Elise Russell vs. Cooley Dickinson Hospital, Inc., & another
Case Details
- Citation
- 437 Mass. 443
- Procedural Posture — the stage the case had reached
- summary judgment
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Supreme Judicial Court affirmed summary judgment for the employer hospital, holding that while receipt of workers' compensation disability benefits does not automatically estop an employee from pursuing an ADA/Chapter 151B discrimination claim, the plaintiff failed to demonstrate that the hospital failed to provide reasonable accommodation by declining to create a new position, provide indefinite leave, or assign her to an unrequested position.
Excerpt
Elise Russell vs. Cooley Dickinson Hospital, Inc., & another. Hampshire. March 7, 2002. August 8, 2002. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Handicap, Employment. Employment, Discrimination. Estoppel. Workers’ Compensation Act, Preference in hiring. Words, “Qualified handicapped person.” Pursuit and receipt of workers’ compensation benefits based on an assertion of total temporary disability did not automatically estop a plaintiff from pursuing an action for employment discrimination on the basis of handicap under G. L. c. 151B, § 4 (16), where the plaintiff was able to produce evidence sufficient to raise a question as to her ability, if provided with a reasonable accommodation, to perform the essential functions of the position in question [450-453]; however, summary judgment in favor of the defendant employer was appropriate where the plaintiff did not have any reasonable expectation of establishing that the hospital, by failing to create a new position for her, to provide her with indefinite leave, or to assign her to a position that she did not request, failed to provide her with a reasonable accommodation for her disability [453-458]. A plaintiff in an employment discrimination action failed to demonstrate that her employer denied her the hiring preference to which she was entitled under G. L. c. 152, § 75A [458], and failed to establish the elements of her claims of fraudulent and negligent misrepresentation on the part of her employer [458-459]. Civil action commenced in the Superior Court Department on May 6, 1997. The case was heard by Peter A. Veils, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Susan D. Sachs for the plaintiff. Margaret W. Has san for the defendants. Sharon L. Gasior, director of human resources and employee health from 1994 to 1996, and vice-president of human resources during and after 1996. Ireland, J. This case presents a question of first impression in the Commonwealth: whether an employee who receives workers’ compensation benefits for “temporary total disability” is precluded from claiming that she is a “qualified handicapped person,” capable of performing “the essential functions of the position involved” with or without “reasonable accommodation,” for purposes of claiming employment discrimination under G. L. c. 151B, § 4 (16). A Superior Court judge granted summary judgment for the defendants, concluding that the plaintiff was barred from claiming that she was a “qualified handicapped person” for purposes of bringing an employment discrimination claim because she was receiving disability benefits on the assertion of being “temporarily totally disabled.” The judge further concluded that the defendants did not fail to provide the plaintiff with a reasonable accommodation and, therefore, were entitled to summary judgment on those claims. The plaintiff appealed and we transferred the case to this court on our own motion. The plaintiff claims that the rulings of the Superior Court were erroneous, that she should not have been barred automatically from claiming she was a “qualified handicapped person” simply because of her prior claims for, and receipt of, disability benefits, and that the defendants failed to provide her with a rehabilitation position, leave extension, or reserve position to accommodate her disability, in violation of G. L. c. 151B, § 4 (16). Although we conclude that pursuit, and receipt, of disability benefits based on an assertion of total disability does not automatically estop a plaintiff from pursuing an action for employment discrimination, we affirm the judgments in this case because the plaintiff has no reasonable expectation of showing that Cooley Dickinson Hospital, Inc. (hospital), failed to provide a reasonable accommodation under G. L. c. 151B, § 4 (16). I. Facts. Because an understanding of the facts is critical to an understanding of the results, we set them out in some detail. The plaintiff, Elise Russell, currently works at the hospital as a part-time patient registration and admitting assistant. Russell began her employment at the hospital in the admitting department in 1987, taking a job in another department for a short time, and returning to the admitting department in 1988. Admitting assistants perform various duties associated with the admitting of patients, including entering patient data into the hospital computer system. The relevant job description requires the use of keyboarding, stating that admitting assistants must have “fine motor skills for the effective and efficient handling of writing tools, office equipment . . . and entry of patient data.” On numerous occasions between December, 1991, and September, 1994, the plaintiff reported work-related injuries that caused pain in her upper extremities, neck, or back, which she believed were related to her use of the computer. The hospital responded by adjusting the plaintiff’s work environment in consultation with a physical therapist and specialist treating the plaintiff. Among the changes the hospital made were excusing the plaintiff from working at the reception desk, lowering her desk to a specified height, adjusting the height of her computer, providing new chairs with improved ergonomics, providing a document holder, providing wrist rests, and permanently assigning the plaintiff to the fourth of the admitting clerk stations to accommodate a lighter work volume and to allow the plaintiff to pace herself. The plaintiff took an industrial accident leave of absence from August 31, 1993, to November 24, 1993, for surgery to alleviate some of her symptoms. Her pain, however, persisted when she returned to work. On the advice of her physician, the plaintiff commenced a second leave of absence in September, 1994. The plaintiff received workers’ compensation benefits based on temporary total disability during both of her leaves of absence. The hospital’s third-party administrator of its self-insured workers’ compensation fund, Compco, hired Lucinda Palmer, president of Action Care Management Services, Inc., to manage the plaintiff’s medical treatment and to facilitate her return to work. Palmer reviewed the plaintiff’s medical records, interviewed her, visited and spoke with her regularly, and accompanied her to various medical appointments. She submitted periodic reports to Compco, copies of which she forwarded to the plaintiff’s attorney at the attorney’s request. To meet departmental needs during the plaintiff’s absence, the hospital requested that part-time admitting assistants work additional hours, had the department’s assistant managers cover a shift, and used reserve employees to cover shifts when they were available. In January, 1995, it posted a temporary sixteen-hour a week admitting assistant position to cover some of the plaintiff’s hours. During the winter spanning 1994 to 1995, the plaintiff’s condition improved and she expressed a desire to return to work. Palmer contacted the plaintiff’s supervisor, Janet Mc-Enaney, who indicated that she was willing to allow the plaintiff to return to work on a modified duty basis and to “accommodate [the plaintiff] on a very, gradual and incremental return to work.” As a preliminary step, commonly used to acclimate returning employees still experiencing pain, Palmer scheduled a “work simulation” with an occupational therapist in March, 1995. During the simulation, the plaintiff performed functions that would be required of her at work, including keyboarding. The simulation occurred over a period of weeks, starting with ten minutes of keyboarding and gradually increasing to fifteen minutes. The plaintiff suffered significant pain during the simulations and discontinued them. Palmer reported that, after completing occupational therapy and visiting with physicians, “it was determined that [the plaintiff] is apparently not going to be able to fulfill the functional demands of her job.” Palmer copied the report to the plaintiff’s attorney. The plaintiff did not tell Palmer or anyone at the hospital that she disagreed with the report or that she thought she could perform her job. Palmer then focused her efforts on “vocational rehabilitation” for the plaintiff so that she could learn the skills necessary to perform a different job, not requiring heavy keyboarding or writing. Palmer’s report indicated that the plaintiff agreed with this approach. Palmer then requested, with the plaintiff’s cooperation and the plaintiff’s attorney’s approval, that the Department of Industrial Accidents office of education and vocational rehabilitation categorize the plaintiff as suitable for vocational rehabilitation because of her inability to return to her job. The plaintiff and her attorney participated in the preparation of an individualized work rehabilitation plan. On May 11, 1995, Palmer wrote to the defendant Sharon L. Gasior, inquiring whether the plaintiff could pursue another job at the hospital. The surgeon who operated on the plaintiff’s hand recommended pursuing other positions with the following limitations: “[Fjull time [work] with no continuous use of arms or hands in repetitive tasks, such as keyboarding or writing, for greater than [twenty] minutes. Repetitive tasks need to be followed by a brief rest, and then she must change to a different task. She must perform no repetitive lifting or carrying, and intermittent lifting or carrying is allowed to [fifteen] pounds only.” On May 26, 1995, Palmer, Gasior, and Joyce Boucher, the hospital’s occupational health nurse, met and discussed the possibility of finding the plaintiff a position suiting the limitations set out by her doctor. They concluded that there were no such positions at that time, with the exception of possible reserve positions in the linen or laundry departments. Palmer and Boucher examined the positions in the linen and laundry departments, and concluded that there was no single position that would meet the plaintiff’s restrictions, but that there were functions in the various jobs that the plaintiff could perform. Gasior agreed to consider creating a rehabilitation position of a composite of duties from different positions. Gasior told Palmer that if a rehabilitation position were identified and could be provided, she would inform Palmer or the plaintiff in writing. Gasior consulted with the supervisors in the laundry and linen departments and the director overseeing both departments. The creation of a position comprising the various duties that the plaintiff likely could perform would require oversight by supervisors of both departments. Gasior was unable to resolve the question of a rehabilitation position for the plaintiff until September, 1995. Hospital policy provides that industrial accident leaves of absence are not to exceed one year, the longest leave the hospital provides. The plaintiff was aware of the policy prior to May, 1995, and believed that she would be terminated at the end of her leave if the hospital did not create a rehabilitation position for her. In late July, 1995, Gasior wrote to Palmer stating that she still did not know whether the hospital would be able to provide a rehabilitation position because the issue was still being evaluated. Palmer shared the letter with the plaintiff. On July 28, 1995, the plaintiff told Palmer about the hospital policy regarding leaves of absence, positing that the hospital was “stalling” its response. Palmer conveyed the plaintiff’s concerns to Gasior on August 17, 1995, who responded that if a rehabilitation position were possible it could be provided even after the plaintiff was terminated. Palmer met with the plaintiff and her attorney on August 30, 1995, and the plaintiff expressed her concern that she would be terminated when her leave expired. As a result, Palmer wrote to Gasior requesting that the hospital put the plaintiff back to work in some capacity before her leave expired, or to extend her leave pending determination whether a rehabilitation position would be made available. She also indicated that the plaintiff continued to be evaluated medically to determine what combination of treatment and accommodation would be required to return the plaintiff to work. The letter was silent regarding the plaintiff’s present or future ability to work as an admitting assistant. The plaintiff’s attorney also wrote to Gasior on September 6, 1995, requesting that the hospital not apply its one-year leave policy to the plaintiff, but did not make any claim as to the plaintiff’s ability to perform the duties of an admitting assistant. After returning from vacation, Gasior responded to both letters, notifying Palmer that the rehabilitation position was still under consideration, but that the leave policy would be applied. In fact, however, Gasior extended the plaintiff’s leave for one additional week, during which time she was able to complete her consultations regarding the rehabilitation position, learning that it would not be possible. The plaintiff’s employment was terminated effective September 15, 1995, one week after it would have otherwise expired. The hospital divided the plaintiff’s forty-hour position into two positions, one twenty-four hour position and one sixteen-hour position. Shortly thereafter, one part-time admitting assistant increased her regular hours to twenty-four. The plaintiff began new treatments with a different hand specialist and she noted improvement during the fall of 1995. In early December, 1995, she applied for vacant admitting assistant positions at the hospital in accordance with her doctor’s work clearance. The hospital offered the plaintiff the open sixteen-hour position, pending a work capacity evaluation, which was deferred for additional medical treatment. Once the evaluation was completed in the spring of 1996, the plaintiff’s doctor clarified his work clearance. In August, 1996, the plaintiff began working with restrictions in the sixteen-hour admitting assistant position. Her restrictions limited her to, among other things, no more than thirty minutes at a time of continuous use of arms or hands in repetitive tasks, such as keyboarding or writing, and required that she follow repetitive tasks with a rest and a different task. Since her return to work, the plaintiff has experienced pain and has filed incident reports stating that the pain is work related. The plaintiff also twice applied for additional hours in the admitting department, but these hours were given to another internal applicant with more seniority. She eventually increased her work schedule to twenty-six hours a week. II. Discussion. A. Employment discrimination. To establish a prima facie case for employment discrimination on the basis of handicap, the plaintiff must show that she was terminated, that she is “handicapped,” that she is a “qualified handicapped person,” and that she was terminated because of her handicap. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 7 (1998). The issue in this case is whether the plaintiff is a “qualified handicapped person” under the provisions of G. L. c. 151B, § 1 (16), and G. L. c. 152, § 75B. A “qualified handicapped person” is defined under G. L. c. 151B, § 1 (16), as “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. Estoppel. The defendants argue and the judge concluded that the plaintiff cannot establish that she is a qualified handicapped person because at all relevant times she was collecting disability benefits on the basis of being “temporarily totally disabled.” See G. L. c. 152, § 34. See also Shirley’s Case, 355 Mass. 308, 311 (1969) (total disability shown if disability prevents employee from “performing remunerative work of a substantial and not merely trifling character”); Fennell’s Case, 289 Mass. 89, 94 (1935) (when employee “is disabled from doing some types of work and is unable to obtain work of the type he is able to do,” total incapacity finding warranted). The judge concluded that the plaintiff “filed for and received benefits ... on the basis of temporary total disability during her one-year leave of absence, and thus she is barred from claiming that she was able to perform the essential functions of her job with or without reasonable accommodation. ’’ We reject this conclusion but affirm the grant of summary judgment based on the judge’s alternative reasoning that the plaintiff could not establish that the hospital failed to provide her with a reasonable accommodation. In Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), we faced a similar question. In that case, the defendant maintained that the plaintiff was estopped from bringing a claim for discrimination because he sought disability benefits, through a law firm insurance policy, after his termination from the law firm, suggesting that a plaintiff claiming disability benefits admits that he is totally disabled and, therefore, cannot be a “qualified handicapped person.” Id. at 816. We noted that a majority of courts reject the proposition that seeking benefits automatically disqualifies a plaintiff from bringing a discrimination claim. We stated that “[cjourts are wary of allowing plaintiffs to play ‘fast and loose with the courts’ by claiming to be too disabled to perform the functions of a job and also claiming that they were terminated from their positions despite being able to perform those same functions. . . . However, if the evidence creates a disputed issue of fact whether the handicapped person can perform the essential functions of the job, then estoppel is not appropriate.” (Citations omitted.) Id. Although a claim for benefits is an important factor to be considered in determining whether a fact question exists, the claim for benefits is not automatically dispositive. See id. at 817. The Supreme Court of the United States faced a similar question in Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795 (1999), in which the plaintiff, after seeking and receiving Social Security disability insurance (SSDI) benefits, brought suit against her former employer under the Americans with Disabilities Act of 1990 (ADA). A Federal District Court granted summary judgment to the defendant because, in its view, the plaintiff had conceded that she was “totally disabled” and was estopped from proving an essential element of her ADA claim. Id. at 799. The United States Court of Appeals for the Fifth Circuit affirmed the District Court’s judgment, but stated that a rebuttable presumption of estoppel arises from the application for and receipt of SSDI benefits against a plaintiff suing under the ADA. Id. at 800. The Supreme Court vacated the judgment of the Court of Appeals and remanded for further proceedings, noting that claims under SSDI and the ADA, “in context, . . . are often consistent.” Id. at 797. The pursuit and receipt “of SSDI benefits does not automatically estop the recipient from pursing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA.” Id. at 797-798. The Court reasoned that “[a]n SSA [Social Security Administration] representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely T am disabled for purposes of the Social Security Act.’ ” Id. at 802. For example, the SSA does not take account of the possibility of “reasonable accommodation” when determining whether an individual is disabled for SSDI purposes. Id. at 803. “[A]n ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without i
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