Richardson v. Friendly Ice Cream Corp.

• Decision Date: 05 February 2010
• Docket Number: No. 08-2423.,08-2423.
• Citation: 594 F.3d 69
• Parties: Katharine RICHARDSON, Plaintiff, Appellant, v. FRIENDLY ICE CREAM CORPORATION, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

594 F.3d 69

Katharine RICHARDSON, Plaintiff, Appellant, v. FRIENDLY ICE CREAM CORPORATION, Defendant, Appellee.

No. 08-2423.

United States Court of Appeals, First Circuit.

Heard June 4, 2009.

Decided February 5, 2010.

Julie D. Farr, with whom Charles E. Gilbert was on brief, for appellant.

Christopher T. Vrountas, for appellee.

Before LYNCH, Chief Judge, EBEL^* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Katharine Richardson alleges that her former employer, appellee Friendly Ice Cream Corporation ("Friendly's"), discriminated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and the Maine Human Rights Act ("MHRA"), 5 Me.Rev.Stat. §§ 4551-4634, by failing to accommodate her disability and by terminating her employment because of that disability. The district court entered summary judgment for Friendly's, holding that Richardson is not covered by the ADA or the MHRA because she is not capable of performing the essential functions of her position, with or without a reasonable accommodation, and hence is not a "qualified individual." We affirm.

I.

Friendly's, a Massachusetts-based restaurant chain, hired Richardson as an assistant manager of its Ellsworth, Maine store in 2000. Richardson worked alongside one other assistant manager during the period of her employment. Both assistant managers reported to Tina Emery, the general manager of the Ellsworth restaurant, who in turn reported to Todd Mosher, the district manager. Between 2000 and 2006, Richardson performed both administrative and manual tasks as part of her job. Among other duties, she regularly interacted with customers, supervised other employees and inspected their work, carried plates to customers, ordered new supplies, unloaded new supplies as they were delivered, operated the grill and the deep-frying machine, and cleaned the restaurant. Because the general manager and the other assistant manager preferred to work the opening and closing shifts, Richardson typically worked the mid-day shift, which was the least physically demanding of the three shifts.

In January 2006, Richardson began to experience severe pain in her right shoulder. She claims, and Friendly's does not dispute, that the pain was caused by the manual tasks that she had been performing at work, such as working at the grill and scooping ice cream. When she reported her injury to Friendly's that same month, the company sent her to see a physician at Mednow Clinic in Ellsworth. The physician diagnosed Richardson's pain as shoulder impingement syndrome, prescribed an anti-inflammatory medication, and recommended that Richardson discontinue all grill work and other tasks that involved lifting objects heavier than ten pounds with her right arm.

Between January 2006 and September 2006, Richardson continued to work at Friendly's without missing any days. Although the pain in her shoulder impeded the full use of her right arm, she claims that she was able to modify her work behavior during that period to enable her to perform most of the tasks that she had previously performed. For example, when cooking French fries in the deep-frying machine, she would cook small quantities at a time and would remove the cooked product with tongs rather than by lifting the entire basket as she formerly did. She admits that she was unable to perform certain tasks such as mopping the floor and lifting heavy bags of trash, but she says that there were typically other employees on duty who were able to perform those tasks. She adds that she had been reprimanded before her injury for failing to delegate manual tasks to other restaurant employees.

In September 2006, Richardson took a leave of absence to undergo shoulder surgery. Following the surgery, Richardson continued to experience intense pain in her shoulder and was unable to return to work immediately. At that point, Friendly's workers' compensation administrator retained a nurse case manager, Debra Dwyer, to facilitate Richardson's recovery and return to work. Dwyer was in regular contact with Emery, the general manager, during the period after Richardson's surgery. Emery testified at her deposition that she and Dwyer discussed Richardson's anticipated return date, Richardson's anticipated medical restrictions, and certain accommodations and transitional job duties that might have enabled Richardson to work within her medical restrictions.

Based on Richardson's post-operative medical evaluations, Emery and Dwyer initially assumed that Richardson would be able to return to work near the end of October 2006. Richardson did not improve as expected, however. Her surgeon concluded that she had "no work capacity," and Richardson remained on leave throughout October and November. On December 7, the surgeon estimated that Richardson would be able to return to work on January 8, 2007. Dwyer gave that projected return date to Emery, who then conveyed the information to district manager Mosher.

Three days later, Mosher sent the following e-mail to Theresa Marino, a human resources manager at Friendly's corporate headquarters:

Theresa—

I'm sorry—but I need your help. Can you give us some guidance on Kathy Richardson? As you know she is the Manager from Ellsworth # 1241 that has been out with a shoulder injury from lifting French fry baskets.

She is supposed to be released the first week of Jan. after a second opinion last week revealed the opposite of what the original physician said.

I would prefer to not bring her back if at all possible (as she is just going to do the same thing in '07).

Can you help guide us on this?

P.S. Please don't cc the restaurant on any of this—as Tina Emery (GM) is on vacation.

Thanks!

Diana Beach, a representative from Friendly's compensation and benefits department, responded that same day:

She has reached the end of her FML [family and medical leave] with Friendly as of 12/3/06 which means that our obligation of leaving her job open has ended. Due to the fact that she is out on WC [workers' compensation], you may want to check with the legal department to see if you have to bring her back. I will be sending her out COBRA for her medical/dental insurance.

There is some dispute about the sequence of events that followed this exchange of e-mails. Friendly's claims that it decided to terminate Richardson's employment on December 14, 2006 because she had remained on leave beyond the time reserved for her by the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654. Diana Beach sent Richardson a letter that day notifying Richardson of her right to continue her group insurance coverage. Richardson acknowledges receiving the letter but says that she did not interpret it to be a notice of termination. When she questioned Emery and Beach about the letter, neither explained that she had been terminated. Dwyer also told Richardson that she and Emery continued to correspond about Richardson's condition after that date, giving Richardson the impression that she was still expected to return to work.

In any case, Richardson's physician finally signed a work release on January 4, 2007. Although he permitted her to return to Friendly's, he prohibited her from performing repetitive activity with her right arm and from lifting objects weighing more than five pounds. Richardson delivered the release to the Ellsworth restaurant that same day. Four days later, on January 8, Mosher telephoned Richardson to notify her that she had been terminated. According to Richardson, Mosher said: "Because you are still disabled and you have gone over your thirteen weeks of family medical leave, we choose to terminate you."

On January 17, Richardson filed a charge of discrimination with the Maine Human Rights Commission ("MHRC") and the Equal Employment Opportunity Commission ("EEOC"). She alleged in her charge that Friendly's reliance on the Family and Medical Leave Act was pretextual and that Friendly's discharged her solely because of her disability. The MHRC issued a right-to-sue letter, and on October 31, 2007 Richardson filed a complaint in Maine Superior Court asserting claims against Friendly's and its workers' compensation administrator for violation of the ADA and the MHRA and for tortious interference with contract. The defendants then removed the action to federal court.

Friendly's moved for summary judgment after the close of discovery, claiming that (1) Richardson was not eligible for relief under the ADA or MHRA because she had not shown that she was qualified for her position at the time of her discharge, and (2)she was terminated in accordance with Friendly's generally applicable leave policy rather than on the basis of disability. The motion was referred to a magistrate judge, who recommended that summary judgment be granted on the first ground. In a brief order, the district judge approved the magistrate judge's reasoning and granted Friendly's motion. Judgment was entered that same day,¹ and this appeal followed.

II.

Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's grant of summary judgment de novo, drawing all reasonable inferences in Richardson's favor. Franklin Memorial Hosp. v. Harvey, 575 F.3d 121, 125 (1st Cir.2009).

Title I of the ADA prohibits covered entities from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).² Richardson alleges that Friendly's discriminated against her on the basis of disability when it discharged her. In order to prevail on that claim at trial, she must show: (1) ...