Opinion
CIVIL ACTION NO. 98-11709-DPW.
March 7, 2002
MEMORANDUM AND ORDER
Plaintiff Brian Marsolais, a former corrections officer, brings this action against his former employer, the Commonwealth of Massachusetts Department of Corrections ("DOC"), for failure reasonably to accommodate his disability, in violation of the Americans with Disabilities Act ("ADA") (Count I), the Massachusetts Handicap Discrimination statute, (Count II), and the Massachusetts Worker's Compensation statute (Count III). The defendant has filed a motion for summary judgment.
After the completion of briefing on the motion for summary judgment, the Supreme Court decided Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). In Garrett, the Court held that Congress exceeded its constitutional authority to abrogate the states' Eleventh Amendment immunity when it enacted the ADA and that consequently Title I of the ADA does not authorize suits seeking money damages by individuals against states. The defendant then submitted a brief arguing that Garrett bars the plaintiff's federal claim in its entirety. The plaintiff has not chosen to brief the issues.
More recently, the Supreme Court decided Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002), further defining the types of physical impairments which substantially limit major life activities and thus constitute a "disability" within the meaning of the ADA. In Toyota, the Court held that when addressing the issue of a major life activity "the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with [his] specific job." Id. at 693.
In light of Garrett's construction of the Eleventh Amendment, I will dismiss plaintiff's ADA claim to the extent that he seeks money damages. In addition, because the Eleventh Amendment bars the plaintiff from bringing claims that arise under state law, I will dismiss his Massachusetts state law claims as well.
Recognizing that because Marsolais has requested injunctive relief as well as damages, his ADA claim if amended to name a state official would survive Garrett in part, I will address the question whether Marsolais is a "qualified individual" with a disability for the purposes of the ADA. Especially in light of Toyota Motor, I find as a matter of law that he is not. Accordingly, I will grant summary judgment as to that part of plaintiff's ADA claim that may otherwise survive Garrett.
I. Background
A. Marsolais' Work History
Plaintiff Brian Marsolais was employed as a corrections officer assigned to MCI Walpole starting on or about March 7, 1988. On February 22, 1995, Marsolais injured his back at work. As a result of the injury, Marsolais was out of work and collected disability benefits from February 22, 1995 until July 17, 1995. On July 17, 1995 Marsolais returned to work under a temporary modified work program, as is provided under his union collective bargaining agreement. Under the temporary modified work program, Marsolais was assigned to posts that did not involve inmate contact, such as the gallery, tower, and control room. This temporary modified work program expired on November 21, 1995.
While on the temporary modified work program, Marsolais re- injured his back. Therefore, from November 22, 1995 through September 15, 1996 Marsolais received disability benefits and remained out of work. On September 16, 1996 Marsolais returned to work under a second temporary modified work program, which expired on February 21, 1997. Marsolais was assigned to posts similar to those he had held during his first temporary modified work program. This second temporary modified work program was then extended from March 6, 1997 until June 6, 1997.
After his second temporary modified work program expired, Marsolais received full disability benefits starting from June 12, 1997. On November 1, Marsolais' full disability benefits expired, and on November 2, 1997 he began receiving partial disability benefits.
B. Marsolais' Attempts to Secure a Modified Work Position
On June 10, 1997, while receiving full disability benefits following the expiration of his second temporary modified work program, Marsolais wrote to Superintendent Robert Duvall to request a "shift transfer" that he claimed would allow him to work without violating "any of my present medical restrictions." Without being more specific, Marsolais stated that "medical restrictions limit myself to certain aspects of the job on the 7- 3 or 3-11, [but that] I feel I still can be productive on the 11- 7 shift." On June 11, Duvall wrote to Marsolais informing him that his temporary modified work assignment had come to an end, and that he would be placed on personal leave. He explained, "[b]ased on the medical you submitted this week, I am unable to continue you on temporary modified work as your doctor's note does not fully address your current restrictions/situation."
On July 8, 1997, Marsolais submitted a bid for a position in Tower #3. The position was awarded to another correctional officer, purportedly because Marsolais failed to obtain evidence from his doctor that he was able to perform the essential functions of the job.
On September 29, 1997, Marsolais' attorney, William Gately, wrote to the DOC informing it that Marsolais had been "released by his physician to lighter, alternative duty" and requesting "any reasonable accommodation for his physical impairment." (Emphasis in original.)
On November 7, 1997, the DOC wrote to Marsolais' doctor requesting clarification about what Marsolais could or could not do, specifically inquiring about inmate contact. Meanwhile, Marsolais had an independent medical examination, arranged by the DOC, with the examiner concluding that he did not find "within a reasonable degree of medical certainty, a reason that [Marsolais] could not return back to his full job as a Corrections Officer at Walpole."
On January 21, 1998, Marsolais' doctor completed forms sent to him and concluded that Marsolais could perform "work activities involved in working in the tower (gallery) at the prerelease center and in the control room (trap)." These were the posts Marsolais had held during his temporary modified work program, which he believed would not involve inmate contact.
On January 13, 1998, Marsolais was offered a position at MCI Longwood, a minimum security facility. Marsolais conditioned his acceptance upon his "medical restrictions," however, as to which the DOC determined that permanent accommodation could not be made.
On July 16, 1998, Marsolais was examined by another independent physician, in accordance with an order from the Industrial Accident Board administrative law judge. The doctor concluded that "[i]n his present physical condition, particularly given his limitations in flexibility, and presumed limitations in back and hip strength, given the chronic nature of his problem, he will be unable to physically restrain inmates in a safe fashion." However, this doctor also concluded that Marsolais would be able to perform the essential functions of a tower position, so long as physical restraint of inmates was not required.
On January 26, 1999, Marsolais again was informed by the DOC that certain shifts were available at Longwood. Marsolais again conditioned any acceptance of the position on the position not violating his "medical restrictions," which the DOC again determined it could not permanently accommodate. A similar exchange occurred with respect to a position Marsolais was offered, on July 9, 1999, at the Lemuel Shattuck facility.
C. Requirements of the Corrections Officer I Position
Marsolais was originally hired by the DOC to be a Corrections Officer I ("CO I") and continued under that job classification until he was separated from employment. The "Massachusetts Department of Personnel Administration Classification Specification," dated December 31, 1987, lists the duties required of a CO I in six numbered sentences in a section entitled "Examples of Duties Common to all Levels in Series." Those six numbered sentences include some tasks that involve direct contact with inmates, such as "[m]aintain[ing] custodial care and control of inmates by escorting or transporting them under restraint."
In addition to the written specification, the defendant has provided a supplemental description of the "essential duties" of the CO I position. This document states "[t]here are seven (7) essential duties common to all incumbents of this series (C.O. I, II, and III)." It then lists the six sets of duties set forth in the 1987 document, but adds between number 5 and the former number 6 (now number 7) the following:
This was appended to the specification without any markings to show that it is part of the same document. I will rely upon this supplemental description of the "essential duties" of corrections officers as accurately reflecting the job specification that has been in effect since 1987. While it appears that this list was prepared for litigation, the plaintiff has conceded it fairly reflects the essential functions of the job.
"Responds to emergency situations such as threats, assaults, medical emergencies, fires, escapes, etc. by having the ability to properly use firearms, use force/restraints, CPR/First Aid, and fire safety techniques."
In defense of its denial of a permanent accommodation to Marsolais, the DOC contends that all CO I's are required to "be capable of performing all of the essential functions" set forth in the written specification and the supplemental description, "despite any particular post to which they are assigned."
II. The Eleventh Amendment Bars Claims Brought under State Law (Counts II and III)
In Counts II and III, Marsolais alleges that the DOC's denial of a permanent accommodation discriminated against him in violation of Mass. Gen. Laws ch. 151B § 4 and Mass. Gen. Laws ch. 152 §§ 75A, 75B. However, the Eleventh Amendment to the United States Constitution prohibits a federal court from hearing suits brought under state law against states or their officers. See Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 120 (1984). Federal courts may only hear claims brought under state law against a state or its officers if the state explicitly waives its sovereign immunity. See id., at 99, citing Edelman v. Jordan, 415 U.S. 651, 673 (1974).
Massachusetts has not waived its sovereign immunity or otherwise consented to suit in federal court arising under either of the statutes in question. See Mass. Gen. Laws ch. 151B and 152. Cf. Rivera v. Massachusetts, 16 F. Supp.2d 84 (D.Mass. 1998). Thus, this court does not have jurisdiction over Marsolais's state law claims, and I must dismiss them without prejudice.
III. The Eleventh Amendment Bars ADA Claim Seeking Damages (Count I)
The Eleventh Amendment also bars private suits seeking damages brought against the states in Federal Court. However, the immunity thus afforded is not absolute. Not only can it be waived by a state, it also can be abrogated by Congress acting "pursuant to a valid grant of Constitutional authority." Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000).
In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73 (1996), the Supreme Court held that Article I of the United States Constitution does not authorize Congress to abrogate the states' Eleventh Amendment immunity. The Court has recognized that Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to do so. Kimel, 528 U.S. at 80. Section 5 grants Congress "the power to enforce, by appropriate, legislation, the provisions of" the Fourteenth Amendment. U.S. Const., Amd. XIV, § 5. This authority is broader than the Amendment itself and "includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, 528 U.S. at 81. However, Congress's grant of authority is not unlimited and it is ultimately a court's obligation both to interpret the Fourteenth Amendment's substantive meaning and to ensure that legislation is proportional to and congruent with the Amendment's goals. See id. (citing City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997)).
The Supreme Court undertook this task with respect to the ADA in Garrett. Over vigorous dissent, the Garrett majority held that Congress had failed to identify a "history and pattern of unconstitutional employment discrimination by the States against the disabled," sufficient for the ADA to be considered as validly enacted under Section 5 of the Fourteenth Amendment. Garrett, 531 U.S. at 368-74. Accordingly, the Court found that the ADA does not function to abrogate the states' Eleventh Amendment immunity. Id. at 374 n. 9.
In light of Garrett, I hold that Marsolais' action must be dismissed insofar as it seeks to recover damages under the ADA against the DOC, a state agency.
IV. ADA Claim Seeking Injunction (Count I)
Of course, the holding of Garrett is limited to suits for damages because, under the doctrine of Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not immunize state officials from being enjoined from performing acts that violate federal law. Garrett, 531 U.S. at 174 n. 9. Accordingly, Garrett would not bar Marsolais' action to the extent that it might seek to enjoin the relevant DOC official, under the ADA, from denying him employment with reasonable accommodation.
Marsolais has not named any DOC official in his action. However, to ensure that, especially as a pro se litigant, he is not deprived of a viable federal claim, I will consider whether Marsolais' action could go forward insofar as it seeks injunctive relief only, were he to be permitted to amend his complaint to name the state official(s) responsible for denying him reasonable accommodation.
The ADA provides, in pertinent part, that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Consequently, to establish a prima facie case of disability discrimination sufficient to support an injunctive claim under the ADA, Marsolais must show (1) that he is disabled within the meaning of the act; (2) that he is a "qualified individual" for the employment sought; and (3) that he has been denied reinstatement because of his disability. See EEOC v. Amego, Inc., 110 F.3d 135, 141 n. 2 (1st Cir. 1997). To be deemed "disabled" Marsolais must demonstrate that he is "unable to perform the variety of tasks central to most people's daily lives," not merely that he is unable to perform the tasks associated with a specific job. Toyota Motor, 122 S.Ct. at 693. To be deemed a "qualified individual" for the employment sought, Marsolais must be able to "perform the essential functions of the position with or without a reasonable accommodation." Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 33 (1st Cir. 2000). I will focus at some length first on the second requirement of qualification, as to which I find Marsolais' claim founders. I will then examine more briefly the requirement of "disability" as defined by Toyota Motor, where I find an alternative bar to any injunctive ADA claim by Marsolais.
A. Is Plaintiff a "Qualified Individual" Under the ADA?
In order to survive a motion for summary judgment, Marsolais must present sufficient evidence that a reasonable jury could find that he could perform the essential functions of the CO I position for which he seeks reinstatement, either with or without a reasonable accommodation. Before I address the question of Marsolais' ability, I must identify the "essential functions" of that position.
In a very similar case, the Tenth Circuit reviewed the process by which a court may determine what are the "essential functions" of a given job. See Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999). First, it noted that "[w]hether a particular function is essential is a factual inquiry." Id. at 1130. It then cited the ADA's provision that, for purposes of this inquiry, "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." Id. (quoting 42 U.S.C. § 12111(8)).
The regulations promulgated under the ADA provide further guidance in deciding what are the essential functions of a job. They provide:
(2) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or . . . .29 C.F.R. § 1630.2(n)(2). In addition, the regulations provide that in deciding what constitutes an essential function, a judge should consider:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.29 C.F.R. § 1630.2(n)(3).
The DOC contends that an essential function of the CO I position is that of maintaining care and control of inmates safely and successfully, especially when responding to emergency situations — a function that, because of his back injury, Marsolais is unable to perform. Therefore, the DOC concludes that Marsolais is not a "qualified individual" for the purposes of the ADA. Marsolais counters that he is able to perform the tasks associated with several lighter duties associated with the CO I position, such as tower duty, and that inmate contact is not essential thereto. Marsolais' argument, then, is that inmate contact is not an essential function of the CO I position.
Courts in other jurisdictions have addressed the issue of what may constitute the essential tasks of a corrections officer in similar contexts. Though not controlling in this case, their reasoning is instructive.
For example, in Martin, the plaintiff was a corrections officer at a maximum security facility in Kansas. The written description of the position provided, among other things, that a corrections officer was responsible for "supervising and maintaining discipline and control of inmates throughout the prison, and responding to emergency situations, including physically restraining or subduing inmates when necessary." Martin, 190 F.3d at 1123. In addition, a written policy stated that corrections officers were rotated through various posts within the facility at least annually, and that the warden had the responsibility to determine post assignments based on the needs of the facility. Id. The plaintiff had suffered a knee injury that, according to his doctor, possibly permanently prevented him, among other things, from being able to subdue or control violent inmates. Id., at 1124.
The plaintiff had been assigned to the "tower," an assignment that he contended involved no contact with inmates, and all the duties of which he contended he was able to perform, and in fact had been performing for several years, notwithstanding his knee condition. Id., at 1130. He argued that the ADA required the state to accommodate him by allowing him to remain on tower duty.
Just as in the present case, the court in Martin thus was asked to decide whether the essential functions of a corrections officer, for purposes of the ADA, could be defined with reference to one particular post within the larger job description. The court found that "[t]he State has articulated a legitimate interest in having all corrections officers be capable of performing duties at all positions, in particular, the ability to respond to disturbances or prison riots." Id. at 1132. Even if responding to emergency situations was a rare occurrence, it was, nevertheless, legitimate to consider this an essential function of all corrections officers. Accordingly, the court held that the ADA does not require the creation of a permanent light-duty position to accommodate a disabled corrections officer. Id.
The Tenth Circuit in Martin relied in part on a Seventh Circuit decision which held that a substantially blind correctional officer who was able to perform the duties of only two of the posts through which correctional officers normally rotated was not a "qualified individual" for the purposes of the ADA. See Miller v. Illinois Dept. of Corrections, 107 F.3d 483 (7th Cir. 1997). The court in Miller reasoned that "it seems to us . . . that if an employer has a legitimate reason for specifying multiple duties for a particular job classification, duties the occupant of the position is expected to rotate through, a disabled employee will not be qualified for the position unless he can perform enough of these duties to enable a judgment that he can perform its essential duties." Id., at 485. The court then emphasized that "[t]his is provided that the employer has a valid reason for requiring multiple abilities." Id. As relevant to the facts of the present case, the court found that there was a valid need for a prison to "be able to call upon its full staff of correctional officers for help in putting down a prison riot . . . ." Id. at 485. At a minimum, then, ability to assist in such circumstances it was willing to include as among the essential functions of a corrections officer. Id. at 486.
The Ninth Circuit similarly addressed the issue of what constitutes the "essential functions" of a corrections officer in Kees v. Wallenstein, 161 F.3d 1196 (9th Cir. 1998). There the plaintiffs all had disabilities that permitted them to perform the majority of the tasks normally associated with some of the posts to which correction officers were assigned (for example, the "control room"), but not, any tasks that involved direct inmate contact. Id., at 1198. The plaintiffs sought to be accommodated by being permanently assigned to the control room where inmate contact was at a minimum. Id. The district court's grant of summary judgment for the defendants was affirmed, insofar as the Court or Appeals here again recognized that jail security depends upon the ability of corrections officers, including those in the "control room," to restrain inmates during an emergency. Id. at 1199.
In the present case, I note that no specific evidence has been presented that all CO I's are required to rotate among posts. But the logic of Martin, Kees and Miller is not thereby constrained. Rather, these cases stand for the proposition that it is legitimate to require all corrections officers to be able to physically restrain inmates in an emergency situation, a position I find compelling. My inquiry focuses, then, on the questions of (i) whether the ability to physically restrain inmates in an emergency situation is in fact required of all CO I's by the Massachusetts DOC, and (ii) whether Marsolais can be found to possess such ability.
As noted above, among the duties listed in the DOC's 1987 written specification for the CO I position, is that of "maintain[ing] custodial care and control of inmates by escorting or transporting them under restraint." In addition, the supplemental description produced by the DOC for this case adds to the list "responding to emergency situations . . . by having the ability to properly use firearms, use force/restraints . . . ." Marsolais has not provided any evidence that a corrections officer assigned to the tower or other "light duty" post is exempted from such duties. Accordingly, and following the logic of the cases discussed above, I find that emergency response is included among the "essential functions of all CO I's in Massachusetts, wherever posted.
If the ability to respond to emergencies by physically restraining inmates is an essential function of the CO I job at all posts, it remains to be determined if Marsolais has presented sufficient evidence, to survive a motion for summary judgment, that he is able to physically restrain inmates. While the first independent medical examiner found that Marsolais could perform all the functions of his previous job, the second independent medical examiner found that because of his physical condition, Marsolais would be unable to restrain inmates safely. Marsolais' own doctor, Dr. Bertini, consistently asserted that Marsolais was able to perform the duties associated with the Tower position but apparently did not consider physically restraining inmates to be one of those duties. He reported in an undated "Statement of Applicant's Physician in Connection with Application for Disability Retirement" that Marsolais was likely permanently unable to perform the duties of his previous job.
Marsolais himself communicated that he had unspecified "medical restrictions" that would have to be accommodated for him to accept a new position with the DOC. Furthermore, his former attorney conceded that "[i]t is clear from the impartial physician's report and the various notes and reports of Dr. Bertini that Brian Marsolais is not capable of the full duties of correction officer without accommodation." Both sets of statements presumably refer to Marsolais' inability to safely restrain inmates due to his back condition. Marsolais has presented no contrary evidence to show that he communicated to the DOC that he was able or willing to restrain inmates in case of an emergency, or to perform any inmate contact that is otherwise an essential part of the posts to which he sought assignment. Thus, I find that he has not presented sufficient evidence from which a reasonable jury could find that he is able to perform the essential functions of the job of CO I, and therefore I conclude as a matter of law he is not a qualified individual for purposes of the ADA.
B. Is Plaintiff an "Individual with a Disability" Under the ADA?
As the discussion set forth in Section IV.A., supra, demonstrates, the gravamen of the plaintiff's claim is that if the job of CO I were to be restyled for him to avoid inmate contact (and according to the shifts and days off he would prefer) he could and would do it. Conspicuous by its absence in the record is any indication that he has a back problem that "substantially limits" one or more of the major life activities. The most that can be said is that it interferes with the job of Corrections Officer as he would like to perform it. But, as an alternative ground for judgment, I note that Toyota Motor teaches that the proper inquiry is whether the claimant is unable to perform tasks "central to most people's daily lives," not tasks associated with a specific job. 122 S.Ct. at 693.
Marsolais does not undertake to show he is unable to work in a broad range of jobs beyond the specific one he seeks. Sutton v. United Airlines, Inc., 527 U.S. 471, 492 (1999). Indeed, his interactions with the Department of Corrections make clear that it is only a narrow type of job for which he considers himself disabled. More fundamentally, the record does not, apart from plaintiff's suggestion of problems with job tasks, provide evidence that he has "an impairment that [prevents or severely restricts [him] from doing activities that are of central importance to most people's daily lives [which is] permanent or long term." Toyota Motor, 122 S.Ct. at 691. The lack of evidence in both regards is fatal to his ADA claim under Toyota Motor.
V. Conclusion
For the reasons set forth more fully above, the defendant's motion for summary judgment is hereby GRANTED with regard to the federal ADA claim, (Count I). Because the Eleventh Amendment prohibits a plaintiff from suing a state under state law in federal court absent a waiver, I hereby DISMISS the state law claims (Counts II and III).