jurisdiction, theCourt of Appeals for the First Circuit has alluded to thepropriety of considering lifting as constituting a major lifeactivity for purposes of supporting a disability claim. SeeQuint, 172 F.3d at 10 (29 C.F.R. Pt. 1630, App. § 1630.2(i)(expressly identifies lifting as major life activity)); see alsoCruz v. McAllister Bros., Inc., 52 F. Supp.2d 269, 280 (D.P.R.1999) (noting that in "some cases, lifting itself may be a majorlife activity"). Moreover, courts in other jurisdictions haveexpressly recognized lifting as a major life activity under theADA. See, e.g., Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1758, 143 L.Ed.2d790 (1999); Helfter v. United Parcel Serv., Inc., 115 F.3d 613,616 (8th Cir. 1997); Thompson v. Holy Family Hosp., 121 F.3d 537,539 (9th Cir. 1997); Ray v. Glidden Co., 85 F.3d 227, 229 (5thCir. 1996). In light of the express language of 29 C.F.R. Pt.1630, App. § 1630.2(i), together with both the supportingand persuasive decisions in this circuit and elsewhere, thisCourt finds that lifting is a major life activity under the ADA.Accordingly, Plaintiff has made out a prima facie case of actualdisability discrimination.2

(ii) CESD's legitimate, nondiscriminatory reason

Having found that Plaintiff has established her prima faciecase of discrimination, pursuant to the McDonnell Douglasframework, a presumption of discrimination has risen. The Courtmust now examine whether Plaintiff's evidence is sufficient tosurvive summary judgment on the remaining two prongs of theMcDonnell Douglas test; for once a plaintiff has established aprima facie case of discrimination, the burden of productionshifts to the defendant, who must point to evidenceindicating that there existed a legitimate, nondiscriminatoryreason for the complained-of action. See Dichner v. LibertyTravel, 141 F.3d 24, 30 (1st Cir. 1998). A defendant meets thisburden by proffering admissible evidence of an explanation thatwould be legally sufficient to justify a judgment for thedefendant. The defendant need not persuade the trier of fact thatthere was no intentional discrimination; it need only produceevidence on that point. See id.; see also St. Mary's Honor Centerv. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 2747-48, 125L.Ed.2d 407 (1993). Then, if the defendant meets its burden, theplaintiff must show that there is sufficient potential proof fora reasonable jury to find the defendant's proffered reason a merepretext for impermissible discrimination. See Dichner, 141 F.3dat 30.

CESD argues Plaintiff was terminated as a result of herinability to accept constructive criticism and work productivelywith her supervisor. See Defendant's Motion for Summary Judgmentand Incorporated Memorandum of Law p. 13. Consequently, CESDargues it is entitled to summary judgment because it haspresented a legitimate, nondiscriminatory reason for itstermination of Plaintiff's employment. Id.

Plaintiff argues that an individual's inability to work withothers and accept criticism is not a sufficient,nondiscriminatory reason for termination. Plaintiff's Memorandumof Law in Opposition to Defendant's Motion for Summary Judgmentp. 12-15. As such, Plaintiff maintains CESD has failed to meetits burden of production and that the Motion for Summary Judgmentmust be denied. Id.

In the First Circuit, an employee's insubordination and failureto get along with both co-workers and supervisors in a settingwhich requires cohesive teamwork is a justification for thefiring of that employee. Ahmed v. Berkshire Medical Center, Inc.,1998 WL 157016, * 7 (D.Mass. 1998); see also Johnson in. Allyn &Bacon, Inc., 731 F.2d 64, 73 (1st Cir. 1984) (inability to getalong and cooperate with co-workers amounts to legitimatenondiscriminatory reason for termination), cert. denied,469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984).

In the present action, CESD has offered ample evidence thatPlaintiff was fired because of her inability to work productivelywith her supervisor, and that this situation was having adetrimental affect on the operation of the CEHS library. It iswell documented from the evidence that the relationship betweenPlaintiff and Bell following the 1994 Christmas break wasextremely contentious, see Bell Dep., Exhibit 2; Bell Dep.,Exhibit 4; Bell Dep. at 24-27, Ridge Dep. at 36-40; Mowles Aff.at ¶¶ 2-6; Mowles Aff., Exhibit A, and that the breakdown ofPlaintiff's and Bell's working relationship was seriouslyaffecting the daily operation of the CEHS library. See MowlesAff. ¶¶ 2-6; Mowles Aff., Exhibit A; Bell Dep., Exhibit 2;Bell Dep., Exhibit 4.

In addition, both Superintendents Goldman and Mowles expressedtheir concern that Plaintiff was not able to interact andcooperate with Bell, and that Plaintiff refused to recognize thatshe was the cause of some of the problem. See Bell Dep., Exhibit4; Mowles Aff., Exhibit A. In particular, Mowles stated that upontaking the position of Superintendent of CESD, she "discoveredthat a serious personnel issue existed between members of thestaff working in the school library." Mowles Aff. ¶ 2. As aresult of this discovery, Mowles held a meeting with Plaintiff,among others, to address the situation. Id. at ¶ 3. Followingthis meeting, Mowles summarized her thoughts on the situation asfollows:

[I was] struck by the fact that [Plaintiff] did not acknowledge the existence of any problem that was attributable to her conduct. [Plaintiff] said that she was willing to work to make things better, but it appeared to me that, despite the length of time that the problems had persisted, [Plaintiff] had never come to recognize the seriousness of the situation. [Plaintiff] also did not seem to understand just how disruptive her inability to relate well with her supervisor [was] to the effectiveness of the library's operations. Mowles Aff. ¶ 5.

Based upon the foregoing observations, Mowles concluded that shehad no other viable alternative but to terminate Plaintiff'semployment with CESD. Mowles Aff. ¶ 6; Mowles Aff., ExhibitA. For the foregoing reasons, the Court concludes that CESD hasoffered admissible evidence of a legitimate, nondiscriminatoryreason for Plaintiff's termination.

(iii) Pretext

Once the defendant satisfies the burden of presenting anondiscriminatory reason for the adverse employment decision, thepresumption of discrimination established by the plaintiff'sprima facie case dissolves. See Dichner, 141 F.3d at 30; TexasDep't of Community Affairs v. Burdine, 450 U.S. 248, 255 a. 10,101 S.Ct. 1089, 1095 n. 10, 67 L.Ed.2d 207 (1981). At this point,the plaintiff must produce evidence, unaided by the originalinference created by her prima facie case, that the defendant'sproffered reason is a mere pretext, the real reason for hertermination having been based on an impermissible animus directedtoward her because of her disability. See Dichner, 141 F.3d at30. In the First Circuit, the ultimate burden of proof ofintentional discrimination rests at all times on the plaintiff;it is "insufficient for a plaintiff merely to undermine theveracity of the employer's proffered justification," and theplaintiff is required to show both that the employer'sarticulated reason is false and that discrimination was theactual reason for the employment action. Id.

"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 at 167 (citing Stepanischen v. Merchants DespatchTransp. Corp., 722 F.2d 922, 928 (1st Cir. 1983)). Summaryjudgment is not, however, automatically precluded even in caseswhere motive or intent is at issue. Id. If a plaintiff in adiscrimination action rests merely upon "conclusory allegations,improbable inferences, and unsupported speculation," summaryjudgment may be appropriate even where intent is an issue. Id.(quoting Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1stCir. 1994), cert. denied, 514 U.S. 1108, 115 S.Ct. 1958, 131L.Ed.2d 850 (1995)). The role of the trial judge at the summaryjudgment stage "is not . . . to weigh the evidence and determinethe truth of the matter, but to determine whether there is agenuine issue for trial." See id. (quoting Anderson v. LibertyLobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d202 (1986)). With these principles to guide it, the Court turnsto the question of whether Plaintiff has submitted evidencestrong enough to create "a sufficient disagreement to requiresubmission to a jury" of the issue of whether CESD's explanationfor Plaintiff's termination is a pretext for discrimination. Seeid.

Plaintiff argues that there is "dramatic evidence" that CESDterminated Plaintiff's employment because of her shoulderdisability and that this evidence is as follows: (1) Plaintiffsuccessfully performed her work; (2) Plaintiff was not put onwarning of her impending termination; (3) CESD did notinvestigate or intervene in the situation between Bell andPlaintiff; (4) CESD violated its own rules and procedures; and(5) Bell "was out to get" Plaintiff because she didn't fit theimage of a librarian. Plaintiff's Memorandum of Law in Oppositionto Defendant's Motion forSummary Judgment p. 16.3

First, with regard to Plaintiff's proffered evidence ofdiscriminatory animus, there is no dispute that Plaintiffsuccessfully performed most of her duties in the CEHS library.See Bell's Dep., Exhibit 10. It is also undisputed that Bell,although Plaintiff's supervisor, never personally warnedPlaintiff that she risked termination. Plaintiffs Statement ofMaterial Facts ¶ 42; Defendant's Reply Statement of MaterialFacts ¶ 42. Moreover, CESD does not dispute that progressivediscipline procedures should be followed in cases where anemployee's job is at risk, or that CESD should be careful andresponsible before terminating employees. See Plaintiff'sStatement of Material Facts ¶¶ 58, 83; Defendant's ReplyStatement of Material Facts ¶¶ 58, 83. Finally, althoughdisputed by CESD, when the evidence is viewed in a light mostfavorable to Plaintiff as the nonmoving party, it appears thatCESD did not follow any specific, detailed course of progressivedisciplinary procedure with respect to Plaintiff prior to hertermination. Plaintiff's Statement of Material Facts ¶¶ 59,61, 64, 67, 72.

Nevertheless, contrary to Plaintiff's argument of pretext, theforegoing evidence does not demonstrate any connection betweenthe reason for Plaintiff's termination and her shoulderdisability. Plaintiff's evidence, although possibly supportive ofa finding that Plaintiff may not have been terminated with alldue care, does not demonstrate how CESD's stated legitimatereason for her termination was based upon anything else butPlaintiff's failure to work cooperatively with her supervisor,Bell. Moreover, although the evidence shows that Bell was awareof Plaintiff's shoulder tendonitis in November of 1995, see BellDep. at 56, Plaintiff has presented no evidence that Bellfabricated her troubles with Plaintiff in order to have herterminated because of her disability.

Alternatively, although not argued by Plaintiff in heropposition memorandum, the Court has also considered thefollowing evidence which could possibly support a finding ofpretext on Defendant's part. Specifically, Plaintiff claims thatin February 1996, she provided Bell with a doctor's letterindicating that she should refrain from remagnetizing work for atwo-week period; and "at the same time these restrictions werepresented, Ms. Bell discussed with [Plaintiff] that she mightwant to transfer to another job." Plaintiff's Statement ofMaterial Facts ¶ 44. Plaintiff's statement, if true, wouldpossibly constitute evidence of a discriminatory animus.

In her deposition, Bell stated that Plaintiff had presented herwith a medical note in February of 1996 which indicated thatPlaintiff, because of her shoulder, should be relieved fromrepetitive movements at work for a one-to-two-week period. BellDep. at 61. And in fact, in response to this medical note, Belltook Plaintiff off remagnetizing duty in the library for atwo-week period. Id. More importantly, however, the evidence clearlyindicates that it was not Bell who inquired as to whetherPlaintiff should transfer to another job, but rather, that it wasPlaintiff herself who brought up the topic of a transfer. Id. at62. Unquestionably, therefore, when the actual evidence beforethe Court is compared with Plaintiff's characterization of Bell'stestimony, the inference of discrimination is dispelled entirely.

Also, Plaintiff states that as of September 1995, "[Plaintiff]was told by Ms. Bell that she would be the only person doing theremagnetizing of library books despite the fact that thisbothered her arms." Plaintiff's Statement of Material Facts¶ 98. Again, were this statement to be supported by theevidence, an inference of a discriminatory animus could be drawnon the part of Bell towards Plaintiff; but upon closer review,Plaintiff's assertion in her Statement of Material Facts is notsupported factually by the evidence.

First, contrary to Plaintiff's Statement of Material Facts,nowhere in Plaintiff's deposition is there evidence thatPlaintiff "was told" by Bell that she would be the only persondoing the remagnetizing of library books. Ridge Dep. at 69.Instead, Plaintiff testified in her deposition that prior toSeptember 1995, books were remagnetized by herself, volunteers,Bell, and "extra subs" when they were on hand. Id. But then, inSeptember of 1995, Plaintiff began to be the only person to dothe remagnetizing work, and she felt that this type of work wasdangerous because of "electromagnetic field issues." Id. Mostimportantly, however, there is no evidence to suggest whyPlaintiff was the only person doing this type of work inSeptember of 1995.

Moreover, there is nothing in the evidence to indicate thatBell in September of 1995 was even aware that the repetitivemotion of remagnetizing books bothered Plaintiff's arms.Plaintiff's testimony in her deposition concerning this timeperiod was that the remagnetizing of "truckloads" of books "wasbeginning to bother [her] arms," not that Bell was aware that theremagnetizing was affecting Plaintiff. Ridge Dep. at 69.(Emphasis added). In fact, Plaintiff herself indicated in herStatement of Material Facts that Bell first became aware ofPlaintiff's shoulder difficulties in November of 1995, two monthsafter Plaintiff supposedly was told by Bell that she would be theonly person remagnetizing the library books. Plaintiff'sStatement of Material Facts ¶ 43; Bell Dep. at 56.Consequently, there is no evidentiary basis for the Court to findthat Bell had a discriminatory animus toward Plaintiff on thebasis of her shoulder disability in September of 1995, when theevidence shows that Bell was unaware of Plaintiff's shouldercondition until two months later.

Finally, Plaintiff asserts that even after she gave Bell amedical note in November of 1995 with regard to the remagnetizingwork, and Bell became aware of Plaintiff's shoulder disability,Bell never asked Plaintiff if she needed a break fromremagnetizing or reduced Plaintiff's remagnetizing workload.Plaintiff's Statement of Material Facts ¶¶ 99-100; Ridge Dep.at 71-73. The pertinent paragraph4 of the medical note, forpurposes of the Court's analysis here, provides as follows:

I [Dr. Shepp] am more concerned about the need for repetitive uninterrupted hand and arms motions. [Plaintiff] has already experienced some shoulder pain while performing her tasks, and while there has been no more serious consequences so far, we are frequently seeing shoulder, elbow and wrist injuries in patients who are required to perform repetitive hand and arm motions.

Bell Dep., Exhibit 5 (Emphasis added).

Although the medical note does indicate that Plaintiff wasexperiencing some shoulder pain while performing her librarytasks, the note states that "so far," Plaintiff was not sufferingfrom any serious consequences as a result of these functions. Id.Also, the medical note does not specifically indicate thatPlaintiff was required to refrain altogether from doing anyparticular library task. Id. The medical note merely voices Dr.Shepp's concerns about the need for "uninterrupted hand and armmotions" in the library, and makes the general observation thatpeople who perform repetitive motions suffer injuries. Id. Inlight of this evidence, it cannot be fairly said that Bellpurposelydiscriminated against Plaintiff by requiring that she continue todo the remagnetizing work.

For the foregoing reasons, the Court finds that Plaintiff hasnot presented anything but "conclusory allegations, improbableinferences, and unsupported speculation," in support of her claimthat Defendant's stated reason for her termination was merely apretext for a true discriminatory animus. See Hodgens, 144 F.3dat 167 (citations omitted).5 As such, Plaintiff has failed tocarry her burden with regard to her actual disabilitydiscrimination claim.

2. Plaintff's "perceived" disability

Plaintiff further claims that CESD violated the ADA byperceiving her obesity as a disability. "Persons who do not havea disability within the meaning of the ADA may still qualify forits protection if they are regarded by the employer as havingsuch an impairment." Santiago v. Executive Airlines, 41 F. Supp.2d 129,136 (D.P.R. 1999). This occurs when an individual who is notactually impaired is treated as if she were so in her place ofemployment. Id.; Cook v. State of R.I., Dept. of MHRH, 10 F.3d 17(1st Cir. 1993).

As discussed above, under the ADA, a "disability" is definedas: (A) a physical or mental impairment that substantially limitsone or more of the major life activities of such individual; (B)having a record of such an impairment; or (C) being regarded ashaving such an impairment. See 42 U.S.C. § 12102 (2). Thepurpose of subsection (C) is to protect impaired individuals fromdiscrimination on the part of their employers who exclude suchindividuals because of the stereotypes, myths, and fears theyhold of people who are so impaired. See 29 C.F.R. § 1630.2(1), App. Plaintiff, here, does not maintain that her obesity isan actual disability under the ADA. Rather, Plaintiff argues thatCESD perceived her as disabled. Consequently, the Court isconcerned only with subsection (C) of the definition.

To determine whether CESD regarded Plaintiff as disabledbecause she was obese, the Court's focus must be on the effectthat Plaintiff's obesity had on CESD. See Byrne v. Bd. of Ed.,School of West Allis, West-Milwaukee, 979 F.2d 560, 567 (7th Cir.1992). Plaintiff must show more than just that CESD believed shehad an impairment. To prevail under subsection (C), Plaintiffmust show that CESD perceived her as disabled in the sense thatshe had an impairment that substantially limited a major lifeactivity. See Soileau v. Guilford of Maine, Inc., 928 F. Supp. 37,51 (D.Me. 1996), aff'd 105 F.3d 12 (1st Cir. 1997).

Plaintiff, however, has failed to identify with any precisionwhich major life activities CESD allegedly perceived her to besubstantially limited in, thereby rendering the Court's analysisof this issue unnecessarily difficult. Nevertheless, the Court isable to discern two major life activities in which CESD may haveperceived Plaintiff to be substantially limited: walking andworking. The Court will examine each of these activities in turn.

(i) Walking

To determine whether CESD perceived Plaintiff's ability to walkto be substantially limited by her obesity, the Court turns tothe ADA's implementing regulation that defines "substantiallylimits." Title 29 C.F.R. § 1630.2(j)(1) defines"substantially limits" as: (i) unable to perform a major lifeactivity that the average person in the general population canperform; or (ii) significantly restricted as to the condition,manner or duration under which anindividual can perform a major life activity as compared with thecondition, manner, or duration under which the average person inthe general population can perform that same major life activity.See also Bilodeau v. Mega Industries, 50 F. Supp.2d 27, 34-35(D.Me. 1999). Moreover, Title 29 C.F.R. § 1630.2 (j)(2) liststhe following factors to be considered in determining whether aperson is substantially limited in a major life activity: (i) thenature and severity of the impairment; (ii) the duration orexpected duration of the impairment; and (iii) the permanent orlong-term impact or the expected permanent or long-term impact ofor resulting from the impairment. See Quint, 172 F.3d at 5.

Plaintiff's evidence in support of her argument that CESDperceived her obesity as a disability is as follows: (1) Bell putup an article on "librarianism" in the CEHS library (Plaintiff'sStatement of Material Facts ¶ 90);6 (2) Plaintiff andBell discussed breast reduction surgery in the fall of 1994 (Id.at ¶ 91); (3) Bell asked Plaintiff on one occasion if shecould fit under a table to unplug a computer (Id. at ¶ 92);(4) Bell made sugarless candy for Plaintiff at Christmas in 1994(Id. at ¶ 93); (5) Bell asked Plaintiff if she could handleall the walking required in the expanded library (Id. at ¶94); and (6) Bell made numerous comments about the weight ofteachers and students (Id. at ¶ 121). of the foregoingevidence, only Bell's inquiry into whether Plaintiff could handleall the walking required in the expanded library truly has anyrelevance to the issue of CESD's perception that Plaintiff, as aresult of her obesity, was substantially limited in her majorlife activity of walking.

As to this issue, the evidence indicates that Bell raised herconcern over Plaintiff's walking ability only once, on anafternoon in the spring of 1995. Ridge Dep. at 117-119;Plaintiff's Statement of Material Facts ¶ 112. The evidencealso shows that Plaintiff told Bell that she would be able to dothe increased walking in the expanded library, id., at 119, andthere is no evidence that Bell disbelieved Plaintiff's responseor that Bell ever broached the issue again. Finally, the evidenceshows that Plaintiff was terminated from her position on August16, 1996, well over one year from the time that Bell made herisolated inquiry into Plaintiff's walking ability. Mowles Aff.,Exhibit A. Thus, based upon the foregoing, it is not reasonablefor the Court to conclude that Bell perceived Plaintiff's obesityto be a substantial limitation on her major life activity ofwalking.

With regard to Plaintiff's and Bell's conversation regardingbreast reduction surgery, it is clear from the evidence that itwas Plaintiff, and not Bell, who raised the issue. Ridge Dep. at30-31. Furthermore, Plaintiff, herself, characterizes thisdiscussion with Bell as "just a conversation." Id. at 31. Thus,the foregoing is not evidence of any perceived disabilitydiscrimination on the part of Bell.

Additionally, the evidence that Bell made Plaintiff sugarlesscandy, that Bell frequently commented on Plaintiff's and otherpeople's weight, and that Bell asked if Plaintiff could fit undera table, does not advance Plaintiff's claim thatCESD perceived her to be substantially limited in her major lifeactivity of walking. See Ridge Dep. at 33, 119, 132. Thisevidence, at best, is indicative only of Bell's purported beliefthat Plaintiff was obese; yet a "disparaging remark about [aperson's] size does not equate with treatment of her size asimpairing one of her major life activities." Walton v. MentalHealth Assoc. of Southeastern Pennsylvania, 1997 WL 717053, *15(E.D.Pa. 1997), aff'd, 168 F, 3d 661 (3rd Cir. 1999).7

Therefore, in light of the nature of Plaintiff's obesity, theremoteness in time of Plaintiff's termination to the inquiriesand general comments of Bell, and Plaintiff's responses to Bell'squestions and comments, there is no basis for Plaintiff's claimthat CESD perceived her to be substantially limited in her majorlife activity of walking.

(ii) Working

Turning now to whether CESD perceived Plaintiff's obesity assubstantially limiting her major life activity of working, it iswell-established that an ADA claimant assumes a more"fact-specific burden of proof in attempting to demonstrate that herimpairment `substantially limits' the major life activity of`working.'" Quint, 172 F.3d at 11. An impairment does notsubstantially limit the ability to work unless the impairmentsignificantly restricts the employee in her ability to performeither a class of jobs, or a broad range of jobs in variousclasses, as compared with the average person having comparabletraining, skills and abilities. Id.; 29 C.F.R. § 1630.2(j)(3)(i). The inability to perform a single, particular job doesnot constitute a substantial limitation in the major lifeactivity of working. 29 C.F.R. § 1630.2 (j)(3)(i). "Theproper test 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 (citing cases).Therefore, to survive summary judgment at this stage, a plaintiffmust present evidence sufficient to show that the defendantregarded her as incapable of working generally, rather than ofperforming certain functions, as discussed above, because animpairment that disqualifies a person from only a narrow range ofjobs is not considered a substantially limiting one. See Soileau,928 F. Supp. at 51 (finding that even if employer consideredemployee incapable of performing certain functions, that alonewould not be actionable under the ADA).

Plaintiff has pointed to no evidence that CESD regarded her asbeing incapable of working generally in a broad range of jobsbecause of her obesity. Plaintiff's only evidence that eventouches on this issue relates to CESD's possible perception thatPlaintiff was limited in her ability to work in a broad range ofjobs because of her shoulder disability. Specifically, in herdeposition, Superintendent Goldman stated that she felt thatPlaintiff would not be able to take a position in the Pond SchoolLibrary because she "[did not] think [Plaintiff] could do thatjob because it [required] lifting . . ." Ridge Dep. at 109.Although this evidence arguably relates to CESD's perception thatPlaintiff could not perform other jobs because of her shoulderdisability, the evidence has no bearing whatsoever on Plaintiff'sclaim that CESD perceived her to be substantially limited in hermajor life activity of working because she was obese. As such,Plaintiff has failed to meet her burden with respect to herperceived disability claim, and under the first prong of theMcDonnell Douglas shifting-burden test, CESD is entitled tosummary judgment.

B. Count II: The ADEA

In Count II of her Amended Complaint, Plaintiff alleges thatCESD discriminated against her because of her age inviolation of the ADEA. In wrongful discharge actions based uponthe ADEA, the plaintiff bears the ultimate burden of provingthat, but for her age, she would not have been fired. Jimenez v.Bancomercio de Puerto Rico, 174 F.3d 36, 40 (1st Cir. 1999).Where direct evidence of discrimination is lacking, a plaintiff'sADEA claim is governed by the McDonnell Douglas burden-shiftingframework. Jimenez, 174 F.3d at 40-41.

Here, under McDonnell Douglas, Plaintiff must first present aprima facie case of age discrimination, which requires that sheshow: (1) she was a member of a protected age group, i.e., atleast 40 years old; (2) she was meeting CESD's legitimate jobexpectations; (3) she was fired; and (4) CESD had a continuingneed for the same services, and they subsequently were performedby an individual with the same or similar qualifications asPlaintiff. See Brennan v. GTE Government Systems Corp.,150 F.3d 21, 26 (1st Cir. 1998). Once Plaintiff has met this burden, apresumption of discrimination attaches, and CESD must put forth alegitimate, nondiscriminatory reason for firing her. Id. Then ifCESD does so, Plaintiff is required to show by a preponderance ofthe evidence that CESD's stated reason for termination was merelya pretext and that the true reason was the age-based animus.Jimenez, 174 F.3d at 41.

CESD does not dispute that Plaintiff can satisfy three of thefour prongs of the prima facie case for age discrimination.8CESD does argue, however, that Plaintiff cannot establish thatshe was performing her job up to the level it expected becausePlaintiff was unable to work cooperatively with her supervisor.See Defendant's Motion for Summary Judgment and IncorporatedMemorandum of Law p. 15.

Upon review of the evidence, the Court will assume for purposesof the present Motion for Summary Judgment, that Plaintiff isable to satisfy her ADEA prima facie case. See Tucker v.Kingsbury Corp., 929 F. Supp. 50, 54 (D.N.H. 1996) (court assumedfor purposes of summary judgment that Plaintiff met ADEA primafacie case). In particular, Plaintiff has offered evidence thatshe performed the technical, everyday functions of her. positionin a competent manner. Bell Dep., Exhibit 10 (Bell stated inPlaintiff's performance review that she was "clearly academicallyqualified to do her job," and that she "accurately completes mosttasks required of her"). Consequently, for purposes of thepresent motion, the Court will assume that Plaintiff hasestablished her prima facie case by putting forth sufficientevidence that she met CESD's legitimate job expectations in theperformance of her position.

Also, as the Court has already discussed, CESD terminatedPlaintiff's employment because Plaintiff and her supervisor wereunable to work together cooperatively. See Mowles Aff., ExhibitA; Bell Dep., Exhibit 4; see also Ahmed, 1998 WL 157016, * 7(individual's inability to be productive member of workplace mayconstitute failure to meet employer's legitimate jobexpectations). Therefore, for the same reasons as stated above,the Court again finds that CESD has set forth a legitimate,nondiscriminatory reason for Plaintiff's dismissal. With theforegoing assumption and finding established, the burden nowfalls on Plaintiff to demonstrate that CESD's proffered reasonfor her termination was pretextual, and that the true reason forher dismissal was CESD's age-based animus. Jimenez, 174 F.3d at41.

Plaintiff offers the following evidence in support of her claimthat CESD's proffered reason for her termination waspretextual: (1) Bell inquired of Plaintiff as to whetherPlaintiff could handle all the walking in the library, Ridge Dep.at 34; (2) Bell indicated that she was going to "trade" Plaintiffin for "two twenty-flyers," id. at 125; (3) Bell made repeatedcomments about the age of faculty, and their unwillingness tokeep up, id. at 125-126; (4) Plaintiff found an advertisement foranother school system in her mailbox, id. at 124; and (5) Bellmade comments about a teacher who had retired, and the teacherwas close in age to Plaintiff, id. at 126.

Presently, the evidence, when viewed in a light most favorableto Plaintiff, shows that on one occasion in the fall of either1993 or 1994, Bell made a comment to Plaintiff that she wanted to"trade" her in for "two twenty-flyers." Ridge Dep. at 125. It iswell-established in the First Circuit, however, that straycomments are insufficient to meet the plaintiff's burden in anADEA case. Thomas v. Sears, Roebuck & Co., 144 F.3d 31, 34 (1stCir. 1998); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86,96 (1st Cir. 1996). Additionally, the evidence shows that Bellmade the comment at least two years before Plaintiff was actuallyterminated. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507,512 (4th Cir. 1994) (discriminatory comment made over two yearsfrom discharge date was not evidence of age discrimination),cert. denied, 513 U.S. 1058, 115 S.Ct. 666, 130 L.Ed.2d 600(1994). Therefore, Bell's stray comment here is not evidence ofany age-based discriminatory animus toward Plaintiff.

Further, Plaintiff states in her deposition that in the Springof 1996 she found an advertisement for a position in anotherschool system in her mailbox. Ridge Dep. at 124. Plaintiff,however, has not presented any evidence as to who actually placedthe advertisement in her mailbox; although Plaintiff believes itwas Bell because on the morning that she found the advertisement,Bell had asked Plaintiff to "go up and do something in themail-room, which was very unusual for that time of morning . . . ."Id. at 124. Nonetheless, aside from the fact that there is no emdeuce linking the placing of the advertisement in Plaintiff'smailbox to CESD, even when the Court views this evidence in alight most favorable to Plaintiff, the Court finds that Plaintiffhas failed to establish any nexus of age-based discriminationwith the placement of the advertisement in her mailbox. Theadvertisement could have been left in Plaintiff's mailbox for anynumber of legitimate reasons, and there is no evidence before theCourt that CESD placed the advertisement in Plaintiff's mailboxas a result of any age-based discriminatory animus.

The evidence also shows that Bell spoke frequently "about theage of the [Cape Elizabeth] faculty," and their "not beinginterested in keeping up with the new technologies." Ridge Dep.at 125. Yet, in the First Circuit, "a criticism that someone isunable to change is not a coded allusion to cloaking agediscrimination." Thomas, 144 F.3d at 34; see also Mesnick v.General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), cert.denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992).Therefore, Bell's general observations with regard to the age ofthe school faculty and their inability to adapt to new technologyis insufficient to support Plaintiff's claim of agediscrimination.9

Finally, Plaintiff states that Bell repeatedly asked Plaintiffif she "could handle all the walking that was going to behappening with the remodeled library," and that this inquiry isevidence of Bell's age-based discriminatory animus toward her.Id. at 34, 125-26. The facts, however, even when viewed favorablyfor thePlaintiff, show that Bell asked Plaintiff if she could do all therequired walking in the new library only once, and that Plaintifftold Bell that she would be able to do so once the libraryopened. Id. at 116-18; Plaintiff's Statement of Material Facts¶ 112. Because there is nothing in this evidence to suggestthat Bell disbelieved Plaintiff, or that Bell's inquiriesfactored into CESD's decision to terminate Plaintiff'semployment, this evidence does little to demonstrate pretext onthe part of CESD. See Mowles Aff., Exhibit A.

In light of the foregoing, the Court finds that Plaintiff hasfailed to meet her burden of demonstrating that CESD's statedreason for her termination was pretextual and that the realreason CESD terminated Plaintiff's employment was grounded uponany age-based discriminatory animus. Accordingly, under the thirdprong of the McDonnell Douglas shifting-burden test, CESD isentitled to summary judgment with respect to Plaintiff's ADEAclaim.

C. Count III: Sections 1981 & 1981a

It is well-recognized that 42 U.S.C. § 1981 forbids racialdiscrimination in the making and enforcement of privatecontracts. Patterson v. McLean Credit Union, 491 U.S. 164, 171,109 S.Ct. 2363, 2369, 105 L.Ed.2d 132 (1989). Here, Plaintiff hasmade no allegation that CESD discriminated against her on thebasis of her race. Consequently, Plaintiff's claim under42 U.S.C. § 1981 in Count III of the Amended Complaint ismeritless.

Furthermore, 42 U.S.C. § 1981a is wholly dependent on othersubstantive Acts, such as the ADA and the ADEA. See Presutti v.Felton Brush, Inc., 927 F. Supp. 545, 550 (D.N.H. 1995). Section1981a merely expands on the remedies available under these othersubstantive Acts, and so long as a claim under anothersubstantive Act remains viable, so too does a plaintiff's claimpursuant to 42 U.S.C. § 1981a. Id. Because, here, Plaintiff'sclaims under the ADA and ADEA are not viable, Plaintiff's claimunder 42 U.S.C. § 1981a must also fail.

D. Count IV: The MHRA

The ADA, and its state law analog, the MHRA, seek to root outdiscrimination against disabled individuals. See 42 U.S.C. § 12101(b)(1) (it is the purpose of the ADA "to provide a clearand comprehensive national mandate for the elimination ofdiscrimination against individuals with disabilities"); 5M.R.S.A. § 4552 (the MHRA prohibits "discrimination inemployment, housing or access to public accommodations on accountof race, color, sex, physical or mental handicap"). "In analyzingthe ADA and MHRA, the Court need not continuously distinguishbetween the two statutes as to their scope and general intentbecause Maine courts consistently look to federal law ininterpreting state anti-discriminatory statutes." Soileau v.Guilford of Maine, Inc., 928 F. Supp. at 45 (citing Winston v.Maine Technical College Sys., 631 A.2d 70, 74-75 (Me. 1993)).Similarly, it appropriate to "refer to federal law interpretingthe ADEA" when analyzing an analogous claim under the MHRA.French v. Bath Iron Works, Corp., 45 F. Supp.2d 69, 74 (D.Me.1999).

Here, the Court has found that CESD is entitled to summaryjudgment with respect to Plaintiff's disability claims under theADA, and also as to Plaintiff's age discrimination claim underthe ADEA. As a result, both Plaintiff's disability and agediscrimination claims under the MHRA must also fail becauseinterpretation of the ADA, the ADEA, and the MHRA proceed hand inhand. Soileau, 105 F.3d at 14; French, 45 F. Supp.2d at 74. Thus,the necessary conclusions as to Plaintiff's MHRA claims flowdirectly from the Court's ADA and ADEA analyses.


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 inthe light most favorable to Plaintiff. To prevail on herdiscrimination claim under the ADA and the MHRA, Plaintiff mustqualify as disabled as defined under the statutes and show thatshe was subject to an adverse employment action by CESD becauseshe had a disability and that she suffered damages as a result.Plaintiff has submitted evidence on summary judgment from which ajury could infer that she was actually disabled under the firsttheory of disability under the ADA; conversely, CESD has producedevidence of a nondiscriminatory reason for Plaintiff'stermination. Plaintiff, however, has failed to meet her burden ofdemonstrating that CESD's stated reason for her termination waspretextual; therefore, CESD, under the third prong of theMcDonnell Douglas shifting-burden test, is entitled to summaryjudgment on Plaintiff's actual disability discrimination claimsunder the ADA and MHRA. As to Plaintiff's claims of perceiveddisability discrimination under the ADA and MHRA, Plaintiff hasfailed to meet her burden of establishing a prima facie case.Consequently, under the first prong of the McDonnell Douglasshifting-burden test, Defendant is entitled to summary judgmentas to these two claims as well.

Additionally, the Court has assumed, for purposes of CESD'sMotion for Summary Judgment, that Plaintiff has established aprima facie case of age discrimination under the ADEA, therebysatisfying the first prong of the McDonnell Douglasshifting-burden test. The Court has also found that CESD has producedevidence of a non-discriminatory reason for Plaintiff'stermination. The Court, however, finds that Plaintiff has failedto meet her burden of demonstrating that CESD's stated reason forher termination was pretextual and based upon an age-baseddiscriminatory animus. Therefore, CESD, under the third prong ofthe McDonnell Douglas shifting-burden test, is entitled tosummary judgment as to Plaintiff's age discrimination claimsunder the ADEA and MHRA.

Finally, Plaintiff has not alleged or demonstrated that CESDdiscriminated against her on the basis her race; therefore CESDis entitled to summary judgment as to Plaintiff's 42 U.S.C. § 1981claim in Count III. Also, because CESD is entitled tosummary judgment with respect to Plaintiff's substantive claimsunder the ADA and ADEA, CESD is also entitled to summary judgmentas to Plaintiff's claim in Count III arising under 42 U.S.C. § 1981a.

Accordingly, the Court ORDERS that Defendant's Motion forSummary Judgment be, and it is hereby, GRANTED.

1. Despite Plaintiff's objection to the contrary, the Courtfinds that the affidavit of CESD Superintendent Cynthia Mowles is"made on personal knowledge, [sets] forth such facts as would beadmissible in evidence, and [shows] affirmatively" that Mowles iscompetent to testify to the matters stated therein. See Fed.R.Civ.P. 56(e). Thus, the Court will consider Mowles' affidavitas evidence in the present matter.

2. Under the McDonnell Douglas three-prong test, Plaintiffmust also demonstrate that her major life activity of lifting hasbeen "substantially impaired" by her physical disability. Thereis, however, sufficient evidence before the Court, for purposesof the present Motion for Summary Judgment, that could support afinding that Plaintiff's shoulder tendonitis substantiallyimpaired her major life activity of lifting. See, e.g., SheppDep. at 40-44.

3. The Court notes that although Plaintiff carries the burdenof proof with regard to the demonstration of pretext, Plaintiffhas failed to reference even a single record citation to supporther legal argument that CESD's stated reason for Plaintiff'stermination was pretextual.

4. The medical note is primarily concerned with therelationship of electromagnetic fields to human contact. BellDep., Exhibit 5.

5. With regard to Plaintiff's argument that Bell was "out toget her" because she did not fit the image of a librarian, thissimply has nothing to do with the issue of whether CESD's reasonfor terminating Plaintiff was pretextual. Even assuming thatPlaintiff's argument is true, and Bell did want Plaintiffterminated because she believed that Plaintiff did not "fit theimage" of a librarian, Bell's motive, although unfortunate,simply has no connection to Plaintiff's shoulder disability or aclaim under the ADA.

6. The "librarianism" article appears to be a guideline forindividuals who wish to draw illustrations for a "librarianism"magazine. Ridge Dep. at 29; Ridge Dep., Exhibit 1. In thatarticle, the authors state that "all publications today want toavoid sexism, racism, and ageism in illustrations as well as intext. . . . Most librarians are modern-looking, modern-thinking,service oriented professionals who strongly favor equalopportunities for all. These guidelines should help you prepareillustrations that will edify and delight our readers: . . . 3.Librarians should never be depicted as spinsters or `little oldladies.' Male librarians do not ordinarily wear how ties.Exaggerated breasts and buttocks, shushing fingers, and SILENCEsigns are unacceptable in American Libraries." Ridge Dep.,Exhibit 1. The Court fails to comprehend how this articlesupports Plaintiff's claim that CESD perceived Plaintiff, as aresult of her obesity, to be substantially limited in her majorlife activity of walking.

7. The Court also notes that the evidence shows that Plaintiffis not morbidly obese. See Shepp Dep., Exhibit 1; cf. Cook, 10F.3d at 25 (plaintiff's morbid obesity substantially limitedmajor life activity of walking).

8. Defendant does not dispute that: (1) Plaintiff is a memberof the protected class; (2) Plaintiff was terminated from herposition; and (3) Plaintiff was replaced by a younger individual.See Defendant's Motion for Summary Judgment and IncorporatedMemorandum of Law p. 15.

9. Plaintiff also states that certain comments Bell made withrespect to a retiring teacher were also directed at her becauseshe was close in age to the teacher who had retired. Id. at 126.But Plaintiff never indicates what Bell's comments were, andtherefore, for obvious reasons, the Court will not consider this"evidence" any further.

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