Opinion
14-P-1905 14-P-1911
11-13-2015
ALBERT TEMPLETON v. MANSFIELD PUBLIC SCHOOLS & another (and a companion case).
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
Following the consolidation of these related employment discrimination actions, a judge of the Superior Court allowed the defendants' motions for summary judgment on all claims. We affirm.
We review de novo under the applicable standards. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38-39 (2005); Godfrey v. Globe Newspaper Co., 457 Mass. 113, 118-119 (2010). In evaluating whether the proffered evidence was sufficient to withstand the defendants' motions for summary judgment, we employ the familiar burden-shifting paradigm. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 39-40.
1. Facts. The operative facts of record are undisputed. Commencing in 1996, Albert Templeton and Roberta Bluhm, a couple (collectively the plaintiffs), worked for the Mansfield Public Schools (MPS) as custodians. In 2010, as a result of a budget shortfall identified for the upcoming school year, an early retirement incentive program was offered to thirteen custodians who had either reached the age of sixty or had over ten years of experience. The plaintiffs, who were in their sixties working the night shift at the Robinson Elementary School, declined to participate. Another Robinson school custodian, Stu Robbins, age sixty-six, also declined to participate.
Between January, 2009, and March, 2010, Robert LaConte, the MPS supervisor of custodial and facilities use, reduced the night-shift staffing at Robinson from four full-time custodians to two and one-half custodians. In the event of a manpower shortage, the custodian job description permitted a "trash and dash" deviation from the comprehensive cleaning procedure. LaConte, however, instructed the plaintiffs to clean each room every night. Thereafter, LaConte threatened both plaintiffs, who wished to remain together at the Robinson school, with transfer if complaints about the quality of their work continued.
Robinson has the smallest square footage of the five schools operated by MPS and the least demanding custodial needs. LaConte first reassigned Dennis Cloutier to the Roland Green preschool/ administration building to assume the duties of a retiring custodian. On March 15, 2010, LaConte reassigned Stu Robbins to the Qualters Middle School to cover the shift of an injured employee expected to be out on temporary disability for three to five months. Within two weeks of Robbins's transfer, LaConte instructed custodian Christopher Mitchell to spend half his time assisting the plaintiffs at the Robinson school. However, of those four hours, only two were spent helping the plaintiffs.
By letter dated March 30, 2010, to the Mansfield school committee, the plaintiffs protested the "very stressful situation," accused LaConte of trying to force them into retirement, and requested an opportunity to speak with the committee "to try and rectify the situation." The plaintiffs further claimed that after the reduction in staff, they were cleaning almost the entire Robinson school, and finding that the task of cleaning the school to the "district['s] standards impossible."
The plaintiffs' request to meet was granted. During separate interviews, the plaintiffs were told they would be involuntarily transferred. At the end of the school year, Bluhm was transferred to the Jordan/Jackson Elementary School, the only Mansfield school certified by the State Department of Public Health to have good air quality, and Templeton was transferred to Qualters Middle School, where he had worked previously.
Bluhm suffers from chronic lung disease that causes breathing difficulties,and Templeton has serious heart conditions. Although Templeton had no formal job restrictions placed on him by his doctor, LaConte had noticed Templeton's frailty and instructed him not to climb ladders. For purposes of summary judgment, the defendants did not dispute that the plaintiffs were qualified handicapped persons within the meaning of our antidiscrimination statute. See G. L. c. 151B, § 1(16).
The plaintiffs filed these actions in Superior Court after having fulfilled the requirement for filing their complaints with the Massachusetts Commission Against Discrimination (MCAD), alleging that MPS and LaConte had engaged in unlawful age and disability discrimination. On separate dates in 2013, the plaintiffs voluntarily retired without force or coercion from the defendants.
Templeton subsequently amended his complaint to add a claim of retaliation arising from a suspension for smoking marijuana.
2. Discussion. a. Adverse action. The plaintiffs maintain that the defendants unlawfully discriminated against them on the basis of their ages and disabilities and refused to grant them reasonable accommodations. See G. L. c. 151B, §§ 4(1C), 4(16), & 9. In order to succeed on these claims, the plaintiffs must establish as part of their prima facie cases that they were subjected to an adverse employment action. See Godfrey v. Globe Newspaper Co., 457 Mass. at 120. Some of their allegations of adverse actions here are either unsupported by the record or do not rise to the level of material disadvantages required to sustain the claims. See MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (2006) (adverse employment action is change in objective terms and conditions of employment that materially disadvantages employee). On the other hand, other allegations, though disputed by the defendants, including the reduction in staffing levels without a concomitant reduction in the plaintiffs' job duties and repeated threats and unfair reprimands culminating in involuntary transfers, are supported by their testimony. The plaintiffs' burdens of production at the first-stage of the order of proof are not heavy. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 40. We conclude that a jury reasonably could find, if they believed the plaintiffs' version of events, that the defendants took adverse action against the plaintiffs. See King v. Boston, 71 Mass. App. Ct. 460, 468-470 (2008)(question of the materiality of the benefit could not be decided as matter of law). Compare Ritchie v. Department of State Police, 60 Mass. App. Ct. 655, 665 (2004) (threats of removal); Bray v. Community Newspaper Co., 67 Mass. App. Ct. 42, 44-45 (2006) (unfounded criticism).
b. Pretext. However, even if the plaintiffs have established prima facie cases, they cannot show that the articulated reason for any adverse action was pretextual masking of unlawful discrimination. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 54-55. All actions taken by their employer occurred during a budget crisis resulting in a significant reduction in force. The reduction in staff and reassignment decisions must be considered in this context. MPS's alleged reason for the transfer of the plaintiffs was to provide them with a greater amount of custodial support. In their letter to the school committee, the plaintiffs admitted that the night shifts at all the other schools were better staffed than Robinson.
The plaintiffs do not challenge the defendants' satisfaction of their second stage burden of articulating a nondiscriminatory reason or reasons for the actions and producing credible evidence to support the explanation. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 50.
Twenty-two MPS employees, including fifteen teachers, were laid-off. Although one custodian position was slated for elimination, none was terminated as a result of the decision of Stu Robbins to reevaluate and to accept the retirement package.
The plaintiffs admitted that LaConte believed that the reassignment of Cloutier to a different school was the most effective allocation of resources and that the defendants, for budgetary reasons, were unable to replace the retiring employee.
The temporary transfer of Stu Robbins at age sixty-six after his refusal to take early retirement would not support an inference that the stated reason for the plaintiffs' transfers was false. The defendants' evidence establishes that a temporary substitute was not hired because there was no money in the budget to do so; a Robinson custodian was selected for transfer because that school was the least busy, and Robbins was selected over the plaintiffs because they worked well together as a team.
The defendants' offer of a voluntary early retirement package to the plaintiffs and to Robbins, along with ten other custodians in the protected age category, did not evince age discrimination. See Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. 429, 441 n.26 (2005).
To the extent the plaintiffs suggest the timing was suspicious, Robbins's transfer occurred shortly after the unanticipated injury to an employee. Even if Robbins's transfer was the first time LaConte reassigned a full-time custodian to cover sick leave instead of hiring temporary help, at the time the transfer decision was made, it was undisputed that MPS, faced with a shortfall across all departments, was in the process of cutting positions and expenses. Moreover, even if budget constraints were a "constant issue in MPS, not just in 2010," twenty-two MPS employees eventually lost their jobs that year. The plaintiffs admittedly had no personal knowledge of town finances or the budgetary constraints confronting the defendants in 2010, and there is no evidence regarding the facts and circumstances of other MPS budget crises. The discretionary decision to cover the injured employee's leave with Robbins reveals no hidden animus in the defendants' decision-making.
The plaintiffs' undeveloped evidence regarding the replacement custodians is insufficient to show that the adverse actions were motivated by discriminatory animus. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129-134 (most probative method of proving pretext is proving that similarly situated employees outside the protected status were treated more favorably).
After the plaintiffs' transfer, LaConte staffed the night shift at Robinson with two MPS custodians, Robert Knight, age sixty, and John Christian, age thirty-six (ages also appearing alternatively in the record as "50s and late 30s"). The plaintiffs contended that LaConte permitted these "younger, non-disabled" replacements to clean rooms on alternate nights. Templeton admitted that the decision to transfer the two replacements to Robinson had "absolutely nothing to do with [their] ages." The plaintiffs have adduced no additional facts about the replacements, their circumstances, or their job performances that would allow an appropriate comparison.
c. Failure to accommodate. The plaintiffs cannot show that the defendants either refused to engage in an interactive dialogue required by our law or failed to provide them with reasonable accommodation. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 456-458 (2002). The only accommodation proposed before transfer is set forth within the four corners of the plaintiffs' letter to the school committee. The situation, as described by the plaintiffs, was untenable: as a result of the reduction in staff, the plaintiffs were unable to keep up with the work load and as a result, the defendants were receiving frequent complaints about the cleanliness. Responding to the plaintiffs' "impossible" job situation, the defendants moved them to schools with better custodial support. The duty of accommodation neither required the alteration of district cleaning standards (permitting cleaning of rooms on alternate nights) nor, in the middle of a budget crisis, the acquisition of new help to assist the plaintiffs at Robinson. See Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 405 (2002).
The plaintiffs did not make any direct suggestions about possible accommodations in their letter or at their meetings. As Bluhm testified at her deposition, "all [the letter] says is we wanted to discuss [the situation] with someone." Templeton admitted that while he objected to the proposed transfer at his meeting with LaConte and MPS superintendent Brenda Hodges and said "it was not right," he did not request any specific accommodation or propose an alternative course of action. After concluding Hodges had made up her mind about the transfer, Templeton ended the meeting. Asked what alternatives she proposed to the reduction in staffing, Bluhm, who opposed the transfer, answered, "None. . . . [W]e proposed nothing to [LaConte and Hodges]." She denied asking LaConte to bring in a full-time substitute or replacement, indicating that the plaintiffs "just wanted to do our job to the best of our ability with the two people that we had there without being threatened, without being harassed." Neither plaintiff sought to continue the dialogue about the appropriateness of the transfers.
Where, as here, the plaintiffs working a regular cleaning schedule were unable to adequately clean the school, we fail to see how cleaning rooms on alternate days was a feasible accommodation that would have permitted the plaintiffs to accomplish the essential tasks of their jobs. See Godfrey v. Globe Newspaper Co., 457 Mass. at 120.
Even if Jordan/Jackson and Qualters both had larger footprints than Robinson, neither plaintiff requested post-transfer accommodation with respect to any "greater exertional needs" or increased walking requirements. Elevators were available for use by the plaintiffs. Given the presence of additional custodians at their new assignments, the plaintiffs cleaned approximately the same square footage. Following his transfer, Templeton admitted that his job duties did not change significantly, and while he had some new duties at Qualters, he did not perceive any as "discriminatory or disciplinary in any respect." He was able to perform all duties without accommodation.
At her pretransfer meeting with the defendants, Bluhm presented a short note from her primary care physician, Dr. Bruce Phillips, stating that a transfer "would be deleterious to her health." Dr. Phillips did not explain the medical basis of his opinion. According to Bluhm, Dr. Phillips preferred that Bluhm stay at Robinson because due to the smaller square footage and her greater familiarity with that school less walking would be required.
Bluhm admitted that she cleaned the same number of classrooms and offices as she had at Robinson, that her job duties did not change and were fairly apportioned, and that, following her transfer, LaConte immediately granted her one request for reasonable accommodation. As a matter of choice, Bluhm worked alone on the night shift during the summer months because none of the other custodians elected to do so. Although LaConte screamed at her on her first day of work when she questioned his instruction to work alone, she finished the work day, did not see LaConte again until September, and had no further disputes about working alone during the summer months. While fearful of working alone during those months, she experienced no threats or security problems. The record contains no evidence that Bluhm was unable to perform any of her job duties. She loved her job and liked her coworkers at the Jordan/Jackson school.
At Jordan/Jackson, Bluhm was assigned the new task of cleaning a stairwell. She presented LaConte with a note from Dr. Phillips indicating she was unable to clean in the upwards direction. The note did not request any additional accommodations for walking difficulties.
In sum, on this record, the plaintiffs cannot show they were subjected to an adverse action because of their ages and disabilities.
d. Retaliation. Templeton maintains that he was suspended on or about June 14, 2012 in retaliation for filing a complaint at the MCAD. Given the twenty-month span between his protected conduct and the adverse action, he cannot establish causation, a necessary element of his claim. See G. L. c. 151B, § 4(4); Chi-Sang Poon v. Massachusetts Inst. of Technology, 74 Mass. App. Ct. 185, 199-200 (2009) and cases cited. The claim fails as matter of law.
The suspension was based upon the conclusion of Superintendent Hodges, after an investigation, that Templeton had smoked marijuana in a school closet. Ellen Dumont, a paraprofessional, reported that she was unable to gain entry to the closet, which was shared between two adjacent rooms and was always kept unlocked; it felt like someone was holding the door closed from the inside; when she went around to the second classroom, she observed Templeton leaving the closet; he walked by without responding to her greeting; and as she entered the closet, "the smell of marijuana was overwhelming." Templeton was not assigned to clean the area. Named by Templeton as the culprit, custodian Ray Baptiste denied smoking or being in the closet. Templeton's grievance ended when the union declined to take it to arbitration.
The plaintiffs filed their complaints with the MCAD on September 27, 2010.
Judgments affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk
Entered: November 13, 2015.