427 Mass. 1 | Mass. | 1998
We clarify today the prima facie standard a plaintiff must meet to establish liability in a case involving a claim of handicap discrimination in violation of G. L. c. 151B, § 4 (16).
We rule that to establish a prima facie case of unlawful employment discrimination on the basis of handicap under G. L. c. 151B, § 4 (16), a plaintiff must present credible evidence that (1) he is handicapped within the meaning of the statute; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; (3) he was terminated or otherwise subject to an adverse action by his employer; and (4) the position he had occupied remained open and the employer sought to fill it.
I
From 1985 until 1992, when he was terminated, Dartt was employed by BFI as a truck driver, first in Colorado and later in Tyngsborough. Dartt operated a ten-wheel tractor-trailer used to transport and dump large loads of waste. In March, 1990, Dartt injured his back when he fell from a trailer while attempting to secure a canvas flap. BFI’s safety review board determined that Dartt was not at fault for that accident. As a result of his injury, Dartt was required to undergo two operations and he was unable to work for almost two years. BFI paid Dartt $61,389 in workers’ compensation benefits for that injury.
On May 19, 1992, approximately two months after returning
Dartt immediately telephoned Ernest G. Stone, the district safety manager for BFI, and informed him of the accident. Stone traveled to the landfill to investigate. Dartt told Stone that the vehicle had tipped over while he was reaching for the soda. He testified that he also told Stone that, in his view, the sludge load had stuck to one side of the trailer, creating an imbalance that had caused the vehicle to tip over.
The following morning BFI’s management review board consisting of Stone, Ronald Greenwood, BFI’s district manager, and Donald Butler, Dartt’s immediate supervisor, met to discuss the accident. Based on his observations at the site and on his interview with Dartt, Stone informed the others that it was his view that Dartt had not been paying attention to what he was doing when the truck flipped on its side. Greenwood directed Stone to terminate Dartt for violating BFI’s safety policy.
Dartt never claimed that he was injured in the second accident. He argued that he was fired because BFI was concerned that he might file a new claim for workers’ compensation, and that BFI wanted to avoid paying him any such compensation. There was evidence that before this accident BFI was concerned about containing what it perceived were escalating workers’ compensation claims: Dartt testified that, at one of the weekly safety meetings that he was required to attend, Stone told a group of employees that the number of workers’ compensation claims had to .be reduced.
n
BFI claims that the judge erred in her instructions to the jury on the elements of a prima facie case of handicap discrimination, and that there was insufficient evidence as a matter of law to support a finding of discriminatory termination. We address first BFI’s challenge to the judge’s instructions. In cases of handicap discrimination brought under G. Li c. 151B, § 4 (16), we use the familiar three-stage order of proof that we have recognized in cases alleging disparate treatment
General Laws c. 15IB, § 4 (16), provides that an employer may not “dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because o/his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation” (emphasis supplied). The parties dispute how the term “because of” affects a plaintiff’s prima facie burden of proof. At trial, relying on Garrity v. United Airlines, Inc., 421 Mass. 55 (1995), and Tate v. Department of
“To recover, the plaintiff must prove at the outset the following by a fair preponderance of the credible evidence, first, that the plaintiff had a ‘handicap’ at the relevant time; second, that the plaintiff was a ‘qualified handicapped person’; and third, that the plaintiff was terminated by the defendant.”
On appeal, BFI argues further that any dispute concerning this issue was put to rest by our recent opinion in Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), where we said that it is a plaintiff’s burden to establish in his prima facie case that he was terminated “solely” because of his handicap.
We recognize that some of our earlier decisions concerning a plaintiff’s prima facie burden in a case of handicap discrimination may have been the cause of confusion, for we previously have not been consistent in our descriptions of that burden.
The legislative history confirms that our interpretation is consistent with what the Legislature intended. Prior to adopting St. 1983, c. 533, § 2, the 1983 amendment that inserted § 4 (16) into G. L. c. 15IB, the Legislature rejected proposed amendments that would have prohibited discrimination “solely because of” a handicap. See, e.g., 1981 Senate Doc. No. 208; 1981 House Doc. No. 353; 1981 House Doc. No. 485; 1981 House Doc. No.
Were we to require the plaintiff to prove at the prima facie stage that he had been discriminated against “solely because of a handicap,” we would be imposing on him a greater burden at the first stage than he is required to meet at the third stage of proof. Conversely, the standard we adopt today achieves the purpose we intend by requiring a plaintiff to demonstrate a prima facie case: to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s rejection.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). See Blare, supra at 441.
We are also guided in our resolution by interpretations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ■ (1994) (ADA),
“[A] plaintiff must first prove by a preponderance of the evidence that he or she (i) has a disability within the meaning of the Act; (ii) is qualified to perform the essential functions of the job, with or without reasonable accommodations; (iii) was subject to an adverse employment action by a company subject to the Act; (iv) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (v) suffered damages as a result.”
Id. at 511. See EEOC v. Amego, Inc., 110 F.3d 135, 141 n.2 (1st Cir. 1997). The United States Court of Appeals for the Eighth Circuit uses a similar test to establish a prima facie case of disability discrimination under the ADA. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir. 1996) (third and final element of prima facie case is that plaintiff “has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises”).
III
BFI also argues that the judge committed prejudicial error in refusing to instruct the jury on BFI’s obligations under the workers’ compensation statute, G. L. c. 152, §§ 26, 27, and that she erroneously admitted in evidence two legally irrelevant and, it is argued, highly prejudicial, outdated employment application forms previously used by BFI. We review these claims.
The judge refused to give either instruction, concluding that BFI’s potential obligation under the workers’ compensation statute was “too hypothetical” to present to the jury. Her refusal to do so was error sufficiently prejudicial, we conclude, to require a new trial. Dartt himself testified that he was terminated because BFI hoped to avoid paying him any potential workers’ compensation liability.
The judge also allowed in evidence information concerning BFI’s attempt to contain workers’ compensation claims and other safety and cost control efforts. See notes 5 and 6, supra. Having done so, the judge should not have left the jury uninformed about BFI’s obligations to Dartt under the workers’ compensation statute. In Tuttle v. McGeeney, 344 Mass. 200, 208 (1962), we held that when erroneous instructions “tended to confuse and mislead the jury,” substantial justice required a new trial. See Squeri v. McCarrick, 32 Mass. App. Ct. 203 (1992) (when effect of instructions is substantially to confuse jury, new trial required). Ignorant about BFI’s legal obligation to Dartt, the jury could well have concluded that by terminating him, BFI could have avoided any further workers’ compensation liability to him.
We next review whether an application form for new hires previously used by BFI was improperly admitted in evidence. The form contained questions about medical conditions, and claims for work-related injuries, now prohibited by the ADA. There was evidence that BFI ceased using the form some time prior to, and in response to, the enactment of the ADA. BFI filed a motion in limine to exclude the form because, it claimed, it had discontinued its use, the form was irrelevant to the issues in the case,
IV
We consider BFI’s claim that the judge erred in denying its motion for a directed verdict and for judgment notwithstanding the verdict because, BFI claims, there was insufficient evidence as a matter of law supporting the verdict. “We start with the proposition that taking the question out of the jury’s hands is disfavored in the context of discrimination cases based on disparate treatment because the ultimate issue is often that of intent, and is a factual question.” Labonte v. Hutchins & Wheeler, 424 Mass. 813, 820 (1997), citing Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-440 (1997). “[W]e view the evidence in the light most favorable to the plaintiff and disregard evidence favorable to the [employer].” Labonte, supra at 820-821, citing Cimino v. Milford Keg, Inc., 385 Mass. 323, 326 (1982). We sustain a jury verdict if a jury could reasonably have arrived at their verdict from any of the evidence that the plaintiff presented. Labonte, supra at 821.
BFI argues, first, that there was insufficient evidence to support a finding that Dartt was “handicapped” at the time of his termination for the purposes of establishing liability under G. L. c. 15IB.
Second, BFI argues that there was insufficient evidence to support a finding that Dartt was terminated because of a handicap. While we have held that the evidence concerning BFI’s efforts to contain its workers’ compensation claims was improperly admitted, on balance we conclude that evidence that BFI may have deviated from its normal management procedures when it summarily terminated Dartt could support a reasonable inference that BFI had terminated Dartt because of his perceived handicap. Upon remand, the judge should be careful to exclude all evidence about BFI’s management of its workers’ compensation claims and its safety maintenance program. Such evidence is not probative of discriminatory motive and is prejudicial to BFI.
V
Finally, BFI argues there was insufficient evidence as a matter of law to support the award of punitive damages. In Bain v. Springfield, 424 Mass. 758, 767 (1997), we said that punitive damages are appropriate “where a defendant’s conduct warrants condemnation and deterrence.” Although G. L. c. 151B does not
While we do not substitute our judgment for that of the jury, there was no admissible evidence that BFI’s conduct — measured under G. L. c. 15 IB — was outrageous in any respect. It is possible that the jury awarded punitive damages because they concluded that BFT had knowingly violated the ADA and had deliberately sought to avoid its legal obligations to Dartt under the workers’ compensation statute. The evidence to support those claims was improperly admitted. Absent such evidence, the question of punitive damages should not have been sent to the jury. See Karcher v. Emerson Elec. Co., 94 F.3d 502, 509 (8th Cir. 1996), cert. denied, 117 S. Ct. 1692, 1693 (1997) (punitive damages claim should not have been submitted to jury in sex discrimination case because evidence did not support finding that employer’s conduct was outrageous, as required under State law claim, or that employer acted with malice or reckless indifference, as required under Title VII); Braverman v. Penobscot Shoe Co., 859 F. Supp. 596 (D. Me. 1994) (although plaintiff had established case of prima facie discrimination under ADA and evidence of pretext sufficient to defeat employer’s motion for summary judgment, plaintiff had not raised sufficient evidence that employer had discriminated against him with “malice” or “reckless indifference” to allow claim of punitive damages to go to jury). On remand, the issue of punitive damages should not be sent to the jury.
The case is remanded to the Superior Court for a new trial.
So ordered.
The plaintiff also alleged a claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (1994) (count HI of his complaint), and the Rehabilitation Act of 1973, 29 U.S.C. § 706 (count IV). A judge in the Superior Court granted defendant Browning-Ferns Industries, Inc.’s (BFI’s) motion for summary judgment as to those two counts.
We use the male pronoun because in this case the plaintiff is a man.
BFI’s safety policy, which Dartt signed as a condition of his employment, required him to use “maximum care and good judgment.” Greenwood testified that he terminated Dartt because he did not believe that Dartt could have kept his eyes on the trailer while reaching for a soda, and that in his judgment, a vehicle such as the one operated by Dartt was “a lethal weapon out on the highway,” and he could not afford to tolerate even occasional carelessness by a driver while operating it.
The BFI manual also provides that the district manager (Greenwood) may discharge an employee forthwith if he determines that the employee has violated company policy. Greenwood testified at trial that he also had the authority to override the board.
Although there was no objection to this evidence, we fail to see its relevance to the claim of handicap discrimination made by Dartt. As a matter of company policy, BFI required all drivers to attend weekly safety meetings, and it was Dartt’s own testimony that Stone’s remark occurred in the context of BFI’s safety maintenance program. Evidence of employer attempts to contain or reduce workers’ compensation claims, without more, is not probative of handicap discrimination. It is proper, for example, for an employer to urge workers to comply with safety regulations or to exercise appropriate cautionary measures when handling heavy-duty equipment such as the vehicle in this case, even if one purpose of doing so is to contain or reduce workers’ compensation claims.
At trial, BFI objected to the introduction of this evidence, a point it does not pursue here. It is not clear to us on what basis the judge admitted the evidence. Evidence that an employer seeks to have an injured worker return to work once he is physically able to do so (as happened in Dartt’s case) is not probative of handicap discrimination.
Cases of disparate impact have a different burden of proof. See Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 699-700 (1992). Dartt made no claim of disparate impact, and we are not here concerned about the standard of proof in those cases.
Where, as here, there is no direct evidence of discrimination, we apply the three-stage burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130. 134-136 (1976), citing McDonnell Douglas, supra.
BH recognizes, as it must, that in cases alleging disparate treatment under G. L. c. 151B, § 4 (1), we have never used the term “solely” to describe a plaintiff’s prima facie burden. See, e.g., Blare, supra at 441; White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991).
The handicap discrimination cases in which we made reference to the term “solely” did not turn on the third element of a plaintiffs prima facie burden. In Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), the
As Justice Brennan noted in Price Waterhouse v. Hopkins, 490 U.S. 228, 241 n.7 (1989), Congress similarly had rejected a proposed amendment to Title VII that would have modified § 703(a) to provide that liability could be established only if an employment decision was taken “solely because of” an impermissible motive. See 110 Cong. Rec. 2728, 13,837 (1964). .
In Tate v. Department of Mental Health, 419 Mass. 356, 365 (1995), we held that a claim based on G. L. c. 15 IB precludes a claim arising directly under art. 114, because the statute provides adequate relief to redress a claim of handicap discrimination by an employer. See Conway v. Boston Edison Co., 745 F. Supp. 773, 779 (D. Mass. 1990) (“Although a limited right of action under [art. 114] has . . . been recognized, I believe that the Supreme Judicial Court would restrict it to cases that fall outside the scope of any remedial statute .... Because ch. 151B supplies a fully adequate procedure to redress handicap discrimination by an employer, it precludes a right of action arising directly under the constitution”).
While we do on occasion consider judicial interpretations of Federal civil rights statutes instructive in our analyses of G. L. c. 15IB, we have not
BFI argues that we should look instead to cases interpreting the Rehabilitation Act of 1973, 29 U.S.C. §§ 706, 791-794 (1994). The Rehabilitation Act provides: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity [that receives Federal support]” (emphasis supplied). 29 U.S.C. § 794(a). As we describe above, prior to adopting the 1983 amendment to G. L. c. 151B, the Legislature rejected several bills that contained the term “solely.” See supra at 8. We have considered instructive interpretations of the Rehabilitation Act where the issue concerned a provision of G. L. c. 151B, § 4 (16), similar to a provision of that Federal statute. See, e.g., Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 382 (1993) (term “qualified handicapped person” in G. L. c. 151B, § 4 [16], sufficiently similar to term “otherwise qualified individual with a handicap” under Rehabilitation Act to make judicial interpretations of that provision of Rehabilitation Act helpful). See also Garrity, supra at 59; Tate, supra at 361 (making reference to Rehabilitation Act because plaintiff had also brought a claim in that case under Rehabilitation Act). Those considerations do not apply here. Cf. Labonte, supra at 816 n.5 (considering Federal courts’ interpretation of the ADA to determine whether estoppel should be applied to a plaintiff’s claim under G.L. c. 151B, § 4 [16]).
Alternatively, a plaintiff could forgo the McDonnell Douglas framework, and show “[fjirst, that he [or she] was disabled within the meaning of the Act. Second, that with or without reasonable accommodation he [or she] was able to perform the essential functions of [the] job. And, third, that the employer discharged him [or her] in whole or in part because of his [or her] disability. Katz [v. City Metal Co., 87 F.3d 26, 30 (1st Cir. 1996).]” Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996). In Labonte, supra at 821, we noted, without objection, that “[t]he law firm consolidates the steps by offering that its reason for termination was that the plaintiff’s disability made him unable to perform the essential functions of the job.”
In contrast, the United States Court of Appeals for the Fifth Circuit uses the more restrictive “solely because of” standard for a prima facie case under the ADA. See Still v. Freeport-McMoran, Inc., 120 F.3d 50, 51-52 (5th Cir. 1997). See also Despears v. Milwaukee County, 63 F.3d 635 (7th Cir. 1995) (summary judgment for employer proper because alleged disability was not sole cause of plaintiff’s demotion). None of these courts has explained why the particular prima facie test adopted is appropriate. Cf. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1076-1077 (11th Cir. 1996), cert. denied, 117 S. Ct. 1819 (1997) (analyzing why ADA does not import “solely because of” standard for plaintiff’s ultimate burden of causation).
The judge did not include in her instruction the fourth element of Dartt’s prima facie burden. The parties dispute the reason for this. BFI had argued that, because the law precludes an employer from ascertaining the handicap status, if any, of a prospective hire, there was no evidence, nor could there be, that Dartt was replaced by a nonhandicapped person. It is not necessary for a handicapped plaintiff to demonstrate that his replacement was not handicapped. It is sufficient for him to demonstrate that his position remained open and the employer sought to fill it. A defense by BFI that Dartt was terminated because of a reduction in force is not at issue here, and there was evidence that BFI had continued to hire drivers after Dartt was terminated. The error, if any, was harmless. It would be advisable on
The judge’s instructions to the jury included the following:
“We have now got the plaintiff showing the first three things, handicap, qualified, and termination. Then we have the defendant who is supposed to articulate a legitimate, nondiscriminatory reason. Once the defendant has done that, the plaintiff must prove by a preponderance of the evidence the final part in this test which is that but for the plaintiff’s handicap, the defendant would not have terminated the plaintiff. If the plaintiff proves by a fair preponderance of the credible evidence that the defendant’s asserted reason for termination was not the real reason, in other words, that the asserted reason was false or a pretext, then you must find for the plaintiff.” (Emphasis added.)
The judge also instructed as follows: “[T]he third part of the larger test, again with the plaintiff having the burden of proof for all of this, is that the business reason was not the real reason for the termination . . . .” (Emphasis added.) She later again instructed “the plaintiff has the burden to prove one final element, that but for plaintiff’s handicap, the defendant would not have terminated the plaintiff.”
There was evidence that when he first returned to work, Dartt told Stone that his back was still bothering him. Thereafter Dartt underwent further physical therapy, at the conclusion of which he never again complained about his back. There was no evidence that, at the time of the second accident, Dartt suffered from any back problems.
Dartt argues in the alternative that BFI’s discriminatory motive was to avoid paying future workers’ compensation claims because BFI viewed him as “damaged goods.” There was no evidence to support this theory.
The argument lacks merit because there was no evidence that Dartt had engaged in any wilful misconduct.
When asked on direct examination “why” he was terminated, Dartt said, “I feel the company was afraid that I was going to go back out on workmen’s comp., claiming an injury from the accident.”
Dartt never completed the form, and there was no evidence that the form played any role in any employment decision by BFI.
General Laws c. 151B, § 4 (16), provides in revelan! part that “[a]n employer may not make preemployment inquiry of an applicant as to whether the applicant is a handicapped individual or as to the nature or severity of the handicap . . . .”
The “guidelines” are not enforceable regulations. See Gray v. Commissioner of Revenue, 422 Mass. 666, 677 (1996) (Lynch, J., dissenting) (“While parties and judges may be presumed to know what statutes apply to a given court order, the same cannot be said of administrative interpretations of those statutes. Such interpretations, whether in the form of regulations, directives, or guidelines, lack the legal force of statutes”).
Relying on Cook v. State Dep’t of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993), Dartt argues that an employer’s expressed concerns about claims for workers’ compensation are a form of prohibited employment discrimination. Dartt’s argument sweeps too broadly. In Cook, the employer’s physician had recommended that an applicant with morbid obesity not be hired because he believed her obesity placed her at risk and he was concerned about the over-all costs of workers’ compensation injuries. Id. at 28 n.13. In this case, there was no evidence of any such individualized concern.
During his closing argument, Dartt’s counsel said, “And you heard the testimony that . . . they had to change the application in ’92 because of the federal law, the Americans for Disability law [sic]; and that’s why they had to change this. It was in violation of that law.”
On appeal Dartt claims that BFI continued to use the application form after the ADA took effect. In violation of rule 16 (a) (4) of the Massachusetts Rules of Appellate Procedure, Dartt provides no reference for such a claim, and we find nothing in the record to support it.
BFI concedes that it did not raise this issue in its motion for a directed verdict or in its motion for judgment notwithstanding the verdict. Its failure to do so is explained, partly, because it relies on Hallgren v. Integrated Fin. Corp., 42 Mass. App. Ct. 686, 688-689 (1997), an opinion not issued at the time of trial. We exercise our discretion to consider this issue. See Pryor v. Holiday Inns, Inc., 401 Mass. 506, 509 (1988).
The workers’ compensation act, G. L. c. 152, § 75B (1), provides that any employee “who has sustained a work-related injury and is capable of performing the essential functions of a particular job . . . shall be deemed to be a qualified handicapped person under the provisions of chapter one hundred and fifty-one B.” In Hallgren no claim was made regarding the applicability of G. L. c. 152, § 75B. Hallgren, supra at 686 n.2. We do not consider the applicability, if any, of that statute to Dartt’s claim.