Douglas Godfrey vs. Globe Newspaper Company, Inc.
Case Details
- Citation
- 457 Mass. 113
- Procedural Posture — the stage the case had reached
- summary judgment
- State
- Massachusetts
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Supreme Judicial Court of Massachusetts affirmed summary judgment in favor of Globe Newspaper Company on the plaintiff's disability discrimination claims under Massachusetts law. The court held that the plaintiff failed to establish he was a 'qualified handicapped person' capable of performing the essential functions of his assistant press foreman position (climbing on presses), and that any accommodations requested were either already provided or unreasonable.
Excerpt
Douglas Godfrey vs. Globe Newspaper Company, Inc. Suffolk. February 11, 2010. June 16, 2010. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Termination of employment, Handicap. Employment, Discrimination, Termination. Handicapped Persons. Practice, Civil, Summary judgment. Words, “Qualified handicapped person,” “Essential functions.” Discussion of the standard of review applicable to a grant of summary judgment in an action alleging discrimination in employment. [118-119] Discussion of the elements necessary to establish a prima facie case of discrimination in employment on the basis of handicap [119-120]. In a civil action alleging discrimination in employment on the basis of handicap, the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff did not establish that he was a qualified handicapped person within the meaning of G. L. c. 151B, § 1 (16), in that there was no material dispute (based on the plaintiff’s concession in his response to the defendant’s statement of undisputed facts) that the plaintiff could not perform an essential function of his job [120-121]; further, there was no material question of disputed fact whether a reasonable accommodation was possible, in that, with regard to the plaintiff’s initial request for an accommodation of a reduced schedule, he received the accommodation he sought, even without demonstrating that he was a qualified handicapped person or that the accommodation requested was reasonable [122-123], and in that an accommodation that the plaintiff sought after he had been terminated from his position was not reasonable, given that it would necessitate the creation of a position that did not require essential functions that the plaintiff could not perform or an assignment to a new position altogether [123-125]. In a civil action alleging discrimination in employment on the basis of handicap, the judge properly granted summary judgment in favor of the defendant employer on a claim that the employer violated G. L. c. 151B, § 4 (16), by failing to offer the plaintiff placement in a light-duty position, where the plaintiff did not establish that the employer had a policy of placing injured employees in light-duty positions on return from workers’ compensation leave. [125-126] In a civil action in which the plaintiff claimed that the reason offered for the termination of his employment was a pretext for discrimination on the ground of his disability, in violation of the workers’ compensation act, G. L. c. 152, § 75B, the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff could not establish that he was a qualified handicapped person within the meaning of the statute. [126-127] Civil action commenced in the Superior Court Department on January 28, 2005. The case was heard by Paul E. Troy, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Mark W. Batten for the defendant. Paul H. Merry (Andrea L. Haas with him) for the plaintiff. Cowin, J. The plaintiff was disabled as a result of injuries sustained during the course of his employment. He contends that he is a qualified handicapped person under G. L. c. 151B, § 1 (16), and that, in violation of G. L. c. 151B, § 4 (16), his employer refused to offer him a reasonable accommodation to enable him to continue to work as an assistant press foreman after his injury. In addition, the plaintiff claims that, shortly after he requested such accommodation, his employment was terminated and the reasons offered for his discharge were a pretext for unlawful discrimination under G. L. c. 15IB. He contends also that his employer contravened provisions of the workers’ compensation act by discriminating against him because of his disability, in violation of G. L. c. 152, § 75B. Following the dismissal of his complaint by the Massachusetts Commission Against Discrimination, the plaintiff filed a complaint in the Superior Court. See G. L. c. 151B, §§ 5, 9; Everett v. 357 Corp., 453 Mass. 585, 599-600 (2009). Summary judgment in favor of the defendant was granted on all counts. Background. We summarize the facts derived from the summary judgment record, relying primarily on the parties’ statements of undisputed facts, see Rule 9A(b)(5) of the Rules of the Superior Court (2004), and reserving certain facts for later discussion in "conjunction with specific issues. The facts are undisputed except as noted. The plaintiff, Douglas Godfrey, worked for the defendant, Globe Newspaper Company, Inc. (Globe), for over twenty years. He started in 1977 as a substitute newspaper handler, later worked as a press operator (pressman), and became an assistant press foreman in 1997. The position of pressman consisted of loading and operating the presses to produce the printed newspapers and involved frequent climbing on the machinery. While the assistant press foreman position involved supervision of a “crew” of pressmen, it also required climbing on the presses to ensure that the paper was loaded properly and to resolve production problems. In January, 2002, the plaintiff slipped on oil while working on the printing floor and was seriously injured. He was placed on extended medical leave and was out of work for most of the following one and one-half years. While on leave, the plaintiff underwent multiple surgeries on his shoulder and knee, the last one in March, 2003. Throughout this period, pursuant to its policy for supervisory employees injured on the job, the Globe continued to pay the plaintiff his full salary. In turn, the Globe required that the plaintiff remit to the Globe all workers’ compensation payments that he received that related to the injury. Although still in pain, the plaintiff returned to work on June 3, 2003. He asserts that he brought with him a letter from his physician stating that he was unable to work for more than five hours at a time and that his work schedule should be limited to five hours per day.® The plaintiff claims that he showed this letter to Frank Volpe, the general foreman, who derided the plaintiff and took no action on the plaintiff’s request. The plaintiff states further that another assistant press foreman, James Alexander, took the letter from the plaintiff, tore it up while Volpe watched, and said that if the plaintiff was unable to work a full shift, he should not have come back to work. The plaintiff continued working until July 21, 2003, but suffered severe pain and had to leave early or not report to work a minimum of several days each week. At his deposition, the plaintiff was unable to recall how frequently he left work early, but stated that he believed he had not worked even three days per week for the entire seven-week period. He did not recall any occasion on which his request to leave early was denied. His condition continued to deteriorate, and on July 21,2003, he took another leave due to workplace injury pursuant to the terms of the workers’ compensation act. On August 11, 2003, while on leave, the plaintiff was asked to come to work and meet with Globe managers concerning the remittance of workers’ compensation checks that the plaintiff had not signed over to the Globe. On August 13, 2003, the plaintiff was examined by a physician employed by the Globe’s workers’ compensation insurer. The physician’s report, dated August 14, 2003, states that the plaintiff was unable to work at all at that time. On August 20, 2003, the plaintiff was informed by letter that his employment was terminated because of his failure to return the workers’ compensation payments. After his termination, the plaintiff underwent additional surgeries on both of his knees during 2004. A letter from a workers’ compensation physician in November, 2004, stated that, if his condition continued to improve, the plaintiff might be able to return to work as a full-time pressman. In December, 2004, more than fifteen months after the termination, and without acknowledging that his employment had been terminated, the plaintiff sent a letter to the Globe seeking an “accommodation to permit [his] return” to work. The letter asserted that the plaintiff believed light-duty positions existed that would not require him to stand or climb on the presses. The Globe declined to offer the plaintiff the sedentary position he sought (or, indeed, any position). In January, 2005, after his complaint before the Massachusetts Commission Against Discrimination was dismissed for lack of probable cause, the plaintiff filed a complaint in the Superior Court alleging unlawful discrimination in employment under G. L. c. 15IB (count I); failure to give preference in hiring under the terms of the workers’ compensation act, G. L. c. 152, § 75A (count II); unlawful discrimination because of the filing of the workers’ compensation claim, G. L. c. 152, § 75B (count HI); defamation (count IV); wrongful termination in violation of public policy based on complaints to the Occupational Safety and Health Administration concerning workplace safety conditions at the Globe (count V); and invasion of privacy (count VE).’ A judge in the Superior Court granted the Globe’s motion for summary judgment on all claims. The plaintiff appealed from the ensuing final judgment as to count I (discrimination due to disability), count II (failure to give preference in hiring), and count HI (discrimination for exercising rights under the workers’ compensation act). The Appeals Court affirmed the motion judge’s decision on the preferential hiring claim, but vacated the judge’s decision on the two unlawful discrimination claims. See Godfrey v. Boston Globe Newspaper, Inc., 73 Mass. App. Ct. 1123 (2009). We allowed the defendant’s petition for further appellate review with respect to the plaintiff’s claims on counts I and III, and we affirm the judge’s decision on both counts. Discussion. The plaintiff argues that, when he returned to work in June, 2003, he was denied the reasonable accommodation he sought to enable him to perform his duties as an assistant press foreman, in violation of G. L. c. 151B, § 4; that, because no reasonable accommodation was offered, he was forced to take a second workers’ compensation leave; and that, shortly after he exercised his rights under the workers’ compensation act at the end of July, 2003, and without engaging in any discussion of possible reasonable accommodations, the Globe terminated his employment, in violation of both G. L. c. 151B, § 4, and G. L. c. 152, § 75B. The plaintiff contends that the reason offered by the Globe for the termination was a pretext for unlawful discrimination because of his physical disability and his exercise of rights under the workers’ compensation act. Asserting that there are genuine issues of material fact concerning whether he is a “qualified handicapped person” under the terms of both statutes, the plaintiff contends that the judge erred in granting the Globe’s motion for summary judgment on both the G. L. c. 151B, § 4, and G. L. c. 152, § 75B, claims. The Globe contends that there is no material dispute of fact and that the judge determined correctly that the plaintiff is not a “qualified handicapped person” pursuant to G. L. c. 151B, § 4, and G. L. c. 152, § 75B. The Globe maintains also that, because the plaintiff is not entitled to protection under either statute, it is not necessary to determine whether the reason for the termination of employment was a pretext. The Globe asserts also that it terminated the plaintiff’s employment not because of his disability or his exercise of rights under the workers’ compensation act, but because he failed to remit to the Globe more than one year’s worth of workers’ compensation checks. 1. Standard of review. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002). In deciding a motion for summary judgment, the motion judge must consider all factual allegations, and draw all reasonable inferences therefrom, in favor of the nonmoving party. See Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 242-243 (2007). We review the material evidence in the light most favorable to the nonmoving party. See Correia v. Fagan, 452 Mass. 120,130 (2008). Summary judgment is generally disfavored in cases involving employment discrimination because the question of intent requires a credibility determination. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-440 (1995). Nonetheless, summary judgment on an employment discrimination claim may at times be appropriate. See Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 705 (1992); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 438 (1989). 2. Discrimination in employment on the basis of disability. Pursuant to G. L. c. 15IB, § 4 (16), it is unlawful for an employer “to dismiss from employment or 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.” A “qualified handicapped person” is one 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 a reasonable accommodation to his handicap.” See G. L. c. 151B, § 1 (16). A “qualified handicapped person” is entitled to a “reasonable accommodation” that will enable him to perform the essential functions of his job, so long as the accommodation does not place an undue burden or hardship on the employer. See G. L. c. 151B, § 4 (16); Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383, 386 n.3 (1993). The employee bears the initial burden of producing some evidence that an accommodation that would allow him or her to perform the essential functions of the position would be possible, and therefore that he or she is a “qualified handicapped person.” See id. at 386 n.3. Once an employee “make[s] at least a facial showing that reasonable accommodation is possible,” the burden of proof (of both production and persuasion) shifts to the employer to establish that a suggested accommodation would impose an undue hardship. See id. If the accommodation proposed by the employee appears unduly onerous, the employer has an obligation to work with the employee to determine whether another accommodation is possible. See Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 603-604 & n.19 (2004). To establish a prima facie case of employment discrimination on the basis of handicap under G. L. c. 15IB, § 4 (16), the plaintiff must show that he is “handicapped” within the meaning of the statute; that he is a “qualified handicapped person” capable of performing the essential functions of his job either without accommodation or with a reasonable accommodation; and that he was subject to an adverse employment action because of his handicap. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002). Since the parties do not dispute that the plaintiff is “handicapped” within the meaning of the statute, we turn to whether he is a “qualified handicapped person.” a. Essential job function. The plaintiff contends that there is a material dispute of fact whether climbing on the newspaper presses (a task that he admits he was incapable of performing in the summer of 2003) is an “essential function” of his position as an assistant press foreman. The plaintiff argues that, although climbing on the presses is an essential job function for a press operator, most of the duties of an assistant press foreman involve supervision of the press “crew” and troubleshooting rather than physically adjusting the presses. This argument is unavailing. Based on the plaintiff’s own statement during the summary judgment proceedings, there is no factual dispute concerning an assistant press foreman’s essential job functions. The Globe asserted in its statement of undisputed material facts, filed with its motion for summary judgment, see Rule 9A(b)(5) of the Rules of the Superior Court, that “[c]limb-ing on the presses is an essential function of the job, both for a journeyman pressman and for the assistant foreman position that [the plaintiff] held.” In his response to that statement, the plaintiff replied that that fact was “[u]ndisputed.” The plaintiff is correct that whether a particular job duty is an “essential job function” is “intensely fact-based,” requiring “individualized inquiry and . . . appropriate findings of fact.” See Cargill v. Harvard Univ., supra at 587-588, quoting Cox v. New England Tel. & Tel. Co., supra at 383-384. The plaintiff is also correct that evidence in the record disputes whether climbing on the presses was an essential function of an assistant press foreman. However, this evidence cannot overcome the plaintiff’s concession in his response to the statement of undisputed facts and thus does not create a material dispute of fact. See Mass. R. Civ. R 56 (c), as amended, 436 Mass. 1404 (2002); Curly Customs, Inc. v. Bank of Boston, N.A., 49 Mass. App. Ct. 197, 199 n.2 (2000). If the statement of undisputed facts is to have any meaning, the motion judge must be able to rely on it. See Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34, 46 n.18 (2005), quoting Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399 (2002) (Rule 9A[b][5] “ ‘is an “anti-ferreting” rule designed to assist a trial judge in the all too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge,’ who must then determine whether the record contains any material facts in dispute”). b. Reasonable accommodation. The plaintiff maintains that, even if climbing is an essential function, there is a material question of disputed fact whether a reasonable accommodation was possible. He argues that the Globe failed to consider two accommodations he sought, either assignment to a shorter work day or placement in a light-duty position. He asserts further that, on those occasions when climbing was necessary, he need not have climbed the presses but rather could have instructed another employee regarding the needed adjustments. He states that a determination whether such accommodations would have been unduly burdensome to the Globe requires a trial. (i) Initial request for accommodation. We consider first the question of reasonable accommodation from the time the plaintiff initially requested one on June 3, 2003, until he went on leave at the end of July, 2003. According to his doctor, at that point the plaintiff was capable of working for five hours per day. The plaintiff testified that he sought an accommodation of a reduced schedule. See Russell v. Cooley Dickinson Hosp., Inc., supra at 457, quoting Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert, denied, 519 U.S. 1029 (1996) (employee has initial burden to request reasonable accommodation in order to be able to perform his existing position). The plaintiff testified further that this request was effectively denied when the press room supervisor stood by as an assistant press foreman ripped up the doctor’s letter and told the plaintiff that if he could not work full time, he should not have returned to work. The plaintiff continued to work less than three shifts per week for the next seven weeks; he admits that he never worked a full week during that period. In addition, the plaintiff left work early on numer
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