239 F. Supp.2d 89 (2003) | Cited 0 times | D. Maine | February 3, 2003


The United States Magistrate Judge filed with the Court on December20, 2002 her Recommended Decision. Defendant filed its objections to theRecommended Decision on January 10, 2003 and Plaintiff filed his responseto those objections on January 21, 2003. I have reviewed and consideredthe Magistrate Judge's Recommended Decision, together with the entirerecord; I have made a de novo determination of all matters adjudicated bythe Magistrate's Judge's Recommended Decision; and I concur with therecommendations of the United States Magistrate Judge for the reasons setforth in her Recommended Decision, and determine that no furtherproceeding is necessary.

1. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby AFFIRMED.

2. It is further ORDERED that Defendant's Motion for summary judgment is DENIED with respect to Count I and GRANTED with respect to Count II.


Plaintiff Gary S. Webber contends that Defendant International PaperCompany discriminatorily eliminated his project engineer position inInternational Paper's Bucksport mill as part of a nation-wide reductionin force carried out in 2001. Webber filed a complaint in Hancock CountySuperior Court for disability and age discrimination in employment underthe Maine Human Rights Act, 5 M.R.S.A. §§ 4752 & 4621.International Paper timely removed Webber's action to this Court based onthe existence of diversity jurisdiction. Now pending is InternationalPaper's Motion for Summary Judgment against both claims. I RECOMMEND thatthe Court DENY the Motion with respect to Webber's claim of disabilitydiscrimination and GRANT the Motion with respect to his claim of agediscrimination.

Summary Judgment Material Facts

Summary judgment is warranted only if "the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show thatthere is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as amatter of law." Fed.R.Civ.P. 56(c); Santiago-Ramos v. Centennial P.R.Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000). The following facts aredrawn from the parties' Local Rule 56 statements of material facts, foundin the court's record at docket numbers 12, 15 and 19.1 St. Regis Paperhired Plaintiff Gary Webber to work as a mechanical draftsman in itsBucksport mill in 1983. Sometime shortly thereafter, ChampionInternational acquired the Bucksport mill from St. Regis. Although he hasnever possessed an engineering degree, Champion promoted Webber to theposition of associate engineer in March 1987. In January 1991, Championagain promoted Webber, this time to the position of engineer. BetweenApril 1991 and July 1994, Webber worked in the engineering department as a"project engineer." In July 1994, Champion reassigned him to a position asa finishing/shipping supervisor. Webber eventually returned to theengineering department and to a project engineer position in October1998, where he remained until discharged by International Paper, whichmerged with Champion in June 2000. As a project engineer, Webber was incharge of various building and construction projects within the mill,including roofing projects, redesigning the accounting department,purchasing heavy machinery and parking lot maintenance. Docket No. 12, ¶¶1, 2, 3, 4; Docket No. 15, ¶¶ 1, 2, 3, 4.

In 1997, while working as a finishing/shipper supervisor, Webber fellfrom a paper roll and injured his knee. In December 1997, sometime afterreceiving knee surgery, Webber contacted his foreman, Steve Finley, toseek an additional week off due to surgery-related pain. Mr. Finleychided that "if [Webber] lost 20 pounds or more during that week [his]knee would feel a lot better." Finley and Larry Schaub, who was Webber'ssupervisor at that time and was present in Mr. Finley's office listeningby speaker phone, both "burst out laughing." Docket No. 12, ¶¶ 18, 23;Docket No. 15, ¶¶ 18, 23.

When he returned to work, Webber received certain accommodations fromhis employer, including leave time and certain modifications in hisworking conditions. For example, sometime after Webber returned to theposition of project engineer,2 Webber was permitted to workfrom home with a laptop computer for a period of time and some of his dutieswere "rearranged"to minimize the need to walk and climb stairs while at themill. Webber was also permitted to have an office in the first flooraccounting department rather than the third floor engineeringdepartment. Also, in July 2000, International Paper installed a "stairwaylift chair" to assist Webber in getting to the engineering department.Webber's first- and second-line supervisors, Larry Schaub and SteveMoser, referred to the lift as a "Costanza chair," alluding to an episodeof the television sitcom, Seinfeld, in which the character GeorgeCostanza fakes a disability. Docket No. 12, ¶¶ 18, 20, 23; Docket No.15, ¶¶ 18, 20, 23.

On February 6, 2001, Webber underwent a total knee replacementsurgery. Following the surgery, Webber's doctor instructed him to undergoa physical therapy regimen and to remain out of work for approximatelythree months. Webber returned to work at the end of April or beginning ofMay 2001 with doctor's orders that he restrict himself to walking orstanding no more than 50% of the time, to lifting no more than 25 poundsand to avoid squatting or kneeling.

Following a re-evaluation by his doctor on May 24, 2001, Webber wasinstructed by his doctor to reduce the number of hours he worked to fourhours per day, four days per week. Webber requested and receivedpermission to work this reduced schedule. Docket No. 12, ¶ 21; Docket No.15, ¶¶ 21, 46, 47, 48; Docket No. 19, ¶¶ 46, 47, 48.

In roughly June 2001, International Paper undertook an initiativedubbed "Functional FAST," which was designed to, among other things,reduce costs and operational redundancies through a reduction in force.International Paper sought to reduce 3000 positions within variouslocations and departments, including technology and engineering. In June2001, International Paper's manufacturing director advised the manager ofthe Bucksport mill, Fred Oettinger, that he was required to eliminateeight of 47 "technical staff" positions at the mill as part of FunctionalFAST. To effect this directive, and to determine how best to eliminatethe eight positions, Oettinger consulted with certain individuals inInternational Paper's Memphis and Minnesota offices and with JeffHamilton, operations manager of the Bucksport mill, and David Libby, themill's human resources manager. Working primarily with Hamilton andLibby, Oettinger ultimately eliminated three vacant positions and sixoccupied positions, including Webber's.3 Collectively, these threemanagers considered which staff functions could be reduced with the leasteffect of the mill's operations, as well as whatever personal knowledgethey had of employees' individual capabilities and performances.Oettinger testified at his deposition that he lacked any significantfirst-hand knowledge of Webber's capabilities and past performance. Libbytestified at his deposition that he did not know who Webber was. DocketNo. 12, ¶¶ 5, 6, 7; Docket No. 15, ¶¶ 5, 6, 7.

With respect to the six, non-vacant positions that were eliminated, oneoccupant accepted an offer of early retirement, though his position willnot expire until February 2003. Two other occupants were let go becauseof performance problems. The particulars concerning the release of one"nonexempt" employee are not specified in the record.4 According toInternational Paper, "That left two positions in the Technical Departmentto be identified."5 Oettinger concluded that two project engineerpositions should be eliminated because the mill had eight such positions,more than other, comparable International Paper mills. In deciding whichtwo of its eight project engineers would loose their positions, Oettingerand the other managers considered which two engineers were the leastvaluable of the eight. According to International Paper, none of theeight had poor performance records, although Oettinger and Libby did notreview any of the project engineer's performance evaluations whenconsidering who should lose his position. Docket No. 12, ¶¶ 7, 8, 9, 10;Docket No. 15, ¶¶ 7, 8, 9, 10.

According to International Paper, "Plaintiff . . . was the firstproject engineer selected." The second project engineer selected fortermination was an individual concerning whom Oettinger had personallyreceived numerous internal complaints. Of the project engineers whoremained, two were older than Webber. Docket No. 12, ¶¶ 12, 13, 14;Docket No. 15, ¶¶ 12, 13, 14.

After selecting the two project engineers whose positions wouldeventually be eliminated, Oettinger consulted with these individuals'first- and second-line supervisors to solicit their input. With respectto Webber, Oettinger met with Larry Schaub, the first-line manager, andwith Steve Moser, the second-line manager. According to InternationalPaper, both men agreed with Oettinger's decision to eliminate Webber'sposition. Docket No. 12, ¶ 15; Docket No. 15, ¶ 15.

International Paper asserts that it terminated Webber's positionbecause he was the only project engineer without an engineering degree.Although no specific facts are offered in relation to Webber's skill setin relation to any particular "bigger or more complex project,"International Paper maintains that Webber "was not qualified to do someprojects that the degreed engineers were qualified to perform." However,it does appear that the other project engineers were responsible formajor areas, such as specific paper machines, whereas Webber "handled alot of the extra stuff." On the other hand, when International Paper gaveWebber the project engineer position, it did not require that he possessor obtain an engineering degree. Docket No. 12, ¶¶ 11; Docket No. 15, ¶¶11.

On June 25, 2001, Oettinger and Libby met with Webber to inform himthat his position was terminated effective July 15, 2001. Oettinger toldWebber that he had been selected because of the lesser quality andquantity of his work. Webber was also informed that he would never workfor International Paper again. Some five minutes before this meeting,another of Webber's various supervisors, Tom Thompson, stated to Webber,"You are the weakest link. You are gone." Although he was informed thathis termination would not be effective until July 15, 2001, after beingnotified of his termination on June 25, 2001, International Paperpersonnel immediately escorted Mr. Webber from the premises. Thus, June25, 2001was the last day that Webber ever "physically worked" atInternational Paper. Until this date, Webber had continued to work at hisreduced schedule of four hours per day, four days per week, pursuant tohis doctor's orders. Docket No. 12, ¶¶ 16, 17, 19, 23; Docket No. 15, ¶¶16, 17, 19, 23, 27, 28, 30; Docket No. 19, ¶¶ 16, 27, 28, 30.

On or about July 8, 2001, Webber applied for long-term disabilitybenefits. International Paper approved the application on July 20, 2001.In either September or October of 2001, Libby offered Webber a positionas an "SQA coordinator." Webber refused the position, although heacknowledges that he was fully capable of performing the job functionsrequired by the position. Webber refused the position because it wouldrequire him to work with Oettinger and Libby, who he felt had unfairlychosen him for the reduction in force. The SQA position that Libbyoffered Webber that September was a pre-existing position that was vacantat the time of Webber's termination in June 2001 and had remained vacantduring the intervening period. International Paper argues that despitethe vacancy in June, the SQA position was not "available" becauseInternational Paper had no intention of filling it at that time. Prior tothe Functional FAST initiative, efforts were generally made at theBucksport mill to keep engineers as employees whenever engineeringpositions were eliminated because their skills typically made themvaluable in other departments as well. Docket No. 12, ¶¶ 17, 22; DocketNo. 15, ¶¶ 17, 22, 32, 42; Docket No. 19, ¶ 42.

One of the goals of the Functional FAST initiative was to outsourceproject design operations and use in-house engineers primarily to performproject management operations. Of all projects undertaken by InternationalPaper since Webber's termination, only one project required skills thatWebber did not possess. Mr. Oettinger and Mr. Schaub were both aware ofWebber's knee problems and had observed the difficulty Webber had whenwalking. Mr. Oettinger was aware that Webber's knee problem had resultedin absences from work and that Webber was working a reduced schedule.International Paper tracks lost-time figures for work-related injuriesand Oettinger is concerned lest the Bucksport mill have a higher figurefor lost time than other, comparably-sized mills. Docket No. 15, ¶¶ 36,37, 38, 41; Docket No. 19, ¶¶ 36, 37, 38, 41.

In his project engineer position, Webber earned approximately $4800.00per month and received various benefits, including accidental death anddismemberment insurance and matching 401k contributions. Docket No. 15, ¶54. By comparison, under long term disability Webber receives $3,365.83per month, but neither death and dismemberment insurance nor matching 401kcontributions.6 Docket No. 19, ¶ 54.


International Paper contends that it isentitled to judgment as amatter of law against Webber's claims because Webber was neitherterminated nor disabled. International Paper also argues that Webbercannot present sufficient facts to permit the jury to view as a pretextthe nondiscriminatory reasons it offers for why it eliminated Webber'sposition. Defendant's Memorandum of Law in Support of Its Motion forSummary Judgment, hereinafter "Docket No. 11," at 1. Under the governingsummary judgment standard, Webber must establish that a genuine issue offact exists on each of these issues in order to overcome InternationalPaper's Motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Pursuant to the Maine Human Rights Act ("MHRA"), it is unlawfulemployment discrimination for any employer to discharge an employeebecause of a physical disability or age, among other things, unless thedisability-based or age-based reason for the discharge concerns "a bonafide occupational qualification." 5 M.R.S.A. § 4572(1); The MHRA notonly prohibits discriminatory discharge, but also discrimination "withrespect to hire, tenure, promotion, transfer, compensation, terms,conditions or privileges of employment or any other matter directly orindirectly related to employment." Id.; see also § 4572(2) (relatingto discrimination against a qualified individual with a disability). TheLaw Court has held that employment discrimination cases brought under theMHRA are to be evaluated at the summary judgment stage according to "thespecial methodology" developed by the Supreme Court, including the burdenshifting framework set out in the Supreme Court's McDonnell Douglasopinion. Maine Human Rights Comm. v. City of Auburn, 408 A.2d 1253,1261-62 (Me. 1979) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973)). In addition to Supreme Court methodology, the Law Court has alsoheld that other federal precedent should be used "as an aid ininterpreting Maine's anti-discrimination provisions." Bowen v. DHS,606 A.2d 1051, 1053 (Me. 1992). See also Higgins v. New Balance AthleticShoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) (approving use of McDonnellDouglas framework in connection with ADA claims of disabilitydiscrimination).

In order for Webber to succeed with his discrimination claims beforethe jury, he must be able to demonstrate: (1) that he qualifies formembership in a protected class; (2) that he was able to perform theessential functions of the job, either with or without reasonableaccommodation; and (3) that International Paper discharged him in wholeor in part because of membership in such class (i.e., because ofdiscriminatory animus). Lebron-Torres v. Whitehall Labs., 251 F.3d 236,239 (1st Cir. 2001). These are the basic elements of a discriminationclaim. In McDonnell Douglas, the Supreme Court created a burden shiftingmethodology whereby a plaintiff lacking direct evidence of discriminatoryanimus, the third element of a discrimination claim, might yet proceed totrial by proving a "prima facie case" of discrimination and by showingthat the non-discriminatory reason the employer asserts for the adverseemployment action is pretext for discrimination. Accordingly, theelements of a prima facie case do not include proof of discriminatoryanimus. McDonnell Douglas, 411 U.S. at 802 & n. 13. Essentially, theplaintiff need only demonstrate "that [he or] she is a member of aprotected group who has been denied an employment opportunity for which[he or] she was otherwise qualified." Marcano-Rivera v. Pueblo Int'l,Inc., 232 F.3d 245, 251 (1st Cir. 2000). In Cruz-Ramos v. Puerto Rico SunOil Co., the First Circuit Court of Appealsenumerated the following fourelements of a prima facie case in the context of a reduction in force:(1) that the plaintiff was a member of a protected class; (2) that theplaintiff met the employer's legitimate job performance expectations; (3)that the plaintiff experienced adverse employment action; and (4) thatthe plaintiff retained non-class members in the same position orotherwise failed to treat the plaintiff's membership in the classneutrally in implementing the reduction in force. 202 F.3d 381, 384 (1stCir. 2000).

International Paper asserts that the McDonnell Douglas methodology iscalled for because there is no direct evidence of discrimination. DocketNo. 11 at 3. Webber counters that direct evidence of a discriminatorydischarge exists in Libby and Moser's jokes concerning the "Costanzachair," Finley and Schaub's laughter concerning Webber's weight, andThompson's statement to Webber, "You are the weakest link. You are gone."Docket No. 14 at 16-17. Contrary to Webber's argument, none of thesestatements or events directly demonstrates that his position waseliminated because he was disabled or regarded as disabled. The followingdiscussion therefore follows the McDonnell Douglas framework.

1. Webber succeeds in presenting a prima facie case of discrimination.

International Paper contends that Webber cannot make out a prima faciecase of discrimination under McDonnell Douglas. International Paper takesissue only with the first and third aspects of Webber's prima faciecase: membership in a protected class and adverse employment action.According to International Paper, Webber cannot show either because hewas neither terminated nor disabled. Docket No. 11 at 5, 8.

a. Webber suffered an adverse employment action.

International Paper's argument that Webber was not discharged concernsboth his age and disability claims. Notwithstanding International Paper'sargument that it still considers Webber an employee because he is on longterm disability, Docket No. 11 at 8, the facts clearly support a findingthat Webber suffered an adverse employment action when InternationalPaper eliminated his project engineer position, told him he would neverwork at International Paper again and escorted him from the premises.Webber has not worked at the Bucksport mill since that day. Furthermore,as a consequence of the reduction in force, Webber not only lost hisposition, but lost his wages and several employee benefits he previouslyenjoyed, including accidental death or dismemberment insurance, andmatching 401k contributions. The fact that these events transpired is noterased by the subsequent job offer, though the offer might bear on backpay damages. See, e.g., United States EEOC v. Massey Yardley ChryslerPlymouth, 117 F.3d 1244, 1252 (11th Cir. 1997) (affirming verdict forplaintiff where offer of reinstatement was made and discussing how saidoffer related to back pay damages).7 Nor is the subsequent job offer aniron-clad defense to Webber's discrimination claim. It would bepermissible for a factfinder to view it as a belated effort to make up forprior, discriminatory conduct, although that is certainly not the only wayit might be viewed.

b. Webber is disabled for purposes of the MHRA.

With respect to Webber's membership in a protected class, InternationalPaper challenges only his claim of disability discrimination, not hisclaim of age discrimination. Although International Paper acknowledgesthat walking is a major life activity, it argues that Webber is notsubstantially limited in that activity because he is still able todrive, go grocery shopping, work in his garden, sweep floors in agymnasium and walk one-half mile on a treadmill.8 Docket No. 11 at 6-7.Webber argues that he is disabled for purposes of both Maine and federalanti-discrimination law and also argues that the disability threshold setby the MHRA is lower than that set by the Americans with DisabilitiesAct. Memorandum of Law in Opposition to Defendant's Motion for SummaryJudgment, Docket No. 14, at 4-5.

The MHRA defines physical disability in very broad terms:

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

5 M.R.S.A. § 4553(7-A). As Webber argues in his oppositionmemorandum, this provision, on its face, is more generous than its ADAanalogue, which expressly limits physical disability to those impairmentsthat substantially limit a major life activity. 42 U.S.C. § 12102(2).For example, a "congenital defect" might serve as a disability forpurposes of the MHRA even though it had no impact whatsoever on a person'sperformance of major life activities. Cf. Rozanski v. A-P-A Transport,Inc., 512 A.2d 335, 340 (Me. 1986) (affirming lower court's recognitionof asymptomatic spinal "malformations" as physical defects under theMHRA); Maine Human Rights Comm'n v. Canadian Pacific Ltd., 458 A.2d 1225(Me. 1983) (same — involving asymptomatic heart murmur); but seeWinston v. Maine Tech. College Sys., 631 A.2d 70, 74 (Me. 1993) (citingMe. Human Rights Comm'n, Employment Reg. § 3.02(C)(1) and seekingfederal guidance in "determining when it is appropriate to imposecategorical limits on the definition of a disabled individual"). While itis certain from the record that Webber has an "infirmity" that was causedby bodily injury, it is not so clear whether the physical limitationsresulting from his knee replacement have substantially limited one ormore major life activities, at least insofar as that standard has beenapplied by various federal courts.9

Ultimately, this legal issue does not need to be resolved. The factsindicate that Webber's supervisors at International Paper regarded Webberas having a physical disability, which is sufficient for purposes of boththe MHRA and the ADA. Pursuant to 5 M.R.S.A. § 4553(7-B)(C), an"`individual with a physical or mental disability' [includes] a personwho . . . [i]s regarded as having a physical or mental disability." Seealso id. § 4572(2) (concerning "unlawful discrimination againstqualified individual with a disability").10The MHRA definition parallels the ADA definition, found at42 U.S.C. § 12102(2), and federal cases construing theADA language and regulations are therefore appropriate guides for construingthe MHRA language.

Under the ADA, an individual is regarded as having a physicaldisability if his employer believes he has an impairment thatsubstantially limits a major life activity, whether he is actuallyphysically impaired or not. Sutton v. United Airlines, Inc., 527 U.S. 471,489 (1999). In Sutton, the Supreme Court held that severely myopicplaintiffs could not establish that they were regarded by their employeras substantially limited in the major life activity of working11 simplybecause the employer considered them unable to work as "global airlinepilots." Id. at 493 ("Because the position of global airline pilot is asingle job, this allegation does not support the claim that respondentregards petitioners as having a substantially limiting impairment.").

The same fate has befallen numerous other ADA claimants who lost or weredenied particular jobs and pursued ADA claims on the ground that theywere regarded as substantially limited in the major life activity ofworking. See, e.g., Murphy v. UPS, 527 U.S. 516, 524 (1999) ("At most,petitioner has shown that he is regarded as unable to perform the job ofmechanic only when that job requires driving a commercial motor vehicle.. . ."); Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1169-70 (1stCir. 2002) (affirming grant of summary judgment in absence of anyevidence that employer perceived plaintiff as "unable to work in either aclass of jobs or a broad range of jobs in various classes as comparedwith the average person having comparable training, skills, andabilities"); Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 198 (1stCir. 1999) (affirming grant of summary judgment where employer deniedplaintiff one particular job due to plaintiff's physical infirmity);Tardie v. Rehabilitation Hosp., 168 F.3d 538, 542 (1st Cir. 1999)(affirming grant of summary judgment where plaintiff offered only thatemployer considered plaintiff unable to work more than 40 hours perweek).

Webber's case is wholly different. First, Webber premises his suit onthe major life activity of walking, not working. Second, Webber's summaryjudgment statement of material facts presents evidence that is directlyrelated to International Paper's perception of him as an employee in needof substantial workplace accommodations due to a readily apparentphysical infirmity that impedes his ability to walk. International Papernot only installed a stairway lift chair for Webber, at no smallexpense, but also significantly reduced his work schedule for an extendedperiod of time and relocated his office from the third floor of the millto the first floor of the mill. The fact that International Paperextended to Webber accommodations of this sort is sufficient to generatea genuine factual issue on the question of whether International Paperregarded Webber as substantially limited in the major life activity ofwalking. Cf. Curry v. Empire Berol, U.S.A., 1998U.S. App. LEXIS 461, *10(6th Cir. 1998) (unpublished opinion) ("[W]e find nothing in the recordto indicate that Empire regarded Curry as having an impairment thatsubstantially limited his ability to work. Empire did nothing to limitCurry's work load or responsibilities although it was well aware ofCurry's impairment."). Finally, the fact that International Paperapproved Webber's application for long term disability benefits is alsoprobative of whether it regarded him as disabled.12 Cf., EEOC v. Town& Country Toyota, Inc., 7 Fed. Appx. 226, 230 (4th Cir. 2001)(unpublished opinion) ("An employer's comments referring to a plaintiffas `disabled' are probative evidence that the employer regarded theplaintiff as disabled."). Because Webber succeeds in showing a prima faciecase, a presumption of discrimination arises. Gillen v. Fallon AmbulanceServ., 283 F.3d 11, 30 (1st Cir. 2002).

Accordingly, the burden now shifts to International Paper todemonstrate that the elimination of Webber's position was disability- andage-neutral.

2. International Paper has articulated a legitimate reason for eliminating Webber's position.

Once a plaintiff has made out a prima facie case of discrimination, theburden of production shifts to the defendant to "articulate somelegitimate, nondiscriminatory reason" for the adverse employment action.McDonnell Douglas, 411 U.S. at 803. International Paper states that,among other reasons, it "eliminated [Webber's] position because of adesire to increase efficiency." Docket No. 11 at 9. International Paperexplains that "other individuals were better able to perform the jobduties of a project engineer [because Webber] didn't have the skills torun the major projects like the few people that [sic] were left." Thiscontention is supported by the fact that Webber was the only projectengineer lacking an engineering degree and the fact that he tended towork on less complex construction projects. Docket No. 11 at 10 (citingDocket No 12, ¶ 11). With this presentation, the presumption ofdiscrimination evaporates and the burden returns to Webber.

3. Webber presents sufficient facts to support a finding that International Paper's explanation for his discharge is pretext for disability discrimination.

Should the defendant present a legitimate, non-discriminatory reasonfor an adverse employment action, the burden returns to the plaintiff,who must then show that the defendant's stated reason was, or is,pretext. McDonnell Douglas, 411 U.S. at 804. In this endeavor, the Courtmust "scrutinize the facts, indulging all reasonable inferences in[Webber's] favor, and ask whether the evidence conclusively demonstratesthat [International Paper] acted on the basis of an objectivelyreasonable assessment of the appellant's capabilities and not on thebasis of [his age or] impairment." Gillen, 283 F.3d at 30.

One of International Paper's justifications for selecting Webber'sposition, as opposed to another project engineer's position, is thatWebber lacked an engineering degree. However, Webber has presentedevidence that the lack of an engineering degree never was an issue withrespect to his placement in the project engineer position and that allbut one of the projects performed by project engineers since hisdeparture were within his general range of competence.

Additionally, Webber presented evidence that the more complex projectdesign functions once carried out by project engineers at InternationalPaper have since been outsourced to engineering firms, which also callsinto question the reason International Paper offers for Webber'sdischarge. Furthermore, Webber's performance reviews were all positive;his relative competence and efficiency was never called into questionthroughout his work history. Yet, despite this positive record,International Paper selected Webber for discharge first, ahead of anotherproject engineer regarding whom Oettinger had received numerous internalcomplaints.

Finally, there is evidence in the record that the chair liftaccommodation International Paper provided to Webber was referred to byboth Schaub and Moser, Webber's first- and second-line supervisors, as a"Costanza chair." Although this characterization could be interpreted indifferent ways by the jury, one legitimate inference would be that thischaracterization was derisive toward Webber and related to what Schauband Moser perceived as a physical disability.

Although the record indicates that Oettinger was the final decisionmaker, it also reflects that Oettinger consulted with both Schaub andMoser regarding his selection of Webber for the reduction in force.13

4. Webber does not present sufficient facts to support a finding that International Paper's explanation for his discharge is pretext for age discrimination.

Webber's summary judgment statement of additional material facts failsto generate any facts probative of age discrimination and, therefore,summary judgment should enter against his age discrimination claim.


For the reasons stated herein, I RECOMMEND that the Court grant, inpart, and deny, in part, Defendant International Paper's Motion forSummary Judgment, as follows: DENY the Motion with respect to Count I(disability discrimination); and GRANT the Motion against Count II (agediscrimination).

Failure to file a timely objection shall constitute a waiver of theright to de novo review by the district court and to appeal the districtcourt's order.

1. For counsels' benefit the following docket numbers correspond tothe following summary judgment filings:

Docket No. 12-Defendants' [sic] Statement of Material Facts in Support of Motion for Summary Judgment;

Docket No. 15-Plaintiff's Response to Defendant's Statement of Undisputed Material Facts and Statement of Additional Material Facts; and

Docket No. 19-Defendant's Reply to Plaintiff's Response to Defendant's Statement of Material Facts and to Plaintiff's Statement of Additional Material Facts.

2. Reading between the lines, this appears to have been afterInternational Paper merged with Champion in June 2000 and after Webber'sknee replacement surgery in February 2001, but the parties do not offer avery clear chronology. Docket No. 12, ¶ 21; Docket No. 15, ¶ 21. ExhibitA to the Affidavit of Gary S. Webber, found at docket number 16, revealsthat Webber was out on short term disability from February 11, 2001 untilMay 15, 2001, when he held a position as a project engineer. This exhibitalso reveals that Webber was out on short term disability from February24, 1998 until June 15, 1998, when he was working as a finishing/shippingsupervisor, which leave must have followed immediately or shortly afterthe injury to his knee.

3. All of the eliminated positions were salaried positions. Plaintiffqualifies certain of Defendant's statements by pointing out that only oneof these position was "non-exempt" for purposes of overtime. I do not seehow this distinction is material to the pending motion.

4. Docket No. 15, ¶ 7 (identifying the "nonexempt" employee namedWood).

5. International Paper's use of the language, "That left . . ."suggests that the statement found in Docket No. 12, ¶ 9 logically followsfrom the preceding statement. Although it is evident from the parties'statements that the technical department is one component of a largerengineering workforce, there is no explanation offered by either partyconcerning how the technical department is distinct from otherengineering departments or why the technical department was chosen toloose two project engineer positions rather than eliminating one or twoproject engineer positions from another engineering department.

6. Although the Court need not reach the question of whether Webberwas disabled for purposes of the MHRA, Webber offers the following factson the issue:

43. Since Gary Webber's knee replacement surgery in February 2001, his doctor has imposed permanent restrictions on his activities. As a result, he is unable to perform many activities which he used to do in the past, and [has] been required to modify other activities so that he can perform them. The following are some examples of activities which he has ceased or modified:

a. He is no longer able to do any kayaking or boating/fishing, since he is unable to climb into or out of a boat.

b. He is no longer able to play basketball with his children.

c. He can no longer play golf.

d. Although he is still able to do light gardening, he has had to modify his gardening activities. For instance, he uses a milk crate to sit on so he can reach the ground without excessive bending or squatting.

e. He can no longer do yard work such as cutting up and removing fallen tree branches. He is unable to do the bending and lifting involved in those tasks, and has difficulty with balance on uneven ground. He is also unable to use a chain saw because of the narcotic medication that he is required to take on a regular basis for pain.

f. He used to enjoy doing carpentry and woodworking, but can no longer do those activities. He is unable to use power tools because of his medication.

g. He is unable to do any work on his house that requires the use of a ladder. He recently had to hire someone to paint the trim on his house exterior, which in the past before his knee injury he would have done himself.

h. He can no longer do animal care such as bathing his dog.

i. He is limited in the amount of time that he can drive a vehicle, which restricts his ability to travel distances. He has had to modify the way in which he drives such that he now uses his left foot on the brake and his right foot on the gas. It is very difficult for him to get in and out of vehicles, and he has had to sell two vehicles which he owned that were particularly difficult to get into and out of. He can no longer drive any vehicle with a standard transmission.

j. He had planned some home renovation projects which he has now put on hold as a result of his knee injury. In particular, he had planned to renovate his basement, but is unable to make the frequent trips up and down the stairs that would be necessary for that project. He also cannot move furniture or carry anything heavy.

k. Because he lives in a 2-story house with my [sic] bedroom on the second floor, he has had to modify the way in which he does laundry. He is not able to carry a laundry basket down the stairs, and now has to throw all laundry to the bottom of the stairs. Once the laundry is finished, he has to leave it stacked downstairs and have others carry it upstairs.

l. He is unable to vacuum or wash/wax the floors in his house because of the bending and twisting involved in those activities. He used to do floor washing and waxing on his hands and knees, which he can no longer do.

m. He is able to do grocery shopping, but has to limit the amount of groceries that he buys because he is unable to carry heavy bags of groceries. He has needed to use the power riding shopping cart on several occasions, and he uses a grocery cart to lean on as a walker and to transport the bags of groceries to his car. His family has to carry the groceries in from the car to the house.

n. When preparing meals, he has to do as much preparatory work as possible from a sitting position. He is unable to cook meals that require him to stand at the stove for a long time.

o. He is taking a class at the University of Maine at Orono, and has had difficulty with that class because the university is a large campus and it is difficult for him to walk very far. He has particular difficulty walking on uneven ground, for which he is required to use a cane. His class involves field trips to various areas of the campus, and he has been required to drive to some and miss others if there is no nearby parking.

p. Prior to his knee injury, he had done a significant amount of volunteer activity. He continues to do some volunteer work, but it is very limited in the types of things he can do and the amount of time which he can volunteer, because of pain and swelling in his leg.

q. He has a handicapped parking permit and uses it every day.

44. In addition to the modifications that Gary Webber has made to his activities, he is limited in the amount if time that he can perform these activities. After two to three houses of light activity, his knee and calf become extremely swollen and painful and he is required to sit or lie down and elevate his leg for about an hour.

45. Gary Webber's knee replacement surgery and the resulting limitations on his activities have also affected his relationship with his family. He is married and has two teenage daughters. His wife and daughters are now required to do a lot of tasks for him or to assist him with certain tasks. He is unable to do many activities with his family that he used to do, such as walking, playing basketball, golfing, hiking and kayaking. The constant pain that he has been in since his knee replacement surgery has also affected his disposition and has caused a great deal of strain on his relationship with his wife and his children.

Docket No. 15, ¶¶ 43-45.

7. An employer "having once offered reinstatement, is released fromthe back pay obligation from the date the offer was rejected." NLRB v.Huntington Hosp., Inc., 550 F.2d 921, 924 (4th Cir. 1977).

8. Of course, only the last two of these activities necessarilyinvolve walking.

9. Such as those cited by International Paper. Docket No. 11 at6-7.

10. Subsection 4572(2) addresses unlawful discrimination in varyingcontexts, including discrimination in employment, whereas subsection4572(1) addresses only employment discrimination.

11. The Court assumed, without deciding, that working is a major lifeactivity, noting "that there may be some conceptual difficulty indefining `major life activities' to include work," because the operativeissue in a disability suit is whether one has been denied work due to adisability. Sutton, 527 U.S. at 492.

12. International Paper does not address in its principal memorandumwhether Webber was regarded as disabled. Nor does International Papermake any effort in its reply memorandum to refute Webber's assertion thathe was regarded as disabled.

13. I do not consider the 1997, weight-related wise-crack that Finleyand Schaub shared at Webber's expense to reflect discriminatory attitudestoward either age or disability. Nor do I consider the "weakest link"comment by Thompson to be especially probative because there is nothingin the record linking Thompson to International Paper's decision-makingprocess.

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