Failure to Accommodate Cases

School Committee of Norton vs. Massachusetts Commission Against Discrimination & another. No. 04-P-188. Bristol. March 4, 2005. July 12, 2005. Present: Lenk, Kafker, & Katzmann, JJ. Massachusetts Commission Against Discrimination. Administrative Law, Substantial evidence, Findings. Handicapped Persons. Anti-Discrimination Law, Handicap, Damages, Employment, Termination of employment, Attorney’s fees. Damages, Emotional distress, Under anti-discrimination law, Back pay, Attorney’s fees. In a civil action for employment discrimination based on handicap in violation of G. L. c. 151B, § 4(16), a Superior Court judge properly upheld the decision of the Massachusetts Commission Against Discrimination (MCAD) that a cafeteria worker who was terminated from her employment because of a permanent medical restriction precluding her from lifting in excess of twenty-five pounds, was a qualified handicapped person capable of performing the essential functions of her job with reasonable accommodation, and that her employer, a town school committee, discriminated against her by not engaging her in dialogue regarding accommodations, not adquately investigating reasonable accommodations, and failing to demonstrate that such accommodation would be burdensome [843-848]; further, the MCAD was within its discretion to award the employee emotional distress damages [848-849] and to decline to offset any unemployment benefits she received against her back pay award [849-850], In an employment discrimination action, the Massachusetts Commission Against Discrimination was well within its discretion in using the “lodestar method” to determine the employee’s attorney’s reasonable hourly billing rates for purposes of calculating an award of attorney’s fees, and in not reducing the lodestar, given that the attorney provided substantial, uncontested evidence of the market value of his services. [850-854] Civil action commenced in the Superior Court Department on March 20, 2003. A decision of the Massachusetts Commission Against Discrimination was affirmed with the exception of the award of attorney’s fees by Richard T. Moses, J., and a motion for judgment on the pleadings was heard by John P. Connor, Jr, J. Maureen A. Lee for the plaintiff. John F. Tocci for Mary-Ann Woodason. Steven Locke for Massachusetts Commission Against Discrimination. Mary-Ann Woodason. Kafker, J. The issues presented in this case are whether the Massachusetts Commission Against Discrimination (MCAD or commission) correctly determined that Mary-Ann Woodason, a cafeteria worker terminated from her employment by the school committee of Norton (school committee) because of a permanent medical restriction precluding her from lifting in excess of twenty-five pounds, was (1) a qualified handicapped person capable of performing the essential functions of her job with reasonable accommodation and if so, whether she was (2) entitled to emotional distress damages, lost pension benefits, a back pay award without an offset for unemployment compensation, and attorney’s fees. A Superior Court judge affirmed the decision of the MCAD with the exception of the award of attorney’s fees, which he concluded were limited as a matter of law to the billing rate the attorney charged at the commencement of the representation, before he joined a large Boston firm. We conclude that the MCAD did not abuse its discretion in awarding attorney’s fees based on the lodestar method, which calculates the fees using a reasonable market rate, and the judgment shall be so modified. We otherwise affirm the judgment of the Superior Court upholding the MCAD decision. 1. Background. The defendant, Mary-Ann Woodason, began working for the school committee as a cafeteria assistant on March 20, 1989. Woodason had served seven years at the L.G. Nourse Elementary School when, in the spring of 1997, she injured her back and underwent surgery to repair a ruptured disc. On August 19, 1997, she informed the cafeteria director, Irene Stanovich, of the operation and her inability to return to work until she had fully recuperated. They agreed that Woodason would use her accrued sick time until she was ready to return to work. After meeting with her doctor, Woodason called Stanovich on October 22, 1997, to report her progress and informed Stanovich that, due to her condition, she would not be able to lift objects weighing more than twenty-five pounds. Stanovich did not indicate at this time that the restriction would be a problem. On November 19, 1997, Woodason met with her doctor, who cleared her to return to work on December 1, 1997, with a medical restriction prohibiting her from lifting more than twenty-five pounds. Woodason relayed this information to Stanovich on the same day and requested an accommodation. During this conversation, Stanovich told Woodason that she could not return to work with the lifting restriction. Through her counsel’s letter dated January 12, 1998, Woodason requested that she be allowed to return to work with an accommodation, which she described as having another employee lift a thirty-one pound milk crate into a milk dispenser, a task that she said was required once a day. On January 28, 1998, the school committee informed Woodason by letter that her employment would be terminated on February 6, 1998 (when her sick leave expired), if she still were subject to the lifting restriction. The school committee wrote that in order to accommodate her lifting restriction, it would have to hire an additional cafeteria assistant, which would “impose an undue hardship to its business of operating the schools,” as Woodason’s duties as a cafeteria assistant “require her to consistently lift objects heavier than twenty-five pounds.” Woodason was still subject to the restriction on the assigned date, and the school committee subsequently terminated her employment. On February 20, 1998, Woodason filed a complaint against the school committee with the MCAD alleging that the school committee had discriminated against her because of her handicap in violation of G. L. c. 151B, § 4(16). She further alleged that Maurice Splaine, the superintendent of schools, and Stanovich aided and abetted the school committee’s discriminatory acts. An MCAD hearing officer held a public hearing over the course of three days in February, 2001, and issued her decision in favor of Woodason on January 31, 2002. First, the hearing officer found, based on undisputed testimony and medical records, that Woodason had a chronic back injury that resulted in a “permanent medical restriction prohibiting her from lifting more than twenty-five pounds. This was a permanent restriction applicable to every aspect of her life. As a result of this restriction, Complainant is unable to perform a number of routine tasks in her life. She is unable to do yard work and gardening or shovel snow. She can no longer lift and carry her grandchildren and cannot carry filled grocery bags. She and her husband moved from their home to a condominium because of her inability to continue performing many of these routine household tasks.” Second, the hearing officer concluded that Woodason was a “qualified handicapped person” under G. L. c. 151B, § 1(16), because she was “capable of performing the essential functions of her position with a reasonable accommodation on those occasions when an accommodation was necessary.” The hearing officer found that only a few of Woodason’s duties required her to lift more than twenty-five pounds, and Woodason could have been accommodated by breaking each of those tasks down into lighter tasks, making additional trips, using a wheeled cart, or relying on help from other employees. None of these accommodations, the hearing officer concluded, would have imposed an undue financial or administrative hardship on the cafeteria operations. Third, the hearing officer found that the school committee, Splaine, and Stanovich failed to engage in a dialogue with Woodason regarding possible accommodations and did not attempt to ascertain whether possible accommodations were an option. Fourth, the hearing officer ordered the school committee to pay Woodason emotional distress damages of $50,000, back pay for eighteen weeks totaling $4,595.40, and lost pension benefits of $28,970.32. Finally, the hearing officer instructed the school committee to conduct training sessions on the accommodation of disabled employees. The full commission of the MCAD affirmed the hearing officer’s decision and awarded Woodason attorney’s fees in the amount of $74,760.80. The school committee appealed the commission’s decision to the Superior Court pursuant to G. L. c. 151B, § 6, which provides for a review in accordance with the standards set out in G. L. c. 30A, § 14(7). The Superior Court judge affirmed the commission’s decision except with respect to the attorney’s fees. All parties appealed. 2. Discussion, a. Standard of review. Based on statutory law, “[w]e will affirm a decision and order of the MCAD unless the findings and conclusions are unsupported by substantial evidence or based on an error of law.” Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 640-641 (1998). See G. L. c. 151B, § 6; G. L. c. 30A, § 14(7). “Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion,’ taking ‘into account whatever in the record detracts from its weight.’ ” Lycurgus v. Director of Div. of Employment Security, 391 Mass. 623, 627-628 (1984). See G. L. c. 30A, § 1(6). We also give deference to the MCAD’s findings where the evidence is conflicting, given the agency’s “experience, technical competence, and specialized knowledge . . ., as well as the discretionary authority conferred on it.” G. L. c. 30A, § 14(7). See Smith College v. Massachusetts Commn. Against Discrimination, 316 Mass. 221, 224 (1978); Ramsdell v. Western Mass. Bus Lines, Inc., supra at 676. However, “[a] court will overturn the commission’s findings only if the court concludes, as matter of law, that the commission’s reliance on evidence was unreasonable.” School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 423 Mass. 7, 15 (1996). b. Handicap discrimination. As provided by G. L. c. 151B, § 4(16), as inserted by St. 1983, c. 533, § 6, it is unlawful “[f]or any employer, personally or through an agent, to dismiss from employment . . . because of [her] 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.” We begin with the threshold question whether Woodason was a handicapped person. As defined by G. L. c. 151B, a “handicap” means “(a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment.” G. L. c. 151B, § 1(17). See generally Dahill v. Police Dept. of Boston, 434 Mass. 233 (2001); Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632 (2004); Dube v. Middlesex Corp., 59 Mass. App. Ct. 734 (2003). As further interpreted by the MCAD, the term “major life activities” includes “lifting.” MCAD Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B, § II.A.5 (1998) (MCAD Guidelines). See generally Dahill v. Police Dept. of Boston, supra at 239 (“guidelines represent the MCAD’s interpretation of G. L. c. 151B, and are entitled to substantial deference”). The guidelines provide no more specific guidance regarding the inability to lift as a handicap. They do state generally, however, that the “determination of whether an impairment substantially limits a major life activity depends on the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact of the impairment.” MCAD Guidelines § II.A.6. The Supreme Judicial Court has also emphasized that “[G. L.] c. 151B anticipates that determining whether a person is a ‘handicapped person’ will be an individualized inquiry. . . . [P]er se rules are to be avoided.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, supra at 637. The school committee initially stated in a joint certification memorandum submitted to the MCAD and dated October 17, 2000, that there was “no dispute that Mary Ann Woodason is a ‘handicapped person’ as that term is defined by M.G.L. c. 151B, § 4(16).” See generally Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 447 (2002) (issue of handicap apparently not contested where the medical restriction for an admitting assistant at a hospital prescribed “no repetitive lifting or intermittent lifting” above fifteen pounds, as well as no repetitive tasks such as keyboarding or writing). In the certification order dated November 10, 2000, the investigating commissioner referenced the joint certification memorandum, but nevertheless included the handicap issue for the public hearing following a conference with the parties. During the hearing, the school committee did not contest any of the evidence regarding Woodason’s handicapped status; rather, it sought to prove that the twenty-five pound lifting restriction meant that she could not perform the essential functions of the job or be reasonably accommodated. In its petition for full commission review, the school committee did not object to the finding that Woodason was handicapped. The issue was apparently raised for the first time only in the school committee’s “Supplemental Memorandum to Petition for Review.” The Superior Court judge ruled that the school committee was precluded from pursuing the handicap issue because it had not been raised in the MCAD hearings. The judge relied on the provision of G. L. c. 151B, § 6, as inserted by St. 1946, c. 368, § 4, that states “[n]o objection that has not been urged before the commission shall be considered by the court.” We conclude that the undisputed evidence on this essentially uncontested issue supports the commission’s findings that Woodason had a physician-imposed, permanent lifting restriction of twenty-five pounds arising out of chronic back problems, including a ruptured disk in her back. As lifting is specifically defined by the MCAD Guidelines as a major life activity, and it was substantially and permanently limited here, along with other important life activities, we conclude that there was sufficient evidence to support the MCAD’s conclusion that Woodason was a handicapped person as defined by G. L. c. 151B, § 1(17). We also conclude that the school committee submitted too little too late to the MCAD on the handicap issue to satisfy the requirements of G. L. c. 151B, § 6, which are prerequisites to raising the issue in Superior Court. We next consider whether Woodason was a “qualified handicapped person,” i.e., a “handicapped person who would be capable of performing the essential functions of a particular job with reasonable accommodation to [her] handicap.” G. L. c. 151B, § 1(16). “Essential functions” are “those functions which must necessarily be performed by an employee in order to accomplish the principal objectives of the job.” MCAD Guidelines § HB. However, a reasonable accommodation may include “modifying when and how an essential job function is performed.” Id. at § II.C.3. The school committee argues that some of the essential functions of a cafeteria assistant — lifting dish trays, cleaning serving stations, and filling a coffee um — required lifting of more than twenty-five pounds. The hearing officer credited testimony from Woodason and several of her former coworkers that she could perform all these functions with simple modifications, such as sharing chores with coworkers, using a cart to move some objects, and lightening the load in carrying other objects from one place to another. With these reasonable accommodations, she concluded, Woodason’s duties could be accomplished within the allotted time and without additional personnel or disruption of the cafeteria’s schedule. The school committee points out the conflicting testimony as to whether Woodason could perform the essential functions of her job on time with the practical modifications. It further argues that the hearing officer’s reliance on Woodason and her witnesses was unreasonable. Under the substantial evidence test, however, “Credibility is an issue for the commissioner and not for this court.” Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. at 676. It was not unreasonable for the hearing officer to credit Woodason and her witnesses, particularly given inconclusive and inconsistent testimony from the school committee’s witnesses regarding the frequency with which Woodason performed certain tasks and her ability to work with the lifting restriction. We therefore conclude that the MCAD’s decision that Woodason was a qualified handicapped person finds substantial support in the evidence. Third, the school committee disputes the hearing officer’s findings that it discriminated against Woodason on the basis of handicap by (1) not engaging her in dialogue regarding accommodations, (2) not adequately investigating reasonable accommodations, and (3) failing to demonstrate that such accommodation would be burdensome. The school committee incorrectly asserts that it was not obligated to engage Woodason in dialogue regarding accommodations: “[I]t is the employee’s initial request for an accommodation which triggers the employer’s obligation to participate in the interactive process of determining one.” Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 457, quoting from Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029 (1996). Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. at 644. See MCAD Guidelines § II.C (“If a person with a handicap requests but cannot suggest an appropriate accommodation, the employer and the individual should work together to identify one”). Not only was there substantial evidence that the school committee did not engage in a dialogue with Woodason, the record shows that neither Splaine nor Stanovich consulted with other cafeteria workers about their respective duties or considered or investigated alternative accommodations. “The refusal of an employer to participate in [the] process ... is a violation of our discrimination laws.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, supra at 644. There was no error of law. The school committee also asserts the affirmative defense that Woodason’s accommodations imposed an undue hardship to its business. According to the testimony of Splaine and Stanovich, the only way to accommodate Woodason was to hire another full-time employee, which would have been too expensive. To the contrary, the hearing officer found that such a measure would not be necessary based on other employees’ testimony that the cafeteria was a cooperative working environment where they assisted each other with various responsibilities and swapped duties depending on their proclivities for certain types of work. These circumstances allowed the hearing officer to conclude that Woodason could be accommodated with the previously described “practical modifications” without imposing an undue hardship on her employer. We therefore conclude that the evidence substantially supports the MCAD’s decision that the school committee discriminated against Woodason because of her handicap. c. Damages. The school committee claims that it was error to award Woodason damages for emotional distress, back pay, and lost pension benefits and to order the school com

Doreen M. Smith vs. Bell Atlantic & another. No. 03-P-1522. Middlesex. October 4, 2004. - June 10, 2005. Present: Lbnk, Grasso, & Cohen, JJ. Anti-Discrimination Law, Employment, Handicap, Damages. Employment, Discrimination. Evidence, Expert opinion. Massachusetts Commission Against Discrimination. Words, “Qualified handicapped person.” At the trial of a complaint brought by the plaintiff employee pursuant to G. L. c. 151B, § 9, alleging that the defendant employer failed to reasonably accommodate her handicap in violation of G. L. c. 151B, § 4(16), the evidence, taken in the light most favorable to the employee, permitted the jury to find that neither daily presence in the office nor travel was essential to the plaintiff’s employment [711-714], and that allowing the plaintiff to do substantial amounts of her work at home was, in the circumstances, a reasonable accommodation that the defendant failed effectively to implement [714-717]; however, the trial judge was entitled to exercise her discretion to strike the opinion of the employee’s medical expert, which lacked a specific factual foundation to support a causal connection between the employer’s failure to accommodate and the permanent decline in the employee’s health, and properly allowed the employer’s motion for judgment notwithstanding the verdict as to the employee’s claims for front pay and other future damages [717-720], At the trial of a civil action alleging employment discrimination on the basis of handicap, the judge did not err in directing a verdict for the defendant employer on the plaintiff employee’s claim for punitive damages, where on the facts presented, there was no basis for finding that the defendant intentionally or willfully violated the law or that its conduct was evil in motive [720-722]; further, the judge did not abuse her discretion in ruling that the jury’s award of emotional distress damages was grounded in the evidence and within the range of just damages [723-724]; did not err in reducing the plaintiff’s award of attorney’s fees and costs [724-725]; and correctly calculated prejudgment interest [725-726], At the trial of a civil action alleging employment discrimination on the basis of handicap on a continuing violation theory, the judge did not err in allowing the jury to consider events that occurred after the plaintiff had filed her original charge with the Massachusetts Commission Against Discrimination (MCAD), and which were never included in that charge, where nothing in G. L. c. 151B, §§ 5 and 9, required the plaintiff to refile or amend her charge with the MCAD as a prerequisite to relying upon later incidents in support of an ongoing violation. [722-723] Civil action commenced in the Superior Court Department on June 5, 1998. The case was tried before S. Jane Haggerty, J., and a motion for judgment notwithstanding the verdict was heard by her. Laura R. Studen (Shepard Davidson with her) for the plaintiff. Barry A. Guryan for the defendants. NYNEX. Cohen, J. In this action brought pursuant to G. L. c. 151B, § 9, a jury awarded damages to the plaintiff, Doreen Smith, on account of the failure of her employer, the defendant telephone company (company), to reasonably accommodate her handicap, in violation of G. L. c. 151B, § 4(16). After concluding that the opinion of Smith’s medical expert was deficient and had to be struck, the trial judge allowed the company’s motion for judgment notwithstanding the verdict as to Smith’s claims for future damages; however, the judge refused to disturb the jury’s award for emotional distress suffered by Smith while she remained in the company’s employ. Before us are the parties’ cross appeals. Smith’s primary argument is that it was error to strike the opinion of her medical expert on the causal relationship between the company’s failure to accommodate and the permanent decline in her health, and that, therefore, the jury’s awards for front pay and other future damages should be reinstated. She also claims that the judge erred in directing a verdict for the company on her claim for punitive damages, that the judge improperly reduced her requested award of fees and costs, and that prejudgment interest was not properly computed. The company argues that its motion for judgment notwithstanding the verdict should have been allowed in its entirety, because no reasonable jury could find that Smith was a “qualified handicapped person” and because it made accommodations that were reasonable as matter of law. The company also contends that Smith was not entitled to rely upon events that occurred under supervisors who had not been named in the charge Smith filed with the Massachusetts Commission Against Discrimination (MCAD), and that both the jury’s award for emotional distress and the judge’s award of attorney’s fees and costs were excessive. We conclude that all of the challenged rulings were correct and, accordingly, affirm. 1. Factual background. We summarize the facts as the jury could have found them, adding details as needed during our discussion of the issues. From 1978 to 1999, Smith was employed by the company in its various iterations. Over the years, Smith, a college graduate with postgraduate engineering training, performed a number of different jobs and attained the position of “second-level manager.” Smith succeeded in the workplace despite having a significant disability. When she was two years old, Smith contracted polio, and after a long and difficult recovery that included a year in an iron lung and many surgical procedures, she was left with paralysis in one leg and diminished use of the other. As an adult, Smith ambulated using wrist-braced crutches, until 1992, when she began to experience increased fatigue, loss of body strength, and pain. She then started to use a scooter for all but short distances, transporting it in a large van equipped with hand controls and a lift. Eventually, Smith was diagnosed with post polio syndrome (PPS), a degenerative condition affecting some polio survivors. PPS is a consequence of polio’s effects upon nerve cells, some of which die, some of which are infected and weakened, and some of which remain normal. Functioning cells sprout more axons and try to compensate for the lost and weakened cells. Over time, these overworked cells start to die, and the patient experiences the symptoms of PPS. If the patient does not take care to avoid overexertion, PPS may accelerate. Individuals like Smith, who have diminished use of their legs, run the risk that overuse of their arms will result in wear and tear that eventually will compromise their ability to perform daily functions and live independently. In 1993, Smith worked out of the company’s Waltham office, but reported to a supervisor in Marlborough and traveled there on a regular basis. In May of that year, Smith was distressed to learn that she would have to work exclusively at the Marlborough facility. Smith lived in Dedham; her commute to Waltham had been only about twenty minutes, and parking was readily available. The longer drive to Marlborough was more fatiguing, and once she arrived, she often had trouble parking because there was only one van-accessible handicapped parking space, and people would park illegally and block access to her lift. When told of the move, Smith asked that she be allowed to continue using an office in Waltham, but she was required to relocate. She was not given an explanation for the transfer and knew of no reason why it was necessary. From June 21, 1993, until June 17, 1994, Smith was out of work on medical leave, undergoing and recuperating from knee replacement and shoulder surgery. This was not the first time that Smith had taken medical leave for surgical procedures. Between 1978 and 1991, she had several operations, but according to Smith, her medical absences did not cause any work-related problems, no one discussed them with her, and she remained involved with the company while on leave. Her performance evaluations between 1990 and 1993 were favorable, indicating that, with few exceptions, she met or exceeded objectives. During Smith’s June, 1993, to June, 1994, absence, another employee took over her projects. When preparing to return to work, Smith asked if she could come back on a part-time basis (she still needed to attend physical therapy) and do some of her work from home. Her doctor supported her request and wrote a letter to the company’s medical director requesting that Smith’s commuting distance be decreased or that she be allowed to perform some of her duties at home. Robert Olson, Smith’s supervisor, in conjunction with a company physician and the company’s disability advocate, considered her request and agreed to it. Such arrangements were not unprecedented; there were other, nonhandicapped second-level managers who did almost all of their work from home. When Smith returned to work, she was given a “special assignment” to perform asset measurement and planning. Smith’s project involved gathering and analyzing data, preparing reports, and reviewing the utilization of technology. In this position, Smith did not have supervisory responsibilities, but this, too, was not unique; there were other second-level managers on special assignments who did not supervise others. While it was necessary for her to do some traveling to company sites, the basic plan was for Smith to work at home at least two days a week and either at home or in Marlborough on the other days. This arrangement did not work out as Smith had hoped. Because she did not have a home office, she frequently needed to travel to Marlborough to collect and print out data to analyze at home. Early on, Smith requested that she be provided with a computer, but none was forthcoming until 1995 when Olson gave her a laptop that could not reliably run Lotus Notes, an important communications program that she needed for her work. Eventually, Smith purchased her own equipment, including a computer, printer, fax machine, copier, software, and office furniture. She did not seek reimbursement for these items, because she believed that the company would be unwilling to pay for them. Despite her requests, she had no dedicated telephone access from her home to the company’s network until 1997, when the company installed two “POTS” (“plain old telephone service”) lines in her home, one for her fax machine and one for her computer. She was not supplied with high-speed access. Smith’s efforts to avoid wear and tear on her arms by minimizing her driving and the number of “transfers” that she needed to make (e.g., from her scooter to the car and back again) were frustrated by her frequent need to travel to the office and to vendors. She repeatedly informed Olson, the company disability advocate, and company doctors about her difficulties. She asked to be assigned to a location closer to home and, before she acquired it herself, to be given home office equipment. Dr. Birchette-Pierce of the company’s medical department was supportive of Smith’s requests, but changes were not forthcoming. In early 1995, the company had Smith stay out of work for several weeks because Dr. Birchette-Pierce was of the opinion that Smith should not work without accommodation. Then, during the first week of April, 1995, Dr. Ryan, the head of the company’s medical department, called Smith and told her she would be fired unless she came to work the next day — informing her that it was her supervisor’s responsibility to provide accommodations for her, and not the medical department’s. Smith attempted to reach Olson; when she could not, she called the company’s ethics hotline. Again she was informed that it was her supervisor’s responsibility to provide reasonable accommodations. Smith came back to work on April 5, 1995, on a full-time basis. Smith wrote to Olson informing him that failure to change her work location or work arrangements would compromise her health. When they met the following week, Olson told her that he would look into transferring her to a location that was within a one-half hour commute of Dedham. Subsequently, Olson transferred Smith to Boston, where he had other subordinates working for him. While based in Boston, Smith continued to report to Olson, but her commute to Marlborough was reduced to one day a week. Although Smith’s commute was improved by getting an office in Boston, she had considerable difficulty with parking, because her oversized van would not fit into covered garages, and open lots refused to take such a large vehicle. On one day in June, 1995, Smith was unable to find a parking spot that would allow her to gain access to her ramp and retrieve her scooter. She therefore attempted to walk from her van to the office on crutches, but was knocked down by another pedestrian and injured her ankle. This injury kept her out of work until late July, 1995, when she returned, initially part-time, but full-time as of October, 1995. Shoulder surgery resulted in Smith losing considerable time from work during 1996, but in January, 1997, she again resumed full-time duties. In April, 1997, Smith had to have her knee surgery redone. She returned to work on a part-time basis at the end of November, and on a full-time basis the following year. In late 1997 or early 1998, Smith was transferred back to the Marlborough office, where her supervisor was now William Haid. She was assigned to develop measurement packages for new departments, which involved determining what data needed to be tracked and developing a system to collect it. According to Smith, with a functional home office, she could have performed ninety percent of her job at home. As it was, her home office was not adequate to the task. Smith had a friend from work install Lotus Notes on the home computer that she had purchased and, for a short time, that was successful. But then the computer developed a virus, and Smith lost the ability to use the program. When she tried to get help from the company’s information technology people, they refused because the company did not own the computer. Smith called a computer “doctor” and the computer company’s technical support Une. As she attempted to simultaneously hold the telephone and maneuver her computer, she lost her balance and tore her rotator cuff. When Smith informed Haid about issues with her home office, he told her that she needed to address them herself. For example, when she requested that her home be designated a secure site so that she would be permitted access to certain databases, Haid did not object, but said that she should do it herself, even though this was beyond her capacity. Furthermore, under Haid, Smith again found herself stymied in her efforts to restrict her trips to the office. Instead of communicating with her electronically, Haid sometimes would leave notes on her desk, which she would need to retrieve by travehng to Marlborough; when she attempted to participate in meetings by conference call, Haid and others sometimes neglected to call her or failed to caU her back after a break. Haid also once told Smith that people with disabihties have a place in the workplace, but that there are only certain jobs they are quaUfied to do. Smith informed Haid that her lack of resources and support was resulting in a decline in her over-all productivity. She frequently worked extra hours because more time was required to complete the assignments she was given. Haid did not respond to these concerns, but in her 1998 performance appraisal, Smith was told that even though she exceeded expectations in some respects, she did not meet other performance objectives. One of the unmet objectives was to define a “skill set” for telecommuting. Smith had informed Haid that accomplishing that task would require significant training, but he had not offered any support in that regard. In connection with her performance appraisal, Smith also was told that her contributions were not comparable to those of other second-level managers. Smith felt that this was because Haid expected her to be able to set up and maintain her own home office while other managers were not responsible for keeping their computers online. As of January, 1999, Smith again was working part-time, but resumed full-time work in March. By the end of 1999, however, despite the fact that she had always loved her job with the company, Smith came to the conclusion that she no longer could do her work effectively. She was too fatigued to travel and had a serious shoulder injury that required surgery. In June, 2000, after six months of short-term disability, Smith went out on total, permanent disability. She was then forty-seven years old. 2. Procedural background. Smith first pursued legal action against the company in December, 1995, when her requests for accommodations from Olson remained unresolved to her satisfaction. She filed a handicap discrimination charge with the MCAD against the company and Olson, claiming that they were not providing her with reasonable accommodations and had retaliated against her for requesting them. The charge was dismissed by the MCAD in November, 1998, on the ground that there was insufficient information to establish a violation. Meanwhile, in June, 1998, Smith filed a complaint asserting the same claims in Superior Court. As the case proceeded, the issues were narrowed: a judge partially allowed the company’s motion for summary judgment, dismissing Smith’s retaliation claim; and Smith discontinued her claims against Olson. When the case was tried to a jury in May, 2002, it was limited to Smith’s claim against the company for failure reasonably to accommodate her. At the close of the plaintiff’s evidence, the trial judge directed a verdict for the company on Smith’s claim for punitive damages. As for compensatory damages, Smith contended that the company’s failure to provide her with reasonable accommodations not only caused her to suffer emotional distress during the final years of her employment between 1993 and 1999, but also accelerated her physical deterioration to the point where she no longer could work and had to go out on total disability. The case was submitted to the jury on special questions. The jury found that Smith was a qualified handicapped person; that the company failed reasonably to accommodate her by providing her with an adequate home office, but that the company did not fail reasonably to accommodate her by providing her with a shorter commute and parking; and that fair compensation for her emotional distress from 1993 through 1999 was $207,000. The jury also found that the company’s failure reasonably to accommodate Smith was a substantial contributing factor in rendering her unable to work after 1999. They awarded her $1,000,000 for lost future wages; $300,000 for future medical and life care costs; and $200,000 for emotional distress after she ceased working. Before and during the trial, the company objected to the admission of the opinion testimony of Dr. Julie Silver, an expert on PPS and Smith’s treating physician, who stated that the company’s failure to accommodate was the major contributing factor leading to Smith’s rapid deterioration and inability to work. The judge reserved the issue and revisited it on the company’s motion for judgment notwithstanding the verdict, ruling that Dr. Silver’s opinion had to be struck because it was not adequately supported in methodology or fact. The judge further ruled that without Dr. Silver’s opinion there was no basis for any award of future damages. She therefore allowed the company’s motion for judgment notwithstanding the verdict except as to the jury’s award for emotional distress damages during the period of Smith’s employment between 1993 and 1999. On Smith’s motion, the judge awarded her attorney’s fees and costs, but not in the amount requested. The judge declined to award fees and costs incurred at the MCAD prior to the filing of Smith’s law

Maura McKeag Leach vs. Commissioner of the Massachusetts Rehabilitation Commission. No. 03-P-1540. Suffolk. September 20, 2004. May 19, 2005. Present: Celinas, Smith, & Cowin, JJ. Anti-Discrimination Law, Handicap, Employee. Employment, Discrimination. In a civil action alleging handicap discrimination in employment in violation of G. L. c. 151B, § 4(16), the defendant employer was not obligated to anticipate the likelihood that the plaintiff employee would develop a certain condition from the time of her hire through the time one and one-half years later when she first complained to the defendant of the condition, where development of the condition was by no means a certainty, and where the plaintiff gave no indication that she might suffer from the condition prior to her specific complaint. [566-568] In a civil action alleging handicap discrimination in employment in violation of G. L. c. 151B, § 4(16), the plaintiff employee failed to present sufficient admissible evidence at the summary judgment stage to warrant a finding in her favor either that she could perform the essential functions of her job with or without reasonable accommodation, or that, despite her needing reasonable accommodation in order to perform the essential functions, the defendant employer denied her such reasonable assistance. [569-570] Civil action commenced in the Superior Court Department on February 3, 1999. The case was heard by Christopher J. Muse, J., on a motion for summary judgment. Thomas O. Moriarty for the plaintiff. David Stanhill, Assistant Attorney General, for the defendant. Although the complaint was nominally brought against the Commissioner of the Massachusetts Rehabilitation Commission, the parties have treated the commission as the defendant. We adopt the parties’ position that the action is effectively against the commission. Cowin, J. The plaintiff, Maura McKeag Leach, commenced proceedings against her employer, the Massachusetts Rehabilitation Commission (commission or defendant), alleging, somewhat ironically, that the commission had violated the provisions of G. L. c. 151B, § 4(16), by failing to accommodate her handicaps (a hearing disability, followed by repetitive stress injury). A judge of the Superior Court allowed the defendant’s motion for summary judgment and dismissed the complaint. The plaintiff alleges various errors, asserting that (1) the defendant had an obligation to provide certain accommodations notwithstanding the absence of a specific request by the plaintiff therefor; (2) the judge erred in concluding that accommodation was unnecessary when an employee can perform the essential functions of the job without it; (3) the defendant failed to provide reasonable accommodations between August, 1996, and November, 1996; and (4) the judge’s determination that the plaintiff, even with accommodation, could not perform the essential functions of her job was not warranted. We conclude that, on this record, the defendant was not obligated to anticipate the need to accommodate the plaintiffs repetitive stress injury without a request by the plaintiff; the plaintiff failed to present sufficient evidence to support a finding that the defendant did not provide reasonable accommodation; and the plaintiff failed to show that she could perform the essential functions of her job even with reasonable accommodation. Accordingly, we affirm the judgment for the defendant. The material facts are not disputed. The plaintiff has a hearing disability. In August, 1994, she was hired by the defendant, a State agency that assists disabled clients to find employment, for the full-time position of vocational rehabilitation counselor. Because of her hearing handicap, the defendant provided the plaintiff with a teletypewriter so that she could communicate with others by means of typing messages carried over telephone lines. She was also required, as were other employees of the defendant, to use a computer on a regular basis. The plaintiff first experienced the physical symptoms of repetitive stress injury (RSI) in the fall of 1995. She did not bring the condition to the attention of any representative of the defendant at this time or for a number of months thereafter. However, by March, 1996, the pain had increased, and the plaintiff complained to the defendant’s general office secretary. She left work at this time, not returning until August, 1996. From some time prior to the hiring of the plaintiff in August, 1994, the defendant was aware of the science of ergonomics, as well as the increased risk experienced by hearing impaired persons of contracting RSI because of physical stress resulting from the use of communication expedients such as the teletypewriter. Indeed, the defendant assigned personnel to study the subject, and received recommendations that more should be done to make the commission’s work stations, especially those occupied by employees with a higher risk of developing RSI, ergonomically sound. In addition, during this period the defendant received periodic complaints from employees regarding their experiencing of symptoms of RSI. Prior to her return to work on a part-time basis in August, 1996, the plaintiff requested a swivel chair and a lower desk. Upon her return, the plaintiff discussed further accommodations with James Samo, the director of the commission’s Somerville regional office and the plaintiff’s unit supervisor. She was immediately given a new ergonomic chair as well as a reduced caseload and work hours. In addition, encouraged to do so by the defendant, the plaintiff requested that a rehabilitation engineer study her workspace. The request was granted, and the rehabilitation engineer recommended that a special computer desk be provided; that additional lamps be added to reduce eyestrain (not related either to the plaintiff’s hearing disability or to her RSI); and that the plaintiff resist her tendency to lift the little fingers while typing because of the stress caused to the tendons in her hands. Subsequently, an additional recommendation of a split keyboard was included. Between November and December, 1996, the defendant provided the plaintiff with an ergonomic desk, a split keyboard, and a wrist pad. The defendant also arranged for adjustments to the new ergonomic chair that the plaintiff had previously received. In response to the plaintiff’s further requests, the defendant assigned another employee to assist the plaintiff with typing on a part-time basis; hired a full-time vocational counselor to assist the plaintiff with her caseload; and arranged for a head clerk to provide additional assistance as necessary. The defendant did not provide the recommended additional lighting, nor did it accede to the plaintiff’s request for increased assistance by other commission personnel. Despite these accommodations, by December, 1996, the plaintiff was unable to work an eight-hour day, unable to type on the modified computer keyboard, unable to use the teletypewriter, and unable to write reports or communicate with others by means of sign language. She attempted to continue to work despite these limitations and the accompanying discomfort. In April, 1997, her physician advised that, despite various medications, therapies, and ergonomic adjustments to her work station, the plaintiff had not achieved permanent relief, and that “[h]cr symptoms seem to be exacerbated by stress and prolonged work at the computer keyboard.” The employee left work again, this time apparently permanently. Although the defendant thereafter offered that she could return to the position, the plaintiff did not accept the offer. We address first the plaintiff’s proposition that the defendant was obligated to anticipate the likelihood that she would develop RSI during the period of August, 1994 (her date of hire), through March, 1996 (when she first complained to the defendant of the condition), and arrange to provide accommodations at that time. It does not appear to be disputed that the defendant accommodated the plaintiff’s hearing disability per se. What the plaintiff complains of initially is that the defendant did not, during the first one and one-half years of her employment, recognize that she, as an individual with a hearing disability, was a candidate for RSI, and take steps to accommodate the potential RSI condition at that time. We consider this an unrealistically demanding standard and one not required by applicable legal principles. Ordinarily, an employer’s obligation to attempt to accommodate a handicapped employee comes into being when the employee brings his or her need for accommodation to the employer’s attention. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 457 (2002); Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 649 n.21 (2004). The guidelines promulgated by the Massachusetts Commission Against Discrimination (MCAD), which we regard as persuasive, though not binding, interpretive assistance, see Dahill v. Police Department of Boston, 434 Mass. 233, 239 (2001), indicate that it is generally “the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” MCAD Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B, § VILA (1998) (MCAD Guidelines). To the same effect, see Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (interpreting Americans with Disabilities Act). We recognize that there may be situations in which a request by the employee is unnecessary. These result from circumstances such as a condition that makes it obvious that accommodation is required, or a condition that renders the employee incapable of making a request. See Reed v. LePage Bakeries, Inc., supra at 261 n.7. Such situations will, by their nature, be infrequent, and there was no evidence that such circumstances existed in this case. With the accommodations that the defendant provided with respect to her hearing disability, the plaintiff functioned “normally most of the time.” Ibid. While hearing-disabled individuals in positions involving the use of equipment such as computers and teletypewriters are more susceptible to RSI than is the general population, development of the condition in this population subset is by no means a certainty, and prior to March, 1996, the plaintiff gave no indication that she might suffer from the condition. That the defendant was aware of the relationship between hearing disabilities and an increased risk of RSI, and that it had embarked on a program to improve its responses to clients and employees on the subject, does not mean that it was on notice that a specific individual (the plaintiff) required accommodation. We turn, then, to the period (March, 1996, forward) following the plaintiffs specific complaint regarding her RSI and her requests for accommodations. It is at this point, it appears to us, that each party diverts from the central question. The plaintiff accuses the motion judge of ignoring the proposition that accommodations may be required even though an employee is capable of performing the essential functions of a position without them. See New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 n.27 (2003); Carroll v. Xerox Corp., 294 F.3d 231, 237-238 (1st Cir. 2002). We do not locate such an error in the judge’s decision. Indeed, the judge implicitly acknowledged the principle on which the plaintiff insists by citing Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383 (1993) (qualified individual with handicap is one who can perform the essential functions of the job, with or without reasonable accommodation). Regardless, as the judge correctly concluded that the plaintiff had not shown that she could perform the essential functions of the job even with reasonable accommodations, any consideration of her rights in the event of a theoretical ability on her part to perform would be wholly hypothetical, and we do not undertake it. On its part, the employer argues that the plaintiff failed to prove that she was a “qualified handicapped person” as defined in G. L. c. 151B, § 1(16), and thus she is not entitled to protection pursuant to G. L. c. 151B, § 4(16). 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 reasonable accommodation to his handicap.” G. L. c. 15IB, § 1(16), as inserted by St. 1983, c. 533, § 2. Consequently, the definition by itself does not decide the outcome. Were the plaintiff to prevail on the proposition that she was capable of performing with or without accommodation, she would then have established that she is a “qualified handicapped person.” If she is unable to demonstrate that she can do the job, with or without accommodation, then she is not a “qualified handicapped person.” The definition of “qualified handicapped person” and the merits of an individual plaintiff’s case appear to be entirely intertwined. We therefore address what appears to us to be the crux of the case, i.e., whether the plaintiff presented sufficient admissible evidence at the summary judgment stage to warrant a finding in her favor either that she could perform the essential functions of the job with or without reasonable accommodation, or that, despite her needing reasonable accommodation in order to perform the essential functions, the defendant denied her such reasonable assistance. We agree with the motion judge that the evidence was insufficient to support either proposition. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 444. The evidence demonstrated that once the plaintiff informed the defendant’s agents of the onset of RSI, the defendant in fact engaged in the kind of “open and ongoing dialogue” with the employee that the MCAD Guidelines envision. See MCAD Guidelines § VII. This, together with the advice of a rehabilitation engineer, resulted in a reduction in the plaintiffs caseload; a reduction in her hours; acquisition of a new ergonomic chair, and subsequent adjustment of the chair; acquisition of a new desk, computer keyboard, and wrist pad; part-time assistance with computer work; assignment of a vocational counselor to assist with the now-reduced caseload; and additional assistance by the head office clerk. These efforts, perhaps influenced by the defendant’s own statutory mission and institutional sympathies for problems of this nature, were the antithesis of a failure to accommodate. Indeed, while the defendant would have the burden of proof on the subject, the plaintiffs demands appear to us to encroach on the defendant’s right not to be subjected to undue hardship as a result of an accommodation. See G. L. c. 151B, § 4(16). The plaintiff points to requests for accommodation that were denied. She was not provided with additional lighting, yet no relationship was shown between better lighting and the easing of the symptoms of RSI. The plaintiff complains further that the defendant did not address her requests for a full-time assistant, providing her only with the part-time help of employees with other responsibilities. However, the commission is an agency with limited, publicly funded resources. There comes a point at which those resources must be preserved for the commission’s clients. In sum, we conclude that no reasonable fact finder could determine on this record that the defendant failed in its legal obligation to provide reasonable accommodation to the plaintiffs handicap. Despite accommodations which, as set forth above, were not shown to be less than reasonable in the circumstances, the plaintiff has not demonstrated that she was capable of performing the essential functions of the position. Her own physician provided a statement that the plaintiff “has not found permanent relief of her symptoms.” Her claim on appeal that she is capable of performing the essential functions despite the pain is belied both by the evidence and by the fact that she left her employment voluntarily and has not returned despite the commission’s invitation to do so. Judgment affirmed. General Laws c. 151B, § 4, as inserted by St. 1983, c. 533, § 6, provides, in relevant part: “It shall be an unlawful practice: . . . (16) For any 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.” The plaintiff received workers’ compensation benefits both for this period and thereafter until July 28, 2001. Ergonomics is defined as “an applied science concerned with the characteristics of people that need to be considered in designing and arranging things that they use in order that people and things will interact most effectively and safely.” Webster’s Third New Intl. Dictionary 771 (2002). The plaintiff had, however, testified at a deposition that she in fact spent very little time at her computer because her assistant did most of that work. We acknowledge that the MCAD Guidelines on the subject were finalized in 1998, subsequent to the time at which the plaintiff was obligated to notify the commission that she desired accommodation. Nevertheless, the Guidelines themselves indicate that they are intended to reflect existing practices and preferences. See MCAD Guidelines § I. For a recent discussion of the concept of “essential functions,” see Cargill v. Harvard University, 60 Mass. App. Ct. 585, 594-597 (2004). The plaintiff observes that although she returned to work in August, 1996, the defendant did not produce much of the new equipment until November-December of that year, and asserts that the delay was itself a failure to accommodate. We agree that delay can be tantamount to denial. There is, however, no requirement that accommodation be instantaneous, and the equipment acquisition process in the State government can be slow. The plaintiff has not shown that any delay was intentional, or that it had an effect on her ability to perform the essential functions of the job.

FEYZ v MERCY MEMORIAL HOSPITAL Docket No. 246259. Submitted December 14, 2004, at Detroit. Decided January 13, 2005, at 9:00 a.m. Leave to appeal sought. Bruce B. Feyz, M.D., brought an action in the Monroe Circuit Court against Mercy Memorial Hospital, a private hospital, and members of its Executive Committee and staff, seeking injunctive relief and damages relating to his placement on indefinite probation by the defendants. The plaintiffs complaint included contract, tort, and statutory antidiscrimination claims. The court, Joseph A. Costello, Jr., J., granted summary disposition for the defendants, citing the doctrine of judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory immunity arising from the peer review committee referral of the plaintiff for psychological evaluation. The plaintiff appealed. The Court of Appeals held-. 1. The peer review statute, MCL 331.531(3)(b), generally grants a peer review committee of a hospital immunity for any act or communication within the committee’s scope as a review entity. There is no indication in the various civil rights acts specifically excluding a peer review committee. Similarly, there is no indication in the statute that would exclude a peer review committee from compliance with the various civil rights acts. The peer review statute is not absolute. At MCL 331.531(4), it specifically denies immunity for anyone acting with malice, that state of mind that is reckless of law and of the legal rights of others. Acting against statutory rights, such as civil rights, would represent a malicious act. 2. The trial court erred in using the doctrine of judicial nonreviewability of staffing decisions of private hospitals with regard to claims brought under statutes such as the Civil Rights Act. That doctrine does not preclude such claims. The principle of nonreviewability insulates a private hospital from attacks on its staffing decisions more than a public hospital is insulated, but not more than any other private employer. 3. A private hospital is capable of committing torts, and, when it does, it is a subject to be held hable as any other private corporation. The trial court improperly granted summary disposition against the plaintiffs count of invasion of privacy. 4. A private hospital is subject to the same breach of contract claims as any other private corporation. If the trial court determines that a breach of contract claim may be based on a corporation’s violation of its own bylaws, such a claim may be viable despite the nonreviewability doctrine. Affirmed in part, reversed in part, and remanded to the trial court for further proceedings. Murray, EJ., concurring in part and dissenting in part, agreed with the majority’s conclusion that the plaintiffs civil rights claims are subject to judicial review and that the peer review statute does not provide the hospital with immunity to statutory civil rights claims. However, he disagreed with the majority’s conclusion that case law does not preclude judicial review of contract and contract-related tort claims relating to a private hospital’s decision regarding a physician’s staff privileges, because the purpose of the statute granting immunity for the peer review committee would be defeated. The peer review immunity statute excepts decisions made with malice from immunity. The act of the peer review committee in sending the plaintiff to the Health Frofessional Recovery Frogram as a condition of remaining on staff, but with the committee’s full knowledge that he had no mental or physical limitations, would constitute malice in the decision-making process. Similarly, to the extent the plaintiff alleged a viable civil rights claim through other allegations, that statutory violation would also fall within the definition of malice in the decision-making process. The remaining tort and contract claims, to the extent they do not rely on the referral to the Health Frofessional Recovery Program, do not fall within the definition of malice and, so, are barred by the peer review statute, MCL 331.351. The tort claims that do allege improper referral are barred by the doctrine of nonreviewability. The trial court properly concluded that it could not review the plaintiffs contract and tort claims without intervening in the hospital’s decision and the peer review process. This Court should adhere to and support the rule that generally prohibits judicial review of the actions of a private hospital in disciplining a staff physician. 1. Hospitals — Peer Review Committee Immunity. The immunity afforded by the peer review statute does not extend to decisions made with malice, which would include violations of statutes such as civil rights acts (MCL 333.531). 2. Hospitals - Private Hospitals - Civil Liability. A private hospital is subject to the same potential civil liability of any private corporation that violates an employment statute, breaches a contract, or commits a tort. Jeffrey L. Herron for the plaintiff. Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery) for the defendants. Before: MURRAY, EJ., and SAWYER and SMOLENSKL, JJ. SAWYER, J. We are asked in this case to determine whether the doctrine that staffing decisions of private hospitals are not subject to judicial review precludes all such review, including claims brought under statutes such as the Civil Rights Act. We hold that the doctrine does not preclude such claims and reverse in part the trial court’s grant of summary disposition dismissing all the plaintiffs various claims against defendant. Plaintiff is a physician with staff privileges at defendant hospital. The individual defendants hold various administrative posts as the hospital. This action has its roots in a dispute between plaintiff and the hospital administration regarding various standing orders that plaintiff wrote with respect to his patients. Specifically, plaintiff directed the nursing staff, as part of the admissions process, to inquire of patients which medications they were taking at home and how they were taking those medications. Plaintiff explains that, in his experience, patients often do not take medications according to the instructions of the prescribing physician. He indicated that he believed he needed to know how the medications were actually being used by the patients, not merely how the patients were supposed to be taking the medications. The hospital administration reacted unfavorably to these standing orders. In fact, the nursing staff was directed to ignore the instructions. It was suggested to plaintiff that he raise the issue administratively, apparently with the end purpose of a uniform policy being adopted if merit was found in plaintiffs request. Although plaintiff pursued this route, it did not result in the adoption of a policy incorporating plaintiffs standing orders. The dispute was renewed. Ultimately, plaintiff was placed on indefinite probation, as well as a referral being made for a psychological examination of plaintiff (which plaintiff reports did not result in the diagnosis of a mental illness). Plaintiff thereafter instituted this action, filing multiple claims against defendants. The trial court granted summary disposition for the defendants, citing the doctrine of judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory immunity arising from the referral of a physician for medical evaluation. Specifically, the trial court opined as follows: Each of Plaintiffs claims arise out of activity involving a peer/professional review committee. Defendant asserts MCL 331.531 as a basis for immunity from liability. MCL 331.531 grants immunity to hospitals such as Defendant, which act within their scope as a review entity, as did the Defendants in this case. Plaintiff is correct that the immunity granted under the statute is “qualified” immunity, that is, immunity only where no malice has occurred, not “complete” immunity as asserted by the Defendants. However, no clear and convincing proof of malice can be found in Plaintiffs brief. Furthermore, according to both Regualos v. Community Hos, 364 N.W2d 723, 726 [140 Mich App 455 (1985)], and Hoffman v. Garden City Hospital — Osteopathic, 321 N.W2d 810 [115 Mich App 773 (1982)], decisions of governing bodies of private hospitals cannot be subjected to judicial review. Therefore, Summary Disposition should be granted pursuant to MCR 2.116(C)(8) upon the basis of the “Michigan Peer Review Statute” (MCL 331.531). It is clear that all causes of action in this case arise from the activity of the Defendants’ peer review board and thereby subjected to the said Peer Review Statute. Therefore, all other issues regarding Summary Disposition of this case need not be addressed. Because the trial court placed the greater emphasis on the peer review statute, we shall begin our analysis there. MCL 331.531 provides in pertinent part as follows: (1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider. (2) As used in this section, “review entity” means 1 of the following: (a) A duly appointed peer review committee of 1 of the following: (iii) A health facility or agency licensed under article 17 of the public health code, 1978 PA 368, MCL 333.20101 to 333.22260. (3) A person, organization, or entity is not civilly or criminally liable: (a) For providing information or data pursuant to subsection (1). (b) For an act or communication within its scope as a review entity. (c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3. (4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice. We turn first to plaintiffs allegations regarding violations of various civil rights acts. Plaintiffs complaint included counts alleging violations of the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq., the Americans With Disabilities Act, 42 USC 12101 et seq., the federal civil rights act, specifically 42 USC 1983 and 1985, and the Vocational Rehabilitation Act, specifically 29 USC 794. Even if the trial court is correct that all of plaintiffs claims arise out of the actions of a peer review committee, the peer review statute does not grant immunity for those actions that violate a civil rights act. We base this determination on two reasons. First, the peer review statute only grants immunity for “an act or communication within [the peer review committee’s] scope as a review entity.” MCL 331.531(3)(b). It is not within the scope of a peer review committee to violate someone’s civil rights. There is no indication in the various civil rights acts at issue here that peer review committees were excluded from the scope of those acts, nor is there any indication that the peer review statute intended to exclude peer review committees from compliance with the various civil rights acts. Indeed, the fact that immunity under the peer review statute is not absolute is reflected by the fact that § 4 denies immunity to a person, organization, or entity that acts with malice. Which brings us to the second reason, namely, that we view a violation of a civil rights act as being a malicious act. The following portion of the definition of “malice” from Black’s Law Dictionary (5th ed) is particularly apt in this situation: “Malice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.” The various civil rights acts adopted by the state Legislature and the United States Congress establish the legal rights of the citizens, including plaintiff. If defendants acted in disregard of those rights, doing so represents a malicious act and, therefore, is outside the scope of immunity granted by the peer review statute. We pause here to address an obvious flaw that permeates defendants’ brief on appeal and, to a lesser extent, the trial court’s opinion. That flaw is the argument raised that plaintiff is unable to factually support his claims. This is demonstrated by the following passage from defendants’ brief on appeal discussing the malice issue: “After reviewing the facts and record before it, the trial court then concluded that ‘no clear and convincing proof of malice can be found in Plaintiff’s brief.’ ” (Emphasis supplied by defendants.) But summary disposition was granted under MCR 2.116(C)(8) (failure to state a claim), not C(10) (no genuine issue of material fact). Furthermore, the trial court’s analysis was even more narrow in that it did not even determine if plaintiff had adequately pleaded violations of the various civil rights acts. Rather, the trial court limited its decision to whether plaintiff had adequately pleaded in avoidance of the immunity granted by the peer review statute and in avoidance of the doctrine of judicial nonreviewability of staffing decisions by private hospitals. Therefore, the question whether plaintiff can factually support his claims of civil rights violations is not before us, nor, for that matter, is the question whether plaintiff even adequately plead those causes of action. The only question before us in this appeal, with respect to the counts of the complaint that allege the statutory civil rights violations, is whether a claim of such a violation falls outside the scope of immunity granted by MCL 331.531. For the reasons stated above, we conclude that it does. Accordingly, the trial court erred in granting summary disposition under MCR 2.116(C)(8) with respect to counts I through IV of plaintiffs complaint on the basis of the immunity granted by MCL 331.531. Additionally, plaintiffs complaint contains allegations of invasion of privacy (count V), breach of fiduciary and public duties (count VI), and breach of contract (count VII). The invasion of privacy count is based on plaintiffs allegations that the hospital’s Executive Committee, acting on recommendations by the ad hoc investigating committee, referred plaintiff to the state’s Health Professional Recovery Program (HPRP). Plaintiff alleges that he cooperated with the referral, submitting to a psychiatric evaluation, which determined that there was no mental health or substance abuse disorder and no reason for plaintiff to participate in an HPRP program. Count VI (breach of fiduciary and public duties) is somewhat more tenuous. Plaintiff alleges that defendant hospital has a duty to its staff and the community at large to operate the hospital in the interest of public health care and in a manner that permits the staff to meet its professional obligations to patients. Plaintiff alleges that defendants violated these duties by suppressing dialogue and debate among the staff regarding patient care issues, by ignoring the hospital and medical staff bylaws, by improperly influencing members of hospital and staff committees, by intimidating plaintiff, by referring plaintiff to the HPRR by conspiring to prevent medical staff from documenting errors in medical care, by retaliating against plaintiff, and by taking disciplinary action against plaintiff. Count VII (breach of contract) specifically alleges that the medical staff bylaws constitute a contract and that defendants repeatedly breached that contract by ignoring unspecified procedural requirements of the bylaws and by committing other unspecified violations of the bylaws. Turning first to count V the referral to the HPRP by the Executive Committee would clearly come within the scope of a peer review committee’s actions and, although plaintiff alleges that the referral proved unnecessary, plaintiffs complaint raises no allegations in this count that would indicate that the referral was maliciously made. Therefore, our focus turns to plaintiffs argument that the Executive Committee does not constitute a peer review committee under the statute and, therefore, is not entitled to the immunity the statute affords. MCL 331.531(2) (a) does not define “review entity” with specificity or limitation. Indeed, the only restrictions imposed by the statute regarding what constitutes a “review entity” under the statute is that it must be a “duly appointed peer review committee” of one of the institutions listed in the statute. It is undisputed that the hospital is such an institution. Plaintiff, however, disputes that the Executive Committee has been “duly appointed” as a peer review committee. In response, defendants only argue that the ad hoc committee formed to investigate the allegations against plaintiff made by the hospital constitutes a “duly appointed review committee” under the medical staff bylaws. Paragraph 57 of plaintiffs complaint, however, alleges that it is the Executive Committee, not the ad hoc committee, which made the HPRP referral that is the basis for the allegations in count V The ad hoc committee’s status as a peer review committee grants that committee immunity, but that does not make the Executive Committee a peer review committee and, therefore, does not grant the Executive Committee immunity. We do note that summary disposition to the individual defendants with regard to count V would be appropriate to the extent that the only basis for their liability would be their participation in the ad hoc committee’s investigation and the recommendations made to the Executive Committee. Turning to count VI, we begin by noting that the allegations of duties and breaches of those duties are so vague and nebulous that we are skeptical that count VI could survive a motion under MCR 2.116(C)(8) that directly attacks whether it states a claim in its own right. But, as noted above, the trial court granted summary disposition on the narrow ground that the claim does not survive the grant of immunity under the peer review statute. In this respect, the allegations do not appear to allege liability based on the actions of the ad hoc committee, the only entity that defendant has identified as being a duly appointed peer review committee. Therefore, summary disposition based on the peer review statute was improper. Turning to count VII, in which, as in count VI, the allegations are extremely vague, we are once again skeptical that it could survive a motion for summary disposition if the motion were decided on broader grounds than that employed by the trial court. But the allegations in this count, such as they are, clearly implicated activity beyond that of the ad hoc committee. Accordingly, plaintiff states (or attempts to state) a cause of action that is broader than the activity that would come within the statutory grant of immunity. Therefore, while summary disposition of this count may ultimately prove appropriate, it is not appropriate on the ground given by the trial court with respect to the immunity granted by the peer review statute. Having concluded that, with the possible minor exception of claims against individual members of the ad hoc committee under count V of the complaint, summary disposition under the grant of immunity in the peer review statute was improper, we turn to the other basis cited by the trial court, the doctrine of nonreviewability of staffing decisions by private hospitals. Although, given the state of the law in this area, the trial court’s conclusions are understandable, a careful examination of the doctrine and its historical roots reveals that its applicability is not so broad as to prevent plaintiffs cause of action in this case. The doctrine that staffing decisions at private hospitals are not subject to judicial review has its roots in Michigan jurisprudence in the case of Hoffman v Garden