Discrimination Cases

Gilles Dube vs. Middlesex Corporation & others. No. 01-P-761. Middlesex. April 3, 2003. October 24, 2003. Present: Mason, Kantrowttz, & Doerfer, JJ. Handicapped Persons. Employment, Discrimination, Termination, Retaliation. In an employment discrimination action, a Superior Court judge properly granted summary judgment to the defendant employer, where the plaintiff, who had performed truck driving and construction work for the defendant, had no chance of proving that he was laid off for a “handicap” as that term is used in G. L. c. 151B, § 1(17)(«), rather than a legitimate business reason, because the limitation in the range of motion of the plaintiff’s right arm, which interfered with his ability to operate a two-stick truck, did not constitute a substantial limitation of the plaintiff’s major life activity of working, either in his work for the defendant, or in his subsequent construetian and truck driving employment [737-738]; likewise, the plaintiff neither had a “record of such impairment” under G. L. c. 151B, § 1(17)(¿>), based on damage suffered to his arm [738], nor was he “regarded as having such impairment” under G. L. c. 151B, § l(17)(c), where the defendant did not misapprehend limitations based on a misconception of a disability the defendant perceived that the plaintiff suffered, but instead provided him with some accommodations he requested [738-739]. This court concluded that a plaintiff in an employment discrimination action had waived any claims of error based on a theory of retaliation which he had not properly raised below, and that, in any event, the record lacked support for a retaliation claim. [739-741] Civil action commenced in the Superior Court Department on June 9, 1998. The case was heard by Wendie I. Gershengom, J., on a motion for summary judgment. James R. Tewhey for the plaintiff. Kay H. Hodge for the defendants. Alfred S. Aponas and John Cavatorta. Doerfer, J. The plaintiff, Gilíes Dube, suffered some permanent impairment in the use of his right arm due to a motorcycle accident in 1985. He worked for the defendant, Middlesex Corporation (Middlesex), doing construction and driving a truck from 1989 to 1995. He claims that he suffered employment discrimination in violation of G. L. c. 151B, § 4(16), when he was not rehired in the spring of 1996 after what he claims was a seasonal layoff. Middlesex claimed that the plaintiff quit before the end of the work season in 1996, as a consequence of which he was not rehired in the spring. A Superior Court judge granted summary judgment to Middlesex on the ground that the plaintiff had no chance of proving that he was not laid off for a legitimate business reason. We affirm the judgment, but on the ground that plaintiff was not, on the summary judgment record, a “handicapped person” as that term is used in G. L. c. 151B, § 1(17). Facts. We take the facts from the summary judgment record in the light most favorable to the plaintiff. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The plaintiff suffered an injury to his right arm in 1985 when the dirt bike he was riding went over a bump, and he went over the handlebars. This crash dislocated his shoulder, broke three fingers, and produced a compound fracture of the right humerus, just below the ball where the arm connects into the shoulder socket. The shattered humerus protruded into the arm pit, cut the biceps and severed the musculotaneous nerve, tore the brachial plexus, and injured the ulna and radial nerves. Limited range of motion and significantly reduced strength resulted. He was treated surgically, including a nerve graft four months after the injury. The graft proved unsuccessful. He was in rehabilitative therapy for two years. He remains partially paralyzed in the upper right quadrant, with loss of muscle function and significant atrophy. As a result of the compound fracture healing imperfectly, the arm does not sit correctly in the shoulder socket. He had been employed at the time of the accident, following which he was out of work for two years. He did not return to his former employment because he could not manipulate large boxes due to limitations of movement in his arm, and because a more senior employee had taken over his former position. He took a job at Erickson Construction in 1987, where he drove a truck, operated a backhoe, and did regular construction work. At that job, he lifted bales, rocks, shovels, and rakes. He testified at his deposition that the more he used his arm, the stronger it got. He left Erickson Construction to take a job in sales, but resigned because he wasn’t getting enough exercise for his arm. Following the sales job, Dube worked for Middlesex from 1989 through 1995. Subsequent to Middlesex, he has continued to work in construction: laboring, driving trucks, and operating construction equipment. He was a backhoe operator for New England Remediation seasonally from June, 1996, to November, 1996, and a truck driver and backhoe operator for Leighton White, seasonally from March, 1997, until his deposition in 1999. At his deposition, he admitted that he had no trouble walking, seeing, speaking, or breathing; that he could lift, stand, sit, think, and hear. He cannot throw a baseball or raise his arm fully. He claimed that he is unable to operate a truck with two stick shifts, but agreed that he could manage if he had to for a drive or two. His doctor told him to keep working hard to improve his arm. In his job application, he did not describe anything he could not physically do. He passed the test given by the Department of Transportation in 1996 and 1998 for driving a truck of the type supplied for him by Middlesex. His claim to be handicapped arises out of the limitation in the range of motion of his right arm, which interferes with his ability to operate a two-stick truck. If he is provided with a special arm rest for a single-stick truck, this impairment, he claims, is accommodated and enables him to operate a single-stick truck. At an August, 1994, meeting to discuss Dube’s work performanee, Middlesex suggested installing an armrest in Dube’s truck to make his driving more comfortable. The armrest was installed in 1994, but Dube had it removed, complaining that it was in his way and that he hurt himself. During his deposition, he testified that he repeatedly requested it be reinstalled, but that Middlesex did not reinstall it until the following season, 1995. Dube also repeatedly requested assignment only to single-stick trucks and to construction where he could perform more manual labor than when doing paving work. He was not assigned exclusively either to construction or to single-stick trucks. 1. Plaintiff had no “handicap” as that term is used in G. L. c. 151B. General Laws c. 151B, § 4(16), inserted by St. 1983, c. 533, § 6, states in material part that it is an unlawful practice for an 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 . . . .” “Handicap” means “(a) a physical or mental impairment which substantially limits one or more major fife activities of a person; (b) record of having such impairment; or (c) being regarded as having such impairment.” G. L. c. 151B, § 1(17), as amended by St. 1989, c. 722, § 11. A “qualified handicapped person” is 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.” G. L. c. 151B, § 1(16), as inserted by St. 1983, c. 533, § 2. The evidence, even viewed most favorably to the plaintiff, cannot support a reasonable inference that any of the plaintiff’s major fife activities are substantially limited. He does not allege a substantial limitation in any major life activity other than certain aspects of his working, and he admits that he is able to accomplish strenuous physical labor in spite of the motion, flexibility, and strength limitations of his right arm. While the parties have not cited, and we have not found, any Massachusetts case law discussing substantial limitations in the major life activity of working, considerable Federal authority has construed the analogous Federal disability discrimination statutes. “When the major fife activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999). This case is analogous to Mowat v. Transportation Unlimited, Inc., 984 F.2d 230, 230-232 (8th Cir. 1992), where a truck driver whose work-related shoulder injury prevented him from lifting objects over his head (an essential job function) was fired and subsequently was continuously employed driving trucks in positions that did not require such lifting was not entitled to protection by the Iowa disability statutes because he could not show a substantial limitation in obtaining satisfactory employment; his injury was not generally disabling and did not prevent him from working as a truck driver. Dube was not substantially limited in working for Middlesex, and the record does not show that he has been substantially limited in his subsequent construction and truck driving employment. See Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir. 1994), cert. denied, 513 U.S. 1152 (1995) (independent of the employee’s inability to perform the essential functions of the job, the employee’s failure to demonstrate any significant restriction in performing a class of jobs or a broad range of jobs in various classes was fatal to his Federal disability discrimination claim; summary judgment for employer affirmed). See generally Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995) (“[T]he inability to perform one aspect of a [single] job while retaining the ability to perform the work in general does not amount to substantial limitation of the activity of working”). Neither did he have a “record of such impairment” as used in § l(17)(h). The intent of the record of disability prong is to prevent discrimination based on a history of disability, and it requires a substantial limitation of a major life activity.. Where records of impairments show no greater record limitations than a plaintiff’s continuing impairments, if the continuing impairments are insufficiently limiting with regard to major life activities to qualify plaintiff as disabled, then the record of impairments will also fail. Colwell v. Suffolk County Police Dept., 158 F.3d 635, 645 (2d Cir. 1998), cert. denied, 526 U.S. 1018 (1999). Dube has not offered evidence to prove that his damaged arm significantly limits any major fife activity. His claim that he was “regarded as having such impairment” is not borne out by the summary judgment record. His request for accommodation and the delivery of a doctor’s note describing his physical problem did not transform his limitations into ones that impaired a major fife function, because Middlesex did not interpret Dube’s limitations as significantly limiting his ability to work. Contrast Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187-191 (3d Cir. 1999). The “regarded as” prong covers instances where one is discriminated against by an employer who considers the victim to have such an impairment, and requires a mistake — either mistaking whether the employee has an impairment, or mistaking a nonlimiting impairment for one which is substantially limiting. Sutton v. United Air Lines, Inc., 527 U.S. at 489. The purpose of this section is to address inaccurate stereotypes associated with disabilities, and limitations improperly and unfairly imposed on people who are considered to be disabled. In this case, Dube requested accommodations from Middlesex for a damaged arm that he considered a disability. The record shows that Middlesex provided him with some accommodatians, even if not all the ones he requested. He should not now be heard to argue that they inappropriately regarded and treated him as disabled by providing him with accommodations that he asked for when he claimed he was disabled. They did not misapprehend limitations based on a misconception about a disability they perceived he suffered; rather, they took him at his word and accepted his physician’s statements that he was injured, and they tried to work with him, at least to some extent, to accommodate his requests. He was not the victim “of stereotypic assumptions, myths, and fears regarding [his] limitations.” Dahill v. Police Dept. of Boston, 434 Mass. 233, 241 (2001). 2. Other claims. The plaintiff states in a conclusory manner in his appellate brief that “the Superior Court decision completely ignores the plaintiff’s claim of retaliation. The plaintiff’s complaint alleges that the termination was in retaliatian for his complaints and requests for accommodation. Dube became aware of the fact that he had been terminated only in the spring of 1996. He could not have filed a claim of retaliatian prior to his knowledge of the fact that he was being retaliated against. Therefore, that claim must stand.” In his complaint, the only reference to the concept of retaliatian is in paragraph 31 where he states, “Dube believes and therefore avers that he was retaliated against in the terms and conditions of his employment because he is a handicapped person in violation of G. L. c. 151B.” The issue of retaliation was not adequately raised before the Superior Court judge by the plaintiff, a fact pointed out by the defendants both in their brief in support of their motion for summary judgment and in their response to the plaintiff’s opposition to their motion, where they noted that the plaintiff had not alleged any facts in his complaint that would support such a claim. Merely stating in his brief before this court that the Superior Court judge did not deal with the retaliation claim does not constitute reasoned argument in support of that claim. Furthermore, the failure of the Superior Court judge to deal with retaliation is explained by plaintiff’s failure to raise the issue before that court. In these circumstances, the plaintiff has waived any claims of error based upon a theory of retaliation. See Liability Investigative Fund Effort, Inc. v. Massachusetts Med. Professional Ins. Assn., 418 Mass. 436, 441 n.4, cert. denied, 513 U.S. 1058 (1994). In any event, there is no record support for a claim of retaliation. The plaintiff’s requests for accommodation began in 1992 and continued through 1995. He visited the human resource department in 1994. His supervisor expressed displeasure with the plaintiff going over his head in 1994, when Dube sought assistance further up the management chain in his request for reassignment to construction from paving work. Nevertheless, he was rehired for the 1995 season, even after the expression of his supervisor’s displeasure. By then, the previously displeased supervisor had been promoted, and in 1995, Dube not only sought but also received his intercession with the then current general superintendent of construction in order to have Dube transferred back into construction, where he in fact worked for most of the 1995 season. These facts do not support an inference of ongoing animus from the events of 1994 upon which Dube’s claim for retaliation appears to be based. Furthermore, there is no evidence that Dube suffered any other form of adverse job action following close in time to his 1994 complaint to human resources. The failure to rehire him did not occur until the spring of 1996, and the latest request for accommodation to which he attributes the negative employment decision occurred in June,' 1995, nine months earlier. The evidence is too tenuous to support an inference that the failure of the defendant to rehire Dube was based upon retaliation for making a complaint in 1994 to human resources for lack of accommodations, going over his then supervisor’s head in 1994, or requesting accommodations from 1992 through 1995. It is not necessary to address the plaintiff’s other claims on appeal. All such claims depend on being able to show that he is handicapped as that term is used in the statute, which he cannot do. Judgment affirmed. No stipulation of disability should be imputed to an employer who accommodales an employee; “[otherwise, costless accommodations to physical complaints . . . would entail large future costs, would discourage the employment of persons with minor limitations, and would promote litigation without assisting persons entitled to protection of the [disability statutes].” Colwell v. Suffolk County Police Dept., 158 F.3d at 646. Ordinarily, one event following another is not, by itself, sufficient evidence of causality to establish a prima facie case of unlawful retaliation, particularly where, as here, the two events are separated by months, not days. MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996). See Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, 617-618 (1996). See also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (“Action taken ... 20 months later suggests, by itself, no causality at all”).

JOHNNY E. BREWER, Plaintiff-Appellant v. CABARRUS PLASTICS, INC., Defendant-Appellee No. COA00-364-2 (Filed 21 October 2003) 1. Evidence— prior testimony — unavailability of witness— sufficiency of evidence The trial court did not err by denying the admission of former trial testimony in the retrial of an employment discrimination claim. The trial court found that plaintiff presented no evidence of the unavailability of the witness other than the statements of counsel and an unverified motion to use the transcript of prior testimony. N.C.G.S. § 8C-1, Rule 804(b)(1). 2. Employer and Employee— discriminatory discipline — not submitted to jury The trial court erred in an employment discrimination claim by not submitting to the jury the claim of discriminatory discipline. Although the jury found that plaintiff’s termination was not the result of racial discrimination, the issue of discriminatory discipline was not submitted, and plaintiff was entitled to nominal damages upon a finding of discriminatory discipline even if there was no evidence of actual damages. This matter was originally heard in the Court of Appeals on 22 February 2001, on appeal by plaintiff from judgment entered 18 May 1999 and orders entered 14 May and 17 July 1999 by Judge W. Erwin Spainhour in Superior Court, Cabarrus County. An opinion by a divided panel of this Court was filed on 4 September 2001. Defendant appealed as a matter of right to the Supreme Court of North Carolina. Our Supreme Court reversed for the reasons stated in the dissenting opinion and remanded to the Court of Appeals for consideration of plaintiffs remaining issues, in a decision filed 2 May 2003. Julie H. Fosbinder; and Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John W. Gresham, for plaintiff - appellant. Robinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot and Frank H. Lancaster, for defendant-appellee. McGEE, Judge. Following our Court’s decision to award plaintiff a new trial on his employment discrimination claim in Brewer v. Cabarrus Plastics, Inc., 146 N.C. App. 82, 551 S.E.2d 902 (2001) (Brewer II), defendant appealed as a matter of right to the Supreme Court of North Carolina based upon Judge Walker’s dissent. See N.C. Gen. Stat. § 7A-30(2) (2001). The Supreme Court adopted Judge Walker’s dissenting opinion per curiam in reversing this Court’s decision. In adopting Judge Walker’s dissent, the Supreme Court found that the jury instructions, when taken as a whole, presented to the jury the appropriate standards of liability in a pretext case. Id. at 89, 551 S.E.2d at 907. The Supreme Court remanded the case to our Court for consideration of plaintiff’s remaining issues not addressed in our prior opinion. A complete statement of the facts in this case is set forth in our earliest opinion in this matter in Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 504 S.E.2d 580 (1998), disc. review denied, 350 N.C. 91, 527 S.E.2d 662 (1999) (Brewer I). I. Plaintiff argues the trial court in his second trial erred in not admitting the transcript of the testimony of a witness from the first trial of this matter. Plaintiff contends that the efforts of plaintiff’s counsel to procure the testimony of the witness fully satisfied the “unavailability” requirement of N.C. Gen. Stat. § 8C-1, Rule 804. “Admission of evidence is ‘addressed to the sound discretion of the trial court and may be disturbed on appeal only where an abuse of such discretion is clearly shown.’ ” Lane v. R.N. Rouse & Co., 135 N.C. App. 494, 498, 521 S.E.2d 137, 140 (1999) (quoting Sloan v. Miller Building Corp., 128 N.C. App. 37, 45, 493 S.E.2d 460, 465 (1997)), disc. review denied, 351 N.C. 357, 542 S.E.2d 212 (2000). Under an abuse of discretion standard, we defer to the trial court’s discretion and will reverse its decision “only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). N.C. Gen. Stat. § 8C-1, Rule 804(b)(1) (2001) states that former testimony may be admitted into evidence as an exception to the hearsay rule if the witness is unavailable and the [tjestimony [was] given as a witness at another hearing of the same or different proceeding ... if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. “ ‘Unavailability as a witness’ includes situations in which the declarant . . . [i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . by process or other reasonable means.” N.C. Gen. Stat. § 8C-1, Rule 804(a)(5) (2001). The proponent of the evidence bears the burden of establishing the unavailability of the witness. State v. Artis, 325 N.C. 278, 304, 384 S.E.2d 470, 484 (1989), sentence vacated and remanded on other grounds, Artis v. North Carolina, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). The trial court in the case before us specifically found that plaintiff presented no evidence of the unavailability of the witness “other than the statements of counsel and the unverified motion for permission to use the transcript of [the witness’s] prior testimony.” Plaintiff stated in his unverified Rule 804(a)(5) motion that the witness had been contacted and stated that she would be unable to testify at trial. However, the motion did not prove the matters alleged therein and did not constitute evidence of the unavailability of the witness. See Chow v. Crowell, 15 N.C. App. 733, 736, 190 S.E.2d 647, 649 (1972). Plaintiff attached to the motion the letters written to contact the witness and the letters demonstrate efforts to contact the witness, but do not prove the unavailability of the witness. The record shows that plaintiff’s counsel also stated to the trial court that the witness had been contacted and was unavailable to testify. However, plaintiffs counsel presented no evidence to the trial court of the unavailability of the witness. Additionally, in his brief, plaintiff fails to point this Court to any evidence showing that the witness was unavailable and has failed to meet his burden of proving the unavailability of the witness. The record contains a signed affidavit of plaintiff’s counsel dated 21 May 1999 stating that defense counsel had been informed prior to trial that if the witness was unwilling to appear in person to testify, plaintiff would seek to use the witness’s prior trial testimony. However, plaintiff’s Rule 804(a)(5) motion was dated 10 May 1999 and the trial court denied the motion in an order entered 14 May 1999. Since the record shows that the affidavit of plaintiffs counsel was not filed until 21 May 1999, it was not before the trial court for consideration at the time the trial court denied the Rule 804(a)(5) motion. After reviewing the record, we agree with the trial court that plaintiff failed to offer evidence establishing the unavailability of the witness. Accordingly, the trial court did not abuse its discretion in denying the admission of former trial testimony of a witness. This assignment of error is overruled. II. Plaintiff argues the trial court erred in refusing to allow the jury to consider the issue of whether defendant discriminated against plaintiff by disciplining him. Plaintiff contends that there was ample evidence from which a reasonable jury could conclude that plaintiff’s discipline was discriminatory. The trial court “must submit to the jury such issues as when answered by them will resolve all material controversies between the parties, as raised by the pleadings.” Harrison v. McLear, 49 N.C. App. 121, 123, 270 S.E.2d 577, 578 (1980). In the present case, the trial court submitted to the jury plaintiff’s employment termination discrimination claim. However, the resolution of this claim by the jury did not resolve plaintiff’s alleged discriminatory discipline claim. The jury found that plaintiff’s employment termination was not the result of racial discrimination but the issue of discriminatory discipline was never submitted to the jury. Thus, the trial court’s submission to the jury of only the termination claim did not resolve all of the claims in the case. An examination of the trial transcript shows that the trial court did not submit the issue of discriminatory discipline to the jury because it felt there was no evidence presented of actual damages suffered by plaintiff. The United States Supreme Court has determined that the denial of a constitutional right “should be actionable for nominal damages without proof of actual injury.” Carey v. Piphus, 435 U.S. 247, 266-67, 55 L. Ed. 2d 252, 267 (1978) (holding that if civil rights plaintiffs failed to prove actual damages, they would only be entitled to recover nominal damages in the amount of one dollar). The Fourth Circuit Court of Appeals has stated that a claimant is entitled to an award of nominal damages when a claimant establishes the violation of a constitutional right but cannot prove actual injury. Norwood v. Bain, 166 F.3d 243, 245 (4th Cir.) (en banc), cert. denied, 527 U.S. 1005, 144 L. Ed. 2d 239 (1999); Price v. City of Charlotte, North Carolina, 93 F.3d 1241, 1257 (4th Cir. 1996), cert. denied, 520 U.S. 1116, 137 L. Ed. 2d 328 (1997) (police officers awarded one dollar in nominal damages for unconstitutional promotion practices where there was insufficient evidence of actual damages). In order to recover more than nominal damages, actual injury must be proven by sufficient evidence. Price, 93 F.3d at 1250. In the present case, plaintiff has presented sufficient evidence to permit a jury to determine whether defendant disciplined plaintiff for discriminatory reasons. While plaintiff may not have presented sufficient evidence to obtain an award of compensatory damages, plaintiff was entitled to recover nominal damages upon a finding by the jury that defendant discriminated against plaintiff in its disciplinary actions. Accordingly, the trial court erred in failing to submit to the jury plaintiffs claim of discriminatory discipline and he is entitled to a new trial on that issue. No error in part; new trial in part as to claim for discriminatory discipline. Judges WYNN and MARTIN concur.