Nedder v. Rivier College

• Decision Date: 03 September 1996
• Docket Number: Civil No. 95-116-SD.
• Citation: 944 F.Supp. 111
• Parties: Mary NEDDER v. RIVIER COLLEGE.
• Court: U.S. District Court — District of New Hampshire

944 F.Supp. 111

Mary NEDDER v. RIVIER COLLEGE.

Civil No. 95-116-SD.

United States District Court, D. New Hampshire.

September 3, 1996.

Paul McEachern, Shaines & McEachern, P.A., Portsmouth, NH, for Mary Nedder.

Daniel P. Schwarz, Sheehan, Phinney, Bass & Green, Manchester, NH, for Rivier College.

ORDER

DEVINE, Senior Judge.

In this civil action, plaintiff Mary Nedder alleges that her former employer, Rivier College, terminated her employment as an assistant professor of religious studies in violation of Title I of the Americans with Disabilities Act of 1990 (ADA), Pub.L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101-12117 (1995)). Plaintiff also brings claims under New Hampshire law for breach of her employment contract, wrongful discharge, and violation of the New Hampshire "Law Against Discrimination", New Hampshire Revised Statutes Annotated (RSA) 354-A (1995).

On July 20 and 25, 1995, the court conducted an evidentiary hearing on Nedder's motion for a preliminary injunction to reinstate her in her position at Rivier College pending final resolution of her action on the merits. The court denied the motion on August 14, 1995. Nedder v. Rivier College, 908 F.Supp. 66 (D.N.H.1995).

Presently before the court is defendant's motion for summary judgment on Count I of the complaint (the ADA claim).¹ Also before the court is defendant's motion for judgment on the pleadings as to Count III (the wrongful discharge claim) and Count IV (the RSA 354-A claim). Plaintiff objects to both motions, except for defendant's motion for judgment on the pleadings as to Count IV.

Background

The background of this case can be very briefly summarized as follows.² Rivier hired Nedder as a part-time faculty member in the religious studies department in 1988. Affidavit of Dr. Jacqueline C. Landry ¶ 3 (attached to defendant's motion). Nedder continued teaching on a part-time basis until 1992, at which point Rivier hired her as a full-time assistant professor of religious studies, later renewing her contract for the 1993-94 and 1994-95 academic years. Id. ¶ 4. In August 1994 Nedder received a letter signed by both Father Gerald Murphy, a department chair, and Dr. Landry, a faculty dean, stating that Rivier would not renew Nedder's contract for the 1995-96 academic year. Id. ¶ 6.

Nedder is five feet six inches tall, and at all times relevant to this case she weighed approximately 375 pounds. Complaint ¶ 1. Her physician opines, among other things, that Nedder is disabled because she is unable to walk farther than 500 yards without becoming breathless and tired, and because she feels "like she is doing something" when carrying out some of her daily activities. Deposition of Renee Jacobs, M.D., at 27-28 (attached to plaintiff's objection).

The evidence will be further elaborated upon during the course of the court's discussion below.

Discussion

I. The Motion for Summary Judgment

A. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 327 (1st Cir.1996). Since 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 Savings, 785 F.Supp. 1065, 1068 (D.N.H.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)).

When the non-moving party bears the burden of persuasion at trial, to avoid summary judgment he must make a "showing sufficient to establish the existence of [the] element[s] essential to [his] case." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). It is not sufficient to "`rest upon mere allegation[s] or denials of his pleading.'" LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993) (quoting Anderson, supra, 477 U.S. at 256, 106 S.Ct. at 2514), cert. denied, ___ U.S. ___, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). Rather, to establish a trial-worthy issue, there must be enough competent evidence "to enable a finding favorable to the non-moving party." Id. at 842 (citations omitted).

In determining whether summary judgment is appropriate, the court construes the evidence and draws all justifiable inferences in the non-moving party's favor. Anderson, supra, 477 U.S. at 255, 106 S.Ct. at 2513. Nevertheless, "[e]ven in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990) (citations omitted).

B. The ADA Claim

An ADA plaintiff may use circumstantial evidence to prove his or her case by employing the familiar burden-shifting scheme that originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).³ See Braverman v. Penobscot Shoe Co., 859 F.Supp. 596, 603 (D.Me.1994); accord Ennis v. National Ass'n of Business and Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir.1995).

Under McDonnell Douglas, "plaintiffs bear the initial burden of establishing a prima facie case of discrimination." Udo v. Tomes, 54 F.3d 9, 12 (1st Cir.1995). "Once the plaintiff establishes a prima facie case, a presumption arises that the employer unlawfully discriminated against the plaintiff." Id. at 12. The employer must then rebut the presumption of discrimination by producing evidence "that the adverse employment actions were taken for a `legitimate, non-discriminatory reason.'" Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) (further quotation omitted)).⁴

The court has previously set forth that Nedder must show the following elements in order to make out a prima facie case of employment discrimination under the ADA: "(1) she was `disabled' as that term is defined by the ADA; (2) she was qualified, with or without accommodation, to do her job as an assistant professor of religious studies; (3) she was discharged; and (4) she was replaced by a non-disabled person." Nedder, supra, 908 F.Supp. at 74 (citing Sherman v. Optical Imaging Sys., Inc., 843 F.Supp. 1168, 1181 (E.D.Mich.1994)). Defendant's motion for summary judgment focuses solely on whether plaintiff has produced evidence sufficient to show that she is disabled under the ADA. Therefore, the court's inquiry will be limited to the first element of Nedder's prima facie case — whether she was disabled.

Title I of the ADA prohibits, inter alia, discrimination against "a qualified individual with a disability" based on such person's disability regarding a term or condition of employment. 42 U.S.C. § 12112(a).

Under the ADA,

The term "disability" means with respect to an individual —

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).⁵

An ADA plaintiff "must meet the threshold burden of establishing that [s]he is `disabled' within the meaning of the statute." Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1453-54 (7th Cir.1995) (citations omitted). "The inquiry is an individualized one, and must be determined on a case-by-case basis." Id. at 1454 (citations omitted). In this case, the plaintiff asserts that she is disabled in fact under definition (A). In the alternative, she asserts that Rivier regarded her as disabled under definition (C).

1. Disability in Fact

To establish a disability in fact, plaintiff must show three elements: (1) a physical or mental impairment (2) substantially limiting (3) a major life activity. 42 U.S.C. § 12102(2). Rivier assumes for purposes of its motion that plaintiff's morbid obesity is an impairment for purposes of the Act.⁶ The plaintiff avers that her obesity substantially limits her ability to walk and to work, both of which are characterized as "major life activities" under the EEOC regulations. See 29 C.F.R. § 1630.2(i). Thus, the issue before the court with respect to Nedder's actual disability claim concerns only the "substantial limitation" element.

Plaintiff's primary argument is that she is substantially limited in the major life activity of walking.⁷ The court has already had occasion to examine in great detail what constitutes a substantial limitation on the major life activity of walking, and incorporates by reference said discussion. See Nedder, supra, 908 F.Supp. at 75-76. To briefly summarize, a substantial impairment is established where the individual is "`either unable to perform, or significantly restricted as to the condition, manner or duration under which the individual can perform, a major life activity as compared to an average person in the general population.'" Id. at 75 (quoting Roth, supra, 57 F.3d at 1454 n. 12, 29 C.F.R. § 1630.2(j)(1)(ii)). Relevant to the consideration is the nature and severity of the impairment, its expected duration, and its expected permanent long-term impact. Id.

The regulations give the following examples to illustrate when an individual's ability to walk might be substantially limited:

[A]n individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking. An individual who uses artificial legs would likewise be substantially limited in the major life activity of walking because the individual is unable to walk without the aid of prosthetic devices.

29 C.F.R. app. § 1630.2(j).

As a general rule, "both the regulations and the [EEOC compliance] manual make clear...