Opinion
No. 11–P–303.
2012-07-20
David BOLDUC v. UNITED PARCEL SERVICE, INC.
By the Court (GREEN, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On June 23, 2006, David Bolduc began the underlying action in Superior Court against his former employer, United Parcel Service, Inc. (UPS or company). On October 29, 2008, by a third amended complaint against UPS, he alleged four claims against the company: (1) discrimination by reason of a handicap in violation of G.L. c. 151B, § 4(16); (2) discrimination by reason of his age in violation of G.L. c. 151B, § 4(1B); (3) retaliatory discharge, refusal of reemployment, and refusal of vacation pay, in violation of G.L. c. 151B, § 4(4), (4A); and (4) denial of accrued vacation pay and personal paid time-off credit in violation of the Massachusetts Wage Act, G.L. c. 149, §§ 148 et seq.
After the completion of discovery, a judge of the Superior Court entered summary judgment in favor of UPS upon all claims. On appeal, Bolduc has pursued one claim. He contends that the motion judge wrongly concluded that he had no reasonable expectation to prove his claim of employment discrimination by reason of a handicap.
Against three individual employees of the company, Bolduc alleged claims of (1) intentional interference with advantageous business relations with UPS; and (2) intentional infliction of emotional distress. He subsequently agreed to dismissal with prejudice of all his claims against the individual defendants.
As to Bolduc's res judicata claim, see note 4, infra.
Background. The following facts emerge from the summary judgment record as settled. David Bolduc began work with UPS in 1978 as a part-time employee. In 1998 or 1999, he began work in a series of full-time combination jobs (“combo jobs” or “22.3 jobs” by reason of their location in § 22.3 of the relevant collective bargaining agreement).
In 2004 he took a combination preload/car washer position at the UPS South Boston facility. That job combined the functions of sorting packages (preloading) for approximately four hours per shift and washing vehicles (car wash) for an equal amount of time. The essential functions of the preloader job included the following: “bend, stoop, squat, crouch, climb, stand, walk, turn and pivot for up to 5 hours a day, 5 days per week; lift, lower, push, pull, leverage, and manipulate equipment and/or packages weighing up to 70 pounds; and lift/lower/carry packages at rates of 200 to 400 packages per hour; and assist in moving packages weighing up to 150 pounds.” The job description included the statement that “[t]he essential functions of this job vary greatly depending upon the size and location of the UPS facility. At some locations, employees may not perform all of the essential job functions listed above.” In deposition testimony Bolduc acknowledged that he had performed the specified functions at his facility.
The list of essential functions for the car washer position included the following: “bend, stoop, squat, crouch, climb, stand, sit, walk, turn and pivot continuously for (part-time) 3–5 hours per day, 5 days per week; and lift, lower, push, pull and carry wash equipment weighing over 50 pounds.” That list also included the statement that those functions “vary greatly depending upon the size and location of the UPS facility,” and that “[a]t some locations, employees may not perform some or all of [these functions].” At deposition Bolduc reported that he had been performing all the listed elements of the car washer position.
In 2002, physicians detected osteoarthritis in his left hip. The hip underwent surgery, but worsened. On June 16, 2004, in the course of his sorting work he experienced severe hip pain and collapsed. He was unable to resume work. He submitted a workers' compensation claim to the Department of Industrial Accidents. On August 24, 2004, he underwent hip replacement surgery by Dr. Donald Reilly at the New England Baptist Hospital.
On or about January 10, 2005, Dr. Reilly responded to a UPS written request for medical information. The UPS form included a list of Bolduc's essential job functions and asked the physician whether the patient could perform them. Dr. Reilly answered that Bolduc could perform them if they were “sedentary.” He described the duration of that “restriction” as “permanent.” On February 15, Dr. Reilly filled out another UPS form entitled “Fitness for Duty Certification” in which he repeated “sedentary” work as the necessary “restriction” and “accommodation” for Bolduc's return to work. Dr. Reilly's restriction remained unchanged at least to September of 2008.
At his deposition of July 9, 2009, Bolduc acknowledged that at no time since his August, 2004, surgery did he feel himself able to perform either the preloader or car washer functions of his UPS combination job.
On December 20, 2005, Bolduc executed a lump sum settlement of his workers' compensation claim for his hip injury in the net amount of $39,989.77. As a matter of law, the settlement created a statutory presumption under G.L. c. 152, § 48(4), that Bolduc would be physically unable to work for UPS for one month for each increment of $1,500 of the net settlement amount, a period extending to February of 2008. He understood that acceptance of the settlement would result in termination but that he could still pursue reemployment under the provisions of the collective bargaining agreement. UPS did terminate Bolduc on December 22, 2005. It has subsequently refused to reemploy him.
Analysis. The lone appellate issue is whether the motion judge properly entered summary judgment on the claim of handicap discrimination as defined by G.L. c. 151B, § 4(16). In the course of his exhaustive discussion of all claims of the third amended complaint, the judge reasoned that Bolduc did not establish a genuine issue of material fact as to his necessary status as a “qualified handicapped person.”
1. Standard of decision and review.General Laws c. 151B, § 4(16), inserted by St.1983, c. 533, § 6, forbids an employer “to dismiss from employment or refuse to hire, rehire or advance in employment ... because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation,” unless the employer can show that the necessary accommodation would impose an “undue hardship” upon its business. The statute defines a “qualified handicapped person” as an individual “capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with a reasonable accommodation to his handicap” (emphasis added). G.L. c. 151B, § 1(16), inserted by St.1983, c. 533, § 2.
To establish a prima facie case of handicap discrimination, the plaintiff must demonstrate (1) a handicap within the meaning of the statute; (2) the capability to perform the essential functions of his job without an accommodation or with a reasonable accommodation; and (3) the imposition of an adverse employment action by reason of the handicap. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 120 (2010). See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449–450 (2002).
In the trial court, a defendant moving for summary judgment is entitled to its allowance if the defendant demonstrates that the claimant has “no reasonable expectation of proving an essential element” of the clam. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The standard is applicable to the element of status as a qualified handicapped person. See Garrity v. United Airlines, Inc., 421 Mass. 55, 60 (1995); Mammone v. President & Fellows of Harvard College, 446 Mass. 657, 658–659 (2006); Godfrey v. Globe Newspaper Co., supra at 125. On appeal, we work from the same evidentiary materials as the motion judge and therefore exercise review de novo. See, e.g., Miller v. Cotter, 448 Mass. 671, 676 (2007). For the following reasons, the motion judge correctly concluded that Bolduc had no reasonable expectation of establishing that status.
2. Qualified handicapped status. The summary judgment record shows that Dr. Reilly never altered his postoperative restrictions limiting Bolduc “permanent [ly]” to sedentary, or sitting, work. Similarly, the lump sum settlement of the workers' compensation claim in December of 2005, effectively acknowledged his inability to work for the oncoming twenty-seven months. See G.L. c. 152, § 48(4). Bolduc conceded at his July, 2009, deposition that, since the hip replacement in August of 2004, he had not felt able to meet the physical demands of the preloader/car washer job. In particular, he acknowledged that the lifting and pivoting of the preloader package handling were not possible. He did propose that he could have performed the car washing function from a rolling chair if his coworkers washed the upper portions of the vehicles and carried the equipment and hoses. As the judge concluded, the inability to perform the preloading and the full car washing functions even with an accommodation (the rolling chair and coworker assistance) prevent any possible finding of job qualification. Citing Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383 (1993); and Dziamba v. Warner & Stackpole, LLP, 56 Mass.App.Ct. 397, 405 (2002), the judge stated, “[T]he concept of reasonable accommodation does not require an employer to disregard or waive an employee's inability to perform an essential function of the job.” The employer is not required to reduce or eliminate essential functions so as to create a new position for the employee. Dziamba v. Warner & Stackpole, LLP, supra.
The statute did not require the company to reassign Bolduc to an existing alternate position or to create an alternate position in the nature of light duty for him. It did require UPS to work out a reasonable accommodation at the former “particular” position if he could perform it with such a reasonable accommodation. See G.L. c. 151B, §§ 1(16); 4(16); Godfrey v. Globe Newspaper Co., 457 Mass. at 124–126. The record does not show that the company had given any similarly situated (permanent sedentary restriction) employees more favorable treatment; or that it had ever voluntarily adopted a policy of assigning such employees to indefinite light duty.
Finally, Bolduc argues that the company violated its duty to negotiate with him toward a reasonable accommodation. Once a qualified handicapped employee requests a reasonable accommodation, the employer must make a reasonable effort to identify an appropriate accommodation through a flexible “interactive process” of negotiation.
Russell v. Cooley Dickinson Hosp., Inc., supra at 457. Ocean Spray Cranberries, Inc. v. Massachusetts Commission Against Discrimination, 441 Mass. 632, 648–649 (2004). Here, the premises for the duty were absent. Bolduc had not demonstrated a genuine issue of fact of qualified status or of his required proposal for a specific accommodation.
The record does not show that Bolduc specifically requested the accommodation of working from a sitting position, as required by Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454, 457–458.
Conclusion. The judge correctly entered summary judgment on Bolduc's claim of handicap discrimination.
Our decision of the merits of the issue of handicap discrimination eliminates the need to address the question whether related proceedings in the Federal District Court precluded Bolduc's assertion of that claim in the Superior Court.
Judgment affirmed.