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DeCamp v. Dollar Tree Stores6/14/2005
ctively offensive. We make this determination "by 'looking at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23). Most reasonable people would consider pounding a desk with one's fist or kicking over a register full of money to be physically threatening and would consider being screamed at in front of co-workers to be humiliating. The plaintiff, as evidenced by her tears and depression, considered the conduct to be hostile and offensive. Viewed in a light most favorable to plaintiff, sufficient evidence exists here to meet this element of a hostile work environment claim.
Finally, Dollar Tree's admitted knowledge of Braz's claimed mistreatment of employees generally, and women specifically, clearly qualifies as a basis for employer liability.
We therefore hold that, when viewing the evidence in the light most favorable to plaintiff, she has created a genuine issue of material fact about each element of her hostile work environment claim. Thus, summary judgment in favor of defendants on plaintiff's gender-based hostile work environment claims was reversible error.
B. Disability Discrimination
The plaintiff also argues that defendants terminated her because of her disability. The now familiar disparate treatment theory can be adapted to assert a claim of disability discrimination. Equal Employment Opportunity Commission v. Amego, Inc., 110 F.3d 135, 141 n.2 (1st Cir. 1997) (analyzing a disability discrimination claim under the Americans with Disabilities Act). Accordingly, the employee first must prove a prima facie case of disability discrimination: (1) he or she was disabled within the meaning of FEPA and RICRA; (2) that the employee was a "qualified" individual, which means that, "with or without reasonable accommodation, she was able to perform the essential functions of her job"; (3) "that the employer discharged her in whole or in part because of her disability." Id. Once a prima facie case has been established, the employer then must offer a legitimate, nondiscriminatory reason for discharging that employee and then the employee must convince the fact-finder that the reason offered by the employer is a pretext for discriminatory animus. See Raytheon Co. v. Hernandez, ___ U.S. __, __, 124 S.Ct. 513, 517-18 & n.3 (2003) (applying the McDonnell Douglas burden-shifting framework in a disability-based disparate treatment claim). Because we agree with the motion justice that plaintiff has failed to establish a prima facie case of disability discrimination, we need not reach these second and third steps of the burden-shifting framework.
Paralleling the federal Americans with Disabilities Act, proving disability for purposes of FEPA or RICRA is not a simple endeavor. To reiterate briefly, both statutes define disability as "any physical or mental impairment which substantially limits one or more major life activities" and further defines "major life activities" as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Section 28-5-6(4), (4)(ii); ยง 42-112-1(d). Little doubt exists about whether plaintiff's depression, established by the statements of plaintiff's psychiatrist, qualifies as a mental impairment. Calero-Cerezo v. United States Department of Justice, 355 F.3d 6, 20 (1st Cir. 2004) (holding depression is a mental impairment).
The more crucial question, separate and apart from whether it i
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