Opinion
CIVIL ACTION NO. 02-10449-GAO.
May 28, 2003.
MEMORANDUM AND ORDER
Damon J. Marzano brings this action against his former employer, Universal Studio, Inc. ("Universal"), arguing that he was terminated from his job as mailroom clerk in violation of state and federal law prohibiting discrimination against persons with disabilities. Marzano believes that Universal did not make adequate efforts to accommodate his obsessive compulsive disorder ("OCD"), and that it fired him because of the disorder. Universal now moves for summary judgment. As explained below, the motion will be granted because Marzano has not established that there were any reasonable accommodations that Universal could have made that would have enabled him to perform his job.
A. Summary of Facts
Marzano was diagnosed with OCD shortly after graduating from college in 1995. He has been receiving treatment for the disorder from a psychiatrist since 1996. The treatment consists of both medication and therapy. Although Marzano believes that the treatment has helped lessen his symptoms, he still exhibits numerous obsessive compulsive behaviors including "extreme hoarding behaviors, a fear of losing or misplacing things, extensive checking behaviors, and severe bouts of obsessional slowness." Plf.'s Statement of Facts ¶ 4.
In March 2000, Marzano began working as a mailroom clerk at Universal's facility in Wakefield, Massachusetts. This was an at-will position. According to Marzano, his job consisted of "receiving packages, disbursing them to where they belong, other mailroom activities such as mail and mailing of packages and then any other kind of busy work such as helper for the field representatives." Id. ¶ 8. At some point during his employment, he was also told that he was required to keep the mailroom organized and that he had to order certain supplies.Id.
After about three months of working as a mailroom clerk, Marzano had an informal performance review with two of his supervisors, Richard Grobecker and Michael Khouri. Although Marzano thought the review went well, he admits that Grobecker and Khouri informed him that there were some deficiencies in his performance. They told him that he needed to do a better job organizing his work space, and that he needed to stop coming to work late. They also told him that it had come to their attention that he was taking promotional materials, such as CDs and records, out of waste baskets or garbage cans where they had been discarded and giving them away. His supervisors told him that he was not allowed to do this. At no point during the review did Marzano reveal to his supervisors that he was suffering from OCD or that the problems they had identified stemmed from that, or any other, disability.
The record indicates, without genuine dispute, that there were other problems with Marzano's performance as a mailroom clerk. Grobecker states that on one occasion, a package Marzano had signed for was never delivered to the proper recipient. Another time, Marzano left work without permission to attend a promotional event. Marzano's supervisors also continued to comment to him that the mailroom needed to be cleaned up. Marzano does not deny that any of these things occurred, but he claims that they were not serious enough to warrant any discipline. Marzano states that his OCD at times made him very slow at his assigned tasks. For example, he sometimes had a hard time sealing envelopes because he felt the need to check the envelope's contents repeatedly before sealing it.
Apparently, the biggest problem with Marzano's job performance was his worsening habit of rifling through the garbage and hoarding his finds. At his deposition, Marzano explained that he has "a very difficult time throwing things away." Marzano Dep. at 24. As a result, he felt compelled to go through Universal's main dumpster bin to make sure that nothing was being thrown away that he felt was worth keeping. When asked how much time a day he spent looking through the dumpster, Marzano stated that it would differ depending on how much garbage there was to look through, but that it could take up to an hour a day. He also admitted that his need to go through the garbage bin interfered with his obligation to keep the mailroom and his workspace organized and uncluttered Marzano testified that throughout the day he would feel the need to "pull stuff out of the Dumpster . . . and hold it until I had time later on in the evening after my shift to check the stuff and go through it and make sure it was okay, in my mind, to be thrown away. . . . After a while of that, I basically had stuff everywhere. And it made my workstation very messy; cluttery." Id. at 32. Marzano also developed a habit of going into his coworkers' offices, taking their wastebaskets, and dumping the contents into the main dumpster so that he could look through this garbage as well. Emptying trash cans was not among his job responsibilities.
Marzano believes that working for a company that distributed music recordings exacerbated his symptoms. During his deposition he explained that his need to hoard things worsened at Universal "because my obsession lies in — the root of it is kind of a knowledge of all things that are going on musicallly, and just to know everything about the certain scene, the certain bands. . . . I want to work in the music industry because it's the only thing that I'm really passionate about — maybe a little too passionate about sometimes." Id. at 71-72. As a result, during the time he worked at Universal, his symptoms and difficulties performing his job gradually increased.
Although Marzano had been told that he was not to take items out of the garbage and that he needed to organize and clean up the mail room, his habits continued. After working for Universal for approximately six months, his compulsions led to a more serious incident. During one of Marzano's perusals through material from Khouri's wastebasket, he pulled out a draft performance review for another employee. This other employee later saw that Marzano had the draft lying out in plain view, and went to Khouri to complain. In response, Khouri went to discuss the matter with Marzano. According to Marzano, Khouri was very angry and shouted at him. It was at this point that Marzano finally told Khouri that he suffered from OCD, and that his disorder compelled him to rifle through the garbage. Khouri was taken aback by this information, and walked away. Marzano says that it was a relief to have told Khouri about his condition, and he believes his ability to carry out his job would have improved after this disclosure.
Shortly thereafter, Marzano had a talk with Khouri and another supervisor, Margaret Gallagher. During this conversation, Marzano explained his condition, and asked his supervisors to learn more about OCD. He also asked them whether they could work together to come up with a solution. Khouri and Gallagher told Marzano that they did not know what should be done about the situation, and they told him to go home for the rest of the week. Marzano returned to work the following week, but after four days, he was informed that Universal had decided to terminate him.
The defendants claim that management had decided to terminate Marzano even before the confrontation between Khouri and Marzano. On the record currently before the Court it cannot be said with certainty when the decision to terminate Marzano was made.
B. Discussion
Under both the Americans with Disabilities Act ("ADA") and Massachusetts law, a plaintiff claiming that he was wrongly terminated because of his disability must demonstrate that he could perform the essential functions of his former job either with or without a "reasonable accommodation." See Calef v. Gillette Co., 322 F.3d 75 83 (1st Cir. 2003); Russell v. Cooley Dickinson Hosp., Inc., 772 N.E.2d 1054, 1060 (Mass. 2002). If the employee needs an accommodation to perform the job, the accommodation must be "reasonable in the sense both of efficacious and of proportional to costs." Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 543 (7th Cir. 1995).
Marzano argues that he was able to perform the job of mailroom clerk satisfactorily without accommodation. However, his own testimony demonstrates otherwise. He was told that he was not permitted to take items from the garbage, yet he was unable to follow this rule. An obligation to refrain from engaging in certain behaviors or activities is as much a part of a job's essential functions as the adequate performance of assigned tasks. See e.g., Reed v. LePage Bakeries. Inc., 244 F.3d 254, 255-56 (1st Cir. 2001) (plaintiff with bipolar disorder yelled at a superior after being instructed to walk away from conflicts with coworkers). Marzano also admitted that his need to hoard his finds interfered with his obligation to keep the mailroom clean and organized, and that his OCD causes tardiness and sometimes makes him very slow at routine mailroom tasks like sealing an envelope.
Marzano has not demonstrated that he could have performed the essential functions of his job even with a reasonable accommodation. "Under the ADA, the plaintiff bears the burden of proving that the defendant could provide a reasonable accommodation for her disability." Reed, 244 F.3d at 258. The First Circuit has explained that in order to meet this burden, the plaintiff "needs to show not only that [a] 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." Id. at 259. Here, Marzano cannot meet this burden because he has not suggested any specific accommodations that Universal could have made that would have enabled him to perform in conformity with ordinary workplace rules and requirements. Without any concrete suggestions, neither the Court nor the defendant can evaluate whether there was a reasonable accommodation which would have enabled Marzano to perform his job as a mailroom clerk. See also id. (once plaintiff has advanced a facially reasonable accommodation, "the defendant then has the opportunity to show that the proposed accommodation is not as feasible as it appears").
The closest Marzano came to advancing some accommodations that Universal could have made was during his deposition. Marzano stated that Universal should have let him come to work "a little later" or be more lenient until his condition improved. Marzano Dep. at 74. He also suggested that Universal should have devised a system whereby he could delegate to an intern any tasks that became difficult for him. Id. However, Marzano has offered no evidence that either of these accommodations would be either reasonable or particularly effective. While being allowed to arrive "a little later" would have addressed the tardiness problem, Marzano offers no evidence that this accommodation would have eliminated the more serious interference with his working ability created by his OCD — his checking and hoarding behaviors. The second accommodation, assigning an intern assistant to Marzano who could take over his responsibilities whenever his condition prevented him from doing a task, is not reasonable. The ADA does not require Universal to hire a second person who can do Marzano's job for him. See also Peters v. City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002) (not reasonable to ask employer to hire a helper or to have another employee perform essential functions of plaintiff's job). Looking at the record as a whole, Marzano simply has not advanced sufficient evidence to permit a reasonable juror to conclude that he could perform the essential functions of his job with a reasonable accommodation. See LeBlanc v. Great Am Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993) ("the nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the nonmoving party") (citations and internal quotations omitted).
Marzano argues that the defendants' motion for summary judgment should nevertheless be denied because Universal failed to engage in an interactive process to assess what accommodations could have been made for him. However, the First Circuit has stated that while the failure to engage in such a process at times may violate the ADA, "such an omission [is] `of no moment' if the record forecloses a finding that the plaintiff could perform the duties of the job, with or without reasonable accommodation." Kvorjak v. Maine, 259 F.3d 48, 58 (1st Cir. 2001) (quoting Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 19 (1st Cir. 1998)). See also Russell, 772 N.E.2d at 1065-66 (no obligation to engage in interactive process where employee did not request a reasonable accommodation). Since Marzano has not identified any reasonable accommodations which might have enabled him to control his compulsions enough to adequately perform his role as a mailroom clerk, Universal's failure to engage in an interactive process is not actionable in this case.
C. Conclusion
Marzano has not shown that at a jury trial he could carry his burden of proving that he could perform the essential functions of his job at Universal with or without a reasonable accommodation. Accordingly, Universal's motion for summary judgment (docket no. 11) is GRANTED. The complaint shall be dismissed with prejudice.
It is SO ORDERED.