Opinion
17-P-1413
03-18-2019
RICHARD MALLEY v. MASSACHUSETTS OFFICE ON DISABILITY & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This employment discrimination action was brought by Richard Malley pursuant to G. L. c. 151B against his former employer, the Massachusetts Office on Disability (MOD), and its director, Myra Berloff. The complaint alleges that Malley was subjected to handicap discrimination and retaliation when he was disciplined and ultimately terminated from his position as an MOD advocate. After a hearing on the defendants' motion for summary judgment, a Superior Court judge concluded that Malley had no reasonable expectation of establishing the essential elements of his claims and granted summary judgment in favor of the defendants. On appeal, Malley contends that when the evidence is viewed in a light most favorable to him, there is a genuine issue of material fact regarding (1) his ability to perform the essential functions of his job with a reasonable accommodation, and (2) whether MOD unlawfully retaliated against Malley based on his requests for accommodation and complaint to the Massachusetts Commission Against Discrimination (MCAD). He also argues that the judge erred when he entered an order striking his statement of facts submitted pursuant to Rule 9A (b) (5) of the Rules of the Superior Court (2014). We affirm.
As to Berloff, the complaint also alleged intentional interference with an advantageous relationship.
We need not reach the merits of Malley's argument regarding his claim against Berloff for intentional interference with an advantageous relationship. See Boston v. Commonwealth Employment Relations Bd., 453 Mass. 389, 402 n.11 (2009) (arguments "relegated to a footnote do not rise to the level of appellate argument" [citation omitted]). Were we to do so, we would affirm because there was insufficient evidence that Berloff acted with actual malice. See Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001) (claims against individual officials require proof of actual malice).
Background. We summarize the relevant facts in the light most favorable to Malley, the nonmoving party. See Lyons v. Nutt, 436 Mass. 244, 245 (2002). Malley was employed by MOD from November, 2005, to November, 2009, as a client services advocate. He is legally blind due to a progressive retinal condition; he also suffers from depression and attention deficit disorder. During his employment with MOD, Malley requested and received several accommodations due to his disability. However, in April, 2007, MOD denied Malley's request to move his work station outside the client services unit and away from his coworkers to provide more space for his service animal. MOD reasoned that separating Malley from his supervisor and fellow advocates would impair his ability to communicate with his colleagues and diminish the overall quality of services provided by the program. Instead, MOD pursued alternative options to allow Malley more space within his existing work area.
An advocate provides client service and community service programs for the disabled.
He received approval (1) for leave to train his service animal on February 7, 2006, (2) to alter his schedule on November 3, 2006, (3) for "assistive technology" (computer software, closed caption television, twenty-one inch computer monitor) on December 8, 2008, and for additional office equipment (software, a scanner, and a GPS system) on August 7, 2009.
Around this time, Malley received warnings and disciplinary actions for his conduct toward clients, coworkers, and supervisors. In March, 2009, Malley submitted a request for a six-week medical leave relating to his depression. The leave was allowed. Before his scheduled return date, Malley renewed his request to move his work station, and his doctor informed MOD that Malley could return to work if his station was moved. MOD denied the request and told Malley it was willing to find an alternative. On June 5, 2009, Malley again requested that his work station be moved to the area in room 1305 that served as a lunchroom.
On December 3, 2008, Malley was issued a formal warning and was suspended for one day for raising his voice to his supervisor. He received formal warnings on January 27 and February 5, 2009, for his office demeanor (leaving early without authorization, failing to attend meetings, improper use of break times, missing a deadline, and failing to timely return client telephone calls).
On June 18, 2009, shortly after his return to work, Malley received a formal warning and three-day suspension for failing to follow his work schedule, misrepresenting his attendance and break times, and meeting with his union representative during work hours. Malley filed a complaint with the MCAD the next day. While serving the suspension, he submitted another medical leave request. MOD informed Malley that he had not properly documented the request and requested that he undergo an independent medical examination. The independent examiner concluded that Malley was not able to perform his job duties in an open cubicle area in the office, and that Malley's inability was due to his choice not to return to work without his requested accommodation, rather than as a result of any mental health condition. Further, the independent examiner determined that Malley had no psychiatric condition that restricted or limited his ability to perform his work duties.
After he returned from medical leave, Malley failed to appear at a hearing at which he was to advocate on behalf of a client. MOD issued a formal warning and suspended Malley for three days. When notified of the suspension, Malley walked out of the office before the end of his workday. Ultimately, MOD terminated Malley's employment after an administrative hearing at which Malley's history of progressive discipline and his unauthorized walk-out were determined to be just cause. Malley filed a union grievance which ultimately went to arbitration. The arbitrator concluded that MOD had just cause for each disciplinary action against Malley, including termination.
Discussion. We review a grant of summary judgment de novo to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
1. Failure to accommodate. Under G. L. c. 151B, § 4 (16), a "'qualified handicapped person' is entitled to a 'reasonable accommodation' that will enable him to perform the essential functions of his job, so long as the accommodation does not place an undue burden or hardship on the employer." Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). An employee like Malley, who claims that he was unlawfully denied a reasonable accommodation must show that (1) he was a qualified handicapped person capable of performing the essential functions of his job with reasonable accommodation; (2) he requested an accommodation that was reasonable; (3) his employer refused to provide such accommodation; and (4) he was harmed. See Alba v. Raytheon Co., 441 Mass. 836, 843 n.9 (2004); Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 386 & n.3, 390 (1993). It was Malley's burden to establish that the accommodation he sought would have allowed him to continue to perform the essential functions of his job and, thus, was reasonable. See Cox, 414 Mass. at 386 n.3 (employee must "make at least a facial showing that reasonable accommodation is possible" [citation omitted]). See also Godfrey, 457 Mass. at 120 (same).
An essential function of a position is a function that "must necessarily be performed by an employee in order to accomplish the principal objectives of the job." School Comm. of Norton v. Massachusetts Comm'n Against Discrimination, 63 Mass. App. Ct. 839, 846 (2005). In response to Malley's requests to relocate, MOD informed him that regular face-to-face interactions with his fellow advocates and supervisor were essential functions of his job. MOD's position was corroborated by another advocate who testified that it was both routine and important for advocates to collaborate on calls in real time.
Malley responded with his own opinion that collaboration among advocates was unimportant, and that his physical presence in the client services unit was nonessential because other advocates could communicate with him electronically or by visiting his location. It is well settled, however, that an employee is not permitted to define the essential functions of his own job, or to forestall summary judgment simply by offering his own self-serving viewpoint. See Mulloy v. Acushnet Co., 460 F.3d 141, 147-148, 153 (1st Cir. 2006). See also Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 594 (2004) (Federal law guides interpretation of essential function). Even assuming that it would be possible for an advocate to communicate with other advocates electronically from a remote location, such a possibility does not override MOD's judgment that face-to-face, real-time communication is essential. See Cox, 414 Mass. at 386-388 & n.4 (job function may be essential even if only sometimes necessary).
For these reasons, we discern no error in the judge's conclusion that "there is no genuine dispute of material fact that an essential function of a client services advocate is to work in close proximity to the other members of the client services team in order . . . [for advocates to] provide one another with immediate advice regarding their clients' needs." Accordingly, Malley failed to make the required showing that his proposed accommodation would have allowed him to perform the essential functions of his job.
2. Retaliation. Malley claims that the defendants retaliated against him because he requested reasonable accommodations and filed complaints with the MCAD. "Retaliation is a separate and independent cause of action" from a claim of discrimination under G. L. c. 151B, § 4 (16), Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000), but the basic framework of the claim is the same. First, "the plaintiff bears the initial burden of establishing a prima facie case"; second, "the burden shifts to the [defendants] to articulate a legitimate reason for [their] actions"; and third, "the burden shifts back to the [plaintiff] to show that the [defendants'] asserted reason was not the true reason, but rather a pretext." Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 14-15 (1997). See Mole v. University of Mass., 442 Mass. 582, 591 (2004). To establish a prima facie case, Malley must show that (1) he engaged in protected conduct; (2) he suffered some adverse action; and (3) "a causal connection existed between the protected conduct and the adverse action." Id. at 591-592, quoting Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).
It is undisputed that Malley's accommodation requests and MCAD complaint qualified as protected activity, and that he was subject to adverse employment actions. However, the judge concluded, and we agree, that there was insufficient admissible evidence to establish a causal link between Malley's protected conduct and the adverse employment actions to permit an inference of retaliation. As to the MCAD complaint, the record established that Malley's disciplinary problems began long before that form of protected activity. In the approximately two years before his first MCAD complaint, Malley received two informal warnings, three formal warnings, a one-day suspension, and a three-day suspension. A reasonable inference of retaliation cannot be drawn when the discipline comes before the claimed protected activity. See Mole, 442 Mass. at 594 (where "problems with an employee predate any knowledge that the employee has engaged in protected activity, it is not permissible to draw the inference that subsequent adverse actions . . . are motivated by retaliation").
The record also shows that MOD had a history of allowing Malley's requests for accommodation well before his progressive discipline began. For example, Malley made, and MOD allowed, at least three accommodation requests in 2005 and 2006, long before the discipline began in 2007. In this instance, even though protected activity preceded the adverse employment action, the time span between them does not support a reasonable inference of causation. See Mole, 442 Mass. at 595 (inference of causation not drawn from adverse actions occurring years after protected activity); Dube v. Middlesex Corp., 59 Mass. App. Ct. 734, 740-741 & n.3 (2003) (insufficient evidence of causation where protected activity and adverse action separated by at least nine months). In short, the evidence did not support an inference that the disciplinary actions were in retaliation for the requests for accommodation. Rather, the evidence showed that MOD accommodated Malley when it was consistent with the essential functions of his job. For these reasons, we discern no error in the judge's conclusion that Malley failed to establish a prima facie case of retaliation.
Even were we to assume a prima facie case of retaliation, the record did not establish that MOD's stated reasons for Malley's termination were pretextual. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 55 (2005) (plaintiff must show "credible evidence" that stated reasons for discipline were not real reasons). Malley's undisputed history of progressive discipline, his failure to appear to represent a client, and his "walk-out" provided ample support for the decision to terminate him for unprofessional and insubordinate behavior.
3. Motion to strike Rule 9A (b) (5) statement of facts. Pursuant to Superior Court Rule 9A (b) (5), in connection with their motion for summary judgment, the defendants submitted a joint statement of 164 material facts (and Malley's responses) about which they claimed there was no genuine issue to be tried. Malley included a statement of 238 additional "facts" for the judge to consider. The defendants moved to strike Malley's statement of additional facts, arguing that it was excessive, overly burdensome, and argumentative, in violation of Rule 9A. The judge allowed the motion to strike by margin endorsement "for the reasons stated herein." Malley challenges that ruling on appeal.
"Rule 9A(b)(5) is an 'anti-ferreting' rule designed to assist a trial judge in the all-too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge." Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399 (2002). The defendants complied with the rule by submitting concise statements of fact with record references. By contrast, Malley's lengthy Rule 9A (b) (5) submission exceeded simple statements of fact and included, in many instances, legal argument and improper characterization of the evidence. In these circumstances we discern no abuse of discretion in the judge's order striking Malley's Rule 9A (b) (5) statement. See Malden Police Patrolman's Ass'n v. Malden, 92 Mass. App. Ct. 53, 56 (2017) (enforcement of Rule 9A [b] [5] within judge's discretion).
"Other points, relied on by [Malley] but not discussed in this [decision], have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). For example, we find no merit in Malley's argument that the judge abused her discretion in denying his motion to strike evidence of the arbitrator's decision regarding Malley's union grievance. See Boston v. Massachusetts Comm'n Against Discrimination, 39 Mass. App. Ct. 234, 239 (1995) ("forum adjudicating a statutory claim of discrimination may receive an arbitration decision in evidence and accord it the weight that seems appropriate").
The plaintiff's request for appellate attorney's fees and costs is denied.
By the Court (Hanlon, Kinder & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 18, 2019.