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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

appellant.
Richard G. Moon
________________

with whom

James P. Bailinson and


____________________

McGill & Bachelder, P.A. were on brief for appellee.


________________________

Moon, Mo
________

____________________

January 23, 1997


____________________

____________________

*Of the District of New Hampshire, sitting by designation.

LYNCH,
LYNCH,

Circuit Judge.
Circuit Judge.
_____________

Randall Soileau, terminated

from

his employment

Guilford of

as

an industrial

Maine, Inc.,

process engineer

seeks redress under

with Disabilities Act ("ADA"), 42 U.S.C.

the Maine

Human Rights Act, Me.

4551 et seq.
________

against

He

first claims

him because of his

the Americans

12101 et seq., and


_______

Rev. Stat. Ann. tit.

that Guilford

disability.

at

He

5,

discriminated

is disabled, he

asserts, because his diagnosed depressive disorder interferes

with his ability to

says,

is

"substantially

U.S.C.

interact with others.

"major

life

activit[y]"

That

which

ability, he

has

limit[ed]" within the meaning of the ADA.

12102(2).

been

42

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.

Only

issues

most

those facts

are outlined.

favorable to

judgment

was

The

necessary to

facts are described

Soileau, the

entered.

resolve

party against

Hoeppner
________

v.

the legal

in the light

whom summary

Crotched
Mountain
___________________

Rehabilitation Ctr., Inc., 31 F.3d 9, 14 (1st Cir. 1994)


_________________________

Soileau worked

in various capacities

from 1979 until April 22, 1994.

for Guilford

In 1986, he began working in

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the

industrial

engineering

department

as

analyst, which involved timing various aspects

at Guilford.

A subset

of his duties

Process Activity Analysis ("PAA")

improving

department efficiency

time

study

of production

involved facilitating

meetings, at which ways of

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.

warning

On

May 10,

1993,

about

his

negative

requested that

Earnest gave

attitude

Soileau elicit

performance, which

Soileau did.

at

Soileau a

work.

his co-workers' views

When

verbal

Earnest

on his

Earnest asked Soileau

to come up with

a plan to address the

in this survey,

Soileau refused, because he

did not show

any problem areas.

instructed Soileau

to train a

weaknesses identified

On March

felt the survey

22, 1994, Earnest

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

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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

Warning/Suspension" on

issued

Soileau

March 23, 1994.

four performance deficiencies, ordered

"Final

Written

This warning listed

a two day suspension,

and required Soileau to evaluate his own performance and come

back

be

with an improvement plan.

a four

week

period during

would be monitored.

The warning said there would

which Soileau's

performance

Failure to improve would lead

consequences, which could

to other

include job termination.

Earnest

explained all of this to Soileau that day.

The

final

warning proved,

understandably,

to be

very

stressful

Earnest

for Soileau.

that he had been suicidal

that he feared he was becoming

unaware

On

March 28,

Soileau

told

several years earlier and

ill again.

Earnest had

been

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.

Starbird had

depressive

depression.

diagnosed

Soileau with

disorder characterized

In 1990, Dr.

dysthymia,

by intermittent

chronic

bouts of

On Dr. Starbird's advice, Soileau had sought and

-44

received

a five

returned

to

week disability

work without

psychological counselling

leave from

restriction

and

until just after

work.

He had

had no

further

he received

the

final warning in March 1994.

Soileau

jeopardy.

told

Dr. Starbird

that

his

job was

in

Dr. Starbird diagnosed Soileau as suffering from a

bout

of depression, a condition

receiving the warning.

he was

and

that was probably caused by

On April 7, Soileau told Earnest that

having a difficult time interacting with other people

having a

meetings.

would be

particularly

Earnest

hard time

facilitating the

agreed that, for the time

relieved of

On April 12,

being, Soileau

his responsibilities for

meetings and would mainly do clerical work.

facilitating

That was done.

Dr. Starbird wrote to

Guilford.

letter asked that Soileau's work duties be "restricted

to

avoid

responsibilities

interaction with

which

other employees," and

PAA

require

The

so as

significant

advised that Soileau

"should not be ridiculed, provoked or startled by or in front

of supervisors or other employees."

Earnest and

he felt the

Soileau met on April

accommodations already made met

the doctor's letter.

four

week trial

plan

to

address

At no time during that

period did

the

four

Soileau present

points

warning.

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raised

21; Earnest said

the requests in

meeting or the

an improvement

in the

written

On April 22,

Earnest told

Soileau

Soileau's employment was

it

was

because

there

terminated.

had

been

no

improvement in the four problem areas and because Soileau had

not

submitted an

improvement plan.

looking for another job.

In May,

Soileau began

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

ADA and of the Maine Human

hand,

the

Rights Act have proceeded hand in

and so we discuss the ADA, which has provided guidance

to Maine

v.

courts in interpreting the state

statute.

Winston
_______

Maine Technical College Sys., 631 A.2d 70, 74 (Me. 1993),


____________________________

cert. denied, 114 S. Ct. 1643 (1994).


____________

Soileau's

his establishing

initial claim under

that he suffers from

the meaning of the statute.

96

F.3d

12112(a).

506, 511

(1st Cir.

the ADA

depends on

a "disability" within

Jacques v. Clean-Up Group, Inc.,


_______
____________________

1996);

see also
________

42

U.S.C.

The definition of disability must be understood in

light of congressional objectives in enacting the ADA.

effort to eliminate

In an

discrimination against individuals

disabilities,

the

statute

discriminating

against

"a

prohibits

qualified

employers

individual

with

from

with

disability because of the disability."

42 U.S.C.

12112(a).

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The antidiscrimination obligation

of

federal civil

rights statutes.

prohibition against discrimination,

circumstances,

positive

is unusual in the

It

imposes not

context

only a

but also, in appropriate

obligation

to

make

reasonable

accommodations.

Absent a disability, however, no obligations

are triggered for the employer.

Only

"disability"

suffered

one

is

from

of

the

ADA's

pertinent here:

"a

physical

or

three

definitions

of

Soileau

claims that

he

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

based

on

establish

this

prima facie case

definition

three elements:

mental impairment"

major

out a

that

life activity."

of

of discrimination

disability,

(1)that he

had a

(2) "substantially

42 U.S.C.

Soileau

"physical or

limits" (3)

12102(2)(A).

must

"a

Soileau has

successfully

shown

that

he

met

the

first

element;

his

diagnosed dysthymia is a mental impairment within the meaning

of

the statute.

evidence Soileau

law,

for

substantially

constructs his

See 29 C.F.R.
___

1630.2(h)(2).

produced does not

reasonable

impaired in

jury

to

a major

argument by saying

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However, the

suffice, as a

conclude

that

life activity.

that the

matter of

he

was

Soileau

ability to

get

along with others is the major life activity2 in

substantially

impaired.

The

regulations promulgated by the

Equal Employment Opportunity Commission

list

such an

activities.3

ability

Id.
___

remarkably

among

be

elastic, perhaps

walking,

prized, it

exemplars of

of "ability to get

unworkable as a definition.

to

the

under the ADA do not

major

life

1630.2(i).

The concept

is

which he is

so

as to

make it

While such an ability is a skill

is different

two exemplars

so much

along with others"

which are

in

kind from

used in

breathing or

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

interact

context.

with others

vicissitudes

of

Here, Soileau's

came

life

alleged inability to

and went

and

are

normally

which

was triggered

stressful

by

for

ordinary people -- losing a girlfriend or being criticized by

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

event, this claim would fail because


unable to work.

3.

The

EEOC Compliance

others as
(CCH)

See 29 C.F.R.
___

902.3,

major life

Manual

appeal.

In any

he has not shown he

is

1630.2(j)(3).

does list

activity.

6883, at 5311 (1995).

interacting with

EEOC Compliance
While

Manual

this court has

found reference to the


on occasion,
hardly
991,

see, e.g., Katz, 87


___ ____ ____

binding.
1001 (D.

EEOC Compliance Manual to be

Cf. Schmidt
___ _______
Or.

F.3d at 31, the

v. Safeway Inc.,
___________

1994) (noting

that

helpful
manual is

864 F. Supp.

the EEOC

Technical

Assistance Manual "is not law" and "does [not] have the force
of law").

-88

years earlier, and

interim.

he had

no apparent

difficulties in

the

To impose legally enforceable duties on an employer

based

may

on such an amorphous concept would be problematic.

be

that

essential

more

narrowly

attributes of

particular

setting,

human

be

defined

concept

communication

understood

to

be

going

could,

It

major

to

in

life

activity, but we need not address that question here.

But

even

assuming,

dubitante,
_________

claim may be made that "ability to get

that

a colorable

along with others" is

or may be (on specific facts) a major life activity under the

ADA,

the

evidence

limitation.

here

Under the

does

not

show

any

substantial

relevant ADA regulation an individual

faces a "substantial limitation" when he is:

(i)

Unable

to perform

activity that the

major

life

average person in

the

general population can perform; or


(ii)

Significantly restricted as

to the

condition, manner or duration under which


an

individual

major

can perform

life activity

condition,
which the

as compared

manner,

or

can

to the

duration

average person in

population

a particular

under

the general

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

impairment.

Id.
___

establish

interacting

that

with

"the nature and

1630.2(j)(2)(i).

Soileau

others,

had

-99

The evidence

particular

except

severity" of

for

does not

difficulty

his

the

in

supervisor.

Impairment

is to be measured in relation to normalcy, or, in

any event, to what

he had to

the average person does.

leave pubs

and stores when

Soileau claims

they became

crowded.

But there is nothing extraordinary about preferring uncrowded

places.

grocery

stores

Soileau

performed

his normal

shopping, and visited pubs.

when

he felt

there were

too

daily chores,

That he

went

left pubs and

many people

does not

establish that the nature and severity of his impairment were

substantial.

Another

duration of the

Dr.

Starbird

factor to

be

impairment.

believes

considered is

Id.
___

the expected

1630.2(j)(2)(ii).

that Soileau's

underlying

While

disorder

(dysthymia) will be a life-long condition, Soileau has failed

to

adduce any

episodic

depression

depressive

absence

evidence that

--

his impairment

will

be

long-term.

episode, in 1990, required

before he was able

restriction.

During

1994

acute,

His

last

only a five week work

to return to

the

-- the

his duties without

episode,

Dr.

Starbird

suggested, at most, that Soileau not have to run meetings for

four

month

period.

Considering

these

factors

separately and together, Soileau has not met his burden.

both

The

impairment

must be

a significant one

to trigger

the Act's

obligation.

III

-1010

Soileau

asserts

an

independent

claim

that

his

employment

was terminated in

an accommodation.

underlying

He may

claim of

retaliation for his requesting

assert such

a claim even

disability fails.

Mesnick
_______

if the

v. General
_______

Elec., Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied,
___________
____________

504 U.S. 985 (1992).

The

ADA

prohibits

individual "because

practice

individual

made

such individual

unlawful

made

participated in any

discrimination

by

manner in an

or hearing under this chapter."

testified,

the statute:

or

an

act or

because

assisted,

such

or

investigation, proceeding,

42 U.S.C.

It is questionable whether

literal language of

has opposed any

this chapter

charge,

against

12203(a).

Soileau fits within the

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

they also file a

unprotected

if an

a reasonable accommodation

formal charge.

employer

granted

shortly

thereafter terminated

And so,

without addressing

leave employees

the accommodation

the employee

the issue

assume arguendo that Soileau's


________

coverage of 42 U.S.C.

This would

unless

and

in retaliation.

any further,

we will

request brings him within the

12203(a).

-1111

The ADA incorporates the procedures and enforcement

mechanisms

of

discrimination

Title

in

VII,

the

employment.

basic

statute

See
___

id.
___

prohibiting

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

retaliation

analogy to Title

Soileau

must

VII, to establish

show

that

he

was

a claim of

engaged

in

protected conduct, that he was discharged, and that there was

a causal

connection between

Wyatt v. City of Boston, 35


_____
______________

the discharge and

the conduct.

F.3d 13, 15 (1st Cir. 1994) (per

curiam); Hoeppner, 31 F.3d at 14.


________

Soileau relies

saying

he

was

accommodation.

primarily on the timing

discharged

True enough.

right

after

he

of events,

asked

for

an

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

performance plan.

Guilford

presently

ever

improve and if he

did not submit a

The discipline and warning happened before

knew

disabled

that

and

Soileau

before

-1212

was

asserting

he

was

Soileau

asked

for

the

accommodation of not

discipline

and

running meetings.4

explicit

warning

Accordingly,

could

not

that

have

been

motivated, even in part, by a request for an accommodation.5

There is

no other evidence tending

retaliation claim.

Soileau admitted at

to support the

his deposition that

he never formulated any improvement plan for Earnest.

He had

been told that termination

he did

not

submit a

seeking

plan.

On

psychological

improvement plan.

was a possible outcome if

appeal,

Soileau argues

counselling

was,

in

that

essence,

his

an

If so, he never said that to his employer,

who knew only that no plan had been provided.

undisputed

that

in the

interim

Guilford

Further, it is

did provide

the

accommodation which Soileau

Soileau

no longer

employer

and his psychologist

had to

willingly

run meetings.

granted

an

accommodation, though by no

requested.

Evidence

that an

employee's request

for

an

means dispositive of the matter,

____________________

4.

Soileau had not claimed earlier that he

the employer is

not put

on notice of

merely because an employee

was disabled and

a present

disability

some years in the past

has taken

medical leave or has sought psychological counselling.

5.

that it

danger of the line of argument presented by Soileau is


would

permit

an

performance problems to
disability.
taking

seek shelter in

As

address

poor

Judge Sporkin

retaliation claim, "To


be used

already

on

notice

of

a belated claim

of

The ADA was not meant to prevent employers from

steps to

employees.

employee

performance by
has said in

non-disabled

rejecting an

ADA

allow the antidiscrimination laws

by poorly performing employees

to the detriment of those who have a


protection of

the laws."

F. Supp. 245,

254 (D.D.C.

Henry v.
_____

to

will eventually work

legitimate need for the


Guest Servs., Inc.,
__________________

1995), aff'd, 98
_____

F.3d 646

902
(D.C.

Cir. 1996).

-1313

tends to militate against

making an inference of retaliation

in a case like this one.

In

that

and

short, the

the request

nothing

else

timing dictates

against concluding

for accommodation caused

provides

evidence

from

the termination,

which

such

an

inference may be drawn.

was

While the discipline

swift, and even harsh,

the evidence does

of termination

not support a

retaliation claim.

The entry of summary

affirmed.
________

judgment for the defendant is

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