Cox v. New England Telephone & Telegraph Co.

607 N.E.2d 1035, 414 Mass. 375, 2 Am. Disabilities Cas. (BNA) 540, 1993 Mass. LEXIS 74
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 24, 1993
StatusPublished
Cited by78 cases

This text of 607 N.E.2d 1035 (Cox v. New England Telephone & Telegraph Co.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. New England Telephone & Telegraph Co., 607 N.E.2d 1035, 414 Mass. 375, 2 Am. Disabilities Cas. (BNA) 540, 1993 Mass. LEXIS 74 (Mass. 1993).

Opinions

O’Connor, J.

This case involves a claim of employment discrimination on account of handicap. In his amended complaint, the plaintiff, John Cox, makes the following allegations. Before 1983, he was employed by the defendant, New England Telephone and Telegraph Company, as a splice service technician (SST). In November of that year, he was seriously injured in a motor vehicle accident that left him with a permanent brain injury affecting his memory, speech, and reading speed. The plaintiff returned to work in a clerical position. In 1986 and 1987, the plaintiff “bid for [an SST] position” and, “[o]n each occasion [he] was awarded the bid, but did not pass the pole climbing course, solely because of his reading and memory difficulties resulting from his handicap. ... On each occasion, [the] plaintiff consequently was denied the [SST] position.” Subsequently, the plaintiff’s application to become an SST was denied because he had twice failed the pole-climbing course.

According to the complaint, the “pole climbing test does not adequately test for the duties of [an SST], and has an adverse impact on handicapped persons with reading or memory disabilities.” Furthermore, “[w]ith reasonable accommodation, [the] plaintiff would have been able to pass the test” but “[a]t no time did [the defendant] offer or attempt to so accommodate [him].” The plaintiff also asserts that, since June, 1986, he “was fully able to perform the duties of [an SST], and as such was a qualified handicapped person within the meaning of [G. L. c. 151B (1990 ed.)].” The plaintiff claims that as a result of the defendant’s failure to award him an SST position, he sustained losses for which, under c. 15IB, he is entitled to compensation. The plaintiff [377]*377seeks an order awarding him an SST position retroactive to the date of his initial bid, together with money damages.

This case was tried in the Superior Court by a judge without a jury. The judge found that the defendant “is not liable for unlawful discrimination under [G. L.] c. 15IB,” and he ordered the entry of a judgment for the defendant. The plaintiff appealed, and we then granted his application for direct appellate review. We now affirm the judgment.

We recite the pertinent findings set forth in the judge’s memorandum of findings and decision. In 1982 and 1983 the plaintiff worked for the defendant as an SST, a position that required pole climbing. Before becoming an SST, the plaintiff successfully completed the defendant’s safe pole-climbing course, including lessons on gaff climbing. “The purpose of the course is to train prospective SSTs to climb telephone poles safely. There are four ways of ascending and descending a pole, to wit: (a) by use of a ladder, (b) by use of steps built into the pole (long spikes protruding from the pole at various heights and on both sides), (c) by use of gaffs (instruments strapped to the legs which have a pointed blade or sticker attached to each so the climber can stick that blade or sticker into the pole), (d) by use of a ‘cherry picker’ (a basket on the end of an electrically maneuvered crane which can take the occupant up or down).

“The chief disadvantage of the ladder is a question of availability and size or height. The stepped poles are not always present. They are much more likely to be found in congested, urban areas and not likely to be found in rural or suburban areas. The ‘cherry picker’ is seldom available and cannot be used in close quarters, e.g. rear yards of urban lots.”

The judge found that, in November, 1983, the plaintiff sustained multiple serious injuries in a motor vehicle accident, including “a severe closed head injury to the brain stem,” as a result of which his physicians restricted him from pole climbing. The plaintiff returned to work in December, 1984, as a clerk. In June, 1986, he was cleared by his physicians and the defendant from the restriction against climbing [378]*378poles. Then, in 1986, the plaintiff bid on, and was awarded, a position as an SST, subject to his passing the safe pole-climbing course.

The content of the course given in 1986 was the same as the content of the 1982 course that the plaintiff passed. However, in 1986, unlike 1982, there was a requirement that the course be completed within twenty-six hours. “The course consisted of twelve lessons or parts. After a student completed a part he was tested on that part. If he passed it, it was behind him. If one failed a lesson he could repeat the test and pass it as long as he did not repeat a deviation which he had in the prior test.” In a footnote, the judge defined a “deviation” as “a wrong answer if the test only involves questions and answers and a misstep or erroneous movement if the test is physical.” The plaintiff failed the 1986 course because he repeated a deviation.

The plaintiff reapplied for an SST position in 1987, and again he was awarded the job subject to his passing the safe pole-climbing course. The plaintiff was to be assigned to the Neponset garage in the Dorchester section of Boston or the garage in the Hyde Park section. The content of the 1982, 1986, and 1987 courses was the same. Also, in 1987, as in 1986, there was a time requirement of twenty-six hours in which to complete the course.

The judge found that the first five lessons in 1987 required only reading, and the plaintiff “kept pace with the other students.”1 The plaintiff successfully completed lessons eleven and twelve, which “consist[ed] of reading plus testing.”

“In lesson 6 through 10,” the judge found, “physical acts and maneuvers were required. Actually a substantially less amount of reading was required than in 1 through 5. Lesson 6 and 7 required pole climbing. The latter required lateral movement. [The plaintiff] passed lessons 6, 7 and 8. Lessons [379]*3797, 8 and 9 are identical except for the height at which the maneuvers are performed. They require the use of gaffs. So does Lesson 10.

“[The plaintiff] did have some difficulty with lesson 8 although as stated he passed. When he reached lesson 9 he was required to climb to a level of 18 feet. He stopped at 14 feet. After staying there for an extended period of time, from 5 to 10 minutes, and after one of the instructors attempted to aid him orally by reminding him of the procedures to be followed, [the plaintiff] came down. The plaintiff never completed parts 9 and 10. Thus he did not pass the course. Having failed to pass the course for the second time, according to regulations promulgated by the defendant, well prior to 1986, the plaintiff is now ineligible to take the Safe Pole Climbing Course again. Therefore he is ineligible to become, an SST.”

We continue with our recitation of the judge’s pertinent findings and discussion: “One of the plaintiff’s contentions is that because of where he would be working namely, Dorchester or Hyde Park, he would not have to be proficient in gaff climbing. I find the following facts. Because these areas are urban, a very high percentage of the poles to be climbed would be ‘stepped’ i.e. with the metal spikes affixed, making gaff climbing unnecessary. ‘Cherry pickers’ could be used in most instances, but there are few ‘cherry pickers’ available even in Boston. Ladders are generally not practical because of height. While it happens seldom to SSTs working in Boston, all SSTs employed by the defendant are subject to transfer in case of emergencies, e.g. tornado, hurricane, etc. In case of transfer outside Boston gaff climbing would be a likely need.”

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Bluebook (online)
607 N.E.2d 1035, 414 Mass. 375, 2 Am. Disabilities Cas. (BNA) 540, 1993 Mass. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-new-england-telephone-telegraph-co-mass-1993.