Failure to Accommodate Cases

WOODMAN v MIESEL SYSCO FOOD COMPANY Docket No. 226001. Submitted September 11, 2002, at Detroit. Decided November 26, 2002, at 9:00 a.m. Leave to appeal sought. James Woodman brought an action in'the Wayne Circuit Court against Miesel Sysco Food Service Company and Kenneth Angelosanto, alleging violation of the Family and Medical Leave Act (FMLA), 29 USC 2611 et seq., and other claims as a result of the defendants’ termination of his employment on the basis of absenteeism. The plaintiff went to a hospital after experiencing chest pains at work. After he was examined, it was determined that there was no apparent heart damage and he was released. The doctor told the plaintiff not to return to work until a stress test, which was scheduled for ten days later, was performed. When the stress test revealed no heart conditions, the plaintiff was told he could return to work. The court, Robert L. Ziolkowski, J., granted summary disposition in favor of the plaintiff, awarded the plaintiff damages and attorney fees, and ordered that the defendants reinstate the plaintiff to his former job. The defendants appealed. The plaintiff cross appealed, alleging error in the denial of his request for liquidated damages and in the court’s determination that the plaintiff was not discharged in retaliation for asserting his rights under the fmla. The Court of Appeals held: 1. Where, as in this case, the need for fmla leave is unforeseeable, the fmla itself is silent regarding notice requirements. However, regulations implementing the act promulgated by the secretary of labor pursuant to a grant of authority in the fmla do address the notice requirements. 2. The regulations provide that what is sufficient, both in terms of the timing of the notice and its content, will depend on the facts and circumstances of each individual case. The information imparted to the employer must be sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition. The employer’s duties under the fmla are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of fmla leave. However, in giving notice, the employee need not expressly assert rights under the fmla or even mention the fmla, but need only state that leave is needed. Once circumstances suggest that an employee may qualify for fmla leave, the employer has the obligation to inquire further into the matter. 3. An employer may require that an employee’s leave be verified by a medical certification issued by the health care provider of the employee. When an employee first gives notice of his need for leave, employers who want such medical certification must give the employee specific, written notice of the requirement and the anticipated consequences for failing to meet the notice requirement. Employers may not take action against an employee for failure to provide medical certification where the employer fails to provide a specific written request for medical certification. 4. When the leave is not foreseeable and advance notice is not possible, the employer must allow at least fifteen days after its request for the employee to provide medical certification. 5. It is a question of fact whether the notice is adequate. 6. The court did not err in concluding that the plaintiffs notice was sufficient as a matter of law to put the defendants on notice that the plaintiff might qualify for fmla leave. 7. Although the plaintiff failed to comply with the leave provisions of his collective bargaining agreement, the fmla cannot be diminished by a collective bargaining agreement. 8. An absence from work because of a physician’s “no work” order pending an examination to determine if a serious health condition exists, even if the final diagnosis contraindicates a serious condition, may be protected by the fmla where the other requirements of a “serious health condition” are met, i.e., treatment two or more times by a health care provider and a period of incapacity of more than three calendar days. 9. Here, the plaintiff was instructed by his physician not to work until after he was examined to determine if a serious health condition existed. The defendants did not properly initiate the fmla certification process. The plaintiff satisfied the other requirements of a “serious health condition involving continuing treatment” because he was treated two times by a health care provider and had a period of incapacity of more than three consecutive calendar days. The court properly found that the defendants violated the fmla when they terminated the plaintiffs employment. 10. The court did not err in awarding the plaintiff back wages and reinstatement. 11. The court did not abuse its discretion in declining to award liquidated damages on the basis that the defendants’ violation of the fmla was in good faith and defendants had reasonable grounds for believing the fmla was not violated. Affirmed. O’Connell, P.J., dissenting, stated that the fmla and the parties’ collective bargaining agreement (cba) are not in conflict and each is clear on its face. It should be concluded that the employer has not violated the fmla and that the plaintiff’s employment was properly terminated under the cba. The fmla is silent regarding notice requirements and the CBA provides that an absence of three consecutive days requires written medical notification. The fmla leaves open the notice requirement to allow employers and employees to bargain for the usual and customary terms and conditions of employment. Where, as here, the act is clear, there is no reason to refer to the regulations implementing the act. 1. Labor Relations — Family and Medical Leave Act — Notice. The Family and Medical Leave Act provides that when the need for a leave is foreseeable, an employee must provide the employer with no less than thirty days advance notice; the act is silent with regard to the notice requirements where the need for a leave is unforeseeable; what is sufficient, both in terms of the timing of the notice and its content, depends on the facts and circumstances of each case (29 USC 2612[e][l], [e] [2] [B]). 2. Labor Relations — Family and Medical Leave Act — Implementing Regulations. The Family and Medical Leave Act grants the secretary of labor authority to promulgate regulations implementing the act; the regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the act; the regulations may be examined in interpreting the provisions of the act especially where the regulations address an issue on which the act itself is silent, such as the notice requirements where an employee’s need for a leave under the act is unforeseeable (29 USC 2654). 3. Labor Relations — Family and Medical Leave Act •— Serious Health Conditions. An employee’s absence from work when a physician has given the employee a “no work” order pending further examinations to determine if a serious health condition exists may be protected by the Family and Medical Leave Act, even if the final diagnosis contraindicates a serious condition, where the employee meets the act’s other requirements for a “serious health condition,” i.e., treatment two or more times by a health care provider and a period of incapacity of more than three calendar days (29 CFR 825.114[a], [b]; 29 USC 2612[a][l][D]). Dwight Teachworth for the plaintiff. Cummings, McClorey, Davis & Acho, P.L.C. (by Ronald G. Acho), for the defendants. Before: O’Connell, P.J., and Griffin and Hoekstra, JJ. Griffin, J. Defendants appeal as of right the order of the circuit court granting summary disposition in favor of plaintiff on his claim alleging a violation of the Family and Medical Leave Act (FMLA), 29 USC 2611 et seq., awarding plaintiff back pay damages of $59,331.94, and reinstating plaintiff to his job as a track driver. Plaintiff cross appeals, asserting that the trial court erred in denying his request for liquidated damages and in concluding he was not discharged in retaliation for asserting his rights under the FMLA. We affirm. i On October 9, 1995, plaintiff, a track driver who delivered groceries for defendant Miesel Sysco Food Service Company (Miesel), was making a delivery at work when he began to experience chest pains. Plaintiff called Miesel’s dispatcher and advised him of his symptoms, but continued to unload his track until defendant Kenneth Angelosanto, plaintiff’s supervisor, arrived with another employee to relieve plaintiff. Plaintiff refused a ride to the hospital and, after retrieving his car at Miesel’s plant, picked up his girlfriend and drove himself to the emergency room. At the hospital, plaintiff was given a physical exam and an electrocardiogram (ekg), and medication was administered. There was no apparent heart damage and plaintiff was released from the hospital later that same day. However, plaintiff was told not to return to work until after he had a stress test, which was scheduled in approximately ten days. The written “Personal Discharge Plan” given to plaintiff by the examining physician indicated: No work until stress test. Your doctor has determined that you have chest pain of a minor or stable nature, presumably from the heart. Based on your current symptoms and evaluation, there is a low probability of a heart attack. . . . Most people with new, changing, or prolonged symptoms need hospitalization until the diagnosis is certain. [Emphasis added.] Plaintiff did not immediately take this written discharge plan to Miesel following his visit to the emergency room, later offering several explanations regarding why he did not take the hospital form to Miesel. However, there appears to be no dispute that plaintiff did inform Miesel, through its employees, that he would be unable to work until he had the stress test. Plaintiff testified during his deposition that he telephoned Miesel’s dispatcher the same evening that he was released from the emergency room and informed the dispatcher that he was going to be off work on medical leave until the stress test was administered. He testified that he spoke again to a dispatcher on October 10 or 11 to remind Miesel that he would not be working until the stress test was done. Plaintiff further testified that he telephoned one of Miesel’s employees (Toni Kollios) in its human resources office on October 11 to discuss insurance issues related to the stress test and, on October 13, he called “Debbie” Williams in human resources regarding his absence from work. Contrary to plaintiffs recollection, Debbie Williams testified that she told plaintiff that she “really had to have something to show why he was not at work.” Miesel alleged that attempts were made to contact plaintiff and tell him that he needed to submit the doctor’s note, but Miesel could not reach plaintiff because he had traveled out of town to winterize his cottage. On October 19, plaintiff delivered to Miesel the emergency room medical discharge plan that specified “No work until stress test.” On October 23, plaintiff was given a stress test that revealed no heart conditions and he was released to return to work the next day. However, plaintiff, a union member, learned that his employment had already been terminated on October 16 for allegedly violating two rules of the collective bargaining agreement: (1) unauthorized, unexcused absenteeism, and (2) an absence for three successive days without written medical notification. Plaintiff brought suit against defendants alleging a violation of the FMLA along with other claims. The circuit court ultimately granted plaintiff’s motion for partial summary disposition and denied defendants’ motion pertaining to the FMLA claim, finding no genuine issue of material fact that defendants, by terminating plaintiff’s employment, violated the provisions of the fmla as a matter of law. An evidentiary hearing was held to determine the extent of plaintiffs damages stemming from the fmla violation, and the trial court subsequently awarded plaintiff $59,331.94 in damages, attorney fees, and also ordered defendants to reinstate plaintiff to his “original position.” Defendants now appeal and plaintiff cross appeals. Both appeals involve only issues related to plaintiffs claim under the fmla. n Defendants first contend that the lower court erred in denying their motion for summary disposition and granting plaintiffs motion because plaintiff failed to give defendants adequate notice of his need for an unpaid leave of absence as required by the fmla, and, farther, that his employment was terminated for just cause separate and apart from any obligation under the fmla. Although our state appellate courts have not yet had occasion to address issues concerning notice requirements under the FMLA, “review by this Court of the federal law regarding this federal statute is proper.” Smith v Goodwill Industries of West Michigan, Inc, 243 Mich App 438, 443; 622 NW2d 337 (2000). See also Young v Young, 211 Mich App 446, 448, n 1; 536 NW2d 254 (1995). With respect to our review: Where there is no conflict, state courts are bound by the holdings of federal courts on federal questions. Schueler v Weintrob, 360 Mich 621; 105 NW2d 42 (1960); Kocsis v Pierce, 192 Mich App 92, 98; 480 NW2d 598 (1991). However, [when the] issue has divided the circuits of the federal court of appeals, we are free to choose the most appropriate view. Schueler, supra at 634; Bruno v Dept’ of Treasury, 157 Mich App 122, 130; 403 NW2d 519 (1987). [Id. at 450.] This Court reviews de novo a trial court’s decision on a motion for summary disposition. Smith, supra at 442. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support of a claim. The motion should be granted if the evidence demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). In deciding a motion under MCR 2.116(C)(10), the trial court considers the pleadings, affidavits, depositions, admissions, or other documentary evidence in a light most favorable to the nonmoving party to determine whether a genuine issue of fact exists. Ritchie-Gamester v Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). Enacted in 1993, the fmla represents an attempt to reconcile “the demands of the workplace with the needs of families . . . .” 29 USC 2601(b)(1). Thus, while Congress sought to provide employees the right to “take reasonable leave for medical reasons,” it also sought to do so “in a manner that accommodates the legitimate interests of employers.” 29 USC 2601(b)(2) and (3). The FMLA applies to private-sector employers of fifty or more employees. 29 USC 2611(4). An eligible employee is entitled to twelve work weeks of unpaid leave during any twelve-month period because of, among other reasons, “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 USC 2612(a)(1)(D). At the conclusion of a qualified leave period, the employee is entitled to reinstatement to his former position, or to an equivalent one, with the same terms and benefits. 29 USC 2614(a). The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the FMLA. 29 USC 2615(a)(1). The threshold issue raised by defendants involves the adequacy of the notice allegedly given by plaintiff regarding his need for fmla leave time. When the need for fmla leave is foreseeable, an employee must provide the employer with no less than thirty days advance notice. 29 USC 2612(e)(1) and (e)(2)(B); 29 CFR 825.302(a). However, where, as in the instant case, the need for FMLA leave is unforeseeable, the FMLA itself is silent regarding notice requirements, but the regulations implementing the act address the issue. In this regard, the fmla grants the secretary of labor authority to promulgate regulations implementing the act. See 29 USC 2654. “Regulations promulgated pursuant to such an express delegation of authority ‘are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.’ ” Miller v AT&T Corp, 250 F3d 820, 833 (CA 4, 2001), quoting Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837, 844; 104 S Ct 2778; 81 L Ed 2d 694 (1984). Thus, we examine those regulations in interpreting its provisions. Summerville v Esco Co Ltd Partnership, 52 F Supp 2d 804, 810 (WD Mich, 1999). Specifically, 29 CFR 825.303 provides: (a) When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for fmla leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when fmla leave is involved. (b) The employee should provide notice to the employer either in person or by telephone, telegraph, facsimile (“fax”) machine or other electronic means. . . . The employee need not expressly assert rights under the fmla or even mention the fmla, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee . . . will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation. [Emphasis added.] What is sufficient, both in terms of the timing of the notice and its content, will depend on the facts and circumstances of each individual case. Manuel v Westlake Polymers Corp, 66 F3d 758, 764 (CA 5, 1995); Mora v Chem-Tronics, Inc, 16 F Supp 2d 1192, 1209 (SD Cal, 1998). “The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” Manuel, supra at 764. See also Thorson v Gemini, Inc, 205 F3d 370, 381 (CA 8, 2000), quoting Browning v Liberty Mut Ins Co, 178 F3d 1043, 1049 (CA 8, 1999) (“ ‘Under the fmla, the employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of fmla leave.’ ”); Brohm v JH Props, Inc, 149 F3d 517, 523 (CA 6, 1998). As expressed in 29 CFR 825.303(b), in giving notice, an employee need not expressly assert rights under the fmla or even mention the fmla, but need only state that leave is needed. As explained by the court in Stoops v One Call Communications, Inc, 141 F3d 309, 312 (CA 7, 1998): When requesting unpaid leave, the employee need not mention the fmla. 29 CFR 825.303(b). In fact, the employee can be completely ignorant of the benefits conferred by the Act: it is sufficient notice if the employee provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed. See also Price v Fort Wayne, 117 F3d 1022, 1026 (CA 7, 1997); Manuel, supra at 764; Mora, supra at 1208-1209; Stubl v T A Sys, Inc, 984 F Supp 1075, 1085 (ED Mich, 1997); Brannon v OshKosh B’Gosh, Inc, 897 F Supp 1028, 1038 (MD Tenn, 1995); Hendry v GTE North, Inc, 896 F Supp 816, 828 (ND Ind, 1995). Once circumstances suggest that an employee may qualify for fmla leave, the employer has the obligation of inquiring further into the matter. Spangler v Fed Home Loan Bank of Des Moines, 278 F3d 847, 853 (CA 8, 2002); Mora, supra at 1209; Williams v She

KELVIN J. LEEKS, Petitioner v. CUMBERLAND COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITY AND SUBSTANCE ABUSE FACILITY, Respondent No. COA02-40 (Filed 19 November 2002) 1. Public Officers and Employees— dismissal — findings Certain of the trial court’s findings had a rational basis in the evidence in an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered. 2. Public Officers and Employees— dismissal — falsification of medical records — unacceptable personal conduct In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, the trial court did not err by concluding that pre-writing notes describing medications not administered constituted unacceptable personal conduct. The North Carolina Administrative Code includes job-related conduct which violates state or federal law as improper personal conduct; falsification of medical records is a violation of state law. 3. Public Officers and Employees— dismissal — findings—not supported by evidence — no reversible error In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, some of the trial court’s findings concerning petitioner’s sleep disorder were contrary to evidence in the whole record, but there was no reversible error because petitioner failed to prove a claim of disability discrimination. 4. Public Officers and Employees— dismissal — disability discrimination — not proven In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, the trial court did not err by con-eluding that petitioner failed to prove that his termination resulted from disability discrimination where petitioner failed to fully inform respondent of his condition, failed to prove that the depression and sleep disorder qualified as physical or mental impairment, and did not show that either condition is permanent or long-term. Appeal by petitioner from order entered 6 June 2001 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 28 October 2002. Browne, Flebotte, Wilson & Horn, P.L.L.C., by Joy Rhyne Webb, for petitioner-appellant. Douglas E. Canders for respondent-appellee. TYSON, Judge Kelvin J. Leeks, (“petitioner”), appeals from an order which affirmed the final agency decision of the Cumberland County Mental Health Development Disabilities and Substance Abuse Facility, (“respondent”), terminating petitioner’s employment. We affirm. I. Facts Petitioner was rehired as a Youth Program Assistant III by respondent in December 1995 after having worked for respondent from 1981 to 1993. Petitioner worked the night shift at Borden Heights Group Home, which housed emotionally disturbed and dangerous youths. Petitioner began suffering from depression, migraines, and a sleeping disorder. His doctor advised that he stop working the night shift. Petitioner requested a lateral transfer from the night shift to a day shift several times, beginning in May 1996. Those requests were denied. On 22 September 1997, petitioner received a written warning that he had engaged in unacceptable personal conduct, listing: (1) not conducting proper bed checks, (2) not monitoring clients, and (3) not performing duties assigned to the lead-staff worker on a shift. On 25 February 1998, petitioner prepared, but failed to timely administer, medications for seven of the youths. Petitioner recorded the medications by writing the date, name of medication, the number of pills administered to each client, and whether the medication was taken orally on the Medication Administration Record, (“MAR”). Petitioner did not record the time or initial the MAR. Around 9:10 a.m., Everett Mitchell, petitioner’s supervisor, sent petitioner home. Petitioner arrived home and fell asleep. He awoke in the afternoon and questioned whether he had administered the medications. He called the group home, and related that he had “dreamed” the medication had not been administered. Petitioner was assured by another worker, Christopher Corders, that the medications had been given. Corders relied upon petitioner’s partially completed MAR. Petitioner returned to the group home concerned that he had forgotten to administer the medication. Petitioner checked the medicine cabinet and discovered the medication that should have been distributed that morning. Petitioner contacted Supervisor Mitchell, and completed an incident report and significant event note for each client. Petitioner called the pharmacist for further instructions concerning the medication. The medication was administered according to the pharmacist’s instructions, and petitioner signed the records at the time of administration. A pre-dismissal conference was held on 23 April 1998, followed by a subsequent meeting on 27 April 1998. On 30 April 1998, petitioner was terminated from his employment. On 28 July 1998, petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings. Administrative Law Judge Morrison, (“AU”) held the hearing on 15 December 1998 and 17 December 1998. The ALT filed a recommended decision on 11 February 1999 which upheld the decision of the respondent’s director to terminate petitioner and found that respondent had just cause to terminate. The AU also recommended that petitioner’s allegations of disparate treatment and respondent’s failure to accommodate a handicapping condition be dismissed. The State Personnel Commission, (“Commission”) considered the AU’s recommended decision on 17 and 18 June 1999, and issued a recommendation to respondent to find and conclude that the AU’s decision be rejected and that petitioner met his burden of proving that respondent lacked just cause to dismiss plaintiff for personal misconduct. The Commission found that petitioner’s actions gave respondent just cause to take disciplinary action on the basis of inadequate job performance. The Commission recommended that (1) petitioner be reinstated to his former position, (2) petitioner receive back pay and all other benefits of employment during the period he was not working, (3) respondent take appropriate disciplinary action against petitioner, and (4) petitioner be allowed to request attorney’s fees. On 15 September 1999, respondent issued its final decision concluding that there was “just cause” for petitioner’s termination. Respondent dismissed petitioner’s claims of disparate treatment and failure to accommodate his handicapping condition. An amended final decision was issued on 5 November 1999. Petitioner petitioned for judicial review on 12 October 1999. Judge Cashwell heard arguments and affirmed the final decision of respondent. Petitioner appeals. II. Issues The issues are (1) whether substantial evidence in the record supports the trial court’s findings of fact that petitioner intentionally pre-wrote MARs and then called respondent after dreaming that he did not dispense the medicine, (2) whether petitioner’s pre-writing MARs constitutes a falsification of medical records, a violation of state law, and unacceptable personal conduct, (3) whether substantial evidence in the record supports the trial court’s findings of fact of petitioner’s disability, and (4) whether petitioner sufficiently alleged a claim for disability discrimination. III. Standard of Review Chapter 150B of the North Carolina General Statutes, the North Carolina Administrative Procedure Act, governs trial and appellate court review of administrative agency decisions .... Although G.S. § 150B-51(b) lists the grounds upon which a court may reverse or modify an administrative agency decision, the proper standard of review to be employed by the court depends upon the nature of the alleged error. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). If a petitioner asserts that the administrative agency decision was based on an error of law, then “de novo” review is required. Id... . On the other hand, if a petitioner asserts that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious, then the court employs the “whole record” test. Id. .. . The standard of review for an appellate court upon an appeal from an order of the superior court affirming or reversing an administrative agency decision is the same standard of review as that employed by the superior court. In re Appeal of Ramseur, 120 N.C. App. 521, 463 S.E.2d 254 (1995). Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 62-63, 468 S.E.2d 557, 559-60 (1996). In ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388 (1997), our Supreme Court stated, “[t]he appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” 345 N.C. at 706, 483 S.E.2d at 392 (citations omitted.) The “whole record” test allows a reviewing court to determine whether an administrative decision has a rational basis in the evidence. Id. at 706-07, 483 S.E.2d at 392 (citations omitted). IV. Findings of Fact Seven and Eight Petitioner argues that the respondent’s findings of fact seven and eight, later adopted by the superior court, were not supported by substantial evidence. Finding seven states, “[p]etitioner called the group home on the afternoon of February 25, 1998 advising that he had had a ‘dream’ that he had not given the medications that morning.” Petitioner alleges that he did much more than inform respondent of a dream. Petitioner testified that he called the home, drove to the home, checked the medicine cabinet, discovered the truth of his mistake, reported the incident, and called and followed the instructions of the pharmacist. Petitioner’s testimony is corroborated by other witnesses, and clearly shows that petitioner did more than just “call[] the group home.” This evidence does not contradict, but supplements the finding that petitioner called the group home and told them about his dream. Testimony of other witnesses supports this statement. The trial court’s finding “has a rational basis in the evidence.” Id. Finding eight states that petitioner intentionally pre-wrote the client medication charts and failed to administer medications to seven youths who were to receive their medication before leaving for school that morning. Petitioner argues that the substantial evidence does not show that he pre-wrote all of the medication notes. Petitioner admitted partially pre-writing the medication notes. He did not record the time of administration nor initial the record. Petitioner contends that the MAR was not complete until the MAR was signed and medication administered with the time noted and that he did not violate respondent’s policy by partially pre-writing the notes. Petitioner asserts that he simply forgot to administer the medications, and this omission was not intentional. Petitioner’s testimony merely explains finding eight. This evidence does not refute the fact that petitioner intentionally partially pre-wrote false medication notes and failed to dispense the medications. There is substantial evidence in the record to support finding eight. V. Conclusions of Law Five and Six Petitioner contends that conclusions of law five and six are erroneous as a matter of law, because the actions alleged are not improper personal conduct and are not supported by substantial evidence. N.C.G.S. § 126-35 (2001) states “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reason, except for just cause.” “Just cause” can be established by unacceptable job performance or unacceptable personal conduct. 25 NCAC lJ.0604(c) (2002). Title 25 of the North Carolina Administrative Code defines unacceptable personal conduct as: (1) conduct for which no reasonable person should expect to receive prior warning; or (2) job-related conduct which constitutes a violation of state or federal law; ... (4) the willful violation of known or written work rules; ... or (6) the abuse of client(s) .... 25 NCAC U.0614(i) (2002). This Court delineated the difference between unacceptable job performance and unacceptable personal conduct and held that termination for engaging in the latter category is appropriate for “ ‘those actions for which no reasonable person could, or should, expect to receive prior warnings.’ ” Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 679, 443 S.E.2d 114, 120-21 (1994) (quoting State Personnel Manual, Sec. 9 at 3; 25 NCAC lJ.0604(b) (1984) (amended March 1994)). The State Personnel Manual lists, “careless errors, poor quality work, untimeliness, failure to follow instructions or procedures, or a pattern of regular absences or tardiness[]” as examples of unsatisfactory job performance. Id. at 679, 443 S.E.2d at 121 (citing State Personnel Manual, Sec. 9, at 8.1-8.2). Unacceptable personal conduct includes “insubordination, reporting to work under the influence of drugs or alcohol, and stealing or misusing State property.” Id. Conclusions of law five and six hold that petitioner intentionally pre-wrote medication notes describing client responses to medications not administered. The court concluded this action was a falsification of medical records done willfully and intentionally, that jeopardized the care of the clients, and constituted unacceptable personal conduct. Petitioner contends that he did not willfully falsify medical records, but instead partially pre-wrote the medication notes and neglected to administer the medications. Petitioner argues that the notes were not false until he neglected to give the medications. Petitioner cites testimony of Emile Archambault, manager of another group home, who admitted pre-writing medication notes, to support his argument that such conduct was common and did not constitute “improper personal conduct.” Petitioner asserts that if his conduct was reprehensible, it only rose to the level of unsatisfactory job performance. Termination for “just cause” due to unsatisfactory job performance requires the employer to issue prior warnings before termination. Parks v. Dept. of Human Resources, 79 N.C. App. 125, 132, 338 S.E.2d 826, 829, disc. review denied, 316 N.C. 553, 344 S.E.2d 8 (1986). The agency must give the employee at least “one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal.” 25 NCAC lJ.0605(b) (2002). Petitioner received prior warning on 22 September 1997 which cited petitioner for improper personal conduct in not performing his duties as required. This warning was insufficient to terminate petitioner’s employment for “just cause” on the grounds of job performance. If petitioner’s conduct rose to the level of improper personal conduct, his employment could be terminated without any warning. Petitioner cites Parks to support his contention that his actions did not rise to “improper personal conduct.” In Parks, a health care technician failed to report resident abuse. Id. at 127, 338 S.E.2d at 827. This Court held that the negligence was a basis for unsatisfactory job performance but not improper personal conduct. Id. at 134, 338 S.E.2d at 830. Similarly, this Court in Amanini found that a terminated employee’s actions, leaving his nurses’ station without notifying his supervisor and abandoning his patients, fell into the category of unsatisfactory job performance. Amanini, 114 N.C. App. at 680, 443 S.E.2d at 121. In both cases, this Court found the employees’ behavior insufficient to terminate on the grounds of improper personal conduct. The facts at bar are distinguishable and are sufficient to terminate plaintiff for improper personal conduct under the current statute. After Parks and Amanini were decided, the N.C. Administrative Code was amended to add “job-related conduct which constitutes a violation of state or federal law” as grounds for termination for improper personal conduct. 25 NCAC lJ.0614(i)(2) (2002). Respondent alleges that petitioner’s actions in pre-writing the medication notes violated 10 NCAC 14V.0209(c)(4) (2002), which requires that “[a] Medication Administration Record (MAR) of all drugs administered to each client must be kept current. Medications administered shall be recorded immediately after administration.” This administrative rule is authorized in Chapter 122C, under which the North Carolina Department of Health and Human Services regulates the licensing and operation of facilities including the group home where petitioner worked, and has the effect of law. Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 259; 465 S.E.2d 36, 41 (1996) (citation omitted). Petitioner failed to administer the medications and falsely reported giving them to the clients. The actions of the employees in Parks and Amanini were omissions to act, not affirmative acts. Petitioner knowingly and falsely pre-wrote the medication records. While petitioner’s failure to administer the medications is negligence, his pre-writing the MARs is a “falsification of medical records,” a job-related violation of state law. In addition to intentionally filling out medication administration records without actually administering the medication, the respondent and superior court concluded that petitioner also “pre [wrote] high risk intervention[, (“HRI”),] notes describing the client’s responses to taking medications.” This conclusion is supported by substantial evidence. The record contains the HRI reports from 25 February 1998 regarding patients under petitioner’s care. Petitioner’s reports contain substantially the same note on every HRI. In the section titled “Narrative Summary of Activity and Client Progress,” petitioner wrote “[s]taff monitored and assisted client in taking his AM. medication. Staff prepared and instructed client in taking said medication. Client evidenced progress toward overall goal. Staff praised client after he took his medication.” (Emphasis added). With respect to one HRI report, the following dialogue occurred at the hearing: Q. If you’ll go about four pages in, [petitioner], where you have the HRI note. A. Yes, sir. Q. In the middle of the page it says, “Staff monitored and assisted client in taking his medication.” A. The same generic note, yes, sir. Q. “Staff prepared and instructed client in taking medication. Client evident [sic] progress towards overall goal. Staff praised client after he took his medication.” A. Uh-huh. Q. That’s a false statement, isn’t it? A. Yes, that’s— Q. The client had got no medication, isn’t that true? A. Yes, sir. Q. And you made that statement and signed it yourself, is that correct? A. That was a prewritten statement, yes, sir. Q. Okay. And it’s false. A. Yes, that one Is. Also, respondent asked petitioner if he “intentionally fill[ed] out these HRI notes prior to the time of the event?” Petitioner answered, “[y]es.” Respondent’s witness, Dr. Martin, elaborated on the possible dramatic consequences of falsely reporting drug administration. Finding this evidence credible, the trial court did not err in concluding that petitioner’s acts established unacceptable personal conduct. VI. Findings of Fact Seventeen through Twenty Petitioner argues that findings of fact seventeen through twenty are not supported by substantial evidence and that the trial court erred by concluding that petitioner failed to prove he was terminated for reasons associated with his handicapping condition. Findings of fact seventeen through twenty state: 17.

John A. Dziamba vs. Warner & Stackpole LLP & others. No. 00-P-1870. Middlesex. July 17, 2002. - November 8, 2002. Present: Cypher, Kass, & Cowin, JJ. Rules of the Superior Court. Practice, Civil, Summary judgment. Anti-Discrimination Law, Termination of employment, Handicap, Age, Sex. Employment, Retaliation. Contract, Interference with contractual relations. A Superior Court judge, in reviewing materials submitted under Superior Court Rule 9A(b)(5) (1998) by a plaintiff responding to a defense motion for summary judgment, properly determined that the plaintiff failed to adhere to the requirements of that rule and properly took as admitted facts to which the plaintiff had not made a response that complied with the rule. [398-401] A Superior Court judge correctly allowed a defense motion for summary judgment on a complaint claiming that the termination of the plaintiff’s employment as a lawyer by the defendant law firm was the product of handicap, age, and gender discrimination, where the plaintiff failed to demonstrate that he was capable of performing the essential functions of the position involved, that file law firm failed to make a reasonable accommodation to his disability, or that his discharge was based on age or gender [404-407]; similarly, the judge properly granted summary judgment in favor of the defendant on the plaintiff’s claims of breach of contract, breach of the covenant of good faith and fair dealing, wrongful termination, and intentional and negligent infliction of emotional distress, all of which were based on, or subsumed by, the discrimination claims [407, 409]. On a complaint claiming that the termination of the plaintiff’s employment as a lawyer by the defendant law firm was the product of handicap, age, and gender discrimination, a Superior Court judge properly determined that the record lacked evidentiary support for a claim of retaliatory conduct by the employer [407], or for a claim that the employer tortiously interfered with advantageous business relations between the plaintiff and a client [407-409]. Civil action commenced in the Superior Court Department on January 23, 1997. The case was heard by Judith Fabricant, J., on a motion for summary judgment, and motions for postjudgment relief were heard by her. James C. Sturdevant, of California, for the plaintiff. Alan D. Rose for the defendants. Earned partners of Warner & Stackpole, and a successor firm, Kirkpatrick & Lockhart LLR Kass, J. On the basis of substantial evidentiary submissions, a judge of the Superior Court allowed a defense motion for summary judgment. That resulted in dismissal of John A. Dziam-ba’s complaint that the termination of his employment as a lawyer by Warner & Stackpole LLP (W&S), a law firm, was the product of handicap, gender, and age discrimination. The amended complaint also presented claims of tortious interference with prospective business advantage and unlawful retaliation against Dziamba because he asserted his rights. The amended complaint contained other counts, e.g., libel and breach of fiduciary duty, that Dziamba does not press on appeal. We affirm. 1. Judge’s comments and ruling on plaintiff’s submission under Superior Court Rule 9A(b)(5). We have the assistance of a careful, thoughtful, and detailed memorandum of decision from the Superior Court judge who considered the materials and arguments on the motion for summary judgment. She made comments and rulings concerning the plaintiff’s (as the party opposing summary judgment) statement pursuant to Superior Court Rule 9A(b)(5) (1998) that raise a threshold issue about the consequences of failure to comply with that rule. Rule 9A(b)(5) requires that a motion for summary judgment “be accompanied by a concise statement, in consecutive numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits and a statement of the legal elements, with citations to supporting law, of each claim upon which summary judgment is sought. . . . “Each opposition to [the motion] shall include a response, using the same paragraph numbers, to the moving party’s statement of facts as to which the moving party claims there is no genuine issue to be tried, in consecutive numbered paragraphs, a concise statement of any additional material facts as to which the opposing party contends there is a genuine issue to be tried, with page or paragraph references to supporting pleadings . . . .” Rule 9A(b)(5) is an “anti-ferreting” rule designed to assist a trial judge in the all-too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge. See, e.g., AM. Capen’s Co. v. American Trading & Prod. Corp., 202 F.3d 469, 471 n.2 (1st Cir. 2000). In accordance with the rule, the defendant, the party moving for summary judgment, filed an eighteen-page statement consisting of seventy-nine short numbered paragraphs, each setting forth as undisputed a single subsidiary fact or a bundle of closely related subsidiary facts, with citation to evidence in the record supporting that assertion. For example: “1. Plaintiff John A. Dziamba (‘Dziamba’) a litigation attorney, worked at W&S from July 1986 until July 7, 1995. (Affidavit of Henry T. Goldman (‘Goldman Afif.’], f 3.” The defendant added a six-page compilation of concise statements of principles of law, with citation of authority, as to each of the thirteen counts in the amended complaint. Dziamba’s responsive statement under rule 9A(b)(5) runs seventy-nine pages, the first sixty-nine of which deal with facts that the plaintiff purports to dispute. The motion judge observed that the plaintiff’s statement ignored the requirements of rule 9A(b)(5) and defeated its anti-ferreting purpose. The judge was put to the burden of ferreting through the plaintiff’s rule 9A(b)(5) statement to identify what facts asserted by the defendant were in fact controverted. For example, to the simple fact of defendant’s first statement, that Dziamba worked as a litigation attorney for W&S from July, 1986, to July 7, 1995, the plaintiff’s response was: “Disputed.” There follow three and one-half pages that set out what a successful, capable, imaginative, and productive lawyer Dziamba was at W&S. That was not an atypical response. That Dziamba was a litigation lawyer there for nine years was never controverted; i.e., it was not disputed. The very next statement by the moving party, consisting of five lines, was met with a response of eight and one-half pages which, in the end, did not controvert the facts stated by the moving party. The third paragraph of rule 9A(b)(5) provides: “For purposes of the motion for summary judgment, facts contained in a statement described in the first paragraph hereof shall be deemed to have been admitted unless controverted in the manner set forth in the second paragraph hereof.” Such was the failure of the plaintiff’s responsive statement to adhere to the requirements of rule 9A(b)(5), the motion judge ruled, that she took as admitted all seventy-nine paragraphs of W&S’s statements of fact save one: paragraph number thirty-five. Paragraph thirty-five stated that Dziamba worked at Davis, Malm & D’Agostine from July, 1995, until March, 1996, when he was terminated by that firm. Here the plaintiff’s response was crisp and on target. It said: “Dziamba was not terminated by Davis, Malm. . . . Moreover, the terms of plaintiff’s separation from any subsequent employer are irrelevant.” While possibly relevant, the circumstances of the plaintiff’s leave taking from Davis, Malm were certainly not material to the questions before the judge on summary judgment, as she noted. On the basis of our review of the record, there were other instances in which the plaintiff’s response placed assertions of fact in dispute, but those facts were not material ones. It would unreasonably lengthen this opinion were we to proceed paragraph by paragraph through the parties’ rule 9A(b)(5) statements to illustrate the plaintiff’s compliance or noncompliance with the rule. We think the judge fairly characterized the plaintiff’s response when she observed that factual assertions were buried deeply in argument and that the way factual asser-tians were woven into argument made it unnecessarily and unreasonably difficult to identify which facts were genuinely in dispute. The plaintiff challenges the rule-making authority of the Superior Court to require submissions other than those required by Mass.R.Civ.P. 56, 365 Mass. 824 (1974), and more particularly to take as admitted facts to which the plaintiff has not made a response that complies with the rule. Decisions based on analogous local anti-ferreting rules in United States District Courts support the action taken by the motion judge. Adoption of an anti-ferreting rule is an appropriate exercise by a trial court of case management discretion. It is a pragmatic and reasonable response to the propensity of lawyers to file literally mounds of affidavits, depositions, interrogatories, and depositions in support of, or in opposition to, summary judgment. Both formulation of such rules and administering them in a fashion so that they have bite find support in the cases. See Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 931-932 (1st Cir. 1983); Rivas v. Federacion de Asociaciones Pecuarias de P.R., 929 F.2d 814, 816 n.2 (1st Cir. 1991); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996); A.M. Capen’s Co. v. American Trading & Prod. Corp., 202 F.3d at 472; Ruiz Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000). The judge acted within her discretion in taking as admitted those facts asserted by the moving party (W&S) that were not disputed by the party opposing the motion for summary judgment (Dziamba), in accordance with the rule. Although the action that the judge took under rule 9A(b)(5) was fully warranted, she added suspenders to that belt by independently “review[ing] the evidentiary materials submitted by the plaintiff, and . . . considering], in the light most favorable to the plaintiff [i.e., the nonmoving party], those additional facts that [the court] deems material, and that are supported by admissible evidence . . . .” 2. Facts. We have also combed the record and now set forth the material facts that, without weighing the evidence, are not disputed. Dziamba was first admitted to the bar in Connecticut in 1969. He joined W&S in the status of “counsel” in July, 1986. At that time, lawyers at W&S were divided into four categories: associate, counsel, nonequity partner, and partner. Dziamba’s area of professional concentration was litigation. Effective January 1, 1990, Dziamba became a nonequity partner. This meant that W&S held him out to the world as a partner, although internally he was not required to maintain a capital account, could not attend partnership meetings except by invitation, did not share in the partnership’s profits and losses (a nonequity partner’s compensation was set by the firm’s executive committee), and did not have the benefit of the partnership agreement procedures involving the involuntary withdrawal of partners. On January 10, 1991, W&S’s executive director recommended to the firm’s executive committee that, to cut costs, they should discharge certain lawyers. Dziamba was among those identified as expendable. In November, 1991, Dziamba applied for full partnership status but, after meeting with the executive committee, withdrew his application. He did not receive a compensation increase for 1992, W&S’s executive committee having decided his performance did not warrant it. During this period, the administrative partner of W&S was Henry Goldman, and the administrator of the litigation department was Joseph Leghorn. Those two met with Dziamba on March 5, 1992, in Dziamba’s office. They informed him of the decision not to increase his compensation and of the executive committee’s general concerns about his progress at W&S. There was a perception, they told Dziamba, that he had not progressed well in originating clients and that other lawyers in the litigation department were reluctant to assign matters to him because they thought he was wont to spend more time on cases than could be billed. Goldman and Leghorn told Dziamba that he needed to market himself inside and outside of the firm. In six months, they informed him, the executive committee would review the situation. At that March 5 meeting, Dziamba said that he had not been feeling well and had not been sleeping well. From what Goldman and Leghorn had said to him, Dziamba felt as if he had been fired. After the meeting, Dziamba left the office. He was suffering from what in the weeks following was diagnosed as major recurrent depression. Treatment for that illness requires medication and, from time to time, change in the medication. Dziamba told Goldman about his illness in a telephone call on March 26, 1992, and in more detail when he returned to work on a part-time basis in April, 1992. When Goldman learned about Dziamba’s clinical problem he told him to take care of himself and to take the time needed to get better. The firm would see that his cases were covered. Until Dziamba’s call of March 26, 1992, partners at W&S had not known that Dziamba was suffering from an illness that was periodically disabling. The necessary altering and experimenting with his medications, from time to time, made Dziamba, as he described it to Goldman several years later in 1994, feel he “was in molasses.” After Dziamba came back to work in April, 1992, there were periodic meetings between Goldman and Dziamba at which Goldman said, among other things, that it was not merely a matter of hours — Dziamba should not work more than was medically appropriate — but that the underlying problem was still the perception that he lacked the ability to handle cases efficiently and to inspire the confidence of clients. In the spring of 1993, Dziamba again applied for equity partnership. The executive committee did not so recommend and took like negative action with two other candidates. In view of Dziamba’s gender discrimination claim, it bears mentioning that those other two lawyers not then elevated to equity partner status were women. Three other candidates were elected as full partners, of whom one was a woman working in the environmental law field. Each of the new equity partners had developed a strong constituency for his or her services. In February, 1994, the executive committee of W&S concluded that Dziamba was the least valuable of their commercial litigators, and Goldman gave Dziamba the bad news. He was to leave May 31, 1994. Dziamba sought the advice of counsel. The firm decided to postpone the departure date, but effective July 1, 1994, it cut Dziamba’s annual compensation to $66,000. On July 12, 1994, Dziamba filed a charge with the Massachusetts Commission Against Discrimination against W&S and its equity partners that alleged W&S had discriminated against him because of his handicap, his age, and his sex, and that the firm had retaliated against his request for a reasonable accommodation to his handicap by reducing his salary. On June 28, 1995, there was a special partnership meeting, at which Dziamba was permitted to make his case for continuing at W&S. The partners voted twenty-one to one against him. Dziamba left W&S in July, 1995. We shall mention other undisputed facts, when relevant, in connection with our discussion of Dziamba’s various claims. In reviewing the claims asserted by Dziamba, we view the facts contained in the summary judgment materials in the light most favorable to the nonmoving party, here, the plaintiff. Tar-danico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). 3. The discrimination claims, (a) Based on handicap. Dziamba’s primary claim is that W&S dismissed him because of a handicap he suffered, namely, major recurrent depression. See G. L. c. 151B, § 4(16), as appearing in St. 1983, c. 533, § 6. To maintain that claim, Dziamba must demonstrate that he is a “qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation.” Ibid. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449-450 (2002). Dziamba has failed to make that fundamental showing. Dziamba was a lawyer in W&S’s commercial litigation department. An essential function of a nonequity partner at W&S included handling litigation in a manner that was cost-efficient and that won the confidence of the client. As described in letters, memoranda, and depositions, the job of a senior litigator at W&S also included generating a market for his services through the origination of new clients (being a “finder”) or generating a market for his service internally with lawyers at W&S (being a “minder” and “binder” of clients of the firm). In neither aspect of those essential functions had Dziamba enjoyed success, as shown by internal manifestations of dissatisfaction with his performance in 1991, and the discussion of the firm’s concern about that performance with Dziamba starting with the meeting on March 5, 1992. The work of a lawyer is often highly demanding of physical and psychic energy. It requires responses to often simultaneous external pressures from courts, opposing counsel, and clients. There is no evidence that W&S held other lawyers in the firm to less demanding essential functions. All the same, Dziamba contends that the firm failed to make reasonable accommodation to his disability. The evidence is that the firm allowed him, indeed encouraged him, to work less than full time in hope that his condition would stabilize. On his own motion, Dziamba suggested lower quotas of billable hours per month: 100 hours per month for May through September, 1992; 135 hours per month for October through December, 1992; and 130 hours per month for January through March, 1993. There follow in the record a series of memoranda by Dziamba in 1993 and 1994 to the executive committee that report fatiguing effects from changes in medication and request reasonable accommodation. Dziamba’s billable hours in 1994 were 687. What reasonable accommodation W&S was to make, Dziam-ba’s memoranda do not say. To fulfill their obligation of a reasonable accommodation to a handicap, employers need not make substantial changes in the standards of a job. Beal v. Selectmen of Hingham, 419 Mass. 535, 542 (1995). Wynne v. Tufts Univ. Sch. of Medicine, 932 F.2d 19, 25 (1st Cir. 1991), on remand, 976 F.2d 791, 795 (1992), cert. denied, 507 U.S. 1030 (1993). So if, hypothetically, the norm of billable and collectible hours expected of a senior litigator in a law firm were 1800 per year, then a lawyer who could do no more than 1200 billable and collectible hours would not be performing the essential function of the position involved. There is some reference in the record to a request by Dziamba that he be appointed director of training for the firm. No such position existed at W&S. An employer is not required to create a new position as a reasonable accommodation to the handicapped employee. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454. Reidy v. Travelers Ins. Co., 928 F. Supp. 98, 109 (D. Mass. 1996), aff’d, 107 F.3d 1 (1st Cir.), cert. denied, 522 U.S. 809 (1997). Nor does reasonable accommodation require an employer to wait an indefinite period for the recovery of an employee who has a medical condition that bears on job performance. Russell v. Cooley Dickinson Hosp., Inc., supra at 455. Watkins v. J&S Oil Co., 164 F.3d 55, 61-62 (1st Cir. 1998). Dziamba attributes his productivity decline to partners at W&S shunning him after they learned he was suffering from depression. As the Superior Court judge remarked, that assertion runs into the awkward, und

Elise Russell vs. Cooley Dickinson Hospital, Inc., & another. Hampshire. March 7, 2002. August 8, 2002. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Handicap, Employment. Employment, Discrimination. Estoppel. Workers’ Compensation Act, Preference in hiring. Words, “Qualified handicapped person.” Pursuit and receipt of workers’ compensation benefits based on an assertion of total temporary disability did not automatically estop a plaintiff from pursuing an action for employment discrimination on the basis of handicap under G. L. c. 151B, § 4 (16), where the plaintiff was able to produce evidence sufficient to raise a question as to her ability, if provided with a reasonable accommodation, to perform the essential functions of the position in question [450-453]; however, summary judgment in favor of the defendant employer was appropriate where the plaintiff did not have any reasonable expectation of establishing that the hospital, by failing to create a new position for her, to provide her with indefinite leave, or to assign her to a position that she did not request, failed to provide her with a reasonable accommodation for her disability [453-458]. A plaintiff in an employment discrimination action failed to demonstrate that her employer denied her the hiring preference to which she was entitled under G. L. c. 152, § 75A [458], and failed to establish the elements of her claims of fraudulent and negligent misrepresentation on the part of her employer [458-459]. Civil action commenced in the Superior Court Department on May 6, 1997. The case was heard by Peter A. Veils, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Susan D. Sachs for the plaintiff. Margaret W. Has san for the defendants. Sharon L. Gasior, director of human resources and employee health from 1994 to 1996, and vice-president of human resources during and after 1996. Ireland, J. This case presents a question of first impression in the Commonwealth: whether an employee who receives workers’ compensation benefits for “temporary total disability” is precluded from claiming that she is a “qualified handicapped person,” capable of performing “the essential functions of the position involved” with or without “reasonable accommodation,” for purposes of claiming employment discrimination under G. L. c. 151B, § 4 (16). A Superior Court judge granted summary judgment for the defendants, concluding that the plaintiff was barred from claiming that she was a “qualified handicapped person” for purposes of bringing an employment discrimination claim because she was receiving disability benefits on the assertion of being “temporarily totally disabled.” The judge further concluded that the defendants did not fail to provide the plaintiff with a reasonable accommodation and, therefore, were entitled to summary judgment on those claims. The plaintiff appealed and we transferred the case to this court on our own motion. The plaintiff claims that the rulings of the Superior Court were erroneous, that she should not have been barred automatically from claiming she was a “qualified handicapped person” simply because of her prior claims for, and receipt of, disability benefits, and that the defendants failed to provide her with a rehabilitation position, leave extension, or reserve position to accommodate her disability, in violation of G. L. c. 151B, § 4 (16). Although we conclude that pursuit, and receipt, of disability benefits based on an assertion of total disability does not automatically estop a plaintiff from pursuing an action for employment discrimination, we affirm the judgments in this case because the plaintiff has no reasonable expectation of showing that Cooley Dickinson Hospital, Inc. (hospital), failed to provide a reasonable accommodation under G. L. c. 151B, § 4 (16). I. Facts. Because an understanding of the facts is critical to an understanding of the results, we set them out in some detail. The plaintiff, Elise Russell, currently works at the hospital as a part-time patient registration and admitting assistant. Russell began her employment at the hospital in the admitting department in 1987, taking a job in another department for a short time, and returning to the admitting department in 1988. Admitting assistants perform various duties associated with the admitting of patients, including entering patient data into the hospital computer system. The relevant job description requires the use of keyboarding, stating that admitting assistants must have “fine motor skills for the effective and efficient handling of writing tools, office equipment . . . and entry of patient data.” On numerous occasions between December, 1991, and September, 1994, the plaintiff reported work-related injuries that caused pain in her upper extremities, neck, or back, which she believed were related to her use of the computer. The hospital responded by adjusting the plaintiff’s work environment in consultation with a physical therapist and specialist treating the plaintiff. Among the changes the hospital made were excusing the plaintiff from working at the reception desk, lowering her desk to a specified height, adjusting the height of her computer, providing new chairs with improved ergonomics, providing a document holder, providing wrist rests, and permanently assigning the plaintiff to the fourth of the admitting clerk stations to accommodate a lighter work volume and to allow the plaintiff to pace herself. The plaintiff took an industrial accident leave of absence from August 31, 1993, to November 24, 1993, for surgery to alleviate some of her symptoms. Her pain, however, persisted when she returned to work. On the advice of her physician, the plaintiff commenced a second leave of absence in September, 1994. The plaintiff received workers’ compensation benefits based on temporary total disability during both of her leaves of absence. The hospital’s third-party administrator of its self-insured workers’ compensation fund, Compco, hired Lucinda Palmer, president of Action Care Management Services, Inc., to manage the plaintiff’s medical treatment and to facilitate her return to work. Palmer reviewed the plaintiff’s medical records, interviewed her, visited and spoke with her regularly, and accompanied her to various medical appointments. She submitted periodic reports to Compco, copies of which she forwarded to the plaintiff’s attorney at the attorney’s request. To meet departmental needs during the plaintiff’s absence, the hospital requested that part-time admitting assistants work additional hours, had the department’s assistant managers cover a shift, and used reserve employees to cover shifts when they were available. In January, 1995, it posted a temporary sixteen-hour a week admitting assistant position to cover some of the plaintiff’s hours. During the winter spanning 1994 to 1995, the plaintiff’s condition improved and she expressed a desire to return to work. Palmer contacted the plaintiff’s supervisor, Janet Mc-Enaney, who indicated that she was willing to allow the plaintiff to return to work on a modified duty basis and to “accommodate [the plaintiff] on a very, gradual and incremental return to work.” As a preliminary step, commonly used to acclimate returning employees still experiencing pain, Palmer scheduled a “work simulation” with an occupational therapist in March, 1995. During the simulation, the plaintiff performed functions that would be required of her at work, including keyboarding. The simulation occurred over a period of weeks, starting with ten minutes of keyboarding and gradually increasing to fifteen minutes. The plaintiff suffered significant pain during the simulations and discontinued them. Palmer reported that, after completing occupational therapy and visiting with physicians, “it was determined that [the plaintiff] is apparently not going to be able to fulfill the functional demands of her job.” Palmer copied the report to the plaintiff’s attorney. The plaintiff did not tell Palmer or anyone at the hospital that she disagreed with the report or that she thought she could perform her job. Palmer then focused her efforts on “vocational rehabilitation” for the plaintiff so that she could learn the skills necessary to perform a different job, not requiring heavy keyboarding or writing. Palmer’s report indicated that the plaintiff agreed with this approach. Palmer then requested, with the plaintiff’s cooperation and the plaintiff’s attorney’s approval, that the Department of Industrial Accidents office of education and vocational rehabilitation categorize the plaintiff as suitable for vocational rehabilitation because of her inability to return to her job. The plaintiff and her attorney participated in the preparation of an individualized work rehabilitation plan. On May 11, 1995, Palmer wrote to the defendant Sharon L. Gasior, inquiring whether the plaintiff could pursue another job at the hospital. The surgeon who operated on the plaintiff’s hand recommended pursuing other positions with the following limitations: “[Fjull time [work] with no continuous use of arms or hands in repetitive tasks, such as keyboarding or writing, for greater than [twenty] minutes. Repetitive tasks need to be followed by a brief rest, and then she must change to a different task. She must perform no repetitive lifting or carrying, and intermittent lifting or carrying is allowed to [fifteen] pounds only.” On May 26, 1995, Palmer, Gasior, and Joyce Boucher, the hospital’s occupational health nurse, met and discussed the possibility of finding the plaintiff a position suiting the limitations set out by her doctor. They concluded that there were no such positions at that time, with the exception of possible reserve positions in the linen or laundry departments. Palmer and Boucher examined the positions in the linen and laundry departments, and concluded that there was no single position that would meet the plaintiff’s restrictions, but that there were functions in the various jobs that the plaintiff could perform. Gasior agreed to consider creating a rehabilitation position of a composite of duties from different positions. Gasior told Palmer that if a rehabilitation position were identified and could be provided, she would inform Palmer or the plaintiff in writing. Gasior consulted with the supervisors in the laundry and linen departments and the director overseeing both departments. The creation of a position comprising the various duties that the plaintiff likely could perform would require oversight by supervisors of both departments. Gasior was unable to resolve the question of a rehabilitation position for the plaintiff until September, 1995. Hospital policy provides that industrial accident leaves of absence are not to exceed one year, the longest leave the hospital provides. The plaintiff was aware of the policy prior to May, 1995, and believed that she would be terminated at the end of her leave if the hospital did not create a rehabilitation position for her. In late July, 1995, Gasior wrote to Palmer stating that she still did not know whether the hospital would be able to provide a rehabilitation position because the issue was still being evaluated. Palmer shared the letter with the plaintiff. On July 28, 1995, the plaintiff told Palmer about the hospital policy regarding leaves of absence, positing that the hospital was “stalling” its response. Palmer conveyed the plaintiff’s concerns to Gasior on August 17, 1995, who responded that if a rehabilitation position were possible it could be provided even after the plaintiff was terminated. Palmer met with the plaintiff and her attorney on August 30, 1995, and the plaintiff expressed her concern that she would be terminated when her leave expired. As a result, Palmer wrote to Gasior requesting that the hospital put the plaintiff back to work in some capacity before her leave expired, or to extend her leave pending determination whether a rehabilitation position would be made available. She also indicated that the plaintiff continued to be evaluated medically to determine what combination of treatment and accommodation would be required to return the plaintiff to work. The letter was silent regarding the plaintiff’s present or future ability to work as an admitting assistant. The plaintiff’s attorney also wrote to Gasior on September 6, 1995, requesting that the hospital not apply its one-year leave policy to the plaintiff, but did not make any claim as to the plaintiff’s ability to perform the duties of an admitting assistant. After returning from vacation, Gasior responded to both letters, notifying Palmer that the rehabilitation position was still under consideration, but that the leave policy would be applied. In fact, however, Gasior extended the plaintiff’s leave for one additional week, during which time she was able to complete her consultations regarding the rehabilitation position, learning that it would not be possible. The plaintiff’s employment was terminated effective September 15, 1995, one week after it would have otherwise expired. The hospital divided the plaintiff’s forty-hour position into two positions, one twenty-four hour position and one sixteen-hour position. Shortly thereafter, one part-time admitting assistant increased her regular hours to twenty-four. The plaintiff began new treatments with a different hand specialist and she noted improvement during the fall of 1995. In early December, 1995, she applied for vacant admitting assistant positions at the hospital in accordance with her doctor’s work clearance. The hospital offered the plaintiff the open sixteen-hour position, pending a work capacity evaluation, which was deferred for additional medical treatment. Once the evaluation was completed in the spring of 1996, the plaintiff’s doctor clarified his work clearance. In August, 1996, the plaintiff began working with restrictions in the sixteen-hour admitting assistant position. Her restrictions limited her to, among other things, no more than thirty minutes at a time of continuous use of arms or hands in repetitive tasks, such as keyboarding or writing, and required that she follow repetitive tasks with a rest and a different task. Since her return to work, the plaintiff has experienced pain and has filed incident reports stating that the pain is work related. The plaintiff also twice applied for additional hours in the admitting department, but these hours were given to another internal applicant with more seniority. She eventually increased her work schedule to twenty-six hours a week. II. Discussion. A. Employment discrimination. To establish a prima facie case for employment discrimination on the basis of handicap, the plaintiff must show that she was terminated, that she is “handicapped,” that she is a “qualified handicapped person,” and that she was terminated because of her handicap. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 7 (1998). The issue in this case is whether the plaintiff is a “qualified handicapped person” under the provisions of G. L. c. 151B, § 1 (16), and G. L. c. 152, § 75B. A “qualified handicapped person” is defined under G. L. c. 151B, § 1 (16), as “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.” 1. Estoppel. The defendants argue and the judge concluded that the plaintiff cannot establish that she is a qualified handicapped person because at all relevant times she was collecting disability benefits on the basis of being “temporarily totally disabled.” See G. L. c. 152, § 34. See also Shirley’s Case, 355 Mass. 308, 311 (1969) (total disability shown if disability prevents employee from “performing remunerative work of a substantial and not merely trifling character”); Fennell’s Case, 289 Mass. 89, 94 (1935) (when employee “is disabled from doing some types of work and is unable to obtain work of the type he is able to do,” total incapacity finding warranted). The judge concluded that the plaintiff “filed for and received benefits ... on the basis of temporary total disability during her one-year leave of absence, and thus she is barred from claiming that she was able to perform the essential functions of her job with or without reasonable accommodation. ’’ We reject this conclusion but affirm the grant of summary judgment based on the judge’s alternative reasoning that the plaintiff could not establish that the hospital failed to provide her with a reasonable accommodation. In Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), we faced a similar question. In that case, the defendant maintained that the plaintiff was estopped from bringing a claim for discrimination because he sought disability benefits, through a law firm insurance policy, after his termination from the law firm, suggesting that a plaintiff claiming disability benefits admits that he is totally disabled and, therefore, cannot be a “qualified handicapped person.” Id. at 816. We noted that a majority of courts reject the proposition that seeking benefits automatically disqualifies a plaintiff from bringing a discrimination claim. We stated that “[cjourts are wary of allowing plaintiffs to play ‘fast and loose with the courts’ by claiming to be too disabled to perform the functions of a job and also claiming that they were terminated from their positions despite being able to perform those same functions. . . . However, if the evidence creates a disputed issue of fact whether the handicapped person can perform the essential functions of the job, then estoppel is not appropriate.” (Citations omitted.) Id. Although a claim for benefits is an important factor to be considered in determining whether a fact question exists, the claim for benefits is not automatically dispositive. See id. at 817. The Supreme Court of the United States faced a similar question in Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795 (1999), in which the plaintiff, after seeking and receiving Social Security disability insurance (SSDI) benefits, brought suit against her former employer under the Americans with Disabilities Act of 1990 (ADA). A Federal District Court granted summary judgment to the defendant because, in its view, the plaintiff had conceded that she was “totally disabled” and was estopped from proving an essential element of her ADA claim. Id. at 799. The United States Court of Appeals for the Fifth Circuit affirmed the District Court’s judgment, but stated that a rebuttable presumption of estoppel arises from the application for and receipt of SSDI benefits against a plaintiff suing under the ADA. Id. at 800. The Supreme Court vacated the judgment of the Court of Appeals and remanded for further proceedings, noting that claims under SSDI and the ADA, “in context, . . . are often consistent.” Id. at 797. The pursuit and receipt “of SSDI benefits does not automatically estop the recipient from pursing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA.” Id. at 797-798. The Court reasoned that “[a]n SSA [Social Security Administration] representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely T am disabled for purposes of the Social Security Act.’ ” Id. at 802. For example, the SSA does not take account of the possibility of “reasonable accommodation” when determining whether an individual is disabled for SSDI purposes. Id. at 803. “[A]n ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without i