United States Court of Appeals
For the First Circuit
No. 97-1947
PHILLIP D. CHAMPAGNE,
Plaintiff, Appellant,
v.
SERVISTAR CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Torruella, Chief Judge ,
Boudin and Lynch, Circuit Judges.
Edward M. Pikula for appellant.
Charles P. Roberts, III, with whom Haynsworth, Baldwin,
Johnson and Greaves, Daniel Finnegan, and Bulkley, Richardson
and Gelinas were on brief, for appellee.
March 12, 1998
LYNCH, Circuit Judge. Phillip D. Champagne sued his
former employer Servistar Corporation under the Americans with
Disabilities Act of 1990, 42 U.S.C. 12101-12213. Champagne,
a truck driver, alleged that Servistar unlawfully terminated
his employment because he was disabled. His disability, he
said, was that he suffered from emotional disorders which
required him to drive only familiar routes, avoid high bridges,
and not rotate truck routes as did other Servistar drivers.
Champagne also alleged that his termination was in retaliation
for his filing disability discrimination charges and that
Servistar threatened to withdraw the workplace accommodation it
had earlier given him. The district court rejected these
claims in a carefully reasoned opinion granting summary
judgment. We affirm.
I As summary judgment has been granted, we review the
facts in the light most favorable to Champagne and will draw
all reasonable inferences in his favor. See Soileau v.
Guilford of Maine, 105 F.3d 12, 13 (1st Cir. 1997). Because
the issue of causation as to the termination of Champagne's
employment is largely dispositive of the case, we focus
particularly on those facts.
Servistar is a cooperative engaged in the
distribution of hardware, lumber, and building materials to
approximately 3,700 owner-member stores nationwide. In June
1974, Servistar hired Champagne as a truck driver at its
Westfield, Massachusetts distribution center ("Westfield
terminal"). Champagne, one of approximately twenty regular
truck drivers at the Westfield terminal, operated a tractor-
trailer and delivered merchandise to stores throughout New
England and eastern New York.
At the time of Champagne's hiring, Servistar had a
long-standing policy of requiring drivers to rotate their
routes on a periodic basis. The object of this policy was to
better monitor driver productivity by comparing different
drivers on the same route, obtain better feedback on customers'
needs by gaining the perspective of numerous drivers, and
equalize pay, work load, and overall driver responsibilities.
Champagne, like all Servistar drivers, was subject to this
policy.
In the mid-1980's, Champagne began to develop
emotional problems which increasingly interfered with his
ability to rotate routes. These problems included general
anxiety, feelings of despair, suicidal tendencies, and a
specific phobia of crossing bridges. Champagne told his
psychiatrist, Dr. Carl Saviano, that he sought to avoid bridges
with which he was unfamiliar or thought unsafe (Champagne
especially feared high bridges with low railings) for fear that
he would commit suicide by driving off the bridge. Champagne
did not inform Servistar of his condition. In 1988, Champagne
asked his supervisor at the Westfield terminal to exempt him
from route-rotation and to allow him to drive a set route.
Champagne's supervisor granted this request. In 1990,
Champagne fell into a major depression and was hospitalized for
two weeks in the psychiatric unit at the Cooley-Dickinson
Hospital in Northampton, Massachusetts.
When other drivers at the Westfield terminal began to
complain about Champagne's exemption from the route rotation
system, Servistar's Vice President of Human Resources, Russell
Thomas, asked Champagne to supply a medical reason for driving
a set route. In November 1990, Champagne produced a note from
Dr. Saviano stating: "It is most important for Mr. Champagne's
health that he have very regular work hours and a very regular,
predictable schedule." Because the note did not explain the
nature of Champagne's problems, Thomas called Dr. Saviano for
further explanation. Dr. Saviano did not reveal Champagne's
condition, but simply repeated that it would be in Champagne's
best interest for him to continue driving the set route. On
this advice, Thomas asked Champagne's supervisor to leave
Champagne on the set route, and the supervisor agreed.
Champagne continued to work without incident. Indeed,
Champagne's evaluations for 1991 through 1993 show that his
performance was exemplary.
In mid-1992, Servistar made managerial changes
affecting the Westfield terminal. Phil Hammonds became the new
warehouse manager at the Westfield terminal, thus becoming
Champagne's new supervisor, and Tom Brennan became Servistar's
new Vice President of Operations. Hammonds discovered that
drivers at the Westfield terminal were switching routes on
their own initiative and that three drivers, including
Champagne, were driving set routes. Hammonds, based on the
medical information before him, did not believe that Champagne
and the other individuals driving set routes suffered from
medical disabilities preventing them from complying with the
route-rotation requirement.
In early 1993, Brennan and Hammonds reinstated strict
route rotation across the board at the Westfield terminal.
Routes were organized into groups of four or five routes and
drivers were required to rotate within these groups. On June
14, 1993, Champagne produced another short note from Dr.
Saviano recommending that Champagne continue to drive a set
route. No explanation was given nor was a claim made that
Champagne was disabled: "Mr. Champagne requires regular
psychotherapy sessions. It is essential that Mr. Champagne's
treatment be augmented and supported by a very regular work
schedule." On June 17, 1993, Hammonds told Champagne by phone
that Champagne would have to meet normal route-rotation
requirements or go to work in the warehouse until he was able
to do so. On June 21, 1993, Hammonds sent written notice to
all drivers on set routes, including Champagne, that Servistar
expected them to drive according to rotating schedules and
that, if they were unable to rotate routes within 30 days for
medical reasons, they would, as an accommodation, be placed on
light duty status and transferred to the warehouse. Transfer
to the warehouse would have entailed a loss of pay for
Champagne.
Champagne regarded his regular route as an
accommodation to his mental condition, and he believed that the
notice from Servistar constituted a threatened withdrawal of
reasonable accommodation in violation of the ADA. On July 15,
1993, Champagne filed a disability discrimination complaint
with the Massachusetts Commission Against Discrimination and
the Equal Employment Opportunity Commission. He filed a civil
action in Massachusetts state court seeking to enjoin Servistar
from removing him from his regular route. The state court
granted a temporary restraining order against Servistar.
Servistar complied with the TRO and, before the hearing on a
preliminary injunction, voluntarily agreed to leave Champagne
on the set route pending receipt of more specific information
on Champagne's condition.
Champagne did not release his medical records to
Servistar, apparently on the advice of his attorney. Dr.
Saviano, however, responded to Servistar's inquiries about
Champagne's condition in a letter dated October 20, 1993. Dr.
Saviano informed Servistar that Champagne suffered from anxiety
disorders caused by previous emotional injuries, and he
reiterated his view that Champagne needed "a fixed regular
schedule in which he travels the same route, sees the same
people and performs the same activities routinely." Dr.
Saviano said that such a schedule would permit Champagne to
control his anxieties. "Even changes known well in advance
could be very hurtful to his therapy and his well being."
II In the meantime, other events were unfolding. In the
fall of 1993, two items of information came to Hammonds'
attention suggesting that at least some Servistar drivers were
falsifying travel logs they are required to keep by the federal
Department of Transportation ("DOT"). DOT regulations require
interstate truckers to record their driving time, non-driving
but on-duty time, and off-duty time.
The first item of information was that a Servistar
truck had been observed parked on a residential street for a
period of time. Hammonds checked the logs, which indicated the
driver had been on duty at the time the truck was parked on the
street. Hammonds prepared a recommendation to fire the driver,
believing the facts indicated that the driver was basically
"stealing" time, and therefore pay. When Hammonds met with
the driver, the driver indicated he had "carried over" time
from the prior day in order to comply with DOT regulations, but
that he put the time in. Hammonds decided not to fire the
driver, but still gave the driver a written reprimand for
falsifying the logs.
The second item of information was the discovery that
Champagne was making excessive use of the company telephone
credit card that had been issued to him. Servistar issues
phone cards to all drivers and drivers are allowed one fifteen
minute call per day. Supervisor Jim Atwater noticed that
Champagne's phone bill for September 1993 listed more than
sixty calls, some lasting more than an hour. Atwater brought
the phone bill to Hammonds' attention. Hammonds decided to
take no action against Champagne on the excessive phone use.
Hammonds also noticed that many of the calls had been made
during the middle of the day when Champagne would ordinarily be
driving. Hammonds called the number from which Champagne had
made these mid-day calls and learned that the source was a
Holiday Inn in Ronkonkoma, New York. Hammonds cross-checked
the phone records against Champagne's logs. He discovered that
Champagne had recorded that he had been driving or was
otherwise on-duty during those times when phone records showed
he was making calls. By recording more driving time than he
had actually performed, Champagne had been paid money he was
not properly owed.
Upon learning this, Servistar consulted legal counsel
and decided to audit the logs and phone records of all
Westfield terminal drivers when the following month's phone
records came in, as well as to audit drivers in other locations
randomly. Servistar realized that the phone card records gave
it a way to test the accuracy of its drivers' logs. The all-
driver audit was conducted the following month, in November
1993, on the October 1993 phone bills. It revealed that four
drivers, including Champagne, had falsified their DOT logs by
recording they were driving at times when phone records showed
they were making calls. Servistar did not take immediate
action on these individuals, but decided to investigate further
to see if a pattern existed. Servistar reaudited the four
drivers the following month and discovered that three of the
drivers, including Champagne, had multiple violations during
that month as well. The fourth driver had only one violation.
Servistar decided to terminate the employment of the
three drivers who had multiple violations, including Champagne,
and to give a written warning to the fourth driver. Hammonds,
Brennan and another supervisor met individually with each of
the three drivers who were to be fired. Each was given copies
of records and shown the violations. Champagne did not dispute
the evidence. In fact, Champagne said, he had been falsifying
his DOT logs for twenty years and he did so because he did not
want speeding violations showing in his logs. Champagne said
this was common practice among Servistar drivers and something
Servistar itself knew about and encouraged. On January 20,
1994, Servistar fired Champagne and the two other drivers.
Since these terminations, Servistar has continued to
perform random cross-checks of drivers' logs against their
phone bills. In late 1994, Servistar discharged another driver
for log violations. In his twenty-five years with Servistar,
Brennan has also terminated three other drivers for log
violations.
Champagne says that Servistar knew that its drivers
routinely violated DOT log regulations, and that the use of
such violations to terminate him masks Servistar's real
intention to discriminate against him on account of his
disability and retaliate for his filing a discrimination charge
against the company. Champagne's specific evidence on this
point is discussed below.
III On January 27, 1995, the EEOC issued Champagne a
"Right to Sue" letter. Champagne withdrew his state court
action and, on February 21, 1995, filed this federal lawsuit.
Champagne alleged that Servistar discriminated against him
because he was disabled in violation of 42 U.S.C. 12112(a),
that Servistar fired him in retaliation for his filing a
discrimination charge in violation of 42 U.S.C. 12203(a), and
that Servistar had threatened to withdraw his workplace
accommodation in violation of 42 U.S.C. 12203(b). Servistar
counterclaimed for damages alleging breach of fiduciary duty,
and fraud and deceit.
Servistar moved for summary judgment on Champagne's
claims and its counterclaims. The district court granted
Servistar's motion as to Champagne's claims, holding that
Champagne did not meet the statutory definition of disability,
and that his evidence of retaliation or threat was insufficient
to overcome Servistar's legitimate and nondiscriminatory
explanation. The district court denied summary judgment as to
Servistar's counterclaims. Champagne appeals the granting of
summary judgment as to his three claims.
IV The scope of our review over the district court's
entry of summary judgment in favor of Servistar is de novo.
See Soileau, 105 F.3d at 14. Summary judgment is appropriate
when the evidence shows "that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c).
Champagne says he has suffered harm from two sources:
(1) the termination of his employment, which he says resulted
from discrimination or retaliation or both, and (2) the
memorandum notifying him he would have to return to rotating
routes or work in the warehouse, which he says was a threat to
withdraw the accommodation Servistar was obligated to grant
him.
A. Termination and Retaliation
As to the first harm, the district court carefully
parsed Champagne's discrimination and retaliation claims, and
concluded that Champagne did not meet the statutory definition
of disabled and that his evidence of retaliation was
insufficient. We take a shorter route. We have no doubt that
Champagne suffered from a mental impairment, a first step
toward establishing disability under the ADA. But even if
Champagne could establish he was disabled within the meaning of
the ADA, his case on termination fails on the issue of
causation. Champagne has not produced evidence from which a
finder of fact could reasonably find that Servistar "discharged
[him] in whole or in part because of [his] disability," Equal
Employment Opportunity Comm'n v. Amego, Inc., 110 F.3d 135, 141
n.2 (1st Cir. 1997), or that there was a "causal connection
between [his] discharge and the conduct" of filing an ADA
complaint. Soileau, 105 F.3d at 16.
Servistar has produced considerable proof that
Champagne was dismissed because he falsified the DOT log books
in violation of company policy and DOT regulations, and thereby
obtained unearned pay. This proof comes from Servistar's
cross-referencing the phone records against DOT logs for all
Westfield terminal drivers, not just Champagne. This audit
proved that three drivers, including Champagne, were falsifying
their DOT logs on a regular basis. Champagne does not
challenge the accuracy of the telephone records demonstrating
that Champagne was in the motel room making calls during times
he was supposed to be driving, nor does he contest that he
falsified his logs. Servistar terminated all three who had
multiple violations, not just Champagne. Servistar has fired
other drivers since that time for the same violations.
This evidence meets Servistar's burden of
articulating a legitimate and nondiscriminatory reason for
terminating Champagne. Under the McDonnell Douglas framework,
see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),
the burden shifts back to Champagne to show that Servistar's
proffered reason is a pretext for discrimination based on
disability, see Mesnick v. General Elec. Co., 950 F.2d 816,
823-24 (1st Cir. 1991), or for retaliation, see id. at 827-28.
To make this showing, "[i]t is not enough for [Champagne]
merely to impugn the veracity of [Servistar's] justification;
he must elucidate specific facts which would enable a jury to
find the reason given is not only a sham, but a sham intended
to cover up the employer's real motive." Id. at 824 (internal
quotation marks and citation omitted).
Champagne's response is twofold. His first argument
is that consideration of the larger context of events compels
the conclusion that he was terminated because of discrimination
or retaliation. His second argument is that the alleged
misconduct for which he was fired was something which all
Servistar drivers did, not just Champagne. As to context,
Champagne notes that he was terminated only six months after he
filed his discrimination complaint, despite years of good
performance evaluations. Moreover, he says, the June 21 memo
requiring all drivers to rotate routes, after Servistar had for
years allowed him to drive a set route, shows discriminatory
animus. As to his misconduct, Champagne provided an affidavit
from a fellow driver, Jerry Gilbert, that "[t]he actions of
Phillip Champagne of logging time which alleges drive time
logged in longer than the time actually driven, was a common
practice within the ranks of Servistar's truck drivers, and
this fact was known by the supervisors of the truck drivers
prior to Champagne's termination."
The Gilbert affidavit is Champagne's strongest
evidence, but it does not suffice, either alone or with the
context evidence, to permit a reasonable inference that
Champagne's firing was motivated by discrimination and
retaliation. Accepting as true that historically some
Servistar drivers falsified logs, it is undisputed that the two
new managers of the Westfield terminal decided to do something
about the problem when it was brought to their attention. The
test these managers devised to determine if there had been
falsification of records -- comparing phone records with
driving logs -- was plainly neutral. It is undisputed that
this test was applied equally to everyone. It is undisputed
that the test turned up four offenders, including Champagne,
that the employer applied the same test equally to each of
these four for a second month to determine if there was a
pattern, and that when the second test showed three of the four
had repeatedly falsified their logs, including Champagne, they
were treated equally: each had his employment terminated. And
it is undisputed that Servistar has continued to cross-
reference phone records against driving logs on a random basis
and terminate those who the test shows falsified the log. No
inference of discrimination or retaliation may reasonably be
drawn from these facts. That others may have turned up clean
on the test although they had falsified logs, or that others in
the past had falsified logs but not been caught, adds nothing
to Champagne's case. More specifically, Champagne produced no
evidence that audits were conducted in the past or that the
company retained drivers who were shown by an audit to have
repeatedly falsified records.
The contextual evidence offered to show Servistar's
motive to discriminate or retaliate against Champagne is also
insufficient, and in any event cannot overcome the fact that
Champagne was treated no differently than his fellow drivers.
Given the absence of differential treatment, the district court
properly concluded that Champagne had failed to produce
evidence of causation sufficient to survive summary judgment.
B. Threatened withdrawal
Champagne finally claims that Servistar unlawfully
threatened his enjoyment of a reasonable accommodation under
the ADA when he filed a disability discrimination charge with
MCAD and EEOC on July 15, 1993. The threat, he claims, came in
the form of the June 21 memorandum. That memo stated that
Champagne, along with all others driving a set route, would be
required to drive rotating routes thirty days from the date of
the memo. The memo explained: "[Y]ou must perform all the
essential functions of your truck driving position. Rotation
of routes within a scheduled departure group is an essential
function of the truck driver position at SERVISTAR." The memo
further explained that Champagne would be reassigned to light
duty in the warehouse if "medical restrictions keep you from
rotation within a scheduled departure group. . . . This
accommodation will continue until your medical condition
permits you to perform the essential functions of truck
driving."
On the evidence, Champagne's claim does not survive.
He relies on part of the ADA's anti-retaliation statute, 42
U.S.C. 12203(b):
It shall be unlawful to coerce,
intimidate, threaten, or interfere with
any individual in the exercise or
enjoyment of, or on account of his or her
having exercised or enjoyed, or on account
of his or her having aided or encouraged
any other individual in the exercise or
enjoyment of, any right granted or
protected by this chapter.
It is doubtful Champagne has shown that he had "exercised a
right granted or protected by the ADA." Before he filed his
EEOC complaint, Champagne had not asserted he was disabled
within the meaning of the ADA. He certainly never provided
Servistar with any medical evidence from which a conclusion of
disability, as defined in the ADA, was warranted. That
Servistar voluntarily decided to permit Champagne to avoid
route-rotation for a period of time does not establish that
Champagne was disabled or that avoidance of route-rotation was
a required reasonable accommodation.
In this context, like the district court, we do not
think the memorandum may be reasonably viewed as a threat or
interference under 12203(b). Under the ADA, Servistar has
substantial leeway in defining the essential functions of its
truck driving positions, and it may require its drivers to be
able to perform those functions. See 42 U.S.C. 12111(8).
It is true that other Servistar managers had not enforced the
route-rotation policy strictly or cross-checked phone records
against DOT logs in the past. But that does not permit the
conclusion that the decision by new managers to enforce company
policy, and to audit for non-compliance, is a threat or
interference with ADA rights. We stress that the decision of
new managers to enforce the policy was applied uniformly. The
district court properly granted summary judgment in favor of
Servistar on this claim.
The decision of the district court is affirmed.
Costs are awarded to the defendant.