Cooper v. Thomson Newspapers, Inc., Civil No. 96-444-SD.

• Decision Date: 29 January 1998
• Docket Number: Civil No. 96-444-SD.
• Citation: 6 F.Supp.2d 109
• Parties: Nancy L. COOPER v. THOMSON NEWSPAPERS, INC.
• Court: U.S. District Court — District of New Hampshire

6 F.Supp.2d 109

Nancy L. COOPER v. THOMSON NEWSPAPERS, INC.

Civil No. 96-444-SD.

United States District Court, D. New Hampshire.

January 29, 1998.

COPYRIGHT MATERIAL OMITTED

Eleanor H. MacLellan, Sulloway & Hollis, Concord, NH, for Plaintiff.

Stephen L. Tober, Tober Law Offices, PA, Portsmouth, NH, for Defendant.

ORDER

DEVINE, Senior District Judge.

Plaintiff Nancy Cooper initiated this case against her former employer, Thomson Newspaper Company, after she was terminated. Cooper's complaint charges that by discharging her, Thomson violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(ADA), and the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (FMLA). Cooper also seeks to recover under the common law for wrongful discharge. Presently before the court is Thomson's motion for dismissal or for summary judgment.¹

Background

The Portsmouth Herald, a division of Thomson, employed Cooper as an account executive within the retail advertising department. Cooper attained high sales figures and received positive evaluations in December 1993 and August 1994.

On November 11, 1994, Cooper left for a pre-approved medical leave of absence to undergo and recover from back surgery. While she was on leave, Cooper attended a Christmas party, at which her supervisors observed that she was limited in her ability to walk. Cooper also had planned to attend a party held by Gloria Bonito, the retail advertising director. Bonito, however, discouraged Cooper from attending because she did not think Cooper would be able to climb the stairs at her house.

On January 26, 1995, Cooper met with Bonito to discuss her return to work. Cooper brought a letter from her treating physician clearing her to return to work with the restriction that she avoid lifting anything in excess of forty-five pounds. Cooper's doctor also recommended that she be allowed frequent discretionary changes of position.

During the meeting, Bonito asked whether Cooper had driven herself to the office and whether she would be able to drive when she returned to work.

Cooper returned to work on Friday, February 3, 1995. On the morning of her return, she was asked to meet with Bonito and Dawn Grasso, the retail advertising manager. At the meeting, Bonito expressed concern over Cooper's physical condition. Bonito also presented Cooper with a written employee warning notice and a memorandum stating that, during Cooper's leave, nine customers had complained about her job performance. Bonito requested that Cooper sign the warning, but Cooper refused to sign. Cooper then asked Bonito to stop the meeting for a few minutes because her back became painful. When the meeting resumed, Bonito continued to request that Cooper sign the complaint. The meeting ended when Bonito stormed out of the office.

The following Tuesday, Cooper left work for a follow-up x-ray of her back. During the appointment, Cooper had severe back pain, which prompted her to pay an unscheduled visit to her doctor immediately following the x-rays. On Wednesday morning, Bonito asked Cooper why she took so long at her appointment the previous day. Cooper explained the situation and told Bonito that the pain in her back had been occurring since her return to work. Bonito asked Cooper if she was blaming Bonito for her increased pain and stated that by taking so long at the previous day's appointment she was failing to service her customers. Bonito told Cooper she should take care of her physical ailments on her own time. Bonito also told Cooper that some of her customers were waiting for someone to take care of their advertising and that Cooper should have been calling on them.

On the afternoon of February 7, Cooper met with the publisher Ted Staszak, Bonito, Grasso, and Bennita Morand, the executive administrative assistant. At this meeting Cooper submitted a written response to the warning and complaint memorandum she received on February 3.

On Wednesday, February 8, 1994, Cooper had an encounter with Jenna Dufresne, which became the basis of a harassment complaint against Cooper. Dufresne, a part-time employee, had been covering some of Cooper's accounts while she was on leave. Cooper claims she approached Dufresne because she needed information about the accounts Dufresne had been servicing. Dufresne, however, felt that Cooper was harassing her by continually questioning Dufresne about the complaints. Dufresne felt that Cooper was accusing her of soliciting the complaints and felt Cooper was suggesting that Dufresne was trying to steal her job.

On February 8, 1994, Cooper was asked to meet with Staszak and Bonito. They told Cooper she was not to discuss her situation with any other employees and that another employee had filed a harassment charge against her. During the course of the meeting, tensions escalated, and Staszak fired Cooper.

Discussion

I. Standard of Review

The entry of summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Because the purpose of summary judgment is issue finding, not issue determination, the court's function at this stage "`is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Stone & Michaud Ins., Inc. v. Bank Five for Sav., 785 F.Supp. 1065, 1068 (D.N.H.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Although "motions for summary judgment must be decided on the record as it stands, not on litigants' visions of what the facts might some day reveal," Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994), the court must scrutinize the entire record in the light most favorable to the non-movant, with all reasonable inferences resolved in that party's favor. Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir.1994), cert. denied, 514 U.S. 1108, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995); see also Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994).

This case, like so many employment cases, turns on a question of motive. Both parties agree that Cooper was terminated shortly after her return from her FMLA leave. While Cooper believes that The Herald fired her because her supervisors thought she was disabled and in retaliation for taking FMLA leave, Thomson contends that the termination was based upon Cooper's poor performance and insubordination. Summary judgment, however, is not necessarily precluded,

even in cases where elusive concepts such as motive or intent are at issue. "[I]f the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation," summary judgment may be appropriate even where intent is an issue. Where, however, the nonmoving party has produced more than that, trial courts should "use restraint in granting summary judgment" where discriminatory animus is in issue.

DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (quoting Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir.1994); Valles Velazquez v. Chardon, 736 F.2d 831, 833 (1st Cir.1984)).

Thomson asks the court to dismiss Cooper's wrongful discharge claim for failure to state a claim upon which relief can be granted. However, because Thomson has already filed an answer, thereby closing the pleadings under Rule 7(a), Fed.R.Civ.P., the motion to dismiss is more properly styled a motion for judgment on the pleadings. See Rule 12(c), Fed.R.Civ.P. The standard for judgment on the pleadings is essentially the same as the standard for evaluating a Rule 12(b)(6) motion. See Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 182 (7th Cir.1986). To resolve defendant's motion, the court must "take the well-pleaded facts as they appear in the complaint, extending plaintiff every reasonable inference in [her] favor." Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st Cir.1993) (citing Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir.1992)). The court may properly grant a motion for judgment on the pleadings "`only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.'" Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992) (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990)).

II. Americans with Disabilities Act Claim

To recover under Title I of the ADA, the "plaintiff must prove three things. First, that [s]he was disabled within the meaning of the Act. Second, that with or without reasonable accommodation [s]he was able to perform the essential functions of [her] job. And third, that the employer discharged [her] in whole or in part because of [her] disability." Katz v. City Metal Co., 87 F.3d 26, 30 (1st Cir.1996). Thomson argues that the court should grant summary judgment on Cooper's ADA claim because she has failed to show that she was disabled within the meaning of the Act.

For purposes of the ADA, disability means, "(A) a physical or mental impairment that substantially limits one of more of the major life activities ...; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (1994). Cooper does not claim that she is disabled, but rather that Thomson regarded her as disabled. Thus the court need only address the perceived disability test.

The "regarded as" definition of disability provides protection to individuals who are not disabled at all, but are wrongly perceived to be disabled. See Katz, supra, 87 F.3d at 33. Of course, perception is a question of state of mind to which there is often a lack of direct evidence. The court therefore must examine the information to which the...