John Cox vs. New England Telephone and Telegraph Company
Case Details
- Citation
- 414 Mass. 375
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The court affirmed judgment for the defendant employer, finding that the plaintiff, a brain-injured former employee, failed to demonstrate he was a 'qualified handicapped person' capable of performing the essential function of gaff-climbing required for the splice service technician position, and that the employer was not obligated to waive or eliminate this safety-critical requirement as a reasonable accommodation.
Excerpt
John Cox vs. New England Telephone and Telegraph Company. Suffolk. April 6, 1992. February 24, 1993. Present: Liacos. C.J.. Wilkins, Abrams, Nolan, Lynch, O’Connor & Greaney, JJ. Anti-Discrimination Law, Employee, Handicap. Employment, Discrimination. Telephone Company. Handicapped Persons. Words, “Qualified handicapped person.” Discussion of the meaning of the phrase “qualified handicapped person,” as appearing in G. L. c. 151B, § 4 (16), in light of the analogous Federal statute, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988), and cases decided thereunder. [381-384] Discussion of the distinctions in allocation of the burden of proof in employment discrimination cases in which “disparate treatment” is alleged as opposed to those cases involving “disparate impact.” [384-36] In an action involving a claim of employment discrimination on account of handicap under G. L. c. 15IB, the judge correctly ruled that the plaintiff did not sustain his burden of proving that a certain task, gaff climbing a telephone pole to a certain height, was not an essential function of the utility splice service technician position the plaintiff sought. [386-388] Liacos, C.J., with whom Abrams, J., joined, dissenting. In an action involving a claim of employment discrimination on account of handicap under G. L. c. 15IB, the judge correctly ruled that the plaintiff did not sustain his burden of proving that he could perform the essential tasks of the job that he sought, thus he did not demonstrate that he was a “qualified handicapped person” entitled to the protection of that statute. [388-390] Reasonable accommodation by an employer, under the provisions of G. L. c. 151B, § 4 (16), does not require the employer to waive or excuse an employee’s inability to perform an essential job function. [390] In the circumstances of a civil trial, the judge did not abuse his discretion in allowing a defense witness to testify even though the defendant’s responses to discovery requests with respect to the witness’s testimony had been filed late. [390-391] Civil action commenced in the Superior Court Department on April 11, 1988. The case was heard by George C. Keady, Jr., J. The Supreme Judicial Court granted a request for direct appellate review. Harold L. Lichten (Betsy Ehrenberg with him) for the plaintiff. John D. Corrigan, Jr., for the defendant. O’Connor, J. This case involves a claim of employment discrimination on account of handicap. In his amended complaint, the plaintiff, John Cox, makes the following allegations. Before 1983, he was employed by the defendant, New England Telephone and Telegraph Company, as a splice service technician (SST). In November of that year, he was seriously injured in a motor vehicle accident that left him with a permanent brain injury affecting his memory, speech, and reading speed. The plaintiff returned to work in a clerical position. In 1986 and 1987, the plaintiff “bid for [an SST] position” and, “[o]n each occasion [he] was awarded the bid, but did not pass the pole climbing course, solely because of his reading and memory difficulties resulting from his handicap. ... On each occasion, [the] plaintiff consequently was denied the [SST] position.” Subsequently, the plaintiff’s application to become an SST was denied because he had twice failed the pole-climbing course. According to the complaint, the “pole climbing test does not adequately test for the duties of [an SST], and has an adverse impact on handicapped persons with reading or memory disabilities.” Furthermore, “[w]ith reasonable accommodation, [the] plaintiff would have been able to pass the test” but “[a]t no time did [the defendant] offer or attempt to so accommodate [him].” The plaintiff also asserts that, since June, 1986, he “was fully able to perform the duties of [an SST], and as such was a qualified handicapped person within the meaning of [G. L. c. 151B (1990 ed.)].” The plaintiff claims that as a result of the defendant’s failure to award him an SST position, he sustained losses for which, under c. 15IB, he is entitled to compensation. The plaintiff seeks an order awarding him an SST position retroactive to the date of his initial bid, together with money damages. This case was tried in the Superior Court by a judge without a jury. The judge found that the defendant “is not liable for unlawful discrimination under [G. L.] c. 15IB,” and he ordered the entry of a judgment for the defendant. The plaintiff appealed, and we then granted his application for direct appellate review. We now affirm the judgment. We recite the pertinent findings set forth in the judge’s memorandum of findings and decision. In 1982 and 1983 the plaintiff worked for the defendant as an SST, a position that required pole climbing. Before becoming an SST, the plaintiff successfully completed the defendant’s safe pole-climbing course, including lessons on gaff climbing. “The purpose of the course is to train prospective SSTs to climb telephone poles safely. There are four ways of ascending and descending a pole, to wit: (a) by use of a ladder, (b) by use of steps built into the pole (long spikes protruding from the pole at various heights and on both sides), (c) by use of gaffs (instruments strapped to the legs which have a pointed blade or sticker attached to each so the climber can stick that blade or sticker into the pole), (d) by use of a ‘cherry picker’ (a basket on the end of an electrically maneuvered crane which can take the occupant up or down). “The chief disadvantage of the ladder is a question of availability and size or height. The stepped poles are not always present. They are much more likely to be found in congested, urban areas and not likely to be found in rural or suburban areas. The ‘cherry picker’ is seldom available and cannot be used in close quarters, e.g. rear yards of urban lots.” The judge found that, in November, 1983, the plaintiff sustained multiple serious injuries in a motor vehicle accident, including “a severe closed head injury to the brain stem,” as a result of which his physicians restricted him from pole climbing. The plaintiff returned to work in December, 1984, as a clerk. In June, 1986, he was cleared by his physicians and the defendant from the restriction against climbing poles. Then, in 1986, the plaintiff bid on, and was awarded, a position as an SST, subject to his passing the safe pole-climbing course. The content of the course given in 1986 was the same as the content of the 1982 course that the plaintiff passed. However, in 1986, unlike 1982, there was a requirement that the course be completed within twenty-six hours. “The course consisted of twelve lessons or parts. After a student completed a part he was tested on that part. If he passed it, it was behind him. If one failed a lesson he could repeat the test and pass it as long as he did not repeat a deviation which he had in the prior test.” In a footnote, the judge defined a “deviation” as “a wrong answer if the test only involves questions and answers and a misstep or erroneous movement if the test is physical.” The plaintiff failed the 1986 course because he repeated a deviation. The plaintiff reapplied for an SST position in 1987, and again he was awarded the job subject to his passing the safe pole-climbing course. The plaintiff was to be assigned to the Neponset garage in the Dorchester section of Boston or the garage in the Hyde Park section. The content of the 1982, 1986, and 1987 courses was the same. Also, in 1987, as in 1986, there was a time requirement of twenty-six hours in which to complete the course. The judge found that the first five lessons in 1987 required only reading, and the plaintiff “kept pace with the other students.” The plaintiff successfully completed lessons eleven and twelve, which “consist[ed] of reading plus testing.” “In lesson 6 through 10,” the judge found, “physical acts and maneuvers were required. Actually a substantially less amount of reading was required than in 1 through 5. Lesson 6 and 7 required pole climbing. The latter required lateral movement. [The plaintiff] passed lessons 6, 7 and 8. Lessons 7, 8 and 9 are identical except for the height at which the maneuvers are performed. They require the use of gaffs. So does Lesson 10. “[The plaintiff] did have some difficulty with lesson 8 although as stated he passed. When he reached lesson 9 he was required to climb to a level of 18 feet. He stopped at 14 feet. After staying there for an extended period of time, from 5 to 10 minutes, and after one of the instructors attempted to aid him orally by reminding him of the procedures to be followed, [the plaintiff] came down. The plaintiff never completed parts 9 and 10. Thus he did not pass the course. Having failed to pass the course for the second time, according to regulations promulgated by the defendant, well prior to 1986, the plaintiff is now ineligible to take the Safe Pole Climbing Course again. Therefore he is ineligible to become, an SST.” We continue with our recitation of the judge’s pertinent findings and discussion: “One of the plaintiff’s contentions is that because of where he would be working namely, Dorchester or Hyde Park, he would not have to be proficient in gaff climbing. I find the following facts. Because these areas are urban, a very high percentage of the poles to be climbed would be ‘stepped’ i.e. with the metal spikes affixed, making gaff climbing unnecessary. ‘Cherry pickers’ could be used in most instances, but there are few ‘cherry pickers’ available even in Boston. Ladders are generally not practical because of height. While it happens seldom to SSTs working in Boston, all SSTs employed by the defendant are subject to transfer in case of emergencies, e.g. tornado, hurricane, etc. In case of transfer outside Boston gaff climbing would be a likely need.” The judge also found that, in 1984, the defendant had a study of its safe pole-climbing course made, which resulted in certain changes in the course presentation and in the twenty-six hour completion requirement. He found that “the test taken by the plaintiff is reasonable as to content, method of instruction and the time requirement for completion.” In arriving at his decision in favor of the defendant, the judge reasoned as follows: “To prevail on his claim the plaintiff must show that he is a ‘qualified handicapped person.’ The statute defines a ‘qualified handicapped person’ as one who is able to perform the essential functions of the job, or who would be capable if reasonable accommodations were made for his handicap. [G. L.] c. 15IB, § 1. The plaintiff contends that he is a ‘qualified handicapped person’ because he possesses the ability to perform all the essential functions of the job of an SST. According to the plaintiff, climbing poles with gaffs is not an essential function of an SST position. I disagree. Though pole climbing by means of gaffs may rarely occur in the Dedham-Dorchester area, this skill is necessary if an SST employee is to accomplish his job when called to serve rural areas where unstepped poles are common. It is not unforeseeable that this skill would be necessary during an emergency, or even from time to time in Boston and its suburbs. I am further concerned about the plaintiff’s safety when climbing a stepped pole.” Having determined that the ability to climb with gaffs is essential to the SST position, the judge then found that the only way for an employer to know whether a job applicant has that ability is to observe him or her climbing with gaffs. The judge concluded that the plaintiff had “failed to demonstrate that he can safely climb poles by means of gaffs,” and that the defendant “was not required to eliminate the practicum exam of pole climbing by means of gaffs in order to accommodate the plaintiff.” Finally, the judge rejected the plaintiff’s contention that the defendant should have granted him additional time to accomplish the pole climbing. He reasoned that “[t]he timed testing was designed to increase safety. Accommodating the plaintiff by allotting him more time to accomplish the test would only endanger his job safety. The defendant is not obliged to dispense with reasonable requirements which ensure safety in the workplace.” Satisfied that the plaintiff is not a “qualified handicapped person” within the protection of G. L. c. 151B, the judge ordered judgment for the defendant. General Laws c. 15IB, § 4 (16), provides in material part that it shall be an unlawful practice “[f]or any employer . . . to . . . refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business. . . . Physical or mental job qualification requirement with respect to hiring, promotion, demotion or dismissal from employment or any other change in employment status or responsibilities shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job.” As used in c. 15IB, “[t]he term ‘handicap’ means (a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment.” G. L. c. 15IB, § 1 (17). “The term ‘qualified handicapped person’ means a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” § 1 (16). The judge made no finding with respect to whether the plaintiff was a handicapped person during the relevant time period or as to whether the defendant refused to employ the plaintiff as an SST “because of his handicap.” Instead, the judge focused on whether “the plaintiff . . . show[ed] that he is a ‘qualified handicapped person,’ ” that is, “one who is able to perform the essential functions of the job, or who would be capable if reasonable accommodations were made for his handicap,” and he decided that the plaintiff was not such a person. We, too, shall concentrate on the issue of the plaintiff’s qualifications to be an SST. Since we decide that the judge did not err in concluding that the plaintiff is not a qualified handicapped person, we need not address the questions of the existence of a handicap or of causation. If he is not qualified for the SST job, as the judge determined, he is not entitled to relief under c. 15IB, and the judgment must be affirmed. This is our first opportunity to construe and apply the Commonwealth’s employment discrimination statute, G. L. c. 15IB, in a case in which discrimination on account of handicap is alleged. There is, however, considerable case law construing and applying the analogous Federal statute, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988), and we may look to those decisions for guidance. See White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991) (analysis of a discrimination claim is essentially the same under State and Federal statutes). See generally Note, Employment Discrimination Against the Handicapped: An Analysis of Statutory and Constitutional Protections in Massachusetts, 21 New England L. Rev. 305, 305-332 (1986) (comparing G. L. c. 15IB and § 504). Section 504 of the Rehabilitation Act of 1973 provides in relevant part: “No otherwise qualified individual with handicaps in the. United States, as defined in § 706 (8) of this title, shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by an Executive agency or by the United States Postal Service . . . .” For purposes of § 504 of the Rehabilitation Act, “[i]n the employment context, an otherwise qualified person is one who can perform ‘the essential functions’ of the job in question. 45 C.F.R. § 84.3(k) (1985). When a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any ‘reasonable accommodation’ by the employer would enable the handicapped person to perform those functions. Ibid. Accommodation is not reasonable if it either imposes ‘undue financial and administrative burdens’ on a grantee, Southeastern Community College v. Davis, 442 U.S. [397, 412 (1979)], or requires ‘a fundamental alteration in the nature of [the] program,’ id. at 410.” School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987). Doherty v. Southern College of Optometry, 862 F.2d 570 (6th Cir. 1988). Reasonable accommodation does not require an employer to disregard or waive an employee’s inability to perform an essential function of the job. Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991). Jasany v. United States Postal Serv., 755 F.2d 1244, 1250 (6th Cir. 1985). The term “otherwise qualified individual with handicaps” “refers to a person who is qualified in spite of his or her handicap” (emphasis in original). Doe v. New York Univ., 666 F.2d 761, 775 (2d Cir. 1981). Only if such a person, despite being handicapped, can perform the essential functions of the job, with or without reasonable accommodation, may he or she be entitled to relief. School Bd. of Nassau County v. Arline, supra at 287-288 n.17. Gilbert v. Frank, supra at 641. Hall v. United States Postal Serv., 857 F.2d 1073, 1078-1079 (6th Cir. 1988). Gardner v. Morris, 752 F.2d 1271, 1279-1280 (8th Cir. 1985). Prewitt v. United States Postal Serv., 662 F.2d 292, 305 (5th Cir. 1981). In most cases involving a claim of discrimination in employment on account of handicap, in order to answer the question whether the plaintiff is otherwise qualified, “the [trial judge] will need to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if § 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of [employers] as avoiding exposing others to significant health and safety risks.” School Bd. of Nassau County v. Arline, supra at 287. “Such a determination should be based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved.” Hall v. United States Postal Serv., supra at 1079. The trial judge’s subsidiary findings must stand unless, as a matter of law, they are unwarranted by the evidence, or they are clearly erroneous. Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). Whether, based on those conclusions, a job function is “essential,” Hall, supra at 1079, or an accommodation is “reasonable,” Arneson v. Heckler, 879 F.2d 393 (8th Cir. 1989), is a legal conclusion subject to review. There is no significant distinction between the term “qualified handicapped person,” in G. L. c. 151B, and the term “otherwise qualified individual with handicaps,” in § 504 of the Rehabilitation Act. Indeed, the Federal regulations interpreting the Rehabilitation Act “generally use the term ‘qualified handicapped person,’ rather than ‘otherwise’ qualified handicapped person, on the reasoning that ‘the omission of the word “otherwise” is necessary in order to comport with the intent of the statute because, read literally, “otherwise” qualified handicapped persons include persons who are qualified except for their handicap, rather than in spite of their ha
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