Doreen M. Smith vs. Bell Atlantic & another
Case Details
- Citation
- 63 Mass. App. Ct. 702
- Procedural Posture — the stage the case had reached
- jury verdict
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Jury found employer failed to accommodate employee's disability and awarded $207,000 for emotional distress during employment; however, trial judge struck expert opinion and reversed jury awards for future damages ($1.5M) via judgment notwithstanding the verdict, leaving only the emotional distress award intact.
Excerpt
Doreen M. Smith vs. Bell Atlantic & another. No. 03-P-1522. Middlesex. October 4, 2004. - June 10, 2005. Present: Lbnk, Grasso, & Cohen, JJ. Anti-Discrimination Law, Employment, Handicap, Damages. Employment, Discrimination. Evidence, Expert opinion. Massachusetts Commission Against Discrimination. Words, “Qualified handicapped person.” At the trial of a complaint brought by the plaintiff employee pursuant to G. L. c. 151B, § 9, alleging that the defendant employer failed to reasonably accommodate her handicap in violation of G. L. c. 151B, § 4(16), the evidence, taken in the light most favorable to the employee, permitted the jury to find that neither daily presence in the office nor travel was essential to the plaintiff’s employment [711-714], and that allowing the plaintiff to do substantial amounts of her work at home was, in the circumstances, a reasonable accommodation that the defendant failed effectively to implement [714-717]; however, the trial judge was entitled to exercise her discretion to strike the opinion of the employee’s medical expert, which lacked a specific factual foundation to support a causal connection between the employer’s failure to accommodate and the permanent decline in the employee’s health, and properly allowed the employer’s motion for judgment notwithstanding the verdict as to the employee’s claims for front pay and other future damages [717-720], At the trial of a civil action alleging employment discrimination on the basis of handicap, the judge did not err in directing a verdict for the defendant employer on the plaintiff employee’s claim for punitive damages, where on the facts presented, there was no basis for finding that the defendant intentionally or willfully violated the law or that its conduct was evil in motive [720-722]; further, the judge did not abuse her discretion in ruling that the jury’s award of emotional distress damages was grounded in the evidence and within the range of just damages [723-724]; did not err in reducing the plaintiff’s award of attorney’s fees and costs [724-725]; and correctly calculated prejudgment interest [725-726], At the trial of a civil action alleging employment discrimination on the basis of handicap on a continuing violation theory, the judge did not err in allowing the jury to consider events that occurred after the plaintiff had filed her original charge with the Massachusetts Commission Against Discrimination (MCAD), and which were never included in that charge, where nothing in G. L. c. 151B, §§ 5 and 9, required the plaintiff to refile or amend her charge with the MCAD as a prerequisite to relying upon later incidents in support of an ongoing violation. [722-723] Civil action commenced in the Superior Court Department on June 5, 1998. The case was tried before S. Jane Haggerty, J., and a motion for judgment notwithstanding the verdict was heard by her. Laura R. Studen (Shepard Davidson with her) for the plaintiff. Barry A. Guryan for the defendants. NYNEX. Cohen, J. In this action brought pursuant to G. L. c. 151B, § 9, a jury awarded damages to the plaintiff, Doreen Smith, on account of the failure of her employer, the defendant telephone company (company), to reasonably accommodate her handicap, in violation of G. L. c. 151B, § 4(16). After concluding that the opinion of Smith’s medical expert was deficient and had to be struck, the trial judge allowed the company’s motion for judgment notwithstanding the verdict as to Smith’s claims for future damages; however, the judge refused to disturb the jury’s award for emotional distress suffered by Smith while she remained in the company’s employ. Before us are the parties’ cross appeals. Smith’s primary argument is that it was error to strike the opinion of her medical expert on the causal relationship between the company’s failure to accommodate and the permanent decline in her health, and that, therefore, the jury’s awards for front pay and other future damages should be reinstated. She also claims that the judge erred in directing a verdict for the company on her claim for punitive damages, that the judge improperly reduced her requested award of fees and costs, and that prejudgment interest was not properly computed. The company argues that its motion for judgment notwithstanding the verdict should have been allowed in its entirety, because no reasonable jury could find that Smith was a “qualified handicapped person” and because it made accommodations that were reasonable as matter of law. The company also contends that Smith was not entitled to rely upon events that occurred under supervisors who had not been named in the charge Smith filed with the Massachusetts Commission Against Discrimination (MCAD), and that both the jury’s award for emotional distress and the judge’s award of attorney’s fees and costs were excessive. We conclude that all of the challenged rulings were correct and, accordingly, affirm. 1. Factual background. We summarize the facts as the jury could have found them, adding details as needed during our discussion of the issues. From 1978 to 1999, Smith was employed by the company in its various iterations. Over the years, Smith, a college graduate with postgraduate engineering training, performed a number of different jobs and attained the position of “second-level manager.” Smith succeeded in the workplace despite having a significant disability. When she was two years old, Smith contracted polio, and after a long and difficult recovery that included a year in an iron lung and many surgical procedures, she was left with paralysis in one leg and diminished use of the other. As an adult, Smith ambulated using wrist-braced crutches, until 1992, when she began to experience increased fatigue, loss of body strength, and pain. She then started to use a scooter for all but short distances, transporting it in a large van equipped with hand controls and a lift. Eventually, Smith was diagnosed with post polio syndrome (PPS), a degenerative condition affecting some polio survivors. PPS is a consequence of polio’s effects upon nerve cells, some of which die, some of which are infected and weakened, and some of which remain normal. Functioning cells sprout more axons and try to compensate for the lost and weakened cells. Over time, these overworked cells start to die, and the patient experiences the symptoms of PPS. If the patient does not take care to avoid overexertion, PPS may accelerate. Individuals like Smith, who have diminished use of their legs, run the risk that overuse of their arms will result in wear and tear that eventually will compromise their ability to perform daily functions and live independently. In 1993, Smith worked out of the company’s Waltham office, but reported to a supervisor in Marlborough and traveled there on a regular basis. In May of that year, Smith was distressed to learn that she would have to work exclusively at the Marlborough facility. Smith lived in Dedham; her commute to Waltham had been only about twenty minutes, and parking was readily available. The longer drive to Marlborough was more fatiguing, and once she arrived, she often had trouble parking because there was only one van-accessible handicapped parking space, and people would park illegally and block access to her lift. When told of the move, Smith asked that she be allowed to continue using an office in Waltham, but she was required to relocate. She was not given an explanation for the transfer and knew of no reason why it was necessary. From June 21, 1993, until June 17, 1994, Smith was out of work on medical leave, undergoing and recuperating from knee replacement and shoulder surgery. This was not the first time that Smith had taken medical leave for surgical procedures. Between 1978 and 1991, she had several operations, but according to Smith, her medical absences did not cause any work-related problems, no one discussed them with her, and she remained involved with the company while on leave. Her performance evaluations between 1990 and 1993 were favorable, indicating that, with few exceptions, she met or exceeded objectives. During Smith’s June, 1993, to June, 1994, absence, another employee took over her projects. When preparing to return to work, Smith asked if she could come back on a part-time basis (she still needed to attend physical therapy) and do some of her work from home. Her doctor supported her request and wrote a letter to the company’s medical director requesting that Smith’s commuting distance be decreased or that she be allowed to perform some of her duties at home. Robert Olson, Smith’s supervisor, in conjunction with a company physician and the company’s disability advocate, considered her request and agreed to it. Such arrangements were not unprecedented; there were other, nonhandicapped second-level managers who did almost all of their work from home. When Smith returned to work, she was given a “special assignment” to perform asset measurement and planning. Smith’s project involved gathering and analyzing data, preparing reports, and reviewing the utilization of technology. In this position, Smith did not have supervisory responsibilities, but this, too, was not unique; there were other second-level managers on special assignments who did not supervise others. While it was necessary for her to do some traveling to company sites, the basic plan was for Smith to work at home at least two days a week and either at home or in Marlborough on the other days. This arrangement did not work out as Smith had hoped. Because she did not have a home office, she frequently needed to travel to Marlborough to collect and print out data to analyze at home. Early on, Smith requested that she be provided with a computer, but none was forthcoming until 1995 when Olson gave her a laptop that could not reliably run Lotus Notes, an important communications program that she needed for her work. Eventually, Smith purchased her own equipment, including a computer, printer, fax machine, copier, software, and office furniture. She did not seek reimbursement for these items, because she believed that the company would be unwilling to pay for them. Despite her requests, she had no dedicated telephone access from her home to the company’s network until 1997, when the company installed two “POTS” (“plain old telephone service”) lines in her home, one for her fax machine and one for her computer. She was not supplied with high-speed access. Smith’s efforts to avoid wear and tear on her arms by minimizing her driving and the number of “transfers” that she needed to make (e.g., from her scooter to the car and back again) were frustrated by her frequent need to travel to the office and to vendors. She repeatedly informed Olson, the company disability advocate, and company doctors about her difficulties. She asked to be assigned to a location closer to home and, before she acquired it herself, to be given home office equipment. Dr. Birchette-Pierce of the company’s medical department was supportive of Smith’s requests, but changes were not forthcoming. In early 1995, the company had Smith stay out of work for several weeks because Dr. Birchette-Pierce was of the opinion that Smith should not work without accommodation. Then, during the first week of April, 1995, Dr. Ryan, the head of the company’s medical department, called Smith and told her she would be fired unless she came to work the next day — informing her that it was her supervisor’s responsibility to provide accommodations for her, and not the medical department’s. Smith attempted to reach Olson; when she could not, she called the company’s ethics hotline. Again she was informed that it was her supervisor’s responsibility to provide reasonable accommodations. Smith came back to work on April 5, 1995, on a full-time basis. Smith wrote to Olson informing him that failure to change her work location or work arrangements would compromise her health. When they met the following week, Olson told her that he would look into transferring her to a location that was within a one-half hour commute of Dedham. Subsequently, Olson transferred Smith to Boston, where he had other subordinates working for him. While based in Boston, Smith continued to report to Olson, but her commute to Marlborough was reduced to one day a week. Although Smith’s commute was improved by getting an office in Boston, she had considerable difficulty with parking, because her oversized van would not fit into covered garages, and open lots refused to take such a large vehicle. On one day in June, 1995, Smith was unable to find a parking spot that would allow her to gain access to her ramp and retrieve her scooter. She therefore attempted to walk from her van to the office on crutches, but was knocked down by another pedestrian and injured her ankle. This injury kept her out of work until late July, 1995, when she returned, initially part-time, but full-time as of October, 1995. Shoulder surgery resulted in Smith losing considerable time from work during 1996, but in January, 1997, she again resumed full-time duties. In April, 1997, Smith had to have her knee surgery redone. She returned to work on a part-time basis at the end of November, and on a full-time basis the following year. In late 1997 or early 1998, Smith was transferred back to the Marlborough office, where her supervisor was now William Haid. She was assigned to develop measurement packages for new departments, which involved determining what data needed to be tracked and developing a system to collect it. According to Smith, with a functional home office, she could have performed ninety percent of her job at home. As it was, her home office was not adequate to the task. Smith had a friend from work install Lotus Notes on the home computer that she had purchased and, for a short time, that was successful. But then the computer developed a virus, and Smith lost the ability to use the program. When she tried to get help from the company’s information technology people, they refused because the company did not own the computer. Smith called a computer “doctor” and the computer company’s technical support Une. As she attempted to simultaneously hold the telephone and maneuver her computer, she lost her balance and tore her rotator cuff. When Smith informed Haid about issues with her home office, he told her that she needed to address them herself. For example, when she requested that her home be designated a secure site so that she would be permitted access to certain databases, Haid did not object, but said that she should do it herself, even though this was beyond her capacity. Furthermore, under Haid, Smith again found herself stymied in her efforts to restrict her trips to the office. Instead of communicating with her electronically, Haid sometimes would leave notes on her desk, which she would need to retrieve by travehng to Marlborough; when she attempted to participate in meetings by conference call, Haid and others sometimes neglected to call her or failed to caU her back after a break. Haid also once told Smith that people with disabihties have a place in the workplace, but that there are only certain jobs they are quaUfied to do. Smith informed Haid that her lack of resources and support was resulting in a decline in her over-all productivity. She frequently worked extra hours because more time was required to complete the assignments she was given. Haid did not respond to these concerns, but in her 1998 performance appraisal, Smith was told that even though she exceeded expectations in some respects, she did not meet other performance objectives. One of the unmet objectives was to define a “skill set” for telecommuting. Smith had informed Haid that accomplishing that task would require significant training, but he had not offered any support in that regard. In connection with her performance appraisal, Smith also was told that her contributions were not comparable to those of other second-level managers. Smith felt that this was because Haid expected her to be able to set up and maintain her own home office while other managers were not responsible for keeping their computers online. As of January, 1999, Smith again was working part-time, but resumed full-time work in March. By the end of 1999, however, despite the fact that she had always loved her job with the company, Smith came to the conclusion that she no longer could do her work effectively. She was too fatigued to travel and had a serious shoulder injury that required surgery. In June, 2000, after six months of short-term disability, Smith went out on total, permanent disability. She was then forty-seven years old. 2. Procedural background. Smith first pursued legal action against the company in December, 1995, when her requests for accommodations from Olson remained unresolved to her satisfaction. She filed a handicap discrimination charge with the MCAD against the company and Olson, claiming that they were not providing her with reasonable accommodations and had retaliated against her for requesting them. The charge was dismissed by the MCAD in November, 1998, on the ground that there was insufficient information to establish a violation. Meanwhile, in June, 1998, Smith filed a complaint asserting the same claims in Superior Court. As the case proceeded, the issues were narrowed: a judge partially allowed the company’s motion for summary judgment, dismissing Smith’s retaliation claim; and Smith discontinued her claims against Olson. When the case was tried to a jury in May, 2002, it was limited to Smith’s claim against the company for failure reasonably to accommodate her. At the close of the plaintiff’s evidence, the trial judge directed a verdict for the company on Smith’s claim for punitive damages. As for compensatory damages, Smith contended that the company’s failure to provide her with reasonable accommodations not only caused her to suffer emotional distress during the final years of her employment between 1993 and 1999, but also accelerated her physical deterioration to the point where she no longer could work and had to go out on total disability. The case was submitted to the jury on special questions. The jury found that Smith was a qualified handicapped person; that the company failed reasonably to accommodate her by providing her with an adequate home office, but that the company did not fail reasonably to accommodate her by providing her with a shorter commute and parking; and that fair compensation for her emotional distress from 1993 through 1999 was $207,000. The jury also found that the company’s failure reasonably to accommodate Smith was a substantial contributing factor in rendering her unable to work after 1999. They awarded her $1,000,000 for lost future wages; $300,000 for future medical and life care costs; and $200,000 for emotional distress after she ceased working. Before and during the trial, the company objected to the admission of the opinion testimony of Dr. Julie Silver, an expert on PPS and Smith’s treating physician, who stated that the company’s failure to accommodate was the major contributing factor leading to Smith’s rapid deterioration and inability to work. The judge reserved the issue and revisited it on the company’s motion for judgment notwithstanding the verdict, ruling that Dr. Silver’s opinion had to be struck because it was not adequately supported in methodology or fact. The judge further ruled that without Dr. Silver’s opinion there was no basis for any award of future damages. She therefore allowed the company’s motion for judgment notwithstanding the verdict except as to the jury’s award for emotional distress damages during the period of Smith’s employment between 1993 and 1999. On Smith’s motion, the judge awarded her attorney’s fees and costs, but not in the amount requested. The judge declined to award fees and costs incurred at the MCAD prior to the filing of Smith’s law
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