SUMMARY JUDGMENT ORDER
JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
Craig Richardson worked as a driver and served as a union steward at the Portsmouth Naval Shipyard (Shipyard) in Kittery, Maine. His relationship with his supervisors was at times contentious, which Mr. Richardson attributes to his work on Equal Employment Opportunity complaints, his help in organizing an affinity group for deaf employees at the Shipyard, and various forms of impermissible discrimination on the part of his supervisors. Mr. Richardson has diabetes and narcolepsy, and because of the narcolepsy, the Shipyard physician disqualified him from driving commercial vehicles. Navy management later determined that he could not retain his position. He left the Shipyard, ultimately finding work as a railroad repairer at another Navy facility.
In this lawsuit, Mr. Richardson alleges disability discrimination on the basis of diabetes and narcolepsy, age discrimination on account of his supervisors' remarks about his retirement and their selection of a younger applicant for promotion, retaliation for his EEO complaints and affinity group activities, and failure to accommodate. Mr. Richardson moves for partial summary judgment on the narcolepsy discrimination
After parsing the voluminous, hotly contested record, the Court determines that Mr. Richardson has failed to generate a genuine dispute of material fact as regards the diabetes- and age-based discrimination claims, as the facts are too thin for a reasonable jury to conclude there was severe, pervasive harassment giving rise to a hostile work environment on either of these bases. Although Mr. Richardson can make out a prima facie case that the Navy failed to promote him on account of his age, he cannot overcome the Navy's legitimate, non-discriminatory reason with a showing of pretext. Mr. Richardson does, however, produce sufficient facts from which a reasonable jury could conclude that his supervisors retaliated against him for his protected conduct: the EEO complaints and the affinity group. Especially revealing is Mr. Richardson's account, which the Court accepts for the purposes of summary judgment, of his supervisors berating him in no uncertain terms at a meeting convened to discuss his protected conduct.
As a matter of law, the Court finds that the Navy was justified in disqualifying Mr. Richardson from driving commercial vehicles due to his narcolepsy diagnosis. Both Mr. Richardson and the Navy advanced cogent arguments supported by considerable authority on this point, and after due consideration, the Court reads the relevant First Circuit caselaw together with long-standing and recently reiterated agency guidance to arrive at its determination that the Navy acted permissibly in treating narcolepsy as a categorically disqualifying condition. Because the two claims are legally intertwined, this leaves no genuine dispute of material fact as to the narcolepsy-based disability discrimination and failure-to-accommodate claims.
In sum, what remains of this lawsuit is Mr. Richardson's retaliation claim.
I. PROCEDURAL POSTURE
On April 3, 2014, Plaintiff Craig Richardson brought suit against Defendant and Secretary of the Navy, Ray Mabus, Compl. and Demand for Trial by Jury (ECF No. 1), and the Navy filed its Answer on June 20, 2014. Answer (ECF No. 6). The parties subsequently agreed to seventy stipulated facts. Joint Stipulations (ECF No. 47) (Stip.).
A. Craig Richardson's Motion for Partial Summary Judgment
On September 17, 2015, Mr. Richardson moved for summary judgment as to Count I, adverse action constituting disability discrimination, with a supporting statement of material facts. Pl.'s Mot. for Partial Summ. J. with Incorporated Mem. of Law (ECF No. 49) (Pl.'s Mot.); id. Attach. 1 Pl.'s Statement of Undisputed Material Facts in Supp. of his Mot. for Partial Summ. J. (PSMF). On October 8, 2015, the Navy opposed Mr. Richardson's motion. Def.'s Resp. to Pl.'s Mot. for Partial Summ. J. (ECF No. 64) (Def.'s Resp.). That same day, it filed a reply to Mr. Richardson's statement of material facts, Def.'s Local Rule 56(c) Opposing Statement of Material Facts and Statement of Additional Facts at 1-7 (ECF No. 65) (DRPSMF), as well as a statement of additional material facts. Id. at 7-13 (DSAMF). Mr. Richardson replied to the Navy's opposition on October 22, 2015. Pl.'s Reply in Supp. of his Mot. for Summ J. (ECF No. 74) (Pl.'s Reply). He also filed a reply to the Navy's statement of additional material facts. Pl.'s Reply to Def.'s Opposing Statement of Material Facts and Pl.'s Reply to Def.'s Statement of Additional Material
B. The Navy's Motion for Summary Judgment
On September 17, 2015, the Navy moved for summary judgment with a supporting statement of material facts. Def.'s Mot. for Summ. J. with Incorporated Mem. of Law (ECF No. 50) (Def.'s Mot.); Statement of Undisputed Material Facts in Supp. of Def.'s Mot. for Summ. J. (ECF No. 51) (DSMF). On October 7, 2015, Mr. Richardson opposed the Navy's motion. Pl.'s Opp'n to Def.'s Mot. for Summ. J. with Incorporated Mem. of Law (ECF No. 63) (Pl.'s Opp'n). That same day, he filed a reply to the Navy's statement of material facts, id. Attach. 1 Pl.'s Resp. to Def.'s Statement of Material Facts and Pl.'s Statement of Additional Material Facts at 1-43 (ECF No. 63) (PRDSMF), as well as a statement of additional material facts. Id. at 43-48 (PSAMF). The Navy replied to Mr. Richardson's opposition on October 22, 2015. Def.'s Reply Br. in Supp. of Mot. for Summ. J. (ECF No. 76) (Def.'s Reply). It also filed a reply to Mr. Richardson's statement of additional material facts. Def.'s Resp. to Pl.'s Statement of Additional Material Facts (ECF No. 77) (DRPSAMF).
II. SUMMARY JUDGMENT FACTS
For coherence, the Court begins with the parties' stipulated facts as submitted. Next, it pieces together the facts submitted by the parties in their motions for summary judgment; the facts are copious and vigorously contested, and the Court has done its best to consolidate them into a single comprehensible volume. Where the parties have included stipulations in their statements of facts, the Court has kept them for context.
A. Stipulated Facts
1. Shipyard Command Structure and Mr. Richardson's Position
Multiple naval commands operate at the Portsmouth Naval Shipyard in Kittery, Maine, including NAVSEA (which commands surface-based naval activities), NAVSUB (which commands subsurface naval activities), NAVFAC (which operates and controls naval facilities), and BUMED
Mr. Richardson worked as a WG-7 Motor Vehicle Operator (MVO-7) in the Base Support Vehicles and Equipment (BSVE) Branch of the Public Works Department at the Portsmouth Naval Shipyard (Shipyard) from at least January 1, 2011, through May 3, 2014. Id. ¶ 5. From January 2011 through May 4, 2014, Mr. Richardson's chain of command was:
Id. ¶ 6. Mr. Richardson was the only MVO-7 in the BSVE Branch. Id. ¶ 7.
2. Craig Richardson's Narcolepsy Diagnosis and Informal Accommodation
Mr. Richardson's medical file maintained by Bureau of Medicine and Surgery, Navy and Marine Corps Public Health Center (BUMED) at the Shipyard clinic contained a May 5, 2008 letter authored by a personal physician of Mr. Richardson's, Dr. Lewis Golden, stating that Mr. Richardson "carries an unequivocal diagnosis of narcolepsy with cataplexy" and that he "represents no risk for his present work environment at the shipyard." Id. ¶¶ 8-9.
On March 28, 2011, Physician Assistant Renald Rouillard from the Shipyard clinic received a single page note from Dr. Donald Cvitkovich, Mr. Richardson's physician, discussing Mr. Richardson's narcolepsy, the treatment, and suggesting that the bus detail and HAZMAT vehicle movement be avoided as his situation is reassessed over the next six to nine months. Id. ¶ 10. That same day, the Shipyard clinic issued a Portsmouth Naval Shipyard Limited Duty Recommendation with the restriction: "No busses or HAZMAT vehicles. Next Op License PE to be scheduled with Dr. Longstaff"; these restrictions were recommended for nine weeks. Id. ¶ 11.
In or around April 2011, the BSVE Site Director at the time, Robert Landry, Mr. Richardson's second-line supervisor, contacted
3. Mr. Richardson's Letter of Reprimand and his Challenges to It
On January 16, 2013, Mr. Richardson received a letter of reprimand from the Deputy Public Works Officer. Id. ¶ 16; see id. Attach. 2 Letter of Reprimand (ECF No. 47). In response to the Letter or Reprimand, on January 28, 2013, Mr. Richardson submitted a second-step union grievance to Commander Brian Weinstein, the Public Works Director at the Shipyard, and Commander Weinstein denied Mr. Richardson's second-step grievance on March 19, 2013. Stip. ¶¶ 17-18; see id. Attach. 3 Second-Step Grievance Decision (ECF No. 47) (Second-Step Grievance Decision). On March 29, 2013, Mr. Richardson submitted a third-step grievance to the NAVFAC Mid-Atlantic Executive Officer, Captain P.J. Odenthal, and after a telephonic meeting with Mr. Richardson, Mr. Anderson, and Mr. O'Connor, Captain Odenthal denied Mr. Richardson's grievance on June 7, 2013. Stip. ¶¶ 19-20.
4. Christopher Palmer's Hiring
On September 20, 2013, NAVFAC announced an opening for a transportation equipment operations supervisor position, WS-5701-10, and the announcement was limited to current employees in the transportation division at the Shipyard and specified that any "[i]nterested employee should submit a statement of interest and current resume to Michelle Wintle-McMillan...." Id. ¶¶ 21-22. Before the publication of the job announcement and prior to receipt of the certification list, Russell Gagner — the selecting official — chose the interview panel of three persons and the questions to be asked of the candidates to be interviewed. Id. ¶¶ 24-26. After the interviews and the scoring of the applicants by the panel, Mr. Gagner identified Christopher Palmer as the selected candidate and Mr. Richardson as the alternate candidate should Mr. Palmer decline the position. Id. ¶¶ 27-32. On October 7, 2013, Ms. Wintle emailed Deputy Public Works Officer John Wyeth to see whether he concurred with the selection of Mr. Palmer, which he did, and the position was offered to and accepted by Mr. Palmer. Id. ¶¶ 33-34.
5. Mr. Richardson's Interactions with Captain Dale Harman, MD, of BUMED
On August 12, 2012, Navy Captain Dr. Dale Harman issued a Portsmouth Naval Shipyard Limited Duty Recommendation, and in doing so, he maintained Mr. Richardson's existing restriction: "No bus or hazmat vehicles. Otherwise fit for full duty." Id. ¶ 35.
On October 30, 2013,
6. Mr. Richardson's Loss of Driving Privileges
On January 13, 2014, Mr. Richardson brought an undated note from his personal physician, Dr. Cvitokivich. Id. ¶ 39; see id. Attach. 5 Dr. Cvitokivich Note (ECF No. 47). That same day, Dr. Harman informed Mr. Richardson that the Federal Motor Carrier Safety Administration's (FMCSA's) "Frequently Asked Questions" guidelines — a copy of which Dr. Harman provided to Mr. Richardson — recommend the disqualification of a commercial vehicle driver regardless of treatment because of the likelihood of excessive daytime somnolence. Stip. ¶¶ 40-41; see id. Attach. 6 FMCSA FAQs (ECF No. 47) (FMCSA FAQs). Dr. Harman rejected Dr. Cvitkovich's opinion that Mr. Richardson could drive without restrictions and concluded that if there was a diagnosis of narcolepsy, he could not issue Mr. Richardson a medical card. Stip. ¶¶ 42-43. Dr. Harman's January 13, 2014 office note cites the FMCSA FAQs and states that "patients with narcolepsy syndrome should not, therefore, be allowed to participate in interstate driving," id. ¶ 44, though he did not know how much interstate driving Mr. Richardson did. Id. ¶ 45. In response to Mr. Richardson stating to Dr. Harman that he would have his own physician sign the medical certificate card, Dr. Harman informed Mr. Richardson that "regardless of whether or not his physician signed the card, I was going to assure that he did not drive a commercial vehicle under a DOT/CMV [Commercial Motor Vehicle] license on the shipyard." Id. ¶ 46. No one from management had contacted Dr. Harmon about the quality of Mr. Richardson's driving; Dr. Harman had not been given a history from anyone that there was a problem with Mr. Richardson's performance as a driver; and Dr. Harman had no information that suggested to him that "things had become worse from when [Harman] saw [Richardson] in October 2013 and January 2014." Id. 47-49.
After the encounter with Mr. Richardson on January 13, 2014, Dr. Harman provided the completed Request for Physical Examination Results form for the medical surveillance program, MES 706, to Wayne Hennessey, the NAVFAC Site Safety Manager, and Ms. Wintle-McMillan, the NAVFAC LANT human resources specialist for staffing and retention assigned to the Shipyard's Public Works Department. Id. ¶ 50. MES 706 surveillance is a certification examination performed to certify that MVOs requiring a commercial driver's license (such as an MVO-7), meet the medical standards, including physical qualifications, established for that position. Id. ¶ 51. In that completed form, Dr. Harman indicated that Mr. Richardson was not qualified for the 706 stressor, stating he was "permanently not to operate a vehicle under DOT license on Shipyard"; the facsimile cover sheet from the Shipyard clinic also stated "(706/DOT Ops License) Permanently Not Qual. Per Cpt Harman."
7. NAVFAC's Response to Dr. Harman's Disqualification of Mr. Richardson
On January 13, 2014, Ms. Wintle-McMillan provided Mr. Richardson's 706 stressor disqualification document to his supervisors, including Stephen Cook, the BSVE Site Director. Id. ¶ 57. Commander Weinstein's superior in Norfolk, Virginia, rejected the option of placing Mr. Richardson on administrative leave. Id. ¶ 58. On January 16, 2014, Mr. Cook and Mr. Palmer spoke with Mr. Richardson and informed him that, because of his disqualification under the 706 stressor, he would not be able to drive government vehicles. Id. ¶ 59.
Steven Sawyer, the Reasonable Accommodation Program Manager for NAVFAC-LANT, was assigned Mr. Richardson's case. Id. ¶ 60. Mr. Richardson was directed to attend a medical surveillance program MES 712 (also called a "712 stressor"), a certification examination for driving government vehicles that do not require a commercial driver's license, and on January 27, 2014, Mr. Richardson saw Physician's Assistant Kevin Kelley for his 712 stressor. Id. ¶¶ 61-62. At that appointment, Mr. Kelley disqualified Mr. Richardson due to his narcolepsy and stated that Mr. Richardson could not drive any government vehicle. Id. ¶ 63. Dr. Harman discussed this conclusion with Mr. Kelley, and Dr. Harman agreed with it. Id. ¶ 64.
On January 27, 2014, Mr. Palmer gave Mr. Richardson a letter explaining the reasonable accommodation process. Id ¶ 65; see id. Attach. 7 Reasonable Accommodation Letter (ECF No. 47). Mr. Richardson's reasonable accommodation team comprised Mr. Sawyer, Mr. Palmer, Mr. Cook, Mr. Gagner, Commander Weinstein, Vikki Marshall-Barnes (NAVFAC MIDLANT Deputy EEO Officer), and Lynne Richesin-Ploufe (NAVFAC MIDLANT Labor and Employment Relations). Id. ¶ 66. On March 17, 2014, Mr. Palmer presented Mr. Richardson with formal notification of NAVFAC's inability to accommodate him. Id. ¶ 67.
On March 31, 2014, Mr. Richardson submitted a request for reassignment to another position at the Shipyard, at the Navy's facility in Kittery, Maine, or at one of the Navy's New Hampshire facilities. Id. ¶ 68. On April 1, 2014, Mr. Sawyer requested an updated resume from Mr. Richardson for the placement process. Id. ¶ 69. Mr. Richardson formally left NAVFAC and started working as a railroad repairer, WG-8, with NAVSEA on May 4, 2014. Id. ¶ 70.
B. The Parties' Statements of Fact
1. Shipyard Structure and Relevant Personnel
The Portsmouth Naval Shipyard in Kittery, Maine, ("Shipyard") is one of four public shipyards in the United States that perform overhauls and maintenance on the Navy's nuclear fleet. DSMF ¶ 1; PRDSMF ¶ 1. As a result, the Shipyard has significantly greater risks of catastrophic accident (due to the presence of nuclear reactors and fuel) and significantly
The senior NAVFAC official at the Shipyard is the Public Works Officer ("PWO"), an active-duty Naval position. DSMF ¶¶ 3-4; PRDSMF ¶¶ 3-4. Between December 2010 and July 2014, the Public Works Officer was Commander Weinstein. Id. Directly below the PWO is the Deputy Public Works Officer ("DPWO"), a position held at all relevant times by Mr. Wyeth. DSMF ¶ 5; PRDSMF ¶ 5. Directly below the DPWO is the Production Division Director; that position was held at all relevant times by Mr. Gagner, and included supervision of the Base Support Vehicles and Equipment (BSVE) Branch. DSMF ¶ 6; PRDSMF ¶ 6. Reporting to Mr. Gagner is the BSVE Site Director, who supervises the First-Level Transportation Equipment Operations Supervisor (WS-5701-10), who in turn supervises, among others, motor vehicle operators, including Mr. Richardson while he was employed as an Motor Vehicle Operator, WG 5703-07 ("MVO-7") in the Transportation Division. DSMF ¶ 7; PRDSMF ¶ 7.
2. Mr. Richardson's Employment Position
Mr. Richardson worked as a WG-7 Motor Vehicle Operator (MVO-7) in the Base Support Vehicles and Equipment (BSVE) Branch of the Public Works Department at the Portsmouth Naval Shipyard (Shipyard) from at least January 1, 2011, through May 3, 2014. Stip. ¶ 5. As an MVO-7, Mr. Richardson's position description was generally based on the United States Office of Personnel Management's general position description for motor vehicle operators, grade 7 (WG 5703-07). DSAMF ¶ 12; PRDSAMF ¶ 12.
DSAMF ¶ 13; PRDSAMF ¶ 13.
An MVO-7 at the Shipyard was required by position description, PD 1136A, to possess a valid Commercial Driver's License ("CDL") class "B" with air brake, passenger, tanker, and HAZMAT endorsements as a minimum, along with a Navy-issued OF-346 U.S. Government Motor Vehicle Operator's Identification Card, issued by
Excepting winter months with significant snow fall, where Mr. Richardson may have been able to spend time operating a skid steer, which does not require commercial driving privileges, the only other work that could be viewed to fall within his position description would be cleaning of the transportation shop and vehicles and local delivery of vehicles for vendors. DSAMF ¶ 22; PRDSAMF ¶ 22.
MES 706 surveillance is a certification examination performed to certify that MVOs requiring a CDL (such as an MVO-7) meet the medical standards, including physical qualifications, established for that position. DSMF ¶ 11; PRDSMF ¶ 11.
From about January 2011 until the end of his employment with NAVFAC, Mr. Richardson was a union steward for the Tidewater Federal Employees Metal Trades Council ("MTC Tidewater"), an affiliate of the AFL-CIO. DSMF ¶ 13; PRDSMF ¶ 13. While a union steward for MTC Portsmouth, Mr. Richardson had been allotted forty hours per week for union activities. DSMF ¶ 14; PRDSMF ¶ 14. However, MTC Tidewater was allotted two stewards for NAVFAC employees at the Shipyard, a steward and a chief steward, with the steward allotted eight hours a week for union activity and the chief steward eighteen hours per week for union activity. DSMF ¶ 15; PRDSMF ¶ 15.
At least as early as January 2011, conflicts arose between Mr. Richardson and NAVFAC management regarding Mr. Richardson's supposed overuse of union time and use of his time as an MTC Tidewater steward to engage in union activity for MTC Portsmouth, his former union. DSMF ¶ 17; PRDSMF ¶ 17.
3. NAVFAC's Informal Accommodation of Richardson's Narcolepsy
In or around April 2011, the BSVE Site Director at the time, Mr. Landry, Mr. Richardson's second-line supervisor, contacted Ms. Marshall-Barnes, a Naval Facilities Engineering Command (NAVFAC) Reasonable Accommodation Program Manager, and sought assistance in addressing Mr. Richardson's requested accommodation of no bus or HAZMAT duties due to his narcolepsy. Stip. ¶ 12.
Ms. Marshall-Barnes followed up with Mr. Landry, and Mr. Landry followed up with Mr. Richardson throughout 2011 and into 2012, but Mr. Richardson never submitted the necessary RA forms. DSMF ¶ 20; PRDSMF ¶ 20. That informal accommodation continued until January 13, 2014, when Mr. Richardson was disqualified by Dr. Harman, MD, of BUMED, from driving commercial vehicles on the Shipyard due to his narcolepsy diagnosis. DSMF ¶ 21; PRDSMF ¶ 21.
4. Mr. Richardson's Interactions with Jim Pickering
In December 2012, Jim Pickering began serving as BSVE Site Director, Richardson's second-line supervisor. Stip. ¶ 6.
At some point in late 2012 or early 2013, Mr. Pickering had an informal discussion with Mr. Richardson about their respective retirement plans as they were of similar age, and Mr. Pickering suggested to Mr. Richardson that he retire. DSMF ¶ 23; PRDSMF ¶ 23; PSAMF ¶ 132; DRPSAMF ¶ 132.
Mr. Richardson claims that, while Mr. Pickering was filling in for his predecessor, Mr. Landry, in 2012, he stated to Mr. Richardson: "When I take over this job, there's a new guy in town, and your union activities as you guys know it is done. And I will be dishing out the appropriate — what you're going to do, when you're going to do it, how you're going to do it." DSMF ¶ 25; PRDSMF ¶ 25. Mr. Richardson also claims — and Mr. Pickering denies — that Mr. Pickering asked him, on an unspecified
On around December 20, 2012, during a meeting regarding EEO Complaints, attended by Mr. Richardson, Mr. Pickering, Mr. Anderson, Chris Palmer (then-Transportation Supervisor), Craig Mason (NAVFAC Labor Relations), and Mr. Gagner, Mr. Pickering said: "Things are going to be different — we're not doing this shit anymore." DSMF ¶¶ 27-28; PRDSMF ¶¶ 27-28; PSMAF ¶ 130; DRPSAMF ¶ 130.
On about December 26, 2012, Mr. Pickering heard Mr. Richardson over the radio telling the dispatcher that he had just completed a job at Building 300 and was taking a bathroom break. DSMF ¶ 29; PRDSMF ¶ 29.
During the summer of 2013, Mr. Richardson was taking a break due to a dip in his blood sugar, and Mr. Pickering came out and yelled and screamed at him that there was not time for breaks and that Mr. Richardson needed to be working. DSMF ¶ 34; PRDSMF ¶ 34.
5. Letter of Reprimand for Inappropriate Conduct and Misuse of Official Time
On January 16, 2013, Mr. Richardson received a letter of reprimand (LOR) from the Deputy Public Works Officer. Stip. ¶ 16; see id. Attach. 2 Letter of Reprimand (ECF No. 47). According to the LOR, the first reason for the reprimand was that between December 3, 2012, and December 6, 2012, Mr. Richardson engaged in union activities for MTC Portsmouth bargaining unit members despite the fact that he was a steward for MTC Tidewater, a separate bargaining unit from MTC Portsmouth, and despite the fact that NAVFAC management had instructed Mr. Richardson specifically on multiple occasions that he could not use official time to engage in union activities for MTC Portsmouth. DSMF ¶ 40; PRDSMF ¶ 40.
According to Mr. Richardson, he was contacted by Penny Coombs of HRO Groton and told that there was a client who went through mediation, and there was going to be a settlement. PSAMF ¶ 134; DRPSAMF ¶ 134.
Mr. Richardson also received the LOR on January 16, 2013, for misuse of official time during the week ending December 8, 2012, during which Richardson was required to work forty-four hours. DSMF ¶ 44; PRDSMF ¶ 44.
Mr. Richardson believes that Mr. Blanchette was working with Mr. Wyeth to try and find something that Mr. Richardson was doing wrong in his representational duties. PSAMF ¶ 133; DRPSAMF ¶ 133. Mr. Richardson also represented employees in their EEO complaints; this EEO time did not count against union time. PSAMF ¶ 135; DRPSAMF ¶ 135. In or about 2012, Mr. Richardson stepped in to help a fellow employee, David Brown, who was profoundly deaf and whose disability presented him with substantial challenges. PSAMF ¶ 142; DRPSAMF ¶ 142.
In response to the January 16, 2013 LOR, on January 28, 2013, Mr. Richardson submitted a second-step union grievance to Commander Weinstein, the Public Works Director at the Shipyard, and Commander Weinstein denied Mr. Richardson's second-step grievance on March 19, 2013. Stip. ¶¶ 17-18; see id. Attach. 3 Second-Step Grievance Decision (ECF No. 47). On March 29, 2013, Mr. Richardson submitted a third-step grievance to the NAVFAC Mid-Atlantic Executive Officer, Captain P.J. Odenthal, and after a telephonic meeting with Mr. Richardson, Mr. Anderson, and Mr. O'Connor, Captain Odenthal denied Mr. Richardson's grievance on June 7, 2013. Stip. ¶¶ 19-20.
6. Mr. Gagner's Sole Reference to Mr. Richardson's Retirement
Mr. Gagner knew Mr. Richardson's age and his date of birth in 1952.
7. NAVFAC's 2013 Hiring of the Transportation Supervisor Position
On September 20, 2013, NAVFAC announced an opening for a transportation equipment operations supervisor position, WS-5701-10, and the announcement was limited to current employees in the transportation division at the Shipyard and specified that any "[i]nterested employee should submit a statement of interest and current resume to Michelle Wintle-McMillan...." Stip. ¶¶ 21-22. The announcement was emailed to all transportation division employees with a valid email account, including Mr. Richardson, and was posted in Building 154, the transportation shop. DSMF ¶ 52; PRDSMF ¶ 52. Before the publication of the job announcement and prior to receipt of the certification list, Mr. Gagner — the selecting official — chose the interview panel of three persons and the questions to be asked of the candidates to be interviewed. Stip. ¶¶ 24-26.
At 1:11 pm on October 1, 2013, Ms. Wintle — who is not within the same command or supervisory structure as Mr. Wyeth or Mr. Gagner, neither of whom has supervisory authority over her — emailed to Mr. Gagner the certification list of qualified employees to be interviewed, which was limited to Robert Creamer, David Martino, and Christopher Palmer. DSMF ¶¶ 53-54; PRDSMF ¶¶ 53-54. Ms. Wintle did not include Mr. Richardson on the first certification list because she had not received Mr. Richardson's resume and statement of interest. DSMF ¶ 55; PRDSMF ¶ 55.
Shortly after receiving the initial certification list, Mr. Gagner contacted Ms. Wintle and told her that Mr. Richardson had told him that he was interested in the first-line supervisor position. DSMF ¶ 56; PRDSMF ¶ 56.
The interviews occurred on October 3, 2013. DSMF ¶ 58; PRDSMF ¶ 58.
After the interviews and the scoring of the applicants by the panel, Mr. Gagner
8. Mr. Richardson's Loss of Privilege to Drive U.S. Government Vehicles
On October 30, 2013, Dr. Harman — MD of the Shipyard clinic, which is within the Naval Health Clinic New England under the command of BUMED — met with Mr. Richardson to conduct his physical examination as part of the process for, among other things, renewing Mr. Richardson's Department of Transportation (DOT) medical examiner's certification to operate commercial vehicles. Stip. ¶ 36.
Dr. Harman, who had started working in the Shipyard clinic on about May 2012, had seen Mr. Richardson twice prior to the October 30, 2013 examination. DSMF ¶ 62; PRDSMF ¶ 62.
The first visit, on August 21, 2012, was for a lower back strain, with Dr. Harman completing a limited duty recommendation form, finding Mr. Richardson fit for duty with the previous restriction of no HAZMAT or bus driving for an unrelated medical condition. DSMF ¶ 63; PRDSMF ¶ 63. Although Dr. Harman maintained Mr. Richardson's existing HAZMAT/bus restriction, he was unaware why the restriction was in place, was not aware of Richardson's narcolepsy diagnosis, and was not aware that Mr. Richardson was an MVO. DSMF ¶ 64; PRDSMF ¶ 64.
Mr. Richardson's second visit with Dr. Harman, on October 29, 2012, was for Mr. Richardson's annual asbestos surveillance examination. DSMF ¶ 66; PRDSMF ¶ 66.
After initially meeting with Mr. Richardson on October 30, 2013, for his MES 706 surveillance examination, Dr. Harman released Mr. Richardson without limitations because Dr. Harman was aware that Mr. Richardson's commercial driving certificate had expired and assumed he would have informed his supervisors and would not be driving. DSAMF ¶ 1; PRDSAMF ¶ 1
On January 13, 2014, Mr. Richardson returned for a follow-up of his medical surveillance program MES 706 with Dr. Harman. DSMF ¶ 72; PRDSMF ¶ 72. Mr.
Dr. Harman was not certified by the FMCSA to conduct medical examinations on January 13, 2014. PSMF ¶ 8; DRPSMF ¶ 8.
The United States Department of Transportation, Federal Highway Administration, in its July 1988 Conference on Neurological Disorders and Commercial Drivers, specifically recommended:
DSAMF ¶ 3; PRDSAMF ¶ 3.
Dr. Harman had seen no specific incidences that suggested there was a problem with the restriction of no driving HAZMAT or buses — which had been in place since 2011 — being adhered to or posing a threat to anyone. PSMF ¶ 9; DRPSMF ¶ 9.
After the meeting, Dr. Harman provided the completed Request for Physical Examination Results form for the medical surveillance program MES 706 to Wayne Hennessey, the NAVFAC Site Safety Manager and Ms. Wintle, the NAVFAC LANT human resources specialist for staffing and retention assigned to the Shipyard's Public Works Department. DSMF ¶ 76; PRDSMF ¶ 76; Stip. ¶ 50. That form, by which a command at the Shipyard requests a medical surveillance examination, specifically requires that the results section be completed by "Branch Medical Clinic, Portsmouth, NH," which refers to the Shipyard clinic. DSMF ¶ 77; PRDSMF ¶ 77. In that section, Dr. Harman indicated that Mr. Richardson was not qualified for the 706 stressor, stating "permanently not to operate a vehicle under DOT license on Shipyard." Id.; Stip. ¶ 52. The facsimile cover sheet from the Shipyard clinic reiterated that point, stating "(706/DOT Ops License) Permanently Not Qual. Per Cpt Harman." DSMF ¶ 77; PRDSMF ¶ 77; Stip. ¶ 53.
Prior to January 13, 2014, some or all of Mr. Richardson's supervisors were aware of his narcolepsy diagnosis, but Mr. Richardson was allowed to drive because BUMED personnel at the Shipyard clinic had previously provided him with a medical examiner's certificate despite his diagnosis. DSMF ¶ 78; PRDSMF ¶ 78; PSMF ¶ 1; DRPSMF ¶ 1.
At 6:23 am, January 14, 2014, Ms. Plouffe-Richesin, as requested, sent an email to Mr. Cook with a draft letter informing Mr. Richardson that he was to be put on Administrative Leave and prohibited him from returning to the work site; the email was copied to Supervisors: Mr. Gagner, Mr. Wyeth, and Commander Weinstein. PSMF ¶ 16; DRPSMF ¶ 16.
Upon receiving the January 13, 2014 706 stressor disqualification and directive to prohibit Mr. Richardson from driving commercial vehicles on the Shipyard, Mr. Cook (Mr. Richardson's second-line supervisor) and Mr. Palmer (Mr. Richardson's first-line supervisor) met with Ms. Wintle to consider how to address the situation. DSMF ¶ 80; PRDSMF ¶ 80. On January 14, 2014, Mr. Richardson took annual or
On January 16, 2014, Mr. Cook e-mailed the five levels of managers of Mr. Richardson, NAVFAC Human resources, and NAVFAC's licensing office to address several questions, including: "Why is the Medical Examiner's Certificate for PWD — ME MVO's only available from [Naval Base Health Clinic], and not from outside medical professional?" PSMF ¶ 23; DRPSMF ¶ 23.
Id. Mr. Cook's emails provided three different attachments to the recipients: (1) The Medical Surveillance Procedures Manual and Medical Matrix; (2) Industrial Hygiene Survey of Naval Facilities, Public Works Department — Maine 2013; and (3) excerpts from the OPNAVINST 5100.23G (30DEC05). Id.
On January 16, 2014, Mr. Cook and Mr. Palmer spoke with Mr. Richardson and informed him that, because of his disqualification under the 706 stressor, he would not be able to drive government vehicles. Stip. ¶ 59; DSMF ¶ 87; PRDSMF ¶ 87. Prior to the loss of his commercial driving privileges, much of Mr. Richardson's time not spent on union or EEO activities was spent either driving commercial vehicles or being on call to drive commercial vehicles. DSAMF ¶ 18; PRDSAMF ¶ 18.
In a follow up email, on January 21, 2014, Dr. Harman reiterated his recommendation to NAVFAC that based on Richardson's permanent medical condition, he not be certified to hold a CDL. DSMF ¶ 91; PRDSMF ¶ 91. On January 24, 2014, Dr. Harman provided specific information to NAVFAC human resources personnel regarding FMCSA guidance documents that specifically recommend disqualification of any commercial vehicle driver with a narcolepsy diagnosis, regardless of treatment; Dr. Harman did not, however, consider FAQ number twenty-six when he decided to not recertify Mr. Richardson. DSMF ¶ 92; PRDSMF ¶ 92; PSMF ¶ 43; DRPSMF ¶ 43.
9. Navy Communications with the Maine Bureau of Motor Vehicles
Beginning on January 16, 2014, Mr. Richardson told Mr. Cook and Mr. Palmer that the Maine BMV had cleared him to drive despite his narcolepsy and that such clearance overrode Dr. Harman's 706 stressor disqualification. DSMF ¶ 95; PRDSMF ¶ 95. They asked for documentation from the BMV to that effect and were told by Mr. Richardson that there was no documentation and that Mr. Cook and Mr. Richardson had to call the BMV's medical division for that information. DSMF ¶ 96; PRDSMF ¶ 96.
Until January 28, 2014, management understood that Mr. Richardson had a valid license from the State of Maine and that there was not an issue with this license. PSMF ¶ 15; DRPSMF ¶ 15.
Shortly thereafter, at approximately 10:00 am on January 28, 2014, and on Mr. Richardson's suggestion, Mr. Richardson and Mr. Palmer called the BMV using the speakerphone in Mr. Richardson's office. DSMF ¶ 99; PRDSMF ¶ 99. On that call,
On January 28, 2014, after the Maine BMV learned that Mr. Richardson had narcolepsy, the BMV sent Mr. Richardson a "Notice of Suspension and Opportunity for Hearing," stating that Mr. Richardson's CDL would be suspended on February 28, 2014. DSMF ¶ 116; PRDSMF ¶ 116.
10. 2014 Accommodation Process
At 10:08 am, January 14, 2014, Ms. Plouffe-Richesin sent an e-mail to Mr. Sawyer, the Reasonable Accommodation Program Manager in the Norfolk, VA, EEO office stating:
PSMF ¶ 18; DRPSMF ¶ 18. During the time of Mr. Richardson's 2014 reasonable accommodation request, the Shipyard's only MVO-6 employee, Vernon Brown, who did not have a commercial driver's license, generally drove the vehicles under 26,000 pounds. DSAMF ¶ 17; PRDSAMF ¶ 17.
At 9:06 am, January 15, 2014, Mr. Sawyer emailed Mr. Palmer, explaining reasonable accommodation: "I recommend you have this interactive dialogue with Mr. Richardson to discuss the BUMED medical and to offer him RA." PSMF ¶ 19; DRPSMF ¶ 19.
On about January 16, 2014, Mr. Richardson's supervisors invited him to initiate a request for reasonable accommodation ("RA") of his narcolepsy. DSMF ¶ 104; PRDSMF ¶ 104.
As part of the RA process, Mr. Richardson was directed to attend a medical surveillance program MES 712 (also called a "712 stressor"), a certification examination for driving government vehicles that do not require a commercial driver's license. Stip. ¶ 61; DSMF ¶ 106; PRDSMF ¶ 106. Mr. Richardson attended a 712 stressor examination on January 21, 2014, but was disruptive and left prior to completion of the examination, ultimately being examined on January 27, 2014, by PA-C Kevin Kelley at BUMED. Stip. ¶ 62; DSMF ¶ 107; PRDSMF ¶ 107. A 712 stressor was potentially relevant to the RA process as it would determine whether Mr. Richardson could drive any government vehicles. DSMF ¶ 108; PRDSMF ¶ 108.
On January 27, 2014, Mr. Palmer gave Mr. Richardson a letter explaining the reasonable accommodation process and paperwork to be completed to request a reasonable accommodation. PSMF ¶ 27; DRPSMF ¶ 27.
Mr. Richardson was disqualified under the 712 stressor, also because of his narcolepsy, further limiting the work he could perform within his job description. Stip. ¶ 63; DSMF ¶ 109; PRDSMF ¶ 109. However, Richardson's RA team ultimately determined that, even if Richardson had passed the 712 stressor, NAVFAC would have been unable to accommodate him as an MVO-7. DSMF ¶ 109; PRDSMF ¶ 109.
Mr. Cook was given a copy of a Maine BMV Certificate of Examination completed by Dr. Cvitkovich on January 30, 2014, shortly after he completed it, but the Certificate was not given to Dr. Harman. PSMF ¶ 30; DRPSMF ¶ 30.
On March 31, 2014, Mr. Richardson submitted a request for reassignment to another position at the Shipyard, at the Navy's facility in Portland, Maine, or at one of the Navy's New Hampshire facilities.
On February 5, 2015, without informing Mr. Richardson or obtaining his permission, Mr. Cook e-mailed Ms. Ezzell, employed by the Maine BMV, the Request for Medical Examination form completed by Dr. Harman on January 14, 2014, in which Dr. Harman wrote that Mr. Richardson was permanently not to operate a vehicle under DOT license on the Shipyard and also attached the Request for Medical Examination form completed by Physician Assistant Kevin Kelley on January 27, 2014, in which Mr. Kelley wrote that Mr. Richardson "cannot drive any government
Mr. Richardson submitted a request for reasonable accommodation that included Dr. Cvitkovich's completion of the activity sheet that the Navy had asked Mr. Richardson to have completed as part of his request for reasonable accommodation. PSMF ¶ 33; DRPSMF ¶ 33. On the completed form, Dr. Cvitkovich said Mr. Richardson could drive eight hours a day. PSMF ¶ 34; DRPSMF ¶ 34. This February 11, 2014 form completed by Dr. Cvitkovich was not given to Dr. Harman, though Dr. Harman contends that receipt of that document would have had no impact on his decision to disqualify Mr. Richardson based on his narcolepsy diagnosis. PSMF ¶ 35; DRPSMF ¶ 35.
Mr. Richardson's request for reasonable accommodation was denied because his primary role was to operate a commercial vehicle. PSMF ¶ 38; DRPSMF ¶ 38.
Mr. Richardson has, in sum, alleged as acts of retaliation four instances of alleged mistreatment by Mr. Pickering, the letter of reprimand, failure to promote, loss of driving privileges, and the communications with the state BMV. DSMF ¶ 124; PRDSMF ¶ 124.
III. PARTIES' POSITIONS
A. Craig Richardson's Motion for Partial Summary Judgment
1. Mr. Richardson's Motion
Mr. Richardson asserts a claim under the Rehabilitation Act, 29 U.S.C. § 794, arguing that he can make a prima facie showing "(1) that he is disabled under the Act; (2) that he was qualified to perform the essential functions of the job, with or without a reasonable accommodation; and (3) the employer took an adverse employment action against him due to his disability." Pl.'s Mot. at 9 (citing Ríos-Jiménez v. Principi, 520 F.3d 31, 40-41 (1st Cir. 2008)). Under the first prong, Mr. Richardson claims that "[i]t cannot be disputed that the defendant regarded Mr. Richardson as disabled because Dr. Harman and his supervisors perceived his narcolepsy diagnosis as substantially limiting his ability to engage in the major life activity of working." Id. at 10. Under the second prong, he insists that for three years, he had been adequately performing his job responsibilities and had not received complaints about his driving; that he rarely drove vehicles, instead focusing on union matters, so maintaining a medical certification for interstate driving was not an essential function under the law; and that even if maintaining a certification for interstate driving were an essential function, he would be able to do so given his physician's opinion that medication had controlled his narcolepsy to the extent that he could drive without restriction. Id. at 15. Mr. Richardson also says that Dr. Harman "misinterpreted and misapplied the FMCSA regulations" by, for instance, reading advisory criteria as if they were binding and ignoring sections of those criteria in conflict with his disqualification decision. Id. at 16-19. From Mr. Richardson's perspective, his supervisors ratified and furthered Dr. Harman's discrimination, id. at 20-23, and the Navy failed to conduct an individualized assessment of his disability as required by the Rehabilitation Act. Id. at 23-28. Finally, under the third prong, Mr. Richardson contends that there is a direct causal relationship between his disability and his termination — i.e., the Navy explicitly fired him because of his narcolepsy; given this direct relationship, he sees no need to reach the McDonnell Douglas burden-shifting regime. Id. at 28-29.
2. The Navy's Opposition
The Navy agrees that Ríos-Jiménez's three-part test sets out the correct standard. Def.'s Resp. at 8. It elaborates on the test's burden-shifting regime: "[i]f the plaintiff can prove the first two factors," i.e., (1) disability within the meaning of the statute and (2) qualification to perform the job with or without reasonable accommodation, then "the employer [can] articulate a legitimate, non-discriminatory reason for the employment decision and [can] produce credible evidence to show that the reason advanced was the real reason." Id. (citing Ríos-Jiménez, 520 F.3d at 41). If the employer does so, according to the Navy, the burden shifts back to the plaintiff "to establish that the proffered reason is pretext intended to conceal discriminatory intent." Id. (citing Ríos-Jiménez, 520 F.3d at 41).
The Navy focuses on the second prong: qualification/essential function. To be
It also takes the position that an individualized assessment was not required, as the agency had a safety standard and there was no way that Mr. Richardson could meet that standard, id. at 23 (citing Buck v. U.S. Dep't of Transp., 56 F.3d 1406, 1408 (D.C.Cir.1995)), and this is an instance in which the Navy was entitled to "proceed by way of general rule of principle." Id. at 24 (quoting Ward v. Skinner, 943 F.2d 157, 162 (1st Cir.1991)). It nonetheless submits that in some respects Dr. Harman did conduct an individualized assessment by "consider[ing] the specific conditions of Richardson's case." Id. at 29. Finally, the Navy clarifies that it reassigned Mr. Richardson on account of his disqualification, not his narcolepsy, id. at 29, and seeks to distinguish Mr. Richardson's caselaw. Id. 25-28.
3. Mr. Richardson's Reply
Mr. Richardson likewise "focuses solely on the disputed aspect of his narcolepsy disability discrimination claim: whether Mr. Richardson is a qualified individual under the Rehabilitation Act." Pl.'s Reply at 2. He first disputes the notion that "[m]aintaining a medical certification for interstate driving under the DOT regulations" was an essential function of his position. Id. He urges the Court to consider "what [his] job responsibilities actually were" rather than the "MVO-7 job description," id. at 3, and says that he spent "the majority" of his time on union and Equal Employment Opportunity (EEO) matters — "not on driving activities." Id. Moreover, even when he did drive, he claims that "very infrequently would he ever have to leave the Shipyard to engage in interstate driving that required a CDL [commercial driver license]." Id. at 4.
Next, he contends with the Navy's argument that FMSCA regulations "permit the automatic CDL disqualification for individuals with a narcolepsy diagnosis without an individualized assessment." Id. at 5. Though the Navy premises its argument on the regulation's "plain language," "[n]owhere in [49 C.F.R. § 391.41(b)(8)] does it state that narcolepsy, like epilepsy, is an automatically disqualifying diagnosis." Id. Rather, to decide whether narcolepsy indeed disqualifies, Mr. Richardson submits that "employers must engage in an individualized assessment to determine whether the condition is likely to cause a loss of consciousness or ability to control a motor vehicle." Id. This position, as Mr. Richardson sees it, is consistent with the United States Supreme Court's holding in Albertson's,
Mr. Richardson closes by deploying a squadron of counterarguments. He emphasizes that FMCSA guidance is merely advisory and that the Navy misreads the guidance anyway. Id. at 6-7. He casts a recent FMCSA decision rejecting an exemption request as beside the point on the grounds that (1) he did not request an exemption, (2) the decision constitutes non-binding guidance, and (3) it post-dates the events underlying this dispute. Id. at 8. He returns to his core point, i.e., the failure to conduct an individualized assessment violated the Rehabilitation Act, and attempts to distinguish the Navy's cases as "addressing conditions that are directly listed as disqualifying in the DOT regulation." Id. at 10 (citing Albertson's, 527 U.S. at 559, 119 S.Ct. 2162; Ward, 943 F.2d at 158; Buck, 56 F.3d at 1407). Finally, he alleges that Dr. Harman did not conduct an individualized assessment and that the Navy removed him from his position on account of his narcolepsy. Id. at 11.
B. The Navy's Motion for Summary Judgment
1. The Navy's Motion
The Navy moves to dismiss all four counts alleged in Mr. Richardson's complaint.
a. Count I: Disability Discrimination
After setting out a five-part test for disability discrimination, Def.'s Mot. at 18 (citing McDonough v. Donahoe, 673 F.3d 41, 46 (1st Cir.2012)), the Navy turns to the two instances in which Jim Pickering — Mr. Richardson's second-line supervisor — allegedly discriminated against Mr. Richardson for his diabetes: (1) "his low blood sugar event in the summer of 2013, where Pickering called an ambulance"; (2) "the December 26, 2012 exchange with Pickering at the Shipyard power plant." Id. Regarding the 2012 incident, the Navy contends that Mr. Pickering did not hear Mr. Richardson's reference to his diabetes, so the claim must fail the prong of the McDonough test that requires the employer's conduct to be based on disability. Id. (citing McDonough, 673 F.3d at 46). Regarding the 2013 incident, the Navy does not consider Mr. Richardson's claim sufficient, as in its view "[s]ignificantly more severe, pervasive and threatening conduct is required under First Circuit precedent before entertaining the possibility of a hostile work environment." Id. at 19 (citing Quiles-Quiles v. Henderson, 439 F.3d 1, 3-4 (1st Cir.2006)).
b. Count II: Age Discrimination
The Navy concedes that Mr. Richardson's coworkers mentioned retirement in conversation with him on three occasions in late 2012 and early 2013, but it perceives "no apparent nexus between [Mr. Richardson's] age and his perceived mistreatment." Id. at 20. Moreover, it argues that these three conversations were "innocuous" and do not even approach "conduct `severe or pervasive enough to be actionable'" under a harassment theory. Id. at 21 (quoting Rodriguez-Machado v. Shinseki, 700 F.3d 48, 49 (1st Cir.2012)). With regard to its promotion of Mr. Palmer over Mr. Richardson, another potential mistreatment theory, the Navy says that "[it] has articulated clearly legitimate, non-discriminatory reason[s] for choosing Palmer." Id. at 22.
c. Count III: Retaliation
After setting out a three-part test and burden-shifting regime, id. (quoting Palmquist v. Shinseki, 689 F.3d 66, 70 (1st Cir.2012)), the Navy runs through the incidents comprising Mr. Richardson's retaliation claim; all five incidents allege the Navy retaliated against Mr. Richardson
First, the Navy argues that Mr. Pickering's treatment of Mr. Richardson did not constitute an adverse action when placed in context: "A combative ... union representative having four verbal altercations with a quick-tempered, vocal supervisor, in an environment in which there was constant labor/management conflict, hardly can be viewed as `severe or pervasive harassment that materially altered the conditions of employment.'" Id. at 23 (quoting Noviello v. City of Bos., 398 F.3d 76, 91 (1st Cir.2005)). It also argues that causation is lacking because, according to the Navy, Mr. Pickering treated all employees roughly and so his rough treatment of Mr. Richardson cannot be tied, even by implication through temporal proximity, to the employee's protected activities. Id. at 24. The Navy next contends that (1) the letter of reprimand for participation in union activities on behalf of another union for which he was unauthorized to use official union time and (2) the promotion of Mr. Palmer over Mr. Richardson were "not causally connected to protected activity" and were issued for "legitimate, non-retaliatory reason[s]." Id. at 24-27. Fourth, the Navy maintains that the revocation of Mr. Richardson's driving privileges cannot premise a retaliation claim, as Dr. Harman — who disqualified Mr. Richardson — was unaware of his protected activity, and so there is "a lack of `competent evidence that the alleged retaliators knew of the plaintiff's protected activity and that a retaliatory motive played a part in the adverse employment actions alleged.'" Id. at 27 (quoting Alvarado v. Donahoe, 687 F.3d 453, 459 (1st Cir.2012)). Finally, the Navy urges that calling the Maine BMV cannot premise a retaliation claim, as Mr. Richardson invited Navy officials to inquire about the status of his license and, later, called the BMV himself to inform them of his narcolepsy diagnosis; thus, from the Navy's perspective, the BMV's subsequent Notice of Suspension was Mr. Richardson's own doing. Id. at 28-29.
d. Count VI: Failure to Accommodate
The Navy sees Mr. Richardson's failure to accommodate claim as meritless, pointing out that "to meet the essential functions of his position Richardson had to be able to drive commercial vehicles. To allow Richardson to do so with a narcolepsy diagnosis would have required NAVFAC to disregard both BUMED's disqualification and the specific and recently reaffirmed guidance of the FMCSA...." Id. at 30. Given that the requested accommodation must be "feasible" and that Mr. Richardson requested an accommodation that violated federal safety recommendations as well as internal safety and licensing requirements, the Navy says accommodation on these facts would have been unreasonable. Id. (quoting Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121,136 (1st Cir.2009)).
2. Mr. Richardson's Opposition
Mr. Richardson opposes the Navy's motion for summary judgment, which he addresses count by count.
a. Count I: Disability Discrimination
For narcolepsy-based disability discrimination, Mr. Richardson rests on the arguments he made in his own partial motion for summary judgment. Pl.'s Reply at 16; see supra Section III.A.1. For diabetes-based disability discrimination, Mr. Richardson mentions two incidents — one involving Mr. Richardson taking a break, the other resulting in him having a "diabetic attack," both allegedly precipitated by Mr. Pickering — that he considers "extremely serious and egregious" and that "[a]t the very least" present a question for the jury. Id. at 16-18.
b. Count II: Age Discrimination
Mr. Richardson looks at "the totality of [his] workplace circumstances." Id. at 18. Several remarks about retirement, as well as the promotion of a person thirty years his junior, convince Mr. Richardson that there is "sufficient evidence [of age discrimination] from which a reasonable jury could conclude that the offensive conduct `is severe and pervasive enough to create an objectively hostile or abusive work environment...." Id. at 19 (quoting Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607, 613 (1st Cir.2000)).
c. Count III: Retaliation
Under the first prong of the Palmquist test, Mr. Richardson notes that the Navy "does not dispute that, beginning in 2012, [he] was engaged in protected activity — aiding Mr. Brown and others in their EEO claims, filing his own EEO claim, and advocating for the Affinity Group." Id. The second two prongs are adverse action and causal connection between the protected activity and the adverse action. Id. (quoting Palmquist, 689 F.3d at 70). According to Mr. Richardson, "[his] supervisors, including Mr. Pickering, Mr. Gagner, and Mr. Wyeth, were angry at Mr. Richardson's involvement in this protected activity and made his working conditions hostile as a result." Id. at 20. He then catalogues the instances of alleged hostility involving his supervisors and argues that "individually or in the aggregate, it is apparent that Mr. Richardson has established his retaliation claim, or, at the very least, there is an issue of material fact such that the question is one better left to the jury." Id. at 20-23 (citing Tobin, 553 F.3d at 130).
d. Count IV: Failure to Accommodate
Here, Mr. Richardson again relies on arguments made in his partial motion for summary judgment, id. at 23; see supra Section III.A.1, and adds that "[he] asked for but received no help after he submitted his reasonable accommodations request; instead, he was told that he had 15 days to find a job." Id.
3. The Navy's Reply
On Count I, the Navy argues that the two incidents referenced by Mr. Richardson regarding his diabetes disability do not constitute harassment "nor can they come anywhere near to creating a hostile work environment...." Def.'s Reply at 1-2. It addresses the narcolepsy disability aspect of Count I under Count IV. Id. at 3. On Count II, the Navy notes an inconsistency in Mr. Richardson's allegations about how many times his supervisors mentioned retirement and asserts that even assuming the higher number, they "do not constitute a hostile work environment under prevailing First Circuit law." Id. at 3-4 (citing Rodriguez-Fonseca v. Baxter Healthcare Corp. of P.R., 899 F.Supp.2d 141, 151-52 (D.P.R.2012)). On Count III, the Navy casts as contrived, flawed, or hollow each of Mr. Richardson's allegations of retaliatory acts — the letter of reprimand, Mr. Palmer's promotion, the loss of driving privileges, and the Navy officials' communications with the Maine BMV. Id. at 4-7.
The Navy treats Count IV at length. It points out that Mr. Richardson's failure-to-accommodate claim must fail "as a matter of law," id. at 8 (quoting Guice-Mills v. Derwinski, 967 F.2d 794, 798 (2d Cir. 1992)), as he was "promot[ed] to a Shipyard job at a higher grade, with a higher hourly wage and the same benefits, and back at NAVSEA, where he has been reunited with MTC Portsmouth." Id. at 7-8. It also puts forward a First Circuit rule that when "any employee's essential job functions implicate the safety of others (such as driving commercial vehicles on a nuclear military facility), it is the plaintiff's burden to demonstrate that he can perform those functions in a way that does not
IV. LEGAL STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A fact is "material" if it "has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir.2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). A dispute is "genuine" if "a reasonable jury could resolve the point in favor of the nonmoving party." Id. (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)).
Once this evidence is supplied by the moving party, the nonmovant must "produce `specific facts, in suitable evidentiary form, to ... establish the presence of a trialworthy issue.'" Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994)). In other words, the non-moving party must "present `enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002) (quoting Goldman v. First Nat'l Bank of Bos., 985 F.2d 1113, 1116 (1st Cir.1993)). The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir.2011). However, the Court "afford[s] no evidentiary weight to `conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Bos., 267 F.3d 24, 27 (1st Cir.2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009).
Where, as here, the parties have filed cross-motions for summary judgment, the court must evaluate each motion independently and "determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Matusevich v. Middlesex Mut. Assur. Co., 782 F.3d 56, 59 (1st Cir.2015) (citing Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir.2004)). As such, for cross-motions for summary judgment, the standard of review is applied to each motion separately. Libertarian Party of N.H. v. Gardner, 759 F.Supp.2d 215, 221 (D.N.H. 2010) aff'd, 638 F.3d 6 (1st Cir.2011). The presence of cross-motions for summary judgment "does not alter or dilute" the summary judgment standard. Id. (citing Kunelius v. Town of Stow, 588 F.3d 1, 8 (1st Cir.2009)).
A. Disability Discrimination and Failure to Accommodate Regarding Narcolepsy
The Rehabilitation Act prohibits the Navy from discriminating against its employees on the basis of disability. 29
Next, if Mr. Richardson is able to show the three prima facie elements, the burden shifts to the Navy "to articulate a legitimate, non-discriminatory reason for its employment decision and to produce credible evidence to show that the reason advanced was the real reason." Id. (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). Finally, if the Navy is able to do so, the burden then shifts back to Mr. Richardson to establish that "the proffered reason is pretext intended to conceal discriminatory intent." Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). Ultimately, the burden of proving unlawful discrimination rests at all times with Mr. Richardson as the plaintiff. Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
1. Mr. Richardson's Prima Facie Case
Whether a plaintiff is disabled under the Rehabilitation Act is a question that must be decided on a case-by-case basis according to a three-part analysis. McDonough, 673 F.3d at 46-47 (citing Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 187-188 (1st Cir.2011)). Mr. Richardson must show: (1) "[he] suffers from an impairment"; (2) that "the impairment affects a major life activity"; and (3) that "the impairment substantially limits the major life activity." Id. (citing Rolland v. Potter, 492 F.3d 45, 48 (1st Cir.2007)). The terms "substantially limits" and "major life activity" have been narrowly interpreted in the First Circuit to create a demanding standard whereby "an individual must have a permanent or long-term impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." McDonough, 673 F.3d at 47 (quoting Rolland, 492 F.3d at 47) (internal quotation marks omitted).
Regarding narcolepsy, Mr. Richardson writes that there can be "no dispute" but that the Navy regarded him as disabled on account of his narcolepsy. Pl.'s Mot. at 10. Indeed, it is clear from the record that the Navy disqualified Mr. Richardson from driving commercial vehicles — and, later, noncommercial vehicles — because he was narcoleptic. Stip. 35-36, 42-44, 56, 63; see also Roetter v. Mich. Dep't of Corr., 456 Fed.Appx. 566, 571-72 (6th Cir.2012) (assuming without deciding that narcolepsy qualifies as a disability); Ross v. Beaumont Hosp., 687 F.Supp. 1115, 1118 (E.D.Mich.1988) (same). Moreover, in its response, the Navy does not dispute that narcolepsy is a disability. Def.'s Resp. at 8 (skipping the question of whether Mr. Richardson is disabled and proceeding to the question of whether he is a qualified). There is no genuine dispute of material fact that Mr. Richardson is disabled within the meaning of the law.
b. Job Performance and Qualifications
To be a "qualified individual," a plaintiff must show that (1) "[he] possesses the requisite skill, experience, education and other job-related requirements for the position" and (2) "[he] is able to perform the essential functions of the position with or without a reasonable accommodation." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 22 (1st Cir.2004) (citing García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir.2000)).
The nub of Mr. Richardson's narcolepsy-discrimination claim involves (1) determining whether he was qualified for the position and (2) defining what was, and what was not, within the province of Mr. Richardson's essential function. Mr. Richardson puts forward two basic arguments. He first argues that he rarely drove on the job, that he was generally competent, and thus he could fulfill the essential functions. Pl.'s Mot. at 12-15. He then argues at greater length that Dr. Harman was wrong to automatically disqualify him on account of his narcolepsy and that management compounded his error by ratifying it; from Mr. Richardson's perspective, were he not improperly disqualified, he would have remained a qualified individual. Id. at 16-28. As the Court understands it, Mr. Richardson's first argument is an essential function argument and the second is a qualification argument. In keeping with the sequencing of the test as articulated in the First Circuit, Calero-Cerezo, 355 F.3d at 22, the Court turns to qualification first and essential function second.
i. Qualified Individual
Here, the parties present starkly different answers to a pure question of law: whether under the federal regulations, Mr. Richardson's narcolepsy diagnosis allowed for automatic disqualification or required individualized assessment. The parties seem to agree that some disabilities require automatic disqualification, though they vigorously disagree on whether narcolepsy should be counted among them.
The Court begins with the text of the regulation at issue:
49 C.F.R. §§ 391.41(b)(8)-(9). The parties' disagreement centers on how to read § 391.41(b)(8). The Navy asserts that "[t]he most reasonable interpretation of 49 C.F.R. § 391.41(b)(8) is that the regulation requires automatic disqualification on the basis of a narcolepsy diagnosis, just like an epilepsy diagnosis," Def.'s Resp. at 15, whereas Mr. Richardson points out that "[n]owhere in this section does it state that narcolepsy, like epilepsy, is an automatically disqualifying diagnosis." Pl.'s Reply at 5. The Court agrees with Mr. Richardson that based on the text alone it is not apparent narcolepsy allows for automatic disqualification.
This is not the end of the matter, however, and the Court turns to an adjudicatory decision, interpretative guidance, and caselaw to resolve the precise issue before it: whether a condition not listed by name in the federal regulation can nonetheless be automatically disqualifying.
A recent adjudication throws light on the issue. On April 17, 2015, the FMCSA published a notice of applications for exemption and request for comments regarding three persons with narcolepsy who
Id. at 21,297. The second applicant had the support of both his doctor and his employer, and the third was "by all accounts stable and well-treated on his current therapeutic regimen." Id.
Still, on August 17, 2015, the FMCSA published a notice of denial of their exemption applications. Qualification of Drivers; Exemption Applications; Narcolepsy, 80 Fed. Reg. 49,301 (Aug. 17, 2015). The agency resolved two basic questions. First, "[a]re individuals with narcolepsy (with and without cataplexy) at an increased risk for a motor vehicle crash when compared to comparable individuals without the disorder?" Id. at 49,301. Second, "[d]o currently recommended treatments for narcolepsy reduce the risk for a motor vehicle crash?" Id. The FMCSA answered the first question affirmatively and the second negatively, and thus concluded that "the available medical and scientific literature and research provides insufficient data to enable the Agency to conclude that granting the exemptions would achieve a level of safety equivalent to or greater than the level of safety maintained without the exemption." Id. at 49,302.
According to the Navy, "[t]he only way to interpret the fact that the exemption were requested and denied is that the FMCSA views 49 CFR §§ 391.41 (b)(8) and (b)(9) to impose automatic disqualification on commercial motor vehicle operators with a narcolepsy diagnosis, regardless of treatment ...." Def.'s Reply at 18. The Navy stresses the similarities between Mr. Richardson and the rejected applicants, and it urges the Court to give "particular deference" to the FMCSA's interpretation of its own regulation, especially given the complexity of the regulation being interpreted. Id. at 19 (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994); S. Shore Hosp., Inc. v. Thompson, 308 F.3d 91, 97 (1st Cir.2002)).
After reviewing Thomas Jefferson University and South Shore Hospital, however, the Court notes that in those cases — both of which dealt in one way or another with the Health and Human Service's (HHS's) reimbursement decisions — the deference flowed from procedural postures distinct from these facts. See Thomas Jefferson Univ., 512 U.S. at 510-12, 114 S.Ct. 2381 (fiscal intermediary ruled plaintiff was entitled to less than full reimbursement, intermediate appellate tribunal reversed fiscal intermediary in part by ordering full reimbursement, HHS Secretary reinstated the fiscal intermediary's ruling, the district court then the Third Circuit affirmed the Secretary's decision, and the Supreme Court deferred to the Secretary); S. Shore Hosp., 308 F.3d at 96-97 (Health Care Financing Administration rejected plaintiff's application for reclassification, Provider Reimbursement Review Board affirmed this ruling, HHS Secretary declined to intervene, and the district court reversed, only to be reversed by the First
For his part, Mr. Richardson argues the exemption denial has no bearing whatsoever on his case. After pointing out that he never applied for an exemption, Mr. Richardson argues that the denial of exemptions is "non-binding guidance" that "postdate[s]" the events precipitating his lawsuit. Pl.'s Reply at 8. He cites no authority for these propositions, and in the Court's view, he overstates matters, especially as regards retroactivity in an essentially adjudicatory context. See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 224, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) ("[W]here legal consequences hinge upon the interpretation of statutory requirements, and where no pre-existing interpretive rule construing those requirements is in effect, nothing prevents the agency from acting retroactively through adjudication"); Verizon Tel. Co. v. FCC, 269 F.3d 1098, 1109 (D.C.Cir.2001) ("In cases in which there are `new applications of existing law, clarifications, and additions' the courts start with a presumption in favor of retroactivity") (quoting Health Ins. Ass'n of Am. v. Shalala, 23 F.3d 412, 424 (D.C.Cir. 2001)). Moreover, the Court declines Mr. Richardson's invitation to ignore an agency decision, arrived at through notice-and-comment, that answered a strikingly similar question to the one before it: whether people with successfully treated narcolepsy can obtain a commercial driver's license despite 49 C.F.R. § 391.41(b)(8)-(9). In sum, the Court considers the agency decision persuasive clarification of the regulation's meaning.
When Dr. Harman disqualified Mr. Richardson, he relied on FMCSA guidance then in effect. In 1988, the DOT observed that narcolepsy is a "life-long condition" and that drugs can be effective but "generally do not control sleep attacks completely," ultimately recommending that "[p]atients with narcolepsy syndrome should not, therefore, be allowed to participate in interstate driving." DSAMF ¶ 3; PRDSAMF ¶ 3. In answering the FAQ about whether narcolepsy is disqualifying, the FMCSA "recommend[s] disqualifying a CMV driver with a diagnosis of Narcolepsy, regardless of treatment because of the likelihood of excessive daytime somnolence." FMCSA FAQs at 3. In assessing another FAQ within that same document, the FMCSA writes that "[a] driver with a diagnosis of (probable) sleep apnea or a driver who has Excessive Daytime Somnolence (EDS) should be temporarily disqualified until the condition is either ruled out by objective testing or successfully treated. Narcolepsy and sleep apnea account for about 70% of EDS." Id. Lastly, in 2010, the FMCSA Medical Advisory Board revisited the FMCSA guidance that narcolepsy is disqualifying for commercial vehicle drivers and concluded that the guidance should not be changed. DSAMF ¶ 6; PRDSAMF ¶ 6.
The statement of facts establishes that Dr. Harman relied on the three interpretations directly related to narcolepsy: the 1998 guidance, the FAQ regarding narcolepsy, and the 2010 guidance. DSAMF ¶¶ 3, 5-6; PRDSAMF ¶¶ 3, 5-6. These three documents unequivocally support the Navy's position that narcoleptics are categorically disqualified. At the same time, Dr. Harman did not consider the FAQ that
Finally, the Court turns to precedent, where the parties rely on contrasting lines of caselaw. The Navy's cases address automatic disqualification for conditions explicitly mentioned in the regulations. See Albertson's, 527 U.S. at 573-74, 119 S.Ct. 2162 (visual acuity standards codified at 49 C.F.R. § 391.41(b)(10)); Buck, 56 F.3d at 1408 (hearing standards codified at 49 C.F.R. § 391.41(b)(11)); Ward, 943 F.2d at 162 (epilepsy prohibition codified at 49 C.F.R. § 391.41(b)(8)). The Court views the First Circuit's decision in Ward as especially instructive because it construes § 391.41(b)(8) — a regulation whose reach is at issue here, too.
In Ward, the plaintiff — who had a history of epilepsy, but who had been on anticonvulsant drugs and without seizures for seven years — applied for a waiver from § 391.41(b)(8). 943 F.2d at 158. DOT denied his waiver, and Ward sought judicial review, arguing "that DOT did not make a sufficiently individualized inquiry in his case; and had it done so, it would have found that he can safely drive." Id. at 161. Then-Chief Judge Breyer phrased the question as "whether DOT could rely upon the general statement embodied in the Task Force conclusion, or whether the Act required it to make a more detailed and individualized inquiry into Ward's particular circumstances ...." Id. The Court upheld DOT's reliance on the general statement, after deciding (1) the agency was reasonable in doing so, (2) individualized inquiry would have imposed significant burdens, and (3) Congress, as well as the agency, approved of the general rule. Id. at 162. Buck, which the D.C. Circuit decided after Ward, cited the First Circuit decision for the perhaps broader proposition that "[o]nce an individual has admitted that he does not meet such a necessary — as opposed to merely convenient — standard, the Rehabilitation Act does not forbid the application to him of the general rule." Buck, 56 F.3d 1406, 1409 (citing Traynor v. Turnage, 485 U.S. 535, 551, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988); Ward, 943 F.2d at 162-64).
Mr. Richardson, meanwhile, cites a casebook's worth of cases for his position. See Pl.'s Mot. at 24-25 (discussing, inter alia, Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir.2002); Nichols v. City of Mitchell, 914 F.Supp.2d 1052 (D.S.D.2012); Millage v. City of Sioux City, 258 F.Supp.2d 976 (N.D.Iowa 2003); EEOC v. Tex. Bus Lines, 923 F.Supp. 965 (S.D.Tex. 1996); see also Pl.'s Reply at 10 (citing these same five cases). Millage, in relevant part, depends on a reading of Kapche. 258 F.Supp.2d at 992 ("This Court agrees with the reasoning in Kapche to hold that determination of whether or not a claimant under the ADA can perform the essential functions of a particular job must be based upon an `individualized assessment' of his or her ability to perform the job safely, and cannot be based simply on
Kapche, a 2002 Fifth Circuit decision, dealt with an applicant to the police force who had insulin-treated diabetes mellitus (ITDM). 304 F.3d at 494. The Fifth Circuit identified driving as an essential function, then asked whether the plaintiff was qualified to drive, at which point the question became whether he posed a "direct threat" behind the wheel.
Chief among the Supreme Court cases relied upon in Kapche is Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). There, the Supreme Court discussed the definition of disability under the ADA; the issue was whether the petitioners, severely myopic aspiring pilots, were disabled despite the fact that their vision was perfectly capable of correction by glasses. 527 U.S. at 475-76, 119 S.Ct. 2139. The Court held that they were not disabled, writing that "whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses." Id. at 475, 119 S.Ct. 2139; see also id. at 483, 119 S.Ct. 2139 ("The agency guidelines' directive that persons be judged in their uncorrected or unmitigated state runs directly counter to the individualized inquiry mandated by the ADA").
That same day, the Supreme Court decided Albertson's — a case the Navy leans on heavily. Both decisions addressed visual acuity standards, though only Albertson's does so in the context of 49 C.F.R. § 391.41(b)(10). 527 U.S. at 559, 119 S.Ct. 2162. The Albertson's Court refers to Sutton as standing for the proposition "that mitigating measures must be taken into account in judging whether an individual possesses a disability." Id. at 565, 119 S.Ct. 2162. Then its analysis shifts to the employer's "primary contention" that "even if [the employee] was disabled, he was not a `qualified' individual with a disability ...because [the employer] merely insisted on the minimum level of visual acuity set forth in DOT's Motor Carrier Safety regulations...." Id. at 567, 119 S.Ct. 2162. It held that an employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation — here, § 391.41(b)(10) — need not justify enforcing the regulation solely because its standard may be waived in an individual case. Id. at 558, 119 S.Ct. 2162. The complicating factor was the waiver, and without it, "there would be no basis to question petitioner's unconditional obligation to follow the regulations and its consequent right to do so." Id. at 570, 119 S.Ct. 2162.
This case can be conceived of as a slight extension of Ward. There, the First Circuit decided that epilepsy is automatically disqualifying under § 391.41(b)(8), provided the tripartite test is met, and here the question is whether narcolepsy is automatically disqualifying under what might be called § 391.41(b)(8)'s residual clause — "or any other condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle" — as well as under § 391.41(b)(9). The Ward test applies differently to these facts, as it was the Navy (the employer) and not Secretary of the DOT (the agency) that made the contested decision. Still, the Navy's reliance on general guidance was reasonable in this instance, primarily because of the clear guidance provided by the FMCSA that categorically disqualified narcoleptics from possessing commercial driver's licenses. See FMCSA FAQs at 3; DSAMF ¶¶ 3, 6; PRDSAMF ¶¶ 3, 6. That guidance begins in 1988, was reaffirmed in 2010, and was given its most crystalline articulation yet in 2015, which — as discussed — the Court considers persuasive. The fact that three persons whose medical and professional histories substantially mirror Mr. Richardson's had their applications for exemption from §§ 391.41(b)(8)-(9) rejected bolsters Dr. Harman's already reasonable reading of then-existing FMCSA guidance. Further, obvious administrative burdens would incur were the Navy to conduct superfluous individualized review of conditions that the FMCSA has treated as automatically disqualifying, and the Court cannot ignore that the Shipyard is a nuclear facility where safety standards must be scrupulously observed. See DSMF ¶¶ 2-3; PRDSMF ¶¶ 2-3.
To the extent that Kapche and its progeny call for a different result, the Court must follow First Circuit's rulings. It also points out that those cases, including Sutton, tended to turn on the definition of disability, which was conceded in this case, whereas the Albertson's, Ward, Buck line of cases addresses qualification — the aspect of disability discrimination on which the Court rules at this juncture. While Mr. Richardson's cases are likely relevant and were well-briefed, the Navy's cases are a better fit.
In sum, the Court decides as a matter of law that no individualized review was required on these facts. That being the case, it need not reach whether an individualized review actually occurred or the direct threat analysis.
ii. Essential Function
Id. § 1630.2(n)(3)(i)-(vii).
The Court's "inquiry into essential functions `is not intended to second guess the employer or to require the employer to lower company standards.'" Mulloy, 460 F.3d at 147 (quoting Mason v. Avaya Commc'ns, Inc., 357 F.3d 1114, 1119 (10th Cir.2004)); see also 29 C.F.R. app. § 1630 ("It is important to note that the inquiry into essential functions is not intended to second guess an employer's business judgment with regard to production standards, whether qualitative or quantitative, nor to require employers to lower such standards"). At the same time, "the employer's good-faith view of what a job entails, though important, is not dispositive." Gillen, 283 F.3d at 25. In determining whether an employee can perform essential functions, the employer may consider "an employee's actual limitations, even when those limitations result from a disability." Calef v. Gillette Co., 322 F.3d 75, 86 (1st Cir.2003). In the end, this analysis "involves fact-sensitive considerations and must be determined on a case-by-case basis." Gillen, 283 F.3d at 25.
Things get more complicated when the Court considers how Mr. Richardson actually spent his time working as an MVO-7. 29 C.F.C. § 1630.2(n)(3)(iii); see also 29 C.F.R. app. § 1630 ("The inquiry into whether a particular function is essential initially focuses on whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential"). The parties stipulate that the Navy learned of Mr. Richardson's narcolepsy diagnosis in 2008, Stip. ¶¶ 8-9, that it restricted him from bus and hazmat vehicle duty in 2011, id. ¶¶ 10-11, and that there were no complaints about his driving through January 2014. Id. ¶¶ 47-49. Despite his failure to submit a formal accommodation request in the spring of 2011, the Navy informally accommodated him until the events precipitating this lawsuit occurred in late 2013 and early 2014. Id. at 12-15. The question is what exactly Mr. Richardson did during this time. See 29 C.F.R. app. § 1630 ("The time spent performing the particular function may also be an indicator of whether that function is essential").
The record reveals that Mr. Richardson spent between eight and twenty-six hours a week carrying out his union duties in his position as steward and, more often, chief steward. DSMF ¶¶ 15, 26; PRDSMF ¶¶ 15, 26; PSMF ¶ 3; DRPSMF ¶ 3. The Navy allots eight hours a week for union activity to a steward and eighteen hours a week to a chief steward, and when one person performs both positions' duties in a given week, his hours from both positions combine to achieve the maximum: twenty-six. DSMF ¶ 46; PRDSMF ¶ 46. He also worked on EEO complaints, which were separate from his union duties, though it is unclear how much time he spent on the complaints. PSAMF ¶¶ 135; DRPSAMF ¶ 135.
Besides union and EEO activities, Mr. Richardson commonly drove noncommercial vehicles, but he spent no more than five hours a week doing so. PSMF ¶ 2; DRPSMF ¶ 2. Before he lost his CDL, much of Mr. Richardson's time not spent on union or EEO activities was spent either driving commercial vehicles or being on call to drive commercial vehicles. DSAMF ¶ 18; PRDSAMF ¶ 18. At least until 2012, he drove "off the island" maybe a couple times a month and to New Hampshire even less frequently, PSMF ¶ 3; DRPSMF ¶ 3, but even loads that may not weigh enough to require transport on a commercial motor vehicle often are large enough or loaded on pallets large enough to require the bed size of commercial trucks. DSAMF ¶ 21; PRDSAMF ¶ 21. Tasks that would not require a CDL include clearing snow during winter months, cleaning the shop and vehicles, and local delivery of vehicles for vendors. DSAMF ¶ 22; PRDSAMF ¶ 22. Mr. Richardson expressed an unwillingness to do any such cleaning, and Vernon Brown — an MVO-6 without a CDL — generally performed tasks not requiring a CDL. DSAMF ¶¶ 17, 23; PRDSAMF ¶¶ 17, 23. After loss of his
One novel aspect of the fact pattern here is that the union work is more a separate position than a function of the MVO-7 position. Furthermore, while driving noncommercial vehicles garners a mention in the position description, it casts those duties as secondary to the driving of commercial vehicles. In a sense, the question is whether Mr. Richardson so occupied his time with separate and lesser duties that the primary one became no longer essential.
Taking a larger view of the facts, Mr. Richardson spent as much as twenty-six hours on union activity and no more than five hours a week driving noncommercial vehicles, plus an unknown amount of time working on EEO complaints. The record indicates that he spent as much as thirty-one hours a week on tasks that fell outside of the core of his position description, assuming he spent the maximum amount of time on both union and non-CDL driving duties during the same week. Still, caselaw suggests that the percentage of time he spent driving commercial vehicles or being on call to drive commercial vehicles — about 25%, at the very least — would not render that function marginal. See Mulloy, 460 F.3d at 153 ("Even if [plaintiff] had not stipulated to the essential nature of this function, a job function requiring 10% of [plaintiff's] time is not insignificant when considered in relation to the five remaining essential functions of his job, each of which requires only 10% to 25% of his time").
In sum, because (1) the position exists for the purpose of driving commercial vehicles, (2) the job description portrays the driving of commercial vehicles as the primary task and explicitly requires a CDL, (3) Mr. Richardson continued to drive commercial vehicles consistent with his MVO-7 position albeit with restrictions until his disqualification, (4) the other tasks he may have done were in the service of a separate position (i.e., as union steward or chief steward), could be better performed by another employee (i.e., by Mr. Brown driving non-commercial vehicles as an MVO-6), or were subject to refusal by Mr. Richardson (i.e., cleaning the shop and vehicles), there is not enough for Mr. Richardson to generate a genuine dispute of material fact as to whether driving commercial vehicles was an essential function for an MVO-7.
iii. Adverse Employment Action
At this point, the Court notes an inconsistency in the legal theories underlying Mr. Richardson's motion for partial summary judgment. So far, Mr. Richardson has set out to prove his prima facie case under the three-part framework he attributes to Ríos-Jiménez. Pl.'s Mot. at 9. As has been shown, Ríos-Jiménez identifies the McDonnell Douglas test as the one that applies where there is no direct evidence of discrimination based on disability, and Mr. Richardson has vigorously argued in accordance with the first and second parts of the McDonnell Douglas test. Id. at 10 ("There is no dispute that Mr. Richardson is `regarded as' disabled by the Defendant"); id. at 11 ("Mr. Richardson is a qualified individual with a disability"). But at the third part, i.e., whether the employer took adverse action, Mr. Richardson disavows the regime he had been applying. Id. at 28 ("Because the individuals who made the decision regarding Mr. Richardson's termination knew about his disabilities and discriminated against him on that basis, the Court need not utilize the McDonnell Douglas burden shifting regime").
The problem is that a separate doctrinal lens — mixed motive analysis — applies "where direct evidence exists that an employer, in making an adverse employment decision, considered a proscribed factor, e.g. race or disability, as well as one or more legitimate factors, e.g. competence or performance." Ríos-Jiménez, 520 F.3d at 39 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir.1999), abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 102, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)). But Mr. Richardson never mentions even in passing a mixed-motive analysis in his capacious briefs. Perhaps the point he is trying to make is that the adverse employment action is obvious; the Navy disqualified him because of his narcolepsy. See Pl.'s Mot. at 28-29. Regardless of Mr. Richardson's attempt to import a separate and incompatible analytic into what he characterizes as "the third element of a discrimination claim under the Rehabilitation Act [i.e., the McDonnell Douglas test]," id. at 28, the Court takes the point that the bone of contention here is about the qualification and essential functions of Mr. Richardson's position — issues the Court has already resolved. In other words, there is no genuine dispute of material fact as to whether there was an adverse employment action; indeed, there was one, in the form of Mr. Richardson's disqualification.
Given the Court's legal determinations, no reasonable factfinder could find that Mr. Richardson made out his prima facie case. The Court grants summary judgment to the Navy on the narcolepsy-based disability discrimination claim in Count I. Additionally, because the essential function requirement is also a part of reasonable accommodation claim and because the Court determined that no reasonable factfinder could find Mr. Richardson capable of carrying out the position's essential function, the Court grants summary judgment to the Navy on the narcolepsy-based failure to accommodate claim in Count IV. See Ríos-Jiménez, 520 F.3d at 41 ("To make out a reasonable accommodation claim, a plaintiff must prove the first two of the three factors [from the disability discrimination test] and further that the employer, despite knowing about the disability, did not acquiesce to a request for a reasonable accommodation by the employee.... It matters less precisely what stage of the rubric the issues get tackled; more important is that they are confronted...."); see also Mulloy, 460 F.3d at 148 ("[W]e must decide whether the ADA requires us to evaluate this claim as an essential function issue or as a reasonable accommodation issue. Courts have treated the issue both ways").
B. Disability Discrimination regarding Diabetes
1. The Law
To succeed on his hostile work environment claim premised on diabetes, Mr. Richardson must show that (1) "[he] was disabled as defined under the Rehabilitation Act"; (2) "[he] was subjected to uninvited harassment"; (3) "[his] employer's conduct was based on [his] disability"; (4) "the conduct was so severe or pervasive that it altered the conditions of [his] work environment"; and (5) "the harassment was objectively and subjectively offensive." McDonough, 673 F.3d at 46 (citing Prescott v. Higgins, 538 F.3d 32, 42 (1st Cir.
Under First Circuit law, "[d]etermining whether harassment is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' depends on all the relevant circumstances." Heath v. Brennan, 2015 WL 2340781, at *5, 2015 U.S. Dist. LEXIS 63254 at *14 (D.Me. May 14, 2015) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Relevant factors include "the severity of the conduct, its frequency, and whether it unreasonably interfered with the victim's work performance." Quiles-Quiles, 439 F.3d at 7. The law is without a "mathematically precise test to determine whether [a plaintiff] present[s] sufficient evidence" of a severely and pervasively hostile work environment, Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17, 44 (1st Cir.2011) (first alteration in original) (citing Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 83 (1st Cir.2006)), but "[t]he thrust of this inquiry is to distinguish between the ordinary, if occasionally unpleasant, vicissitudes of the workplace and actual harassment." Noviello, 398 F.3d at 92 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
The facts establish that Mr. Richardson and Mr. Pickering had a relationship fraught with tension and marked by confrontation. Mr. Richardson premises his hostile work environment claim as regards diabetes on two such interactions with Mr. Pickering. Though recollections differ on some points, the Court credits Mr. Richardson's account as the nonmovant for the purposes of summary judgment. First, on about December 26, 2012, Mr. Richardson took a bathroom break at the Shipyard power plant, after which he paused to get a drink of water and talk about the holidays with Mr. Anderson. DSMF ¶¶ 29-30; PRDSMF ¶¶ 29-30. Mr. Pickering confronted Mr. Richardson, screaming at him to "get the fuck back to his truck." DSMF ¶ 30; PRDSMF ¶ 30. Mr. Richardson said that he needed a nourishment break because of his diabetes, to which Mr. Pickering reacted angrily — but without explicitly mentioning his diabetes. DSMF ¶¶ 31, 33; PRDSMF ¶¶ 31, 33. Second, during the summer of 2013, Mr. Richardson was again taking a break, this time suffering from a sugar low, when Mr. Pickering again yelled at him for taking a break. DSMF ¶ 34; PRDSMF ¶ 34. Mr. Richardson explained that he was struggling with his diabetes, but Mr. Pickering insisted that he get back to work and eventually called an ambulance. DSMF ¶ 35; PRDSMF ¶ 35. The paramedics treated Mr. Richardson and confirmed his account that he had a problem with his diabetes. DSMF ¶ 36; PRDSMF ¶ 36; PSAMF ¶¶ 131; DRPSAMF ¶ 131. Again, Mr. Pickering did not explicitly mention diabetes during this encounter. DSMF ¶ 36; PRDSMF ¶ 36.
Looking at events in the light most favorable to Mr. Richardson as the nonmovant, the Court determines that Mr. Pickering's behavior toward Mr. Richardson,
There is no genuine dispute of material fact on the diabetes-based discrimination claim.
C. Age Discrimination
Mr. Richardson claims the Navy violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, by discriminating against him on the basis of his age through harassment, the creation of a hostile work environment, and an adverse employment action. Pl.'s Resp. at 18-19. As the Court understands it, the harassment and hostile work environment claim arise from comments about Mr. Richardson's retirement, and the adverse employment action claim arises from the Navy's decision to hire Mr. Palmer over Mr. Richardson. Id. The Court considers these two claims in turn.
1. Age-Based Hostile Work Environment
a. The Law
The test for age-based hostile work environment closely resembles the test for disability-based hostile work environment. See supra Section V.B.1. To succeed on his hostile work environment claim premised on age discrimination, Mr. Richardson must show that: (1) he is a member of a protected class (here, age); (2) he was subjected to unwelcome harassment; (3) the harassment was based on age; (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of his employment and create an abusive work environment; (5) the harassment was both subjectively and objectively offensive; (6) there is some basis for employer liability. O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir.2001) (applying test in sexual harassment context); Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir.2008) (recognizing hostile work environment claims under the ADEA).
Once again, the contested issue is whether the age-based discrimination was severe and pervasive enough. In an ADEA case, the First Circuit wrote that "[t]o prove a hostile-work-environment claim, a plaintiff must provide sufficient evidence from which a reasonable jury could conclude that the offensive conduct `is severe and pervasive enough to create an objectively hostile or abusive work environment and is subjectively perceived by the victim as abusive.'" Rivera-Rodríguez
Viewing the facts favorably to Mr. Richardson, his supervisors referenced his retirement on four occasions.
2. Age-Based Adverse Employment Actions
a. The Law
Under the ADEA, the Navy must make hiring and firing decisions about employees "free from any discrimination based on age." 29 U.S.C. § 633a(a). The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual... because of such individual's age." Id. § 623(a)(1). There is some uncertainty in the First Circuit regarding the
So far as the Court can tell, Mr. Richardson does not claim to have direct evidence of adverse employment actions, as such evidence "refers to a `smoking gun' showing that the decisionmaker relied upon a protected characteristic in taking an employment action." PowerComm, LLC v. Holyoke Gas & Elec. Dep't, 657 F.3d 31, 35 (1st Cir.2011) (emphasis in original) (citing Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir.1996)); see also Vesprini v. Shaw Contract Flooring Servs., Inc., 315 F.3d 37, 41 (1st Cir.2002) ("Although its exact contours remain somewhat murky, the term `direct evidence' normally contemplates only those statements by a decisionmaker that directly reflect the alleged animus and bear directly on the contested employment decision") (internal quotation marks omitted) (emphasis in original).
Absent direct evidence, the Court uses the familiar McDonnell Douglas burden-shifting framework "to facilitate the process of proving discrimination." Bonefont-Igaravidez v. Int'l Shipping Corp., 659 F.3d 120, 123-24 (1st Cir.2011) (citations omitted); see also supra Section V.A (discussing McDonnell Douglas framework). An ADEA plaintiff establishes a prima facie case by showing that: (1) the plaintiff was at least forty years old; (2) he applied and was qualified for the position; (3) the employer took an adverse employment action against him; and (4) the employer subsequently filled the position. Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1st Cir.2012) (citing Vélez v. Thermo King de P.R., Inc., 585 F.3d 447, 447-48 (1st Cir.2009); see also Boyajian v. Starbucks Corp., 587 F.Supp.2d 295, 304 n. 4 (D.Me.2008) (collecting cases for this standard). The burden then shifts to the employer to proffer a legitimate, nondiscriminatory reason for the action, and if this done, the plaintiff bears the ultimate burden of proving the proffered reason is pretextual. Cameron, 685 F.3d at 48 (citing Vélez, 585 F.3d at 447-48).
There are two conceivable grounds for Mr. Richardson's ADEA claim: (1) the promotion of Mr. Palmer over Mr. Richardson and (2) the CDL disqualification. Mr. Richardson's briefing on the latter is vanishingly sparse: a single sentence referring to an email about his retirement eligibility. Pl.'s Resp. at 19. To ensure full consideration of Mr. Richardson's claims, the Court considers both the disqualification and failure-to-promote theories, though it focuses on failure to promote as his primary theory.
For the first part of his prima facie case, it is undisputed that Mr. Richardson, who was born in 1952, is over forty years old. PSAMF ¶¶ 132, 140; DRPSAMF ¶¶ 132, 140. Second, he applied for the transportation equipment operations supervisor position, WS-5701-10, in the fall of 2013. Stip. ¶ 21. Mr. Richardson's qualification can be inferred from the fact that the selection committee appointed him the alternate candidate and so would have offered him the position had their first-choice candidate, Mr. Palmer, declined the offer. Id.
Having found the prima facie burden satisfied, "the burden of production — as distinguished from the burden of proof — shifts to [the Navy] to articulate a legitimate, nondiscriminatory basis for its adverse employment action." González v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir.2002). The Navy explains the process by which it selected Mr. Palmer as its first-choice candidate for the position: Ms. Wintle announced the opening, Stip. ¶¶ 21-22, Mr. Gagner chose both the interview panel of three persons and the questions to be asked of the applicants, id. ¶¶ 24-26, each interview-panel member scored the applicants based on their responses to a written list of interview questions spanning six categories, DSMF ¶ 58; PRDSMF ¶ 58, and once aggregated, Mr. Palmer had the highest score, in part due to his Class A CDL and in part due to his superior articulation of his supervisory knowledge, skills, and abilities. DSMF ¶¶ 59-60; PRDSMF ¶¶ 59-60. The Court concludes that this is sufficient to "enable a rational factfinder to conclude that there existed a nondiscriminatory reason" for the selection of Mr. Palmer over Mr. Richardson. Ruiz v. Posadas de San Juan Associates, 124 F.3d 243, 248 (1st Cir.1997).
Now the burden shifts back to Mr. Richardson to provide facts from which a reasonable factfinder could conclude that the Navy's proffered reason for choosing Mr. Palmer is pretextual and that its true reason was discrimination against Mr. Richardson on account of his age. Rathbun v. Autozone, Inc., 361 F.3d 62, 72 (1st Cir.2004). "It is not enough for a plaintiff merely to impugn the veracity of the employer's justification; he must `elucidate specific facts which would enable a jury to find that the reason given is not only a sham, but a sham intended to cover up the employer's real motive: age discrimination.'" Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir.1991) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir.1990)). Pretext can be based on "weaknesses, implausibilities, inconsistencies, incoherences, or contradictions" in the Navy's explanation. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir.2000) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir.1998)).
Perhaps implicitly conceding the lack of support for the argument that the Navy is putting on pretexts, as it were, Mr. Richardson does not argue pretext as such; instead, he says he can make out a prima facie case and mentions incidents that could be assembled into a pretext argument. Pl.'s Resp. at 18-19. Mr. Gagner, who headed the committee, did once tell Mr. Richardson that he had him on his "radar" for retirement. DSMF ¶¶ 49, 51; PRDSMF ¶¶ 49, 51. This comment came about ten months before the Navy's failure to hire him for the supervisory position. In short, Mr. Richard falls far short of a showing of pretext. See, e.g., Shorette v. Rite Aid of Me., Inc., 155 F.3d 8, 13 (1st Cir.1998) (asking the plaintiff "how old he was and when he planned to retire" was "a textbook example of an isolated remark which demonstrates nothing"); Wallace v. O.C. Tanner Recognition Co., 299 F.3d 96, 100 (1st Cir.2002) ("None of the inquiries about [the employee's] retirement plans had significant probative value; they were brief, stray remarks unrelated to the termination decisional process").
In sum, the Court grants summary judgment to the Navy on Count II.
1. Legal Standard
The parties agree on the legal standard, both citing to the same language from the same First Circuit case:
Palmquist, 689 F.3d at 70 (brackets, internal quotation marks, and citations omitted).
a. Prima Facie Case
The parties also agree that the first prong of the prima facie test has been met on these facts, as Mr. Richardson asserts, and the Navy concedes, that (1) filing EEO complaints and (2) advocating for an affinity group of deaf employees constitute protected conduct. See PSAMF ¶¶ 135, 142, 144-45; DRPSAMF ¶¶ 135, 142, 144-45. The first prong is met for the myriad retaliatory theories on which Mr. Richardson alleges his retaliation claim. The Court focuses on one such theory: harassment.
Under First Circuit law, retaliatory harassment can constitute an adverse action for the second prong of the prima facie test. Noviello, 398 F.3d at 91 ("subjecting an employee to a hostile work environment in retaliation for protected activity constitutes an adverse employment action"). The Navy argues that "context matters," and casts Mr. Pickering's treatment of Mr. Richardson as not severe or pervasive harassment "in an environment in which there was constant labor/management conflict." Def.'s Mot. at 23. Mr. Richardson does not think it is acceptable "for supervisors to scream, swear, and berate employees for any reasons, even if illegal, because they work in blue collar settings." Pl.'s Resp. at 20.
Moreover, the meeting was attended by four other people, one of whom, Mr. Gagner, told Mr. Richardson after Mr. Pickering's outburst that he had him on his "radar" for retirement. DSMF ¶¶ 49, 51; PRDSMF ¶¶ 49, 51; PSAMF ¶ 136; DRPSAMF ¶ 136. While it is true that Mr. Gagner's position included forecasting out which employees were approaching retirement, there is nothing conspiratorial about deriving from the context of Mr. Gagner's remark the suggestion that management wanted to be rid of Mr. Richardson on account of his protected conduct; in other words, a reasonable jury could find that where Mr. Pickering was brash, Mr. Gagner was subtle, but the message remained the same. This conclusion is bolstered by the fact that Mr. Richardson reckons he had five other such encounters with Mr. Pickering beginning in late 2012 and continuing through summer 2013. DSMF ¶¶ 23-26, 29-32, 34; PRDSMF ¶¶ 23-26, 29-32, 34; PSAMF ¶¶ 132, 139; DRPSAMF ¶¶ 132, 139. There is a genuine issue of material fact as to whether this behavior extended beyond "rudeness or ostracism" to create a hostile work environment. Noviello, 398 F.3d at 92 (citations omitted).
On the third prong, the Palmquist Court scrutinized the Rehabilitation Act's causation standard and decided that it "requires retaliation to be the but-for cause of an adverse employment action in order for the plaintiff to obtain a remedy." Palmquist, 689 F.3d at 74 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-77, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)). This is a high bar, and the Navy argues that "Richardson cannot show that Pickering's alleged yelling and cursing at him was because of Richardson's protected conduct" and that there is insufficient "temporal proximity" from which to infer causation. Def.'s Mot. at 24 (citing Calero-Cerezo, 355 F.3d at 25). Mr. Richardson emphasizes that he has direct evidence of harassment and so need not rely on temporal proximity alone. Pl.'s Resp. at 20-21.
Proceeding with the harassment theory, a factfinder could reasonably agree with Mr. Richardson that Mr. Pickering's and Mr. Gagner's behavior at the December 20, 2012 meeting about EEO complaints provides a clear causal link — i.e., he was harassed because of the EEO complaints — that obviates the question of whether the temporal proximity is too tenuous. See Calero-Cerezo, 355 F.3d at 25 ("The Supreme Court has stated that `the cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close"'") (emphasis supplied) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)).
There are less glaring flaws in the Navy's temporal proximity argument. For instance, even in the absence of a direct tie
b. Neutral, Non-Discriminatory Reason and Pretext
The parties do not play out the burden-shifting framework, but the Court will do so briefly here. Calero-Cerezo, 355 F.3d at 26 ("[O]n summary judgment, the need to order presentation of proof is largely obviated, and a court may often dispense with strict attention to the burden-shifting framework, focusing instead on whether the evidence as a whole is sufficient to make out a question for the a factfinder as to pretext and discriminatory animus") (quoting Fennell v. First Step Designs, 83 F.3d 526, 535 (1st Cir.1996)). Perhaps the Navy fails to offer a neutral, nondiscriminatory reason because it found it hard to come up with one where the allegation is that it harassed someone on account of his concededly protected conduct.
Even if the Navy were able to come forward with such a reason, there is some evidence of pretext on these facts. Earlier in 2012, for instance, there were two emails that could be read to suggest that management's patience with Mr. Richardson's protected conduct had worn thin. On January 30, 2012, upon learning that Mr. Richardson intended to help another employee with an EEO complaint, Mr. Gagner wrote: "My personal opinion is this is out of control. Guidance?" PSAMF ¶ 145; DRPSAMF ¶ 145. On July 10, 2012, Ms. Cushing, an employee and management support specialist, wrote in an email that Mr. Wyeth had said to her "that David Brown is the ring leader and stirring the pot with other hearing-impaired employees; this isn't and shouldn't be tolerated." PSAMF ¶ 146; DRPSAMF ¶ 146. The second instance is less convincing because it refers to Mr. Brown, not Mr. Richardson, but given Mr. Richardson helped Mr. Brown with his EEO complaint, a colorable argument for pretext remains. PSAMF ¶ 144; DRPSAMF ¶ 144.
In sum, there is a genuine dispute of material fact as to whether the Navy retaliated against Mr. Richardson on account of his protected conduct. Having reached this conclusion as regards one retaliation theory, the Court need not address the other theories. The Court denies summary judgment on Count III.
The Court GRANTS summary judgment to the Navy as to Counts I, II, and VI and DENIES summary judgment as to Count III of the Navy's Motion for Summary Judgment (ECF No. 50). The Court DENIES Mr. Richardson's Motion for Partial Summary Judgment (ECF No. 49).
Where, as here, the parties have filed cross-motions for summary judgment, the Court must independently evaluate each motion and "determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Matusevich v. Middlesex Mut. Assur. Co., 782 F.3d 56, 59 (1st Cir.2015) (citing Barnes v. Fleet Nat'l Bank, N A., 370 F.3d 164, 170 (1st Cir.2004)). As such, for cross-motions for summary judgment, the standard of review is applied to each motion separately. Libertarian Party of N.H. v. Gardner, 759 F.Supp.2d 215, 221 (D.N.H.2010) aff'd, 638 F.3d 6 (1st Cir.2011). That being the case, the Court recounts the facts in the light most hospitable to Mr. Richardson as regards the Navy's motion for summary judgment, and in the light most hospitable to the Navy as regards Mr. Richardson's motion for summary judgment.
PRDSMF ¶ 9.
The Navy cites Mr. Cook's declaration, which states "[a]n MVO-7 must carry a valid Medical Examiner's Certificate." Decl. of Stephen Cook (ECF No. 52) (Cook Decl.). Mr. Cook in turn provides a "see" citation to 49 C.F.R. § 391.41, the very first sentence of which reads: "[a] person subject to this part must not operate a commercial vehicle unless he or she is medically certified as physically qualified to do so ...." 49 C.F.R. § 391.41(a)(1)(i) (emphasis supplied). It is a short step from a medical certification to Mr. Cook's assertion, based on his personal knowledge as the Construction Manager for the Public Works Department-Maine, that an MVO-7 is required to carry the certificate. That being the case, Mr. Richardson's statement that "[n]owhere in section 391.41 does it state that MVO-7s must carry a valid Medical Examiner's Certificate", while technically correct, is argumentative because it does not address whether Mr. Cook is correctly stating that the certificate must be carried. The Court overrules Mr. Richardson's objection and rejects his denial.
In general, in this intensely contested record, the Court has addressed objections grounded on a valid basis, such as the inadmissibility of the statement or an absence of record support. See Asociación de Periodistas de P.R. v. Mueller, 680 F.3d 70, 78-79 (1st Cir.2012) (explaining that only admissible evidence and evidence that could be used at trial may be considered for summary judgment).
Mr. Richardson is correct on the general proposition that the Navy may not introduce legal arguments as if they constitute statements of fact, as the Court can "afford no evidentiary weight to `conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir.2011) (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir.2001)). But the Court determines that this statement is not legally conclusory.
After objecting, he also denies the statement: "In his position as an MVO-7, Mr. Richardson's responsibilities did not require a Medical Examiner's Certificate." PRDSMF ¶ 9. As in footnote four, however, the Court perceives the Navy's statement as going to what is generally required of MVO-7s, not what Mr. Richardson claims was required of him individually. The denial is without merit.
He also denies the statement, in part by citing a source that he has cast as inapposite when the Navy cited it. See Cook Decl. Attach. 2 Industrial Hygiene Survey of Naval Facilities (ECF No. 52). Regardless, the Court is unpersuaded by the denial.
PRDSAMF ¶ 23. It is true that the Court may not consider hearsay, but there is a "hoary proposition" in the law of evidence that statements of party opponents are not hearsay. Int'l Shipping Agency, Inc. v. Unión de Trabajadores de Muelles Local 1740, 2015 WL 5022794, at *9 n. 19 (D.P.R. Aug. 21, 2015); FED. R. EVID. 801(d)(2). Mr. Richardson is a party opponent, and the statement is relevant, so the Court overrules the objection.
Regardless, Mr. Richardson cites Mr. Anderson's deposition to support his position. Pl.'s Opp'n Attach. 3 Lee Anderson Dep. 18:9-19:18 (ECF No. 63) (when asked at what point management began to have a problem with Mr. Richardson exceeding his allotted union hours, Mr. Lee responded "I'm going to say that changed right around late 2013"). The Court qualifies the statement accordingly.
DSMF ¶ 17.
PRDSMF ¶ 17.
The Court begins with a comment on the record. Defense counsel, via the Clerk's Office, "corrected" their September 17, 2015 docket entry, Decl. of John Osborn (ECF No. 56), with an October 21, 2015 entry. Decl. of John Osborn (ECF No. 73). The earlier entry lacks Mr. Richardson's answers to the interrogatory but contains supporting exhibits, whereas the later entry contains Mr. Richardson's answers to the interrogatory but lacks supporting exhibits. The Court assumes the supporting exhibits remain part of the record despite their omission from the later, supposedly corrected entry. See Decl. of John Osborn Attach. 4 Exs. in Supp. of Richardson Interrog. I (ECF No. 56) (Richardson Interrog. Exs. I); id. Attach. 5 Exs. in Supp. of Richardson Interrog. II (ECF No. 56) (Richardson Interrog. Exs. II).
Turning to the substance of Mr. Richardson's qualification/partial denial, he "admits that there were conflicts between him and NAVFAC management, but denies the remainder of the assertion." PRDSMF ¶ 17. In particular, he "denies that he engaged in union activity for his former union" and "that he overused his union time...." Id. (citing Richardson Interrog. Exs. II at 12). Oddly, the only record evidence that Mr. Richardson cites for these two denials is the Decision on Second Step Grievance; this memorandum recounts Mr. Richardson's grievance and the evidence in support of it, then decidedly rejects his grievance. See Richardson Interrog. Exs. II at 13 ("I find that you provided no evidence that the Letter of Reprimand was unsupportable. Further, I find that you did review settlement agreement documents on behalf of MTC Portsmouth with Ms. Colomb while on NAVFAC MIDLANT official time.... I deny your grievance").
In sum, while the Court must view the facts in the light most favorable to Mr. Richardson, it must do so "consistent with record support." Gillen, 283 F.3d at 17 (citing C.K. Smith & Co., 269 F.3d at 72). Here, Mr. Richardson's citation contains claims that support his position, see Richardson Interrog. Ex. II at 12, but those claims are rejected on the very next page as being without evidence. Nonetheless, the Court credits Mr. Richardson's quibble with the Navy's proposed fact to an extent; it adds "supposed" before references to his wrongful use of union time. It does so in view of the fact that Mr. Richardson is the nonmovant on this point.
Finally, the Court does not address the last two sentences of the qualification, as they are beyond the scope of the statement to which they are submitted in response.
Mr. Richardson objects on the ground that "[t]he referenced record citation does not support the asserted fact," PRDSMF ¶ 18, but the objection must fail because the statement tracks — nearly verbatim — its record support. See Decl. of John Wyeth ¶ 8 (ECF No. 61) (Wyeth Decl.) ("At least as early as March 2011, Russell Gagner and I had concerns with Richardson's antagonistic style of interaction that resulted in an unnecessarily combative relationship between MTC Tidewater and NAVFAC").
He also denies the statement: "Mr. Richardson's style was not combative, rather, he would stand up to management when he believed they were being unreasonable in order to express his views, but he was also able to have productive conversations with management." PRDSMF ¶ 18 (citing PSAMF ¶¶ 129-30).
Here, the Court makes a larger point about how the parties' summary judgment submissions. Local Rule 56 stipulates that an opposing party "shall support each denial or qualification by a record citation as required by this rule." D. ME. LOC. R. 56(c) (emphasis supplied); see also D. ME. LOC. R. 56(f) ("The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts"). It follows that Mr. Richardson's qualification is improperly supported because he cites to his statement of additional material facts instead of record evidence. Even if there is a citation to record evidence within a cited statement of additional material facts or separate statement of facts, the Court must flip to that statement, find the record evidence, then consider the other party's response thereto, along with its record evidence. In other words, Mr. Richardson's shortcut requires the Court to take the long way round and transforms summary judgment practice from the intended point, counterpoint process into an entanglement of cross-references. What was discrete becomes messy. Nonetheless, the Court does not let form trump substance, and it will consider these citations and construe the facts in favor of the nonmovant.
Generally, the Court remarks on how it will address this recurring issue moving forward, though its approach remains flexible so as to address the unusual permutations these submissions often present.
First, in the case of a qualification, the Court addresses Mr. Richardson's additional material fact, and the Navy's response, separately; i.e., it does not immediately turn to the parallel dispute. If justified by the record after review, the Court will then qualify the record by adding the additional material fact to the record. It is not inclined to insert an additional material fact more than once, despite Mr. Richardson's practice of citing the same ones time and again.
Second, where there is a denial as opposed to a qualification, the Court typically addresses the parallel dispute — i.e., Mr. Richardson's putatively contrary fact, followed by the Navy's response thereto — all at once. In other words, it looks at the proposed fact, the response that references a contrary opposed fact, and the response to that contrary opposed fact, and then makes its decision. This method seems the most efficient way of putting together these complicated, voluminous facts into a single volume.
Returning to the particulars of this dispute, as the Court sees it, the parties agree that the relationship was strained, but they disagree on the severity of the strain, how to characterize it, and whose fault it was. See DSMF ¶¶ 18-19; PRDSMF ¶¶ 18-19; PSAMF ¶ 129-30; DRPSAMF ¶ 129. Viewing the facts in the light most favorable to Mr. Richardson as the nonmovant, the Court qualifies the statement so as to acknowledge the strained relationship while excluding the Navy's statement to the extent that it that blames this strain on Mr. Richardson's "antagonistic style of interaction." It refuses, however, to replace the Navy's version with Mr. Richardson's version, as that version finds scant support in the record. See Pl.'s Opp'n Attach. 3 Lee Anderson Dep. 23:1-24:25 (ECF No. 63).
As the Court sees it, this qualification attempts to engraft legal argument onto a simple statement of fact: i.e., that Dr. Harman disqualified Mr. Richardson on account of his narcolepsy. Mr. Richardson also fails to support his qualification/partial denial with the requisite specificity, see D. ME. LOC. R. 56(f), as he cites seven of his own statements of fact in addition to other materials. The Court rejects the qualification/partial denial.
After objecting on the ground that the statement is legally conclusory, Mr. Richardson denies the statement: "Nowhere in the CFR does it state that narcolepsy is a disqualifying condition, and the FAQs further indicate that narcolepsy can be a disqualifying condition, but is not necessarily such a condition and it is one that requires evaluation." PRDSMF ¶ 22 (emphasis in original).
Viewing the facts in the light most favorable to Mr. Richardson, the Court takes his point that the Navy's proposed statement transforms a recommendation into an imperative disqualification, and in so doing, it imports a legal conclusion into the statement of fact. By reference to Dr. Harman's declaration, Harman Decl. ¶ 18, the Navy cites the FMCSA's answer to the FAQ about whether narcolepsy is a disqualifying condition: "The guidelines recommend disqualifying a CMV driver with a diagnosis of Narcolepsy, regardless of treatment because of the likelihood of excessive daytime somnolence." Id. (citing FMCSA, Is Narcolepsy Disqualifying?, https://www.fmcsa.dot.gov/faq/narcolepsy-disqualifying (last updated April 1, 2014)). The Court neither excludes the Navy's statement outright nor modifies it to resemble Mr. Richardson's interpretation of the FMCSA document. Rather, the Court qualifies the statement so that it tracks the actual language of the FMCSA document.
Mr. Richardson flatly denies the statement: "Mr. Pickering suggested to Mr. Richardson that he retire." PRDSMF ¶ 23 (citing Richardson Dep. II 230:1-231:25).
Presented with contrasting accounts of the conversation, the Court perceives a genuine dispute of fact regarding whether Mr. Pickering suggested to Mr. Richardson that he should retire during this conversation. Charged as it is to view the facts in Mr. Richardson's favor as the nonmovant on this point, the Court excises the latter part of the Navy's statement — i.e., the part where he says that Mr. Pickering did not suggest to Mr. Richardson that he should retire. The Court need not admit Mr. Richardson's account, as the proposed facts as submitted go on to address his version of events. See DSMF ¶¶ 24-26.
Crucially, Mr. Richardson's deposition testimony on July 13, 2015, post-dates the cited "chronology" document, which is attached to the letter dated May 10, 2013. It follows that Mr. Richardson may have simply forgotten to mention this incident, as it was not in his interest to refrain from doing so in order to create a conflict. Viewing the facts in the light most favorable to Mr. Richardson, the Court admits the statement.
DMSF ¶¶ 27-28.
Mr. Richardson denies the statement and puts forward a different version of events:
PRDSMF ¶ 27. His denial of the next paragraph is the same, with only the last sentence changing: "It was Mr. Richardson asking `excuse me' that triggered Mr. Pickering losing his temper." PRDSMF ¶ 28.
As the Court sees it, the parties agree that a confrontation occurred on December 20, 2012, but they disagree on the particulars of the confrontation. The support for Mr. Richardson's version of events comes from his own deposition and his own notes about the incident, see Richardson Dep. I 56:1-25; Richardson Interrog. Exs. II at 4, whereas several people support the Navy's version. See Pickering Decl. ¶¶ 9-10; Decl. of Russell Gagner ¶¶ 9-10 (ECF No. 67) (Gagner Decl.); Decl. of Christopher Palmer ¶¶ 3-5 (ECF No. 70) (Palmer Decl.). At the same time, PSAMF ¶ 130 cites Mr. Anderson's recollection, which echoes Mr. Richardson's, albeit in more general terms. Richardson Interrog. Exs. I at 1. Adhering to the summary judgment praxis, the Court follows the nonmovant's, Mr. Richardson's, account. It includes only the more specific statement.
DSMF ¶ 30. Mr. Richardson denies this statement and provides his own account:
PRDSMF ¶ 30. The Court keeps the Navy's first sentence for context, then substitutes Mr. Richardson's account for the Navy's, as it must view the facts favorably toward Mr. Richardson as the nonmovant.
DSMF ¶ 31.
Mr. Richardson qualifies the statement by denying that Mr. Pickering raised his voice "to be heard over the machinery." PRDSMF ¶ 31 (citing Richardson Dep. I 50:1-52:25). (As a note, Mr. Richardson refers to "Mr. Richardson" raising his voice, but it is apparent from context that this is a mistake and he means "Mr. Pickering.") As Mr. Richardson is the nonmovant and his citations support this qualification, the Court so qualifies the statement by cutting the first sentence of the proposed fact.
Part of Mr. Richardson's qualification also "den[ies] that [he] did not say anything about his diabetes during the encounter." Id. (citing Richardson Dep. II 227:1-229:25; PASMF ¶ 131). This is a denial in search of a contrary statement, as the Navy states that Mr. Pickering — and not Mr. Richardson — said nothing about Mr. Richardson's diabetes. The Court admits this part of the statement unaltered.
The Court considers the record evidence cited in PASMF ¶ 131. See Richardson Interrog. Exs. I Ex. B Richardson Aff. to Teresa L. Lock, ¶ 93 (ECF No. 56) (Lock Aff.) ("Mr. Pickering knew every morning I tried to take a nourishment break around 9:00 a.m. I cannot remember what time this incident occurred, but it was early morning. I told him I was going to head back to the shop anyway because I needed to take my nourishment break"); id. ¶ 94 ("Mr. Pickering knew that I needed breaks in the morning for food. We all take a 9:00 a.m. break anyway"). Although the sequence is somewhat unclear, i.e., at what point Mr. Richardson claims Mr. Pickering became angered by his need for a nourishment break, the Court must view the facts favorably to Mr. Richardson. The Court qualifies the statement. The Court also notes that there is a genuine dispute of material fact on this issue, as Mr. Pickering denies that he knew about Mr. Richardson's diabetes. See infra footnote thirty-eight [DSMF ¶ 36].
Both parties cite Mr. Anderson's deposition, which — when considered in full — complicates his statement that he did not hear Mr. Richardson mention diabetes. Decl. of John Osborn Attach. 3 Dep. of Lee Anderson 40:9-23 (ECF No. 73) ("So somebody may have said something that I didn't pick up"). The Court determines that qualification is warranted on this point. Likewise, the fact that Mr. Anderson earlier recollected Mr. Richardson mentioned diabetes during this altercation is relevant and warrants qualification. Richardson Interrog. Exs. I Ex. A Lee Anderson Letter Dated Jan. 17, 2013 (ECF No. 56) ("Mr. Richardson responded that he is a diabetic and needs to eat every 2-3 hours to maintain his blood sugar levels").
In addition to any comments made about diabetes during the power plant break incident, which the Court addressed above, the thrust of Mr. Richardson's claim is that Mr. Pickering knew about his diabetes because he was present when "[i]t was mentioned" during a meeting with Mr. Landry about his narcolepsy in the fall of 2012. Richardson Dep. II 229:7; see also Lock Aff. ¶ 98 ("Mr. Pickering knew about my diabetes and break needs as soon as [he] started the new position"). At the same time, Mr. Pickering explicitly denies that he knew about Mr. Richardson's diabetes at the time of the break incident or the ambulance incident. Pickering Decl. ¶¶ 14, 16. The Court perceives a genuine dispute of material fact on whether Mr. Pickering knew about Mr. Richardson's diabetes.
Viewing the facts favorably to Mr. Richardson, as it must, the Court qualifies the statement to reflect his position that Mr. Pickering knew about his diabetes at this time. The Court assumes Mr. Richardson casts his partial denial as a qualification because he concedes the second sentence of the statement, which the Court admits.
DSMF ¶ 41.
Mr. Richardson characterizes his response as a qualification, but all he actually does is "[d]eny that Mr. Richardson had engaged in substantive review of settlement agreements on behalf of MTC Portsmouth members." PRDSMF ¶ 41. In two pages of cited deposition testimony, Mr. Richardson recounts how he repeatedly refused to participate in a settlement agreement on behalf of MTC Portsmouth members. Richardson Dep. I 95:1-96:25. Presented with contrasting accounts supported by record evidence, the Court sides with the nonmovant and excludes the navy's statement.
The Court also notes, without relying upon, two factors not raised by Mr. Richardson in his qualification/denial that cut against admitting the Navy's statement. First, the statement is a textbook example of hearsay, as Mr. Wyeth says that Mr. Blanchette says that Mr. Richardson impermissibly reviewed settlement agreements. See FED. R. EVID. 801 (hearsay is "a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement"). Rule 56 allows a party to "object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." FED. R. CIV. P. 56(c)(2). Thus, "inadmissible evidence may not be considered" for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir.1993). Second, there is no mention in the cited portion of Mr. Wyeth's declaration about Ms. Colomb. See Wyeth Decl. ¶ 12.
The Navy qualifies the statement. First, it writes that Mr. Richardson "does not deny acting on behalf of MTC Portsmouth bargaining unit members while on NAVFAC time." DRPSAMF ¶ 134. It cites no record evidence for this claim, and the Court excludes it. Next, it writes that Commander Weinstein found that Mr. Richardson had indeed acted for MTC Portsmouth members while on NAVFAC time. Id. The second-step grievance letter supports this claim, Second-Step Grievance at 2-3, and the Court admits it.
PSAMF ¶ 133 reads:
PSAMF ¶ 133. The Navy replies:
DRPSAMF ¶ 133.
The Court agrees with the Navy that the first sentence of PSAMF ¶ 133 is speculative, and in the Court's view, it also constitutes a legal argument. The second sentence is a closer call. Mr. Richardson cites his deposition. Richardson Dep. I 94:21-25 ("Q: And why — why do you think Blanchette trumped that up — that charge up? A: He was working with Mr. Wyeth to try to find something that I was doing wrong in my representational duties as a chief steward"). The Navy, meanwhile, cites Mr. Wyeth's declaration and supplemental declaration to bolster his denial. Wyeth Decl. ¶¶ 11, 13 (describing the reasons for the issuance of the LOR); Suppl. Decl. of John Wyeth ¶ 11 (ECF No. 81) (Wyeth Suppl. Decl.) ("I never retaliated against Richardson due to his EEO representational activities or his filing of his own EEO claim"). Returning to the starting point of the dispute, DSMF ¶ 44, the Navy there cites another paragraph from Mr. Wyeth's declaration as well as the LOR itself. Wyeth Decl. ¶ 10 (stating the fact of the LOR's issuance); Stip. Attach. 2 Letter of Reprimand (ECF No. 47).
After reviewing the record evidence, the Court perceives a genuine issue of material fact as to the true cause for the LOR's issuance. Charged as it is to view the facts in Mr. Richardson's favor, the Court admits only the second sentence of PSAMF ¶ 133. Furthermore, given the comparatively scant evidence — i.e., his claim in his deposition testimony — the Court modifies the statement to indicate that it represents Mr. Richardson's position.
PSAMF ¶ 135 reads:
PSAMF ¶ 135. The Navy denies this statement. DRPSAMF ¶ 135 (citing Second Suppl. Decl. of Russell Gagner ¶¶ 5-8 (ECF No. 78) (Gagner Second Suppl. Decl.); Wyeth Suppl. Decl. ¶¶ 9-10.
So far as the Court can tell, the Navy does not contest that EEO time did not count against union time. The Court admits this statement. The bone of contention is about how to interpret the email: Mr. Richardson considers it proof that management did not like him spending time on EEO complaints, whereas the Navy cites management declarations to the effect that they simply wanted notice regarding when such meetings were to occur so that they could allocate manpower accordingly — i.e., this was about knowing what their employees were up to, not objecting to the substance of it. The Court admits the email without either party's interpretation.
PSAMF ¶ 148 reads:
PSAMF ¶ 148. The Navy denies this statement. DRPSAMF ¶ 148 (citing Gagner Second Suppl. Decl. ¶¶ 5, 11; Wyeth Suppl. Decl. ¶¶ 9-11; Decl. of Robert J. Landry ¶¶ 5-8 (ECF No. 79) (Landry Decl.)).
As with PSAMF ¶ 133, the Court rejects the first sentence of PSAMF ¶ 148 as legally conclusory. It focuses instead on the example of supposed retaliation that Mr. Richardson puts forward. Against the claims about what Mr. Landry said and believed recounted in Mr. Richardson's and Mr. Anderson's depositions, Richardson Dep. II 233:18-19; Anderson Dep. 94:1-13, the Court weighs Mr. Landry's own deposition in which he explicitly denies that he told Mr. Richardson to "watch his back" or said anything about Mr. Gagner and Mr. Wyeth refusing to promote Mr. Richardson on account of his union and Affinity Group representation. Landry Decl. ¶¶ 5-8. Once again, the Court perceives a genuine issue of material fact on whether or not Mr. Landry acted in this way. It includes the example, but also includes Mr. Landry's denial.
The problem for Mr. Richardson is that he never got around to making his point; his notes simply indicate that he was discussing the subject when Mr. Pickering interrupted him. Id. The Court is without an evidentiary basis on which to include his allegation about the interaction of EEO time and union time. Nonetheless, the Court modifies the statement so that it does not characterize the letter as either "wholly appropriate," as the Navy proposes, or "baseless and inappropriate," as Mr. Richardson proposes.
PSAMF ¶ 146. The Navy denies the statement by citing Mr. Wyeth's denial. DRPSAMF ¶ 146 (citing Wyeth Suppl. Decl. ¶¶ 7-8).
After reviewing the record evidence and viewing the evidence in the light most favorable to Mr. Richardson, the Court admits Mr. Wyeth's putative statement along with its source and his denial. It rejects (1) the language about Shipyard's true feelings as "empty rhetoric" and (2) the notion that the statement — if in fact uttered — referred also to Mr. Richardson as "unsupported speculation." Tropigas de P.R., Inc., 637 F.3d at 56 (1st Cir.2011) (quoting Rogan, 267 F.3d at 27 (1st Cir.2001)).
PSAMF ¶ 147. The Navy is right in pointing out that Mr. Richardson cites the wrong exhibit, but admits the fact that Mr. Richardson accused Mr. Wyeth of retaliation. The Court incorporates the admitted portion of the proposed statement.
PSAMF ¶ 141. As the Navy points out in its reply, DRPSAMF ¶ 141, the problem with this statement is that it asserts generalizations that are inadequately supported by the record evidence. For instance, the parties have three submissions of excerpts of Mr. Anderson's deposition, yet none of them contains page forty-five. The Court was left unpersuaded by the record evidence it could locate, and it rejects Mr. Richardson's additional statement.
Mr. Richardson then "den[ies] that Mr. Gagner's statement that he had Mr. Richardson on his `radar for retirement' was preceded by a statement by Mr. Richardson indicating that he would be retiring in a few years." PRDSMF ¶ 49. He cites record evidence for his denial. See Richardson Dep. II 242:222-24 ("He said, I've got you on my radar for retirement. I said, Russ, what in the hell does this have to do with what we're talking about?"). The Court modifies the Navy's proposed statement to exclude the sequencing.
Mr. Richardson's recollection of the remark, as he testified in his deposition, supports his denial. See Richardson Dep. II 243:8-13 ("I said, yeah, [the remark about retirement] doesn't have anything to do with the meeting. Why are you asking me that question? Well, you know, I just like to know these things. And I'm like, no, you don't need to know. Then there was some other talk"). Viewing the facts in the light most favorable to Mr. Richardson, the Court credits his assertion that a suggestion of retirement could be implied from the context in which Mr. Gagner made the remark; i.e., an unprompted mention of retirement in the middle of a heated meeting. The Court excludes the Navy's proposed statement in full.
In the cited portions of his deposition, Mr. Richardson alleges (1) that Mr. Landry told him Mr. Gagner would not hire him, Richardson Dep. I 86:20-92:5, and (2) that he had a conversation with Mr. Cook before the hiring decision that left him with the suspicion that Mr. Palmer would be the panel's choice. Richardson Dep. II. 196:7-197:23. The former allegation has already been admitted at PSAMF ¶ 148. See supra footnote forty-six [DSMF ¶ 148]. The latter allegation is overly speculative. See Tropigas de P.R., Inc., 637 F.3d 53, 56 (1st Cir.2011) (Courts may not rely upon "unsupported speculation, or evidence which, in the aggregate, is less than significantly probative'") (quoting Rogan, 267 F.3d at 27)). Finally, his denial of the statement that the panel members based their scores "solely" on a candidate's answers to the panel's questions skewers a straw man, as the Navy does not include that adverb in his proposed fact. The Court rejects the qualification/denial.
DSMF ¶ 60.
Mr. Richardson interposes a denial:
PRDSMF ¶ 60.
The parties essentially litigate this point, with the Navy saying there were legitimate, nonretaliatory reasons for Mr. Palmer's hiring, and Mr. Richardson saying the asserted reasons were pretextual. The Court refuses to admit a contested legal conclusion as a statement of fact. Thus, it grants Mr. Richardson's denial in part.
The Court does, however, admit the asserted basis for Mr. Palmer's hiring. See Gagner Decl. ¶ 21. Viewing the facts favorably to Mr. Richardson, it qualifies the record to incorporate his position that Mr. Gagner went into the interview knowing that he did not want to hire Mr. Richardson. For record support, see, e.g., Richardson Dep. I 90:3-9 ("Q: So Landry told you that Gagner thinks you're a pain in his ass because of the EEO complaint? A: Yes. One of the things. Q: And what else did he tell you? A: For my protected activities. For the grievances that I had submitted. For other EEO complaints that people had put in"); Richardson Dep. II 196:24-197:2 ("Because, again, it came from the top through Mr. Landry. I was told then, and I believe it to this day, that I would never see a supervisor's, or any other position, other than what I was"). There is also an allegation in the cited portion of deposition testimony seemingly based on personal knowledge, Richardson Dep. II. 197:24 ("I [have] seen it too much"), but this statement is about Mr. Gagner and Mr. Wyeth favoring Mr. Palmer, not disfavoring Mr. Richardson. Id. 197:21-22 (describing Mr. Palmer as their "fair-haired boy"). In the discussion, the Court will review these facts and determine their legal significance.
PSAMF ¶ 137. The Navy moves to strike, pointing out that the "Palmer deposition excerpt in fact references his supervisory experience" and that the "Richardson deposition excerpts reference no supervisory experience beyond [his] job as an insulator foreman in 1986." DRPSAMF ¶ 137.
After reviewing the citations, see e.g., Palmer Dep. 7:24-8:16 (describing Mr. Palmer's limited but evident supervisory experience); Richardson Dep. I 132:20-138:2 (documenting Mr. Richardson's work history without clear reference to supervisory authority apart from work as a foreman), even viewing the facts in the light most favorable to Mr. Richardson, the Court concludes that the Navy is correct and excludes Mr. Richardson's additional fact in part. It also notes that Mr. Richardson's citations to the record evidence are insufficiently specific. Nonetheless, it includes the fact about the age difference between Mr. Richardson and Mr. Palmer.
PRDSMF ¶ 64.
Mr. Richardson's citation does not support his denial; the first cited page (twenty-five) makes no mention of narcolepsy medications or of the MVO position, and the second cited page (twenty-six) is a document related to a later visit by Mr. Richardson to Dr. Harman. Pl.'s Mot. Attach. 6 Confidential Excerpt of Harman Dep. & Associated Exs., at 25-26 (ECF No. 49) (Harman Dep.). The Court admits the Navy's statement as submitted.
PSMF ¶ 5. The Navy responds:
DRPSMF ¶ 5.
Both parties cite the same deposition testimony, and after review, the Court qualifies the statement by adding that Dr. Harman assumed a medical note that had been started by a nurse. Harman Dep. 21:10-16. In his deposition, Dr. Harman explained that the first part of the report was the nurse's note and under the electronic medical record format, he could either continue with what the nurse had written or start a new record with his notes. Id. He elected to continue or "assume" the nurse's note. Id. DSMF ¶ 66 otherwise is a true statement of Dr. Harman's deposition testimony, as well as his declaration, and the Court admits it.
Finally, the Court need not include the part of the Navy's additional statement about Mr. Richardson's "pending" status, as this fact is already present. See DSMF ¶ 71.
The Navy seems to respond to the 2013 visit, not the 2012 visit, and the Court will follow this understanding of Mr. Richardson's proposed statement. The Navy seeks to qualify Mr. Richardson's statement so as to elaborate on Dr. Harman's October 30, 2013 recommendation. DRPSMF ¶ 6. There is record support for the qualification, Harman Suppl. Decl. ¶ 5; Harman Dep. at 30, which the Court admits. It also changes the date to read October 30, 2013.
PSMF ¶ 4. The Navy denies the statement, contending that Mr. Richardson's own citation "clearly states that Palmer had performance problems with Richardson...." DRPSMF ¶ 4.
Viewing the facts in the light most favorable to the Navy as the nonmovant, the Court denies the statement. When asked whether he had any "performance issues" with Mr. Richardson, Mr. Palmer answered: "Yes." Palmer Dep. 20:5-6. And while he answered in the negative to the question of whether — apart from HAZMAT and bus — there was "any other aspect of his job" that Mr. Richardson could not fulfill, id. 20:1-4, this speaks to Mr. Richardson's capability, not his actual performance.
DSAMF ¶ 2.
Mr. Richardson qualifies the statement, admitting that Dr. Harman makes it, while denying "that patients with narcolepsy syndrome must necessarily be disqualified from participating in interstate driving per the FMCSA." PRDSAMF ¶ 2 (citing PSMF ¶ 43).
The Court admits the part of the statement about Dr. Harman's expectations but excludes the rest of it as either already present, see PSMF ¶ 71 (Dr. Harman wanted to give Mr. Richardson the opportunity to provide updated information), or legally conclusory (i.e., any narcolepsy diagnosis is disqualifying).
PSAMF ¶ 149. The Navy urges that this statement is legally conclusory and disputes that Mr. Richardson's EEO complaint against the Navy was his first. DRPSAMF ¶ 149. The Navy is correct on both points. See Richardson Dep. I 138:15-139:7 (describing employment discrimination claim against Mercy Hospital in the 1980s). The Court excludes the additional fact.
Harman Suppl. Decl. 48:10-25. At this point, the exchange cuts off, as Mr. Richardson has not provided the next page of deposition testimony. After review, the Court finds this testimony inconclusive as to whether Dr. Harman reviewed only (1) the FMCSA FAQ number nineteen and (2) Dr. Hartenbaum's book — and not the contested document.
The Court is unable to rule out that Dr. Harman may have relied on the relevant recommendation. This is especially so given Dr. Harman's on-point declaration. See Harman Suppl. Decl. ¶ 13 ("I relied on that recommendation, adopted by the FMCSA, among other things, in disqualifying Mr. Richardson under the MES 706 surveillance, and I shared that information with Mr. Richardson on January 13, 2014"). Construing the facts in the light most favorable to the Navy as the nonmovant, the Court admits the statement. It also overrules Mr. Richardson's objection, which he premises on a supposed contradiction between Dr. Harman's supplemental declaration and his deposition testimony, because — as this footnote has demonstrated — it is not apparent that there is a contradiction.
In his statement of material facts, Mr. Richardson proposes the same statement verbatim and cites record evidence. PSMF ¶ 1 (citing PSMF Attach. 1 Tr. of Dep. of Robert J. Landry, at 13 (ECF No. 48) (Landry Dep.); id. Attach. 2 Dep. of: James Pickering, at 16 (ECF No. 48) (Pickering Dep.); id. Attach. 4 Dep. of: Christopher Palmer, at 7, 11, 12, 20 (ECF No. 48) (Palmer Dep.); PRDSAMF Attach. 1 Corrected Tr. of Dep. of Stephen M. Cook, at 8 (ECF No. 75) (Cook Dep.)). The Navy qualifies the statement: "Robert Landry did not expect Richardson to drive bus and hazmat vehicles because he did not have the required licensing." DRPSMF ¶ 1 (citing Landry Dep. at 13).
The Court perceives a factual dispute regarding whether some or all of Mr. Richardson's supervisors were aware of his narcolepsy diagnosis. The parties appear to agree that Mr. Richardson could drive some vehicles but could not drive buses or HAZMAT vehicles. They disagree regarding why he could not drive those vehicles; Mr. Richardson says it is as a result of his supervisors' knowledge of his narcolepsy, PSMF ¶ 1; PRDSMF ¶ 78, whereas the Navy says it is because "he did not have the required licensing." DRPSMF ¶ 1. There is record support for both versions. See, e.g., Landry Dep. at 13 ("I was looking for guidance from the RA people — the reasonable accommodation people — as to whether or not we needed to proceed with reasonable accommodations or what to do with Craig because of his narcolepsy. Because he didn't hold all the qualifications he needed to hold the WG-7 position").
In the usual course, the Court construes the facts in the light most favorable to the non-movant. These facts, however, follow an unusual course; rather than opposing the Navy's proposed statement, Mr. Richardson refers over to his own statement of facts. Consequently, both parties are the movants (and the nonmovants), and the Court has neither a single movant against whom to construe the facts (nor a single nonmovant in whose favor to construe them). Regardless, the Court determines that the accounts put forward by the parties are not so contradictory as to be irreconcilable. It includes both accounts and addresses any materiality of the differences in its discussion.
PSMF ¶ 24 reads: "The managers of Mr. Richardson concluded that Dr. Harman and BUMED were the decision makers on whether Mr. Richardson could drive and that there was nothing further that NAVFAC management could or should do." PSMF ¶ 24 (citing Pl.'s Mot. Attach. 8 Dep. of John Wyeth 34:1-25 (ECF No. 49) (Wyeth Dep.); Cook Dep. 28:1-29:25). The Navy qualifies the statement by writing that "Richardson's supervisors reached this conclusion only after Steve Cook had conducted sufficient research." DRPSMF ¶ 24 (citing DSMF ¶¶ 93-94). As an aside, Mr. Richardson proposes the same fact, verbatim, at PSMF ¶ 37, as the Navy points out. See DRPSMF ¶ 37 (referring over to DRPSMF ¶ 24).
PSMF ¶ 39 reads: "None of the five managers of Mr. Richardson took any steps to investigate whether Dr. Harman was correct." PSMF ¶ 39 (citing Wyeth Dep. 35:1-25). The Navy denies the statement. DRPSMF ¶ 39 (citing Cook Suppl. Decl. ¶ 7).
The Court reviewed the parties' record evidence. On the Navy's side of the ledger, there is unequivocal evidence that Mr. Cook investigated (1) Dr. Harman's authority to disqualify Mr. Richardson and (2) the basis on which Dr. Harman disqualified Mr. Richardson: narcolepsy. See, e.g., Cook Decl. ¶ 28 ("I engaged in follow-up research regarding BUMED's authority to conduct 706 stressor examinations and regarding FMCSA's position on narcolepsy as a disqualifier for commercial driver's licensees"); Cook Decl. ¶ 29 ("[R]ather than relying blindly on Capt. Harman's disqualification of Richardson, I engaged in extensive efforts to confirm that the disqualification was proper and that BUMED had proper authority to make such a determination"); Suppl. Cook Decl. ¶ 7 ("Richardson's other supervisors and I reached the conclusion that we should accede to Capt. Harman's disqualification of Richardson from driving commercial vehicles after I had conducted research to confirm Capt. Harman's authority to disqualify Richardson and on narcolepsy as a disqualifier").
On Mr. Richardson's side, he cited some evidence supportive of the Navy's first point that Mr. Cook investigated Dr. Harman's authority to disqualify Mr. Richardson, see Wyeth Dep. 34:13-14 ("Steve Cook was really the lead on it working with Dr. Harman, and that's all I can say about it"); Cook Dep. 29:4-8 ("Yeah, I mean Craig's side of it was that documents he got from his personal doctor would trump that and I think I owed it to him to run it down and figure out what was the real authority here"), and some evidence that contradicts it. Wyeth Dep. 34:19-35:5 (answering in the affirmative a question as to whether management felt there was nothing further it "could or should do with respect to Dr. Harman's conclusion" after Mr. Cook's investigation into his authority).
As the Court sees it, Mr. Richardson takes issue only with a variant second point: that Mr. Cook — or anyone from management — investigated whether narcolepsy was indeed disqualifying in the particular case of Mr. Richardson. There is some evidence for this point. Cook Dep. 28:19-29:4 ("Q: So is it a fair summary that you — after learning of Dr. Harman's report of January 13th and a decision was made not to put him on administrative leave, you investigated the situation and came to the conclusion that Dr. Harman — that the issue of the stressors and the passing of the stressors was in the province or the authority of Dr. Harman and he had concluded that was sort of the end of the discussion? A: That's the way I understood it").
In sum, there is ample evidence for the Navy's position that Mr. Cook investigated Dr. Harman's authority to make the disqualification, and there is conflicting evidence as to whether Mr. Cook investigated whether narcolepsy was a proper basis for disqualification. Because both parties move for summary judgment on the basis of these facts and because they both rely on their own statements of fact in doing so, see supra footnote ninety-one [DSMF ¶ 78], the Court admits DSMF ¶¶ 93-94, excludes PSMF ¶ 39, and admits but modifies PSMF ¶ 24 so that it has an introductory clause referencing Mr. Cook's research. The Court-modified PSMF ¶ 24 will be inserted after DSMF ¶ 94. The rest of Mr. the Navy's statements to which Mr. Richardson objects on the twin basis of PSMF ¶¶ 24, 39 are admitted without qualification.
Mr. Richardson interposes a qualification, denying "that he was unable to perform the vast majority of his jobs." PRDSMF ¶ 85 (citing PSMF ¶¶ 2-3). He premises denials and qualifications on PSMF ¶¶ 2-3, often in conjunction with other statements of fact, several times in his response to the Navy. See PRDSMF ¶¶ 90, 104, 108-09, 111-13. The Court consolidates its treatment of these responses to the extent practicable in this footnote. Taken together, PSMF ¶¶ 2-3 assert that Mr. Richardson spent his time driving smaller vehicles and on union duties, rather than performing duties within the job description for his position.
PSMF ¶ 2 reads: "It was common for Mr. Richardson to operate vehicles that were under 26,000 pounds such as sedans, pickup trucks, and smaller vehicles of that nature." PSMF ¶ 2 (citing Palmer Dep. 69:1-25). This is supported by the record. Palmer Dep. 69:15-17 ("Q: And how common — how often did drivers operate noncommercial vehicles under 26,000 pounds? A: It's common"). Of course, common is a general description of frequency, and the Navy's response to PSMF ¶ 2 is a qualification that provides greater specificity. DRPSMF ¶ 2; Suppl. Decl. of Christopher Palmer ¶ 3 (ECF No. 70) (Palmer Suppl. Decl.) (an instance where an MVO drives noncommercial vehicles "typically arises two or three times a day and takes less than 30 minutes, totaling no more than five hours a week of work"); id. ¶ 4 (describing this as an "insignificant element" of the position).
PSMF ¶ 3 reads: "Mr. Richardson was a steward and chief steward of his union and spent most of his time on those activities. He drove `off the island' maybe a couple times a month and drove to New Hampshire even less frequently." PSMF ¶ 3 (citing Landry Dep. 11:1-12:25). This is supported by the record, though not where Mr. Richardson has indicated. Landry Dep. 12:2-11. Again, the Navy's response is a qualification that provides greater specificity. DRPSMF ¶ 3; Suppl. Decl. of Russell Gagner ¶ 4 (ECF No. 67) (Gagner Suppl. Decl.) (explaining that Mr. Richardson was allotted between less than eight and up to twenty-six hours of union time per week). He also points out that Mr. Landry left in late 2012 and cannot speak to the time thereafter. DRPSMF ¶ 3; Stip. ¶ 6. This, too, is reflected in the facts as admitted.
In sum, the Court credits that Mr. Richardson spent much of his time on union matters and some of his time driving vehicles under 26,000 pounds. Where Mr. Richardson objects on these grounds, and where the Court deems it necessary, it will modify the facts in keeping with this review of the record evidence. Here, it cuts the portion of the Navy's proposed statement that reads "despite being prohibited from performing the vast majority of his job duties." DSMF ¶ 85. The Court also incorporates PSMF ¶¶ 2-3 into the statement of facts in keeping with the modifications called for by this footnote.
Mr. Richardson denies the statement, pointing out that "it was common for him to operate vehicles that were under 26,000 pounds." PRDSAMF ¶ 18 (citing PSMF ¶¶ 2-3; PASMF ¶ 135).
In keeping with footnote one-hundred [DSMF ¶ 85] (discussing PSMF ¶¶ 2-3), the Court modifies the statement to say "much," instead of "virtually all," given (1) the claim that it was common for Mr. Richardson to drive smaller vehicles and (2) the refinement that common meant no more than five hours a week.
The Court sees Mr. Richardson's denial as in substance a qualification, and a qualification supported by the record. See PRDSMF Attach. 4 Dep. of: Christopher Palmer & Ex. 14, at 3 (ECF No. 63) ("Craig came to me this morning, and told me that I need to get on the phone with him and the State of Maine to figure out this whole driving issue"). It modifies the statement accordingly.
It also denies the statement, pointing out that management learned on January 28, 2014, that Mr. Richardson had not informed the Maine BMV about his narcolepsy. DRPSMF ¶ 15 (citing Cook Suppl. Decl. ¶ 8; Palmer Suppl. Decl. ¶ 5). After reviewing the record evidence, the Court treats his denial as a qualification and grants it in part; in particular, it modifies the statement to include the date — January 28, 2014 — on which management learned that there may be an issue with Mr. Richardson's Maine license.
PRDSMF ¶ 98.
The first sentence makes for an odd denial, as the Navy's proposal and Mr. Richardson's response essentially agree that Mr. Cook called Ms. Ezzell and — one way or another — told her that BUMED had disqualified Mr. Richardson from driving. So far as the Court can tell, the disagreement centers on whether Mr. Richardson volunteered this information (Mr. Richardson's version) or whether he turned it over in response to a question from Ms. Ezzell (the Navy's version). Mr. Cook's declarations and certain statements made in his deposition support the Navy's version. See Cook Decl. ¶ 33 ("[I]n response to a question from the BMV representative, I did indicate that BUMED had disqualified Richardson from driving"); Suppl. Decl. of Stephen Cook ¶ 8 (ECF No. 66) (Cook Suppl. Decl.) ("When I told Lori Ezell at the Maine Bureau of Motor Vehicles that Craig Richardson had lost his driving privileges due to an undisclosed medical condition, it was in response to a question from Ms. Ezell rather than simply offering that information without request"); Cook Dep. 38:14-21 ("I think she asked me why I was calling and I said I was calling to validate what the driver was telling me .... I think she asked me why I was calling"). There is little support for Mr. Richardson's version. Cook Dep. at 15 (note in which Ms. Ezzell writes "Portsmouth Naval Yard called on this guy [i.e., Mr. Richardson] stating that due to his medical condition he cannot drive not even a class C"). Even looking at the facts generously to Mr. Richardson, the Court does not qualify the statement on this point; he can cite only one piece of oblique evidence, which does not clearly support his argument.
The second sentence denies the Navy's statement by stating that (1) Dr. Harman was a party to the call and (2) he informed the BMV of Mr. Richardson's narcolepsy. The problem here is with the citations. Mr. Richardson cites PRDSMF ¶ 97 despite the fact that it makes no mention of Dr. Harman, and he curiously cites PRDSMF ¶ 98 in support of PRDSMF ¶ 98. Finally, the citation to his deposition is proper but hearsay. Richardson Dep. I 81:18-24 ("A: [S]he said that Dr. Harman said that he was not going to issue me a license, no matter what the State says. Q: Did she say that Dr. Harman identified you as having narcolepsy? A: Yes. And she said that he said that he was not going to issue me a license"). The Court declines to qualify for lack of proper record evidence.
Mr. Richardson both objects to and seeks to qualify the Navy's statement. His qualification asserts that "[t]he BMV was first informed of Mr. Richardson's narcolepsy by Dr. Harman and his supervisors." DSMF ¶ 116 (citing Richardson Dep. I 80:1-82:-25; PRDSMF ¶ 98). The Court rejects this qualification because the cited record evidence is hearsay. See supra footnote one-hundred and eleven [DSMF ¶ 98] (addressing the hearsay issue in greater depth). His objection contends that "[t]he assertion that Mr. Richardson `admitted' that he had narcolepsy is not supported by the record citation." PRDSMF ¶ 116. Here, Mr. Richardson has a point. See Compl. Attach. 9 Letter from Matthew Dunlap, Secretary of State, State of Maine, to Craig D. Richardson (Jan. 28, 2014) (ECF No. 1) (stating that "[i]t has been brought to our attention that you are being treated for a medical condition of Narcolepsy," but not specifying who brought that to the Secretary of State's attention). The Court modifies the statement to exclude the claim that Mr. Richardson is the person who informed the Secretary of State about his narcolepsy.
Both parties cite the same record evidence, and after reviewing it, the Court determines that the qualification is called for. See Richardson Dep. I 84:21-23 ("Q: Were you ever actually suspended? A: Well, I'm not really sure, to be perfectly honest with you").
Mr. Richardson seeks to qualify this statement by denying "that the informal accommodation was no longer feasible." PRDSMF ¶ 104 (citing PSMF ¶¶ 2-3, 9, 23, 43-44). As discussed in footnote one-hundred [DSMF ¶ 85], there is support for this qualification, and the Court grants it.
DSAMF ¶ 26. Mr. Richardson objects:
PRDSAMF ¶ 26.
As the Court sees it, Ms. Marshall-Barnes does not so much contradict her earlier declaration as supplement it. Compare Marshall-Barnes Decl. ¶ 13, with Marshall-Barnes Suppl. Decl. ¶ 8. That said, she gives no explanation for the change in her testimony. Cf. Colantuoni, 44 F.3d at 4-5 ("When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed"). Even viewing the facts favorably to the Navy as the nonmovant, the Court does not allow him to amend a statement on precisely the same subject matter by supplementing a witness's declaration without any explanation for the change. Objection affirmed.
PSAMF ¶ 138.
The Navy correctly points out that Mr. Richardson's deposition "makes no reference to intimidation" and "states that the other `superintendent at the Shipyard' in fact approach[ed] Richardson, not vice versa." DRPSAMF ¶ 138; see Richardson Dep. I 104:19-24 ("[T]here was one shipyard superintendent that saw a little bit more light of me than what the NAVFAC arena had seen, and pulled me aside and said would you like to come work for me? And I said, absolutely"). The Court admits the statement but modifies it in keeping with the record evidence. Moreover, it includes the Navy's qualification regarding the details of Mr. Richardson's new position (e.g., still in the Navy, same benefits, higher grade position and wages). DRPSAMF ¶ 138; Suppl. Decl. of Michelle Wintle-McMillan ¶¶ 4-5 (ECF No. 80).
The Court also notes that Mr. Richardson erroneously writes 2011 instead of 2014, which the Court corrects sua sponte. See Cook Dep. at 22-23 (exhibit of Dr. Cvitkovich's note dated "2-11-'14").
The Navy seeks to qualify the statement, DRPSMF ¶ 38, citing Ms. Marshall-Barnes's supplemental declaration. Suppl. Decl. of Vikki Marshall-Barnes ¶ 6 (ECF No. 69) (Marshall-Barnes Suppl. Decl.). The qualification is properly supported, and the Court admits it.
The Navy denies the statement, DRPSMF ¶ 40, citing Ms. Marshall-Barnes's supplemental declaration. Marshall-Barnes Suppl. Decl. ¶ 4 ("During our email correspondence regarding Mr. Richardson's requested accommodation, Mr. Landry expressed to me that allowing Richardson to avoid driving buses and hazmat vehicles may pose a hardship to NAVFAC and may be unfair to his fellow motor vehicle operators").
The Navy cites inadmissible hearsay, as he premises his denial on what Ms. Marshall-Barnes says Mr. Landry said. The denial is accordingly overruled. Nonetheless, viewing the facts in the light most favorable to the Navy as the nonmovant, the Court modifies the statement. Though Mr. Richardson's statement says "none" of his supervisors had an issue, he cites the depositions of only two of his many supervisors, and their statements do not unequivocally support his statement — Mr. Cook, for instance, says it would be hard to know if there was a performance issue given how little driving Mr. Richardson did. Cook Dep. 10:7 ("He — he didn't do a lot of driving").
Here, however, the Navy cites specific instances during Mr. Richardson's deposition where he admits that these acts comprise his retaliation claim. Richardson Dep. I 92:6-25, 102-8-19, 110:1-10. This is not an argument but an assertion regarding the facts that undergird Mr. Richardson's claim; i.e., it is essentially factual. The Court overrules Mr. Richardson's objection.
Additionally, the Court will not consider Mr. Richardson's denial because it improperly cites the entirety of his factual submissions at the summary judgment stage. PRDSMF ¶ 124 (citing PSMF ¶¶ 1-44; PRDSMF ¶¶ 1-126; PASMF ¶¶ 127-149). The Court does not consider a citation to 192 paragraphs as coming close to the specificity required by Local Rule 56(f), D. ME. LOC. RULE 56(f), and it admits the Navy's statement as submitted.
Mr. Richardson objects on the ground that the Navy cites "the entirety of Mr. Richardson's deposition transcript." PRDSMF ¶ 125. Indeed, the Navy cites an exhibit that encompasses over 250 pages of deposition transcript. Richardson Dep. I; Richardson Dep. II. Mr. Richardson's objection is sustained pursuant to Local Rule 56(f). D. ME. LOC. RULE 56(f).
As in footnote one-hundred and forty-three, the Court sustains Mr. Richardson's objection that the Navy's citation is insufficiently specific.