Mailhot v . FedEx Ground Package Sys. CV-02-257-JD 08/29/03
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Robert Mailhot
v. Civil N o . 02-257-JD
Opinion N o . 2003 DNH 147
FedEx Ground Package System, Inc.
O R D E R
The plaintiff, Robert Mailhot, brings suit under the
Americans with Disabilities Act (“ADA”) against FedEx Ground
Package System, Inc., alleging that FedEx discriminated against
him based on his disability. The court previously ruled in this
case that the ADA provides protection to employees, not to
independent contractors. FedEx moves for summary judgment on the
grounds that Mailhot was an independent contractor and that he
cannot prove his ADA claims.
Standard of Review
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial.1 See Anderson v . Liberty Lobby, Inc.,
477 U.S. 2 4 2 ,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See id. at 255.
Background
Robert Mailhot began work as a delivery truck driver in
January of 1998 when he purchased a truck and a FedEx delivery
route. He signed FedEx’s “Pick-Up and Delivery Contractor
Operating Agreement,” which provided for a one-year term of
service with automatic renewals. The agreement consists of
seventy-seven pages of directions and addenda pertaining to
equipment and operations, insurance and indemnities, payment for
services, performance-based service payments, drivers’ duties,
unusual expenses of operation, and the flex program. The
1
Mailhot misunderstands the standard of review applicable to
motions for summary judgment as limiting the court to identifying
issues. Instead, although “at the summary judgment stage the
judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial,” summary judgment is appropriate
“unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.” Anderson, 477
U.S. at 249.
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agreement also provided for termination of drivers and stated
that Mailhot was an independent contractor, not an employee.
In March of 2001, Mailhot was diagnosed with bilateral
degenerative arthritis in his hips. Mailhot notified his
supervisor, Tony Gamache, of his condition. Mailhot knew that
his condition would limit how long he would be able to continue
his work as a delivery truck driver. In August of 2001,
Mailhot’s physician recommended that he be given an easier route.
Mailhot asked FedEx to reduce the number of stops on his route,
to have his truck loaded by 7:00 am, to have bulk stops removed
from his route, and to have Pitco agree to a pickup time over
several hours to allow flexibility in his schedule.
Mailhot sold his route in December of 2001. He applied for
and was awarded social security benefits. He has been unable to
work since early January of 2002.
Discussion
Mailhot’s ADA claim is that FedEx did not provide reasonable
accommodation for his disability due to arthritis in his hips.
He also alleges that in response to his requests, his supervisor,
Tony Gamache, did not take his requests seriously and instead
mocked, harassed, and threatened him which caused him to sell his
route. FedEx moves for summary judgment on the grounds that
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Mailhot was an independent contractor and, alternatively, that it
is entitled to judgment as a matter of law on Mailhot’s ADA
claims.
A. Employee or Independent Contractor
In determining whether a hired party is an employee, who is
protected by the ADA, or an independent contractor, who is not,
the court applies a broad meaning of employee, consonant with the
remedial purposes of the ADA. Clackamas Gastroenterology Assoc.
v . Wells, 123 S . C t . 1673, 1678 n.6 (U.S. 2003). The common-law
test used for determining employment status provides as follows:
“‘[The court] consider[s] the hiring party’s right to
control the manner and means by which the product is
accomplished. Among the other factors relevant to this
inquiry are the skill required; the source of the
instrumentalities and tools; the location of the work;
the duration of the relationship between the parties;
whether the hiring party has the right to assign
additional projects to the hired party; the extent of
the hired party’s discretion over when and how long to
work; the method of payment; the hired party’s role in
hiring and paying assistants; whether the work is part
of the regular business of the hiring party; whether
the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired
party.’”
Id. at 1677-78 n.5 (quoting Nationwide Mut. Ins. C o . v . Darden,
503 U.S. 3 1 8 , 322 (1992) quoting Community for Creative Non-
Violence v . Reid,
490 U.S. 7 3 0 , 751-52 (1989) (citing Restatement
(Second) of Agency § 220(2) (1958))). “In weighing these
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factors, all of the incidents of the relationship must be
assessed and weighed with no one factor being decisive.” Darden,
503 U.S. at 324 (quotation omitted). Mailhot bears the burden of
establishing the existence of a protected employment
relationship. See, e.g., Knight v . United Farm Bureau Mut. Ins.
Co., 950 F.2d 3 7 7 , 380 (7th Cir. 1991) (analyzing employment
relationship in Title VII context).
Mailhot did not present his argument for employee status
under the Darden factors, but instead provided a narrative
description of circumstances he contended indicated employee
status. C f . Mazzei v . Rock-N-Around Trucking, Inc., 246 F.3d
956, 964-65 (7th Cir. 2001) (providing analysis of employment
status of owner-operator drivers under Darden factors); Berger
Transfer & Storage v . Cent. States, Southeast & Southwest Areas
Pension Fund,
85 F.3d 1374, 1378-79 (8th Cir. 1996) (same);
Rumpke v . Rumpke Container Serv., Inc.,
240 F. Supp. 2d 7 6 8 , 772-
73 (S.D. Ohio 2002) (same). Contrary to the Darden standard,
FedEx emphasized an entrepreneurial risk factor used in Labor
Relations Div. v . Teamsters Local 379,
156 F.3d 13 (1st Cir.
1998), taken from the legislative history of the Labor Management
Relations Act, which is not applicable here.
Id. at 2 0 . The
entrepreneurial risk factor will not be considered.
Although the facts pertinent to many of the Darden factors
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might indicate independent contractor status if they were
considered in the context of trial, in the summary judgment
context the evidence must be taken in the light most favorable to
Mailhot. Taken in the proper light, the factual record is not
undisputed and does not show that FedEx is entitled to judgment
as a matter of law on the issue of employment status. Therefore,
summary judgment on that issue is denied.
B. ADA Claims
Mailhot brings claims under the ADA that FedEx failed to
provide reasonable accommodation for his disability, permitted a
hostile work environment arising from his disability, and
retaliated against him for requesting accommodation. FedEx moves
for summary judgment contending that Mailhot was not qualified to
do his job with or without reasonable accommodation, that he was
not discharged because of his disability,2 that the events were
not sufficiently severe or pervasive to constitute a hostile work
environment, and that he cannot prove retaliation.
2
Because Mailhot does not claim that he was discharged
because of his disability, this part of FedEx’s motion, which is
not supported with any developed argumentation or citation to
authority, will not be considered.
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1. Reasonable accommodation.
“In order to avoid summary judgment on his reasonable
accommodation claim, [Mailhot] must produce enough evidence for a
reasonable jury to find that (1) he is disabled within the
meaning of the ADA, (2) he was able to perform the essential
functions of the job with or without a reasonable accommodation,
and (3) [FedEx], despite knowing of [Mailhot’s] disability, did
not reasonably accommodate it.” Rocafort v . IBM Corp., 334 F.3d
115, 119 (1st Cir. 2003). “An essential function is a
fundamental job duty of the employment position the individual
with a disability holds or desires.” Ward v . Mass. Health
Research Inst., Inc.,
209 F.3d 2 9 , 34 (1st Cir. 2000) (quotation
omitted). Although reasonable accommodation may include job
restructuring and modified work schedules, an employer has no
obligation to modify an essential job function or to reallocate
an essential job function to other employees in order to
accommodate a disabled employee. Calef v . Gillette Co.,
322 F.3d
7 5 , 86 n.8 (1st Cir. 2003); Soto-Ocasio v . Federal Express Corp.,
150 F.3d 1 4 , 20 (1st Cir. 1998). If a requested accommodation
would allow a disabled employee to perform his essential job
functions, an employer’s failure to engage in an interactive
process with the employee about accommodation may constitute a
failure to provide reasonable accommodation. Kvorjak v . Maine,
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259 F.3d 4 8 , 58 (1st Cir. 2001); Garcia Ayala v . Lederle
Parenterals, Inc.,
212 F.3d 6 3 8 , 648 n.12 (1st Cir. 2000).
It is undisputed that Mailhot is disabled within the meaning
of the ADA. It is also undisputed that Mailhot continued to
work, despite his disability, until he sold his route in December
of 2001, making him a qualified individual under the ADA. FedEx
knew that Mailhot was disabled.
During the last year of his work, Mailhot requested
accommodations, including the time and manner of loading his
truck, the number and type of stops on his route, his route
schedule, and the location of packages to be picked u p . The
parties dispute whether the accommodations that Mailhot requested
were reasonable in light of the essential functions of the job.
It is undisputed, however, that FedEx denied most if not all of
Mailhot’s requests for accommodation and did not engage in any
interactive process to determine whether accommodation was
possible and reasonable. Therefore, based on the present record,
summary judgment is not appropriate on the reasonable
accommodation part of the claim.
2. Hostile environment.
FedEx contends that Mailhot’s allegations in support of his
claim of a hostile work environment are not sufficiently severe
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or pervasive to support the claim.3 To support a claim of
hostile work environment, the discriminatory harassment must be
severe or pervasive, based on all the circumstances, including
“the frequency and severity of the discriminatory conduct,
whether the conduct was physically threatening or humiliating,
whether the conduct unreasonably interfered with the employee’s
work performance, and the effect of the conduct on the employee’s
psychological well-being.” Che v . Mass. Bay Trans. Auth., 2003
WL 22006248, at *6 (1st Cir. Aug. 2 6 , 2003). Whether the
harassment is sufficiently severe or pervasive is an objective
analysis based on “common sense, and an appropriate sensitivity
to social context.” Mulvihill v . Top-Flite Golf Co.,
335 F.3d
1 5 , 23 (1st Cir. 2003) (quotation.
“As a general matter, these are questions best left for the
jury.” Che, 2003 WL 22006248, at * 6 . The record presented here
does not suggest that this case varies from the norm. Therefore,
summary judgment is not appropriate on the question of hostile
work environment.
3
Although there is some question as to whether the First
Circuit would recognize a hostile work environment under the ADA,
FedEx has not challenged the claim on that basis. See Rocafort,
334 F.3d at 120.
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3 . Retaliation
“Under the ADA, as with claims of retaliation under Title
VII, [Mailhot] must establish that (1) he engaged in protected
conduct, (2) he suffered adverse employment action, and (3) there
was a causal connection between his conduct and the adverse
action.” Benoit v . Tech. Mfg. Corp., 331 F.3d 166, 177 (1st Cir.
2003). Mailhot contends that he engaged in protected conduct by
requesting that FedEx remind customers to leave packages in a
pre-determined area, by giving Tony Gamache his doctor’s note, by
requesting prompt loading of his truck, stop counts on his
deliveries, and removal of bulk stops from his route, and by
notifying Gamache that he was seeking legal assistance. In
response, Mailhot contends, Gamache berated him, threatened to
fire him, and on one occasion, in retaliation for Mailhot seeking
legal assistance, Gamache sent him for drug testing.
FedEx challenges only the event when Mailhot contends that
Gamache retaliated by sending him for drug testing. FedEx
asserts, based on Gamache’s deposition testimony, that the
Department of Transportation required drug testing and that
Mailhot’s selection on that occasion was random, not retaliatory.
Taken in the context of Gamache’s other behavior toward Mailhot
and in the proper light for summary judgment, a factual dispute
prevents judgment as a matter of law on that event. FedEx does
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not challenge the other bases raised by Mailhot for the
retaliation claim.
Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document n o . 11) is denied. The court strongly
encourages counsel to engage in good faith efforts to settle this
case, given the risk and difficulties the case presents for both
sides.
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
August 2 9 , 2003
cc: Eleanor H . MacLellan, Esquire
Andrea K. Johnstone, Esquire
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