D'Aprille v. Fleet Services Corp

Opinion

USCA1 Opinion

July 18, 1996         [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 96-1001



                                BEVERLY RUTH D'APRILE,

                                Plaintiff - Appellant,



                                          v.



                                FLEET SERVICES CORP.,

                                Defendant - Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                 Cyr, Circuit Judge,
                                      _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                            and Gertner,* District Judge.
                                          ______________



                                _____________________



               Frank J. Manni, with whom John F. DiMeglio  was on brief for
               ______________            ________________

          appellant.

               Lynette Labinger, Roney & Labinger,  Christopher M. Mulhearn
               ________________  ________________   _______________________

          and  Rodio & Brown on  brief for Rhode  Island Affiliate American
               _____________

          Civil Liberties  Union and  Rhode Island Protection  and Advocacy

          System, Inc., amici curiae.

               Cynthia M.  Hiatt on brief  for Rhode Island  Commission for
               _________________

          Human Rights, amicus curiae.

               Lincoln D. Almond,  with whom  Mark A. Pogue  and Edwards  &
               _________________              _____________      __________

          Angell were on brief for appellee.
          ______


____________________

                              
          ____________________



          *  Of the District of Massachusetts, sitting by designation.



____________________

                    GERTNER,  District  Judge.    Plaintiff   Beverly  Ruth
                    GERTNER,  District  Judge.
                              _______________



          D'Aprile brought  this action in  the United States  District for



          the  District  of  Rhode  Island  against  her  former  employer,



          defendant  Fleet  Services  Corporation ("Fleet").    She charged



          Fleet with violation of the handicap discrimination provisions of



          the  Rhode Island Fair Employment Practices Act, R.I. Gen. Laws  



          28-5-1,  et  seq.,  on  account of  Fleet's  alleged  refusal  to
                   ________



          reasonably accommodate the symptoms she experienced from Multiple



          Sclerosis ("MS").1  



                    MS is  a degenerative nerve disorder  which can produce



          symptoms  ranging  from fatigue  and  numbness  to paralysis  and



          death.  The severity of symptoms is related in part to the amount



          of  stress experienced by the  patient.  In  D'Aprile's case, she



          alleges that her symptoms were  sufficiently in abeyance that she



          was capable of  performing her  job as a  Senior Systems  Support



          Analyst.     She   contends,   however,  that   she  needed   the



          accommodation  of  being  permitted  to  work  only  a  part-time



          schedule  for a short time (one to  two months) so that she could



          slowly  reacclimate herself to  full-time work.   Her  claim that



          Fleet  refused  to  provide this  accommodation  constitutes  the



          gravamen of her case.   



                    On  November  22,  1995,  the  district  court  granted



          Fleet's  motion  for  summary   judgment.    The  district  court

                              
          ____________________



          1   R.I. Gen.  Laws    28-5-7(1) generally  makes it unlawful  to

          refuse to hire,  or to  discriminate against an  employee on  the

          basis  of handicap.   R.I.  Gen. Laws    28-5-7(1)(i)-(iii).   In

          addition, the  statute specifically makes it  unlawful "to refuse

          to reasonably accommodate an employee's or prospective employee's

          handicap   unless  the   employer   can   demonstrate  that   the

          accommodation would  pose a  hardship on the  employer's program,

          enterprise, or business."  R.I. Gen. Laws   28-5-7(1)(iv).



concluded  that  summary judgment  was  mandated  by our  earlier



          decision  in August v. Offices Unlimited, Inc., 981 F.2d 576 (1st
                       ______    _______________________



          Cir. 1992).   Because we  disagree that August  mandates judgment
                                                  ______



          for the defendant in this case, we reverse.


BACKGROUND
                                      BACKGROUND
                                      __________



                    In  November 1991,  D'Aprile commenced  employment with



          Fleet on a  full-time basis.  In January of  1992, D'Aprile began



          to experience the  first symptoms of  MS, a numbness  in her  leg



          which lasted for  four days.  Then, in July of 1992, she began to



          experience numbness in the entire left side of her body, and took



          a medical leave of absence for the entire month of July.



                    D'Aprile's symptoms  recurred in  October  of 1992,  at



          which time  she  was diagnosed  with  MS.   As  a result  of  her



          symptoms, D'Aprile was unable  to travel to work from  October 1,



          1992 until January 31, 1993.  In the beginning of  this period of



          absence, during October and  November, D'Aprile continued to work



          at home, and  Fleet provided her with a computer  to allow her to



          do so.   By the  end of November,  however, D'Aprile's  condition



          deteriorated to the point that she completely ceased working. 



                    In   January  of   1993,  D'Aprile's   symptoms  abated



          somewhat, and she  expressed a  desire to  return to  work.   Her



          doctor advised her that she should return to a full-time position



          in stages, beginning with  part-time work.  Accordingly, D'Aprile



          later asked  her supervisor,  Debbie Sullivan, for  permission to



          return on  a  part-time  basis  for  a  two  month  period.    In


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particular,  she  asked if  she could  work  three days  per week



          (taking  Mondays and Fridays off) until she felt strong enough to



          resume  a full-time schedule.   She told Sullivan  that she would



          take  eight vacation days for  the first month  so that she could



          continue receiving  a full-time  salary.  According  to D'Aprile,



          Sullivan told her that her proposed arrangement sounded okay, and



          that she  was willing to "work with" D'Aprile, but that she would



          have  to get  back  to her  about it  after  checking with  Diane



          DeCosta, the Human Resources Manager.



                    D'Aprile  states  that on  January  19,  1993, Sullivan



          called her back and  told her that it was against  company policy



          for her to work  part-time.  D'Aprile then called  Henry Korsiak,



          Sullivan's  superior.  Korsiak endorsed Sullivan's description of



          company  policy.    D'Aprile  then asked  Korsiak  about  another



          employee, Mary Gendreau, who  had been permitted to return  part-



          time  after  a  maternity  leave.   Korsiak  told  D'Aprile  that



          Gendreau had negotiated a "special deal" with her supervisor.



                    Notwithstanding Fleet's refusal  to approve  D'Aprile's



          proposed  part-time  work  schedule,  she  returned  to  work  on



          February 1,  1993.  After her  return, she called  Jan Wyant, who



          worked in Human  Resources, and asked her  if she could  take off



          Friday, February 5th  and Monday, February  8th.  Wyant  approved



          the absence, and told D'Aprile to take two personal days.  



                    When  D'Aprile   did  not  come  to   work  on  Friday,



          February 5th, she called Korsiak.  According to D'Aprile, Korsiak



          "screamed" at her, telling her  that she had no right to  go over


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his  head to get permission to take  personal days.  He told her,



          "You said  that you  were coming  back for  February 1st and  you



          should be here,  and I don't  know why you're  not here.  And  if



          you're  not  here,  maybe  you  shouldn't  bother  coming  back."



          D'Aprile  states that she  was very upset  by Korsiak's response,



          and interpreted it  as an  ultimatum that she  work full-time  or



          lose her job.



                    Despite  Korsiak's  harsh  response, however,  D'Aprile



          returned to work on the  following Tuesday, and continued working



          a  three day-a-week  schedule during the  months of  February and



          March, 1993.  As D'Aprile describes it, however, she only managed



          to achieve this result  "not without a  fight."  She states  that



          every time  during the  February-March period that  she requested



          time  off,  the  request  would  initially  be denied  by  Debbie



          Sullivan, who  took the position that accrued vacation time could



          only be  used with  a supervisor's  approval.   On each  of these



          occasions,  D'Aprile  was forced  to  appeal  to  Jan Wyant,  who



          approved each request. 



                    This weekly  pattern of requests for  time off, denials



          by Sullivan and reluctant approvals by Wyant continued during the



          month of  February and  through most  of March.    At some  point



          during this time, Korsiak and Sullivan indicated to D'Aprile that



          she  had no more vacation time.  D'Aprile eventually decided that



          she could no  longer work  under such conditions.   Her  physical



          condition  had  deteriorated, causing  her  to  feel "very,  very



          fatigued."   After  discussing the  matter  with her  doctor, she


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concluded that her symptoms  had worsened due to the  "stress and



          strain"  produced by Fleet's refusal to approve her request for a



          part-time  work schedule.   On  March 24,  1993, she  returned to



          disability status.



                    On  March  25, 1993,  the  day  after D'Aprile  stopped



          working,  she submitted a letter from her doctor stating that she



          was  "unable  to  work  at this  time  and  should  be placed  on



          disability."  As a  result, D'Aprile received disability benefits



          under  Fleet's   short  and  long-term  disability   plans  until



          January 21,  1995,  when those  benefits were  terminated because



          Fleet's insurance  carrier found that  she was no  longer totally



          disabled.  


STANDARD OF REVIEW
                                  STANDARD OF REVIEW
                                  __________________



                    We review a grant of summary judgment de novo.  Mesnick
                                                          _______   _______



          v.  General  Electric Co.,  950 F.2d  816,  822 (1st  Cir. 1991).
              _____________________



          Accordingly,  we view the entire record in a light most favorable



          to the  non-moving party, indulging all  reasonable inferences in



          that  party's favor.  Id.  The  entry of summary judgment will 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."  Id.
                                ___


DISCUSSION
                                      DISCUSSION
                                      __________


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The  district court  entered judgment  in favor  of the



          defendant solely on the authority of August v. Offices Unlimited,
                                               ______    __________________



          Inc.,  supra.  In essence, the  district court interpreted August
          ____   _____                                               ______



          to  stand for  the proposition  that a  plaintiff is  barred from



          claiming   handicap   discrimination   if,   after   leaving  her



          employment, she  contends that  she is "totally  disabled" within



          the meaning of  her employer's disability  insurance policy.   We



          think that August stands for a much narrower proposition.
                     ______



                    The plaintiff  in August  was a furniture  salesman who
                                      ______



          began  to suffer from symptoms of severe clinical depression.  As



          a result of this depression, August asked  for and received a six



          week paid leave of absence from his employer.  At  the end of the



          six week period, August  advised his employer that he was not yet



          able to return to work.  His doctor submitted a letter estimating



          that  August would  require an  additional two  to four  weeks to



          recuperate.   The employer told August that he would be permitted



          to take an additional two weeks as vacation, but that he would be



          expected to  return to work at  the end of that  period.  August,
                                                                    ______



          981 F.2d at 578.



                    Shortly before his scheduled return,  August's employer



          asked him if he was feeling "100 percent better."  He replied, "I



          don't  know  if I'm  100  percent until  I start  working."   His



          employer then  advised  him that  the company  would expect  "110



          percent" from him when he returned,  and that he was "going to be



          under a lot more pressure than he was prior to  leaving."  Id. at
                                                                     ___



          579.   August then  requested that he  be allowed to  return on a


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part-time  schedule, but this was  refused.  He  was told instead



          that  if  he was  unable to  work  full-time, he  should consider



          applying for disability  benefits under the employer's  insurance



          plan.  Id.
                 ___



                    The day  after being refused a  part-time schedule, and



          before  his scheduled  return to  work, August submitted  a claim



          under  the  company's  disability  plan.    He  asserted  in  his



          application   for  benefits   that  he   had  been   totally  and



          continuously disabled starting on a date forty-nine days earlier.



          Id. at 579.  Thus, by August's own admission, he had been totally
          ___



          disabled as of  the date he requested  and was refused the  part-



          time schedule.  



                    August  brought suit  under Massachusetts  General Laws



          ch. 151B, a statute which, like the Rhode Island statute at issue



          here,  prohibits employment  discrimination  against people  with



          disabilities.2  August  claimed that his  employer had failed  to

                              
          ____________________



          2     One  difference  between  the  two  statutes  is  that  the

          Massachusetts  statute  prohibits  discrimination   against  "any

          person alleging to be a qualified handicapped  person," while the

          Rhode  Island   law  simply  bars   discrimination  "because  of"

          handicap, and  requires the employer to  "reasonably accommodate"

          such handicap.   Compare Mass. Gen.  Laws ch. 151B    4(16)  with
                           _______                                     ____

          R.I.  Gen. Laws    28-5-7.   Moreover,  the Rhode  Island statute

          specifically  provides   that  discrimination  on  the  basis  of

          handicap is  unlawful, even  if other, lawful,  factors motivated

          the discriminatory practice.  R.I. Gen. Laws   28-5-7.3.



             Amici  Rhode Island  Commission  for Human  Rights, the  Rhode
             _____

          Island Affiliate of the American Civil Liberties Union and  Rhode

          Island Protection and Advocacy  System, Inc. urge that the  Rhode

          Island statute creates broader protections than the Massachusetts

          law, protecting even  those who  are not qualified  to work  from

          adverse  actions   motivated  even  in  part   by  an  employer's

          discriminatory animus.   We  need not decide  this question  here

          since,  as we  explain below,  summary judgment  is inappropriate



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reasonably accommodate his handicap by refusing to permit a part-



          time work schedule.  The  district court granted summary judgment



          for the employer, and we affirmed.  We concluded that "the record



          [was]  fatally bereft  of  indication that  August possessed  the



          ability to perform his job."  Id. at 581. 
                                        ___



                    Crucial to our conclusion  in August was the fact  that
                                                  ______



          August  had  declared himself  to be  totally disabled  under his



          employer's  disability plan  as  of the  time  he applied  for  a



          reasonable  accommodation  from  his   employer.    Although  the



          disability plan's definition of "totally disabled" was not in the



          record, we  concluded that "[u]nder  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 . . .



          with or without reasonable  accommodations."  Id. at 581.   Since
                                                        ___



          August admitted  that  he  was unable  to  work at  the  time  he



          requested  his part-time schedule, we concluded that he was not a



          "qualified  handicapped person" and thus had failed to make out a



          prima facie case under the Massachusetts statute.  Id. at 584.
          _____ _____                                        ___



                    Two  facts  distinguish D'Aprile's  case  and therefore



          require a  different outcome.   First, D'Aprile never  claimed to



          have  been  totally  disabled  at  the  time  she   requested  an



          accommodation  from Fleet.  It  was not until  after her requests



          for a  formal  part-time schedule  had  been refused,  and  after



          experiencing  the  stress resulting  from  her  ad hoc  part-time
                                                          ______



                              
          ____________________



          even  on the issue of whether D'Aprile was otherwise qualified to

          work.



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status, that she  claims to  have become totally  disabled.   The



          issue  which concerned us in August, that a plaintiff would claim
                                       ______



          that  he was entitled to  a reasonable accommodation  at the same
                                                                ___________



          time he claimed to be unable to work at all, is absent here.



                    In addition,  we note that  D'Aprile's application  for



          disability  benefits in  this case  may not have  constituted the



          broad  admission   of  incapacity  that  we   construed  such  an



          application  to  be in  August.    Fleet's short-term  disability
                                  ______



          policy  defines a  "totally  disabled" employee  as  one "who  is



          unable  to perform  the material  duties of  his/her job  for the



          entire  regularly scheduled work week as the result of an illness



          or  injury and  requires  the ongoing  care of  a physician. . ."



          Such  a disabled employee who "is unable  to work" is entitled to



          benefits.   D'Aprile's contention,  that she  was unable  to work



          because  her employer  refused  to permit  a temporary  part-time



          schedule,  is  entirely consistent  with her  claim to  have been



          "totally disabled" within the meaning of the policy.  It does not



          constitute an admission that she had been unable to work with the



          accommodation of a part-time schedule prior to that point. 



                    August simply  stands  for  the  proposition  that  the
                    ______



          plaintiff's ability  to work with reasonable  accommodation is an



          element  of  a  handicap  employment  discrimination  case  under



          Massachusetts law.  Under  the particular facts of that  case, we



          found  that   August's  application  for   disability  insurance,



          combined  with his  demonstrated  inability to  perform any  work



          (before  or after  the  requested accommodation)  eliminated  any


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genuine  issue  as  to  his  ability  to  work  with   reasonable



          accommodation.  Since D'Aprile never claimed to have been totally



          disabled  during the  time she  requested her  accommodation, and



          demonstrated  her  ability to  work  with  the accommodation  she



          requested, the reasoning of August does not apply.  
                                      ______


CONCLUSION
                                      CONCLUSION
                                      __________



                    D'Aprile contends that the  accommodation Fleet made --



          permitting her to  take vacation and  personal days on an  ad hoc
                                                                     ______



          basis  --  was not  a  reasonable  one given  the  nature of  her



          condition and  its sensitivity  to stress  factors.   She further



          asserts  that she was capable of working part-time in the absence



          of additional stressors, and would have been able to continue her



          employment  were  it  not  for the  hostile  and  non-cooperative



          response  of her  supervisors  to  her  request  for  a  modified



          schedule.  



                    Given  that D'Aprile  did  in fact  work part-time  for



          almost two months  after her  initial request, she  has raised  a



          genuine  issue  of material  fact as  to  whether she  could have



          continued even longer if Fleet had accommodated her as requested.



          D'Aprile's subsequent  application for disability  benefits after



          Fleet  refused to  accommodate her  does not  resolve  this issue



          because it sheds no  light on how  D'Aprile would have fared  had



          the accommodation been made.   


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For the foregoing reasons, the judgment of the district



          court  is  reversed   and  the  case  is   remanded  for  further
                     ________                        ________



          proceedings consistent with this opinion.  Costs to appellant.



                    SO ORDERED.
                    SO ORDERED.


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