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Where a defendant employer was awarded summary judgment on a plaintiff employee’s handicap discrimination claim, the judgment must be vacated and a remand ordered because the plaintiff has raised trial worthy issues as to the three prongs set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
Background
“Plaintiff-appellant Suzanna Sensing, who suffers from multiple sclerosis, brought suit against her former employer, defendant-appellee Outback Steakhouse, and her manager, defendant-appellee Charles Kozmits, alleging handicap discrimination in violation of the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B, §4. …
“… Initially hired as a hostess, Sensing was soon promoted to the position of ‘takeaway.’ A takeaway at Outback takes down customers’ take-out orders by telephone, does various order preparation work, packages the orders, and delivers the orders to customers waiting in the parking lot. …
“[Kozmits] stated that before Sensing would be allowed to return to work as a takeaway, she must submit to an independent medical examination (‘IME’), at the company’s expense and by a physician of their choosing, to determine whether she could safely perform that job. He indicated that while the IME was being set up, Outback might be willing to schedule Sensing for ‘light duty’ work. This light duty work would be paid at approximately half the hourly rate of the takeaway role and involve approximately one-third the number of hours per week. Sensing told Kozmits that she did not know if she could financially manage doing the light duty work, but recalls not giving Kozmits a firm answer because she wanted to discuss the financial effects of doing so with her husband. Kozmits told Sensing that he would look for a physician to do the IME and would get back to her with the details as soon as he found a suitable physician to examine her. Sensing agreed, and said that she would wait to hear back from him regarding the examination.
“After consulting with her husband, Sensing concluded that she could not afford to take the light duty position and that it made more sense for her to apply for unemployment. …”
Issues
“Although the district court did not reach this issue, appellees argue that we can affirm summary judgment on the independent ground that Sensing cannot establish she suffers from a ‘handicap’ within the meaning of Chapter 151B. …
“We note that Sensing’s position that she was only limited in major life activities during the ‘flare-up’ periods of her episodic MS condition is not inconsistent with being ‘handicapped’ within the meaning of Chapter 151B. … Nonetheless, we need not decide this issue. Whether or not Sensing can establish that she is actually ‘handicapped’ within the meaning of §1(17)(a), Sensing argues, and we agree, that she may separately be found ‘handicapped’ under §1(17)(c) on account of being ‘regarded [by her employer] as having such impairment.’ …
“Sensing has proffered sufficient evidence to permit a jury to find that despite her ‘handicap,’ she was nevertheless able to perform the ‘essential functions’ of the takeaway job, at least with reasonable accommodation. …
“Sensing has put forth three alternative claims that could, if substantiated, support a finding of an adverse employment action. First, she argues that appellees actually or constructively discharged her because of her status as a person with MS by removing her from their work schedule and making it impossible for her to comply with the condition it imposed for restoration to work. Second, she argues that even absent a finding of discharge, appellees’ actions nevertheless amounted to discriminatory adverse employment actions within the meaning of the statute. Third, Sensing argues that the appellees’ failure to accommodate her disability constituted an adverse employment action.
“Only the first of these theories was directly addressed in the district court’s opinion. However, appellees are not entitled to summary judgment on this issue if a reasonable jury could conclude, based on the facts in the record construed in the light most favorable to Sensing, that Sensing could satisfy the third prong under any one of these theories. We hold that a jury could so find under either of the first two theories, and thus, the district court erred in holding that Sensing failed to make out a prima facie case. …
“Appellees assert a legitimate interest in on-the-job safety that was furthered by removing Sensing from the work calendar and requesting that she submit to an IME. … At least one court has held that employers may, consistent with Chapter 151B, require an employee returning from medical leave to submit to an examination to determine competency for work. … Thus, Outback requiring Sensing to submit to an IME and the accompanying temporary demotion, if in fact motivated exclusively by legitimate and immediate concern about Sensing’s ability to perform the takeaway job safely, would constitute a permissible non-discriminatory justification under Chapter 151B. …
“A reasonable jury could find that Kozmits’ removal of Sensing from the work schedule was predicated, at least in part, on impermissible discrimination, as Sensing alleges, rather than a permissible legitimate concern about her ability to perform the job safely. A jury might reach this conclusion by finding, for example, that appellees had insufficient justification for removing Sensing from the work schedule for reasons of safety alone. While it is true that appellees have provided affidavits from Sensing’s coworkers that call into question Sensing’s ability to perform her takeaway job safely, Sensing had also been evaluated at least three times by her own physicians and provided Outback with three notes confirming their expert medical opinions that she could, in fact, perform the takeaway job. Had appellees questioned whether these physicians had an adequate basis for their opinions, they could have contacted the physicians directly, but chose not to do so. Appellees also did not require Sensing to undergo an IME after her return from a month long medical leave in November 2004, but did so on this occasion after Sensing missed only one and a half shifts. Moreover, Kozmits’ stated concern that Sensing could cost the restaurant thousands of dollars of liability if she were to fall may be interpreted as speculation as to risk of future injury, a prohibited form of discrimination under the MCAD guidelines, rather than legitimate concern about Sensing’s present ability to safely perform the essential functions of her job. Finally, the fact that Outback never contacted Sensing to provide her with the information necessary to actually undergo the IME, as Kozmits promised to do, coupled with Kozmits’ arguably unreasonable, unverified assumption, within days of his conversation with Sensing, that Sensing was abandoning her job, raises a question as to whether appellees actually sought to allow Sensing to return to work, provided she could do so safely, or whether the articulated concerns about safety were actually pre-textual, the real reasons for her removal being discriminatory animus.
“… The question of whether Outback’s actions were motivated by legitimate safety concerns or alternatively, impermissible discriminatory animus is a factual dispute that could be resolved in favor of either party, thereby precluding summary judgment.”
Sensing v. Outback Steakhouse of Florida, LLC, et al. (Lawyers Weekly No. 01-240-09) (39 pages) (Torruella, J.) (1st Circuit) Appealed from a decision by Young, J., in the U.S. District Court for the District of Massachusetts. Paul H. Merry, for the plaintiff-appellant; John F. Welsh, with whom Jennifer Belli and Bello, Black & Welsh were on brief, for the defendants-appellees (Docket No. 08-1865) (Aug. 11, 2009).