August v. Offices Unlimited
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August v. Offices Unlimited, (1st Cir. 1992).
Opinion
USCA1 Opinion
D e c e m b e r 1 8 , 1 9 9 2
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____________________
No. 91-2329
IRVING AUGUST,
Plaintiff, Appellant,
v.
OFFICES UNLIMITED, INC.,
Defendant, Appellee.
_______________________
ERRATA SHEET
ERRATA SHEET
The opinion of the Court issued on December 11, 1992, is
corrected as follows:
page 3, footnote 2, line 8: delete comma after "unless."
page 12, line 14: insert comma after "accommodations."
page 14, line 9 of first full paragraph: delete comma after
"full-time."
December 11, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-2329
IRVING AUGUST,
Plaintiff, Appellant,
v.
OFFICES UNLIMITED, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Pettine,* Senior District Judge.
_____________________
____________________
Howard I. Wilgoren for appellant.
__________________
William B. Koffel with whom Foley, Hoag & Eliot was on brief for
_________________ ___________________
appellee.
____________________
____________________
____________________
*Of the District of Rhode Island, sitting by designation.
CAMPBELL, Senior Circuit Judge. This appeal arises
____________________
from an alleged wrongful employment termination. Defendant-
appellee Offices Unlimited, Inc. ("OUI") fired plaintiff-
appellant Irving August from his position as an office
furniture salesman in May 1989. In 1990, August filed an
eleven-count complaint against OUI and two other defendants
in United States District Court for the District of
Massachusetts. On October 30, 1991, the district court
granted defendants' summary judgment motion as to all eleven
claims raised by August's complaint.1
The sole issue now presented is whether the
district court erred in granting summary judgment in favor of
OUI on August's claim that his employment termination
constituted a discriminatory discharge on the basis of a
handicap in violation of Massachusetts statute Mass. Gen. L.
ch. 151B, 4(16).2 For the reasons stated below, we affirm.
____________________
1. In addition to the appealed state law claim of
discriminatory discharge, these included federal and state
claims alleging unlawful age discrimination, intentional
infliction of emotional distress, breach of employment
contract, wrongful discharge, and claims arising out of
August's participation in a limited partnership. August did
not appeal from the grant of summary judgment as to any of
these. The district court's jurisdiction over the state law
claims was conferred by 28 U.S.C. 1367(a). This court's
jurisdiction to hear August's present appeal is conferred by
28 U.S.C. 1291.
2. The Massachusetts statute at issue states, in relevant
part, that it is an unlawful practice
-3-
I. BACKGROUND
__________
August worked as an office furniture salesman for
OUI and its predecessor company since 1966. He began
experiencing symptoms of clinical depression in late 1988.
In September 1988, August went to his internist, Dr. Martin
Vogel, for a routine physical examination. At this visit,
August told Dr. Vogel that he felt distressed because of
number of personal and family problems, including the fact
that his pay from OUI had been cut by fifty percent.
On February 14, 1989, August visited Dr. Vogel
again. August asked the doctor to write a letter to OUI
____________________
[f]or any employer personally or through
an agent, to dismiss from
employment . . ., because of his
handicap, any person alleging to be a
qualified handicapped person, capable of
performing the essential functions of the
position involved with reasonable
accommodation, unless the employer can
demonstrate that the accommodation
required to be made to the physical or
mental limitations of the person would
impose an undue hardship to the
employer's business.
Mass. Gen. L. ch. 151B, 4(16).
August's claim of discrimination on the basis of a
handicap, the sole claim on appeal, can be maintained only
against OUI, as the other two defendants were not named as
respondents in a charge of discrimination filed by August
with the Massachusetts Commission Against Discrimination.
See Mass. Gen. L. ch. 151B, 5, 9. At the request of OUI's
___
counsel, August moved for voluntary dismissal of his appeal
as to those two defendants. That motion was granted by this
court on January 14, 1992. Thus, OUI is the only appellee in
this case.
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USCA1 Opinion
D e c e m b e r 1 8 , 1 9 9 2
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____________________
No. 91-2329
IRVING AUGUST,
Plaintiff, Appellant,
v.
OFFICES UNLIMITED, INC.,
Defendant, Appellee.
_______________________
ERRATA SHEET
ERRATA SHEET
The opinion of the Court issued on December 11, 1992, is
corrected as follows:
page 3, footnote 2, line 8: delete comma after "unless."
page 12, line 14: insert comma after "accommodations."
page 14, line 9 of first full paragraph: delete comma after
"full-time."
December 11, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-2329
IRVING AUGUST,
Plaintiff, Appellant,
v.
OFFICES UNLIMITED, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Pettine,* Senior District Judge.
_____________________
____________________
Howard I. Wilgoren for appellant.
__________________
William B. Koffel with whom Foley, Hoag & Eliot was on brief for
_________________ ___________________
appellee.
____________________
____________________
____________________
*Of the District of Rhode Island, sitting by designation.
CAMPBELL, Senior Circuit Judge. This appeal arises
____________________
from an alleged wrongful employment termination. Defendant-
appellee Offices Unlimited, Inc. ("OUI") fired plaintiff-
appellant Irving August from his position as an office
furniture salesman in May 1989. In 1990, August filed an
eleven-count complaint against OUI and two other defendants
in United States District Court for the District of
Massachusetts. On October 30, 1991, the district court
granted defendants' summary judgment motion as to all eleven
claims raised by August's complaint.1
The sole issue now presented is whether the
district court erred in granting summary judgment in favor of
OUI on August's claim that his employment termination
constituted a discriminatory discharge on the basis of a
handicap in violation of Massachusetts statute Mass. Gen. L.
ch. 151B, 4(16).2 For the reasons stated below, we affirm.
____________________
1. In addition to the appealed state law claim of
discriminatory discharge, these included federal and state
claims alleging unlawful age discrimination, intentional
infliction of emotional distress, breach of employment
contract, wrongful discharge, and claims arising out of
August's participation in a limited partnership. August did
not appeal from the grant of summary judgment as to any of
these. The district court's jurisdiction over the state law
claims was conferred by 28 U.S.C. 1367(a). This court's
jurisdiction to hear August's present appeal is conferred by
28 U.S.C. 1291.
2. The Massachusetts statute at issue states, in relevant
part, that it is an unlawful practice
-3-
I. BACKGROUND
__________
August worked as an office furniture salesman for
OUI and its predecessor company since 1966. He began
experiencing symptoms of clinical depression in late 1988.
In September 1988, August went to his internist, Dr. Martin
Vogel, for a routine physical examination. At this visit,
August told Dr. Vogel that he felt distressed because of
number of personal and family problems, including the fact
that his pay from OUI had been cut by fifty percent.
On February 14, 1989, August visited Dr. Vogel
again. August asked the doctor to write a letter to OUI
____________________
[f]or any employer personally or through
an agent, to dismiss from
employment . . ., because of his
handicap, any person alleging to be a
qualified handicapped person, capable of
performing the essential functions of the
position involved with reasonable
accommodation, unless the employer can
demonstrate that the accommodation
required to be made to the physical or
mental limitations of the person would
impose an undue hardship to the
employer's business.
Mass. Gen. L. ch. 151B, 4(16).
August's claim of discrimination on the basis of a
handicap, the sole claim on appeal, can be maintained only
against OUI, as the other two defendants were not named as
respondents in a charge of discrimination filed by August
with the Massachusetts Commission Against Discrimination.
See Mass. Gen. L. ch. 151B, 5, 9. At the request of OUI's
___
counsel, August moved for voluntary dismissal of his appeal
as to those two defendants. That motion was granted by this
court on January 14, 1992. Thus, OUI is the only appellee in
this case.
-4-
recommending that August be given a month's leave of absence
from work. August later presented this letter to OUI
management. Dr. Vogel's letter stated that August "has been
severely distressed with resultant weight loss, fatigue and
weakness. It is most desirable that he have a month's leave
from work to avoid continued stress. During this time he
will receive therapy in hopes that on his return he can
better compensate."
At a February 1989 meeting with OUI management
August requested a one-month leave of absence. OUI responded
to this request by offering August a six-week paid leave.
August preferred to continue working another month until
April 1st because the weather would be better then. OUI
initially agreed to the April 1st start, but later asked
August to leave on March 27, 1989, because of complaints OUI
had received from one of August's customers. Before leaving,
August met with OUI sales personnel to arrange for his
accounts to be covered by other sales representatives while
he was away.
In early May, August contacted Mel Goldberg, his
supervisor at OUI, to notify him that he would not be able to
return to work on May 8, 1989, the scheduled end of the leave
period. August also sent Goldberg a letter from Dr. Stanley
Wallace, a psychiatrist. Dr. Wallace's letter, dated May 3,
1989, stated that August "is currently under my care for
-5-
treatment of his Major Depression. He has shown significant
improvement in his condition but has not yet fully recovered.
My estimation is that he will require another two to four
weeks before complete recovery is achieved." Goldberg told
August that he could take an additional two weeks off, until
May 22, 1989, but that the time would count as vacation.
At August's request, he met with Goldberg and
Marilyn Campbell, OUI's Director of Administration, on May
11, 1989.
According to August's deposition, at the meeting he told the
OUI officials that he expected to feel ready to return to
work by May 22. When asked whether he was "100 percent
better," August replied, "I don't know if I'm 100 percent
until I start working." Goldberg told August that the
company would expect "110 percent" from him and that August
was "going to be under a lot more pressure than [he was]
prior to leaving." August was advised that business
conditions were worsening, that fewer sales representatives
were available to handle customer accounts, and that he would
be assigned different accounts when he returned.
August says he asked if he could "come back on a
part-time basis" and if he "could miss the first couple of
sales meetings because the sales meetings were in the
morning" when he experienced side effects of the
antidepressant medication. Goldberg refused both requests.
-6-
Ms. Campbell suggested that if August continued to feel
unable to work, he should consider applying for disability
benefits under the company's insurance plan.
August claims that the May 11 meeting so distressed
him as to reactivate his depression. On May 12, 1989, August
made out and executed a claim application under the company's
disability plan. In the signed application, August asserted
that he had been totally and continuously disabled since
March 24, 1989. August also wrote on the form that he did
not know when he would be able to resume work. An attending
physician's statement attached to the application, completed
by Dr. Wallace, verified that August had been totally
disabled since March 1989 and that it was unknown when he
could resume part-time or full-time work.
In a letter dated May 18, 1989, August's attorney
notified OUI that August had filed for disability benefits.
In that letter the attorney stated that "[t]he commencement
date of Mr. August's disability was March 27, 1989." The
letter made no mention of when August would return to OUI.
Four days later, August's attorney wrote to Goldberg again,
maintaining that August had not resigned from OUI and that it
was his "intention to return to his employment with OUI upon
the conclusion of his disability." Again, August's attorney
did not indicate when August might return.
-7-
On May 22, 1989, the end of the second leave of
absence, August did not report for work. On May 25, 1989,
Campbell, on OUI's behalf, sent August a letter informing him
that his employment with OUI was terminated effective June 1,
1989, because "it is certainly unclear when and if you will
be able to return to work." The letter explained that OUI
could not continue to have other sales representatives
temporarily cover August's accounts because "continuity of
staff managing account business is, as you know, critical in
our industry." Except for the termination letter, there is
no evidence of any communication between August and OUI on or
after May 22, 1989.
August renewed his claim for disability benefits in
December 1989, February 1990, April 1990, and June 1990.
Each signed application stated that he had been totally and
continuously disabled since late March 1989, the day he began
his first leave of absence from OUI. Attached to each
application was a statement from Dr. Wallace, verifying the
fact that August had been totally disabled since March 1989.
II. STANDARD OF REVIEW
__________________
The district court granted OUI's summary judgment
motion on all counts. Regarding the handicapped
discrimination claim, the court found that August was not a
"qualified handicapped person" and that, even if he was, OUI
had made all necessary reasonable accommodations to his
-8-
handicap. The appropriate standard of review for cases
disposed of by summary judgment was recently articulated by
this Court in another employment discrimination case.
Since appellate review of a grant of
summary judgment is plenary, the court of
appeals, like the district court, "must
view the entire record in the light most
hospitable to the party opposing summary
judgment, indulging all reasonable
inferences in that party's favor." An
appellate panel is not restricted to the
district court's reasoning but can affirm
a summary judgment on any independently
sufficient ground. In the end, the entry
of summary judgment can be upheld only if
"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."
Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.
_______ __________________
1991) (citations omitted), cert. denied, 112 S. Ct. 2965
_____________
(1992); see Fed. R. Civ. P. 56.
___
We accordingly review the district court's grant of
summary judgment de novo, looking at the entire record in the
__ ____
light most favorable to August. However, to avoid summary
judgment, August must be able to point to specific, competent
evidence to support his claim. Wynne v. Tufts Univ. School
_____ ___________________
of Medicine, No. 92-1437, slip op. at 9, 1992 U.S. App. LEXIS
___________
24933 (1st Cir. Oct. 6, 1992); Mesnick, 950 F.2d at 822.
_______
Mere allegations, or conjecture unsupported in the record,
are insufficient to raise a genuine issue of material fact.
-9-
Wynne, No. 92-1437, slip op. at 10; Mack v. Great Atl. & Pac.
_____ ____ _________________
Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
_______
III. DISCUSSION
__________
"Chapter 151B protects people against unlawful
discrimination. It does not protect against all instances of
arbitrary action or from poor managerial judgment." Wheelock
________
College v. Massachusetts Comm'n Against Discrimination, 355
_______ ____________________________________________
N.E.2d 309, 314 (Mass. 1976). The provision under which
August sued protects only "qualified handicapped persons."
See Mass. Gen. L. ch. 151B, 4(16). Thus, August must
___
demonstrate that he is a "qualified handicapped person."
Conway v. Boston Edison Co., 745 F. Supp. 773, 781 (D. Mass.
______ _________________
1990); Mueller v. Corenco Corp., 13 M.D.L.R. 1146, 1153
_______ ______________
(Mass. Comm'n Against Discrim. 1991); Silva v. Fairhaven
_____ _________
Marine, Inc., 11 M.D.L.R. 1173, 1183 (Mass. Comm'n Against
____________
Discrim. 1989). Massachusetts statute Mass. Gen. L. ch.
151B, 1(16) defines the term "qualified handicapped person"
as "a handicapped person who is capable of performing the
essential functions of a particular job, or who would be
capable of performing the essential functions of a particular
job with reasonable accommodation to his handicap."
Like the district court, we shall assume, although
without deciding, that viewing the facts most favorably to
August, his depression rendered him "handicapped" within the
meaning of Section 1(16). See Wynne, No. 92-1437, slip op.
___ _____
-10-
at 6 n.2; see also Shea v. Tisch, 870 F.2d 786, 786 (1st Cir.
________ ____ _____
1989) (person with "anxiety disorder" was handicapped for
purposes of federal discrimination law); McWilliams v. A.T. &
__________ ______
T. Information Systems, Inc., 728 F. Supp. 1186, 1188 (W.D.
_____________________________
Pa. 1990) (person with "severe depression and anxiety" was
handicapped for purposes of Pennsylvania discrimination
statute).3 August concedes that he was not capable of
performing his job without accommodation by OUI. Thus, we
must decide whether or not there was at least a genuine issue
of material fact that, if OUI made reasonable accommodation
to August's handicap, he would have been able to perform his
job.
August contends that he would have been able to
return to work on May 22, 1989, if OUI had only granted his
requests to miss some morning meetings and to work part-time.
Assuming, for purposes of argument, that permission to miss
sales meetings and work part-time would have been "reasonable
accommodations" to require the employer to have made in these
circumstances, the record is nonetheless fatally bereft of
indication that August possessed the ability to perform his
____________________
3. In interpreting Massachusetts discrimination statutes,
Massachusetts courts may look to the interpretations of
analogous federal statutes, but are not bound thereby.
College-Town v. Massachusetts Comm'n Against Discrimination,
____________ ____________________________________________
508 N.E.2d 587, 591 (Mass. 1987).
-11-
job.4 The record indicates that from approximately March
24, 1989, until the time this case was argued, August was
simply incapable of performing the essential functions of any
job, let alone a furniture sales position at OUI. This fact
was established by August's own sworn statements on numerous
disability insurance claim forms, in which he asserted that
he was totally and continuously disabled from March 24, 1989,
____________________
4. We do not decide whether August's requests to report late
to work and to work on a part-time schedule would have been
reasonable accommodations to have required of the employer
under these circumstances. Federal regulations state that
"job restructuring" and "part-time or modified work
schedules" may sometimes constitute reasonable
accommodations. 29 C.F.R. 1613.704(b). However, employers
"are not required to find another job for an employee who is
not qualified for the job he or she was doing." School Bd.
__________
of Nassau County v. Arline, 480 U.S. 273, 289 n.19 (1987).
_________________ ______
Employers are only required not to "deny an employee
alternative employment opportunities reasonably available
under the employer's existing policies." Id.
___
Furthermore, whether schedule or job description changes
are reasonable accommodations depends on the circumstances.
In cases similar to this one, courts have found no duty to
accommodate handicapped employees by modifying the job
schedule or description. See, e.g., Guice-Mills v.
___ ____ ___________
Derwinski, 967 F.2d 794, 797-98 (2d Cir. 1992) (holding that
_________
a nurse whose depression and sedating medication forced her
to report to work two hours late was not "otherwise
qualified" for her position); Chiari v. City of League City,
______ ____________________
920 F.2d 311, 318 (5th Cir. 1991) ("[T]he City does not have
to create a new job for Chiari; therefore, it does not have
to create a new part-time position for him."); see also
_________
Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 441-42
___________ ______________________
(6th Cir. 1991) (affirming decision that employer had no duty
to place mentally-ill employee in a stress-free environment);
Shea v. Tisch, 870 F.2d 786, 788-90 (1st Cir. 1989)
____ _____
(affirming decision that employer had no duty to reassign
worker with anxiety disorder to a less stressful location, in
part because it would violate a collective bargaining
agreement).
-12-
onward. Written statements signed by his psychiatrist, Dr.
Wallace, verify his total disability.
For example, August filed his first application for
disability benefits with the Provident Life and Accident
Insurance Company on May 12, 1989, one day after the May 11
meeting with OUI. On that form, August attested that the
dates of his "total disability" were "March 24, 1989 through
continuing." Dr. Wallace, when asked on the accompanying
physician's form to describe the "patient's present
limitations," wrote "total disability." Dr. Wallace also
affirmed that, in his opinion, August was "now necessarily
totally disabled." On all the other insurance forms in the
record filed in December 1989, February 1990, April 1990,
and June 1990 August declares himself to be totally
disabled since approximately March 24, 1989.5 The record
also shows that Provident Life approved August's applications
and paid him benefits for his total disability. Nowhere on
any form did August indicate that his disability began or was
aggravated on May 11, the date of his meeting with OUI.
Under any definition of the term, August's
declaration that he was "totally disabled" means that he was
not able to perform the essential functions of his job at
____________________
5. August was not consistent in specifying the date of the
onset of his total disability. On subsequent insurance
forms, he listed the date also as March 9, 1989, and March
29, 1989.
-13-
OUI, with or without reasonable accommodations, since late
March 1989. The record does not show exactly how "total
disability" was defined in August's insurance policy; the
Provident Life application form described total disability
simply as an "inability to work." As used in insurance
contracts, "total disability" generally means a "person is
incapacitated from performing any substantial part of his
ordinary duties, though still able to perform a few minor
duties and be present at his place of business." Black's Law
___________
Dictionary 462 (6th ed. 1990). An insurance treatise states
__________
that "total disability" means "the infirmity or disability
renders the person unable to perform substantially all the
material acts of an occupation which his age, training,
experience and physical condition would suit him for,
. . . ." 15 Couch on Insurance 2d 53.40, at 76 (rev. ed.
______________________
1983); see Velez Gomez v. SMA Life Assurance Co., 793 F.
___ ____________ _______________________
Supp. 378, 383 (D.P.R. 1992). Under Massachusetts workers'
compensation law, "totally disabled" means one is "unable to
engage in any occupation, or obtain or perform any work for
compensation or profit." Cierri's Case, 396 N.E.2d 149, 149
_____________
(Mass. 1979); Frennier's Case, 63 N.E.2d 461, 463 (Mass.
________________
1945).
That August was disabled from performing his job at
OUI either part-time or full-time on all relevant dates is
further borne out by other uncontroverted facts. After
-14-
leaving work on March 27, 1989, August underwent psychiatric
treatment and showed no sign of intending to return to work.
August himself told Goldberg in early May that he would not
be able to resume work on May 8, the end of the granted leave
period. At the May 11 meeting, August told Goldberg and
Campbell that he probably would be ready by May 22 but was
not ready yet. However, August points to nothing in the
record from which a trier of fact might conclude that, on and
after May 22, he was in fact able to work in some capacity.
At a hearing in the district court, the court asked August's
attorney about August's ability to work on May 22:
THE COURT: Was there any question at that
time May 22nd that he was not
capable of returning to work?
MR. WILOGREN: As of May 22nd, he was not
capable of returning to work . . .
It was stated by August's attorney, during oral argument
before this Court, that August was completely and totally
disabled from at least May 22, 1989 to the present time.
Because there is no evidence from which to infer
that August was not completely and totally disabled since the
last week in March 1989, no reasonable fact finder could
conclude that, at relevant times, he was a qualified
handicapped person within the meaning of Mass. Gen. L. ch.
151B, 4(16). Permission to miss morning meetings or to
work part-time, as requested on May 11, could not have
enabled one who was totally disabled and thus incapable of
-15-
working either part-time or full-time to do his job. Neither
is August's further contention that a third leave of
absence, which he never requested, might have enabled him to
recover supported by anything in the present record, even
assuming that another extension of his leave would have been
a reasonable accommodation.6
The Eighth Circuit has held that a totally disabled
employee is not an "otherwise qualified handicapped
individual under the federal Rehabilitation Act." The
plaintiff in Beauford v. Father Flanagan's Boys' Home, 831
________ _____________________________
F.2d 768 (8th Cir. 1987), cert. denied, 485 U.S. 938 (1988),
____________
was hospitalized for physical and emotional ailments which,
she alleged, arose out of pressures from her teaching job at
defendant's school. Id. at 769. She filed for disability
___
insurance benefits after informing the defendant that she was
unable to work because of her mental and physical problems,
and that she would be unable to work in the foreseeable
future. Id. at 770. Plaintiff later sued her employer for
___
discontinuing her salary and benefits, alleging handicapped
____________________
6. August cites Kimbro v. Atlantic Richfield Co., 889 F.2d
______ _______________________
869 (9th Cir. 1989), cert. denied, 111 S.Ct. 53 (1990), in
_____________
support of his claim that OUI should have offered him a third
leave of absence. However, Kimbro only held that an
______
employer's failure to offer any leave of absence to an
___
employee with chronic migraine headaches violated
Washington's handicap discrimination law. See id. at 879.
_______
The Kimbro court expressly qualified its holding, stating
______
that it did not obligate ARCO to grant a second leave if the
______
migraine condition recurred after return from the initial
leave. Id. at 879 n.10.
___
-16-
discrimination in violation of section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794. The district
court rejected plaintiff's claim, holding that she was not an
"otherwise qualified handicapped individual" because she was
totally disabled and thus no longer able to perform her job.
Id. at 771. Affirming the district court ruling, the Court
___
of Appeals wrote:
[S]ection 504 was designed to prohibit
discrimination within the ambit of an
employment relationship in which the
employee is potentially able to do the
job in question. Though it may seem
undesirable to discriminate against a
handicapped employee who is no longer
able to do his or her job, this sort of
discrimination is simply not within the
protection of section 504.
Beauford, 831 F.2d at 771; see also Bento v. I.T.O. Corp.,
________ ________ _____ ____________
599 F. Supp. 731, 742-43 (D.R.I. 1984) (Selya, J.) (finding
no violation of the Rehabilitation Act for failure to rehire
a longshoreman who retired as totally disabled and later
presented no evidence to his employer that he had fully
recovered).
August did not renounce his statements on the
insurance forms of total disability, nor has he pointed to
facts which could raise any issue as to whether he was
totally disabled during the period in question. Instead, he
focuses on the harm allegedly done to him by Goldberg and
Campbell at the May 11, 1989 meeting. He argues that his
negative experience, resulting especially from their failure
-17-
to state that they would accommodate him in the manner he had
requested, caused him to relapse into depression, rendering
him totally disabled. But for OUI's actions on May 11,
August contends, he would or might have been able to return
to work on May 22.7
We find no merit in this contention. August offers
no legal authority to support his argument that the relevant
date is not the date he was terminated, but a date two weeks
prior. See, e.g., Walker v. Attorney General of United
__________ ______ ____________________________
States, 572 F. Supp. 100, 102 (D.D.C. 1983) (discussing
______
whether plaintiff was, in fact, unable to perform his job "at
the time he was terminated.") Nor is there any evidence that
OUI had any plans to terminate August on May 11 or afterward.
Even if May 11 were treated as the crucial date, August was
not a qualified handicapped person on that day because he
was, by his own admission, unable to return to work on May 11
with or without reasonable accommodation. Moreover, the
record contains nothing in the way of psychiatric or medical
evidence to support counsel's bare assertion that the actions
of OUI's employees at the May 11 meeting caused August to
become totally disabled on May 12, whereas had they spoken
____________________
7. August also argues that OUI, after learning that he was
totally disabled, had the duty to investigate and determine
when he might return. Courts in similar cases have found no
such duty. See Cook v. United States Dep't of Labor, 688
___ ____ ______________________________
F.2d 669, 671 (9th Cir. 1982), cert. denied, 464 U.S. 832
____________
(1983); Walker v. Attorney General of United States, 572 F.
______ _________________________________
Supp. 100, 102 (D.D.C. 1983).
-18-
differently he would have been able to return to work on
May 22. Since August had the burden of proof on this issue,
it was, of course, his obligation "to present definite,
competent evidence" to prove the point and thereby avert
summary judgment. Mesnick, 950 F.2d at 822.
_______
Moreover, even if August could prove that OUI's
attitude caused him further psychic injury on May 11, this
would not establish a cause of action for discriminatory
discharge on account of handicap in violation of Mass. Gen.
L. ch. 151B. See Langon v. Department of Health & Human
___ ______ ______________________________
Servs., 959 F.2d 1053, 1061-62 (D.C.Cir. 1992) (establishing
______
a causal connection between employer's failure to accommodate
and plaintiff's poor job performance may support a claim for
damages for harm caused, but does not establish a violation
of the Rehabilitation Act). An employee's allegation that an
employer caused him mental distress constitutes at most a
claim of personal injury, actionable either as a tort, e.g.,
intentional infliction of emotional distress, or as a claim
under the workmen's compensation statute.8 Alleged
violations of an employee's civil rights are distinguishable
____________________
8. The district court dismissed August's claim for
intentional infliction of emotional distress when it granted
summary judgment. The court found no evidence of "extreme
and outrageous conduct," and also ruled that the claim is
barred by Massachusetts workers' compensation law. See Mass.
___
Gen. L. ch. 152, 26; Foley v. Polaroid Corp., 413 N.E.2d
_____ ______________
711, 714-15 (Mass. 1980). August did not appeal from the
court's dismissal of this claim.
-19-
from personal injuries compensable under the Massachusetts
workers' compensation act. Foley v. Polaroid Corp., 413
_____ ______________
N.E.2d 711, 714-15 (Mass. 1980). August's status as a
"qualified handicapped person" does not depend on the cause
_____
of his disability, but rather on the extent of his
______
disability. The critical question is whether, in fact, he
was able to perform the essential functions of his job with
or without reasonable accommodation when he was fired.
Having conceded that he was totally disabled at all
relevant times, August cannot now establish that he was a
"qualified handicapped person" and thus cannot make the prima
_____
facie case required to prevail on his claim under Mass. Gen.
_____
L. ch. 151B, 4(16). See Conway v. Boston Edison Co., 745
___ ______ _________________
F. Supp. 773, 781 (D. Mass. 1990); Mueller v. Corenco Corp.,
_______ _____________
13 M.D.L.R. 1146, 1153 (Mass. Comm'n Against Discrim. 1991);
Silva v. Fairhaven Marine, Inc., 11 M.D.L.R. 1173, 1183
_____ _______________________
(Mass. Comm'n Against Discrim. 1989). Summary judgment in
favor of OUI was proper because there are no genuine issues
of material fact as to whether August could have performed
his job if his handicap had been accommodated. See Chiari v.
___ ______
City of League City, 920 F.2d 311, 319 (5th Cir. 1991);
_____________________
Langon, 749 F. Supp. at 7; see also Prewitt v. United States
______ ________ _______ _____________
Postal Serv., 662 F.2d 292, 310 (5th Cir. Unit A Nov. 1981)
_____________
("To sustain [a] prima facie case, there should also be a
-20-
facial showing or at least plausible reasons to believe that
the handicap can be accommodated . . . .").
This holding conforms with our decision in Wynne v.
_____
Tufts Univ. School of Medicine, 932 F.2d 19 (1st Cir. 1991)
_______________________________
(en banc). The district court in Wynne had ruled that Wynne,
_____
a medical school student, was not an "otherwise qualified
handicapped individual" within the protection of the federal
discrimination law because he was not able to meet his
school's testing requirements. We vacated that judgment
because a majority of the en banc court found insufficient
evidence to determine whether, as a matter of law, the
university had fulfilled its duty of reasonable accommodation
to Wynne. Id. at 26. However, the majority explained that
___
"[i]f the record were crystal clear that even if reasonable
alternatives to written multiple-choice examinations were
available, Wynne would have no chance of meeting Tuft's
standards, we might be able to affirm . . . ." Id. at 27.
___
Unlike in Wynne's case, the record in August's case is
crystal clear. The crucial issue in Wynne, of course, was
_____
whether the accommodations requested were "reasonable" under
the circumstances. See Wynne v. Tufts Univ. School of
___ _____ _______________________
Medicine, No. 92-1437, slip op. at 6, 1992 U.S. App. LEXIS
________
24933 (1st Cir. Oct. 6, 1992) (appeal after remand); Wynne,
_____
932 F.2d at 27-28. Here, we have assumed arguendo that the
________
accommodations requested by August were reasonable but still
-21-
find that, even so, there was no material issue of fact
concerning August's ability to perform the essential
functions of his job.
The district court also granted summary judgment on
the handicapped discrimination claim on the ground that OUI
made all the required reasonable accommodations to August,
and thus, as a matter of law, did not violate Mass. Gen. L.
ch. 151B, 4(16). Because we find that the district court's
first ground for summary judgment was sufficient to support
its decision, we need not consider the second ground. See
___
Mesnick, 950 F.2d at 822 ("An appellate panel is not
_______
restricted to the district court's reasoning but can affirm
on any independently sufficient ground.").
Affirmed. Ordinary costs for appellee.
________ ___________________________
Dissent follows.
Dissent follows.
-22-
PETTINE, Senior District Judge, dissenting:
_____________________
This appeal presents a narrow procedural issue
concerning the district court's grant of summary judgment.
In reviewing summary judgment awards, as the majority notes,
we "'must view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all
reasonable inferences in that party's favor.'" Mesnick v.
__________
General Electric Co., 950 F.2d 816, 822 (1st Cir. 1991),
_____________________
cert. denied, __ U.S. __, 112 S.Ct. 2965 (1992) (quoting
_____ ______
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)).
____________________
Stated another way, a summary judgment examination by a court
is not a balancing exercise to determine "which party's
evidence is more plentiful, or better credentialled, or
stronger." Greenburg v. Puerto Rico Maritime Shipping
_______________________________________________
Authority, 835 F.2d 932, 936 (1st Cir. 1987). Rather, a
_________
court must determine "whether the nonmovant's most favorable
evidence and the most flattering inferences which can
reasonably be drawn therefrom are sufficient to create any
authentic question of material fact." Id. All of this
__
means, in my view, that in the interests of justice, "close
calls" in summary judgment motions must be resolved in favor
of the nonmoving party. In the case at hand, I believe
plaintiff-appellant August deserves this latitude, and thus I
would reverse the district court's decision and remand the
action for trial.
-21-
21
I.
From the majority's vantage point, the principal
question in this case is "whether or not there was at least a
genuine issue of material fact that, if OUI made reasonable
accommodation to August's handicap, he would have been able
to perform his job." The majority answers this inquiry with
a resounding "no." This conclusion is based in large part
on August's own statements, as well as those of his
psychiatrist and counsel, that he was totally and
continuously disabled from late March 1989 onward. The
majority points out, for example, that in August's first
application for disability benefits with the Provident Life
and Accident Insurance Company on May 12, 1989, he asserted
that the dates of his "total disability" were March 24, 1989,
"through continuing." An accompanying physician's form
signed by August's psychiatrist, Dr. Wallace, similarly
stated that August had a "total disability." The majority
also observes that in all subsequent insurance forms in the
record, August declared that he was totally disabled
beginning in March 1989. In addition to these written
assertions, the majority relies upon a statement made by
August's counsel at a hearing in the district court, that as
of May 22, 1989, August was not capable of returning to work.
-22-
22
All of this evidence, according to the majority, would
lead any reasonable fact finder to conclude that August was
not a "qualified handicapped person" within the meaning of
Mass. Gen. L. ch. 151B. 4 (16). Thus, any requests by
August for reasonable accommodations were meaningless, since
they "could not have enabled one who was totally disabled and
thus incapable of working either part-time or full-time, to
do his job."
With all due respect, I believe the majority is putting
the cart before the horse. The issue is not whether August
was classified by his psychiatrist, and by himself, as
totally disabled following the May 11, 1989, meeting at OUI.
Rather, the key factual inquiry is whether the outcome of the
May 11th meeting was determinative of this subsequent
characterization of total disability. In other words, it is
unresolved whether August could have returned to work had OUI
accommodated his disability as per his May 11th requests.
____________
August claims that he would have been able to return to
work by the end of May if OUI had granted his requests to
miss a few meetings and to work part-time. There is evidence
in the record that in early May both of August's doctors
considered him fit to return to OUI.9 Dr. Vogel, his
____________________
9. The majority stresses that August did not present
"definite, competent evidence" (citing Mesnick, 950 F.2d at
_______
822) to prove that the actions of OUI at the May 11th meeting
caused him to become totally disabled on May 12th. I
believe, however, that the crucial issue is whether August
-23-
23
internist, stated in his deposition that after he examined
August on May 10, 1989, he concluded that "because [August]
was feeling better, I suggested he go back to work."
August's psychiatrist, Dr. Wallace, wrote on May 3, 1989 that
in his judgment August "will require another two to four
weeks before complete recovery is achieved." Moreover,
August himself stated in a deposition that he told OUI's
representatives at the May 11th meeting: "I think I'm ready
to come back to work. I'm feeling much better."
According to August, OUI's "denial of [his] requests to
miss one or two early morning meetings and to work on a part-
time basis constituted a failure to take steps to reasonably
accommodate plaintiff's handicap." Plaintiff-Appellant's
Brief at 10. Viewing the facts in the light most favorable
to the plaintiff, these accommodations, if granted, could
have enabled him to continue working notwithstanding his
handicap. After all, the Massachusetts statute defines
"qualified handicapped person" as one "who is capable of
performing the essential elements of a particular job, or who
______
would be capable of performing the essential functions of a
_____________________________________________________________
particular job with reasonable accommodation to his
_____________________________________________________________
handicap." Mass. Gen. L. ch. 151B, 1(16) (emphasis added).
________
____________________
offered tangible evidence that he might have been able to
return to work if OUI had made reasonable accommodations to
his handicap. In my view, there was sufficient evidence on
this point to fend off summary judgment.
-24-
24
To be sure, when OUI denied the May 11th requests, August was
unable to immediately return to work. But this fact only
demonstrates that, absent accommodations by OUI, August could
______
not work. It does not prove that he would have been
___
incapable of working had his requests been granted.
While "[e]mployers cannot be required to accommodate
needs they do not know exist," Conway v. Boston Edison Co.,
____________________________
745 F. Supp. 773, 783 (D. Mass. 1990), the evidence in this
case demonstrates that OUI was not only aware of August's
handicap, but also of the accommodations necessary to
facilitate his return to work. August should be entitled to
have a fact finder hear the evidence and decide whether at
the May 11th meeting he would have been capable of performing
his essential job functions, had OUI made reasonable
accommodations to his handicap.
Even accepting the logic of the majority, I believe they
rely too heavily on August's characterization of himself as
"totally disabled" in the aftermath of the May 11th meeting.
For one thing, the disability insurance forms are not legally
or medically precise. As the majority acknowledges, it is
not clear how "total disability" is defined in August's
insurance policy. The insurance forms simply describe "total
disability" as an "inability to work." On its face, this
definition would not preclude an individual from concurrently
claiming "qualified handicapped person" status under
-25-
25
Massachusetts (or federal) law. Further, it is logical that
August took full advantage of OUI's temporary disability
benefits following the May 11th meeting. Indeed, August
concedes that he was unable to work without some type of
alternative arrangement from OUI. But again, this does not
necessarily mean that August was "incapable" of working even
____
if accommodations were provided by his employer.
__
II.
Although not addressed in the majority's opinion, I also
conclude that the district court erred when it found that OUI
had reasonably accommodated August's handicap. For
completeness, I wish to add a few thoughts on this issue.
OUI failed almost entirely to fulfill its statutory
obligation to reasonably accommodate August's handicap.
While OUI might have argued that the accommodations August
sought placed an "undue hardship" upon the company, it
declined to do so. Instead, OUI contends:
There is...no authority to support the proposition
that a statement by a totally disabled person that
he intends to return to work at some unspecified
time in the future when he is no longer disabled
constitutes a request for a "reasonable
accommodation." A request to be excused
indefinitely from performing any and all of the
functions of his job is not a request for a
"reasonable accommodation."
Defendant-Appellee's Brief at 15. This argument is specious
since the accommodations at issue are those which August had
requested at the May 11th meeting, and which OUI rejected
-26-
26
out-of-hand. The relevant accommodation is not August's
resultant application for temporary disability benefits.
OUI's brief makes no mention of August's requests for
absence from a few meetings and for temporary part-time
status, or of its grounds for refusing to accommodate him.
OUI also does not directly refute his claim that these issues
were discussed on May 11th. Therefore, it was improper for
the trial judge not to accept the unrefuted facts alleged by
the nonmoving party in a summary judgment motion. See
___
Blanchard v. Peerless, Ins. Co., 958 F.2d 483, 489 (1st Cir.
________________________________
1992). Without any evidence of the reasonableness or
unreasonableness of August's May 11th requests, or the
reasons for OUI's failure to accede to those requests, one
simply cannot say as a matter of law that OUI reasonably
accommodated August's handicap.
III.
I recognize that August would face an uphill battle
ahead of him at trial. To succeed on the merits, he would
have to prove that: (1) he was a "qualified handicapped
person" on May 11, 1989; (2) his requests to work part-time
and to miss early morning meetings constituted "reasonable
accommodations"; and (3) his inability to return to work was
caused by his employer's wrongful refusal to grant these
accommodations. Still, these are all questions of fact that
-27-
27
should be determined at an evidentiary hearing, not on a
summary judgment motion.
However hard I try, I cannot fathom the majority's
conclusion that the record in this case is "crystal clear."
In my view, this case presents genuine disputes over crucial
factual matters. At a minimum, "[t]here is enough of a
patina of uncertainty here as to the material facts to
deflect the summary judgment axe." Greenburg, 835 F.2d at
_________
937.
Because I believe this plaintiff deserves his day in
court, I must respectfully dissent.
-28-
28
Related
School Bd. of Nassau Cty. v. Arline
480 U.S. 273 (Supreme Court, 1987)
George Dunbar Prewitt, Jr. v. United States Postal Service
662 F.2d 292 (Fifth Circuit, 1981)
Laurence B. Greenburg, Etc. v. Puerto Rico Maritime Shipping Authority, Etc.
835 F.2d 932 (First Circuit, 1987)
Kenneth L. Shea v. Peter Tisch, Etc.
870 F.2d 786 (First Circuit, 1989)
Thomasina Mack v. The Great Atlantic and Pacific Tea Company, Inc.
871 F.2d 179 (First Circuit, 1989)
Gerald Griggs-Ryan v. Beulah Smith, Gerald Griggs-Ryan v. Richard Connelly
904 F.2d 112 (First Circuit, 1990)
Antonio Chiari v. City of League City
920 F.2d 311 (Fifth Circuit, 1991)
Steven Wynne v. Tufts University School of Medicine
932 F.2d 19 (First Circuit, 1991)
Troy Pesterfield v. Tennessee Valley Authority Charles Dean, Marvin T. Runyon John Waters
941 F.2d 437 (Sixth Circuit, 1991)
Samuel Mesnick v. General Electric Company
950 F.2d 816 (First Circuit, 1991)
Richard Blanchard v. Peerless Insurance Company
958 F.2d 483 (First Circuit, 1992)
Patricia A. Langon v. Department of Health and Human Services
959 F.2d 1053 (D.C. Circuit, 1992)
Constance Guice-Mills v. Edward J. Derwinski, Secretary of the Department of Veterans Affairs
967 F.2d 794 (Second Circuit, 1992)
Conway v. Boston Edison Co.
745 F. Supp. 773 (D. Massachusetts, 1990)
Bento v. ITO Corp. of Rhode Island
599 F. Supp. 731 (D. Rhode Island, 1984)
College-Town, Division of Interco, Inc. v. Massachusetts Commission Against Discrimination
508 N.E.2d 587 (Massachusetts Supreme Judicial Court, 1987)
Walker v. Attorney General of the United States
572 F. Supp. 100 (District of Columbia, 1983)
McWilliams v. AT & T Information Systems, Inc.
728 F. Supp. 1186 (W.D. Pennsylvania, 1990)
Frennier's Case
63 N.E.2d 461 (Massachusetts Supreme Judicial Court, 1945)
Cierri's Case
396 N.E.2d 149 (Massachusetts Supreme Judicial Court, 1979)
Cite This Page — Counsel Stack
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August v. Offices Unlimited, Counsel Stack Legal Research, https://law.counselstack.com/opinion/august-v-offices-unlimited-ca1-1992.