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denying summary judgment in ADA claim where "[t]he court cannot say with confidence that the evidence is utterly insufficient to support the plaintiff's claim that he suffered a substantial impairment in his ability to walk and lift"
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C.A. No. 03-30199-MAP.
June 8, 2005 July 21, 2005
MEMORANDUM AND ORDER REGARDING REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket Nos. 32 17)
The plaintiff has sued the defendant under various theories for damages arising out of his termination as a respiratory therapist. Defendant filed a Motion for Summary Judgment as to all counts; this motion was referred to Magistrate Judge Kenneth P. Neiman for Report and Recommendation
On June 8, 2005, Magistrate Judge Neiman issued his Report and Recommendation, to the effect that the defendant's Motion for Summary Judgment be allowed as to Counts I and II and as to those aspects of Counts IV and VI that allege gender-based retaliation. Beyond this, the Magistrate Judge recommended that the motion be denied. The plaintiff has not objected to the Report and Recommendation; as a result, this court will allow the motion to the extent recommended by the Magistrate Judge.
The defendant objects to partial denial of its motion and has filed six specific objections to the Report and Recommendation, contending (1) that the record lacks adequate evidence of asubstantial impairment, (2) that the record lacks evidence that the defendant perceived the plaintiff to be disabled, (3) that the record lacks sufficient evidence that the defendant was aware of any substantial disability suffered by the plaintiff, (4) that evidence of defendant's failure to accommodate the plaintiff's disability is lacking, (5) that the evidence that the plaintiff and his female successor were "similarly situated" for purposes of discrimination analysis is insufficient and (6) that insufficient evidence exists to support any claim of gender discrimination.
It is axiomatic that, at the summary judgment stage, the court's task is not to weigh the strength of the plaintiff's case, but merely to determine whether the evidence is sufficient, if believed, to support judgment for the non-moving party. In this case, while it is obvious that the defendant has strong arguments, the evidence is enough to permit the plaintiff to present his case to a jury. The court cannot say with confidence that the evidence is utterly insufficient to support the plaintiff's claim that he suffered a substantial impairment in his ability to walk and lift. The same can be said for the defendant's other objections, for the reasons set forth in detail in the Magistrate Judge's Report and Recommendation.
In conclusion, the Report and Recommendation of Magistrate Judge Kenneth P. Neiman dated June 8, 2005, upon de novo review, is hereby ADOPTED. The defendant's Motion for Summary Judgment (Docket No. 17) is hereby ALLOWED with regard to Counts I and II, and ALLOWED, in part, as to Counts IV and VI. The motion is otherwise DENIED. The clerk is ordered to set this case up for a status conference to determine further proceedings.
It is So Ordered.
REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 17)
Mark Clark ("Plaintiff") brings this multi-count employment discrimination action challenging his termination as a respiratory therapist at Lincare, Inc. ("Defendant") in February of 2002. Defendant's motion for summary judgment has been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the following reasons, the court will recommend that Defendant's motion be allowed in part and denied in part.
I. STANDARD OF REVIEW
Summary judgment is appropriate where the record reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994). The facts must be viewed in a light most favorable to the non-moving party. Commercial Union Ins. Co. v. Walbrook Ins. Co., 7 F.3d 1047, 1050 (1st Cir. 1993). Still, the non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes, 18 F.3d at 15 (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Mere allegations or conjecture unsupported in the record are insufficient to raise a genuine issue of material fact. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993). Absent a genuine dispute of material fact, questions of law are appropriate for resolution by the court. See Jimenez v. Peninsular Oriental Steam Navigation Co., 974 F.2d 221, 223 (1st Cir. 1992).
II. BACKGROUND
The court often begins by summarizing the facts alleged in a plaintiff's complaint, mindful that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Here, unfortunately, it has been quite difficult to unearth the summary judgment facts. For example, many "facts" listed in Plaintiff's Statement of Facts as to Which There are Genuine Issues to be Tried (Document No. 22, hereinafter "Plaintiff's Statement") contain hearsay, are conclusive in nature, or embellish the deposition testimony Plaintiff attaches. Responding to these deficiencies, Defendant has filed two motions to strike, which the court has allowed. (See June 8, 2005 electronic order regarding Document Nos. 26 and 27.)
In any event, the court has analyzed those "facts" which were deemed significant enough to have been included in Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment (Document No. 21, hereinafter "Plaintiff's Brief") and which have not been stricken. In so doing, the court has ignored "conclusory allegations, improbable inferences, and unsupported speculation." Burke v. Town of Walpole, 405 F.3d 66, 76 (1st Cir. 2005) (citation and internal quotation marks omitted).
A. Facts Alleged in Plaintiff's Complaint
In May of 1995, Plaintiff began his employment with Defendant as a full-time respiratory therapist. (Complaint ¶ 3.) Over time, Plaintiff's responsibilities became more significant. ( Id. ¶¶ 4-5.) Physically, however, Plaintiff continued to suffer from injuries sustained in a 1970 motorcycle accident, a fractured vertebrae with resulting muscle and nerve damage to his foot and leg. ( Id. ¶ 10; Plaintiff's Statement ¶ 1.)
In June of 2001, Plaintiff moved to Defendant's West Springfield location where the Center Manager was James Moran ("Moran") and the Area Manager was Chris Ziff ("Ziff"). (Complaint ¶ 6.) Sometime thereafter, Moran was replaced by Denise Fortier ("Fortier"), who began work on January 1, 2002. ( Id. ¶ 7.) The next day, January 2nd, Plaintiff returned from vacation. ( Id.)
Upon Plaintiff's return, Fortier, as Center Manager, asked him to perform a conserving device test on a particular patient. ( Id. ¶ 8.) Fortier, Plaintiff alleges, was expected by Defendant to increase the number of patients using such devices at the West Springfield center. ( Id.) Plaintiff told Fortier that the particular patient was a poor candidate for the device — because of her high liter flow of oxygen demands — and that he would call the patient's physician for a decision. ( Id.) When Fortier insisted that the patient be tested, Plaintiff explained that he felt that was not in the patient's best interest, that he would be setting her up for a disappointment, and that is was perfectly proper for him to give such input. ( Id.) Unconvinced, Fortier had Plaintiff test the patient and she failed. ( Id.)
On January 14, 2002, there was an incident with respect to a different patient with whom Plaintiff had a routine oxygen follow-up visit. ( Id. ¶ 9.) Upon returning from the visit, Plaintiff reported to Fortier that the patient did not have — and in his judgment did not require — a nebulizer. ( Id.) Fortier disagreed, closed her office door, returned a few minutes later, informed Plaintiff that the patient (whom she apparently had just telephoned) was complaining of nasal drying, and told Plaintiff to deliver a bubble humidifier to the patient in the next day or so. ( Id.) When Plaintiff made the delivery on January 15, the patient said he was fine and asked why Fortier was asking the same questions he had just asked the day before. ( Id.) "This incident," Plaintiff alleges, "upset [him] more than any other." ( Id.)
The situation with Fortier concerned Plaintiff so much that on February 11, 2002, he called Defendant's Director of Employee Relations, Mark Schuetzler ("Schuetzler"), and asked, "Should I be getting a lawyer?" ( Id. ¶ 12.) Schuetzler replied, "Don't waste your money at this time." ( Id.) Plaintiff told Schuetzler that he would trust his guidance in helping to resolve the problem. ( Id.)
Nonetheless, on February 14, 2002, Plaintiff told Fortier's supervisor, Ziff, about the latest incident and Ziff said he would look into it. ( Id. ¶ 9.) In Plaintiff's estimation, Fortier was "under considerable pressure to increase the numbers in the medication program." ( Id.) Plaintiff believed, however, that Fortier would probably relax and work better with the staff as she became more familiar with her job. ( Id.)
Meanwhile, on or around January 30, 2002, (see Document No. 23, Pl.'s Ex. 14 ¶ 7), another patient called complaining that her concentrator was making loud noises and needed to be exchanged. (Complaint ¶ 10.) Plaintiff suggested to Fortier that the driver could make the exchange himself, as was the usual custom. ( Id.) When Fortier asked if he was refusing to take care of a patient's problem, Plaintiff stated that he had a back impairment and could not lift the concentrator himself. ( Id.) Although Fortier made other arrangements to have the concentrator delivered, she put Plaintiff on probation. ( Id.) After Plaintiff attempted to dispute the content of the probation report, he was terminated and, he claims, replaced by a woman. ( Id. ¶¶ 18, 22 and 23.)
According to Plaintiff, similarly situated female employees were treated more favorably than males, including Plaintiff. ( Id. ¶ 17.) For example, Plaintiff asserts, Melissa Motyka ("Motyka") had essentially the same position as Plaintiff and "also refused to lift the same piece of equipment as the Plaintiff [but] remained employed." ( Id. ¶¶ 15, 16.)
B. Procedural Background
Plaintiff timely filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On May 13, 2003, the EEOC issued a Notice of Right to Sue letter. (Pl.'s Ex. 9.)12
Plaintiff's complaint, filed in state court, was removed to federal court by Defendant on August 15, 2003. The complaint contains six counts. Count I alleges wrongful termination in violation of public policy. Count II alleges breach of an employment contract. Counts III and V allege both handicap discrimination and retaliation in violation of Mass. Gen. L. ch. 151B ("chapter 151B") (Count III) and the Americans with Disabilities Act ("ADA") (Count V). Counts IV and VI allege gender discrimination in violation of chapter 151B (Count IV) and Title VII of the Civil Rights Act of 1964 ("Title VII") (Count VI). In due course, Defendant filed the instant motion for summary judgment.
III. DISCUSSION
Defendant's motion tracks Plaintiff's various claims. The court will do likewise, focusing on those facts which are supported and relied upon in Plaintiff's Brief.
A. Wrongful Termination in Violation of Public Policy (Count I)
Count I, alleging wrongful termination in violation of public policy, is premised on the assumption that Plaintiff was an at-will employee, i.e., one working without a contract. See Acciavatti v. Professional Servs. Group, 982 F. Supp. 69, 74 (D. Mass. 1997). "In Massachusetts, the cause of action for wrongful discharge in violation of public policy is a judicially created exception to the employment at will doctrine." Id. (citations and internal quotation marks omitted). According to the Supreme Judicial Court, "[r]edress is available for employees who are terminated for asserting a legally guaranteed right ( e.g., filing workers' compensation claim), for doing what the law requires ( e.g., serving on a jury), or for refusing to do that which the law forbids ( e.g., committing perjury)." Smith-Pfeffer v. Sup't of Walter E. Fernald State Sch., 533 N.E.2d 1368, 1371 (Mass. 1989) (collecting cases).
Plaintiff contends that he was fired for complaining about an internal manner, to wit, "the mandate that he provide improper or unnecessary respiratory treatment to patients." (Plaintiff's Brief at 3.) Plaintiff argues that he was bound by his profession's ethical guidelines which, in essence, state that a respiratory therapist can be disciplined if the therapist has been grossly negligent or otherwise acted in a manner that is professionally unethical. See Mass. Gen. L. ch. 112, § 23X(a), (c); 261 C.M.R. § 4.04(5)(a) (2005). Ergo, Plaintiff concludes, summary judgment ought not enter in Defendant's favor on Count I.
Plaintiff offers scant case law to support his position. Moreover, the only decision he discusses in any detail, Martinez v. New Eng. Med. Ctr. Hosps., Inc., 307 F. Supp. 2d 257 (D. Mass. 2004), does not help his cause. As Defendant points out, Martinez involved a hospital employee who alleged that she was terminated for internally reporting violations of company policy regarding patient rights and care. Id. at 266. The court held, however, that such "internal issues cannot be the basis of a public-policy exception to the at-will doctrine." Id. (citing Smith-Pfeffer, 533, N.E.2d at 1371-72). In so holding, the court relied on a decision from the Massachusetts Appeals Court which noted that the public policy exception is available only to employees who are disciplined "for performing important public deeds." Mistishen v. Falcone Piano Co., 630 N.E.2d 294, 296 (Mass.App.Ct. 1994) (citations omitted). "While the importance of a public deed is not determined on the sole basis of whether the law absolutely requires its performance," the Appeals Court continued, "such a mandate would bespeak a legislative determination of the importance of the act to the public." Id. (emphasis added).
Such logic, in this court's estimation, applies here as well. As in Martinez, Plaintiff cites no evidence of "criminal wrongdoing," only his "internal" complaints. See id. at 266 (distinguishing Upton v. JWP Businessland, 682 N.E.2d 1357 (Mass. 1997), and Shea v. Emmanuel College, 682 N.E.2d 1348 (Mass. 1997)). And, Plaintiff's argument to the contrary, the Massachusetts courts have not "left the door open for expansion of the public policy exception . . . to include complaints about ethical, non-criminal matters." (Plaintiff's Brief at 5.) Neither Martinez nor Mistishen says anything of the sort. Put simply, Plaintiff, in this court's opinion, has not shown how the public policy exception to the at-will employment rule applies to the circumstances alleged here.
Defendant also makes a persuasive factual argument, namely, that there is "no evidence that [Plaintiff] was, in fact, asked to . . . provide improper care or unnecessary medical treatment." (Defendant's Brief at 3.) To be sure, Plaintiff argues to the contrary, but his factual statement on this issue is hardly damning.13 In any event, this particular factual thicket need not be entered given the lack of legal support for Plaintiff's public policy claim, as articulated above. Accordingly, the court will recommend that Defendant's motion for summary judgment be granted with respect to Count I.
B. Breach of Contract (Count II)
As an alternative to Count I, Plaintiff alleges in Count II that he was not an at-will employee, but covered by an employment contract which Defendant breached. Plaintiff concedes that no express contract existed. He argues, however, that he had an implied contract based on oral representations made to him by Kathy Glen Nagel ("Nagel"), Defendant's New England Home Care Management Specialist, when he was first hired. Plaintiff asserts that, in particular, Nadel "promised that he would be guaranteed his job for every year that he received positive performance evaluations." (Plaintiff's Brief at 6.)
The main problem with Plaintiff's assertion is that the five pages of his deposition testimony, upon which his implied contract theory is based, says nothing of a "contract," let alone a "promised . . . job." (See Pl.'s Ex. 1 at 32-36.)14 Plaintiff was asked twice if Nadel made such a "guarantee," and neither time did he answer the question directly. ( Id. at 32-33.) At best, Plaintiff testified that Nadel told him that "if you do a great job with Lincare you'll get your cost of living increases and you'll have your employment." ( Id. at 33.) However, Plaintiff equivocated when asked whether he "always [got] a cost of living increase," testifying only that he "believe[d]" he got a cost of living increase every year he was employed "unless the company couldn't afford it." ( Id.) Defendant's attorney then asked Plaintiff if Nadel made "any promises that the company would always be in business," to which Plaintiff replied: "She never mentioned those kinds of things." ( Id. at 35-36.) Defendant's attorney also asked if Nadel told Plaintiff he "would never be laid off" and Plaintiff replied "No." ( Id. at 34.)
As Plaintiff must per force concede, it is his burden in a breach of contract claim to prove that a contract exists. See Canney v. New England Tel. Tel. Co., 228 N.E.2d 723, 727 (Mass. 1967) (citing cases); Boston Children's Heart Found., Inc. v. Nadal-Ginard, Civil Action No. 93-12539-REK, 1194 WL 16011252, at *20 (D. Mass. Dec. 15, 1994). In the court's estimation, he has not done so. For one thing, the purported promises by Nagel were vague. Further, and perhaps more importantly, the alleged contract contains no definite period of employment. See Jackson, 525 N.E. 2d at 412 ("[W]here an employment contract, whether express or implied, contains no definite period of employment, it establishes employment at will."). Accordingly, the court will recommend that Defendant's motion for summary judgment be granted with respect to Count II.
C. Handicap Discrimination (Counts III and V)
As for Plaintiff's claims of handicap discrimination in Counts III and V, Defendant's argument for summary judgment has three parts: (1) that Plaintiff is not handicapped or disabled; (2) that Defendant was unaware of any disability; and (3) that Defendant did not refuse to reasonably accommodate Plaintiff. The court will address each argument in turn. Plaintiff's handicap-based retaliation claims are addressed separately below.
1. Whether Plaintiff is Disabled
A plaintiff is considered disabled under both the ADA and chapter 151B if he "(A) [has] a physical or mental impairment that substantially limits one or more of [his] 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. 151B, § 1(17).15 Here, Defendant does not dispute that Plaintiff has a physical impairment or that he is somewhat limited in his ability to walk. Defendant argues, however, that Plaintiff's "moderate" walking limitations do not substantially limit a major life activity. Accordingly, Defendant argues, Plaintiff is not disabled as a matter of law.
In the court's estimation, there are several problems with Defendant's argument, at least for summary judgment purposes. For one thing, Defendant focuses exclusively on Plaintiff's ability to walk, but does not separately assess lifting as a major life activity. True, as Defendant points out, there is precedent from the Eighth Circuit to the effect that "a general lifting restriction without more is insufficient to constitute a disability." Dropinski v. Douglas County, 298 F.3d 704, 707 n. 2 (8th Cir. 2002). However, the First Circuit — along with the EEOC and the Massachusetts Commission Against Discrimination ("MCAD") — has squarely determined that "lifting" can be properly categorized as a "major life activity." See Gillen, 283 F.3d at 21. The First Circuit analyzed the question as follows:
[T]he EEOC has defined "major life activities" to include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." [29 C.F.R.] § 1630.2(i) [(2005)]. In an interpretive guidance accompanying the regulations, the EEOC noted that this list is not all-encompassing and emphasized the point by adding sitting, standing, reaching, and lifting to the roster of likely major life activities." Id. pt. 1630, App. § 1630.2(i). . . .
. . . .
The term "major life activities" . . . "refers to those activities that are of central importance to daily life."
Toyota [ Motor Mfg. v. Williams, 534 U.S. 184, 197 (2002)]. Whether lifting pen to paper or glass to mouth, lifting is an integral part of everyday life and seems to fit comfortably within the parameters set by the Court. We conclude, therefore, that the EEOC appropriately interpreted the statute . . . and that lifting is a major life activity.Id. (emphasis added). See also Woodason v. Town of Norton Sch. Comm., No. 98-BEM-0624, 2002 WL 977223, at *8 (MCAD Jan. 31, 2002) ("MCAD's Guidelines state that major life activities include such physical abilities as `sitting, standing and lifting.'").
As for walking, Defendant not only concedes that it constitutes a major life activity, see 29 C.F.R. § 1630.2(i) (2005); Mass. Gen. L. ch. 151B, § 1(20), but acknowledges as well that, under the EEOC's regulations, a substantial limitation in the major life activity of walking can constitute a disability, see 29 C.F.R. app. § 1630.2(j) (2005). Defendant notes, however, that the regulations provide that "an individual who had once been able to walk at an extraordinary speed would not be substantially limited in the major life activity of walking if, as a result of a physical impairment, he or she were only able to walk at an average speed, or even at moderately below average speed." Id. Defendant also cites a number of decisions from outside this district which seem to indicate that "walking" cases are often difficult to prove.16
At present, however, Plaintiff need only raise a genuine issue with regard to his walking limitations, see Gillen, 283 F.3d at 21 (noting that, at summary judgment, the court must simply determine "whether the [plaintiff] . . . has succeeded in making out a genuine issue as to what is clearly a material fact: whether she suffers from a disability"), and in the court's view, has done so in spades. Thus, it is undisputed that a 1970 motorcycle accident left Plaintiff with a fractured back and non-regenerative nerve damage to his leg and foot. (Plaintiff's Statement ¶ 1.) It is also undisputed that these injuries prevent Plaintiff from flexing his right foot and require him to lift his hip in order to walk. ( Id.)17 His doctor also confirmed Plaintiff's walking impairment in a letter dated July 21, 2004, stating that "weakness in the muscle pulling the front of foot upward makes [Plaintiff] prone to catching the toe as [he] walk[s] forward and potentially tripping." (Pl.'s Ex. 2.)
Plaintiff has also raised a genuine issue of material fact with regard to his lifting limitation.18 For example, he testified that if he tried to lift over thirty-five pounds he "would basically either lose [his] balance or [his] leg would give out." (Pl.'s Ex. 1 at 17.) His doctor, too, stated that he "should not be required to carry a load of greater than 35 pounds while walking forward because of the increased risk of tripping and falling as a result of the load." (Pl.'s Ex. 2.) In short, the court concludes that, for present purposes, Plaintiff has sufficiently demonstrated a disability as to both walking and lifting, whether alone or in combination, so as to survive Defendant's initial summary judgment argument.
2. Whether Defendant was Aware of Plaintiff's Disability
Next, Defendant asserts that it was not aware of Plaintiff's disability — or, at least, that there are no genuine issue of material fact with regard to its knowledge — and, therefore, that Plaintiff cannot recover for handicap discrimination under federal and state law. In support, Defendant cites three cases, none from this district or the First Circuit, which purportedly stand for the proposition that summary judgment may be granted in an ADA discrimination case where it is shown that the employer did not know of the employee's disability. See, e.g., Morisky v. Broward County, 80 F.3d 445, 448 (11th Cir. 1996) (plaintiff's "vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice" and plaintiff, therefore, failed to establish prima facie case under ADA); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995) (employer not liable for firing employee "because of" disability, see 42 U.S.C. § 12112(a), unless employer knows of disability; mere conjecture that employer knew of disability is not sufficient to raise genuine issue regarding employer's knowledge); Clapp v. N. Cumberland Mem'l Hosp., 964 F. Supp. 503, 505 (D. Me. 1997) ("[I]n order to find that an employer discriminated against an employee `because of' the employee's disability under the ADA the employer must be properly charged with knowledge or notice of the employee's disability.").
The court will assume that such an "awareness" standard might also be applied in this jurisdiction. The court also acknowledges that it has stricken portions of Plaintiff's Statement in this regard on hearsay grounds, e.g., that certain supervisors and employees "knew" of his condition. (See, e.g., Plaintiff's Statement ¶ 3 (last sentence), ¶ 4 (fifth sentence), ¶ 5 (fourth sentence).) Nonetheless, the court believes Plaintiff has sufficiently raised a genuine issue as to whether Defendant was aware of his walking and/or lifting limitations.
Specifically, Defendant has not challenged the following assertions of knowledge on Defendant's part as set forth in Plaintiff's Statement:
3. . . . [Plaintiff] did in fact undergo a physical exam as part of the pre-employment process. . . . During this exam, [Plaintiff] told the examining physician about his 1970 back injury and that he could lose his balance if he carried too much weight. [Plaintiff] observed the doctor writing notes during the exam. At or around the time that [Plaintiff] began his employment . . ., the Worcester site's Center Manager Mary Sweet asked [Plaintiff] whether something was wrong with his leg. [Plaintiff] told Sweet about his motorcycle accident and about his physical limitations. Sweet thereafter would often ask [Plaintiff] whether he could perform certain functions such as walking up or down stairs, or carrying boxes or equipment. . . .
4. . . . [Plaintiff] did discuss his physical limitations with both Lincare managers and co-workers. [Plaintiff] discussed his medical condition with Al Gates, a Center Manager at [Defendant]'s Dudley site. [Plaintiff] also discussed his impairment with Jeff Deluca, who succeeded Gates as Dudley's Center Manager. . . . Discussions between [Plaintiff] and these men centered on helping him. . . . Gates, Deluca and [another employee] helped [Plaintiff] by routinely asking him whether he could lift certain items.
. . . .
11. . . . [With regard to the January 30, 2002, incident, Plaintiff] told Fortier that he could not lift and carry the concentrator, a task that would be necessary for this client visit. (Plaintiff's Statement ¶¶ 3, 4, 11 (citations to record omitted).) Moreover, it appears that Plaintiff's impairment may have been visible; as indicated, he has to visibly lift his hip in order to walk. The court, therefore, has little choice but to conclude that Plaintiff has raised a genuine issue as to Defendant's knowledge of his disability.
3. Whether Defendant Refused to Reasonably Accommodate Plaintiff
Finally, Defendant argues that, even assuming it was aware of Plaintiff's disability, it did not refuse to reasonably accommodate him. Once again, the court finds Plaintiff's position more persuasive for summary judgment purposes.
"[U]nder the ADA, `the term "discriminate" includes . . . not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . . .'" Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) (quoting 42 U.S.C. § 12112(b)(5)(A)). Massachusetts law is virtually identical. See Mass. Gen. L. ch. 151B, § 4(16).
In the instant case, genuine issues exist as to whether Defendant failed to accommodate his inability to lift over thirty-five pounds. It appears undisputed that on January 30, 2002, Fortier asked Plaintiff to lift a concentrator (which weighed over thirty-five pounds) and he refused. Granted, once Plaintiff informed Fortier that his physical limitations prevented him from lifting the concentrator, she decided not to have him lift anything heavy thereafter. (See Defendant's Brief at 16.) But there is no evidence Fortier ever communicated this to Plaintiff. (See Pl.'s Ex. 12 at 48.) Rather, as Plaintiff points out, she put him on probation — largely because of the January 30th incident and even after receiving a note from his doctor outlining his lifting restriction — and then terminated his employment. These facts are sufficient, in the court's estimation, to infer for present purposes that Defendant refused to reasonably accommodate Plaintiff and, hence, to allow his handicap discrimination claims to survive.
D. Gender Discrimination (Counts IV and VI)
In analyzing Plaintiff's gender discrimination claims, both parties rely on the familiar three stage, burden-shifting framework first outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and further detailed in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). See Thomas v. Eastman Kodak Co., 183 F.3d 38, 56 (1st Cir. 1999); Benham v. Lenox Sav. Bank, 118 F. Supp. 2d 132, 141 (D. Mass. 2000). This three-step analysis essentially parallels that applicable to chapter 151B. See Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000) ("In our view, federal and Massachusetts law are now generally aligned. . . .") (citing Reeves and Abramian v. President Fellows of Harvard College, 731 N.E.2d 1075, 1084-86 (Mass. 2000)). See also Joyal v. Hasbro, Inc., 380 F.3d 14, 16 (1st Cir. 2004) ("Massachusetts case law uses a burden-shifting device akin to federal law to force the employer to supply reasons for his action once an easily made prima facie case is established."). The court, therefore, will address Plaintiff's state and federal gender discrimination claims together and refer principally to federal caselaw.19
1. Prima Facie Case
At the first stage of the burden-shifting analysis, a plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. See Thomas, 183 F.3d 38, 56 (1st Cir. 1999). To do so, he generally must show that (1) he is a member of a protected class, (2) he was qualified for the job, (3) he suffered an adverse employment action, and (4) the position remained open or was filled by a person with similar qualifications. See Kosereis v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003); Gunther v. Gap, Inc., 1 F. Supp. 2d 73, 77 (D. Mass. 1998). The First Circuit has variously "described the prima facie case as a `small showing' that is `not onerous' and is `easily made.'" Id. at 213 (citations omitted).
For summary judgment purposes, Defendant concedes that Plaintiff's prima facie burden has been met: he was a qualified male who was terminated and replaced by a woman, Dana Anderson. Accordingly, the court will move on to the second analytical stage. See also Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 n. 2 (1st Cir. 2003).
2. Second Stage
At the second stage of the analysis, the burden shifts to the employer-defendant to produce a valid, nondiscriminatory reason for the adverse action. See Thomas, 183 F.3d at 56. Defendant has sustained that burden here. With scant opposition from Plaintiff, Defendant has alleged a pattern of insubordination culminating in the incident on January 30, 2002. In other words, as is often the case, the dispute centers on the next stage.
3. Third Stage
At the third stage of the sequential analysis, the plaintiff has the burden to establish by a preponderance of the evidence "that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves, 530 U.S. at 143 (citation and internal quotation marks omitted). "Although, in this posture, the burden-shifting framework itself becomes inconsequential, the court must still examine the [same] evidence that the parties adduced [during the first stage] in proceeding under the framework." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 n. 6 (1st Cir. 1991).
A direct showing that a similarly situated female employee was treated differently is "[t]he most probative means of establishing that the plaintiff's termination was a pretext for [gender] discrimination." Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303, 1309 (Mass. 1997). See also Pagano v. Frank, 983 F.2d 343, 348 (1st Cir. 1993) (pretext argument hinges on whether particular employment policy "was not applied to other, similarly situated, . . . employees in the same way"). In assessing pretext, a court must focus on "`the perception of the decisionmaker,' that is, whether the employer believed its stated reason to be credible." Mesnick, 950 F.2d at 824 (quoting Gray v. New England Tel. Tel. Co., 792 F.2d 251, 256 (1st Cir. 1986)). To be sure, "[c]ourts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers' non-discriminatory business decisions." Id. at 825. Instead, at the summary judgment stage, the court must determine if the plaintiff has proffered sufficient evidence "to enable a rational factfinder reasonably to infer that unlawful discrimination was a determinative factor in the adverse employment action." Thomas, 183 F.3d at 57 (citations and internal quotation marks omitted).
To make such a showing, a plaintiff must typically point to another person, "similarly situated to him in all relevant respects," who was "treated differently by the employer." Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999) (citing Perkins v. Brigham Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996)). Accord Matthews, 686 N.E.2d at 1309-10. Of course, the comparitor that a plaintiff provides need not be a "perfect replica," but she must bear a reasonably close resemblance with respect to the pertinent facts and circumstances. Conward, 171 F.3d at 20. At bottom, a court must determine "whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated." Id. (finding incident involving black teacher's giving lewd documents to female student not sufficiently similar to white teacher shoving a male student as to constitute basis for race discrimination claim).
In the instant case, Plaintiff asserts to that there is a triable issue as to whether he was treated less favorably than a similarly-situated woman, Motyka, who, unlike Plaintiff, was not fired after refusing to lift a concentrator on January 30, 2002. Defendant does not dispute Plaintiff's contention that both he and Motyka had similar educational degrees and training as respiratory therapists. Nor does Defendant dispute that Plaintiff's and Motyka's jobs were the same. According to Defendant, however, there was a major difference between Plaintiff and Motyka: "While both Motyka and [Plaintiff] refused to lift a concentrator on January 30, 2002, Motyka, unlike [Plaintiff], had not just spent a month refuting Fortier's instructions." (Defendant's Brief at 21-22.)
Even on the surface, this is a weak fact upon which to draw a distinction. Moreover, there are enough other factual inferences in Plaintiff's favor for his claims to survive summary judgment. For example, one of the reasons given for Plaintiff's probation was that he was not meeting productivity standards. However, as Plaintiff testified "[t]he work [he and Motyka] were doing was identical . . . Yet, I was the only one that was reprimanded and given a probation report regarding that." (Pl.'s Ex. 1 at 207-08.) And although Fortier does not recall any issue at all with Motyka's performance, and Motyka herself claims she has "[n]ever been disciplined in a job," the Area Manager, Ziff, testified that Motyka had received a written warning for refusing to lift the concentrator and that he certainly deemed this to be a "disciplinary action." (See Pl.'s Ex. 5 at 12, 23; Ex. 7 at 45; Ex. 8 at 40-41.) In addition, Fortier was incensed when Plaintiff refused to help her clean the concentrators in the warehouse, describing it as "the most glaring incident I can recall." (Pl.'s Ex. 7 at 18, 22.) But Motyka testified that she was "never asked in a warehouse to clean a concentrator." (Pl.'s Ex. 5 at 47.)
As Defendant is no doubt aware, an employee "can . . . establish pretext by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons such that a factfinder could infer that the employer did not act for the asserted non-discriminatory reasons." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000). This appears to be just such a case, given the inconsistencies and contradictions between Fortier's treatment of Motyka and her treatment of Plaintiff, as well as perhaps other curiosities.20 Accordingly, the court will recommend that Defendant's motion with respect to Counts IV and VI be denied.
E. Retaliation
As for retaliation, the parties agree that, under both federal and state law, Plaintiff must first prove a prima facie case: that (1) he engaged in protected conduct; (2) he suffered an adverse employment action; and (3) a causal connection exists between the two. See Wright v. CompUSA, Inc., 352 F.3d 472, 477-78 (1st Cir. 2003). The court believes Plaintiff has made a sufficient showing on each element.
Regarding the first, Defendant argues that there is nothing to suggest that Plaintiff's actions constituted protected conduct. Plaintiff, however, asserts that he engaged in at least two instances of protected conduct: he questioned Fortier's demand that he test a patient for oxygen set-up without consulting the patient's doctor and he requested an accommodation for his disability. The second instance, at least, is recognized by the First Circuit in disability claims arising under the ADA and chapter 151B.21 See Wright, 352 F.3d at 478 (1st Cir. 2003) (holding that "requesting an accommodation is protected activity" in retaliation claims brought under either ADA and/or chapter 151B). Accordingly, the court believe Plaintiff has surmounted his first prima facie hurdle.
As for the second and third prima facie elements, Defendant argues that there is nothing, other than timing, to suggest that Plaintiff's so-called "protected conduct" caused his termination. Plaintiff asserts, however, that there are enough inferences to deem these elements established. The court agrees. As described, Fortier put Plaintiff on probation because of the January 30th incident, even after receiving a note from his doctor outlining his lifting restriction, and then terminated his employment less than two weeks later. In this regard, the probation report itself is telling. It indicates that Fortier "asked [Plaintiff] to do a new setup for an O2 patient" (which purportedly involved lifting the heavy concentrator), that Plaintiff was required to "set-up" the equipment, but that Plaintiff was not "following [these] directions." Given these facts, the court believes Plaintiff has established a prima facie case of retaliation sufficient to survive summary judgment. See Wright, 352 F.3d at 478 (observing that the record on this point must be "viewed in the light most favorable to [the plaintiff]").
"Once a prima facie case of retaliation is established, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision. If the employer provides a legitimate reason, the ultimate burden falls on the plaintiff to show that the employer's proffered reason is pretext masking retaliation." Id. Defendant again alleges that Plaintiff was discharged for insubordination. The burden thus falls on Plaintiff to show that Defendant's proffered reason was pretextual. As discussed above, and similar to the First Circuit's holding in Wright, the court believes that "the evidence presented by [Plaintiff] creates a triable issue of fact as to whether his discharge was in fact due to his allegedly insubordinate behavior . . . or whether [Defendant]'s charge of insubordination masked retaliation for requesting accommodation." Id. Accordingly, the court will recommend that summary judgment not enter on Plaintiff's disability-based retaliation claims.
IV. CONCLUSION
For the reasons stated, the court recommends that Defendant's motion for summary judgment be ALLOWED with respect to Counts I and II as well as with respect to Counts IV and VI insofar as these two counts allege gender-based retaliation (see n. 10), but otherwise DENIED.22