Case Information
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ABEBA MEKONNEN, )
)
Plaintiff, )
) CIVIL ACTION NO. v. ) 12-12183-DPW )
OTG MANAGEMENT, LLC )
)
Defendant. )
MEMORANDUM AND ORDER July 25, 2019
Plaintiff Abeba Mekonnen has proceeded pro se [1] in this workplace discrimination action against her former employer Defendant OTG Management, LLC, alleging several different theories of discrimination under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and state law.
I. BACKGROUND
A. Facts
OTG operates a CIBO Express Gourmet Market at Logan Airport in Boston, MA, where it employs both utility workers, who transport materials from the storage room to the storefront, and cashiers.
Ms. Mekonnen applied for a cashier position at the CIBO Express Gourmet Market on July 2, 2007. In her application, she indicated that she preferred to work from 1 PM to 10 PM and that she needed Sunday mornings off to attend church. Ms. Mekonnen is an Orthodox Christian. The only shift OTG had available at the time was an early morning shift from 5 AM to 1 PM. Ms. Mekonnen accepted the early morning shift, with the hope that in an Appendix a summary of their respective litigation histories.
That said, I have, as will be evident in this Memorandum, read
Ms. Mekonnen’s submissions liberally.
See Erickson Pardus
,
she would be able to have Sunday mornings off, and began working for OTG on August 4, 2007.
The parties dispute whether OTG required Ms. Mekonnen to work on Sunday mornings in 2007. According to William Khayat, a former Terminal Director for OTG, Ms. Mekonnen’s regular work schedule was Monday to Friday and every effort was made to avoid scheduling her shifts on Sunday. Ms. Mekonnen claims she had to work during church services approximately two or three times in her first month at OTG. OTG no longer has copies of Ms. Mekonnen’s work schedule from 2007 and 2008, but payment records indicate Ms. Mekonnen worked several Sundays in 2007, including every Sunday in December 2007.
The parties also dispute whether Ms. Mekonnen informed OTG that she had a disability in 2007. Ms. Mekonnen claims that in early August 2007, she told her direct supervisor Lily Molla that she had a leg problem and requested to sit in an elevated chair during her shift. In addition, she claims she gave OTG a medical certificate from Ethiopia that stated she suffers from osteoarthritis in her right knee. Mr. Khayat denied ever seeing the Ethopian medical certificate and claimed Ms. Mekonnen never informed him she was disabled.
A few weeks after Ms. Mekonnen started work, Begashaw Ayele, Ms. Mekonnen’s then husband, who also worked at Logan Airport, had a conversation with Mr. Khayat about issues Ms. Mekonnen was having at OTG. Mr. Ayele told Mr. Khayat that Ms. Mekonnen was concerned about having to work on Sunday mornings. According to Mr. Ayele, he also informed Mr. Khayat that Ms. Mekonnen had a permanent leg injury. Mr. Khayat recalled that a discussion with Mr. Ayele took place, but did not recall any discussion of Ms. Mekonnen’s medical issues. Mr. Ayele wrote a letter to Mr. Khayat a few days later, in which he informed Mr. Khayat that recently at OTG “a Christian employee who was offered full time job from Monday to Friday was required to work on his/her religious observance day all in favor of a Muslim employee.” [2] Mr. Ayele cited M ASS . G EN . L AWS ch. 149 § 103 and wrote that “[a]ccording [to] this statute, employers must allow employees to do their work in a seated position . . . all industries are covered and OTG is no exception.” Mr. Ayele also claims he later called the human resources department at OTG to discuss these issues.
Ms. Mekonnen claims Mr. Khayat and Ms. Molla treated her less favorably after Mr. Ayele sent the letter. According to Ms. Mekonnen, they prevented her from taking a lunch break until approximately an hour before her shift ended and from taking bathroom breaks during her shift. She also claims Mr. Khayat and Ms. Molla assigned her tasks that were not a part of her regular duties and failed to provide her with the proper change for her register at the start of her shift. Mr. Khayat denies that he treated Ms. Mekonnen differently than any other employee when it came to providing her with meal breaks, restroom breaks, or proper change for her register.
In January 2008, Ms. Mekonnen was injured at work when a door fell on her leg. She sprained her knee and had a contusion, but did not break any bones. She received two doctor’s notes: one on January 22, 2008 which advised her to remain out of work for three days, and one on February 11, 2008 which advised her to remain out of work for five days. Ms. Mekonnen returned to work after two weeks and continued working full-time.
During Ms. Mekonnen’s time with OTG, the company received mixed feedback about her from customers; the trend in this feedback suggested diminishing performance over time. In this connection, OTG participated in a “secret shopper” program, in which customers would visit stores and report on their experiences. In the first report about Ms. Mekonnen, dated August 27, 2007, she received an overall score of 78% and was described as having “a lovely smile and demeanor” that “made [the customer] feel very welcome.” In a second report, dated November 16, 2007, she received an overall score of 58%. This “customer” found that Ms. Mekonnen did not understand English well and did not demonstrate knowledge of the items for sale. In the third report, dated May 8, 2009, Ms. Mekonnen received an overall score of 32%. The customer found that “[i]nteracting with the unfriendly Associate was memorable” and reported that Ms. Mekonnen was talking on her cell phone when the customer entered the store. OTG had previously received a complaint that Ms. Mekonnen took a personal phone call while checking out a customer on February 9, 2009. Ms. Mekonnen claims she was not on her cell phone during either of these exchanges.
Ms. Mekonnen was also disciplined repeatedly by her supervisors at OTG. She received and signed a written warning on June 10, 2008 for sitting on top of a plastic box while working. Ms. Mekonnen admits she would sit at times while she worked, but claims she had to do so because of her knee issues. On May 19, 2009, Ms. Mekonnen received a written warning for failing to check the expiration date on a product. The warning noted that the consequence of further infractions would be termination. Ms. Mekonnen’s signature does not appear on this written warning. Ms. Mekonnen claims utility workers at OTG, not cashiers, were responsible for inspecting the expiration dates of products.
Subsequently, Ms. Mekonnen received another low score on a secret shopper report and she was terminated on November 19, 2009. Her termination form listed the reason for firing as “poor job performance, 3 below avg. failing secret shopper scores.”
B. Procedural History
Ms. Mekonnen filed an administrative charge of discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”) and the Massachusetts Commission Against Discrimination (“MCAD”) on May 10, 2010. She also filed a complaint with the Massachusetts Office of the Attorney General regarding OTG’s alleged failure to pay out her accrued vacation time promptly. On May 25, 2010, the Attorney General granted Ms. Mekonnen the right to bring an action.
The MCAD dismissed Ms. Mekonnen’s complaint on April 30, 2012. Thereafter, the EEOC sent her a right to sue letter on August 28, 2012.
Ms. Mekonnen initially filed her complaint in state court and OTG removed the case to this court on November 23, 2012. Ms. Mekonnen filed an amended complaint on April 23, 2014. She alleged that OTG discriminated against her on the basis of her disability, religion, sex, and age in violation of state and federal law. She also alleged that OTG retaliated against her for raising such claims with management. With respect to wages and hours, Ms. Mekonnen alleged that OTG had failed to pay out her vacation benefits, and that it violated M ASS . G EN . L AWS ch. 136 § 6(50) and § 16 by forcing her to work on Sunday. Finally, Ms. Mekonnen brought assorted claims against Mr. Khayat in his individual capacity. I have dismissed Ms. Mekonnen’s age discrimination claim, her claim under M ASS . G EN . L AWS ch. 136 § 6(50) and § 16, and her claims against Mr. Khayat. OTG has moved for summary judgment as to the remaining claims.
II. MOTION TO STRIKE
Along with her opposition to summary judgment, Ms. Mekonnen submitted several exhibits and affidavits. OTG moved to strike certain of the exhibits and sections of the affidavits, contending that they include documents Ms. Mekonnen did not identify or produce during discovery and statements that constitute hearsay or that were not based on personal knowledge and therefore are inadmissible.
Under F ED . R. C IV . P. 37(c)(1), “[i]f a party fails to
provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion.” F ED . R. C IV . P. 37(c)(1). If a party fails to comply with the discovery
requirements imposed by the Federal Rules and his failure to
comply is neither substantially justified nor harmless, then the
belatedly offered evidence may be stricken.
Greene Ablon
,
I will strike certain exhibits not produced during discovery, specifically Ms. Mekonnen’s medical certificate from Ethiopia and the three sets of cell phone records. Ms. Mekonnen herself admits she did not provide these exhibits to OTG during discovery, despite being required to do so. Her failure to inform OTG earlier of these exhibits is not harmless. [3] The medical certificate introduced a previously underdeveloped theory of disability or handicap into the case, while the cell phone records attempt to offer a new way of proving that OTG’s reason for terminating Ms. Mekonnen was pretextual. For the sake of completeness, however, and because consideration of these documents does not change my ultimate view of the merits, I will discuss them in conjunction with my consideration of the merits of her underlying claim.
I will not strike the November 1, 2016 letter from her doctor at Massachusetts General Hospital, though this letter was not produced as part of the original round of discovery. The letter itself did not exist until November 1, 2016 and Ms. Mekonnen provided it to opposing counsel on December 12, 2016. Although Ms. Mekonnen could have submitted the letter more promptly, I do not find OTG was prejudiced by this brief delay.
Finally, I will not strike references to these submissions in Ms. Mekonnen’s affidavit, her other filings, and Mr. Ayele’s affidavit. Ms. Mekonnen may explain the history of her leg problems and Mr. Ayele may offer his observations of Ms. Mekonnen’s condition. I will simply treat other references to the Ethiopian medical certificate in the statement of facts as argument.
Turning to the affidavits submitted by Ms. Mekonnon, I will
strike some, but not all, of the sections identified by OTG.
Under F ED . R. C IV . P. 56(c)(4), “[a]n affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge” and must “set out facts that would be admissible in
evidence.” When striking statements in an affidavit, a court
must use “a scalpel, not a butcher knife” in order “to disregard
those parts of it that are inadmissible and to credit the
remaining portions.”
Perez Volvo Car Corp.
,
I will strike the portions of her submissions that constitute garden-variety hearsay. From Ms. Mekonnen’s affidavit, I will strike the part of paragraph 5, where she states: “One day, Begashaw [Ayele] . . . asked Mr. Khayat, Ms. Molla’s boss, why my request for leg injury and religious accommodation was ignored. Begashaw told me that Khayat had no answer.” From Mr. Ayele’s affidavit, I will strike the part of the second sentence of paragraph 5, where he states: “Abeba [Mekonnen] told me that Lily’s promise have Sunday off as an to accommodation for church [ sic ] was not realized”; the part of the second sentence of paragraph 14, where he states: “Abeba said ‘I do know that they took the money to the office but unable to know whether they pocket the money for themselves”; the part of paragraph 15, where he states: “Abeba told me that she can not continue to work unless she sit at a given time interval to alleviate her leg problem”; and, the first two sentences of paragraph 16. From Samuel Negash’s affidavit, I will strike the part of paragraph 11, where he states “I heard that she [meaning Ms. Mekonnen] was conversing with employees that Mr. Khayat had fired her for talking by phone while she was on duty.”
I also note that I will not consider the sections of Mr. Ayele’s affidavit which recount his interviews with other OTG employees as substantive evidence of how other OTG employees were treated. This recounting is focused on the second sentence of paragraph 17 and on paragraphs 18, 19, and 20.
I will not strike the sections of Ms. Mekonnen’s
submissions that are based upon her review of other documents.
Most of OTG’s objections arise from instances where Ms. Mekonnen
provides her own understanding and interpretation of OTG’s
business records or other evidence properly before me. For
example, Ms. Mekonnen submitted a document titled “Refuting
Murphy’s Declaration and his Exhibit No. 9,” in which she
compares OTG’s records of her work schedule to her own
calculation of her work schedule based on her pay records.
“Motions to strike have been denied when the declarant did not
personally experience the matters discussed in the affidavit,
but did review business or public records and included
information from those records with the affidavit.”
Facey
v.
Dickhaut
,
Finally, I recognize Ms. Mekonnen’s Statement of Material
Facts contains many statements not supported by citations to the
record, as required by Local Rule 56.1. I will deem admitted
those facts Ms. Mekonnen has failed to dispute with citations to
the record and strike statements included in her submission that
are not supported with citations to the record, though I will
still fully consider “whether the moving party has met its
burden” based on ”those facts adequately supported by the
record.”
Paul
v.
Johnson
,
III. MOTION FOR SUMMARY JUDGMENT
A. Disability Discrimination
Ms. Mekonnen alleges that OTG failed to provide her with a reasonable accommodation for her disability and that OTG discriminated against her on the basis of her disability by issuing her a warning for sitting on a plastic box, by altering her job duties, and ultimately by terminating her.
I analyze her disparate treatment claims under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et
seq.
, and the Massachusetts Antidiscrimination Act, M ASS . G EN . L AWS ch. 151B (“151B”), using the
McDonnell-Douglas
burden-shifting
framework.
Tobin Liberty Mut. Ins. Co. (“Tobin I”)
, 433 F.3d
100, 104 (1st Cir. 2005) (citing
McDonnell Douglas Corp.
v.
Green
,
(1) [s]he suffers from a disability or handicap, as defined by the ADA and Chapter 151B, that (2) [s]he was nevertheless able to perform the essential functions of [her] job, either with or without reasonable accommodation, and that (3) [defendant] took an adverse employment action against [her] because of, in whole or in part, [her] protected disability.
Id.
Under both the ADA and 151B, a person “is considered
disabled if she (a) has a physical or mental impairment that
substantially limits one or more of her major life activities;
(b) has a record of such an impairment; or (c) is regarded as
having such an impairment.”
Ruiz Rivera
v.
Pfizer Pharm., LLC
,
If Ms. Mekonnen establishes a
prima facie
case of
discrimination, the burden shifts to OTG to articulate a
legitimate, nondiscriminatory reason for its employment decision
and show this was the true reason for its action.
Tobin I
, 433
F.3d at 105 (citing,
inter alia
,
McDonnell Douglas
, 411 U.S. at
802)
.
At this point, if OTG “offers such a reason, the burden
shifts back to [Mekonnen], and [s]he must proffer evidence to
establish that [defendant’s] non-discriminatory justification is
mere pretext, cloaking discriminatory animus.”
Id
(citing
McDonnell Douglas
,
To survive summary judgment for her reasonable
accommodation claims under the ADA, Ms. Mekonnen must show
“(1) [s]he is disabled within the meaning of the ADA, (2) [s]he
was able to perform the essential functions of the job with or
without a reasonable accommodation, and (3) [defendant], despite
knowing of [her] disability, did not reasonably accommodate it.”
Rocafort
v.
IBM Corp.
,
1. Exhaustion
Before examining the merits of her claims, I must determine
whether Ms. Mekonnen has adequately pled and previously
different than the federal standard because “the plaintiff
employee may defeat an employer’s motion for summary judgment by
showing that there are disputed issues of fact as to whether the
employer’s proffered reason was not the true reason, which
permit the inference that the employer offered a pretextual
reason because the true reason was discrimination on the basis
of handicap.”
Gannon City of Boston
,
exhausted all of the theories of disability discrimination she now advances. Relying in part on the Ethiopian medical certificate I have stricken, Ms. Mekonnen claims in her opposition to summary judgment to suffer from osteoarthritis. Ms. Mekonnen had previously relied on her at-work leg injury in January 2008 as the sole basis for her disability claim, both in her administrative charge before MCAD and in her complaint in this case.
I find Ms. Mekonnen has sufficiently pled disability discrimination based on her osteoarthritis in her complaint in this court. According to her amended complaint, as early as August 2007, she had a “leg problem” that was aggravated by OTG’s failure to provide her with an elevated chair and that it was “[b]ecause of this and the employer’s failure to accommodate the Sunday off time for worship” that Mr. Ayele wrote the September 2007 letter to Mr. Khayat. The complaint also mentions how she had one written warning for sitting while at work because of a preexisting leg problem and later injury sustained while at work. Even if Ms. Mekonnen previously placed greater emphasis on her at-work injury, her complaint gave OTG adequate notice of a theory of disability discrimination based on a preexisting leg problem, even if it did not elaborate on the source of that problem.
Whether Ms. Mekonnen exhausted administrative remedies for
her disability claim based on her pre-existing knee condition is
a closer call. Under both the ADA and 151B, an employee must
file an administrative charge either with the EEOC or with the
parallel state agency before filing suit
.
Lattimore Polaroid
Corp.
,
Ms. Mekonnen’s administrative charge does not mention her osteoarthritis diagnosis. Instead, her administrative charge framed her disability claim entirely around the January 2008 injury:
On or about January 22, 2008 I had a work-related injury when a sliding door fell on my leg. I was out of work for eight days due to this injury. Upon my return I requested to be able to sit when there were no customers around. Respondent failed to accommodate my request and issued me a warning on June 10, 2008 for sitting when there were no customers in my line. I also requested a transfer to a delivery position as an accommodation to my disability but was told delivery positions were only given to male employees.
In her rebuttal to OTG’s position statement, she again discussed her at-work injury but did not discuss her osteoarthritis diagnosis. Relying on her administrative charge, the MCAD investigative disposition examined her disability claim only through the lens of her at-work injury. [5]
Ms. Mekonnen’s permanent leg problem is one of those “core
facts” upon which her disability discrimination claim may be
said to rest; it should have been identified fully in her
administrative charge.
Lattimore
,
Moreover, the osteoarthritis diagnosis was information that was fully within Ms. Mekonnen’s control. She knew she had osteoarthritis and, at least according to her opposition to summary judgment, she believed she was discriminated against because of this condition. [6] Nothing prevented her, then, from providing this information to the MCAD in her initial administrative charge.
To be sure, at least the complaint makes clear reference to disability discrimination based on an injury to Ms. Mekonnen’s leg and indicates, albeit obliquely, that Ms. Mekonnen had sought an accommodation to sit at work as early as September determination issues [from MCAD], the administrative investigation is closed.”).
[6] Her failure to mention the leg problem caused by osteoarthritis in her administrative charge appears to be yet another instance where a lack of forthrightness and candor interfered with the orderly progress of this case.
2007. An investigator reading Mekonnen’s complaint could
reasonably be expected to ask why her husband referred to the
Massachusetts right-to-sit law in his September 2007 letter,
months before her January 2008 accident. An investigator could
also reasonably be expected to ask the complainant if she had
any other problems with the same leg, which would presumably
reveal the osteoarthritis condition, assuming the complainant
was forthright during the process.
See Perch City of Quincy
,
Because the matter is close, and because I will grant summary judgment for OTG on Ms. Mekonnen’s disability claims on other grounds, I will assume, without deciding, that her disability claim based on her permanent leg problem were properly exhausted.
2. Timeliness
Even if Ms. Mekonnen had fully exhausted administrative remedies, her disability claims are, at least in part, time- barred. Under both the ADA and 151B, an employee is required to file an administrative claim “within 300 days after the alleged unlawful employment practice occurred.” [7] Thorton , 587 F.3d at 31. Ms. Mekonnen filed her administrative charge on May 10, 2010, which means her claims must be premised on acts that occurred after July 14, 2009. However, at least some of the discrete acts on which Ms. Mekonnen seeks to rely here – her requests in August and September 2007 for an elevated chair, her request for a transfer to a utility position, and the written warning issued to Ms. Mekonnen for sitting during her shift – occurred before July 14, 2009 and individually cannot form the basis of a disability discrimination claim.
I find there is no evidence that Ms. Mekonnen made a
specific request to sit while working after July 14, 2009 that
OTG denied. In determining the timeliness of a reasonable
accommodation claim, “[t]he pivotal question . . . is whether
[the employee] made a specific request for accommodation that
was denied during the statutory periods.”
Tobin
v.
Liberty Mut.
Ins. Co.
(“
Tobin II
”),
Mekonnen made were in August and September 2007, when she asked Ms. Molla if she could sit in an elevated chair while she worked and when Mr. Ayele spoke with and wrote to Mr. Khayat on behalf of Ms. Mekonnen. Any claims based on those requests, or any other requests made before July 14, 2009, are time-barred.
Neither Ms. Mekonnen’s affidavit nor Mr. Ayele’s affidavit mentions any requests made on or after July 14, 2009, and Mr. Khayat claimed he was never aware that Ms. Mekonnen had a medical condition for which she needed an accommodation. In her opposition to summary judgment, Ms. Mekonnen contends she told Ms. Molla repeatedly about her medical condition, and in her statement of material facts, she claims to have asked Ms. Molla and Mr. Khayat for an accommodation at various points in during her employment. Ms. Mekonnen does not, however, support these contentions with evidence in the record. It is well-settled that “[f]actual assertions . . . in motion papers, memoranda, briefs, or other such ‘self-serving’ documents, are generally insufficient to establish the existence of a genuine issue of material fact at summary judgment.” Nieves Univ. of P.R. , 7 F.3d 270, 276 n. 9 (1st Cir. 1993). For this reason alone, Ms. Mekonnen fails to present sufficient evidence to support a timely reasonable accommodation claim.
Even if I were to consider the unsupported assertions made
in her opposition and statement of material facts as
evidentiary, they are insufficient to show that Ms. Mekonnen
made “sufficiently direct and specific” requests to sit while
working after July 14, 2009, as required by both the ADA and
151B.
Murray
v.
Warren Pumps, LLC
,
Ms. Mekonnen’s reasonable accommodation claim based on her
request to transfer to a utility position faces similar
problems. She presents no cognizable evidence that she
requested this kind of transfer after July 14, 2009. In her
opposition to summary judgment, she claims she requested a
transfer “not only in 2008 when I had leg injury but until 2-3
months before I was fired” and that she “repeatedly sought that
position . . . because it was better than working by standing
due to my leg injury.” Again, Ms. Mekonnen’s factual assertions
in her memorandum are insufficient to create a triable issue of
fact.
Nieves
,
OTG does not dispute that Mekonnen’s disability claim based
on her termination on November 19, 2009 is timely. In addition
to advancing this specific claim, Ms. Mekonnen attempts to rely
on the continuing violations doctrine to save her otherwise
untimely claims. The continuing violations doctrine allows an
employee to “obtain recovery for discriminatory acts that
otherwise would be time-barred so long as a related act fell
within the limitations period.”
Tobin II
,
The continuing violations doctrine does not apply to the
acts underlying Mekonnen’s disability claims. Denying a request
for a reasonable accommodation, denying a transfer request, and
issuing a written warning are all discrete acts that occur on a
particular day.
Tobin II
,
Though any disability discrimination claims based on the
June 10, 2008 written warning for sitting while working and the
May 19, 2009 written warning for failing to check expiration
dates are time-barred, I may consider these acts “‘as background
evidence in support of a timely claim’” for wrongful
termination.
Tobin II
,
3. Disabled or Handicapped Under the ADA or 151B
The ADA and 151B both use the same three-part test to
determine whether an impairment qualifies as a disability or a
handicap, with one slight difference.
Ramos-Echevarria
v.
Pichis, Inc.
,
First, I consider whether the alleged condition
“constitutes a mental or physical ‘impairment.’”
Carroll
v.
Xerox Corp.
,
For many years, “the definitions of ‘disability’ and
‘handicap’ [were] virtually identical” under the ADA and 151B.
Whitney
v.
Greenberg, Rosenblatt, Kull & Bitsoli, P.C.
, 258 F.3d
30, 32 n. 1 (1st Cir. 2001). However, the ADA Amendments Act of
2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553, 3553-55
(2008), codified in 42 U.S.C. § 12101
et seq
. , which became
effective on January 1, 2009, “expanded the definition of
‘disability’” under the ADA.
Thornton
,
The only timely ADA claims concern conduct that occurred after July 14, 2009. I will therefore use the ADAAA’s more “working” in the definition of a “major life activity” and, in many respects, reach further than the state definition. See infra note 10.
generous standard to evaluate Ms. Mekonnen’s federal claims. Moreover, because it is no longer as clear whether the Supreme Judicial Court will continue to read 151B in a more narrow fashion, I will, out of an abundance of caution, apply the ADAAA’s standard to Ms. Mekonnen’s state law claim as well. [9]
As discussed above, Ms. Mekonnen has, at times, identified two different conditions from which she suffers. First, she claimed to suffer consequences from the January 2008 leg injury. Second, she claimed to suffer from osteoarthritis in the same leg, a condition which was aggravated by the January 2008 accident. In her opposition to summary judgment and accompanying affidavit, she disavows reliance on the January 2008 leg injury as her alleged disability and focuses solely on her osteoarthritis condition. For the sake of completeness, I will address both conditions.
a. January 2008 Leg Injury Assuming, without deciding, that Ms. Mekonnen has satisfied the first two parts of the test, I find she has failed to show that her January 2008 leg injury itself substantially limited her ability to stand or work. Ms. Mekonnen stated at her deposition that she returned to work two weeks after the accident and continued working full time. She sought medical attention for her injury twice in the immediate aftermath of her accident. Both times, she was advised not to work for a few days, but was given no other restrictions. The medical record from her January 22, 2008 visit explains that her contusion and sprain should heal in a few weeks and that she should treat her pain with ice and ibuprofen. It made no mention of the need for any long-term adjustments to her work schedule or working conditions.
According to her affidavit, Ms. Mekonnen views the January 2008 leg injury not as a disability from which she continues to suffer but as a byproduct of her osteoarthritis. She stated that “the fallen object on my knee was not the case [ sic ] of my permanent disability resulting from a bone disease aka medically known as ‘osteoarthritis’” and that “the injury was permanent from the bone disease and not because of a wooden door that was fallen on my leg while working for OTG.” (emphasis in original).
The January 2008 leg injury did not, in and of itself, substantially limit her ability to stand or work. The medical records suggest the injury was, at most, a relatively minor and temporary condition from which Ms. Mekonnen would recover in a few weeks. Indeed, this characterization of the injury is, in part, confirmed by her return to full-time work two weeks later. Even under a liberal definition, her January 2008 injury would not qualify as a disability or handicap under either the ADAAA or state law because there is no evidence that the injury substantially limited her ability to stand or work for any period of time longer than a couple weeks. Murray , 2013 WL 5202693, at *5-6.
Indeed, Ms. Mekonnen herself no longer claims the injury alone limited her ability to stand or work. Rather, according to her affidavit, the injury aggravated her preexisting leg problem, which in turn prevented her from standing after she returned to work. Her disability or handicap can be understood only as the broader condition of a leg problem due to osteoarthritis, exacerbated by but largely independent of the January 2008 accident.
b. Osteoarthritis
Ms. Mekonnen’s leg problem due to osteoarthritis may
qualify as a disability or handicap under the ADA and 151B. Ms.
Mekonnen stated in her affidavit that she suffered from
osteoarthritis and that her condition made it difficult for her
to stand, especially after the January 2008 accident. Although
I have struck the submission, I note an Ethiopian medical
certificate referenced by Ms. Mekonnen declared that, as of
2007, she was suffering from osteoarthritis of the right knee
joint. Her osteoarthritis constitutes a physical impairment,
Cf. Benoit Tech. Mfg. Corp.
,
But, Ms. Mekonnen has failed to present sufficient evidence to show that her leg problem substantially limited her ability to work. The undisputed evidence shows she was working a full schedule prior to her injury, she was back at work on her usual schedule two weeks after the January 2008 accident, and worked full-time until she was terminated more than a year later. The doctor’s notes she received after her accident advised her to remain out of work for only a few days. Her leg problem, of whatever etiology, either as it existed before January 2008 or as it was after the accident, does not appear to have substantially limited her ability to work.
Even if I were to consider the Ethiopian medical
certificate, which declared Ms. Mekonnen “unfit for any work” as
of 2007, it would not provide sufficient evidence for Ms.
Mekonnen to survive summary judgment on this theory, especially
because the record is clear that Ms. Mekonnen was able to, and
did in fact, work after receiving this diagnosis.
See Williams
v.
Kennedy
,
§ 1630.2(j)(1)(ii))).
The evidence of substantial limitations on her ability to
stand is also thin. In her affidavit, Ms. Mekonnen stated that
she “was unable to stand for extended hours and [was] compelled
to sit when the job was slow and no customer was not [
sic
]
around.” Such a declaration certainly would not have been
sufficient to show a disability under the narrower, pre-ADAAA
standard for disability or handicap that Massachusetts still
appears to employ.
See Ramos-Echevarria
,
c. Regarded As
Finally, Ms. Mekonnen has, at times, appeared to allege
that OTG regarded her as being disabled and discriminated
against her based on this perception. Before the ADAAA, a
plaintiff bringing a “regarded as” disabled claim had to show
either “‘(1) a covered entity mistakenly believes that a person
has a physical impairment that substantially limits one or more
major life activities, or (2) a covered entity mistakenly
believes that an actual, nonlimiting impairment substantially
limits one or more major life activities.’”
Ruiz-Rivera
, 521
F.3d at 83 (quoting
Sullivan Neiman Marcus Grp., Inc.
, 358
F.3d 110, 117 (1st Cir. 2004)). “After the enactment of the
ADAAA, however, a plaintiff bringing a ‘regarded as’ claim under
the ADA needs to plead and prove only that she was regarded as
having a physical or mental impairment.”
Mercado Puerto
Rico
,
Ms. Mekonnen cannot bring a failure to accommodate claim under the theory that she was “regarded as disabled,” 42 U.S.C. § 12201(h) (referencing 42 U.S.C. § 12102(1)(C)), so I do not examine her transfer request claims under a “regarded as” disabled theory. Beyond a section heading referring to “[p]laintiff’s perceived disability and/or impairment,” Ms. Mekonnen does not discuss her “regarded as” claim in her opposition to summary judgment. For the sake of completeness, however, I will consider Ms. Mekonnen’s termination claim under a regarded as disabled theory as well.
* * * OTG does not dispute that Ms. Mekonnen was able to perform the essential functions of her job with or without a reasonable accommodation. I will proceed to evaluate the remaining issues pertaining to her reasonable accommodation and disparate treatment claims separately.
4. Reasonable Accommodation
Ms. Ms. Mekonnen has failed to establish that transferring
her to a utility position would be a reasonable accommodation.
It is well-settled that “a plaintiff must show, even at the
summary-judgment stage, that the requested accommodation is
facially reasonable.”
Echevarria
v.
AstraZeneca Pharm. LP
, 856
F.3d 119, 128 (1st Cir. 2017). To meet this burden, “a
plaintiff needs to show not only that the proposed accommodation
would enable her to perform the essential functions of her job,
but also that, at least on the face of things, it is feasible
for the employer under the circumstances.”
Reed
v.
LePage
Bakeries, Inc.
,
Ms. Mekonnen does not demonstrate how a transfer to a utility position would have been an accommodation for her particular disability or handicap. The contrary appears to be the case. Employees in utility positions have to carry products from the storage room to the storefront, stock shelves, and clean the store. According to Mr. Khayat, utility positions “are significantly more physically[ ] demanding than the Cashier positions at OTG.” Employees in utility positions “spend a majority of their shifts on their feet walking, carrying and/or delivering products to various OTG locations throughout the airport.” Ms. Mekonnen does not dispute this description of a utility worker’s duties. Indeed, she submitted affidavits from two former utility workers, who both characterize their duties in a similar manner.
There is, in short, no evidence demonstrating that a transfer to this position would have relieved Ms. Mekonnen from standing. In order to perform the essential functions of a utility worker, she would have had to be on her feet carrying products out to the storefront and inspecting products throughout the store. In her own affidavit, Ms. Mekonnen described how she was asked once to climb a stool to inspect the expiration dates in the dairy fridge, but she “was unable to do so” because she “can not stand on floor for extended time let alone on stool that require balancing oneself and keep from falling.” (emphasis in original). Even if she were relieved from having to inspect higher shelves, Ms. Mekonnen would still have to stand on the floor for extended periods of time to perform the tasks of a utility worker.
Because a transfer to a utility position would not enable her to perform the essential functions of her job, I find that it would not have been a reasonable accommodation. Reed , 244 F.3d at 259; see also Bryant Caritas Norwood Hosp. , 345 F. Supp. 2d 155, 170 (D. Mass. 2004) (employee’s proposed accommodation of working in a position that included lifting and moving patients as essential functions was not reasonable because employee’s disability limited her ability to lift). Having failed to identify a reasonable alternative accommodation, [10] Ms. Mekonnen’s accommodation claim fails.
5. Disparate Treatment
Assuming for present purposes that Ms. Mekonnen can
establish the first two parts of her
prima facie
case of
disability discrimination as to her termination, I turn to the
final part: whether she has shown that OTG terminated her
“because of, in whole or in part,” her disability or handicap.
Tobin I
,
My inquiry does not end there. Instead, the burden shifts
to OTG, which has articulated a legitimate, nondiscriminatory
reason for terminating Ms. Mekonnen: Ms. Mekonnen was terminated
because of her consistently poor job performance. Ms. Mekonnen
received three failing secret shopper reports, which included
allegations of poor customer service. OTG warned Ms. Mekonnen
that if her performance did not improve, she would be
terminated. Poor work performance, of course, qualifies as a
legitimate, nondiscriminatory reason for termination.
See Izzo
v.
Genesco, Inc.
,
At the final step of this inquiry, I conclude Ms. Mekonnen has not met her burden to show that OTG’s reason is pretextual. She attempts to show pretext by arguing she was, in fact, performing her job well. She points to one early positive secret shopper report and to the additional training she did after work to improve her customer service skills. She also attempts to introduce evidence, including the cell phone records which I have already stricken, to dispute the accuracy of the other secret shopper reports.
Ms. Mekonnen cannot meet her burden of showing pretext
“simply by questioning [OTG’s] articulated reason” or by
demonstrating that OTG was wrong to believe she was not
performing her job well.
Gadson
v.
Concord Hosp.
,
That individuals and companies sometimes make employment decisions that prove to be bad ones in hindsight usually suggests no more than that—that they got it wrong. To support an inference of pretext, to suggest that something more nefarious might be at play, a plaintiff must produce evidence that the employer did more than get it wrong. He or she must come forward with evidence that the employer didn’t really believe its proffered reasons for action and thus may have been pursuing a hidden discriminatory agenda.
Johnson Weld Cty., Colo.
,
Even if OTG was mistaken in its evaluation of Ms. Mekonnen’s work performance, and even if her belatedly proffered cell phone records indicate that the secret shopper reports or other customer complaints were inaccurate, she has submitted no evidence to show that OTG believed they were inaccurate or that OTG’s true motivation for terminating her was otherwise discriminatory.
Nor does the warning she received for sitting while working create a genuine issue of material fact regarding pretext. She received the warning over a year before she was terminated and was subject to negative reviews and discipline several times between the warning and her termination, none of which related to her sitting while working. The warning alone does not “refute the clear evidence put forward” by OTG “showing that it was poor [job performance], and not disability, that constituted the real reason for [Ms. Mekonnen’s] termination.” Tobin I , 433 F.3d at 105. Because she has proffered no evidence that her leg problem played a role in OTG’s decision to terminate her, Ms. Mekonnen cannot successfully oppose summary judgment for OTG as to her disability discrimination claim under either federal or state law.
B. Religious Discrimination
Ms. Mekonnen claims OTG’s failure to accommodate her
request for Sunday mornings off constituted religious
discrimination in violation of Title VII of the Civil Rights Act
(“Title VII”), 42 U.S.C. § 2000e
et seq.
, and 151B. The First
Circuit uses a two-part framework to evaluate religious
discrimination claims alleging a failure to accommodate under
both state and federal law.
Cloutier
v.
Costo Wholesale Corp.
,
Chapter 151B uses a similar framework to evaluate failure
to accommodate claims. Under 151B, “[t]he employee bears the
initial burden of establishing a prima facie case that the
employer required the employee to violate a required religious
practice” and “‘that he or she gave the employer the required
notice of the religious obligations.’”
Brown
v.
F.L. Roberts &
Co., Inc.
,
1. Timeliness
Ms. Mekonnen’s religious discrimination claims based on
accommodations she sought in 2007, 2008, or any other date
before July 14, 2009 are time-barred. As discussed above, the
denial of a request for accommodation “‘is a discrete
discriminatory act triggering the statutory limitations
period.’”
Tobin II
,
I find any religious discrimination claims based on denied requests for Sundays off before July 14, 2009 to be time-barred. I will, however, consider these earlier requests as background evidence when evaluating her claims based on requests made on or after July 14, 2009.
2. Prima Facie Case Under Title VII and 151B Ms. Mekonnen cannot establish a prima facie case of religious discrimination under either Title VII or 151B because she has not shown she was, in fact, required to work Sunday mornings after July 14, 2009. OTG has submitted Ms. Mekonnen’s schedule from February 1, 2009 to November 20, 2009 as part of the summary judgment record and it does not show her scheduled for any Sunday shifts. With her opposition to summary judgment, Ms. Mekonnen submitted a document in which she compares her biweekly wage from February 2009 to November 2009 to the schedule OTG submitted and concludes she worked more hours than those listed on her schedule. According to Ms. Mekonnen, she must have worked these extra hours on Saturdays and Sundays. [11]
For the purpose of evaluating the present motion, I will accept Ms. Mekonnen’s assertion that, had she worked the number of hours listed on her schedule, she would be entitled to a biweekly wage of $675.00. Starting with the pay period that ran from July 6, 2009 to July 19, 2009 until she was terminated in November 2009, Ms. Mekonnen received eleven pay checks. Of the eleven, nine were for more than $675.00; one, for the pay period running from September 7, 2009 to September 20, 2009, was for $309.06; and one was for $343.35, representing a one week pay period. [12]
Of those nine pay checks for more than $675.00, seven are for less than $693.00, meaning in those seven pay periods, Ms. Mekonnen worked at most an extra two hours, [13] while the check for $343.35 for the one week pay period indicates she worked no more than one extra hour. Taken together, then, these ten checks do not support Ms. Mekonnen’s assertion that she was forced to take on multiple extra shifts. Rather, they show her occasionally working a little beyond her regularly scheduled seven and a half hour days, and add up to no more than two additional hours over each two week period.
The two pay checks that show Ms. Mekonnen working more than two extra hours still do not establish that Ms. Mekonnen worked Sunday mornings after July 14, 2009. Ms. Mekonnen received a check for $736.47 for the pay period ending on August 2, 2009, which results in $61.47 above the expected amount, and a check for $726.84 for the pay period ending on September 6, 2009, which results in $51.84 above the expected amount. Neither suggests that Ms. Mekonnen worked a complete extra shift. Instead, Ms. Mekonnen worked approximately an extra seven hours during the August 2, 2009 pay period and an extra six hours during the September 6, 2009 pay period.
Moreover, even if Ms. Mekonnen could show she had worked a full extra shift during these two pay periods, she cannot show that the extra shift was on a Sunday morning. Ms. Mekonnen herself concluded that these earning statements merely establish that “plaintiff had worked extra hours other than the M-F, 5:00am-1:00pm work shift/schedule on Saturdays and Sundays.” Working on Saturday would not have interfered with her church services. In fact, based on Ms. Mekonnen’s affidavit, even working the Sunday afternoon and evening shift would not have interfered with her church services. She stated that she requested in her employment application “to have time off on Sundays, (not necessarily the ‘whole’ Sunday but for sufficient time to worship in the morning and to work in the afternoon).”
Finding no demonstration in the evidence of record Ms. Mekonnen was forced to work Sunday mornings after July 14, 2009, I will grant summary judgment to OTG as to her religious discrimination claims.
C. Sex Discrimination
Ms. Mekonnen contends she was denied a transfer to a
utility position and she was terminated because of her gender.
As with her claim for disability discrimination, I use the
McDonnell-Douglas
framework to evaluate her gender
discrimination claims under Title VII and 151B.
Douglas
v.
J.C.
Penney Co., Inc.
,
1. Denial of Transfer
To the extent Ms. Mekonnen bases her gender discrimination
claims on requests for transfer to a utility position made
before July 14, 2009, those claims are time-barred. As
discussed previously, a denial of transfer request is a discrete
act to which the continuing violations doctrine does not apply.
Morgan
,
Ms. Mekonnen presents no admissible evidence that she requested a transfer to a utility position and was denied such a transfer, whether because of her gender or for any other reason, after July 14, 2009. In her opposition to summary judgment, she claims for the first time that she requested a transfer two or three months before she was fired and that her request was denied because her supervisor told her the job was for men only. She cites no record evidence to support this assertion. Her complaint in this court refers only to a request for transfer made “soon after” Ms. Mekonnen received the June 10, 2008 written warning for sitting on a plastic box while working.
Because Ms. Mekonnen fails to support her gender
discrimination claim with admissible evidence that she was
denied a transfer after July 14, 2009,
see Nieves
,
Considering Ms. Mekonnen’s request for transfer claims on
the merits, I am separately obligated to grant summary judgment
for OTG. In order to establish a
prima facie
case of gender
discrimination, Ms. Mekonnen must show that OTG took an adverse
employment action against her. To be sure, the denial of a
request for transfer can constitute an adverse employment action
under some circumstances.
Gorski
v.
N.H. Dep’t of Corrections
,
Here, Ms. Mekonnnen provides no evidence explaining how the denial of her request for a transfer to a utility position was an adverse employment action. She does not, for example, demonstrate there was a difference in compensation, hours, or benefits between the two positions. Although she contends she wanted the transfer as an accommodation for her leg injury, as I have discussed previously, she does not explain how a utility position would have improved her working conditions. If anything, it appears from the record that Ms. Mekonnen would have been unable, as a result of her injury, to perform the basic responsibilities of that position. Ms. Mekonnen’s transfer request claim thus cannot proceed on this record.
2. Termination
Even assuming that Ms. Mekonnen has made a prima facie case of gender discrimination for her termination claims. Moving to the second step, OTG has provided a legitimate, nondiscriminatory reason for terminating her. As discussed above in conjunction with her disability discrimination claims, OTG has submitted sufficient evidence to show it believed Ms. Mekonnen was not performing her job well and was not following OTG policies regarding cell phone use during work.
Ms. Mekonnen fails to show OTG’s reason for terminating her
was pretextual. Again, Ms. Mekonnen’s attempts to undermine the
veracity of the secret shopper reports or reports of her cell
phone use are insufficient under these circumstances to prove
OTG acted with discriminatory animus.
See Gadson
, 966 F.2d at
35;
Sullivan
,
Ms. Mekonnen also attempts to show pretext by pointing to
similarly-situated male employees, who she contends were treated
differently. In order to make a meaningful comparison, Ms.
Mekonnen must identify male employees who “closely resemble” her
“in respect to relevant facts and circumstances.”
Conward
v.
Cambridge Sch. Comm.
,
Ms. Mekonnen suggests two comparators: Mulugeta Gifaw and Joseph Temesgen. Mr. Gifaw was a cashier who worked for OTG in Logan Airport from November 2006 to March 2008. He received several warnings for violating company policies, including a reprimand for sitting while working, and was suspended by OTG. After receiving a final warning, Mr. Gifaw threw his employee badge at Mr. Khayat and told him he quit. Mr. Khayat accepted Mr. Gifaw’s resignation but noted on his separation notice that Mr. Gifaw was also terminated.
It is unclear how Ms. Mekonnen was treated differently than Mr. Gifaw. Both were subject to multiple warnings because their work was below OTG’s standards, both were subject to escalating measures of discipline, and both were eventually terminated. The mere fact that Mr. Gifaw asserted greater agency over the timing and manner of his termination is not sufficient to raise the inference that Ms. Mekonnen was treated worse than he.
Even if Ms. Mekonnen could show that Mr. Gifaw was given a longer leash before being terminated, there is a key difference between Mr. Gifaw’s and Ms. Mekonnen’s circumstances: only Ms. Mekonnen received three secret shopper reports with scores below 70%. OTG contends that its regular practice was to terminate employees who received three secret shopper reports with scores below 70% and Ms. Mekonnen has submitted no evidence to dispute this. I find the three failing secret shopper report scores justifies any purported difference in treatment between Ms. Mekonnen and Mr. Gifaw. Perkins Brigham & Women’s Hosp. , 78 F.3d 747, 751 (1st Cir. 1996) (finding comparator not sufficiently similar because plaintiff had a “history of repeated disciplinary actions” while comparator did not).
Mr. Temesgen is no more helpful to Ms. Mekonnen’s case. Mr. Temesgen was also a cashier who worked with Ms. Mekonnen at OTG. Mr. Temesgen did not receive three secret shopper reports with scores below 70%. In fact, of the six secret shopper reports for Mr. Temesgen that Ms. Mekonnen submitted, all but one were above 70%. Moreover, Mr. Temesgen was never subject to any warnings or other disciplinary actions while working at OTG.
Assuming Ms. Mekonnen could show she was disciplined differently than Mr. Temesgen for using a cell phone at work, their employment histories, and not their genders, adequately explains the difference in treatment. [15] After she received a written warning in May 2009 for failing to check an expiration date on a product, Ms. Mekonnen was told that further infractions would result in her termination. In contrast, Mr. Temesgen had never received a written warning. If he were found to be on his cell phone during work, he would presumably have been subject to the same escalating series of warnings Ms. Mekonnen had already received by the time she was terminated in November 2009. Under these circumstances, I cannot find Mr. Temesgen to be a similarly situated employee.
Ms. Mekonnen can point to no evidence to suggest that OTG’s proffered reason for her termination – that she performed poorly at her job – was pretextual. Even if OTG did not permit her to take timely breaks and did not give her the proper money to make change during her shift — all facts that OTG disputes — Ms. Mekonnen points to no evidence showing that OTG took any these actions because of her gender. These allegations are insufficient to undercut OTG’s legitimate, nondiscriminatory reason for terminating Ms. Mekonnen.
D. Retaliation
Without citing a particular statute, Ms. Mekonnen claims OTG retaliated against her for filing an internal written complaint in 2007 and for making subsequent oral complaints to OTG’s management. I will assume Ms. Mekonnen seeks to recover under the anti-retaliation provisions of the ADA, Title VII, and 151B.
As with her other claims, to the extent Ms. Mekonnen claims
OTG retaliated against her before July 14, 2009, her claims are
time-barred.
Velazquez-Perez Developers Diversified Realty
Corp.
,
To establish a
prima facie
case of retaliation under the
ADA, Title VII, and 151B, Ms. Mekonnen must show “(1) that she
engaged in protected activity, (2) that she suffered an adverse
employment action, and (3) that there was a causal connection
between the protected activity and the adverse employment
action.”
Crevier
,
Assuming Ms. Mekonnen could make a
prima facie
showing of
retaliation, she again fails to show that OTG’s proffered reason
for terminating her was mere pretext, for the same reasons I
have discussed previously. Based on the secret shopper reports,
as well as OTG’s own observations of her performance, OTG
determined that Ms. Mekonnen did not meet its standards for
customer service. In response, Ms. Mekonnen mostly rehashes the
mistreatment she claims she experienced while working at OTG,
without pointing to evidence that would show OTG’s true reason
for termination was retaliation.
Sekamate
v.
Newton Wellesley
Hosp.
,
I also find Ms. Mekonnen has failed to show OTG’s proffered
reason for withholding her vacation pay was pretextual. It was
OTG’s written policy not to pay terminated workers their accrued
vacation benefits. OTG’s employee manual states that
“[t]erminated employees forfeit their accrued vacation days.”
As I will discuss in the following section, this policy may run
afoul of the Massachusetts Wage Act,
see generally
,
Elec. Data.
Sys. Corp. Attorney Gen.
,
Biggins
,
Finally, the assorted acts mentioned by Ms. Mekonnen in her
opposition are not acts of retaliation, but are plainly the
“petty slights or minor annoyances that often take place at work
and that all employees experience.”
Burlington Northern & Santa
Fe Ry. Co.
v.
White
,
E. Violation of Massachusetts Wage Act
Finally, though her discrimination claims fail, Ms.
Mekonnen is entitled to at least some recovery for her state
wage law claim. Under the Massachusetts Wage Act (“Wage Act”),
M ASS . G EN . L AWS ch. 149 § 148
et seq.
, M ASS . G EN . L AWS ch. 151 § 1
et
seq
., “an employee whose employment is terminated involuntarily
must be paid in full on the day of discharge.”
Prozinksi
v.
Northeast Real Estate Servs., LLC
,
The question remaining concerns the damages to which Ms.
Mekonnen is entitled. The Wage Act provides that a prevailing
employee “shall be awarded treble damages, as liquidated
damages, for any lost wages and other benefits and shall also be
awarded the costs of the litigation and reasonable attorneys’
fees.” M ASS . G EN . L AWS ch. 149 § 150. However, if an employer
pays the employee after the day of discharge but before the
employee files a complaint, the employer “‘is not required to
pay treble the lost wages and benefits’” and must pay only “‘the
interest foregone from the delay in payment, which would be
trebled under the Act.’”
Clermont
,
Ms. Mekonnen did not file her complaint with the Attorney
General until May 10, 2010, approximately three months after OTG
paid her the full amount she was owed.
[16]
Thus, I conclude she is
entitled as damages to only the foregone interest at the trebled
rate caused by the delay in payment, and not to treble her
underlying lost wages and benefits.
Dobin
,
Because Ms. Mekonnen is a non-attorney pro se litigant, she
cannot recover attorney’s fees.
O’Leary
v.
Nepomuceno
, 693
N.E.2d 701, 703 (Mass. App. Ct. 1998);
see also Kay
v.
Ehrler
,
Ms. Mekonnen has not herself moved for summary judgment.
However, because a careful review of the record establishes
there is no genuine dispute of material facts on the issue of
Wage Act liability and limited damages, I will nevertheless
grant summary judgment for Ms. Mekonnen on her Wage Act claim —
since OTG has had adequate opportunity to address the relevant
considerations — s
ee
F ED . R. C IV . P. 56(f);
see also National
Expositions, Inc.
v.
Crowley Maritime Corp.
,
Ms. Mekonnen shall have judgment of $56.54, as interest trebled, together with prejudgment interest thereon on the delayed vacation pay. [17] She also shall have only the costs she actually expended in this litigation. [18]
IV. CONCLUSION
For the reasons discussed above:
I GRANT in part OTG’s motion [Dkt. No. 183] to strike as specified in Section II of this Memorandum and Order;
I GRANT OTG’s motion [Dkt. No. 164] for summary judgment as to all of Ms. Mekonnen’s discrimination claims, but DENY the motion as to Ms. Mekonnen’s Massachusetts Wage Act claim; and,
I GRANT summary judgment for Ms. Mekonnen as to so much of her Wage Act claim regarding vacation pay as constitutes prejudgment interest on delayed payment in the amount of $56.54 together with her only compensable litigation expenses, the costs of $280.00 incurred in filing this action initially in the state court.
/s/ Douglas P. Woodlock_________ DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
APPENDIX
Two years after this litigation began, Ms. Mekonnen,
proceeding
pro se
, filed a similar suit against another
employer, Ampco System Parking Co., alleging discrimination on
the basis of religion, national origin, and sex, and retaliatory
termination.
See generally
,
Mekonnen
v.
ABM Parking Services,
Inc.
, Case No. 1:14-cv-12389-IT,
Over the past two decades, Ms. Mekonnen’s former husband,
Begashaw Ayele, who has plainly directed the tactics of the
instant litigation,
see supra
note 1, has pursued multiple
separate pieces of litigation on his own behalf that provide a
template for his former wife’s employment discrimination claims.
See generally, Ayele Standard Parking Co., et. al.
, Case No.
1:96-cv-10267-NG (D. Mass. Oct. 2, 1996),
denying interlocutory
appeal
, Case No. 96-2230 (1st Cir. Jan 21, 1997) (dismissing
three of the four counts of employment discrimination brought by
Mr. Ayele. The parties eventually settled the remaining count
and stipulated to the dismissal of the case on June 25, 1998);
Ayele
v.
Allright Boston Parking, Inc.
, Case No. 1:96-cv-12201-
REK (D. Mass. Dec. 4, 1998),
aff’d
,
Nor is Mr. Ayele’s extensive litigation experience limited
to this court.
See, e.g.
,
Ayele
v.
Simkins Industries, Inc.
,
Moreover, Mr. Ayele’s experience in this court is not
limited to employment discrimination suits; he has also pursued
other related categories of claim.
See generally
,
Ayele G2
Secure Staff, LLC
, Case No. 1:17-cv-10417-RGS (D. Mass. May 5,
2017) (Mr. Ayele sought to vacate or modify an arbitration award
entered in favor of his former employer pursuant to the
employment agreement and the National Labor Relations Act
(“NLRA”). Judge Stearns dismissed the suit, holding that there
was no basis for a federal court to disturb the arbitration
agreement);
Ayele Educational Credit Management Corp., Inc.
,
Case No. 1:12-cv-11005-NMG,
Notes
[1] Ms. Mekonnen has formally proceeded pro se but also has, at all stages in this litigation, been advised, mostly from behind the scenes, by her former husband, Begashaw Ayele. Though Mr. Ayele is not an attorney, he unsuccessfully sought to “appear” on behalf of Ms. Mekonnen, [ see Dkt. No. 33], and identified himself as her “assistant,” because he has an “economic interest and knew the plaintiff’s case as much as she does knew [ sic ] from the beginning to the present.” [Dkt. No. 85]. Throughout this litigation, Mr. Ayele has involved himself in the proceeding as an officious intermeddler and his participation has interfered with the effective and orderly resolution of the dispute to such an extent that, during a hearing on September 23, 2014, I barred Mr. Ayele from purporting to act further on behalf of Ms. Mekonnen. See Dkt. No. 90; see also Transcript of hearing at Dkt. No. 92. Mr. Ayele, and his tactics, are not unknown to various members of this court and at least one of my colleagues indicated well before this litigation was filed that Mr. Ayele should be treated as a potentially vexatious litigant. Ayele U.S. Security Associates, Inc. , Case No. 1:05-CV-11273-WGY (D. Mass. Oct. 5, 2005) (order entered electronically, see generally transcript of hearing at Dkt. No. 22). I have similarly found in this proceeding a lack of candor and an indifference to procedural rules by both Ms. Mekonnen and Mr. Ayele. I provide
[2] Mr. Ayele did not mention Ms. Mekonnen’s name specifically, but said that he had learned of these issues from an employee whom he had “deep interest through blood relationship, marriage, national origin affiliation and the like.”
[3] Ms. Mekonnen explains that she did not provide OTG with the Ethiopian medical certificate because the hospital that issued it is outside the United States. At the same time, she also notes that the certificate is eighteen years old and that she showed it to Ms. Molla while she worked at OTG. If Ms. Mekonnen had it within her possession and control when OTG requested her medical records as part of the discovery process - which it appears she did - she had a duty to provide it to OTG in a timely fashion.
[4] Under M ASS . G EN . L AWS ch. 151B, the burden of showing pretext is
[5] Ms. Mekonnen’s MCAD appeal described her disability claim in
even narrower terms:
I the complaint [
sic
] nowhere alleged that I have claimed
disability be it on the MCAD’s original complaint form or
anywhere in my papers as the law define what disability.
The complainant’s allegation only rest with the claim of
“
impairment
” related to my performance of my job
responsibility because of the leg injury sustained from
work related activity inflicted causing serious pain and
suffering.
Throughout her appeal, Ms. Mekonnen emphasized this view,
mentioning elsewhere “[a]s repeatedly stated, my claim is
impairment but this
does not mean that employer has no
obligation to accommodate temporary injury that employee
sustained at workplace
.” (emphasis in original). OTG contends
these statements necessarily narrow the scope of her claim in
this court.
When considering the scope of her claims, I consider the
investigation that “could reasonably be expected to grow
from
the original complaint
.”
Powers
v.
Grinnell Corp.
,
[7] The 300-day limitation period applies to claims filed with a
state administrative agency.
Thornton
v.
United Parcel Serv.,
Inc.
,
[8] This is where federal and state law diverge slightly. M ASS . G EN . L AWS ch. 151B § 1(2) defines the term “major life activity”
broadly to include “working.”
City of New Bedford
v.
Mass.
Comm’n Against Discrimination
,
[9] The Massachusetts Appeals Court discussed this issue at some
length in
Massasoit Industrial Corp
v.
Mass. Com’n Against
Discrimination
,
[10] I note, without deciding, that Ms. Mekonnen’s request to sit on an elevated chair may constitute a reasonable accommodation in such circumstances. However, as noted above, any reasonable accommodation claim based on this kind of request is time- barred.
[11] OTG has moved to strike the second page of this document. The second page is Ms. Mekonnen’s calculations of her hours worked based on her earnings statements, while the other pages are copies of her earning statements and two calendars for the years 2008 and 2009. As I indicated when discussing the motion to strike, I will treat her calculations and conclusions as argument and not as substantive evidence in its own right.
[12] For all of these checks, I use the gross amount in order to calculate the hours she worked.
[13] At the time, Ms. Mekonnen was paid $9 per hour.
[14] Again, the final stage of the McDonnell-Douglas framework “appears to be slightly less stringent” under 151B than under federal law, for a plaintiff can “overcome a motion for summary judgment if the plaintiff shows that just one of the proffered reasons was pretextual.” Douglas J.C. Penney Co., Inc. , 474 F.3d 10, 14 n. 2 (1st Cir. 2007).
[15] In her opposition to summary judgment, Ms. Mekonnen contends she was treated differently than Mr. Temesgen because both of them spoke on their cell phones during work, but only she was terminated. She again does not support this assertion with admissible evidence. In response, OTG submitted an affidavit from Mr. Khayat, in which he claims he never knew that Mr. Temesgen spoke on his cell phone during his work shift.
[16] Although Ms. Mekonnen appears to dispute in her opposition to summary judgment precisely when she received payment from OTG for her vacation benefits, in her complaint to the Attorney General, she herself stated that “I received my vacation pay check on February 12, 2010.”
[17] Ms. Mekonnen was terminated on November 19, 2009 and was paid $335.70 for her lost vacation benefits on February 12, 2010, a delay of 79 days. Consequently, at the state interest rate of 12%, interest on the $335.70 is $8.72 ($335.70 times .12 (the state interest rate) times .22 (79/365)). Because Ms. Mekonnen is entitled to treble damages, this generates a base liquidated damages figure of $26.16. Ms. Mekonnen is also entitled to pre-judgment interest on the $26.16 in damages from November 19, 2009 to July 25, 2019 at the 12% state interest rate. She is therefore entitled to $30.38 (26.16 times .12 (the state interest rate) times 9.68 (representing 9 years and 250 days)) in pre-judgment interest.
[18] Ms. Mekonnen’s court costs total $280.00, representing the $240 filing fee, $20 security fee, and $15 surcharge she paid when initiating this matter in Suffolk County Superior Court, and the $5 fee for issuing summons. Because the case was removed to federal court by OTG, OTG bore the separate cost of filing in this court.