Calef v. Gillette Co., 02-1444.

• Decision Date: 11 March 2003
• Docket Number: No. 02-1444.,02-1444.
• Citation: 322 F.3d 75
• Parties: Fred J. CALEF, Jr., Plaintiff, Appellant, v. The GILLETTE COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

322 F.3d 75

Fred J. CALEF, Jr., Plaintiff, Appellant, v. The GILLETTE COMPANY, Defendant, Appellee.

No. 02-1444.

United States Court of Appeals, First Circuit.

Heard October 10, 2002.

Decided March 11, 2003.

COPYRIGHT MATERIAL OMITTED

Nancy Maule-McNally for appellant.

Richard P. Ward, with whom Anthony D. Rizzotti and Ropes & Gray were on brief for appellee.

Before LYNCH, Circuit Judge, BOWNES, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

On December 6, 1996, Fred Calef was involved in an altercation at work at the Gillette Company which left his supervisor and co-workers fearing for their safety. Calef, who previously had received warnings following such incidents, was fired from his job at Gillette as a result. Calef brought suit alleging that Gillette violated Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111-12117 (2000), by terminating his employment, failing to reasonably accommodate him, and harassing him. He also brought a pendent state claim alleging his discharge was in violation of public policy.

The district court entered summary judgment against Calef and dismissed both his federal and state claims. We affirm on two grounds: Calef failed, within the summary judgment standard, to show that he was disabled, or that he was an otherwise qualified individual.

I.

We review the facts in this appeal from summary judgment in the light most favorable to Calef and take all inferences in his favor. Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 535 (1st Cir.2002).

Calef worked as a Production Mechanic at Gillette from August 22, 1989 to December 13, 1996. In the early 1990s Calef had several incidents with co-employees which led his supervisors to make written reports. In 1990 he "had words" with a co-worker. On April 4, 1991 Calef and a co-worker each received a warning after an altercation in which Calef, in anger, had threatened the co-worker with physical harm after being so threatened himself. On March 10, 1992, Calef and another employee had to be physically separated by a supervisor after an incident in which the employees angrily exchanged insults and profanity and squirted oil on each other; Calef says the other employee squirted first. Six days later Calef was involved in another argument with a group leader. That night Calef got in a heated exchange with a different group leader and questioned the group leader's performance.

As a result of this series of confrontations with his supervisors and co-workers — on April 4, 1991, March 10, 1992, and March 16, 1992 — Gillette gave Calef a written warning, which, inter alia, said Calef was

being told that actions of this nature will not be tolerated and any such actions in the future could result in a final warning which could ultimately lead to his termination from the payroll.

On September 13, 1995, Calef was involved in another incident, which resulted in his being issued a Final Warning. On that day, Calef had a confrontation with Jeanette St. Aubin, a machine operator who worked with him on the second shift. It was Calef's responsibility to investigate and repair the machines that St. Aubin operated when she reported trouble with them, as she did that day. After her encounter with Calef, St. Aubin, crying and shaking, went to see supervisor Frank Sciarini in his office. She said Calef had harassed her about her inability to run machinery and that whenever she had difficulties with her machine, Calef got mad at her and told her to speak English. St. Aubin further reported that Calef had come to her machine, pointed his finger in her face, raised his hand, made a fist, and stated, "Stop calling me or I'll punch you in the face." Calef admits raising his voice toward St. Aubin and he admits that he threatened to hit her. At the time, St. Aubin was two weeks shy of her sixtieth birthday. Calef says St. Aubin poked him in the chest and scratched his hand. He then threatened to hit her but immediately apologized and said he did not mean it. Calef admitted he "displayed irrational behavior in the incident."

Calef's Final Warning, dated September 15, 1995, was issued "for a display of conduct that [was] detrimental to the interest of the Company." It explicitly warned Calef "that any single infraction of [Company] policy in the future will result in his termination from the payroll." Calef reviewed and signed the Final Warning without objection.

Pursuant to the written Final Warning, Gillette referred Calef to the Employee Assistance Program (EAP). In lieu of EAP counseling, he started therapy with Janis M. Soma in September 1995. Soma holds a Ph.D. but is not a medical doctor; we refer to her as "Dr. Soma." They first met on September 19, 1995. Dr. Soma diagnosed Calef as having Attention Deficit Hyperactivity Disorder (ADHD). At her recommendation, Calef received counseling and obtained a prescription for Ritalin. Dr. Soma's notes indicate that Calef had conflicts with others both at work and outside of work. After the initial meeting with Dr. Soma, for example, Calef had an incident outside of work. Despite the counseling and medication, his problems with threatening others continued.

Calef says he began taking Ritalin in the fall of 1995 and took it in 1996. At his deposition, Calef testified that Ritalin "really helped" the symptoms of his ADHD. Specifically:

It cleared my everyday function, I was doing things without thinking about them, about completing tasks, more focused, more — it was like walking out of a fog and clearing everything up. With ADD I have to analyze a lot of things, and it's the turmoil of weighing things and balancing things before I actually do something typically, and with Ritalin it was clearing of — very clear and — everything was very clear.

His symptoms of ADHD disappeared or significantly diminished after he started taking Ritalin. Calef testified:

Q: While you were working at Gillette, while you were on the job, during this period that you took Ritalin, OK, namely all of '96 when you were on the job, OK, did you have any effects of ADD while you were working or did the Ritalin control it?

A: I'm sure Ritalin helped control most of it. Most all of it. I can't think of any that it didn't. Job performances were good.

On the specific question of his ability to manage his anger, Calef testified that his ADHD did not cause him to become angry. Dr. Soma's testimony agrees. She added that people with ADHD deal with anger more impulsively. Further, in highly stressful situations, people with ADHD may not focus as well as others do.

In early 1996, Calef told a nurse in Gillette's Medical Department, Cynthia Ross, that he had ADHD. He also told Joan Pemberton, the head of the Medical Department. Both nurses say that Calef was adamant they not disclose to others the fact that he had ADHD and they did not disclose it.¹ There is a dispute about whether Calef's supervisors ever learned from the nurses or from another source that Calef had ADHD. We will infer in Calef's favor that Gillette had such notice.

In March 1996, Dr. Soma gave Calef a medical certificate to support his request for leaves under the Family and Medical Leave Act (FMLA). Calef was given over 40 days of FMLA leave between May and December of that year. In this sense, Calef requested and was given a reasonable accommodation. There was, though, evidence that Sciarini, the supervisor, did not like Calef taking FMLA days off.

Calef says he had been assigned to work on updated versions of the machines that he had serviced earlier and he found the new setting stressful. On May 24, 1996, Dr. Soma addressed a note to the Gillette Medical Department saying she had advised Calef it would be in his best interests to reduce his stressors at work. In particular, she asked if there was a means to reverse his reassignment at work. The letter did not refer to either ADHD or a request for a reasonable accommodation. In Calef's favor we will infer that this letter was adequate to request a reasonable accommodation. Gillette declined to change his assignment. Calef did not pursue the matter.

On July 3, 1996, Calef checked into Pembroke Hospital for depression. On July 17, after returning from hospitalization, Calef received medical clearance from the Hospital to work at Gillette "without restrictions."² At his request, Gillette permitted him to work half days from July 22, 1996 through August.

Clinical notes from Dr. Soma indicate that, on August 16, 1996, Calef reported "good progress at work and in family. Sleeping well, blood pressure down, no alcohol use and no suicidal ideation." He continued to see Dr. Soma at times, and her November 19, 1996, note indicated Calef was taking Zoloft and felt it helped him with anger management. Indeed, from his return on July 22, 1996 to December 6, 1996, Calef worked without noticeable incident or infirmity.

The incident which led to the termination of Calef's employment occurred on Friday, December 6, 1996. The day before, as was customary, Gillette sought volunteers for Sunday shifts. Mechanics usually like that shift since they receive double pay. Due to scheduling needs, the company had to know by Friday who would work that Sunday. Calef's group leader, Steven Pennington (who was senior to Calef and junior to Sciarini) asked for volunteers to work that Sunday and understood Calef to have volunteered. Calef's version is that he tentatively agreed to work and said he would get back to Pennington.

On Friday, December 6, management decided to run a particular production machine, thinking there was a danger of not meeting production quotas. At approximately 5:55 p.m., shortly before a meal break was scheduled to begin, Sciarini informed Pennington that the "Good News Plus" production machines would have to be run during the meal break. Pennington had short notice to find operators and mechanics who could run the machines during the break. Pennington attempted to find...