Soileau v. Guilford of Maine, Inc.

                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

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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

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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   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

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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.

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          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).

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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

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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").

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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.

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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

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          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).

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          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

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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).

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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.
                    

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