Failure to Accommodate Cases

Angel Mercado vs. Manny’s T.V. and Appliance, Inc. No. 09-P-520. Hampden. April 7, 2010. June 28, 2010. Present: Mills, Smith, & Trainor, JJ. Practice, Civil, Directed verdict. Public Policy. Employment, Termination, Retaliation. Contract, Employment. Anti-Discrimination Law, Handicap. Family and Medical Leave Act. Words, “Handicap.” At the trial of a civil action brought by a plaintiff alleging that his former employer (defendant) had wrongfully discharged him in violation of public policy, the judge erred in granting a directed verdict in favor of the defendant, where a fact finder could conclude that the work performed by the plaintiff at the defendant’s direction (i.e., installing appliances without an electrical or plumbing license) was a violation of public policy and that the defendant terminated the plaintiff’s employment because the plaintiff did not want to continue violating that policy. [139-141] A plaintiff alleging employment discrimination on the basis of handicap in violation of G. L. c. 151B, as well as violations of the Family and Medical Leave Act (act), failed to demonstrate that his knee injury constituted a “handicap” within the meaning of G. L. c. 151B [142] or a “serious health condition” within the meaning of the act [143-144], A former employee could not maintain a claim of retaliatory termination of employment based on the filing of a worker’s compensation claim, in violation of G. L. c. 152, § 75B(2), where the employee had taken no action under the worker’s compensation act until after the termination of his employment. [144] The plaintiff in a civil action alleging, inter alia, employment discrimination on the basis of handicap failed to demonstrate that the trial judge’s exclusion from evidence of an employee handbook, even if error, was prejudicial to his case. [144] Civil action commenced in the Superior Court Department on March 27, 2006. The case was tried before Constance M. Sweeney, I. Michael O. Shea for the plaintiff. John B. Stewart (F. Michael Joseph with him) for the defendant. Smith, J. After the termination of his employment by the defendant, Manny’s T.V. and Appliance, Inc. (Manny’s), the plaintiff, Angel Mercado, filed a complaint in Superior Court alleging, inter alia, (1) discriminatory and retaliatory termination based on his handicap in violation of G. L. c. 151B; (2) retaliatory termination based on the filing of a worker’s compensation claim in violation of G. L. c. 152, § 75B(2); and (3) violations of the Family and Medical Leave Act (FMLA). An amended complaint further alleged that Mercado was wrongfully terminated in violation of public policy. Following the presentation of Mercado’s case to a jury, Manny’s moved for a directed verdict as to each of the enumerated claims. The judge granted the motion. On appeal, Mercado claims that the judge committed error in allowing Manny’s motion for a directed verdict on Mercado’s claims. He also claims that the judge improperly excluded an employee handbook from evidence. Background. We recite the relevant facts in the light most favorable to the plaintiff. Bonin v. Chestnut Hill Towers Realty Corp., 392 Mass. 58, 59 (1984). Between October, 2000, and June 21, 2004, Mercado worked for Manny’s, first as a driver and then as an appliance installer. He trained for his job by observing another installer for two weeks. During his time at Manny’s, Mercado installed thousands of appliances, including dishwashers, stoves, garbage disposals, and cook tops. The installation work routinely involved cutting and fitting gas pipes, cutting and fitting drain pipes, and running and installing electrical wire. Such work can only be performed legally by a licensed electrician, see G. L. c. 141, § 1A, or a licensed plumber, G. L. c. 142, § 3. Mercado was neither a licensed electrician nor a licensed plumber, nor was he informed as to any provisions of the electrical or plumbing codes. His coworker also was not licensed in those trades. Mercado’s supervisor, nevertheless, described Mercado as an “awesome” installer. In late May, 2004, Bernard Sears, the town of Wilbraham’s plumbing inspector, discovered Mercado and his coworker installing a dishwasher in a residence in Wilbraham without a plumber’s license and a permit, and ordered them off the job. After hearing about what had happened, Manny’s service manager told Mercado to stop collecting permits in Wilbraham and to avoid the inspector’s truck when he saw it. When Mercado later questioned his supervisor and Manny’s general manager, Eric Kosciusko, about whether the installations were legal, Kosciusko acknowledged that he was told that the installations were illegal, and repeated that Mercado should avoid the inspector’s truck. Mercado then commented that if the installations were not legal, he “[didn’t] feel like [he] should be doing [them] anymore.” Kosciusko, angered by Mercado’s comments, turned away and continued what he was doing. After the conversation, however, Mercado continued to install appliances in Wilbraham for a short time. To his knowledge, Manny’s never obtained permits for this work. Shortly thereafter, on June 16, 2004, a Wednesday, Mercado injured his knee while lifting a dishwasher at work. He immediately sought treatment at the Riverbend Medical Group in Springfield, and obtained a note from a physician’s assistant indicating that he should not work until the following Monday. That same day Mercado also reported his injury to one of his managers, Oscar Alicea, who told him to bring in a doctor’s note if he was going to be out of work. When Mercado called Alicea later to tell him that he needed to be out of work for two days, Alicea responded: “What do you mean you can’t come in? There is only two installers, just come in. . . . Bring in the note, and we’ll talk about it later.” When Mercado arrived at work the next day (Thursday), Alicea was not present. Another manager accepted the note, instructed Mercado to get in his truck, and informed Mercado that Alicea would contact him. Mercado, who was paid by the installation, worked a regular day. Toward the end of the day, Alicea told Mercado that only two or three installations were scheduled for Friday, and that Mercado should have his partner “do the big lifting.” Mercado did not express objections to Alicea’s instructions or to working. On Monday, June 21, 2004, Manny’s fired Mercado. At the time, no reason was given for his termination, but Mercado later learned that the purported reason was that he had called Kosciusko a “f***ing asshole gay,” an accusation Mercado denied. There was no evidence of any further communications between Mercado and Manny’s regarding a possible return to work. After his employment at Manny’s ended, Mercado continued to receive medical treatment for his knee injury. Magnetic resonance imaging revealed that his anterior cruciate ligament was tom, and Mercado underwent two surgeries to correct his injury. On a subsequent date not in evidence, Mercado also filed a worker’s compensation claim relating to the knee injury. In addition to having his medical bills covered, Mercado received a weekly payment for full disability for one to one and one-half years, partial disability for another year, and finally a lump-sum payment. After Mercado presented his case to the jury, Manny’s moved for a directed verdict on all remaining counts of the complaint. After hearing argument, the judge allowed the motion on the ground that Mercado provided insufficient medical evidence that he was handicapped for the purposes of G. L. c. 151B. On the worker’s compensation and FMLA claims, the judge likewise ruled on the ground of insufficient medical proof. The judge also determined that a directed verdict was warranted on the public policy count because, contrary to the allegations in his complaint, “[tjhere is an absence of showing that [Mercado] was required to continue to violate the law” by performing illegal appliance installations. Further facts will be set forth as necessary. Discussion. “In reviewing a mling on a directed verdict or a judgment notwithstanding the verdict, the question before us is the same: that is, ‘whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’ ” Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). Additionally, “[w]e do not weigh the evidence or consider the credibility of witnesses,” and we ignore evidence that contradicts the testimony of the nonmoving party. Doe v. Senechal, supra, quoting from Conway v. Smerling, 37 Mass. App. Ct. 1, 3 (1994). 1. Wrongful discharge in violation of public policy. Mercado argues that a directed verdict was inappropriate because a fact finder could conclude that the work performed by him at the direction of Manny’s was a violation of public policy and Manny’s terminated him because he did not want to continue violating that public policy. We agree. “It is well established that Massachusetts law does not protect at-will employees who claim to be fired for their complaints about internal company policies or the violation of company rules, even though the employees’ actions may be considered appropriate and ‘socially desirable.’ ” Falcon v. Leger, 62 Mass. App. Ct. 352, 362 (2004), quoting from Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150-151 (1989). See Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474-475 (1992). Nevertheless, “[i]n exceptional cases, for reasons of public policy, an at-will employee may maintain a cause of action and find redress where the termination results from the employee’s assertion of some legally guaranteed right, or refusal to engage in illegal or harmful conduct.” Parker v. North Brookfield, 68 Mass. App. Ct. 235, 240 (2007). “In such instances, we look essentially to the substance of the complaint rather than to whom it is presented.” Falcon, supra at 364. The public policy exception is interpreted narrowly to prevent “conver[sion of] the general rule . . . into a rule that requires just cause to terminate an at-will employee.” King v. Driscoll, 418 Mass. 576, 582 (1994), quoting from Smith-Pfeffer, supra at 150. We begin by determining, as a matter of law, whether the appliance installations were in violation of “a well-defined, important public policy.” Mello, supra at 561 n.7. There can be no question that the intent of the electrical and plumbing code is to protect public health, safety, and welfare. See generally Falcon, supra at 360 (electrical code); Barriere v. Depatie, 219 Mass. 33, 36 (1914) (licensing requirements for plumbers). Li-censure requirements form a critical part of those codes and guarantee that licensed electricians and plumbers have a minimum level of experience in the field. See 248 Code Mass. Regs. § 11.02; Leduc v. Commonwealth, 421 Mass. 433, 435 (1995), cert. denied, 519 U.S. 827 (1996) (“The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications”), citing Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 527-528 (1979). The importance of licensed electricians and qualified plumbers is underscored here by Mercado’s testimony that during an installation of a gas stove, he caused a gas leak, requiring the daughter of a customer to seek medical care. According to Mercado, this was only one of multiple incidents of gas leaks following appliance installations that he performed. The evidence demonstrates that Manny’s was aware that at least some of its appliance installations were illegal and in violation of public policy. Mercado and his coworker collected permits and engaged in serious plumbing and electrical work in performing their jobs at Manny’s, despite the fact that neither one of them had an electrical or plumbing license. Sears, the plumbing inspector, confirmed that Mercado’s installations were against the law. According to Sears, the Massachusetts Plumbing Code, 248 Code Mass. Regs. §§ 2.04 et seq., governs the types of installations Mercado performed, and requires that they be performed by a licensed plumber with a permit, “[t]o protect the safety and health of the public.” Wilbraham’s building inspector, Lance Trevallion, further testified that he informed Manny’s, after the inspection incident, that “a permit was required for such work, and a licensed plumber needed to take the permit out.” An inference could be drawn that Kosciusko received that information when he told Mercado that “they are . . . saying that what Manny’s is doing there is illegal.” The instruction to Mercado that he avoid the Wilbraham plumbing inspector also supports the conclusion that Manny’s was aware that the installations were illegal. No permits were issued for the installations that occurred in Wilbraham after Trevallion’s discussion with Manny’s. We conclude that the circumstances of this case are akin to those in cases in which courts have found a violation of public policy within the narrow strictures of the exception to the rule of at-will employment. Compare Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (hospital employee responsible for enforcing State fire safety regulations governing patient care, who performed her job accordingly and was fired, stated claim for wrongful termination); Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (summary judgment properly denied where factual dispute remained whether employee was discharged in retaliation for his cooperation with a law enforcement investigation); Falcon, supra at 363-365 (employee wrongfully terminated after he refused to lie to inspector about existence of electrical code violations). The violation here is also distinct from internal policy matters, which do not warrant recovery by an at-will employee. Contrast Mello v. Stop & Shop Cos., supra at 560-561 (report of false damage claims was internal company matter); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 150-151 (opposition to internal restructuring of a State school); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. at 474-475 (nurse’s report to a private professional organization about perceived managerial inadequacies at hospital was internal matter); Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994) (complaints regarding company’s trade practices, which employee claimed violated G. L. c. 93A, were internal matter). Lastly, whether there was sufficient evidence that Mercado adequately refused to engage in further illegal activity such that it was a factor in his termination is a factual question for the jury. Mercado presented evidence that he told Kosciusko that he did not want to continue performing illegal installations, was ordered to continue illegally installing appliances, and was fired a few weeks after his complaint. Mercado disputes Manny’s stated reason for firing him, but as previously noted on a motion for a directed verdict, we must ignore evidence that contradicts the testimony of the nonmoving party, here Mercado. The evidence presented on Mercado’s public policy claim is sufficient to withstand a motion for a directed verdict. 2. Discrimination claims. Mercado next claims that he was the subject of handicap discrimination and retaliatory termination in violation of G. L. c. 151B; G. L. c. 152, § 75B(2); and the FMLA. Each claim is based upon Manny’s “denial” of Mercado’s request for a two-day leave. To prevail on his handicap discrimination claim under G. L. c. 151B, § 4(16), Mercado must demonstrate that he has a qualifying handicap under the statute. Pursuant to G. L. c. 15IB, § 1(17), an employee has a “handicap” if he or she (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded by the employer as having such an impairment. See New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 (2003). More than a mere medical diagnosis of an impairment is required to show a handicap covered by the statute; an employee must show, by reference to his own experience, that the extent of the limitation caused by his impairment is substantial. Ibid. In this case, Mercado claims handicap status under the first prong of the statute. We conclude that he has failed to demonstrate that he suffered from a handicap during his employment at Manny’s. In order to be considered substantially limited in the major life activity of working, the employee must be able to show that his impairment prevented or restricted him from performing a class of jobs or broad range of jobs in various classes. See New Bedford, supra at 464; Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 637-641 (2004); Dube v. Middlesex Corp., 59 Mass. App. Ct. 734, 737 (2003). Here, Mercado testified that his knee injury affected his ability to lift and his mobility. He also testified, however, that he worked the two days following his injury as normal, with no objection. The fact that Mercado worked at his job as usual, despite his injury, severely undercuts his claim that he was handicapped at that time. Because Mercado failed to offer any evidence that he was unable to do his job, or that Manny’s perceived him as being unable to do so, the judge properly entered a directed verdict on Mercado’s G. L. c. 151B handicap discrimination claim., Mercado’s claim under the FMLA fails for the same reason. The FMLA provides that an eligible employee shall be entitled to a total of twelve weeks of leave during any twelve-month period because of a serious health condition that inhibits the employee from working. See 29 U.S.C. § 2612(a)(1)(D). In order for his injury to be considered a serious health condition, the employee must receive in-patient care or continuing treatment from a health care provider, as those terms are defined in the regulations. 29 U.S.C. § 2611(11). 29 C.F.R. § 825.113-115. As is relevant here, continuing treatment by a health care provider requires a period of incapacity that lasts more than three consecutive calendar days and involves medical treatment. 29 C.F.R. § 825.115(a). See Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-160 (1st Cir. 1998); Wheeler v. Pioneer Developmental Servs., 349 F. Supp. 2d 158, 165 (D. Mass. 2004). Thus, Mercado has no cause of action under the FMLA unless there is evidence from which a reasonable jury could find that he was incapacitated for more than three consecutive days. Mercado testified he worked the Thursday and Friday following his injury, despite the note he received from a physician’s assistant stating that he should refrain from working until Monday, June 21. Based on that testimony, as a matter of law, Mercado failed to prove that he was inhibited from working as required by the FMLA. See Peterson v. Exide Corp., 123 F. Supp. 2d 1265, 1271 (D. Kan. 2000) (finding employer was not bound by medical evidence when plaintiff’s own behavior indicated he did not have a serious health condition). Moving to Mercado’s G. L. c. 152, § 75B(2), claim, under that statute an employer shall not discharge an employee for exercising any right under the worker’s compensation act. Mercado, however, took no action under the act until after he had been terminated. Other than the timing of the termination, Mercado offers no evidence of a connection between his worker’s compensation claim and his discharge. Given that his claim was filed after his discharge, without further proof, we fail to see how Mercado’s discharge could possibly be related to any exercise of his rights under the

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