Failure to Accommodate Cases

Police Department of Boston vs. Jill Kavaleski. Suffolk. February 7, 2012. November 6, 2012. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Police, Hiring. Public Employment, Police, Psychiatric examination. Civil Service, Police, Decision of Civil Service Commission, Findings by commission. Administrative Law, Evidence, Findings, Hearing. Discussion of the standard of review applicable to a decision of the Civil Service Commission regarding a public employer’s decision to bypass a candidate for hiring. [688-689] In a proceeding before the Civil Service Commission (commission) challenging the decision of a police department (department) to bypass a candidate for employment as a police officer based on the candidate’s interviews with psychiatrists, the commission erred in considering expert testimony from a different commission proceeding, where the commission did not alert the department that it would be looking to the testimony in that other proceeding and considering it as evidence in the present case, thus depriving the department of an opportunity to contest and respond to that evidence; however, the department was not prejudiced by the commission’s reliance on the testimony from the other proceeding, where there was other substantial and reliable evidence in the record, independent of the testimony from the other proceeding, to support the commission’s decision in the present case. [689-695] Civil action commenced in the Superior Court Department on November 23, 2009. The case was heard by Frank M. Gaziano, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Michael S. Rabieh for the defendant. Nicole I. Taub for the plaintiff. Duffly, J. Since 2005, Jill Kavaleski has sought employment as a police officer with the Boston police department (department). The department has, on three occasions, extended conditional offers of appointment to Kavaleski, each of which was contingent upon her successful completion of a psychological screening process. On each occasion, department psychiatrists found Kavaleski psychologically unqualified for the job, and the department “bypassed” her for appointment as a police officer. See G. L. c. 31, § 27. This case arises from the third such bypass, which Kavaleski appealed to the Civil Service Commission (commission). See G. L. c. 31, § 2 (b). After an evidentiary hearing, the commission concluded that the department had failed to meet its burden of establishing a reasonable justification for bypassing Kavaleski, and ordered that her name be restored to the department’s list of individuals certified for appointment. The department filed an appeal in the Superior Court, see G. L. c. 31, § 44, arguing that, in reaching its decision, the commission had erroneously relied on expert testimony from an unrelated proceeding. A Superior Court judge ruled that the commission had erred and vacated the commission’s order. We granted Kavaleski’s application for direct appellate review. We agree that the commission erred in the manner in which it considered expert testimony from another proceeding. Because the commission’s decision was supported by substantial evidence independent of this extraneous evidence, however, we conclude that the error did not prejudice the department. Accordingly, we reverse the Superior Court judge’s order. Background. Kavaleski is a lifelong resident of Boston. She has received two graduate degrees from a local university, and has for many years been employed by the city of Boston’s veterans’ services department. She has never been diagnosed as having, and has never received treatment for, any psychiatric or psychological disorder or condition. In 2002, Kavaleski applied to be a police officer in New York. She passed that State’s civil service examination, a background investigation, and psychological screening, and was offered a position with the New York City police department. She declined that offer. In 2005, she applied for a position as a police officer with the department. As is required of all applicants, Kavaleski completed the department’s lengthy application packet, which requires extensive disclosures about many aspects of an applicant’s life. She also submitted the required letters of reference, cooperated with a background investigation, and took a civil service examination administered by the Commonwealth’s human resources division (HRD). Kavaleski passed the examination, and according to the commission, her references were “of the highest order.” The commission summarized Kavaleski’s references as describing “a dedicated and passionate person committed to public or community service, who exercises responsibility, good judgment and common sense in the completion of her tasks.” In 2006, Kavaleski twice received a conditional offer of appointment from the department, but on each occasion was “bypassed” after being deemed psychologically unqualified by department psychiatrists. In early 2007, the department extended a third conditional offer of appointment to Kavaleski. The sole condition of the third offer was, again, that Kavaleski successfully complete the department’s psychological screening process. The department’s psychological screening process has three “phases.” In “Phase I,” candidates for employment must take two standardized tests: the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Personality Assessment Inventory (PAI). In “Phase II,” candidates meet with one of the department’s psychiatrists for a thirty-minute clinical interview (first-level interview). Before the interview, the psychiatrist reviews the candidate’s MMPI-2 and PAI test results as well as material from the department’s background investigation, the candidate’s medical history, and information provided by the candidate in a biographical questionnaire. During the interview, the psychiatrist conducts a “mental status examination,” explores any areas of concern raised by the testing and biographical data, and evaluates possible areas of “psychological vulnerability as it pertains to the essential functions of the police officer position. ” If this process raises no “suitability issues,” the psychiatrist will report to the department in writing that the candidate is psychologically suitable for appointment as a police officer. If the psychiatrist identifies areas requiring further inquiry, he or she will prepare a written report outlining the specific concerns and refer the candidate to “Phase IH” of the screening process, a “second opinion psychiatric interview” (second-level interview). A different psychiatrist conducts the second-level interview. The second psychiatrist reviews the report from the first-level interview, as well as the test results and background material reviewed initially by the first psychiatrist. The second psychiatrist then conducts an “in-depth clinical interview” and makes a final written recommendation to the department regarding any “psychological/behavioral issues that would interfere with the applicant’s performance of the essential job functions” of being a police officer. The entire screening process operates in accordance with rules promulgated by HRD. Those rules define the medical standards that a municipal police officer in the Commonwealth must meet, and sort disqualifying medical or psychiatric conditions into two categories. A “Category A” condition is one “that would preclude an individual from performing the essential job functions of a municipal police officer or present a significant risk to the safety and health of that individual or others.” A “Category B” condition is one that, “based on its severity or degree, may or may not preclude an individual from performing the essential job functions of a municipal police officer, or present a significant risk to the safety and health of that individual or others.” As noted, at the time of her appeal, Kavaleski had undergone the department’s psychological screening process three times, and had completed the MMPI-2 and PAI during each round of screening. Both tests were scored automatically, using Kavales-ki’s responses to create a computer-generated report of her psychological “profile.” According to the MMPI-2 reports from Kavaleski’s first two rounds of testing, she produced “invalid” profiles because her responses were “too defensive to permit an adequate assessment of her psychological adjustment.” In both rounds of screening, the first and second psychiatrists who evaluated Kavaleski after reviewing these “invalid” profiles reported that Kavaleski was defensive, guarded, or “interpersonally stiff.” The psychiatrists also took note of Kavaleski’s appearance, describing her as thin, with hair that was “messy” or “unkempt.” In the third round of testing, Kavaleski’s responses produced a “valid” MMPI-2 profile. The computer-generated profile indicated that Kavaleski had “[ijndorsed” certain test questions, known as “critical items,” in the areas of acute anxiety, somatic symptoms, anxiety and tension, and deviant beliefs. A similar computer-generated report based on Kavaleski’s responses to the PAI noted that Kavaleski presented a “[l]ow risk” in the “[pjsychological rating risk factor” category, and that she had indorsed critical items relating to drug problems, anxiety, persecution, and aggressive attitude. Dr. Marcia Scott, who had interviewed Kavaleski in a previous round of screening, conducted Kavaleski’s first-level interview on March 20, 2007. Scott reported that Kavaleski was “less guarded” than she had been in previous interviews, and was “able to respond appropriately to relevant personal questions.” Scott also made various observations about Kavaleski’s weight and appearance, noting Kavaleski’s “almost cache[c]tic body” and “messy” hair. Scott concluded her report by stating that Kavaleski “is a steady controlled person but has very limited self-awareness, little understanding of her motivations or emotional limitations and inflexible approaches to both internal and external stresses.” Scott stated that Kavaleski’s “capacity to evaluate situations and make effective judgments” would impair her ability to work as a police officer, and referred Kavaleski for a second-level interview with Dr. Julia M. Reade. Reade, who conducted each of Kavaleski’s three second-level interviews, met with Kavaleski approximately three months later, on June 30, 2007. She described Kavaleski as “thin, but not unhealthy looking,” and again noted that “her hair was messy.” Reade stated that she had reviewed materials from Kavaleski’s two previous rounds of psychological screening, and included in her report the critical items that Kavaleski had indorsed during the latest round of MMPI-2 and PAI testing. Reade described Kavaleski’s demeanor during the interview as “impassive” and concluded her report as follows: “In summary, despite her continued effort to be more open and flexible, Ms. Kavaleski continues to present as a psychologically inflexible, interpersonally stiff woman whose extreme defensiveness limits her capacity to reflect on her own decision-making, responses, actions or impact on others. Her concrete cognitive style is equally limiting and is likely related to what appears to be a charactero-logic rigidity. These limitations would interfere with Ms. Kavaleski’s ability to manage the duties of a Boston [p]olice officer.” Based on Reade’s report, the department notified HRD that it intended to bypass Kavaleski because she had failed to meet the psychological criteria for employment as a police officer. HRD accepted the department’s stated reasons, and on August 31, 2007, Kavaleski appealed to the commission pursuant to G. L. c. 31, § 2(b). A hearing was held before the commission on April 3, 2008, at which Kavaleski represented herself. The commission accepted numerous exhibits in evidence and heard testimony from Reade and Kavaleski. By a divided vote, the commission ruled that the department had not met its burden of establishing a reasonable justification for bypassing Kavaleski. The commission noted that a disqualifying psychiatric condition has not “been found to exist in [Kavaleski], nor has the [department] specifically asserted any such condition.” The commission ordered the department to place Kavaleski’s name “at the top of the eligibility list for original appointment to the position of [pjolice [o]fficer ... so that she shall receive at least one opportunity for consideration from the next certification for appointment as a [department] police officer.” The commission also ordered that, should the department choose to require Kavaleski to submit to further psychological screening, it must use psychiatrists other than those who had previously been involved in screening or evaluating her. In reaching its decision, the commission quoted several written findings of fact that it had made in deciding the case of Roberts vs. Boston Police Dep’t, Civil Serv. Comm’n, No. G1-06-321 (Sept. 25, 2008) (Roberts). Like the present case, Roberts involved a psychological bypass by the department based on the candidate’s interviews with Scott and Reade. The candidate in that case had called psychologists Dr. Mark S. Schaeffer and Dr. James C. Beck to testify as expert witnesses, and the Roberts commission quoted extensively from their testimony in its written decision. Schaeffer testified in Roberts that interpreting MMPI-2 and PAI results “fall[s] within the professional discipline of psychology, as opposed to medicine and psychiatry.” In discussing the psychiatrists’ evaluations of Kavaleski in the present case, the commission quoted Schaeffer’s testimony from Roberts as well as the Roberts commission’s finding in that case that “all the expert witnesses who testified in [Roberts] agree that a qualified psychologist is the recommended professional with the necessary expertise to which a psychiatrist generally defers when it comes to the subject of psychological testing” (emphasis in original). The commission then noted that none of the psychiatrists involved in interviewing Kavaleski had consulted a specially-trained psychologist to interpret her test results. Based in part on these findings, the commission determined that Reade’s conclusions about Kavaleski’s psychological fitness for employment as a police officer were not credible. The department filed an appeal in the Superior Court, pursuant to G. L. c. 31, § 44, arguing that the commission had improperly relied on Roberts. Concluding that the commission had erroneously relied on testimony introduced in the Roberts case in reaching its decision in the present case, a Superior Court judge allowed the department’s motion for judgment on the pleadings and vacated the commission’s decision. Standard of review. When a candidate for appointment appeals from a bypass, the commission’s role is not to determine whether that candidate should have been bypassed. Rather, the commission determines, “on the basis of the evidence before it, whether the appointing authority [has] sustained its burden of proving, by a preponderance of the evidence, that there was reasonable justification” for the decision to bypass the candidate. Brackett v. Civil Serv. Comm’n, 447 Mass. 233, 241 (2006), citing G. L. c. 31, § 2 (b). “Reasonable justification in this context means ‘done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.’ ” Brackett v. Civil Serv. Comm’n, supra, quoting Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 482 (1928). In determining whether the department has shown a reasonable justification for a bypass, the commission’s primary concern is to ensure that the department’s action comports with “[b]asic merit principles,” as defined in G. L. c. 31, § 1. See Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001). The commission “finds the facts afresh” in conducting this inquiry and is not limited to the evidence that was before the department. Beverly v. Civil Serv. Comm’n, 78 Mass. App. Ct. 182, 187 (2010). Pursuant to G. L. c. 31, § 44, we review the commission’s decision to determine whether it was in conformity with the standards set forth in G. L. c. 30A, § 14 (7). See Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, supra at 263. We may set aside or modify the commission’s decision if we conclude that “the substantial rights of any party may have been prejudiced” by a decision that is based on an error of law, unsupported by substantial evidence, or otherwise not in accordance with the law. G. L. c. 30A, § 14 (7). Because it is the department that appealed from the commission’s decision, the department bears the burden of establishing that the decision is invalid. Brackett v. Civil Service Comm’n, supra at 242. That is a “heavy burden,” Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, supra at 263-264, since we give “due weight to the experience, technical competence, and specialized knowledge” of the commission in deciding these matters. G. L. c. 30A, § 14 (7). “This standard of review is highly deferential to the agency on questions of fact and reasonable inferences drawn therefrom.” Brackett v. Civil Service Comm’n, supra, quoting Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). Discussion. The department advances two related arguments to support its claim that the commission’s decision should be reversed. As stated, it contends that the commission erred as a matter of law in relying on testimony from Roberts to attack Reade’s credibility. As a corollary, the department maintains that there was no properly admitted expert evidence to contradict Reade’s testimony and that, therefore, the commission erred in substituting its own assessment of Kavaleski’s psychological fitness for employment as a police officer. We agree that the commission should not have considered the expert testimony that was introduced in Roberts, but not for the reasons advanced by the department. In addition, we conclude that the commission was entitled to discredit Reade’s testimony without hearing testimony from an opposing expert. General Laws c. 30A, which governs proceedings before the commission, sets forth the extent to which an agency may rely on, and take notice of, materials other than those supplied by the parties. General Laws c. 30A, § 11 (4), provides, in relevant part: “All evidence, including any records, investigation reports, and documents in the possession of the agency of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record in the proceeding, and no other factual information or evidence shall be considered . . . .” A related provision, G. L. c. 30A, § 11 (5), authorizes agencies to “take notice of any fact which may be judicially noticed by the courts,” as well as any “general, technical or scientific facts within their specialized knowledge.” However, “[pjarties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed.” Id. See Assessors of Boston v. Ogden Suffolk Downs, Inc., 398 Mass. 604, 605-606 (1986). The critical component of these statutory provisions is that parties be afforded notice of and an opportunity to respond to the evidence on which an agency relies in rendering a decision. See, e.g., Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 782 (2008) (agency erred in relying on psychiatric manual where petitioner not notified or afforded opportunity to refute that evidence); New York Cent. R.R. v. Department of Pub. Works, 354 Mass. 332, 336 (1968) (facts not properly before department where petitioner did not have opportunity to conte

Michael S. O’Brien vs. Massachusetts Institute of Technology & others. No. 11-P-45. September 25, 2012. Handicapped Persons. Anti-Discrimination Law, Handicap, Termination of employment. Employment, Discrimination, Termination, Retaliation. A Superior Court judge awarded summary judgment in favor of Michael S. O’Brien’s former employer, the Massachusetts Institute of Technology (MIT), on his handicap discrimination and retaliation claims. The judge ruled that O’Brien’s claims failed because he had no reasonable expectation of establishing essential elements of his case. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). On count 1 (handicap discrimination), the judge ruled that O’Brien could not establish that he is a handicapped person within the meaning of G. L. c. 15 IB (the statute), and that even if he could establish his handicapped status, he would not be able to meet his burden of showing that the reasons given for his discharge were a pretext. On count 2 (retaliation), the judge found that O’Brien could not establish that he experienced adverse employment actions prior to his discharge, and that the discharge itself was too remote from the protected activity (a complaint to the United States Department of Labor) to establish a causal connection. Jack R. Stark and Donald J. O’Mara. O’Brien appeals, claiming that he presented sufficient evidence to send his case to a jury. With respect to O’Brien’s discrimination and retaliation claims against MIT, and viewing the record in the light most favorable to O’Brien, see Lyons v. Nutt, 436 Mass. 244, 245 (2002), we agree. This is not to say that MIT in fact discriminated or retaliated against O’Brien. That is a question for the jury on which we express no opinion. We hold only that the evidence is sufficient to raise genuine issues of material fact that preclude the award of summary judgment on counts 1 and 2. 1. Background. O’Brien worked at MIT’s central utility plant (CUP) as a second-class engineer for approximately ten years, starting in 1997. Given the nature of the GUP’s operations, engineers are expected to work overtime. Throughout his employment, O’Brien suffered from pain in his back and legs. He underwent two surgeries: in 2003, he had surgery on both legs, and in November, 2004, he had spinal surgery. Neither surgery was successful, and O’Brien continued to experience pain. In February, 2005, after his second surgery, O’Brien provided MIT with a letter from his surgeon explaining that because of continued pain, O’Brien’s ability to work overtime was limited. O’Brien subsequently tried repeatedly to obtain sick leave under the Family and Medical Leave Act (FMLA) and an accommodation that would excuse him from working overtime. These requests were accompanied by doctors’ notes stating, inter alla, that O’Brien had chronic leg pain “that disrupts his sleep”; that he “likely [would] miss work 1-2 days per month”; that he had a neurological condition made worse by working long hours and that it was “important for his long term health that he not be required to work overtime”; and that he had lower extremity neuropathic pain, spinal stenosis, and lumbar radiculopathy, with “[bjuming pain [in] both lower legs that worsens after prolonged standing hence limiting time on feet.” MIT rejected each request, generally stating that the medical documentation submitted “did not describe circumstances that would entitle [him] to leave under FMLA,” and requesting that he submit additional forms and documentation. In September, 2006, while O’Brien’s request that he not work overtime was pending, one of his supervisors, Jack Stark, commented to another manager that he could not wait until the day he could fire O’Brien. In November, 2006, after O’Brien’s request for an accommodation was formally denied, he filed a complaint with the United States Department of Labor (department). On April 11, 2007, as a result of negotiations with the department, MIT provisionally approved FMLA leave “due to a serious medical condition.” In December, 2006, while O’Brien’s complaint with the department was pending, another supervisor, Donald O’Mara, sent an internal electronic mail message (e-mail) strongly opposing an accommodation for O’Brien on the ground that it would set a precedent. The e-mail stated, “I have no interest whatever in accommodating [O’Brien] at all.” As we have noted, O’Brien first informed MIT that his medical condition affected his ability to work overtime in the beginning of 2005. Prior to that time, during his first eight years of employment, the only disciplinary action involving O’Brien was a single warning he received in January, 2002, for improperly closing a damper. However, following his first request to be excused from working overtime until his employment was terminated in September, 2007, O’Brien received a number of verbal and written warnings and was suspended for a variety of infractions, including insubordination, failing to complete assignments, leaving his post without proper coverage, and abuse of MIT’s sick leave policy. A fellow worker, John Spinosa, submitted an affidavit stating that O’Mara and Stark “appeared to have two different sets of standards for performance in the CUP. One set of standards for . . . O’Brien and the other set of standards ... for the rest of the workforce,” and that he had “personally observed much of this discriminatory treatment.” As to the termination of O’Brien’s employment, there is no dispute as to the following. On September 8, 2007, O’Brien was assigned to work a twelve-hour shift, from 6:00 a.m. to 6:00 p.m. At some point in the early afternoon, he was asked to start CUP chiller number one. During the “slow-roll” start-up process, O’Brien left the CUP to retrieve his truck in a nearby lot, bringing it back to the parking lot next to the CUP. He then washed the truck and a kayak attached to the truck’s roof, drove the truck to a parking garage, and returned to the CUP. At the end of his shift, O’Brien left for a scheduled two-week vacation. Upon his return, O’Brien was informed by letter that his employment was terminated for “unacceptable” conduct in connection with having abandoned his post and for other disciplinary concerns. Spinosa’s affidavit stated that it was common practice to leave the chiller during the slow-roll process because the equipment did not need constant monitoring at that point, and that he was not aware of any discipline imposed on any other engineer for that behavior during his twenty-five years at CUP. 2. Discussion. a. Count 1 — handicap discrimination, i. Handicap status. To establish that he is handicapped within the meaning of G. L. c. 15IB, O’Brien must show that (1) his “condition, actual or perceived, constitutes a mental or physical ‘impairment’[;]... [2] the life activity curtailed constitutes a ‘major’ life activity as defined in G. L. c. 151B, § 1(20), and its accompanying regulations^] . . . and [3] ‘the impairment substantially limit[s] the major life activity’ ” (citations omitted). New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 (2003). There is sufficient evidence on each prong to preclude summary judgment. First, there clearly is evidence that O’Brien’s chronic pain constitutes a physical impairment. Second, there is evidence in the record demonstrating that this impairment limits at least two major life activities, sleep and work. Third, a jury could conclude that these major life activities are substantially limited by O’Brien’s impairment. The question whether an impairment substantially limits an individual’s ability to sleep as compared to the ability of the average person in the general population “requires an individual, case-by-case assessment.” Shedlock v. Department of Correction, 442 Mass. 844, 852 (2004). In his deposition, O’Brien testified that there were weeks when he would sleep only “one or two hours a night, three or four hours a night for a week or two . . . depending] on how many days in a row [he] had to work, what shifts [he] had to work.” He would sometimes go for days with only four hours of broken sleep. Also, O’Brien’s doctor noted that O’Brien “continues to have leg pain that disrupts his sleep” and he “will likely have exacerbations that require missing work intermittently.” If the jury were to credit this evidence, they could conclude that O’Brien’s ability to sleep is substantially limited in comparison to the average person. See ibid. A limitation on work is “substantially limiting]” for purposes of G. L. c. 151B when the impairment “prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 639 (2004). Given the evidence in the record, and the broad range of jobs in the Commonwealth that require overtime, the question whether O’Brien is substantially limited in his ability to work is, again, one for the jury.»» ii. Pretext. Next, we consider whether MIT has proffered legitimate nondiscriminatory reasons for terminating O’Brien, and, if so, whether O’Brien could meet his burden of establishing that the reasons given were a pretext. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997). It may, in fact, be true that O’Brien was terminated for leaving his post during the slow roll of chiller number one. Here, however, there is direct evidence of serious resistance by MIT to O’Brien’s request to be excused from working overtime due to his medical condition, and to his applications for leave under the FMLA and for reasonable accommodation. O’Mara’s internal e-mail and Stark’s comment about wanting to fire O’Brien raise a jury question whether MIT’s proffered reason is in fact why O’Brien was terminated or whether, instead, it is a pretext, and O’Brien was terminated either because of his handicap or in retaliation for engaging in protected conduct, namely, filing a complaint with the department. Seth Stoffregen for the plaintiff. Scott A. Roberts for the defendants. Evidence in the summary judgment record would also support a finding that, beginning about the time he first sought accommodation due to his medical condition, O’Brien was singled out for disciplinary action. In addition to O’Brien’s deposition testimony, the Spinosa affidavit avers that there was one set of rules for O’Brien and another set of rules for everyone else. b. Count 2 — retaliation. This claim is premised on the treatment O’Brien received after he filed his complaint with the department. He alleges that harassment by his supervisors, resulting in numerous verbal and written warnings, as well as his termination in September, 2007, were “adverse action[s]” entitling him to recovery. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004), quoting from Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) (retaliation claim requires plaintiff to show that “he engaged in protected conduct, that he suffered some adverse action, and that ‘a causal connection existed between the protected conduct and the adverse action’ ”). There is no question that O’Brien’s filing of the department complaint constituted protected conduct. Because a reasonable juror could conclude that the verbal and written warnings, as well as O’Brien’s termination, were all “adverse actions” that, if shown to have been retaliatory, would entitle him to recover under the statute, MIT is not entitled to summary judgment. Under the retaliation provision of the statute, “adverse actions consist of a defendant’s action ‘to discharge, expel or otherwise discriminate against’ the plaintiff.” Mole v. University of Mass., supra at 592 n.14. Any such action that “materially disadvantage^] ” a plaintiff is an adverse employment action for purposes of a retaliation claim. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-708 (2011). Here, the less serious infractions ultimately were included among the reasons for imposition of the sanction of termination (see note 4, supra) and, therefore, could be construed as having materially disadvantaged O’Brien. See Nye v. Roberts, 145 Fed. Appx. 1, 6 (4th Cir. 2005). 3. Conclusion. The judgment is reversed as to counts one and two against MIT. In all other respects, the judgment is affirmed. So ordered. We affirm the grant of summary judgment on O’Brien’s additional claim of tortious interference against Stark and O’Mara. As the motion judge found, this claim fails because they were supervisory employees whose actions were governed by a collective bargaining agreement (CBA), and the claim is therefore preempted by the Federal Labor Management Relations Act. See 29 U.S.C. §§ 141 et seq. (1994); Magerer v. John Sexton & Co., 912 F.2d 525, 530-531 (1st Cir. 1990). To the extent O’Brien argues that the claim is not preempted because his allegations of improper motive and means (discriminatory and retaliatory animus) involve actions outside the CBA, the argument is not sufficiently developed, and we do not reach it. The frequency of reprimands escalated in August, 2007, when O’Mara reprimanded O’Brien three times in as many weeks, for infractions ranging from failing to wear his fire retardant suit to leaving the CUP without informing O’Mara. The letter of termination set forth a history of prior disciplinary actions and noted that O’Brien had been “counseled” on three occasions during the preceding month of August for improper conduct. (See note 3, supra.) O’Brien’s union pursued a grievance challenging the termination under the CBA. The matter proceeded to arbitration, and the arbitrator upheld O’Brien’s termination. We review an order granting summary judgment de nova to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). MIT did not argue, and the motion judge did not reach the question, whether O’Brien could make out the second element of his prima facie case, establishing that he is a qualified handicapped person. See, e.g., Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822 & n.11 (1997). We do not address the question. We observe that some Federal courts have found that, as a matter of law, inability to work more than a forty-hour week is not a “substantial limitation” on the ability to work for purposes of the Americans with Disabilities Act (ADA). See Boitnott v. Corning, Inc., 669 F.3d 172 (4th Cir. 2012). However, these cases were decided under a construction of the ADA’s “substantial limitation” language that was subsequently rejected by Congress in the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). In any event, G. L. c. 151B, not the ADA, applies in this case. See, e.g., Dahill v. Police Dept. of Boston, 434 Mass. 233, 240-243 (2001). With respect to the major life activities of thinking and concentrating, O’Brien stated in his affidavit, “I’ve endured numerous days and countless nights of private torture and tears and my ability to concentrate is often impacted.” In light of our conclusions about sleep and work, we need not decide if this is sufficient to raise a genuine issue of material fact whether these major life activities are substantially impaired. Should the evidence at trial be sufficient to support such a conclusion, the judge will be free to instruct the jury on the point.