Opinion
15-P-291
02-23-2016
LORRIE PIERCE v. SOMSERSET SCHOOL DEPARTMENT & 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
Alleging employment-based discrimination claims, the plaintiff, Lorrie Pierce, appeals from a summary judgment order that entered in favor of the defendants -- her former public employer, Somerset School Department (Somerset), and former supervisor, Joan DeAngelis, who had been a school principal at the time of the events in question. The essential facts are, as the motion judge determined, undisputed.
Briefly stated, in 2001, Somerset hired Pierce as a paraprofessional and assigned her to the Wilber Elementary School. Apart from working closely with a given classroom teacher, Pierce's duties and responsibilities required her to interact with staff as well as students and their parents. Pierce received excellent performance evaluations. Her claims stem from a twenty-eight month period -- May, 2010, through September 28, 2012, -- when, in the aftermath of her mother having been diagnosed with a serious illness, Pierce suffered from the effects of anxiety, which caused her to take an approved medical leave of absence May 10, 2010.
Pierce returned to work in September of 2010, at the start of the school term. Due to a series of events, cataloged in the summary judgment record, Pierce believed she was a victim of retaliation and a hostile work environment, and informed the Somerset school superintendent, as much. Pierce took another approved medical leave of absence, starting on October 25, 2010. Pierce claims that while on leave she continued to be the subject of retaliation and hostility by school employees. Pierce was out on an approved leave twenty-two months, including the entire 2011-2012 school year. On August 17, 2012, Pierce presented a nurse's note confirming her fitness to return to her employment. In turn, Somerset asked Pierce to provide a letter from her treating physician. Pierce did so, and Somerset offered Pierce a paraprofessional position (working with special needs students) at the Chase Elementary School, which was closer to her residence than the Wilber school. By way of explanation, Somerset informed Pierce that, by the time she had completed the necessary paperwork, her former position at Wilbur had been filled by another individual -- a long-term substitute paraprofessional -- who had capably filled in for Pierce during Pierce's leave of absence in the prior 2011-2012 school year. Pierce's new assignment to the Chase school was, by her own admission, comparable; and as was found by an arbitrator, appropriate and not discriminatory. Pierce rejected the Chase school assignment, and commenced an action in Superior Court, seeking relief under G. L. c. 151B, § 4, and G. L. c. 149, § 185 (Massachusetts whistleblower act).
Based on our de novo review and the familiar Kourouvacilis legal standard, summary judgment properly entered, as a matter of law, in favor of the defendants, Godfrey v. Globe Newspaper Co., 457 Mass. 113, 118 (2010), for the simple but nonetheless determinative reason that Pierce never suffered an "adverse employment action" at the hands of the defendants in this case.
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711, 713-715 (1991).
Our review of a grant of summary judgment is de novo. The record evidence must be viewed in "the light most favorable to the nonmoving party," that is, the plaintiff here. Surabian Realty Co. v. NGM Ins. Co., 462 Mass. 715, 718 (2012). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and responses to requests for admissions . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). "We 'need not rely on the rationale cited [by the motion judge] and may consider any ground supporting the judgment.'" DIRECTV, LLC v. Department of Rev., 470 Mass. 647, 652 (2015), quoting from District Attorney for N. Dist. v. School Comm. of Wayland, 455 Mass. 561, 566 (2009).
Employment discrimination: Handicap. General Laws c. 151B, § 4(16), as amended by St. 1996, c. 262, forbids an employer "to dismiss from employment . . . or otherwise discriminate against" a "qualified handicapped" person because of her handicap. A qualified handicapped person is a person capable of performing the essential functions of the position involved with reasonable accommodation. An employee who seeks protection under § 4(16) must submit a request for a reasonable accommodation, see, e.g., Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443. 457 (2002), to "trigger the employer's obligation to participate in the interactive process" as to a reasonable accommodation. Ibid. See Cargill v. Harvard Univ. 60 Mass. App. Ct. 585, 603 (2004). Based on the record before us, not only did Pierce not make any request for an accommodation but at no time was she ever subjected to discipline (formal or otherwise), a reduction in wages, loss of benefits, an unjust firing or dismissal from her school job, or any adverse personnel filing or report. At no time did any supervisor or school department official implement any measure that "materially disadvantaged" Pierce, such as a termination, suspension, failure to promote, reassignment with significantly different responsibilities, or any other decision resulting in an actionable material change in benefits, or protected terms and conditions of employment. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-708 (2011); O'Brien v. Massachusetts Inst. of Technology, 82 Mass. App. Ct. 905, 909 (2012) (any "action that 'materially disadvantage[s]' a plaintiff is an adverse employment action for purposes of a retaliation claim"). In short, Pierce failed to establish a prima facie case for discrimination, or retaliation, under G. L. c. 151B, § 4(16). The motion judge determined as much, and we concur.
Compare 42 U.S.C. § 12112(b)(4), which includes in its definition of discrimination, "denying equal jobs or benefits to a qualified individual because of the known disability."
For the same reasons and drawing from the careful analysis and reasoning of the motion judge, Pierce cannot maintain, as a matter of law, a § 185 claim, based on the record before us.
The judgment entered by the Superior Court in favor of the defendants is affirmed.
So ordered.
By the Court (Berry, Meade & Maldonado, JJ.)
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 23, 2016.