
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1796                                 RANDALL J. SOILEAU,                                Plaintiff, Appellant,                                          v.                               GUILFORD OF MAINE, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                            Cyr and Lynch, Circuit Judges,                                           ______________                           and McAuliffe, District Judge.*                                          ______________                                 ____________________            Martha  S.  Temple with  whom  Foote  &  Temple was  on  brief for            __________________             ________________        appellant.            Richard  G. Moon  with whom  James  P.  Bailinson and  Moon, Moss,            ________________             ____________________      ___________        McGill & Bachelder, P.A. were on brief for appellee.        ________________________                                 ____________________                                   January 23, 1997                                 ____________________                                    ____________________        *Of the District of New Hampshire, sitting by designation.                      LYNCH,  Circuit Judge.  Randall Soileau, terminated                      LYNCH,  Circuit Judge.                              _____________            from  his employment  as  an industrial  process engineer  at            Guilford of  Maine, Inc.,  seeks redress under  the Americans            with Disabilities Act ("ADA"), 42 U.S.C.   12101 et seq., and                                                             _______            the Maine  Human Rights Act, Me.  Rev. Stat. Ann. tit.  5,               4551 et  seq.  He  first claims  that Guilford  discriminated                 ________            against  him because of his  disability.  He  is disabled, he            asserts, because his diagnosed depressive disorder interferes            with his ability to  interact with others.  That  ability, he            says,   is  a   "major  life   activit[y]"  which   has  been            "substantially  limit[ed]" within the meaning of the ADA.  42            U.S.C.   12102(2).  Secondly, he says, the termination of his            employment was in retaliation for his requesting a reasonable            accommodation.  His claims  were rejected on summary judgment            by  the trial court in a  carefully reasoned opinion, Soileau                                                                  _______            v. Guilford of  Maine, Inc., 928 F.  Supp. 37 (D.  Me. 1996).               ________________________            We affirm.                                          I                      Only  those facts  necessary to  resolve  the legal            issues  are outlined.  The  facts are described  in the light            most  favorable to  Soileau, the  party against  whom summary            judgment  was  entered.     Hoeppner  v.  Crotched   Mountain                                        ________      ___________________            Rehabilitation Ctr., Inc., 31 F.3d 9, 14 (1st Cir. 1994)            _________________________                      Soileau worked  in various capacities  for Guilford            from 1979 until April 22, 1994.  In 1986, he began working in                                         -2-                                          2            the  industrial  engineering  department  as   a  time  study            analyst, which involved timing various aspects  of production            at Guilford.   A subset  of his duties  involved facilitating            Process Activity Analysis ("PAA")  meetings, at which ways of            improving  department efficiency  were discussed.    In 1992,            Soileau began working for a new supervisor, Matt Earnest, who            found  areas  of Soileau's  performance  not  to his  liking.            Around this time, Soileau requested a pay raise which was not            granted; after this, Earnest perceived a marked deterioration            in Soileau's attitude.   The relationship between Soileau and            Earnest quickly soured, with Soileau feeling that Earnest was            harassing him.   While  rating Soileau's work  performance as            average to above average, Earnest consistently cautioned that            Soileau needed to gain credibility and the respect of his co-            workers.                      On  May 10,  1993,  Earnest gave  Soileau a  verbal            warning  about  his  negative  attitude  at  work.    Earnest            requested that  Soileau elicit  his co-workers' views  on his            performance, which  Soileau did.  When  Earnest asked Soileau            to come up with  a plan to address the  weaknesses identified            in this survey,  Soileau refused, because he  felt the survey            did not show  any problem areas.  On March  22, 1994, Earnest            instructed Soileau  to train a  co-worker to perform  some of            Soileau's duties in preparation for expanding the PAA program            to other departments.  When Soileau did not do so (because he                                         -3-                                          3            felt the request  was not authorized  by the pertinent  plant            committees), a dispute arose between the two men.                      After consulting with the company's human resources            manager,    Earnest   issued   Soileau   a   "Final   Written            Warning/Suspension" on  March 23, 1994.   This warning listed            four performance deficiencies, ordered  a two day suspension,            and required Soileau to evaluate his own performance and come            back  with an improvement plan.  The warning said there would            be  a four  week  period during  which Soileau's  performance            would be monitored.   Failure to improve would lead  to other            consequences, which could  include job termination.   Earnest            explained all of this to Soileau that day.                      The  final  warning proved,  understandably,  to be            very  stressful  for Soileau.    On  March 28,  Soileau  told            Earnest  that he had been suicidal  several years earlier and            that he feared he was becoming  ill again.  Earnest had  been            unaware  of Soileau's condition; all he had known was that in            1990 Soileau had taken a disability leave for stress.                      On April 6, Soileau went to see a psychologist, Dr.            Dannel Starbird, whom he had seen four years earlier during a            depressive episode which had been precipitated in part by his            deteriorating relationship with his girlfriend.  In 1990, Dr.            Starbird had  diagnosed  Soileau with  dysthymia,  a  chronic            depressive  disorder characterized  by intermittent  bouts of            depression.  On Dr. Starbird's advice, Soileau had sought and                                         -4-                                          4            received  a five  week disability  leave from  work.   He had            returned  to  work without  restriction  and  had no  further            psychological counselling  until just after  he received  the            final warning in March 1994.                      Soileau  told  Dr. Starbird  that  his  job was  in            jeopardy.  Dr. Starbird diagnosed Soileau as suffering from a            bout  of depression, a condition  that was probably caused by            receiving the warning.  On April 7, Soileau told Earnest that            he was  having a difficult time interacting with other people            and  having a  particularly  hard time  facilitating the  PAA            meetings.  Earnest  agreed that, for the time  being, Soileau            would be  relieved of  his responsibilities for  facilitating            meetings and would mainly do clerical work.  That was done.                      On April 12,  Dr. Starbird wrote to  Guilford.  The            letter asked that Soileau's work duties be "restricted  so as            to   avoid   responsibilities   which   require   significant            interaction with  other employees," and  advised that Soileau            "should not be ridiculed, provoked or startled by or in front            of supervisors or other employees."                      Earnest and  Soileau met on April  21; Earnest said            he felt the  accommodations already made met  the requests in            the doctor's letter.   At no time during that  meeting or the            four  week trial  period did  Soileau present  an improvement            plan  to  address  the  four  points  raised  in the  written            warning.                                         -5-                                          5                      On April 22,  Soileau's employment was  terminated.            Earnest told  Soileau  it  was  because  there  had  been  no            improvement in the four problem areas and because Soileau had            not  submitted an  improvement plan.   In May,  Soileau began            looking for another job.   He looked for full-time employment            and placed no restrictions on the type of work sought.                                          II                      Review  of entry  of summary  judgment is  de novo.                                                                 __ ____            Wood v. Clemons, 89 F.3d 922, 927 (1st Cir. 1996).              ____    _______                      As the district court noted, interpretation of  the            ADA and of the Maine Human  Rights Act have proceeded hand in            hand,  and so we discuss the ADA, which has provided guidance            to Maine  courts in interpreting the state  statute.  Winston                                                                  _______            v.  Maine Technical College Sys., 631 A.2d 70, 74 (Me. 1993),                ____________________________            cert. denied, 114 S. Ct. 1643 (1994).              ____________                      Soileau's  initial claim under  the ADA  depends on            his establishing  that he suffers from  a "disability" within            the meaning of the statute.  Jacques v. Clean-Up Group, Inc.,                                         _______    ____________________            96  F.3d  506, 511  (1st Cir.  1996);  see also  42  U.S.C.                                                     ________            12112(a).  The definition of disability must be understood in            light of congressional objectives in enacting the ADA.  In an            effort to eliminate  discrimination against individuals  with            disabilities,   the   statute   prohibits    employers   from            discriminating  against   "a  qualified  individual   with  a            disability because of the disability."  42 U.S.C.   12112(a).                                         -6-                                          6            The antidiscrimination obligation  is unusual in the  context            of  federal civil  rights statutes.   It  imposes not  only a            prohibition against discrimination,  but also, in appropriate            circumstances,  a  positive  obligation  to  make  reasonable            accommodations.  Absent a disability, however, no obligations            are triggered for the employer.                      Only  one   of  the  ADA's  three   definitions  of            "disability"  is  pertinent here:    Soileau  claims that  he            suffered   from  "a  physical   or  mental   impairment  that            substantially limits one or more of the major life activities            of such  individual."   Id.   12102(2)(A); see  Katz v.  City                                    ___                ___  ____     ____            Metal Co., 87 F.3d 26, 30-31 (1st Cir. 1996).            _________                      To make  out a  prima facie case  of discrimination            based  on   this  definition  of  disability,   Soileau  must            establish  three elements:    (1)that he  had a  "physical or            mental impairment"  that  (2) "substantially  limits" (3)  "a            major  life activity."  42 U.S.C.   12102(2)(A).  Soileau has            successfully  shown  that  he  met  the  first  element;  his            diagnosed dysthymia is a mental impairment within the meaning            of  the statute.  See 29 C.F.R.   1630.2(h)(2).  However, the                              ___            evidence Soileau  produced does not  suffice, as a  matter of            law,  for   a  reasonable  jury  to  conclude   that  he  was            substantially  impaired in  a major  life activity.   Soileau            constructs his  argument by saying  that the  ability to  get                                         -7-                                          7            along with others is the major life activity2 in  which he is            substantially  impaired.  The  regulations promulgated by the            Equal Employment Opportunity Commission  under the ADA do not            list  such an  ability  among  the  exemplars of  major  life            activities.3  Id.   1630.2(i).                            ___                      The concept  of "ability to get  along with others"            is  remarkably  elastic, perhaps  so much  so  as to  make it            unworkable as a definition.  While such an ability is a skill            to  be  prized, it  is different  in  kind from  breathing or            walking,  two exemplars  which are  used in  the regulations.            Further, whether a person has such an ability may be a matter            of  subjective judgment; and the ability may or may not exist            depending on  context.  Here, Soileau's  alleged inability to            interact  with others  came  and went  and  was triggered  by            vicissitudes  of  life  which  are   normally  stressful  for            ordinary people -- losing a girlfriend or being criticized by            a  supervisor.   Soileau's last  depressive episode  was four                                            ____________________            2.  Although Soileau  also argued to the  district court that            his ability to work was the major life activity that had been            impaired,  he has not pursued  this claim on  appeal.  In any            event, this claim would fail because  he has not shown he  is            unable to work.  See 29 C.F.R.   1630.2(j)(3).                             ___            3.  The  EEOC Compliance  Manual  does list  interacting with            others as  a  major life  activity.   EEOC Compliance  Manual            (CCH)   902.3,   6883, at 5311 (1995).  While  this court has            found reference to the  EEOC Compliance Manual to be  helpful            on occasion,  see, e.g., Katz, 87  F.3d at 31, the  manual is                          ___  ____  ____            hardly  binding.  Cf. Schmidt  v. Safeway Inc.,  864 F. Supp.                              ___ _______     ___________            991,  1001 (D.  Or.  1994) (noting  that  the EEOC  Technical            Assistance Manual "is not law" and "does [not] have the force            of law").                                         -8-                                          8            years earlier, and  he had  no apparent  difficulties in  the            interim.  To impose legally enforceable duties on an employer            based  on such an amorphous concept would be problematic.  It            may  be  that  a  more  narrowly  defined  concept  going  to            essential  attributes of  human  communication  could,  in  a            particular  setting,  be  understood   to  be  a  major  life            activity, but we need not address that question here.                      But  even  assuming,  dubitante,  that  a colorable                                            _________            claim may be made that "ability to get  along with others" is            or may be (on specific facts) a major life activity under the            ADA,  the  evidence  here   does  not  show  any  substantial            limitation.  Under the  relevant ADA regulation an individual            faces a "substantial limitation" when he is:                      (i)    Unable  to perform  a  major  life                      activity that the  average person in  the                      general population can perform; or                      (ii)  Significantly restricted as  to the                      condition, manner or duration under which                      an  individual  can perform  a particular                      major  life activity  as compared  to the                      condition,  manner,   or  duration  under                      which the  average person in  the general                      population  can  perform that  same major                      life activity.            Id.      1630.2(j)(l).    One  factor  to  be  considered  in            ___            determining whether an individual is substantially limited in            a major life  activity is  "the nature and  severity" of  the            impairment.   Id.   1630.2(j)(2)(i).   The evidence  does not                          ___            establish   that  Soileau   had   particular  difficulty   in            interacting   with   others,  except   for   his  supervisor.                                         -9-                                          9            Impairment  is to be measured in relation to normalcy, or, in            any event, to what  the average person does.   Soileau claims            he had to  leave pubs  and stores when  they became  crowded.            But there is nothing extraordinary about preferring uncrowded            places.   Soileau  performed  his normal  daily chores,  went            grocery  shopping, and visited pubs.   That he  left pubs and            stores  when  he felt  there were  too  many people  does not            establish that the nature and severity of his impairment were            substantial.                      Another  factor to  be  considered is  the expected            duration of the  impairment.  Id.   1630.2(j)(2)(ii).   While                                          ___            Dr.  Starbird  believes  that Soileau's  underlying  disorder            (dysthymia) will be a life-long condition, Soileau has failed            to  adduce any  evidence that  his impairment  -- the  acute,            episodic  depression   --  will  be  long-term.     His  last            depressive  episode, in 1990, required  only a five week work            absence  before he was able  to return to  his duties without            restriction.     During   the  1994  episode,   Dr.  Starbird            suggested, at most, that Soileau not have to run meetings for            a  four  month  period.     Considering  these  factors  both            separately and together, Soileau has not met his burden.  The            impairment  must be  a significant one  to trigger  the Act's            obligation.                                         III                                         -10-                                          10                      Soileau  asserts  an  independent  claim  that  his            employment  was terminated in  retaliation for his requesting            an accommodation.   He may  assert such  a claim even  if the            underlying  claim of  disability fails.   Mesnick  v. General                                                      _______     _______            Elec.,  Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied,            ___________                                     ____________            504 U.S. 985 (1992).                      The   ADA   prohibits  discrimination   against  an            individual "because  such individual  has opposed any  act or            practice  made  unlawful  by  this chapter  or  because  such            individual   made   a   charge,   testified,   assisted,   or            participated in any  manner in an  investigation, proceeding,            or hearing under this chapter."  42 U.S.C.   12203(a).                      It is questionable whether  Soileau fits within the            literal language of  the statute:   he filed  no charge,  nor            participated  in any  investigation.   Moreover,  he did  not            literally oppose any act or practice, but simply requested an            accommodation,  which was  given.   It would  seem anomalous,            however, to think Congress intended no retaliation protection            for employees who request  a reasonable accommodation  unless            they also file a  formal charge.  This would  leave employees            unprotected  if an  employer  granted  the accommodation  and            shortly  thereafter terminated  the employee  in retaliation.            And so,  without addressing  the issue  any further,  we will            assume arguendo that Soileau's  request brings him within the                   ________            coverage of 42 U.S.C.   12203(a).                                         -11-                                          11                      The ADA incorporates the procedures and enforcement            mechanisms  of  Title  VII,  the  basic  statute  prohibiting            discrimination   in  employment.      See  id.      12117(a).                                                  ___  ___            Accordingly, guidance on the proper analysis of Soileau's ADA            retaliation  claim is  found in  Title VII  cases.   Carparts                                                                 ________            Distrib.  Ctr., Inc. v. Automotive Wholesaler's Assoc. of New            ____________________    _____________________________________            England, Inc., 37 F.3d 12, 16 (1st Cir. 1994).            _____________                      By  analogy to Title  VII, to establish  a claim of            retaliation  Soileau  must  show   that  he  was  engaged  in            protected conduct, that he was discharged, and that there was            a causal  connection between  the discharge and  the conduct.            Wyatt v. City of Boston, 35  F.3d 13, 15 (1st Cir. 1994) (per            _____    ______________            curiam); Hoeppner, 31 F.3d at 14.                       ________                      Soileau relies  primarily on the timing  of events,            saying  he  was  discharged  right  after  he  asked  for  an            accommodation.   True enough.   But that narrow focus ignores            the larger sequence of events and also the larger truth.  The            larger picture undercuts any claim of causation.                      Soileau was  disciplined and warned of discharge if            his  performance did not  improve and if he  did not submit a            performance plan.  The discipline and warning happened before            Guilford  ever  knew  that   Soileau  was  asserting  he  was            presently   disabled  and  before   Soileau  asked   for  the                                         -12-                                          12            accommodation of not  running meetings.4   Accordingly,  that            discipline   and  explicit  warning   could  not   have  been            motivated, even in part, by a request for an accommodation.5                      There is  no other evidence tending  to support the            retaliation claim.   Soileau admitted at  his deposition that            he never formulated any improvement plan for Earnest.  He had            been told that termination  was a possible outcome if  he did            not  submit a  plan.   On  appeal,  Soileau argues  that  his            seeking  psychological   counselling  was,  in   essence,  an            improvement plan.  If so, he never said that to his employer,            who knew only that no plan had been provided.  Further, it is            undisputed  that  in the  interim  Guilford  did provide  the            accommodation which Soileau  and his psychologist  requested.            Soileau  no longer  had to  run meetings.   Evidence  that an            employer  willingly  granted  an  employee's request  for  an            accommodation, though by no  means dispositive of the matter,                                            ____________________            4.  Soileau had not claimed earlier that he  was disabled and            the employer is  not put  on notice of  a present  disability            merely because an employee  some years in the past  has taken            medical leave or has sought psychological counselling.            5.  A  danger of the line of argument presented by Soileau is            that it  would  permit  an  employee  already  on  notice  of            performance problems to  seek shelter in  a belated claim  of            disability.   The ADA was not meant to prevent employers from            taking  steps to  address  poor  performance by  non-disabled            employees.  As  Judge Sporkin  has said in  rejecting an  ADA            retaliation claim, "To  allow the antidiscrimination laws  to            be used  by poorly performing employees  will eventually work            to the detriment of those who have a  legitimate need for the            protection of  the laws."  Henry v.  Guest Servs., Inc.,  902                                       _____     __________________            F. Supp. 245,  254 (D.D.C.  1995), aff'd, 98  F.3d 646  (D.C.                                               _____            Cir. 1996).                                         -13-                                          13            tends to militate against  making an inference of retaliation            in a case like this one.                      In  short, the  timing dictates  against concluding            that  the request  for accommodation caused  the termination,            and  nothing  else  provides  evidence  from  which  such  an            inference may be drawn.  While the discipline  of termination            was  swift, and even harsh,  the evidence does  not support a            retaliation claim.                      The entry of summary  judgment for the defendant is            affirmed.            ________                                         -14-                                          14
