Failure to Accommodate Cases

Ocean Spray Cranberries, Inc. vs. Massachusetts Commission Against Discrimination & another. Suffolk. January 8, 2004. May 12, 2004. Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Handicap, Damages. Employment, Discrimination. Handicapped Persons. Damages, Under anti-discrimination law. Limitations, Statute of. Massachusetts Commission Against Discrimination. This court concluded that the Massachusetts Commission Against Discrimination, in deciding that an employer failed to provide a reasonable accommodation to a handicapped employee in violation of G. L. c. 151B, § 4, correctly ruled that sufficient evidence existed to prove that the employee’s vision impairment after implant surgery substantially limited a major life activity, that is, his ability to work, where the employee’s increased difficulty seeing small parts of machinery restricted his ability to perform a class of jobs, namely, equipment maintenance in manufacturing plants. [636-641] In the context of an action alleging that an employer failed to provide a reasonable accommodation to a handicapped employee in violation of G. L. c. 151B, § 4, this court concluded that when an employer responds to a request for such an accommodation with equivocal action or inaction, the limitations period in G. L. c. 151B, § 5, begins to run at the point thereafter when the employee knew or reasonably should have been aware that the employer was unlikely to afford him or her a reasonable accommodation [641-646]; therefore, where there was no basis in the record in a proceeding before the Massachusetts Commission Against Discrimination to support the conclusion that a handicapped employee did not know or should not reasonably have been aware that his employer was not going to accommodate a reasonable request that the employee had made prior to taking medical leave from work, a claim based on that failure to accommodate was time barred, but evidence of the employer’s responses or inaction to that request was relevant as background evidence in relation to a later claim that was not time barred [646-647]. In a civil action arising from a decision of the Massachusetts Commission Against Discrimination (commission) that an employer failed to provide a reasonable accommodation to a handicapped employee in violation of G. L. c. 151B, § 4, sufficient evidence existed to support a hearing commissioner’s findings that, under the circumstances, the employee was entitled to request a reasonable accommodation; that the employer did not engage in the required interactive process to determine an appropriate accommodation; and that the employee made a timely request for accommodation [648-650]; however, because the plaintiff could not recover damages for time-barred events, this court remanded the case to the commission for further proceedings with regard to the assessment of damages [650-651], Civil action commenced in the Superior Court Department on November 2, 2001. The case was heard by Judith Fabricant, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Kay H. Hodge for the plaintiff. Michael M. Kramer for Richard Rapoza. Steven S. Locke (Wendy A. Cassidy with him) for Massachusetts Commission Against Discrimination. Richard Rapoza. Cordy, J. This case requires us to decide whether and how the “continuing violation” doctrine applies to an action alleging that an employer failed to provide a reasonable accommodation to a handicapped employee in violation of G. L. c. 151B, § 4. 1. Procedural history. On September 15, 1995, Richard Rapoza filed charges of discrimination against his former employer, Ocean Spray Cranberries, Inc. (Ocean Spray), with the Massachusetts Commission Against Discrimination (MCAD or commission). The charges included an allegation that Ocean Spray failed to accommodate Rapoza’s impaired vision despite his requests for accommodation beginning in May, 1993. The commission found probable cause to credit some of Rapoza’s allegations and certified the case for a public hearing. A commissioner conducted the hearing over four days in April and June, 1997, after which he issued a written decision including detailed findings of fact and conclusions of law. He concluded that Rapoza’s impaired vision qualified him as a “handicapped person” under G. L. c. 151B, §§ 1 and 4, and that Ocean Spray had failed to accommodate his handicap, “completely disregard[ing his] requests for help.” The commissioner awarded Rapoza $50,000 for emotional distress incurred from the time he first requested accommodation in May, 1993, until his termination from Ocean Spray in June, 1995. The commissioner also ordered Ocean Spray to design an antidiscrimination policy and implementation plan, and to retain a commission-approved antidiscrimination trainer. Ocean Spray appealed from the commissioner’s decision to the commission, arguing that Rapoza’s complaint was not filed timely and that he was not a “handicapped person.” The commission affirmed the commissioner’s order, concluding that Rapoza’s complaint was timely under the “continuing violation doctrine,” and that Rapoza’s visual impairment substantially limited both his ability to see and his ability to work, thus qualifying him as a “handicapped person.” Pursuant to G. L. c. 30A, § 14, Ocean Spray appealed from the commission’s decision to the Superior Court, where it was affirmed in all respects except with regard to its remedial order. The Superior Court judge concluded that the order requiring Ocean Spray to develop an antidiscrimination policy and to hire a trainer was not reasonably tailored to the violations found and therefore constituted an abuse of discretion. After the judge modified the order accordingly, Ocean Spray appealed, and we granted its petition for direct appellate review. We remand the case to the commission for a recalculation of damages incurred by Rapoza within the six-month period preceding the filing of his charge of discrimination with the commission. 2. Background. The hearing commissioner found the following facts. Ocean Spray employed Rapoza from 1987 until 1995. For most of that time, Rapoza worked as a maintenance mechanic in the “brik pak” department,* * performing repairs on very small parts inside certain machinery in poorly lit areas of the plant. For most of his lifetime, Rapoza had no vision in his left eye as the result of a childhood accident. In March, 1992, Rapoza underwent lens implant surgery, which restored vision in his left eye somewhat, but left him with a depth perception problem that caused him to have difficulties seeing small objects. This vision problem made it difficult for Rapoza to work with small machine parts and affected his performance at work. Rapoza discussed his vision problem and its impact on his performance with his direct supervisor, Dan Kanaley, on several occasions beginning in May, 1993. During one such discussion, Rapoza specifically requested more lighting in the brik pak area, but no additional lighting materialized. Kanaley asked Rapoza to provide written documentation of his vision problem, and Rapoza complied by submitting a letter from his eye doctor to Ocean Spray’s human resources manager, Barbara Denker, on June 17, 1993. The letter stated that Rapoza “has difficulties with depth perception” that may cause “difficulties with fine tolerance measurements and close work”; additionally the letter requested “[a]ny help you are able to provide for him in modifying his workplace . . . .” In subsequent conversations with Kanaley and Denker, Rapoza suggested that he might work in a different area of the plant, where the parts were larger and therefore easier for him to see. Nothing came of this suggestion. In November, 1994, one and one-half years after first seeking some accommodation for his impaired vision, Rapoza left work to undergo heart surgery. Both during his recovery period and after returning to work in April, 1995, Rapoza provided Denker with letters from doctors referring to his vision problems. The first, a letter from Rapoza’s psychologist dated March 29, 1995, explained that Rapoza would not be able to return to work before April 17 and described Rapoza as “exhibiting physical and psychological characteristics of an Adjustment Disorder with Anxiety and Depressed Mood” as a result of the “pressures, demands and requirements of his job where the performance and effectiveness expected of him exceed the physical capabilities placed on him as a result of his limited vision in his left eye.” The psychologist’s letter also included a copy of the June 17, 1993, letter from Rapoza’s eye doctor. Rapoza’s cardiologist supplied a second letter, dated April-14, 1995. That letter indicated that Rapoza’s vision problem was causing “considerable stress which could aggravate his cardiac status” and recommended “that he function in an environment where this physical limitation would be minimally aggravating.” Finally, in response to another Ocean Spray request for an update on his vision problem, Rapoza submitted a letter from his eye doctor dated May 17, 1995, stating that he “has limited depth perception and difficulties with close work” and again requesting “[a]ny help which you could provide him in modifying his work place . . . .” Ocean Spray took no action in response to any of these letters, and subsequently terminated Rapoza’s employment on June 22, 1995, for falsifying his time card. 3. Discussion. We 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.” Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 676 (1993). We first discuss whether Rapoza’s physical impairment qualified him as a handicapped person, then assess whether the “continuing violation” doctrine brought Rapoza’s action within the statute of limitations, and finally, address whether Ocean Spray met its obligation of reasonable accommodation. a. “Handicap.” General Laws c. 15IB, § 4(16), prohibits discrimination against “a qualified handicapped person.” The statute defines a “handicapped person” as “any person who has a handicap,” G. L. c. 151B, § 1 (19), and in turn defines a “handicap” as: “(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” (emphasis added). G. L. c. 151B, § 1 (17). “[M]ajar life activities” are “functions, including, but not limited to, . . . seeing . . . and working.” G. L. c. 151B, § 1 (20). “The statute draws a distinction between persons who have a physical or mental impairment, and those whose impairment ‘substantially limits’ a ‘major life’ activity. . . . Only the latter are protected by the Massachusetts statute.” Dahill v. Police Dep’t of Boston, 434 Mass. 233, 237 (2001). Ocean Spray contends that the commissioner and the commission erred when they determined that Rapoza’s vision impairment substantially limited a major life activity. “Our review is limited to determining whether the commissioner’s findings and conclusions were supported by substantial evidence, and whether there was an error of law.” College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 170 (1987), citing G. L. c. 151B, § 6, and G. L. c. 30A, § 14 (7). General Laws c. 151B anticipates that determining whether a person is a “handicapped person” will be an individualized inquiry. See G. L. c. 151B, § 1 (17) (defining “handicap” as “physical or mental impairment which substantially limits one or more major life activities of a person” [emphasis added]). Accord Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999) (“whether a person has a disability under the [Americans with Disabilities Act] is an individualized inquiry”); Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B, § B.A.6 (1998) (MCAD Guidelines) (“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”). As such, per se rules are to be avoided. In this case, Rapoza has asserted that he is handicapped because problems with his vision substantially limit two major life activities: working and seeing. See G. L. c. 15IB, § 1 (20). Notwithstanding that Rapoza himself, the commission, and the judge in the Superior Court who affirmed the commission’s decision all combined and conflated the “working” and the “seeing” claims, each claim is separate and distinct, and must be assessed independently of the other. See New Bedford v. Massachusetts Comm’n Against Discrimination, 440 Mass. 450, 464, 466 (2003) (examining “working” separately from major life activity of “thinking”). See also, e.g., Fraser v. Goodale, 342 F.3d 1032, 1041 (9th Cir. 2003), cert. denied sub nom. United States Bancorp v. Fraser, 124 S. Ct. 1663 (2004) (addressing each life activity “in turn” for claim under the Americans with Disabilities Act); Steele v. Thiokol Corp., 241 F.3d 1248, 1253 (10th Cir. 2001) (same). We turn first to the more narrow claim of “working.” Rapoza has suffered a visual impairment since his early teens, when he was shot in the left eye with a BB gun. The accident left him with no functional vision in that eye. The fact that he had monocular vision, however, did not form the basis of his claim to be “handicapped.” That charge stems from the effects of intraocular lens implant surgery that Rapoza underwent in 1992, when he was fifty-two years old. At that time he had been working at Ocean Spray for five years. While the operation restored partial vision to Rapoza’s left eye, it left him with a problem of depth perception. The entire thrust of Rapoza’s sole surviving claim is that the 1992 eye surgery triggered his legal handicap. To prevail on his claim that his postsurgery visual impairment became a legal handicap due to its impact on his ability to work, it was Rapoza’s burden to establish that his daily activity of working was substantially limited after his surgery. See, e.g., Dube v. Middlesex Corp., 59 Mass. App. Ct. 734, 737-738 (2003) (plaintiff left with permanent arm impairment after accident not “handicapped” within meaning of G. L. c. 151B, § 1 [17]). Both the MCAD and Equal Employment Opportunity Commission agree that an impairment substantially limits an individual’s ability to work “if it prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes.” MCAD Guidelines, supra at § H.A.6. 29 C.F.R. § 1630.2(j)(3)(i) (2003). We recently clarified this standard in New Bedford v. Massachusetts Comm’n Against Discrimination, supra at 466, where we ruled that, consistent with the MCAD Guidelines and with Federal precedent, the fact that an individual is unable to perform “only a particular aspect” of a “single, particular job” is not sufficient to satisfy the “substantial limitation” requirement of our antidiscrimination statute. Id. Under this standard, we conclude that the commission was correct to rule that the evidence was sufficient to prove that Rapoza’s vision impairment after the implant surgery substantially limited his ability to work. At the time he was terminated, Rapoza had worked as an equipment maintenance operator at Ocean Spray and at his previous employer for a total of more than thirty years. During his first few years at Ocean Spray, Rapoza was assigned to general equipment maintenance, which meant he performed maintenance on machinery throughout the plant. At his request he was then assigned exclusively to maintaining machinery in the brik pak department, where he remained for the next three years. Rapoza testified that, while working in that department, he began to experience problems, especially in working on the “filler” machine where he “struggled” with its “real fine and close work.” Certainly, Rapoza’s testimony that he “couldn’t focus properly” and “couldn’t see what [he] was doing” when working on the filler machine is evidence that he was substantially limited at least in his ability to perform the particular job of an equipment maintenance mechanic in the brik pak department. But, as we explained in New Bedford v. Massachusetts Comm’n Against Discrimination, supra, Rapoza’s inability to perform a “single, particular job” does not suffice to establish that he is substantially limited in the major life activity of working. The evidence must show instead that he is substantially limited in a “class of jobs,” such as equipment maintenance in manufacturing plants. This is the “class of jobs” for which he is trained and experienced in performing. As to that, there is evidence to the effect that all of Ocean Spray’s equipment maintenance mechanics were required to do some fine detail work. Two Ocean Spray managers testified that equipment maintenance throughout the plant involved small parts and fine tolerance work because the plant’s machinery was becoming increasingly electronic and computerized. Moreover, the evidence of the plant’s increasing technological sophistication strongly suggests that Rapoza would have had substantial difficulty working as an equipment maintenance mechanic for Ocean Spray in any other part of its plant. There is nothing in the record to suggest that the deterioration in depth perception that attended Rapoza’s implant surgery is temporary. And there is every reason to conclude that Ocean Spray fully recognized that, if Rapoza could not perform equipment maintenance work in the brik pak department, he would have no better success as an equipment maintenance worker anywhere else in its plant. Rapoza testified that his supervisor told him, “[Y]ou’re either going to make it here or you’re not going to make it anywhere.” Last, it is unlikely that the job demands on a machine maintenance mechanic created by the “computerization” of Ocean Spray’s plant machinery is atypical of the job demands on such employees in comparable manufacturing plants. The commission concluded that Rapoza’s visual impairment substantially limited his ability to perform “any line of work that would require him to see and use small parts.” The commission’s finding is supported by the record, and Rapoza’s increased difficulty seeing small parts of machinery would substantially restrict his ability to perform a class of jobs, namely equipment maintenance in manufacturing plants. Contrast New Bedford v. Massachusetts Comm’n Against Discrimination, supra (police officer not reinstated to SWAT teams after leave of absence was not substantially limited in major life activity of working). b. Limitations period. At the time Rapoza filed his charge of discrimination, G. L. c. 151B, § 5, as amended through St. 1989, c. 722, § 29, provided: “Any complaint filed pursuant to this section must be so filed within six months after the alleged act of discrimination.”* Ocean Spray contends that any alleged acts of discrimination occurring prior to March 15, 1995 (six months prior to the filing of the complaint with the commission) are barred by this statute, and that the alleged acts of discrimination occurring after that date do not constitute a failure to provide reasonable accommodation. By the plain language of the statute, the limitations period begins to run at the time of the “act of discrimination.” In some instances, the precise moment of the “act of discrimination” is easy to calculate: plainly, if an employee is denied a promotion on an improper basis, the date of the “act of discrimination” is the date of that denial. See, e.g., Dubose v. Massachusetts Bay Transp. Auth., 25 Mass. Disc

Kathleen Pielech & another vs. Massasoit Greyhound, Inc. (and a companion case). Bristol. December 1, 2003. March 11, 2004. Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ. Statute, Retroactive application, Validity. Due Process of Law, Retroactive application of statute. Res Judicata. Practice, Civil, Amendment, Complaint. Retroactive application of the 1997 amendment of G. L. c. 151B, § 4 (1A), prohibiting employment discrimination based on sincerely held religious beliefs, whether or not shared by members of an organized religion, violated the defendant employer’s due process rights under the Fourteenth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights, because the changes to the statute created new legal liability on the part of the defendant that did not exist when the plaintiffs’ complaint arose. [192-196] In a civil action alleging employment discrimination under G. L. c. 151B, § 4 (1A), a Superior Court judge neither erred nor abused his discretion in denying the plaintiffs’ motion to amend the complaint to add a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994), given the procedural permutations of the case and the lateness of the plaintiffs’ motion. [196-198] Civil action commenced in the Superior Court Department on June 15, 1993. The case was heard by John J. O’Brien, J., on motions for summary judgment. Following review by this court, 423 Mass. 534 (1996), a motion to amend the complaint was heard by Mitchell J. Sikora, Jr., J., and the case was consolidated by him with a second action commenced in the Superior Court Department on February 28, 1997. The consolidated cases were tried before John A. Tierney, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Harvey Weiner (Barry D. Ramsdell & Michael P. Duffy with him) for the plaintiffs. Joel A. Kozol (Christine P. Deshler with him) for the defendant. Patricia Reed. Ireland, J. This case has a long procedural history, which we discuss below, concerning the same plaintiffs who were before this court in Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534 (1996), cert. denied, 520 U.S. 1131 (1997) (Pielech I). In Pielech I, this court declared G. L. c. 151B, § 4 (1A), unconstitutional. Subsequently, the Legislature amended the statute, including a provision to make the amendment retroactive. St. 1997, c. 2. After a jury trial in the Superior Court where the defendant was found, inter alla, liable for discrimination, the parties filed cross appeals. We transferred the case here on our own motion. Because we conclude that the changes to G. L. c. 151B, § 4 (1A), have a substantial effect on the defendant’s rights, retroactive application of those changes violates the defendant’s due process rights under the Fourteenth Amendment to the United States Constitution and art. 10 of Massachusetts Declaration of Rights. 1. Procedural background. We recount the relevant procedural history, much of which is discussed in Pielech I, supra; Opinion of the Justices, 423 Mass. 1244 (1996); and Pielech v. Massasoit Greyhound, Inc., 47 Mass. App. Ct. 322 (1999) (Pielech II). a. Before the 1997 amendment. This case began when the two plaintiffs alleged that they were discriminated against after the defendant terminated their part-time jobs when they refused to work their regularly scheduled shift, which fell on Christmas Day of 1992. The plaintiffs claimed that they were devout Roman Catholics and their beliefs obligated them to refuse to work on Christmas Day. In their complaint, the plaintiffs alleged discrimination (G. L. c. 151B, § 4 [1A]), violation of the Massachusetts Equal Rights Act (G. L. c. 93, § 102), and intentional and negligent infliction of emotional distress. A Superior Court judge granted the defendant’s cross motion for summary judgment on the issue of liability under G. L. c. 151B, § 4 (1A), because no tenet of Roman Catholic dogma required that the plaintiffs abstain from working on Christmas Day. The plaintiffs appealed, and in Pielech 7, this court held that G. L. c. 151B, § 4 (1A), violated the establishment clause because it protected an employee from being required to work in contravention of a sincerely held religious belief only if that belief was shared by others belonging to an organized church or sect. See Opinion of the Justices, supra at 1245. In response, the Legislature amended the statute in 1997, granting individuals protection from discrimination for their sincerely held religious beliefs, whether or not such beliefs are part of religious dogma. Moreover, the Legislature made the 1997 statute retroactive. Section 3 of St. 1997, c. 2, states: “The provisions of section two of this act shall apply to all claims arising not earlier than three years before the effective date of this act which have not yet been filed, and to all other claims pending before the commission against discrimination or a court on the effective date of this act, including claims upon which final judgment or judgment after rescript has not entered or as to which a period to file an appeal, certiorari petition, petition for rehearing or similar motion has not expired on said effective date.” In 1996 (before the Legislature adopted the amended statute) an order adopted by the House of Representatives and submitted to the Justices asked, inter alla, whether the retroactive provision in the amendment violated the due process clause of the Fourteenth Amendment and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights. The Justices declined to address the question, stating, “[T]he answer . . . will depend on the facts of each case.” Opinion of the Justices, supra at 1247. b. After the 1997 amendment. The day after the 1997 statute was enacted, “the plaintiffs initiated a separate action ... in the Superior Court under G. L. c. 151B, § 4 (1A), as amended by St. 1997, c. 2, repeating the discrimination claims of their 1993 complaint.” Pielech II, supra at 324. In addition, inter alla, “the plaintiffs ... on March 28, 1997, . . . fil[ed] an ‘emergency’ motion pursuant to Mass. R. Civ. R 60 (b) (6), 365 Mass. 828 (1974), in which they sought relief from the summary judgment dismissing their original complaint . . . [and] filed a motion to amend their original complaint by substituting the amended § 4 (1A) and adding a count under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e (1994), accompanied by a ‘First Amended Complaint’ that repeated verbatim the counts under G. L. c. 93, § 102, and for intentional and negligent infliction of emotional distress contained in their original complaint. On April 25, 1997, the rule 60 (b) (6) motion was denied by the same Superior Court judge.” Pielech II, supra at 324. The plaintiffs appealed. The Appeals Court reversed the motion judge’s denial of the rule 60 (b) (6) motion as to the plaintiffs’ claims under the 1997 statute only. Pielech II, supra at 328. The Appeals Court did not decide the issue of the constitutionality of the 1997 statute. Pielech II, supra at 327-328. After the motion judge denied the plaintiffs’ motion to amend the complaint to add a Title VII claim and consolidated the two cases, the matter went to trial on the G. L. c. 151B, § 4 (1A), claim. At the close of evidence, the trial judge denied the defendant’s motion for a directed verdict pursuant to Mass. R. Civ. P. 50 (a), 365 Mass. 814 (1974), on the ground that the retroactive application of the 1997 statute violated its due process rights. The jury returned a special verdict, finding that the defendant had discriminated against the plaintiffs and that its refusal to accommodate the plaintiffs’ religious beliefs was not because of an undue hardship. The jury awarded compensatory damages to both plaintiffs and punitive damages in the amount of one dollar each. The trial judge ruled on posttrial motions from both the plaintiffs and defendant, but the only posttrial motion relevant here is the defendant’s motion for judgment notwithstanding the verdict. The trial judge denied that part of the defendant’s motion concerning whether the retroactive application of the 1997 statute violated its due process rights. Both parties raise several issues on appeal. However, because we conclude that the retroactive clause of the 1997 statute violates the defendant’s due process rights, we need not address all of them. 2. Discussion, a. Retroactivity of the 1997 statute. “Where it appears that the Legislature intended an act to be retroactive, this intent should be given effect in so far as the Massachusetts and Federal Constitutions permit.” St. Germaine v. Pendergast, 416 Mass. 698, 702 (1993), citing Canton v. Bruno, 361 Mass. 598, 606 (1972). Only those retroactive statutes “which, on a balancing of opposing considerations, are deemed to be unreasonable, are held to be unconstitutional.” Leibovich v. Antonellis, 410 Mass. 568, 577 (1991), quoting American Mfrs. Mut. Ins. Co. v. Commis sioner of Ins., 374 Mass. 181, 189-190 (1978). See St. Germaine v. Pendergast, supra at 702-704. A statute is presumed to be constitutional and every rational presumption in favor of the statute’s validity is made. Id., and cases cited. The challenging party bears a heavy burden to demonstrate, beyond a reasonable doubt, that there are no conceivable grounds supporting its validity. Id. at 703, citing Leibovich v. Antonellis, supra at 576. A court is only to inquire whether the Legislature had the power to enact the statute and not whether the statute is wise or efficient. St. Germaine v. Pendergast, supra at 703, citing Leibovich v. Antonellis, supra. As we noted above, the Legislature’s enactment of the 1997 statute was in response to our decision in Pielech I. See Opinion of the Justices, supra at 1244-1245. In Pielech I, supra at 536-539, this court determined that the defendant did not violate the earlier version of the statute because it covered religious discrimination only if the religious belief or practice was required by a religion; it did not cover sincerely held religious beliefs. The court went on to hold, however, that that very feature was what rendered the statute unconstitutional. Id. at 540-542. This case is similar to and governed by St. Germaine v. Pendergast, supra. St. Germaine was severely injured while working on the defendant’s single-family home. Id. at 699-700. St. Germaine and his parents brought an action claiming, inter alla, that the defendant was liable for violating provisions of G. L. c. 143, § 51. Id. at 700. This court held that the relevant provisions of G. L. c. 143, § 51, did not cover a single-family home under construction. Id. at 700-701. In response, the Legislature enacted St. 1992, c. 66, and amended the statute, inserting language that covered the defendant’s actions and made the 1992 statute retroactive. Id. at 701. The court held: “The substantial effects the statute would have on [the defendant’s] rights, holding his past actions to a new and significant obligation, offset any public interest there may be in providing retroactively for civil liability for violations of the State Building Code. We conclude that the retroactive application of St. 1992, c. 66, amending G. L. c. 143, § 51, to [the defendant] is unreasonable and violates art. 10. . . . [Fjaimess is the touchstone of due process and to hold [the defendant] liable to new obligations would offend fundamental fairness. A statute that retroactively imposes liability, without regard to fault, on a person who could reasonably have relied on the law at the time he elected to perform an act on which the new statutory liability is sought to be based violates art. 10, where no significant public interest is served by creating liability.” Id. at 703-704. Like the statute in the St. Germaine case, the 1997 statute created a new substantial right. The statute as it existed in 1992 did not cover discrimination based on an individual’s sincerely held religious beliefs, but the 1997 statute does. In this case, if the plaintiffs are allowed to use the retroactive section of the 1997 statute, the defendant will be held to an obligation that the law did not require of it at the time of the incident. At the time the plaintiffs were terminated, G. L. c. 151B, § 4 (1A), plainly stated that it protected only those individuals who were observing the requirements of an organized religion, and case law described that statutory requirement in similar terms. See, e.g., Kolodziej v. Smith, 412 Mass. 215, 220-221 (1992) (employer’s requiring attendance at work-related nondenominational seminar that used religious references does not violate requirements of plaintiff’s religion; G. L. c. 151B, § 4 [1A], covers required religious practices); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771-772 (1986) (no violation of G. L. c. 151B for discharge of employee who took unapproved two-month leave of absence to do missionary work for her church where religion did not mandate particular time period and place for missionary work). See also New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, 401 Mass. 566 (1988). We conclude that the effect on the defendant’s rights of the liability newly created by the 1997 statute offsets any public interest there may be in providing a retroactive cause of action for discrimination based on sincerely held religious beliefs. St. Germaine v. Pendergast, supra at 703. Cf. Leibovich v. Antonellis, supra at 576-578 (upholding retroactive application of statute authorizing parent’s right to bring claim for loss of consortium of child where statute did not alter standards for determining kind of behavior constituting negligence, but merely expanded class of potential plaintiffs who may recover for their injuries); Keniston v. Assessors of Boston, 380 Mass. 888, 904-906 (1980) (limiting application of retroactive tax legislation, where legislature’s time period too oppressive); American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 192-194 (upholding retroactive application of automobile insurance statute where legislation was emergency in nature to remedy substantial defect that could not have been perceived at time of previous law’s enactment and Commissioner of Insurance had implied power of retroactive adjustment in intensely regulated industry). The issue is not whether there is an important public interest at stake in prohibiting discrimination against persons for their sincerely held religious beliefs — there obviously is such an interest. Rather, the issue is whether there is an important public interest in making that prohibition operate retroactively. Here, there is no indication that any significant number of persons will benefit from or need the retroactivity provision, and indeed, there is every indication that the retroactivity provision was enacted solely to benefit these plaintiffs. See generally St. Germaine v. Pendergast, supra at 701, 703-704. Cf. American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 192 (retroactive legislation to correct impact of insurance rates on large numbers of citizens). In denying the part of the defendant’s posttrial motion for a judgment notwithstanding the verdict concerning the retroactivity of the 1997 statute, the trial judge relied on Title VII. He reasoned, and the plaintiffs also argue, that because Title VII already prohibited discrimination against a person’s sincerely held religious beliefs, and the defendant was subject to Title VII, the defendant could not have reasonably relied solely on Massachusetts law when it terminated the plaintiffs. We are unpersuaded by that argument. As discussed, the 1997 statute ereated new legal liability on the defendant that did not exist when the plaintiffs’ complaint arose. Although Title VII did include protection for sincerely held religious beliefs, the employer’s burden to accommodate those religious beliefs under Title VII is not the same as the burden imposed by the 1997 statute. Indeed, Title VII relieves an employer of the obligation to accommodate when that accommodation would impose even a de minimis cost on the employer. See, e.g., New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, 401 Mass. 566, 577 (1988) (affirming finding that employer did not incur more than de minimis cost to accommodate plaintiff’s religious needs, in action under both Title VII and G. L. c. 151B, § 4 [1A]). By comparison, the undue hardship standard under G. L. c. 151B, § 4 (1A), includes “the inability of an employer to provide services which are required by and in compliance with all federal and state laws ... or where the health or safety of the public would be unduly compromised by the absence of such employee or employees, or where the employee’s presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee of substantially similar qualifications during the period of absence, or where the employee’s presence is needed to alleviate an emergency situation.” Because the plaintiffs failed to raise Title VII in the original complaint, the jury did not consider the evidence in light of Title VII. We have no way of knowing what the jury’s verdict would have been had they considered Title VII’s undue hardship standard, but we do know that the standard is notably different from that imposed by G. L. c. 151B, § 4 (1A). As such, one cannot treat Title VII as a sufficiently precise equivalent to the 1997 statute to avoid due process problems with retroactivity. b. Denial of the plaintiffs’ motion to amend. The plaintiffs argue that we should reverse the motion judge’s denial of their motion to amend their complaint to add a Title VII claim. They argue that his decision was based on an error of law because he stated that the plaintiffs’ claim was barred by the doctrine of res judicata. They claim that applying the doctrine of res judicata to a case that was reopened under rule 60 (b) (6) defeats the purpose of the rule. We disagree; it was not an error of law for the motion judge to deny the motion. The cases on which the plaintiffs rely to argue error of law are not apt. See, e.g., Shaughnessy v. Board of Appeals of Lexington, 357 Mass. 9, 12, 14 (1970) (error of law where judge denied motion because of his ruling that he lacked jurisdiction to hear case); Cuzzi v. Board of Appeals of Medford, 2 Mass. App. Ct. 887 (1974) (same); Loranger Constr Corp. v. E.F. Hauserman Co., 1 Mass. App. Ct. 801 (1973) (judge erred in denying motion to amend on grounds that party failed to state cause of action). The plaintiffs next argue that the motion judge had no basis to deny the motion, even if it was within his discretion. Again, we disagree. The Appeals Court reversed the judge’s denial of the plaintiffs’ rule 60 (b) (6) motion only as to the plaintiffs’ claim under the 1997 statute. The Appeals Court left it to the motion judge to determine the disposition of the motion to amend. Pielech II, supra at 328-329. We cannot say that the motion judge abused his discretion in denying the plaintiffs’ motion to amend their complaint to add a Title VII claim, especially given the procedural permutations of this case, and the lateness of the plaintiffs’ motion. The motion judge held that denying the motion to amend was not unfair because the plaintiffs had had ample opportunity to raise a Title VII claim. Moreover, the motion judge, citing the Appeals Court’s decision in Pielech II, stated that it was not unfair to deny the addition of an unpleaded theory (Title VII) where the plaintiffs’ two other claims, which were pleaded, were foreclosed because they could have been the subject of an appeal after Pielech I. The motion judge also stated that the other claims “passed into finality” when the United States Supreme Cou

Jean Boise Cargill vs. Harvard University. No. 01-P-917. Middlesex. April 7, 2003. March 8, 2004. Present: Rapoza, Cowin, & Berry, JJ. Anti-Discrimination Law, Employee, Handicap. Employment, Discrimination. Handicapped Persons. Practice, Civil, Summary judgment. Words, .“Essential functions.” Discussion of the analytic framework used to determine the “essential functions” of a job, as that term is used in G. L. c. 151B, § 4(16), which prohibits discrimination against handicapped persons in the workplace. [594-597] In an action alleging employment discrimination on the basis of handicap, a Superior Court judge erred in granting summary judgment in favor of the defendant employer, where the record revealed sharply conflicting evidence whether certain duties were “essential functions” of the plaintiff’s job, thereby presenting genuine issues of material fact for trial [597-603], and where the defendant employer failed to establish that the accommodation proposed by the plaintiff would cause undue hardship or be otherwise unreasonable [603-604], This court concluded that a plaintiff alleging employment discrimination on the basis of handicap in violation of G. L. c. 151B, § 4(16), could not, so long as her c. 15 IB claim remained viable, pursue a remedy under G. L. c. 93, § 103, the Massachusetts Equal Rights Act. [604] Civil action commenced in the Superior Court Department on June 27, 1997. The case was heard by Herman J. Smith, Jr., J., on a motion for summary judgment, and motions for reconsideration were heard by him. Betsy L. Ehrenberg for the plaintiff. David C. Casey {James M. Hankins with him) for the defendant. Berry, J. The central contested question in this appeal requires consideration of the legal standards and evidentiary criteria for determining the “essential functions” of a job as that term is used in G. L. c. 151B, § 4(16), which prohibits discrimination against qualified handicapped persons. To establish a violation of G. L. c. 151B, § 4(16), proof is required that (1) the plaintiff is handicapped within the meaning of the statute; (2) the plaintiff is a “qualified handicapped person” (meaning that, notwithstanding the handicap, the plaintiff can perform the essential functions of the job, either [a] without accommodation, or [b] with a reasonable accommodation provided by the employer, subject to the statutory qualification that the accommodation not pose an undue hardship upon the employer); and (3) the handicap was the cause of the allegedly unlawful discriminatory action. See New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 461-462 (2003), quoting from G. L. c. 151B, § 4(16). See also Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997); Dahill v. Police Dept. of Boston, 434 Mass. 233, 243 (2001). As G. L. c. 15IB, § 4(16), and the applicable case law make clear, a significant question may involve the determination of precisely what the essential functions of the subject job are — that is, what skills must be possessed by, and what work activities necessarily must be performed by, an employee in order to accomplish the principal objectives of the job. See Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383-384 (1993). This case involves the dismissal of the plaintiff, Jean Boise Cargill, from her employment as the lead reference librarian for the five clustered botany libraries that comprise the Herbaria collection at Harvard University (Harvard). There is no dispute in this case (as Harvard acknowledges) that Cargill, who suffers from rheumatoid arthritis, is handicapped within the meaning of G. L. c. 151B, § 4(16). Nor is there any dispute that Cargill — who holds a doctorate in botany and a master’s degree in library science and worked for eleven years in the Herbaria library system, culminating in her promotion to lead reference librarian — possesses the requisite academic and professional qualifications for the position. Rather, the crux of the dispute revolves around issues of material fact concerning whether, among the multiplex activities performed by the lead reference librarian, it was essential that Cargill perform two particular tasks in order to accomplish the fundamental and principal objectives of the position, and whether, and the degree to which, Harvard had any obligation to make an accommodation for Cargill’s handicap. Specifically, the conflicting summary judgment materials concern (1) whether, in addition to the relatively cerebral and academic research and reference functions of the reference librarian position, two more physically oriented tasks — referred to as paging/retrieval and shelving, both of which entailed the manual labor of carrying books and materials (sometimes quite heavy) in and about the archival collections and lifting and shelving them to the respective collection stacks — were also essential functions; and (2) whether, if such paging/retrieval and shelving of books were deemed to be essential functions, Cargill could have performed these functions with a reasonable accommodation — an aspect of the matter that Cargill contends Harvard failed to consider. The question of essential function is intensely fact-based and requires “individualized inquiry and . . . appropriate findings of fact.” Cox v. New England Tel. & Tel. Co., 414 Mass. at 383, quoting from School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987). The fact finder must analyze the question in accord with the legal standards and evidentiary criteria set forth in the case law and regulations addressed herein. Following our independent review, we determine that the grant of summary judgment, issued in a third decision of the Superior Court, was in error. We are of the opinion that the record presents significant and genuine issues of disputed material fact, both as to whether paging/retrieval and shelving constitute essential functions of the reference librarian job and, if so, whether a reasonable accommodation could have been tailored without undue hardship to Harvard. Moreover, there was error of law in the lower court’s failure to apply the appropriate legal standards and evidentiary criteria that govern these determinations. 1. Factual background. Because of the factual nature of the required inquiry into essential function, we set forth the record background in some detail in order to describe the main work activities of the reference librarian; what paging/retrieval and shelving entail; and the interactions between Cargill and Harvard concerning her handicap in connection with the tasks of paging/retrieval and shelving. As required when reviewing a grant of summary judgment, we “view[] the evidence in the light most favorable to the nonmoving party.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). A. The reference librarian position. At the executive level of the Herbaria library staff are the head librarian and the lead reference librarian, the latter position being the one Cargill held. There are four additional full-time employees: three library assistants and a cataloger. This full-time staff of six is supplemented by part-time employees, including Harvard students, some of whom are work-study students and other part-time workers. (Both the full-time library staff and these part-time employees have access to the collection stacks and perform the tasks of paging/retrieval and shelving, which are further described below.) The record submissions emphasize the reference librarian’s duties to provide academic-based research and reference assistance to scholars seeking sources within the vast array of Herbaria materials — principally patrons who visit the library, but also nonresident scholars who submit written inquiries to the reference librarian. See note 12 and part 4, infra. The job description does not include paging/retrieval and shelving. See note 12, infra. B. Paging/retrieval and shelving within the library structure. Because of the balkanized layout of the Herbaria library collections, which are housed in five libraries in three different locations, the paging/retrieval and shelving of books and materials require movement among several buildings and within the nooks and crannies of the various collection stacks, including climbing up and down stairs. Such physical activities — walking, climbing, carrying, and lifting — are too painful for Cargill to perform on a sustained and regular basis because of her rheumatoid arthritis. Requests for books and archival materials to be paged and retrieved occur as follows. Certain patrons of the Herbaria have stack privileges, while others do not. Cargill avers that, “few if any applicants for stack[s] privileges at the Botany Libraries . . . did not receive privileges, as the vast majority of applicants were student and staff members of the department.” In any event, if a particular library visitor who did not have stack privileges requested a book or archival material, a member of the library staff would then go into the stacks to retrieve the article requested. Generally, paging and retrieval did not require immediate action. Rather, as Cargill described the process, “[f]ar more common[] . . . [were] reference questions from professors or students and, along with the request, a timeframe — one day to many days — within which the user needed or desired my response. As a matter of Library policy, archive visits required an appointment and/or a written request in advance.” The second activity at issue, shelving, simply means the return of books and materials to the collection stacks and the placement of new additions within the collections. While paging and retrieval are done on an as-needed basis in response to a patron’s request, it appears from the record that shelving is performed on a daily basis. C. Cargill’s interactions with Harvard regarding the two tasks and her handicap. As previously noted, Cargill worked for the Herbaria for eleven years in various librarian positions, culminating in her promotion to lead reference librarian. From all that appears in the record, Cargill’s rheumatoid arthritis did not, during the prior years of her job tenure in any of these librarian positions, negatively affect her ability to work in the Herbaria. However, given the progressively degenerative nature of rheumatoid arthritis, in early 1996, Cargill brought to the attention of various Harvard officials that the disease was, at this time, extremely painful and physically exhausting to her on those days when she was required, on a sustained basis, to carry, lift, and shelve materials, especially heavy books. During a series of meetings, commencing in January, 1996, and continuing to October, 1996, Cargill also raised the issue of having Harvard fashion an accommodation to reduce the requirements of regularly carrying books and materials, climbing the stairs, and, then, lifting these articles to the shelves in the collection stacks. Viewed in the light most favorable to Cargill, the record reflects the following material interactions between Cargill and Harvard officials concerning her disability — certain of which are challenged by Harvard, posing additional disputed issues of fact. At a staff meeting in January, 1996, the head librarian, Judith Wamement, commented that botany books and materials were not being shelved quickly enough. Cargill explained that shelving was causing her pain and was exhausting and requested that more of the shelving work be assigned to the student and part-time workers. That proposal was not adopted. On February 13, 1996, Cargill met with Wamement to discuss her performance goals and objectives. At that meeting Cargill discussed the issues raised by her rheumatoid arthritis. She told Wamement that she was planning to meet with Harvard’s disability coordinator. On February 23, 1996, Wamement continued Cargill’s annual performance review. (This meeting with Wamement took place after Cargill had met with Harvard’s disability coordinator.) Wamement again raised the topic of shelving and, in particular, told Cargill that the shelving cart had to be cleared at day’s end, even if it meant that Cargill were required to stay late. Cargill requested that she be permitted to do the shelving first thing in the morning instead of at 5:00 p.m. Notwithstanding that Cargill’s disability was clearly an issue at this point, Wamement rejected this suggestion and, then, handwrote the words “shelving/paging in timely way” in the margin of Cargill’s performance plan. It appears from the record that this handwritten emendation was an addition, as the two tasks do not otherwise appear in the printed performance assessment form used for the performance evaluation. On February 16, 1996, Cargill met with Marie Trottier, Harvard’s disability coordinator. Per Trottier’s request, Dr. Mark Robbins, Cargill’s treating physician, submitted a letter, dated March 5, 1996, concerning her condition. In his letter, Dr. Robbins provided his diagnosis of rheumatoid arthritis and further stated that he was “writing on her behalf to seek some accommodation for her in her work place for her joint pain and functional limitations. Specifically, she should not be lifting more than ten pounds with her hands and wrists, or [be] on her feet for long periods.” In another encounter, Cargill told Wamement that she had met with Trottier to address a potential accommodation for Cargill’s handicap and Wamement commented to Cargill that the budget did not include funds for making accommodations to the allocated work. In addition to the disability coordinator, Cargill also met with an official from the office of human resources and with a personnel officer. However, as of April, 1996, the situation was at an impasse. Harvard’s position apparently remained that Cargill was required to page books when called upon to do so and to shelve books on a daily basis. Cargill responded that she simply could not continue to do these two tasks regularly. Harvard proposed no accommodation. Instead, Harvard suggested that Cargill consider short-term disability leave. Cargill’s understanding was that, during the short-term leave, the subject of a reasonable accommodation for her position would be explored. Cargill accepted the interim measure and began receiving short-term disability benefits on April 24, 1996. The short-term disability benefits ended on October 24, 1996. During the temporary disability leave, Cargill continued to press Harvard for an accommodation. To this end, on July 15, 1996, Cargill wrote to one Harvard official expressing frustration as to “why Harvard has not yet honored my request for reasonable accommodation with any appreciable response . . . . ” Cargill’s letter proposed alternatives and ended as follows, “[rjight now, I am open-minded as to how this matter might be resolved. ... I remain flexible and entertain the notion that the best idea is yet to come.” On August 8, 1996, Harvard responded to Cargill’s July 15 letter. Although it was now close to seven months from the time Cargill initially requested an accommodation (with such a request for accommodation having been repeated in Dr. Robbins’s March 5 letter) it appears that Harvard treated Cargill’s July 15 letter as if it were a first-time request for an accommodation. A human resources official, after thanking Cargill for her letter, wrote, ‘T am acknowledging the [July 15, 1996] letter as a written request that you would like your position as Reference Librarian in the Botany Libraries of the Harvard University Herbaria to be evaluated for reasonable accommodation for a disability.” Then, on September 6, 1996, Harvard again (notwithstanding receipt of the physician’s prior letter of diagnosis and reference to the need for an accommodation to address the disability) sent another letter to Dr. Robbins requesting he provide his medical diagnosis concerning Cargill’s condition and the need for any accommodation. The doctor forwarded a second letter on September 17, 1996, in which he reconfirmed the diagnosis of rheumatoid arthritis. It is interesting to note that the physician advised Harvard that he was not in a position to craft an appropriate accommodation. Specifically, he stated that “I need to make it clear at the outset that my role as a rheumatologist is in treating inflammatory arthritis and although it is common for me to have to comment on disability and function, the level of detail that you are requesting may be beyond realistic expectations because I do not observe the patient functioning at her work place.” He further stated, “[Cargill] has intermittent flares of her disease that make it quite painful for her to be lifting, carrying things, walking or standing. The exact length of time depends upon the particular day, the state of her joints, how swollen and painful they are for that day, week or month.” While observing that Cargill could not endure such lifting and carrying on a sustained and regular basis because of “the cumulative effect of standing, walking, lifting, bending across the day,” the doctor opined that Cargill “can walk short distances .... can climb stairs, that she can step up on a stool, [but that] shelving by lifting her arms up over her head with objects that are more than several pounds . . . will be difficult.” Ultimately, the doctor opined that Cargill could continue to work and “to perform work that is predominant[ly] sedentary and seated or desk based with limited periods of time of walking short distances [and] standing.” From Harvard’s perspective, Cargill’s requests for desk-based work (and her acceptance of long-term disability benefits) substantiated its position that she could no longer perform the essential functions of the job. Given the many intellectual and academic-based functions of the lead reference librarian, a reasonable fact finder could infer from the physician’s letter, as well as from Cargill’s letter, that she could continue to perform the academic-based functions from a desk-based position. See parts 4 and 5, infra. In any event, Harvard made no reply to Dr. Robbins’s September 17 letter, and for all intents and purposes, as relevant to summary judgment, the dialogue between Cargill and Harvard ended. A letter from Harvard dated October 24, 1996, noted that Cargill was applying for long-term disability benefits and stated that “consultation with you and your physician did not identify any reasonable accommodation that would enable you to perform the essential functions of your position in the Herbaria,” and accordingly, Harvard was “no longer holding [her] position as Reference/Archives Librarian in the Botany Libraries of the Harvard University Herbaria.” 2. Essential functions. General Laws c. 151B, § 4(16), does not define the term “essential functions.” In giving content to the term, the Supreme Judicial Court has looked to both the Massachusetts Commission Against Discrimination (MCAD) guidelines and to Federal case law and regulations. With respect to the MCAD guidelines as an informing source, the court has observed that, “[g]uidance provided by the Massachusetts Commission Against Discrimination (MCAD) ... is also illuminating. . . . The guidelines represent the MCAD’s interpretation of G. L. c. 151B, and are entitled to substantial deference, even though they do not carry the force of law.” Dahill v. Police Dept. of Boston, 434 Mass. at 239. Accord New Bedford v. Massachusetts Comma. Against Discrimination, 440 Mass. at 464-465. The pertinent MCAD guideline provides that “[t]he ‘essential functions’ of the job are those functions which must necessarily be performed by an employee in order to accomplish the principal objectives of the job.” MCAD Guidelines: Employment Discrimination on the Basis of Handicap Chapter 15IB, § n.B (1998). The Federal courts define “essential functions” along similar lines. “An essential function is a ‘fundamental job dut[y]’ of the employment position

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