Hyde v. Fricker's USA, LLC

Jean Boise Cargill vs. Harvard University. No. 01-P-917. Middlesex. April 7, 2003. March 8, 2004. Present: Rapoza, Cowin, & Berry, JJ. Anti-Discrimination Law, Employee, Handicap. Employment, Discrimination. Handicapped Persons. Practice, Civil, Summary judgment. Words, .“Essential functions.” Discussion of the analytic framework used to determine the “essential functions” of a job, as that term is used in G. L. c. 151B, § 4(16), which prohibits discrimination against handicapped persons in the workplace. [594-597] In an action alleging employment discrimination on the basis of handicap, a Superior Court judge erred in granting summary judgment in favor of the defendant employer, where the record revealed sharply conflicting evidence whether certain duties were “essential functions” of the plaintiff’s job, thereby presenting genuine issues of material fact for trial [597-603], and where the defendant employer failed to establish that the accommodation proposed by the plaintiff would cause undue hardship or be otherwise unreasonable [603-604], This court concluded that a plaintiff alleging employment discrimination on the basis of handicap in violation of G. L. c. 151B, § 4(16), could not, so long as her c. 15 IB claim remained viable, pursue a remedy under G. L. c. 93, § 103, the Massachusetts Equal Rights Act. [604] Civil action commenced in the Superior Court Department on June 27, 1997. The case was heard by Herman J. Smith, Jr., J., on a motion for summary judgment, and motions for reconsideration were heard by him. Betsy L. Ehrenberg for the plaintiff. David C. Casey {James M. Hankins with him) for the defendant. Berry, J. The central contested question in this appeal requires consideration of the legal standards and evidentiary criteria for determining the “essential functions” of a job as that term is used in G. L. c. 151B, § 4(16), which prohibits discrimination against qualified handicapped persons. To establish a violation of G. L. c. 151B, § 4(16), proof is required that (1) the plaintiff is handicapped within the meaning of the statute; (2) the plaintiff is a “qualified handicapped person” (meaning that, notwithstanding the handicap, the plaintiff can perform the essential functions of the job, either [a] without accommodation, or [b] with a reasonable accommodation provided by the employer, subject to the statutory qualification that the accommodation not pose an undue hardship upon the employer); and (3) the handicap was the cause of the allegedly unlawful discriminatory action. See New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 461-462 (2003), quoting from G. L. c. 151B, § 4(16). See also Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997); Dahill v. Police Dept. of Boston, 434 Mass. 233, 243 (2001). As G. L. c. 15IB, § 4(16), and the applicable case law make clear, a significant question may involve the determination of precisely what the essential functions of the subject job are — that is, what skills must be possessed by, and what work activities necessarily must be performed by, an employee in order to accomplish the principal objectives of the job. See Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383-384 (1993). This case involves the dismissal of the plaintiff, Jean Boise Cargill, from her employment as the lead reference librarian for the five clustered botany libraries that comprise the Herbaria collection at Harvard University (Harvard). There is no dispute in this case (as Harvard acknowledges) that Cargill, who suffers from rheumatoid arthritis, is handicapped within the meaning of G. L. c. 151B, § 4(16). Nor is there any dispute that Cargill — who holds a doctorate in botany and a master’s degree in library science and worked for eleven years in the Herbaria library system, culminating in her promotion to lead reference librarian — possesses the requisite academic and professional qualifications for the position. Rather, the crux of the dispute revolves around issues of material fact concerning whether, among the multiplex activities performed by the lead reference librarian, it was essential that Cargill perform two particular tasks in order to accomplish the fundamental and principal objectives of the position, and whether, and the degree to which, Harvard had any obligation to make an accommodation for Cargill’s handicap. Specifically, the conflicting summary judgment materials concern (1) whether, in addition to the relatively cerebral and academic research and reference functions of the reference librarian position, two more physically oriented tasks — referred to as paging/retrieval and shelving, both of which entailed the manual labor of carrying books and materials (sometimes quite heavy) in and about the archival collections and lifting and shelving them to the respective collection stacks — were also essential functions; and (2) whether, if such paging/retrieval and shelving of books were deemed to be essential functions, Cargill could have performed these functions with a reasonable accommodation — an aspect of the matter that Cargill contends Harvard failed to consider. The question of essential function is intensely fact-based and requires “individualized inquiry and . . . appropriate findings of fact.” Cox v. New England Tel. & Tel. Co., 414 Mass. at 383, quoting from School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987). The fact finder must analyze the question in accord with the legal standards and evidentiary criteria set forth in the case law and regulations addressed herein. Following our independent review, we determine that the grant of summary judgment, issued in a third decision of the Superior Court, was in error. We are of the opinion that the record presents significant and genuine issues of disputed material fact, both as to whether paging/retrieval and shelving constitute essential functions of the reference librarian job and, if so, whether a reasonable accommodation could have been tailored without undue hardship to Harvard. Moreover, there was error of law in the lower court’s failure to apply the appropriate legal standards and evidentiary criteria that govern these determinations. 1. Factual background. Because of the factual nature of the required inquiry into essential function, we set forth the record background in some detail in order to describe the main work activities of the reference librarian; what paging/retrieval and shelving entail; and the interactions between Cargill and Harvard concerning her handicap in connection with the tasks of paging/retrieval and shelving. As required when reviewing a grant of summary judgment, we “view[] the evidence in the light most favorable to the nonmoving party.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). A. The reference librarian position. At the executive level of the Herbaria library staff are the head librarian and the lead reference librarian, the latter position being the one Cargill held. There are four additional full-time employees: three library assistants and a cataloger. This full-time staff of six is supplemented by part-time employees, including Harvard students, some of whom are work-study students and other part-time workers. (Both the full-time library staff and these part-time employees have access to the collection stacks and perform the tasks of paging/retrieval and shelving, which are further described below.) The record submissions emphasize the reference librarian’s duties to provide academic-based research and reference assistance to scholars seeking sources within the vast array of Herbaria materials — principally patrons who visit the library, but also nonresident scholars who submit written inquiries to the reference librarian. See note 12 and part 4, infra. The job description does not include paging/retrieval and shelving. See note 12, infra. B. Paging/retrieval and shelving within the library structure. Because of the balkanized layout of the Herbaria library collections, which are housed in five libraries in three different locations, the paging/retrieval and shelving of books and materials require movement among several buildings and within the nooks and crannies of the various collection stacks, including climbing up and down stairs. Such physical activities — walking, climbing, carrying, and lifting — are too painful for Cargill to perform on a sustained and regular basis because of her rheumatoid arthritis. Requests for books and archival materials to be paged and retrieved occur as follows. Certain patrons of the Herbaria have stack privileges, while others do not. Cargill avers that, “few if any applicants for stack[s] privileges at the Botany Libraries . . . did not receive privileges, as the vast majority of applicants were student and staff members of the department.” In any event, if a particular library visitor who did not have stack privileges requested a book or archival material, a member of the library staff would then go into the stacks to retrieve the article requested. Generally, paging and retrieval did not require immediate action. Rather, as Cargill described the process, “[f]ar more common[] . . . [were] reference questions from professors or students and, along with the request, a timeframe — one day to many days — within which the user needed or desired my response. As a matter of Library policy, archive visits required an appointment and/or a written request in advance.” The second activity at issue, shelving, simply means the return of books and materials to the collection stacks and the placement of new additions within the collections. While paging and retrieval are done on an as-needed basis in response to a patron’s request, it appears from the record that shelving is performed on a daily basis. C. Cargill’s interactions with Harvard regarding the two tasks and her handicap. As previously noted, Cargill worked for the Herbaria for eleven years in various librarian positions, culminating in her promotion to lead reference librarian. From all that appears in the record, Cargill’s rheumatoid arthritis did not, during the prior years of her job tenure in any of these librarian positions, negatively affect her ability to work in the Herbaria. However, given the progressively degenerative nature of rheumatoid arthritis, in early 1996, Cargill brought to the attention of various Harvard officials that the disease was, at this time, extremely painful and physically exhausting to her on those days when she was required, on a sustained basis, to carry, lift, and shelve materials, especially heavy books. During a series of meetings, commencing in January, 1996, and continuing to October, 1996, Cargill also raised the issue of having Harvard fashion an accommodation to reduce the requirements of regularly carrying books and materials, climbing the stairs, and, then, lifting these articles to the shelves in the collection stacks. Viewed in the light most favorable to Cargill, the record reflects the following material interactions between Cargill and Harvard officials concerning her disability — certain of which are challenged by Harvard, posing additional disputed issues of fact. At a staff meeting in January, 1996, the head librarian, Judith Wamement, commented that botany books and materials were not being shelved quickly enough. Cargill explained that shelving was causing her pain and was exhausting and requested that more of the shelving work be assigned to the student and part-time workers. That proposal was not adopted. On February 13, 1996, Cargill met with Wamement to discuss her performance goals and objectives. At that meeting Cargill discussed the issues raised by her rheumatoid arthritis. She told Wamement that she was planning to meet with Harvard’s disability coordinator. On February 23, 1996, Wamement continued Cargill’s annual performance review. (This meeting with Wamement took place after Cargill had met with Harvard’s disability coordinator.) Wamement again raised the topic of shelving and, in particular, told Cargill that the shelving cart had to be cleared at day’s end, even if it meant that Cargill were required to stay late. Cargill requested that she be permitted to do the shelving first thing in the morning instead of at 5:00 p.m. Notwithstanding that Cargill’s disability was clearly an issue at this point, Wamement rejected this suggestion and, then, handwrote the words “shelving/paging in timely way” in the margin of Cargill’s performance plan. It appears from the record that this handwritten emendation was an addition, as the two tasks do not otherwise appear in the printed performance assessment form used for the performance evaluation. On February 16, 1996, Cargill met with Marie Trottier, Harvard’s disability coordinator. Per Trottier’s request, Dr. Mark Robbins, Cargill’s treating physician, submitted a letter, dated March 5, 1996, concerning her condition. In his letter, Dr. Robbins provided his diagnosis of rheumatoid arthritis and further stated that he was “writing on her behalf to seek some accommodation for her in her work place for her joint pain and functional limitations. Specifically, she should not be lifting more than ten pounds with her hands and wrists, or [be] on her feet for long periods.” In another encounter, Cargill told Wamement that she had met with Trottier to address a potential accommodation for Cargill’s handicap and Wamement commented to Cargill that the budget did not include funds for making accommodations to the allocated work. In addition to the disability coordinator, Cargill also met with an official from the office of human resources and with a personnel officer. However, as of April, 1996, the situation was at an impasse. Harvard’s position apparently remained that Cargill was required to page books when called upon to do so and to shelve books on a daily basis. Cargill responded that she simply could not continue to do these two tasks regularly. Harvard proposed no accommodation. Instead, Harvard suggested that Cargill consider short-term disability leave. Cargill’s understanding was that, during the short-term leave, the subject of a reasonable accommodation for her position would be explored. Cargill accepted the interim measure and began receiving short-term disability benefits on April 24, 1996. The short-term disability benefits ended on October 24, 1996. During the temporary disability leave, Cargill continued to press Harvard for an accommodation. To this end, on July 15, 1996, Cargill wrote to one Harvard official expressing frustration as to “why Harvard has not yet honored my request for reasonable accommodation with any appreciable response . . . . ” Cargill’s letter proposed alternatives and ended as follows, “[rjight now, I am open-minded as to how this matter might be resolved. ... I remain flexible and entertain the notion that the best idea is yet to come.” On August 8, 1996, Harvard responded to Cargill’s July 15 letter. Although it was now close to seven months from the time Cargill initially requested an accommodation (with such a request for accommodation having been repeated in Dr. Robbins’s March 5 letter) it appears that Harvard treated Cargill’s July 15 letter as if it were a first-time request for an accommodation. A human resources official, after thanking Cargill for her letter, wrote, ‘T am acknowledging the [July 15, 1996] letter as a written request that you would like your position as Reference Librarian in the Botany Libraries of the Harvard University Herbaria to be evaluated for reasonable accommodation for a disability.” Then, on September 6, 1996, Harvard again (notwithstanding receipt of the physician’s prior letter of diagnosis and reference to the need for an accommodation to address the disability) sent another letter to Dr. Robbins requesting he provide his medical diagnosis concerning Cargill’s condition and the need for any accommodation. The doctor forwarded a second letter on September 17, 1996, in which he reconfirmed the diagnosis of rheumatoid arthritis. It is interesting to note that the physician advised Harvard that he was not in a position to craft an appropriate accommodation. Specifically, he stated that “I need to make it clear at the outset that my role as a rheumatologist is in treating inflammatory arthritis and although it is common for me to have to comment on disability and function, the level of detail that you are requesting may be beyond realistic expectations because I do not observe the patient functioning at her work place.” He further stated, “[Cargill] has intermittent flares of her disease that make it quite painful for her to be lifting, carrying things, walking or standing. The exact length of time depends upon the particular day, the state of her joints, how swollen and painful they are for that day, week or month.” While observing that Cargill could not endure such lifting and carrying on a sustained and regular basis because of “the cumulative effect of standing, walking, lifting, bending across the day,” the doctor opined that Cargill “can walk short distances .... can climb stairs, that she can step up on a stool, [but that] shelving by lifting her arms up over her head with objects that are more than several pounds . . . will be difficult.” Ultimately, the doctor opined that Cargill could continue to work and “to perform work that is predominant[ly] sedentary and seated or desk based with limited periods of time of walking short distances [and] standing.” From Harvard’s perspective, Cargill’s requests for desk-based work (and her acceptance of long-term disability benefits) substantiated its position that she could no longer perform the essential functions of the job. Given the many intellectual and academic-based functions of the lead reference librarian, a reasonable fact finder could infer from the physician’s letter, as well as from Cargill’s letter, that she could continue to perform the academic-based functions from a desk-based position. See parts 4 and 5, infra. In any event, Harvard made no reply to Dr. Robbins’s September 17 letter, and for all intents and purposes, as relevant to summary judgment, the dialogue between Cargill and Harvard ended. A letter from Harvard dated October 24, 1996, noted that Cargill was applying for long-term disability benefits and stated that “consultation with you and your physician did not identify any reasonable accommodation that would enable you to perform the essential functions of your position in the Herbaria,” and accordingly, Harvard was “no longer holding [her] position as Reference/Archives Librarian in the Botany Libraries of the Harvard University Herbaria.” 2. Essential functions. General Laws c. 151B, § 4(16), does not define the term “essential functions.” In giving content to the term, the Supreme Judicial Court has looked to both the Massachusetts Commission Against Discrimination (MCAD) guidelines and to Federal case law and regulations. With respect to the MCAD guidelines as an informing source, the court has observed that, “[g]uidance provided by the Massachusetts Commission Against Discrimination (MCAD) ... is also illuminating. . . . The guidelines represent the MCAD’s interpretation of G. L. c. 151B, and are entitled to substantial deference, even though they do not carry the force of law.” Dahill v. Police Dept. of Boston, 434 Mass. at 239. Accord New Bedford v. Massachusetts Comma. Against Discrimination, 440 Mass. at 464-465. The pertinent MCAD guideline provides that “[t]he ‘essential functions’ of the job are those functions which must necessarily be performed by an employee in order to accomplish the principal objectives of the job.” MCAD Guidelines: Employment Discrimination on the Basis of Handicap Chapter 15IB, § n.B (1998). The Federal courts define “essential functions” along similar lines. “An essential function is a ‘fundamental job dut[y]’ of the employment position