Miller v. Verizon Communications, Inc.Miller v. Verizon Communications, Inc.
MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Document No. 28)
Kathleen Miller (“Plaintiff’), who suffers from diabetes, brings this employment discrimination action against her former employer, Verizon Communications, Inc. (“Defendant”), alleging disability discrimination and retaliation in violation of the American with Disabilities Act, 42 U.S.C. § 12101 et seq. (“the ADA”), the Rehabilitation Act of 1973, 29 U.S.C. § 706 (“the Rehabilitation Act”), and Mass. Gen. L. ch. 151 B (“chapter 151 B”). Defendant, in response, alleges that it acted appropriately when it discharged Plaintiff for excessive absenteeism.
The parties have consented to the jurisdiction of this court, see 28 U.S.C. § 636(c), and Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons indicated below, Defendant’s motion will be allowed with respect to the Rehabilitation Act claim, but otherwise denied.
I. Standard of Review
When ruling on a motion for summary judgment, the court must construe the facts in a light most favorable to the non-moving party.
Benoit v. Tech. Mfg. Corp.,
II. Background
The following facts are stated in a light most favorable to Plaintiff, the nonmoving party.
See Uncle Henry’s Inc. v. Plaut Consulting Co.,
A. Plaintiffs Job and Defendant’s Attendance Policies
Plaintiff was hired as a Customer Service Representative (“CSR”) in June of 1998 by Defendant’s predecessor, Bell Atlantic. (Defendant’s Facts ¶ 1.) Plaintiffs duties consisted of “handling the onslaught of incoming calls into the customer service center.” fid. ¶ 5.) She was required to spend a considerable amount of time communicating with customers — fielding about fifty to seventy calls per day — and was extensively monitored by her supervisors. fid. ¶¶ 6, 7,18,19.)
The CSR job is subject to attendance guidelines, fid. ¶20.) These guidelines, set out in an employee handbook, state that Defendant “has a right to expect and receive an acceptable level of productive attendance from each employee.” fid. ¶ 24.) The guidelines further state that, although Defendant “may be patient and forbearing with extraordinary bona fide illnesses or personal problems, it has a right to take appropriate steps to obtain an acceptable level of productive attendance.” (Id.) Similarly, the CSR job description, referred to as the “Job Brief,” states that CSRs may be required to “work day, evening, and weekend shifts, [as well as] overtime, and holidays as assigned.” (Id. ¶ 16.)
Defendant also has a Family Medical Leave Act (“FMLA”) policy which states that employees who are unable to work, for whatever reason, must first call a toll-free number to request leave and then contact and inform a manager of the impending absence. (Id. ¶ 26.) Defendant does not offer sick days. (Plaintiffs Facts ¶ 48.) Rather, all absences have to be approved through the FMLA policy process. (Id.) According to Plaintiff, unapproved absences are considered un-excused and, unless the employee receives subsequent approval from a manager, she may be disciplined for such absences. (Id.)
Defendant’s disciplinary process for absent employees entails several steps. First, the employee is given a series of warnings. (Defendant’s Facts ¶¶ 20-25.)
B. Plaintiffs Diabetes
Plaintiff was first diagnosed with diabetes in February of 2000. (Id. ¶ 27.) As discussed more fully below, Plaintiff asserts that her condition limits her “major life activities” of working, sleeping, eating and basic mobility. (Id. ¶¶ 29-36.) While Defendant disputes those legal conclusions, it agrees that, at least, Plaintiff had to modify her diet because of her diabetes. (Id. ¶¶29, 42. See also Plaintiffs Facts ¶ 29.) Defendant also acknowledges that it is necessary for Plaintiff to regularly check her blood sugar, get sufficient rest, and take medication. (Defendant’s Facts ¶¶42, 43.)
C. Plaintiffs Discipline and Termination
Plaintiff adhered to Defendant’s attendance policies without major incident for the first few months of her employment and, in 1999, sought and was granted several FMLA-approved absences. (Id. ¶ 55.) Sometime in 2000, however, after Plaintiffs diabetes diagnosis, Defendant began taking disciplinary action against Plaintiff for excessive absenteeism. (See Memorandum of Law in Support of Defendant’s Motion for Summary Judgment (Document No. 29, hereinafter “Defendant’s Brief’) at 10.) Subsequently, in July of 2001, Plaintiff was denied FMLA leave because she had not worked sufficient hours in the previous year. (Defendant’s Facts ¶ 62.) Plaintiff then began to accrue several unapproved absences. (Id. ¶¶ 62, 63.) Plaintiff now claims that most of these absences were diabetes-related. (Plaintiffs Facts ¶¶ 56, 57.)
By August of 2001, Defendant suspended Plaintiff for excessive absenteeism. (Defendant’s Facts ¶ 64.) Plaintiff was suspended again in September. (Id. ¶ 65.) At about the same time, Plaintiff requested that Defendant “accommodate” her medical condition with a modified work schedule. (Id. ¶ 85.) She asked one of her managers if she could (1) take personal or vacation time instead of a sick day, (2) reduce her work schedule so that she could come in late on the days that she was ill, or (3) switch to part-time employment for a definite period of time. (Plaintiffs Facts ¶ 84.) Although Defendant denied these requests (id.), it did recommend that Plaintiff seek the assistance of the company’s Employee Assistance Program (“EAP”) (Defendant’s Facts ¶ 80). Plaintiff declined to contact the EAP. (Id. ¶ 83.)
Approximately one year later, in August of 2002, Plaintiff received a final warning. (Id. ¶ 69.) Then, on January 22, 2003, Plaintiff left work early and never returned. (Id. ¶ 71.) Plaintiffs subsequent application for FMLA leave was denied and she was fired on February 11, 2003. (Id. ¶ 72.) Since April of 2003, Plaintiff has been employed by the Magic Wings Butterfly Conservatory (“Magic Wings”) and is currently its general manager. (Id. ¶¶ 106,107.)
III. Discussion
In the present five-count action, Plaintiff asserts that her termination resulted from discrimination and retaliation by Defendant because of her diabetes. At the outset, however, the court, with the agreement of Plaintiff, will allow Defendant’s motion for summary judgment with respect to one of those counts, the Rehabilitation Act claim (Count V), since there is no evidence that Defendant is a program receiving federal funds.
See
29 U.S.C. § 794(a). The remaining counts are Plaintiffs claims of disability discrimination
A. Disability Discrimination (Counts I and III)
To state a
prima facie
case of disability discrimination under the ADA, “a plaintiff must prove by a preponderance of the evidence that: (l)[she] was disabled within the meaning of the Act; (2)[she] was a qualified individual with a disability,
ie.
able to perform the essential functions of the position with or without reasonable accommodation; and (3)[she] was discharged because of her disability.”
Ward v. Mass. Health Research Inst., Inc.,
1. “Can Plaintiff show that she is disabled ”?
A plaintiff is considered disabled under both the ADA and chapter 151 B 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.” 42 U.S.C. § 12102(2). Accord Mass. Gen. L. ch. 151 B, § 1(17). For purposes of its motion, Defendant does not dispute that Plaintiff has a physical impairment, ie., diabetes, but argues that Plaintiff will be unable to show that her diabetes substantially limits a major life activity or that Defendant “regarded” her that way.
A “major life activity” is an activity of central importance to a person’s daily life.
Toyota Motor Mfg, Ky, Inc. v. Williams,
Three aspects of Defendant’s argument provide the contours for the court’s analysis. First, Defendant asserts that Plaintiff was not substantially limited, or regarded as being substantially limited, in the major life activity of working. Second, Defendant asserts that Plaintiff was not substantially limited in any other major life activity. Third, Defendant contends that Plaintiffs “mitigating measures,” ie., the medicines she now takes, preclude her from being disabled under the ADA or chapter 151B.
For present purposes, the parties agree that, in appropriate circumstances, working can constitute a major life activity.
See Mulloy v. Acushnet Co.,
Defendant asserts that Plaintiff has not come forward with any such evidence. In fact, Defendant notes, Plaintiff began working at Magic Wings in April of 2003, ie., only two months after she was discharged, has been a full-time employee there since September of 2003 and the general manager since March of 2004, works between nine and twelve hours per day overseeing a staff of thirty-five to forty people, and is responsible for Magic Wings’ human resources, advertising, marketing and event planning. (Defendant’s Facts ¶¶ 106, 107.) Defendant also points out that Plaintiff has an advanced psychology degree with ten years of work experience in the mental health field. (Id. ¶ 108.)
In response, Plaintiff asserts that her employment at Magic Wings has been provided by an extremely benevolent owner— her own father—who, unlike other employers, has purportedly made generous accommodations for her diabetes. In the court’s view, this is interesting but inadequate. Simply put, Plaintiff has not and cannot show that she is substantially limited in the major life activity of working. Plaintiff is not only highly-skilled, but actually working full-time at a job requiring a significant amount of responsibility.
Similarly, the court finds that Plaintiff will be unable to prove that Defendant “regarded” her as being substantially limited from working at the time she was terminated. True, Defendant concedes that “there are facts from which a jury might conclude that [it] knew [Plaintiff] had diabetes and believed that she could not effectively perform the [CSR] job given her history of repeated absences.” (Document No. 40, Reply Brief in Support of Defendant’s Motion for Summary Judgment at 4.) There is no evidence, however, that Defendant regarded Plaintiff as unable to perform a “broad range of jobs” or an entire “class of jobs”; nor does Plaintiff direct the court to any alleged facts from which such a conclusion reasonably could be drawn. See 29 C.F.R. § 1630.2(0(3) and (j)(3)(i) (2006) (“regarded as” prong may be met where the employer “treated” the plaintiff as being “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes and as compared to the average person having comparable training, skills and abilities”; being regarded as unable “to perform a single, particular job does not constitute a substantial limitation in the major life activity of working”).
b. Other Purported Major Life Activi-tiés
Plaintiff also asserts that she is substantially limited in the major life activities of sleeping, eating and basic mobility. Recognizing that Plaintiff has a modest burden at this stage of the proceedings to “proffer evidence from which a reasonable inference can be drawn that a major life activity is substantially or materially limited,”
Gillen,
As an initial matter, Defendant recognizes that sleeping may be considered a major life activity,
see Calero-Cerezo v. U.S. DOJ,
Defendant also acknowledges that basic mobility may be a major life activity.
See Lemire v. Silva,
This lack of medical documentation, however, is not critical, for present purposes at least, with respect to another major life activity which Plaintiff claims is substantially limited, eating. First, Defendant acknowledges that the First Circuit, like other courts of appeal, recognizes that eating, as a general matter, is a major life activity.
See Calero-Cerezo,
Second, and more to the point, the lack of supporting medical evidence here would not prevent a jury, if necessary, from tying eating limitations to Plaintiffs diabetes. The connection, in the court’s view, is generally understood by lay people. Third, Plaintiff has cited material facts sufficient to challenge Defendant’s assertions, for example, (1) that her diabetes requires her to limit sugar intake; and (2) that, because of her diabetes, she must avoid all fruit juice, some fruits, white rice, white bread, potatoes, pasta, enriched flour and other similar products that are not wheat-based. (Plaintiffs Facts ¶ 29.) Fourth, Plaintiffs medical records (see n. 2. supra) contain a number of references to eating-related issues, e.g., diarrhea, stomach ache, etc. And fifth, even Defendant acknowledges that Plaintiff had to modify her diet because of her diabetes. At bottom, the factual assertions regarding Plaintiffs eating limitations, and the issues thereby raised, are sufficient to withstand Defendant’s summary judgment motion as it relates to her question of whether that major life activity is substantially limited.
c. Mitigating Measures
Defendant’s “mitigating measures” argument can be dealt with in relatively short order. According to the Supreme Court, “mitigating measures” must be considered in determining whether an
Plaintiff, in the court’s opinion, has raised a genuine issue that she was substantially limited even when medicated. For example, Plaintiff notes that she was sick “on a daily basis” for one year prior and three years after her diabetes diagnosis. (See Plaintiffs Brief at 9-10.) Accordingly, the court sees little in Defendant’s “mitigating measures” argument to warrant the entry of summary judgment at this time on the disability issue.
2. Can Plaintiff show that she is a qualified individual with a disability?
Defendant next argues that Plaintiff cannot show that she “was a
qualified
individual with a disability,
i.e.,
able to perform the essential functions of the [CSR] position with or without reasonable accommodation.”
Ward,
First, the law. Defendant correctly notes that a number of circuits have concluded that regular attendance is an essential function of most jobs.
See, e.g., Schierhoff v. GlaxoSmithkline Consumer Healthcare, L.P.,
As in Ward, the question of whether regular attendance was an essential function of Plaintiffs CSR position is a factual question not readily amenable to summary disposition. For one thing, Defendant’s assertions to the contrary, the Job Brief does not “establish” that regular attendance by CSRs is “required” without exception. The Job Brief states merely that CSRs “[m]ay be required to work day, evening and weekend shifts, and overtime and holiday hours as assigned.” (Document No. 31, Defendant’s Exhibits, Ex. F (emphasis added).) Moreover, the Job Brief provides that a CSR’s working hours “are determined by seniority, job requirements, qualifications and employee preference,” (id.), thereby indicating that Defendant has discretion in setting a CSR’s working hours and shifts.
Such discretion is also reflected in Defendant’s attendance guidelines. Most specifically, the guidelines grant Defen
Still, Defendant asserts, Plaintiff could not perform the essential job function of regular attendance. Plaintiff does not directly challenge this assertion; nor does she dispute Defendant’s calculation that she “was absent approximately 10 percent of the time in 1999, 18 percent of the time in 2000, 26 percent of the time in 2001, and 14 percent of the time in 2002,
for an average absence rate of 17 percent.” (Id.
(emphasis in original).)
See also Brenneman,
Persevering, Defendant argues nonetheless that no reasonable accommodation would have enabled Plaintiff to fulfill the essential job function of regular attendance. Again, however, this argument is premised on the assertion — which is overcome for summary judgment purposes— that regular attendance was an essential function of Plaintiffs job. Moreover, Plaintiff has raised genuine issues of material fact as to whether her request for
accommodation
— ie., a modified work schedule which would allow her to (1) take personal or vacation time instead of a sick day, (2) reduce her work schedule so that she could come in late on the days that she was ill, or (3) switch to part-time employment for a definite period of time — was reasonable. (See Plaintiffs Brief at ISIS.) As the First Circuit has observed, “[rjeasonable accommodations under the ADA can include ‘[j]ob restructuring; part-time or modified work schedules; [or] reassignment to a vacant position’; ... and other similar accommodations for individuals with disabilities.”
Criado v. IBM Corp.,
Finally, Plaintiff has raised a genuine issue of material fact as to whether Defendant adequately responded to her request for accommodation.
See Tobin v. Liberty Mut. Ins. Co.,
3. Can Plaintiff show that she was discharged because of her disability ?
Defendant’s final argument concerns the third prong of the analysis. In essence, Defendant asserts that since Plaintiff was discharged “because of’ her absenteeism, she will be unable to demonstrate that she was discharged “because of’ her disability. Defendant’s argument is strong but unavailing for present purposes.
According to the First Circuit, “[asserting that [a] termination was based on [an employee]’s absenteeism rather than her disability does not justify [an employee’s action where the absence was the requested accommodation.”
Criado,
Finally, the court heeds the First Circuit’s warning that courts should exercise caution before granting summary judgment for employers on such issues as pretext and motive.
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
B. Retaliation (Counts II and IV)
To state a
prima facie
case of retaliation under the ADA and chapter 151 B, Plaintiff must prove that (1) she was engaged in protected conduct, (2) she suffered an adverse employment action, and (3) there was a casual connection between the two.
See Wright,
Defendant’s entire argument with regard to retaliation is based on its assertion, derived from Plaintiffs interrogatory answers, that the only possible adverse employment action was that Plaintiffs “work was more closely scrutinized and [she was] unduly criticized by management in the approximately three months preceding [her] termination.” (Defendant’s Brief at 19 (quoting Defendant’s Facts ¶ 101 (in turn, quoting Plaintiffs Answers to Defendant’s First Set of Interrogatories, Interrogatory No. 13)).) That, however, is not the case. Although Plaintiff noted Defendant’s “scrutin[y] and criticism]” as “further” retaliation in her interrogatory answers, those same answers incorporated her main retaliation claim — and the one that she pursues here — that she was fired for requesting a reasonable accommodation. (See,
e.g.,
Interrogatory No. 10.) And as Defendant is no doubt aware, termination from employment for requesting a reasonable accommodation constitutes an adverse employment action in a disability-based retaliation case.
See Wright,
In sum, Plaintiff has proffered sufficient evidence that Defendant may have retaliated against her in violation of the ADA and chapter 151 B when it terminated her soon after she requested a reasonable accommodation. See id. (denying summary judgment on ADA and chapter 151 B retaliation claims where a reasonable jury viewing the evidence in a light most favorable to the plaintiff “could infer that [the defendant’s charge of insubordination masked retaliatory motives”). Accordingly, Defendant’s motion with respect to Plaintiffs retaliation causes of action will be denied.
IV. Conclusion
For the reasons stated, Defendant’s motion for summary judgment is ALLOWED with respect to Count V, Plaintiffs Rehabilitation Act claim, but otherwise DENIED. The clerk shall schedule a case management conference for the purpose of establishing final pretrial conference and trial dates.
IT IS SO ORDERED.
Notes
. Much of this factual background comes from Defendant's Statement of Undisputed Facts (Document No. 30, hereinafter “Defendant's Facts”). A number of facts, however, are taken from Plaintiff's Amended Response to Defendant’s Statement of Undisputed Facts (Document No. 43, hereinafter "Plaintiff’s Facts”), which amended Plaintiff's original response. While Defendant, with some justification, takes issue with the amendment as confusing and prolix and has moved as well to strike Plaintiff’s original response, the court, as indicated at oral argument, has focused only on those facts that appear supported by the record, undisputed (or if disputed, stated in a light most favorable to Plaintiff), and significant enough to have been included within the parties’ memoranda of law.
. The court itself has expended significant time, without success, searching for evidence in the record, other than Plaintiff’s affidavit and deposition testimony, supportive of her asserted sleeping and mobility limitations. To say the least, this has been a frustrating endeavor and a brief explanation is in order.
In support of both alleged limitations, Plaintiffs Memorandum in Opposition to Defendant's Motion for Summary Judgment (Document No. 36, hereinafter "Plaintiffs Brief”) cites "generally” to paragraphs 27 through 47 of her original response to Defendant's Facts which, as indicated supra at n. 1, Plaintiff then amended. Paragraphs 28, 30, 31 and 32 do contain faint references to Plaintiffs alleged sleeping and mobility limitations, but almost exclusively from Plaintiff’s self-serving affidavit and deposition testimony. To be sure, there is one reference in paragraph 30 to an interrogatory answer (a copy of which Plaintiff loosely "bound” with a rubber-band along with other exhibits), but that response never mentions sleeping or mobility limitations.
(Document No. 35, hereinafter “Plaintiff's Exhibits,” Ex. 10.) It does claim, however, that Plaintiffs "medical records contain further details about the treatment [Plaintiff] received for diabetes, the symptoms [she] experienced, and the side effects from medications [she] experienced,” but no records are appended. (Id.) As a result, the court decided to scrutinize yet another exhibit, entitled "FMLA & Medical Documentation,” which appears to contain some medical documentation. Again, however, there are no reports by a treatment provider about any sleeping or mobility limitations. At most, Plaintiff once told her doctor that she "awoke at 4 a.m. with stomach pains and stayed home from work.” (Plaintiff's Exhibits, Ex. 6 (May 22, 2000 note).) In contrast, other records reflect Plaintiff telling her treatment providers that her sleep was generally "OK” (see id. (Feb. 15, 2000 note)) and that a certain medication "makes her sleepy” (id. (Nov. 7, 2002 note)), hardly enough proof of substantial sleeping and mobility limitations.
. That said, the court advises Plaintiff, as one circuit court has suggested, that under the ADA at least “there must be a causal link between the specific condition which limits a major life activity and the accommodation” sought by the employee.
Felix v. N.Y. City Transit Auth.