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holding that a genuine issue of material fact existed as to pretext when the employee's supervisor improperly took into account the employee's FMLA absences from work when evaluating his performance
Summary of this case from Fountain v. First Data Merch. Servs.Opinion
Civil Action No. 03-40141-FDS.
November 29, 2004
MEMORANDUM ORDER
On May 30, 2003, plaintiff George Lukacinsky filed a complaint against defendants Panasonic Service Company and Ted Kent, alleging that he was wrongfully terminated from his employment for exercising his right to take medical leave under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601- 2619 ("FMLA"). The complaint also alleges violations of Massachusetts employment discrimination law, Mass. Gen. Laws ch. 151B, on the grounds that (1) Lukacinsky has a disability in the form of chronic lower back pain; (2) Panasonic failed to provide a reasonable accommodation for that disability; (3) Lukacinsky was terminated as a result of unlawful discrimination on the basis of his disability; and (4) he was terminated in retaliation for his attempt to exercise his rights under ch. 151B. Read liberally, the complaint may also allege that Lukacinsky was subjected to a hostile work environment at Panasonic due to his disability.
Pending before this Court is Panasonic's motion for summary judgment on each of Lukacinsky's federal and state law claims. Panasonic contends, among other things, that (1) Lukacinsky's FMLA claim and most of his state law claims are barred by the applicable statute of limitations; (2) Lukacinsky cannot establish a prima facie claim for discriminatory termination or retaliation under Mass. Gen. Laws ch. 151B or for retaliation under the FMLA; and (3), even if he could establish a prima facie claim, Lukacinsky cannot rebut Panasonic's legitimate, non-discriminatory reason for terminating his employment.
I. Factual Background
The facts are set forth in the light most favorable to the plaintiff unless otherwise indicated. On June 6, 1988, Lukacinsky began working for Panasonic as a service technician in the company's Westwood, Massachusetts, service center. His principal duties involved the repair of audio equipment, although in later years he also performed repair work on DVD players. During the majority of his 13-year tenure at Panasonic, Lukacinsky reported to Ted Kent, the service manager.
For many years, according to Lukacinsky, he and Kent had an "excellent" relationship. From 1992 until 1999, Lukacinsky received largely positive feedback in his biannual performance appraisals from Kent. On one occasion, however, he received lower than average marks for punctuality and absenteeism (1992-93). On the other three occasions, although Lukacinsky's attendance met the required standards and he received average marks, Kent noted that Lukacinsky should try to improve his absenteeism from work (1994-95, 1996-97, 1998-99).
Although Lukacinsky disagrees with the substance of Kent's 1992-93 evaluation of his attendance and states that he does not remember agreeing or disagreeing with the substance of Kent's 1994-95 and 1996-97 notes regarding a need to improve his absenteeism, Lukacinsky does not dispute the existence of those evaluations or their content.
Lukacinsky contends that he began to experience back-related problems in about 1993. Those problems grew increasingly worse and, in June 1998, Lukacinsky began receiving "serious" medical treatment for his back. According to Lukacinsky, his back condition caused him to be absent from work more frequently.
At the same time, Lukacinsky contends, his relationship with Kent began to deteriorate. On one occasion, at the end of 1999 or the beginning of 2000, Kent asked Lukacinsky to pack audio equipment. Although Lukacinsky informed Kent that the work was causing him back pain, Kent insisted that he do it and told him to put his back brace on. On April 21, 2000, Kent spoke with Lukacinsky about his excessive absences over the prior three months. Specifically, Kent informed Lukacinsky that his employment was "on thin ice," that immediate corrective action must be taken, and that any medical concerns should be discussed and a course of action should be coordinated with the human resources department.
According to Lukacinsky, Kent was aware of his back complaints long before the April 2000 meeting. Lukacinsky contends that he provided a written note from a physician to Kent at some unknown point prior to 2000, which made Kent aware of the seriousness of the condition. No such note has been produced in evidence.
Panasonic contends that the first physician's note submitted by Lukacinsky regarding his medical condition was dated May 9, 2000. That note, from a physician at Brigham and Women's Hospital, stated that Lukacinsky was present at the pain management center for evaluation of his back pain. The note did not indicate that Lukacinsky required any absence from work or other accommodation as a result of his condition. No medical records evidencing treatment of Lukacinsky for back pain prior to May 2000 have been produced.
About a week later, Lukacinsky gave Kent a note dated May 15, 2000 from Anthony D. Puopolo, M.D., of Milford Emergency Associates, Inc., Walk-In Medical Center. The note stated that Lukacinsky has "been plagued by a chronic lower back condition for the past 10 years" and that, although he has received various treatments, he "intermittently becomes incapacitated." According to Lukacinsky, when he gave this note to Kent, Kent told him to "take [it] back and not turn it in because the company might take it the wrong way."
Lukacinsky submitted three further physician's notes to the company in May and June 2000:
May 16, 2000: Note from Cameron C. MacEwen, a chiropractor, stating that Lukacinsky has been under his care since June 23, 1998 for treatment of lower back pain which "required periodic absence from work;"
May 23, 2000: Note from the Milford Emergency Associates, Inc., Walk-In Medical Center indicating that Lukacinsky was treated there on May 23, 2000 for back pain and should not return to work until May 24;
June 13, 2000: Note from Alan J. Bell, M.D., a neurologist, indicating that Lukacinsky was a patient under his active care, was treated for lower back pain, and should not return to work until June 14, 2000.
On July 1, 2000, Lukacinsky requested leave under the FMLA in order to obtain treatment for his back. The company granted Lukacinsky's request. Joanne Pearn, an employee in the Panasonic Human Resources Department, advised him that he could take leave "all at once or . . . intermittently" for as long as allowed under the FMLA. Lukacinsky took a one-month leave and returned to work on July 31, 2000.
Panasonic apparently gave Lukacinsky an "Employee Request for Leave Form," which he filled out and submitted on July 6, 2000.
Two additional phsyician's notes from July 2000 were provided to the company: a note dated July 3, 2000, from Alan J. Bell, M.D., recommending that Lukacinsky take a two-week leave of absence for his lower back pain, and a note dated July 15, 2000, also from Dr. Bell, indicating that Lukacinsky had been evaluated and treated for physical therapy regarding his lower back pain. Lukacinsky contended in his deposition that he submitted documentation explaining some of his other absences and abbreviated work days from January to July 2000, but that this documentation was missing from his work area when he returned from his July 2000 FMLA leave. At an earlier point in his deposition, Lukacinsky stated that it was possible that he submitted doctors' notes to Panasonic in 2000, other than those produced in evidence, but that he could not recall for certain.
According to Lukacinsky, "around the time" of his July 2000 leave of absence, Kent made comments regarding his back problems. Lukacinsky at one point, "either right after . . . or right before" the leave, asked Kent for time off and Kent responded by asking, "Oh, what veterinarian is it this time?" Around the same time, Lukacinsky tried to describe his back pain to Kent, who apparently had back problems of his own; Kent responded, "Well[,] I don't know[,] George, maybe I'm different. Maybe my pain — maybe I can take the pain better than most people." During the latter exchange, Kent called him a "hypochondriac."
According to Panasonic, when Lukacinsky returned from his leave of absence, he received a 4% merit salary increase effective July 31, 2000. Kent recommended that Lukacinsky receive that raise.
Shortly after he returned from the leave, Lukacinsky requested to change his work schedule so that he would work from 7:30 a.m. until 4:00 p.m., except on days when he had physical therapy, when he would work from 7:00 a.m. until 3:30 p.m. Panasonic agreed to those schedule modifications, with the condition that Lukacinsky inform Kent, one week in advance, of the days when he would be attending physical therapy. Panasonic confirmed those details in a memorandum dated August 3, 2000.
On August 7, 2000, however, Lukacinsky arrived at work one-half hour late. In response, Kent gave Lukacinsky a written reprimand, warning him that his pattern of tardiness would not be tolerated. Attached to that reprimand was a schedule entitled "Record of Absence and Tardy Days for George Lukacinsky 2000" listing each of Lukacinsky's absences and the days that he had arrived late from January 1 through August 7. The reprimand itself, however, only addressed excessive tardiness. Specifically, Kent noted that Lukacinsky was late 5 out of 22 workdays during the month of June 2000.
According to Lukacinsky, he had doctor's notes explaining his lateness or absences on some, but not all, of the dates set forth on the list. Moreover, on certain of those dates, the list indicated that Lukacinsky was late due to a doctor's appointment. The first day of Lukacinsky's July medical leave of absence was also included on the list.
In response to that warning, Lukacinsky contacted Dan Charrow in the company's human resources department and explained his disagreement with Kent's reprimand. Accordingly to Lukacinsky, Charrow stated that Kent should not have included dates on which Lukacinsky had a doctor's appointment in the list of absences and tardiness.
Lukacinsky also complained to Charrow that Kent was harassing him and that Kent had taken work away from him. In particular, Lukacinsky complained that he was no longer able to perform work at Cambridge Sound Works, an independent retailer of audio and video equipment. Prior to his July medical leave of absence, Lukacinsky had traveled to Cambridge Sound Works once a month to repair audio equipment at the customer's facility. When he returned from his leave, Kent informed him that such off-site work would no longer be performed because it was unfair to other customers who were not receiving such services. Lukacinsky also complained that, as of late 1999 and early 2000, Kent no longer assigned him to repair DVD players, a part of his work that did not strain his back.
Charrow advised Lukacinsky that he would get Kent to "back off." Following his conversation with Lukacinsky, Charrow contacted Kent and advised him that Lukacinsky could arrive late to work as medically needed. Moreover, on August 22, 2000, Lukacinsky submitted a note from Dr. Bell dated August 21 stating that Lukacinsky "will occasionally have trouble moving in the morning necessitat[ing] his being late for work." Joanne Pearn informed Lukacinsky that he would be permitted to arrive late if he was experiencing back pain on a particular morning. According to Lukacinsky, after those events, he had no further problems with Kent regarding his tardiness or absences for medical reasons.
In January 2001, Lukacinsky asked Jim Tamilio, the lead service technician, to use the company's electronic lift in moving pieces of his equipment onto his workbench because manual lifting was difficult on his back. Lukacinsky contends that he had made the same request to Tamilio twice before, without success, around May 2000 and November 2000. Lukacinsky also spoke to Kent about using the electronic lift at some point prior to asking Tamilio. Lukacinsky was never permitted to use the lift.
Due to his back condition, Lukacinsky requested a second FMLA leave of absence from January 30 until February 7, 2001. Lukacinsky provided documentation from his neurologist regarding his need for that leave of absence. Panasonic again granted his request.
On February 1, 2001, Lukacinsky wrote a note to Joanne Pearn at Panasonic indicating that he had left a voicemail stating that he would not be at work from January 29, 2001, through February 2, 2001, because of back pain. Lukacinsky also stated that he went to the emergency room on January 29, 2001, because he was unable to see his regular physician and that his neurologist, Dr. Bell, had given him a note recommending a two-week leave of absence. The note from Dr. Bell is not part of the record.
Lukacinsky provided a note dated February 6, 2001, from Dr. Rosen, his primary care physician, indicating that Lukacinsky could return to work without restriction.
On February 14, 2001, approximately one week after his return to work, Kent and John McGovern of Panasonic's personnel department met with Lukacinsky. They advised him that he was being discharged because "there was no work for him because his work was being sent to another Panasonic facility."
Panasonic contends that the company needed to terminate one of its six technicians for financial reasons, and that it employed neutral, performance-related factors in deciding which technician to discharge. In particular, Panasonic contends that it terminated Lukacinsky because he had (1) the lowest efficiency rating (a statistic that measures the amount of time that the technician spends on each repair as compared to the time, under nationwide standards, that the repair should take); (2) the lowest net utilization (a statistic that measures the productive use of a technician's time during the hours that he or she is available for work), and (3) the lowest average performance review for the years 1998-2000. With regard to those statistics, Panasonic contends that it purposefully studied Lukacinsky's net utilization percentage rather than his gross utilization percentage so as not to penalize him for his medically-related tardiness or absenteeism. Finally, Panasonic contends that it terminated Lukacinsky because his work involved basic repair skills and could easily be reallocated to other employees. Lukacinsky claims that Panasonic's explanation for his termination was a pretext for unlawful discrimination based on disability and the exercise of his FMLA rights.
On December 31, 2001, after his discharge, Lukacinsky submitted a claim to the Social Security Administration ("SSA") for Supplemental Security Income ("SSI") payments. On February 2, 2002, he filed an application for Social Security Disability Insurance ("SSDI") benefits. The SSA denied both claims initially and again on reconsideration. Lukacinsky filed a request for a hearing on August 8, 2002; although that request was denied, the SSA Office of Hearing and Appeals found sufficient evidence to establish that Lukacinsky was disabled as of February 14, 2001, due to back pain. Lukacinsky is thus receiving government benefits because of his disability.
II. Standard of Review
The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The burden is upon the moving party to show, based upon the pleadings, discovery, and affidavits, "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
III. The Family and Medical Leave Act Claim
Lukacinsky asserts a claim against Panasonic under the FMLA, contending that although he was granted two formal leaves of absence and a modified work schedule, he was unlawfully terminated in retaliation for exercising his right to take such leave.
At the outset, the court notes that the derogatory comments allegedly made by Kent, who was Lukacinsky's supervisor throughout the relevant period, lie at the very center of this case. According to Lukacinsky, Kent made demeaning comments concerning his frequent absences from work and his back pain, and accused him both directly and indirectly of being a "hypochondriac." The comments are by far the strongest evidence that Panasonic had a discriminatory motive for terminating Lukacinsky and that the discrimination was "willful" for statute of limitations purposes; indeed, it is doubtful whether Lukacinsky's claim could survive without it.
There is substantial ambiguity in the record as to, among other things, the precise timing of those comments — in particular, whether they were made before or after the company became aware that Lukacinsky might be entitled to FMLA-protected leave. That ambiguity underscores a particular difficulty in the application of the FMLA in cases such as this. Lukacinsky took protected leave, but he was also absent or tardy without excuse on multiple occasions. Generally speaking, an employer has the right to rebuke an employee who is frequently tardy or absent, or indeed to discipline or terminate him. It is only where the absence is protected that the employer must be held to a different standard.
Of course, while an employer should be given considerable latitude to address excessive non-protected absenteeism, that does not create an open-ended right to abuse and harass employees in violation of other legal protections. Here, Kent is alleged to have gone well beyond legitimate complaints about absenteeism into the territory of improper harassment and discrimination on the basis of disability.
Whether a particular absence is protected, however, is not always clear-cut. To complicate matters further, FMLA protection may under some circumstances operate retroactively. An employer thus runs the risk that its actions will be judged in hindsight under a very different light than that in which they were made.
It is clearly insufficient simply to say that any employer who rebukes an employee for excessive absenteeism runs the risk that the protections of the FMLA may someday be invoked. Employers should not be unfairly inhibited from disciplining employees who fail to show up to work without good cause. The statute resolves the competing interests of employers and employees by granting the employee the right to take leave, while simultaneously imposing a duty on the employee to give notice of any need for leave and permitting the employer to require medical certification of such a need. Only when the employer is properly put on notice that a particular absence may be FMLA-protected does the employer's interest in preventing or disciplining absenteeism yield to the employee's interest in taking protected leave.
Here, however, Lukacinsky contends that Kent did much more than make legitimate complaints about his absenteeism. He alleges that Kent expressed overt hostility to his medical condition and his need for leave, and that the hostility carried over into the company's decision to terminate him shortly after his return from leave in February 2001. He also alleges that the comments were made "around the time" of his July 2000 leave, which was clearly protected under FMLA, or "either right after . . . or right before" the leave. Panasonic, on the other hand, contends that Lukacinsky was terminated for reasons having nothing to do with his leaves of absence or his unexcused absenteeism. Because the evidence is necessarily viewed in the light most favorable to the non-moving party, Lukacinsky's evidence of Kent's comments, taken in conjunction with the other evidence presented, is sufficient to defeat Panasonic's motion for summary judgment.
A. Statute of Limitations
The initial issue presented is whether Lukacinsky's complaint under the FMLA is time-barred. An action may be brought under the FMLA "not later than two years after the date of the last event constituting the alleged violation for which the action is brought," unless the violation is "willful," in which case it "may be brought within 3 years of the date of the last event constituting the alleged violation." 29 U.S.C. § 2617(c)(1), (2). Here, the "last event" triggering the alleged violation was Lukacinsky's February 14, 2001, termination from employment. Because this suit was not brought until May 30, 2003, Lukacinsky must establish that Panasonic willfully violated the FMLA in order to avoid the statute of limitations bar.
The complaint contains no specific allegation that Panasonic perpetrated a "willful" violation of the FMLA. Because, however, Lukacinsky has specifically alleged facts sufficient to support a finding of a willful FMLA claim, the complaint will be deemed sufficient under the circumstances. See Gold v. Carus, 2003 WL 22134913, at *1 (E.D.N.Y. 2003).
The First Circuit recently articulated the standard for finding a willful violation of the FMLA, adopting the test promulgated by the Supreme Court for determining willful violations of the Age Discrimination in Employment Act ("ADEA") and the Fair Labor Standards Act ("FLSA"). In order to establish a willful violation of the FMLA, "a plaintiff must show that 'the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.'" Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)) (standard for willful violations of the FLSA); see Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993) (standard for willful violations of the ADEA). The First Circuit has recognized two components implicit in this standard: the plaintiff must proffer evidence that (1) the defendant employer had actual knowledge of, or showed reckless disregard for, the requirements of the FMLA, and (2) intentionally disobeyed or ignored the law. See Biggins v. Hazen Paper Co., 953 F.2d 1405, 1415 (1st Cir. 1992) (affirming jury instructions as to willfulness standard), rev'd on other grounds, 507 U.S. 604 (1993); Maldonado v. Administration de Correccion, 1993 U.S. Dist. LEXIS 9577, at *11 (D.P.R. 1993) (FLSA).
Thus, an employer could intentionally discriminate under the FMLA without consciously appreciating the illegality of its act. See Andover Newton Theological School, Inc. v. Continental Casualty Co., 930 F.2d 89, 92-93 (1st Cir. 1991) (ADEA). An employer's actions cannot be deemed willful simply for knowing that FMLA was "in the picture," or that it was potentially applicable, when it committed the challenged act. See McLaughlin, 486 U.S. at 132-133. Likewise, if an employer acts reasonably in determining its legal obligation or acts unreasonably, but not recklessly, its action should not be considered willful. Id. at 134-135.
Although discrimination by its nature is intentional conduct, not every finding of liability under the FMLA necessarily results in a finding of willful violation. See Andover Newton, 930 F.2d at 92-93. To hold otherwise would virtually obliterate any distinction between willful and non-willful violations of the FMLA, when Congress plainly intended to construct a two-tier statute of limitations and to draw a significant distinction between ordinary and willful violations. McLaughlin, 486 U.S. at 132-33.
By the same token, the facts that undergird a finding of intentional discrimination under the FMLA may provide the basis for a reasonable jury to conclude that the employer willfully abrogated the statute. The inquiry is necessarily fact-driven and context-specific. See Maldonado, 1993 U.S. Dist. at *11 (whether defendant willfully violated the FLSA requires a factual determination that must be made by the trier of fact). 1. Whether the Employer Had Knowledge of the Requirements of FMLA
The first component of the willfulness test is whether the employer knew of, or showed reckless disregard for, the requirements of the FMLA. There can be no doubt that Panasonic had actual knowledge of the requirements of FMLA as of at least July 2000. Among other things, Panasonic granted Lukacinsky a formal leave in July 2000, and the "Employee Request for Leave Form" prepared by Panasonic and submitted by Lukacinsky on July 6, 2000, specifically tracks the provisions of the FMLA. Lukacinsky's discussion with Joanne Pearn in the Human Resources Department in July 2000 also specifically referenced the FMLA. Lukacinsky therefore has produced sufficient evidence to satisfy the first component of the test.
2. Whether the Employer Intentionally Disobeyed or Ignored the Law
The second component of the willfulness test is whether defendant intentionally disobeyed or ignored the law. This issue presents a much closer question. In support of his claim of intentional misconduct, Lukacinsky cites the derogatory remarks made by Kent preceding and "around" the time of his July 2000 FMLA leave; Kent's reprimand of August 7, 2000, which arguably referred to FMLA-protected leave; and his termination only one week after his return from his second FMLA leave. Among other things, Kent is alleged to have told Lukacinsky not to submit a note from his physician as to his back pain and need for time off "because the company might take it the wrong way"; asked Lukacinsky what "veterinarian hospital" he was going to go to; remarked that he (Kent) could "take the pain better than most people"; and referred to Lukacinsky as a "hypochondriac."
Lukacinsky also notes Panasonic's refusal to accommodate his back condition by allowing him to use an electronic lift in January 2001, only weeks before his termination. For the reasons explained below, the court does not consider Lukacinsky's request to use the lift to rise to the level of a cognizable request for reasonable accommodation of his medical condition. Thus, Panasonic's refusal to comply with this request will not be treated as probative of a willful violation of the FMLA.
Panasonic vehemently denies that there is any evidence that the company intentionally disobeyed or disregarded its obligations under FMLA. It points specifically to the fact that the company granted each of Lukacinsky's requests for FMLA leave, instructed Kent to allow Lukacinsky to arrive tardy or absent as medically needed, and gave Lukacinsky a 4% merit raise upon his return from his first leave.
The touchstone of a willful violation appears to be evidence of discriminatory animus. Compare Sanchez, 37 F.3d at 722 (derogatory comments about age; court noted a pattern of misconduct "from which [the jury] could infer that [the company's] conduct toward plaintiff was not merely negligent, but bordered on the contemptible" and fell "outside the safe haven for good faith but incorrect conduct"), and Cheng v. IDEAssociates, 2000 U.S. Dist. LEXIS 10517, at *22 (D. Mass. 2000), with Hillstrom, 354 F.3d at 34, and Hoffman v. Professional Med Team, 270 F. Supp. 2d 954, 964 (W.D. Mich. 2003).
Here, Lukacinsky has proffered evidence of derogatory comments and overt hostility on the part of Kent toward his medical condition and his need for leave. While that evidence is ambiguous, it is clearly sufficient to survive summary judgment. Furthermore, the close temporal proximity between Lukacinsky's termination and his second FMLA leave is potentially probative of hostility on the part of the company toward his condition. See Hodgens v. General Dynamics Corp., 144 F.3d 151, 170 (1st Cir. 1998).
Panasonic's two grants of FMLA leave and salary increase for Lukacinsky, as well as its intervention after Kent's reprimand, obviously militate against a finding of willfulness. There are also substantial questions concerning the substance and timing of Kent's comments. Nonetheless, the degree to which Panasonic's evidence of good faith undermines Lukacinsky's evidence of willfulness is for a jury to decide. See Sanchez, 37 F.3d at 717-718. Plaintiff has put forth sufficient evidence for a rational jury to infer that Panasonic willfully violated the FMLA, which is sufficient to deny summary judgment for the defendant.
B. The Retaliation Claim
Lukacinsky claims that Panasonic violated the anti-discrimination provisions of the FMLA by terminating him in retaliation for taking protected medical leave. In response, Panasonic contends that Lukacinsky's FMLA claim must be dismissed because the plaintiff cannot establish a prima facie case of retaliation or rebut the company's evidence of legitimate reasons for termination.
The FMLA provides protection to employees in the event that they are discriminated against for exercising their right to take reasonable medical leave. Hodgens, 144 F.3d at 159-160; see 29 U.S.C. § 2615(a)(1) ("[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter"). Although the language of the statute is not explicit, employers are nonetheless "prohibited from discriminating against employees . . . who have used FMLA leave." See Hodgens, 144 F.3d at 160 n. 4 (quoting 29 C.F.R. § 825.220(c)).
The principal issue presented is whether Panasonic took adverse action against Lukacinsky because of a prohibited reason (his right to take reasonable medical leave) or for some other legitimate, nondiscriminatory reason. Id. at 160. Where, as here, plaintiff does not claim direct evidence of discrimination, the court is to apply the tripartite burden-shifting analysis used in cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to e-17. Id.; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-806 (1973). Under that framework, the plaintiff has the burden of establishing a prima facie case of discrimination or retaliation. Hodgens, 144 F.3d at 160. Once that burden is met, the employer must present evidence of the reasons for the employee's termination. If that evidence is sufficient to create a genuine issue of material fact, the mandatory inference of discrimination created by the prima facie case is eliminated and the burden shifts back to the plaintiff to show that the employer's stated reason for termination was merely a pretext. Id. 1. Whether Plaintiff Has Established a Prima Facie Case
To make out a prima facie case of retaliation under the FMLA, Lukacinsky must show that (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; and (3) there is a causal connection between his protected activity and Panasonic's decision to terminate his employment. Id. at 161. Here, there is no dispute with respect to the second element; Lukacinsky was adversely affected by Panasonic's decision to terminate him. The only issues, therefore, relate to whether Lukacinsky availed himself of a protected right under the FMLA and whether there is a causal connection between his protected activity and the termination decision.
a. Whether Plaintiff Availed Himself of a Protected Right under the FMLA
Under the FMLA, employees are entitled to a total of 12 work weeks of leave during any 12-month period "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). An employee may take the available 12 weeks of leave in periods of uninterrupted leave, or "intermittently or on a reduced leave schedule when medically necessary." Id. § 2612(b)(1). The employee must, however, provide appropriate notice to the company of his intent to take such a leave, and may be required to submit a certification from a health care provider to the employer in support of any request for leave. Id. §§ 2612(e)(2)(B), 2613(a).
It is undisputed that Lukacinsky availed himself of a protected right under the FMLA when he sought and received a one-month leave of absence in July 2000; a modified work schedule after August 2000; and a one-week leave of absence in late January and early February 2001. Lukacinsky's back problems (at least as of July 2000) clearly constituted a "serious health condition" within the meaning of the statute. See id. §§ 2612(a)(1)(D), 2611(11). The leave was taken "because of" that condition, and that condition rendered him unable to perform the functions of his position during those periods. See id. § 2612(a)(1)(D), (b)(1). Furthermore, Panasonic does not appear to contest that Lukacinsky provided whatever notice the company may have required in connection with those leaves of absence.
The term "serious health condition" is defined under the statute to include "an illness, injury, impairment, or physical condition that involves . . . continuing treatment by a health care provider." 29 U.S.C. § 2611(11). The Department of Labor regulations promulgated under the statute provide a more comprehensive definition. See 29 C.F.R. § 825.114(a). Lukacinsky's back problems qualified under those regulations in two ways. First, Lukacinsky took leave for treatment lasting more than three consecutive days, qualifying his condition under § 825.114(a)(2)(i). Second, his back pain fit the definition of a "chronic serious health condition" under § 825.114(a)(2)(iii) because it required periodic visits for treatment by a health care provider, continued over an extended period of time, and produced episodic, rather than continuing, incapacity. See Mann v. Mass Correa Electric, 2002 U.S. Dist. Lexis 949, at *25 (S.D.N.Y. 2002) (recurrent back pain classified as a chronic serious health condition).
In order to be considered "unable to perform" his job, an employee does not have to be "too sick to work" or incapacitated such that he cannot physically perform his work. See Hodgens, 144 F.3d at 163-65. Rather, an employee may be "unable to perform" his job if his absences from work are necessary for the diagnosis and treatment of his medical condition. See id. at 165. An employee need only show that his medical appointments conflicted with his work to satisfy this requirement. Id. at 164-165. Here, Lukacinsky at various points was absent for medical appointments for diagnosis and treatment, absent for treatment in the form of rest, and physically incapacitated. He therefore clearly meets the statutory requirement of being "unable to perform" the functions of his position.
There is, however, an issue as to whether Lukacinsky's other, intermittent absences prior to July 2000 qualify for FMLA protection. In the year 2000, Lukacinsky was absent at least 26 times prior to the commencement of his leave in July. He was also apparently absent on multiple occasions in 1999 and 1998 and possibly earlier.
For the sake of convenience, this opinion will use the term "absence" to cover complete absences from work, tardiness, and leaving early.
Those earlier, intermittent absences are relevant largely because the hostile comments alleged to have been made by Kent occurred, at least in part, at the time of those absences. While the alleged comments may have been crude in any context, they may also have substantial legal significance if they were made after the point that Kent was put on notice that Lukacinsky was entitled to leave as a matter of law. The court must therefore attempt to ascertain whether any of those earlier, intermittent absences were protected in order to attempt to then evaluate the comments and actions of Kent in an appropriate context.
As noted, the FMLA protects leaves of absence where (1) the employee had a "serious health condition"; (2) "because of" that serious health condition, the employee was "unable to perform" the functions of his or her job; and (3) the employee furnished adequate notice to his or her employer of his or her need and intention to take leave under the FMLA. Id. § 2612(a)(1)(D), (e)(2)(B).
There is no serious dispute that Lukacinsky had a "serious health condition" as of July 2000, and that, from that point forward, he was unable to perform the functions of his position during his periods of absence. A somewhat unusual feature of the FMLA, however, is that it can operate to protect employee absences retroactively. Once the employee satisfies the standard of a "serious health condition," all prior absences that were necessary for the evaluation and treatment of the condition may become protected, even if they were not protected at the time they occurred. See Hodgens, 144 F.3d at 163. Thus, once Lukacinsky's back problems became a "serious health condition" within the meaning of the statute, any prior absence for diagnosis or treatment of the condition is potentially protected FMLA leave. The court must therefore consider (1) whether Lukacinsky's intermittent absences prior to July 2000 were attributable to a serious health condition that rendered him unable to perform the functions of his job; and (2) whether he complied with his FMLA-imposed duty to provide the company with appropriate notice of the medical need for those absences.
The potential unfairness to the employer of this feature is considerably ameliorated by the prerequisite that the employee give notice to the employer before the protected status will attach. Otherwise, an employer who is unaware that an employee has a serious medical condition requiring leave might rebuke the employee for excessive absenteeism, only to find out afterwards that FMLA protection had attached retroactively to those absences.
Lukacinsky met the "three consecutive days" test of § 825.114(a)(2)(i) in July 2000, during his first formal leave. It is unclear precisely when he met the definition of a "chronic serious health condition" under § 825.114(a)(2)(iii), although it was no later than the time of his July 2000 leave. Because of the retroactive nature of the statute, the precise date need not be ascertained.
(1) Whether Plaintiff Took Leave Because of a Condition that Made Him Unable to Perform the Functions of His Position
The first issue in determining whether Lukacinsky's intermittent absences prior to July 2000 were FMLA-protected is whether the he took the absences "because of a serious health condition" that made him "unable to perform the functions" of his position. This inquiry focuses on whether the intermittent absences were necessary to the diagnosis and treatment of his medical condition.
Lukacinsky contends that he began experiencing back pain as early as 1993 and underwent serious medical treatment for his back starting in June 1998. He states that, beginning in 1998, the back pain and treatment caused him to be absent more frequently from work, but does not specify which, or how many, days he missed work due to his condition in 1998 or 1999. If Lukacinsky missed work because he required medical treatment for back pain in 1999 and earlier, there is no contemporaneous documentation in the record to support it. Lukacinsky did, however, produce two notes from health care providers, one dated May 15, 2000 (stating that Lukacinsky had "been plagued by a chronic lower back condition for the past 10 years" and that, although he has received various treatments, he "intermittently becomes incapacitated"), and one dated May 16, 2000 (stating that Lukacinsky had "been under [a chiropractor's] care since 6-23-98 for the treatment of low back pain which required periodic absence from work").
The evidence as to Lukacinsky's absences in early 2000 is somewhat more complete, although far from completely clear. In the "Record of Absence and Tardy Days for George Lukacinsky 2000" that was attached to Kent's August 7, 2000 reprimand, the company listed 26 instances of absence between January 1, 2000 and the July 2000 leave. Lukacinsky does not appear to dispute the fact of those absences. On 15 of those occasions, Lukacinsky was absent from work or left work early due to "illness" or medical appointment. Three of those dates (May 9, May 23, and June 13) coincide with dates on which Lukacinsky provided doctors' notes regarding the medical reason for his absence. Lukacinsky contends that he had documentation explaining his absences for medical reasons on "some" of the other dates, but that this documentation was missing from his work area when he returned from his July 2000 leave. It is unclear whether the other days of "illness" referenced in the list were due to back pain or some other, unrelated illness.
The following fifteen dates were so designated: February 14, 16, and 23; March 16, 21, and 22; April 3, 18, 19, and 20; May 9 and 23; and June 13, 15, and 20.
The list of absences given by Kent to Lukacinsky on August 7 did not list either May 15 or May 16, and the physicians' notes from those dates do not indicate that Lukacinsky missed work as a result of his appointments. Accordingly, neither date was counted in this opinion's earlier reference to Lukacinsky's 15 medically-related absences.
There were 11 other absences between January 1 and July 1 that make no reference to his illness or any related medical appointments, and as to which there is no independent medical documentation: nine instances of Lukacinsky arriving "late" (eight of which list no reason; the other states "stuck in traffic"), one instance when he left early due to "accident — sister-in-law," and one instance when he left early due to "poison ivy."
Reviewing the evidence in the light most favorable to Lukacinsky, the most that can be said is that some of Lukacinsky's intermittent absences in early 2000 were for diagnosis or treatment of his back pain, and some were not. At least three of the absences (May 9, May 23, and June 13) were related to the diagnosis and treatment of his back pain, and others may have been as well. Under the circumstances, the issue cannot be resolved on summary judgment. Nonetheless, Lukacinsky has clearly established that he took leave because of a condition that made him unable to perform the functions of his position, even if the precise parameters of that protected leave are uncertain.
(2) Whether Plaintiff Furnished Adequate Notice to His Employer
While some of Lukacinsky's intermittent absences prior to July 2000 may have been taken because of his serious health condition, that fact, standing alone, is not enough to confer FMLA protection on those absences. The FMLA requires at least one additional step: Lukacinsky must have furnished Panasonic with appropriate notice of his intent to take leave. See 29 U.S.C. § 2612(e)(2).
When the necessity for leave is foreseeable, the FMLA requires that the employee must notify the employer at least 30 days in advance unless "the date of the treatment requires leave to begin in less than 30 days," in which notice is to be given "as is practicable." Id. § 2612(e)(2)(B); see 29 C.F.R. § 825.302. The employer "may also require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave." 29 C.F.R. § 825.302(d).
The statute does not specifically address unforeseeable leave. Under the regulations, when the "approximate timing of the need for leave is not foreseeable," the employee must provide notice to the employer "as soon as practicable under the circumstances of the particular case." Id. § 825.303(a). "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." Id.; see Brunelle v. Cyro Industries, 225 F. Supp. 2d 67, 78 (D. Me. 2002) (employee's unplanned day of absence was not a FMLA-protected activity because the employee's notification to the employer the next day was not given "as soon as practicable" after the need for leave became known to the employee).
The employee need not expressly assert rights under the FMLA, or even mention the FMLA. 29 C.F.R. §§ 825.302(c), 825.303(b). Adequate notice requires more, however, than a mere profession of "sickness" or "illness." See, e.g., Brock v. United Grinding Technologies, Inc., 257 F. Supp. 2d 1089, 1100-1101 (S.D. Ohio 2003) ("[t]o interpret the FMLA in such a way that the employer must investigate an employee's leave whenever it is informed that the employee is 'ill' or 'sick' would certainly create a burden on the employer that Congress did not intend"). The employee must provide the employer with some information about the medical condition at issue. See id. (citing Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002)). Once the employee furnishes this information, the burden shifts to the employer to obtain any additional required information through informal means. 29 C.F.R. § 825.303(b).
The employee must also provide notice to the employer for each medical absence in order for that absence to qualify as a protected activity under the FMLA. See, e.g., Brunelle, 225 F. Supp. 2d at 78 (holding that employee's single day of leave was not FMLA-protected because he failed to give his employer notice of his intention and need for FMLA-qualifying leave); Brock, 257 F. Supp. 2d at 1101-1102 (although employer had notice of formal grant of uninterrupted leave, the employee failed to provide adequate notice for medical leave taken prior to and subsequent to the formal leave and thus intermittent absences did not qualify for FMLA protection). A notification does not operate retroactively to excuse previous unexplained absences unless it is given as soon as practicable after an emergency or unforeseeable medically-related absence. See id.
The notice requirement thus furthers the FMLA's goal of providing leave to employees in a manner that accommodates the legitimate needs of employers. See 29 U.S.C. § 2601. Employers obviously are entitled to an explanation of their employees' absences. See Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002) ("The FMLA does not authorize employees on leave to keep their employers in the dark . . ."); Satterfield v. Wal-Mart, 135 F.3d 973, 980 (5th Cir. 1998) (employer is not "required to be clairvoyant" with respect to the whether leave qualifies under the FMLA). Furthermore, without notice, employers would be uncertain whether to punish an absence or provide accommodation to the employee.
The requirement of notice is related to, but somewhat distinct from, any requirement that the employee provide proof of medical necessity. Under the statute, the employer "may require that a request for leave" be "supported by a certification" issued by the employee's health care provider. 29 U.S.C. § 2613(a). The certification provided "shall be sufficient if it states," among other things, "the date on which the serious health condition commenced," "the probable duration of the condition," "the appropriate medical facts within the knowledge of the health care provider regarding the condition," and that "the employee is unable to perform the functions of the positions of the employee." Id. § 2613(b)(1)-(4)(B). In addition, in the case of "a certification for intermittent leave, or leave on a reduced leave schedule . . . for planned medical treatment," the certification should state "the dates on which such treatment is expected to be given and the duration for such treatment," and "a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule and the expected duration of the intermittent leave or leave on a reduced leave schedule." Id. § 2613(b)(5), (6).
Here, it is not disputed that Lukacinsky gave notice of his need for his first leave in July 2000, his subsequent intermittent leave, and his second leave in January-February 2001. Whether he gave notice prior to July 2000 sufficient to place Panasonic on notice that his absences were FMLA-protected is, however, very much in doubt.
Lukacinsky contends that he began missing work with some frequency because of back pain beginning in 1998, and continued to do so through 1999. Lukacinsky states that Kent was aware of his condition, but offers little by way of concrete proof, and little to suggest that Kent was given proper notice for each of the absences that resulted from the condition. Lukacinsky testified that he "thought [he] did provide a [physician's] note to [Kent], but it was only one note and it was before the year 2000." Lukacinsky Deposition, 71:1-3 (emphasis added). The note is not part of the record.
It is also unclear whether the note Lukacinsky allegedly provided prior to 2000 was related to any particular absence. Lukacinsky testified that he submitted the note in order to make Kent aware of his back problem, rather than to account for his failure to attend work on a particular day. An employer's general awareness of an employee's health condition does not obviate the need for proper notice of each of the employee's health-related absences. See, e.g., Brock, 257 F. Supp. 2d at 1101-1102.
The sequence of events in early 2000 is somewhat more clear. As noted above, Lukacinsky missed work on 26 occasions between January 1 and July 1, 2000, 15 of which were apparently related to illness or medical appointments. The record contains no physician's note dated prior to May 9, 2000; Lukacinsky contends that he had documentation for "some" of his absences prior to July 2000, but that documentation disappeared from his work area when he was on leave. The May 9 note states that he was at the hospital for the evaluation of back pain, without indicating that the condition is chronic or may require future leave. The May 15 note describes for the first time a "chronic lower back condition," and states Lukacinsky "intermittently becomes incapacitated." The May 16 note likewise states that Lukacinsky suffers from "low back pain which require[s] periodic absence from work." The May 23 note states that Lukacinsky was seen and treated for "back pain" and that he should not go to work until the following day. The June 13 note states that Lukacinsky had been treated for "lower back pain" and would remain out of work until the following day.
Reviewing the evidence in the light most favorable to Lukacinsky, it appears that Panasonic received adequate notice for Lukacinsky's absences on May 9, May 23, and June 13. A reasonable jury could find that the notice for these dates was sufficiently descriptive, under the FMLA regulations, to shift the burden to Panasonic to conduct further inquiry into whether Lukacinsky's back condition entitled him to FMLA leave. Given the considerable ambiguities in the record, however, there are genuine issues of disputed material fact as to whether Panasonic received FMLA-required notice for Lukacinsky's other intermittent absences in early 2000. Accordingly, summary judgment on grounds of improper notice is not warranted.
Although the notes submitted on May 15 and May 16 very likely enhanced Panasonic's awareness of the seriousness of Lukacinsky's back problem, they do not appear from the record to correlate to any particular absence. The relevant inquiry for the purposes of the FMLA notice requirement is not whether Panasonic was generally cognizant of Lukacinsky's back condition, but whether the company received proper notice of each specific absence. See Brock, 257 F. Supp. 2d at 1101-1102. Thus, the May 15 and 16 doctors' notes are relevant, if at all, to the question of which of Lukacinsky's absences were protected, only insofar as they provided Panasonic with context for later notices which correlated to specific absences.
As noted, the concept of notice under FMLA (which is mandatory) is distinct from the concept of medical certification (which the employer may, but need not, require). Here, it is unclear to what extent Panasonic required medical certification in support of Lukacinsky's requests for leave, and to what extent Lukacinsky provided it. On July 6, 2000, shortly after the beginning of his July leave, Lukacinsky filled out and signed an "Employee Request for Leave Form" that requested various types of information. Among other things, the form indicated that when an employee sought medical leave, a "Physician's Medical Certification" should be attached. The record does not reflect what, if anything, was attached to the form. Lukacinsky's work schedule was modified after his return from leave on August 3, 2000, apparently without a written medical certification; Lukacinsky did, however, submit a note from his physician nearly three weeks later stating that "[Lukacinsky] will occasionally have trouble moving in the morning. Necessitates his being late for work." The written documentation supporting his request for leave in January and February 2001 apparently consists of a faxed copy of the instructions given to Lukacinsky upon his release from an emergency room, supplied to Panasonic on February 2. In any event, Panasonic does not appear to dispute that Lukacinsky had a "serious health condition" within the meaning of the statute.
It should also be noted that it is clear that the FMLA did not protect some of his absences, and that those absences were, therefore, properly the subject of Panasonic's corrective action and disciplinary measures. For example, prior to Kent's April 21, 2000 warning that his employment was on "on thin ice" due to absenteeism, Lukacinsky had missed work 16 times in 2000 and an unknown number of times in 1998 and 1999. At best, Lukacinsky had physicians' notes for "some" of those absences. Given the paucity of proof of FMLA-qualifying notice during this time frame, Kent appears to have had good cause to issue the April 21 warning to Lukacinsky. This is true even if Lukacinsky could convince a jury that he furnished notification for one absence in 1998 or 1999 or that his documentation for some absences in early 2000 turned up missing upon his return from his July 2000 FMLA leave. An employer is entitled to rebuke an employee for a pattern of inexcusable absenteeism, notwithstanding the employee's notification for a small fraction of the total number of absences. See Hodgens, 144 F.3d at 172 (employer's performance evaluation appropriately criticized the plaintiff where the "vast majority" of his absences were not FMLA-protected).
In addition, on August 3, 2000, Lukacinsky and Panasonic agreed upon a modified work schedule to accommodate his therapy after his return from the July 2000 leave. Soon thereafter, on August 7, Lukacinsky arrived to work one half-hour late, prompting a reprimand from Kent. Lukacinsky subsequently furnished a doctor's note, dated August 21, informing the company that he would need to arrive late to work on certain mornings due to back pain. Although the reprimand was not limited to the tardiness on August 7, as discussed elsewhere in this opinion, it is clear that the tardiness that morning was not excused and that the subsequent note from the physician was untimely.
To summarize, Lukacinsky has established that he availed himself of a protected right under the FMLA when he took a formal leave in July 2000, intermittent leave in the form of a modified work schedule between August 2000 and January 2001, and another formal leave in January and February 2001. He has also put forth sufficient evidence to establish that some of his intermittent leave prior to July 2000 was protected, because some of that leave was taken because of his serious health condition and accompanied by appropriate notice to the Panasonic. By the same token, however, the undisputed evidence also shows that some of the intermittent leave taken by Lukacinsky prior to July 2000 was not protected, and that it was therefore appropriate for the company to reprimand or discipline him for those absences. Finally, Lukacinsky's tardiness on August 4, 2000, was not protected and appropriately the subject of a reprimand. Lukacinsky has therefore established the first element of his prima facie case — that he availed himself of a protected right under FMLA — although there are disputed issues of material fact as to what precisely was protected and what was not.
b. Whether Plaintiff Established a Causal Connection Between the Leave and the Termination
In order to satisfy the third element of the prima facie case, Lukacinsky must establish a possible causal connection between his FMLA-protected leave and Panasonic's decision to terminate his employment. In general, that burden is "quite easy to meet." Hodgens, 144 F.3d at 165-66 (internal citations omitted). In light of that standard, Lukacinsky has put forth sufficient evidence of such a causal connection.
First, Lukacinsky was terminated just one week after returning from a FMLA-protected leave of absence. See id. at 168-69 ("close temporal proximity between two events may give rise to an inference of causal connection"); but see Dodgens v. Kent Mfg. Co., 955 F. Supp. 560, 566 (D.S.C. 1997) (no causal connection established where employer had granted hundreds of other leaves of absence over the years).
Second, Kent had allegedly expressed hostility toward Lukacinsky's back condition and the medical leave it necessitated. Reviewing the evidence favorably to Lukacinsky, Kent's comments were tied, at least in substantial part, to Lukacinsky's exercise of his right to take FMLA leave. The only such comment as to which the time frame is specific — Kent's response to the May 15 physician's note (Lukacinsky should "take this note back and not turn it in because the company might take it the wrong way") — bears a general relation to Lukacinsky's requests for protected leave, even though Lukacinsky apparently was not absent on May 15. The timing of Kent's other comments is unclear, but Lukacinsky alleges that at least some of them were made "around" the time of his July 2000 leave; there is thus evidence from which a reasonable jury could find that the comments were made in connection with a request for protected leave.
Third, shortly after Lukacinsky's return from his July 2000 leave, Kent reprimanded him regarding his many absences and his tardiness. Lukacinsky contends that he was reprimanded for absences that were FMLA-protected because, among other things, the attendance record attached to the reprimand included a single day (July 3) that was part of his FMLA-protected July leave. The reprimand also listed Lukacinsky's intermittent absences prior to July 2000, at least three of which (May 9, May 23 and June 13), and possibly others, may have been protected.
Fourth, Kent participated in the termination decision. His previously-expressed hostility to Lukacinsky's requests for leave arguably carried over to the termination decision.
Fifth, although Panasonic claims to have terminated Lukacinsky, in part, based on his low performance reviews from 1998-2000, those reviews arguably took into account Lukacinsky's absences from work, some of which were FMLA-protected.
A more extensive discussion of that issue is set forth below.
There is, of course, substantial countervailing evidence; for example, the August 7 reprimand is substantially more ambiguous than Lukacinsky suggests, and arguably should be considered in the context of Kent's legitimate frustration with Lukacinsky's earlier, non-protected intermittent absences. Nonetheless, viewing the evidence most favorably to the non-moving party, Lukacinsky has put forth sufficient evidence of a causal connection between his FMLA-protected leave and the termination decision, and thus has satisfied the final element of his prima facie case. 2. Whether Defendant Has Provided a Legitimate, Non-Discriminatory Reason for Its Decision
The reprimand stated that "[t]he attached record of absence and tardy days for this calendar year show [sic] the number of tardy occurrences is beyond that of company policy. Most recently, during the month of June, you were late 5 out of 22 workdays, which is considered excessive." These statements clearly could be read to indicate that the one July absence was not considered by Kent, and that he was concerned with the overall pattern, not specific instances that may have been excused.
In order to rebut the presumption that arises upon the establishment of a prima facie case, an employer must produce evidence sufficient to permit a rational factfinder to conclude that the termination decision was made for a legitimate reason. See Hodgens, 144 F.3d at 166-67.
Here, Panasonic has put forth substantial evidence that it dismissed Lukacinsky because it needed to eliminate one of its service technicians for financial reasons and, when measured objectively and without regard to his protected leaves, Lukacinsky was the least efficient and productive of its staff. That evidence plainly suffices to rebut the presumption created by the prima facie case. See id. (employer overcame presumption of prima facie case by offering evidence that the company discharged plaintiff because of his performance and non-FMLA related absences and that its decision ignored plaintiff's FMLA absences).
3. Whether Plaintiff Has Established That the Stated Reason Is Pretextual
When a plaintiff has established a prima facie case of retaliation and the employer has provided a legitimate, non-discriminatory reason for its termination decision, the issue becomes whether the employer's stated reason for termination is pretextual. Because that issue involves elusive questions of motive and intent, courts should be cautious in granting an employer's motion for summary judgment when a case comes down to such a determination. Id. at 167. Nonetheless, when the non-moving party rests upon "conclusory allegations, improbable inferences, and unsupported speculation," summary judgment may be appropriate. Id.
A court may consider multiple factors in assessing discriminatory motive, including: (1) the historical background of the decision, (2) the sequence of events leading up to the decision, (3) departures from any normal procedural sequence, (4) any contemporaneous statements by members of the decision-making body, (5) substantive departures from the ordinary decision-making process, and (6) doubts regarding the fairness of an employer's decision. Id. at 169. In addition, as described above, close temporal proximity between events can give rise to a causal connection and thus create an inference of retaliatory motive. Id.
Here, the question of pretext is a close one, and Lukacinsky's evidence is far from overwhelming. However, when all factual ambiguities are resolved in Lukacinsky's favor, he can demonstrate, "at least to the level of trialworthiness," Id. at 165-66, that Panasonic's stated reason for termination was a mere pretext.
First, Lukacinsky was subject to adverse employment action within one week after returning from a FMLA-protected leave of absence. Compare id. at 170-71 (four-month interlude between protected leave and termination; while such temporal proximity is probative of retaliation, it is not dispositive, and may be offset by countervailing evidence).
Second, Kent's alleged hostility to Lukacinsky's leave is clearly probative of pretext. Compare id. at 171 (statements by a supervisor that "carry the inference that . . . [he] harbored animus against protected classes of people or conduct are clearly probative of pretext"; nonetheless, the comments referred only to the plaintiff's "excessive absences," rather than to his FMLA-protected absences, which rendered them "a great deal less than a 'smoking gun'" on the issue of pretext); see Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 35-36 (1st Cir. 2001); Soler v. Tyco Electronics, Inc., 268 F. Supp. 2d 97, 111 (D.P.R. 2003) (weight of discriminatory remarks by supervisors is circumscribed if such remarks are temporally remote from the termination decision).
Third, there is some evidence that Panasonic may have taken protected leave into account in making the termination decision. Compare Hodgens, 144 F.3d at 171-72 (although employer's performance evaluation had criticized plaintiff's absenteeism, the "vast majority" of the plaintiff's absences during the period of evaluation were not FMLA-protected, and the employer had successfully parsed the plaintiff's absences into FMLA-protected and non-FMLA-protected, taking only the latter into account in evaluating the plaintiff's performance and deciding to terminate his employment).
Panasonic contends that it ignored Lukacinsky's protected absences and considered only objective criteria in making its termination decision. In particular, Panasonic contends that it relied upon "net utilization" statistics from April to December 2000 in deciding which technician to terminate. This statistic measures an employee's productive use of his time while he is at work. The company insists that its reliance on this measurement, rather than on Lukacinsky's "gross utilization," ensured that Lukacinsky would not be penalized for his protected absences from April to December 2000. Because Lukacinsky had the lowest net utilization of any technician during the latter time period, it was appropriate to select him as the employee to be terminated.
At first blush, this evidence appears highly persuasive. However, when the record is examined in its entirety, there are legitimate doubts as to whether the termination decision was made completely free from the taint of the protected absences.
In addition to relying on net utilization statistics, Panasonic considered the average of each employee's performance review scores from the years 1998, 1999, and 2000 in its termination decision. Those scores took into account an employee's absenteeism. It was arguably proper for Panasonic to consider the absenteeism reflected in Lukacinsky's 1998-1999 performance review, because the "vast majority," if not entirety, of his absences during that time period appear to have been unprotected for lack of notice. See id. at 172; but see Monica v. Nalco Chemical Co., 1996 WL 736946, at *2 (E.D. La. 1996) (the fact that one of six absences that the employer used as a basis for terminating plaintiff for excessive absenteeism was a FMLA-covered absence creates a genuine issue of material fact as to whether his discharge was in retaliation for the FMLA-covered leave). There is greater ambiguity as to the intermittent absences in early 2000, however, some of which may have been protected. There is no indication in the record that Panasonic avoided consideration of Lukacinsky's protected absences in generating his performance rating for 2000 and averaging that rating with his 1998 and 1999 reviews.
Panasonic does not claim to have considered only Lukacinsky's net utilization rating for 2000 when it averaged his annual performance reviews from 1998, 1999, 2000. On the contrary, it states that it considered the average of the three reviews in addition to his net utilization statistics from April to December 2000. Summary Judgment Memorandum, p. 8. This statement, at minimum, creates a question of fact as to whether Lukacinsky's protected absences were considered in his 2000 performance review, and in turn, in Panasonic's termination decision.
Lukacinsky also contends that Panasonic's reliance on net utilization statistics was unfair under the circumstances because he often posted higher gross utilization scores than other similarly situated employees. For example, despite his medically-related absences and general back pain, in August 2000, Lukacinsky's gross utilization percentage was higher than three other technicians; in September, it was higher than four other technicians; in October, it was higher than five other technicians; and in November and December, although it decreased, it was still higher than one other technician. Panasonic, of course, is free to base its termination decisions on any criteria it chooses, as long as those criteria are not based in part on unlawful factors such as FMLA-protected leave. To the extent that Lukacinsky is arguing that the selection of the relevant metric — net utilization rather than gross utilization — was a pretext for discrimination, the apparent participation of Kent in the evaluation process creates a disputed issue of material fact precluding summary judgment.
In addition, there is evidence to support the conclusion that Kent, who had expressed hostility to Lukacinsky's leave, participated directly in the termination decision, and that therefore he had a hand in selecting the relevant statistical metric.
Thus, when the record is viewed in the light most favorable to the plaintiff, the use of statistical factors to make the termination decision could have been based in part on FMLA-protected absences. See Hodgens, 144 F.3d at 170 (in determining whether to grant summary judgment on behalf of employer, court must consider not only whether employer's decision to lay off workers was mere pretext but whether its selection of particular employee to terminate "was based in any way upon his having exercised his FMLA right to take necessary medical leave.") Lukacinsky has therefore put forth sufficient evidence of pretext to survive summary judgment and proceed to a trial on the merits on his FMLA claim.
IV. The State Law Discrimination Claims
Lukacinsky has also asserted state law claims of unlawful discrimination on the basis of handicap in violation of Mass. Gen. Laws ch. 151B. Under a liberal reading of the complaint, Lukacinsky appears to claim that Panasonic discriminated against him based on his handicap in several different ways: (1) by unlawfully terminating him (a) because of his handicap, and (b) in retaliation for exercising his legal rights; (2) by failing to provide him with a reasonable accommodation for his handicap; and, more tenuously, (3) by creating a hostile work environment. The initial question presented is whether any of those claims are barred by the statute of limitations.
Lukacinsky does not explicitly claim that he was unlawfully subjected to a hostile work environment in his complaint. Nonetheless, because the facts alleged describe instances of hostility and harassing behavior, for present purposes the court will assume that he has adequately stated such a claim.
A. Statute of Limitations
Under Massachusetts law, plaintiffs alleging workplace discrimination must file an administrative complaint with the Massachusetts Commission Against Discrimination within six months of the incident giving rise to the claim. See Mass. Gen. Laws ch. 151B, § 5; Davis v. Lucent Tech., Inc., 251 F.3d 227, 230 (1st Cir. 2001). Lukacinsky was terminated by Panasonic on February 14, 2001. He filed his complaint with the MCAD on August 9, 2001. Panasonic contends that Lukacinsky's state-law claims under Mass. Gen. Laws ch. 151B, § 4(16) are time-barred to the extent that they are based on conduct that occurred prior to February 9, 2001. 1. The Unlawful Termination Claim
Panasonic correctly notes that the new 300-day statute of limitations under Mass. Gen. Laws ch. 151B, § 5, which became effective on November 5, 2002, does not govern this matter, which was filed with the MCAD on August 9, 2001. See St. 2002, c. 223, § 1.
Lukacinsky contends that he was unlawfully terminated on February 14, 2001, both on the basis of unlawful discrimination based on handicap and unlawful retaliation. Those claims are clearly not time-barred. He was terminated on February 14, and filed his complaint with the MCAD on August 9, unquestionably within the six-month limitations period under ch. 151B § 5.
2. The Failure to Provide Reasonable Accommodation Claim
Lukacinsky further contends that he was denied reasonable accommodation for his handicap on a number of specific occasions: (1) sometime prior to July 2000, when he asked to be exempted from moving heavy boxes; (2) sometime after July 2000, when Panasonic refused to allow him the opportunity to perform repair work at Cambridge Sound Works; and (3) sometime in or around May 2000, November 2000, and January 2001, when he asked for permission to use an electric lift for the purposes of helping him lift objects onto his workbench. The claim for failure to provide reasonable accommodation thus arose long before February 9, 2001.
Lukacinsky argues that such claims are nonetheless saved by virtue of the "continuing violation" doctrine. Under Massachusetts law, the continuing violation doctrine allows recovery for claims that would normally be time-barred where the unlawful conduct is continuing in nature. See Ocean Spray v. Massachusetts Comm'n Against Discrimination, 441 Mass. 632, 642-43 (2004); see also 804 C.M.R. § 1.10(2) (current regulation, not in effect at time of filing).
Federal courts also recognize the continuing violation doctrine. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (discussing the continuing violation doctrine in the context of Title VII of the Civil Rights Act).
The Supreme Judicial Court has recently explained that the continuing violation doctrine applies where: (1) at least one discriminatory act occurred within the applicable limitations period; (2) the alleged timely discriminatory acts have a substantial relationship to the untimely acts; and (3) earlier violations outside the limitations period did not trigger the plaintiff's awareness and duty to assert his rights, i.e., the plaintiff could not have formed a reasonable belief at the time that the alleged acts occurred that they were discriminatory. Ocean Spray, 441 Mass. at 642-43. The Ocean Spray court specifically addressed the question of when the limitations period is triggered for reasonable accommodation claims under Mass. Gen. Laws ch. 151B, § 4(16). The court observed that an employer's explicit refusal of an employee's accommodation request "presents the easy case": "[T]he refusal is a discrete discriminatory act triggering the statutory limitations period." Id. at 645. Lawsuits premised on explicit refusals thus cannot be salvaged under the continuing violation doctrine, because such refusals make employees aware of discrimination or at least enable them to form a reasonable belief that discrimination has occurred. Id. at 645-646.
Here, Lukacinsky contends that Panasonic expressly refused his requests for an exemption from moving heavy boxes, for assignment to Cambridge Sound Works, and for the use of the electronic lift. Accordingly, this is an "easy case" under Ocean Spray: each of Panasonic's express refusals triggered the running of the limitations period as to those incidents, and therefore Lukacinsky's claim that Panasonic failed to provide reasonable accommodation is time-barred. 3. The Hostile Work Environment Claim
Lukacinsky specifically alleges the following: (1) "On one occasion prior to July 2000 . . . Lukacinsky asked for consideration because [moving heavy boxes] might cause pain and damage to his back . . . Kent became visibly hostile and refused to provide Lukacinsky reasonable accommodation by allowing his request and finding alternative means to move the boxes," Complaint, ¶ 17; (2) "After Lukacinsky returned to work following his FMLA leave in July 2000 Kent advised him that he would no longer be traveling to Cambridge Sound . . . Kent's refusal to allow Lukacinsky to do repair work at Cambridge Sound . . . was a pretext for his hostility and continuing refusal to provide reasonable accommodation for Lukacinsky's back condition," Complaint, ¶¶ 25, 27; (3) "Defendant refused to accommodate plaintiff when it did not allow the use of the [electronic lift] machines." Summary Judgment Opposition Memorandum, p. 6.
The court also notes that summary judgment against Lukacinsky would be appropriate on the merits of his reasonable accommodation claim on the grounds that he failed to make a sufficient request for accommodation. Under Massachusetts law, an employee seeking accommodations "must make the employer aware that the employee is entitled to and needs accommodation." Ocean Spray, 441 Mass. at 649 n. 21; see Reed v. Lepage Bakeries, Inc., 244 F.3d 254, 260 (1st Cir. 2001) (an "essential element" of plaintiff's burden in a reasonable accommodation case under the ADA is to prove that she "sufficiently requested the accommodation in question").
Here, there is no evidence that Lukacinsky or any of his physicians ever told Panasonic that Lukacinsky's disability required a change in his physical work environment. Indeed, Lukacinsky submitted numerous doctor's notes regarding his back condition and his need to be late to or absent from work, but none of these notes contained any suggestion that Panasonic needed to modify Lukacinsky's workplace arrangements to accommodate his condition. Although Lukacinsky does allege that he mentioned his back pain in conjunction with his request to be excused from lifting heavy boxes, representation of physical discomfort does not amount to an indication that he was "entitled to and need[ed]" this accommodation as a result of his back condition. See Ocean Spray, 441 Mass. at 649 n. 21.
Lukacinsky also apparently contends that he was subjected to a hostile work environment because of his disability. Again, the issue is whether that claim was brought within the six-month statute of limitations period.
Although the issue is not free from doubt, Massachusetts apparently recognizes a claim for hostile work environment for handicap discrimination under Mass. Gen. Laws ch. 151B, § 4(16). See DiLuca v. Communications and Power Indus., Inc., 2003 WL 21781564, at *6 n. 2 (Mass.Super. 2003).
The continuing violation doctrine does not apply to discrimination claims based upon discrete acts, such as termination from employment or refusal to hire, even when those acts are related to conduct alleged in timely-filed charges. See Nat'l R.R. Passenger Corp., 536 U.S. at 114. Rather, each discrete discriminatory act starts a new clock for filing charges relating to that act. Id. The continuing violation doctrine, however, does apply to claims of hostile workplace environment, which, by their nature, involve the cumulative effect of repeated instances of harassment. Id. at 115-18. Because hostile work environment claims are considered "a single unlawful employment practice," the entire time period of the hostile environment may be considered by the court in determining the employer's liability, as long as at least one "act that is part of the hostile environment" occurred within the appropriate period of limitation. Id. at 118.
The Supreme Court and the Massachusetts Supreme Judicial Court have articulated virtually identical statute of limitations principles for workplace harassment claims brought under Title VII of the Civil Rights Act and Mass. Gen. Laws ch. 151B. See Morrison v. Northern Essex Community College, 56 Mass. App. Ct. 784, 793 (2002).
The court must therefore determine whether any acts occurring within the limitation period are part of the actionable hostile work environment, such that they may "anchor" the entire claim. Id. at 120; see Cuddyer v. The Stop Shop Supermarket Co., 434 Mass. 521, 533 (2001) (in order to "anchor the earlier claims," the plaintiff must show, "within the six-month limitation period, the existence of at least one incident of [harassing] conduct which . . . substantially relates to earlier instances of abuse, and substantially contributes to the continuation of a hostile work environment"). Whether the acts committed prior to the limitations period have "characteristics in common with acts committed within the limitations period," and may therefore be considered by a jury under the continuing violation doctrine, is "a question of law for the judge." Borne v. Haverhill Golf Country Club, Inc., 58 Mass. App. Ct. 306, 313 (2003), review denied, 440 Mass. 1101 (2003).
In resolving this question, it is irrelevant that no harassment occurred in the interval between the act occurring within the limitations period and the conduct falling outside the period, even if that interval is lengthy, so long as each act is part of the same hostile work environment. Nat'l R.R. Passenger Corp., 536 U.S. at 118. On the other hand, if the act that occurred within the limitations period has "no relation" to incidents that predate the statutory period, "or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts," at least not by reference to the conduct falling within the statute of limitations. Id.
The termination itself may serve as the act that anchors a hostile work environment claim within the limitations period if the termination bears a sufficient relation to earlier acts of harassment. See, e.g., Serrano-Nova v. Banco Popular De Puerto Rico, Inc., 254 F. Supp. 2d 251, 262 (D. Mass. 2003) (constructive termination); Rivera-Rodriguez v. Frito Lay, 265 F.3d 15, 22 (1st Cir. 2001). However, because the causes of action are distinct, a plaintiff cannot necessarily rely on claims of retaliatory or discriminatory termination to anchor stale claims of harassment. See Ruffino v. State Street Bank Trust Co., 908 F. Supp. 1019, 1040 (D. Mass. 1995); Goguen v. Quality Plan Administrators, 11 Mass. L. Rptr. 288, *11-*12 (Mass.Super. 2000) (plaintiff could not anchor untimely harassment allegations on timely allegations of retaliation where the retaliatory acts were not sexual in nature and committed by a different individual).
Here, the conduct that could be classified as contributing to a hostile work environment all occurred prior to February 9, 2001, with the sole exception of Lukacinsky's termination on February 14, 2001. The question thus becomes whether Lukacinsky's termination should be treated as an anchor violation within the limitations period for the hostile work environment claim.
By Lukacinsky's own admission, the hostile environment caused by Kent's statements and actions dissipated after Lukacinsky contacted the human resources department in response to Kent's August 2000 reprimand. Dan Charrow, the human resources representative, advised Lukacinsky that he would instruct Kent to end his hostility toward Lukacinsky's medically-related lateness and tardiness. Lukacinsky testified in his deposition that he had no further difficulties with Kent regarding his back condition after Charrow's intervention. Another six months passed between that intervention in August 2000, which ended Kent's hostile comments toward Lukacinsky's back condition, and Lukacinsky's February 2001 termination.
This case thus does not involve a constructive termination situation, where the hostile work environment drove the employee to quit. Compare Serrano-Nova, 254 F. Supp. 2d at 262. To the contrary, due to the intervening actions of Panasonic management and the length of time between that intervention and the termination, there appears to be no substantial relationship between the hostile work environment and the termination. That is true even assuming that the termination was unlawfully based on discriminatory and retaliatory motives. See Ruffino, 908 F. Supp. at 1040; compare Rivera-Rodriguez, 265 F.3d at 23 (defendant entitled to summary judgment on plaintiff's nationalorigin hostile work environment claim because the anchoring violation involved derogatory comments referencing plaintiff's age and health, rather than his nation of origin).
The court therefore concludes that the hostile work environment ended in approximately August 2000, well before the termination in February 2001, and thus there is no anchor violation within the limitations period. The claim of hostile work environment is accordingly time-barred.
Two state law claims thus remain: unlawful termination based on handicap and unlawful termination in retaliation for the exercise of protected rights.
B. The Claim of Termination Based on Handicap
The court must analyze Lukacinsky's claim of termination based on handicap under the McDonnell Douglas three-part burden shifting framework. Chief Justice for Administration v. Massachusetts Comm'n Against Discrimination, 439 Mass. 729, 732 (2003). The plaintiff must first establish a prima facie case of discrimination. Id. If the plaintiff satisfies that initial burden, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the termination decision. Id. Then, if the employer establishes such a reason, the burden shifts back to the plaintiff to demonstrate that the proffered reason is actually a pretext for discrimination. Id. 1. Prima Facie Case
The elements of the plaintiff's prima facie case of discriminatory termination based on handicap vary, depending on whether or not the plaintiff was dismissed as part of a reduction in force program. See LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993) (ADEA); Abramian v. Harvard College, 432 Mass. 107, 116 (2000). If the termination did not result from a reduction in force, the plaintiff's prima facie burden requires a showing that (1) he is handicapped within the meaning of the statute; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; (3) he was terminated or subject to other adverse actions by his employer; and (4) his position of employment remained open after his termination and the employer sought to fill it. Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1, 2 (1998). However, if the job loss was part of a reduction in force, the plaintiff may satisfy the fourth element of the prima facie burden by demonstrating that "'the employer did not treat [handicapped persons] neutrally or that [persons without handicaps] were retained in the same position." LeBlanc, 6 F.3d at 842.
The plaintiff is not required to prove, as part of his prima facie case, that he was terminated "solely" because of his handicap. Id. at 2-3.
a. Whether Lukacinsky Is "Handicapped" under Massachusetts Law
In order to be considered "handicapped" within the meaning of Mass. Gen. Laws ch. 151B, § 1(17), a plaintiff "must demonstrate a physical or mental impairment that substantially limited one or more of his major life activities." Mass. Gen. Laws. ch. 151B, § 1(17). Plaintiffs need only "'prove disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial.'" Wright v. CompUSA, 352 F.3d 472, 476 n. 1 (1st Cir. 2003) (quoting Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002)).
The definitions of "disability" under federal law are virtually identical to the definitions of "handicap" under Massachusetts law. See Benoit v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003).
Here, Lukacinsky has submitted a variety of physician's notes evidencing a physical impairment — chronic lower back pain — that substantially limited his ability to work. Moreover, the Social Security Administration's October 2003 finding that Lukacinsky was disabled from work beginning on February 14, 2001, supports the proposition that he was handicapped within the statutory definition. The SSA provides disability benefits only to those persons who are unable to perform their previous work and cannot engage in any other kind of substantial gainful work that exists in the national economy. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797 (1999); 42 U.S.C. § 423(d)(2)(A). Accordingly, Lukacinsky clearly satisfies the first element of the prima facie claim.
b. Whether Lukacinsky Is Qualified to Perform the Essential Functions of His Position
Panasonic contends that Lukacinsky's allegation in SSA proceedings that he was unable to perform his previous work prohibits him from satisfying the second element of his prima facie case, which requires proof that he is qualified to perform the essential functions of his job with or without reasonable accommodation. See 42 U.S.C. § 12111(8); Mass. Gen. Laws ch. 151B, § 4(16). In light of his representations of total disability to the SSA, Panasonic contends that Lukacinsky is estopped from arguing that he is qualified to perform the essential functions of the position from which he was terminated.
In Cleveland, the Supreme Court addressed the potential for conflict between claims of disability for the purpose of obtaining Social Security benefits and pursuing discrimination claims. It explained that "the two claims do not conflict to the point where courts should apply a special negative presumption," because "there are too many situations in which an SSDI claim and an ADA claim can comfortably exist side by side." 526 U.S. at 802-803. The Court noted as an example that the ADA defines a "qualified" individual as one who can perform the essential functions of his or her job with reasonable accommodation, while the SSA does not take account the possibility of reasonable accommodation in determining whether an individual is disabled. Id. at 803. Nonetheless, the Court instructed that an individual who has claimed that he is unable to work for purposes of the SSA must at least offer "a sufficient explanation" for that assertion in order to survive summary judgment on a claim for handicap discrimination. Id. at 805-07
Since Cleveland, courts have denied summary judgment where plaintiffs sufficiently explained discrepancies between the positions they assumed in pursuing Social Security benefits and in litigating discrimination claims. See, e.g., Ricardo Santiago Vera v. Williams Hospitality Group, Inc., 73 F. Supp. 2d 161, 170-171 (D.P.R. 1999) (court credited plaintiff's explanation that Social Security decisions do not take into account whether the applicant could perform the job with reasonable accommodation, while his ADA claim hinged on his ability to perform the job with such accommodation); Lemire v. Silva, 104 F. Supp. 2d 80, 89 (D. Mass. 2000); see also Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 443, 452 (2002) ("A plaintiff's prior pursuit, and receipt, of benefits based on an assertion of 'total disability' does not automatically estop her from pursuing a claim of employment discrimination on the basis of disability so long as a disputed issue of fact remains whether the plaintiff is able to perform the essential functions of the position involved").
By contrast, courts have rejected the explanation that a disability finding does not take account of reasonable accommodation when the evidence unequivocally indicates that the plaintiff could not have performed his or her job at the time of termination even with such accommodation. See Kelly v. Lockheed Martin Services Group, 198 F. Supp. 2d 136, 140 (D.P.R. 2002) (plaintiff estopped from raising a disability claim under Massachusetts law because plaintiff admitted he was completely unable to perform his job at the time of his discharge, with or without accommodation); Barry v. Wing Memorial Hospital, 142 F. Supp. 161, 167 (D. Mass. 2001) (granting summary judgment on plaintiff's Massachusetts discrimination claim because she had conceded in her deposition that she was unable to perform her job, even with reasonable accommodation).
Here, Lukacinsky filed his initial application for disability benefits on December 31, 2001, and was awarded benefits by the SSA upon a finding of total disability on October 31, 2003. Lukacinsky alleged, and the SSA found, that he was disabled as of February 14, 2001, the date of his termination. He filed the present complaint on May 30, 2003.
At the summary judgment hearing, counsel for Lukacinsky explained the apparent contradiction in his allegations to the SSA and in his discriminatory termination claim by noting that the SSA does not consider reasonable accommodation in determining disability. Counsel also observed that Lukacinsky was actually working and performing the essential functions of his job prior to, and at the time of, his termination, which of course lends credence to the proposition that he was qualified to perform his job at the time of his discharge. That explanation is sufficiently satisfactory to avoid summary judgment on the second element of his prima facie case.
As noted elsewhere in this opinion, Lukacinsky did not adequately request reasonable accommodation in the form of changes to his physical environment at work. He did, however, request, and was granted, accommodation in the form of a modified work schedule and two leaves of absence.
c. Whether Lukacinsky Was Terminated or Subject to Other Adverse Action
There is no dispute that Lukacinsky satisfies the third element of his prima facie case, having been terminated by his employer on February 14, 2001.
d. Whether the Panasonic Treated Handicapped Persons Neutrally in the Termination Decision
In order to satisfy the fourth element of his prima facie case, Lukacinsky must demonstrate that Panasonic retained non-handicapped persons in technician positions or failed to treat handicapped persons neutrally in its workforce reduction decision. See LeBlanc, 6 F.3d at 842.
There is nothing in the record to suggest that any other technician at Lukacinsky's level suffered from a back condition or was otherwise handicapped. To the contrary, Lukacinsky was the only technician laid off by Panasonic and, apparently, the only technician with a handicap. Thus, Lukacinsky has established for purposes of his prima facie case that Panasonic did not treat handicapped persons neutrally in its workforce reduction decision.
Lukacinsky has therefore established the four elements of his prima facie case. The burden then shifts to Panasonic to articulate a legitimate, non-discriminatory reason for its decision.
2. Whether Panasonic Has Provided a Legitimate, Non-Discriminatory Reason for Its Decision
The employer can rebut the presumption of discrimination created by the prima facie case by proffering a legitimate, nondiscriminatory reason for its termination decision. The employer's burden of production at this stage is not onerous; it must simply provide a lawful reason for its employment decision and produce some credible evidence indicating that the stated reason was the real reason. See Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 442 (1995).
Panasonic has put forth substantial evidence that it terminated Lukacinsky because it needed to eliminate one technician position for financial reasons, and he was the least efficient and productive technician in its service center. In support of its position, the company points to the fact that Lukacinsky's net utilization scores, which measure a worker's productivity while at work, were the lowest of all of the company's technicians. In addition, the company notes that Lukacinsky received the lowest average performance appraisal for the 1998-2000 period.
Panasonic has therefore rebutted Lukacinsky's prima facie case with credible evidence of a lawful reason for its termination decision. See Blare, 419 Mass. at 446-447 (plaintiff's "poor performance as documented by the written notices for quality and attendance infractions against" the plaintiff was sufficient rebuttal evidence); Quintiliani v. Massachusetts Bay Transp. Auth., 2000 WL 1801841, at *4 (D. Mass. 2000) (employer's deposition testimony that plaintiff was one of the "'lesser-producing employees'" would have been sufficient); McMillan v. Massachusetts Soc'y for the Prevention of Cruelty to Animals, 140 F.3d 288, 300 (1st Cir. 1998) (employer's testimony that plaintiff had lower productivity and fewer responsibilities was sufficient).
3. Whether Lukacinsky Can Establish That the Stated Reason Is Pretextual
When the employer proffers a legitimate, non-discriminatory reason for its termination decision, the burden shifts back to the plaintiff to demonstrate that the employer's stated reason is a pretext for a discriminatory motive. Abramian, 432 Mass. at 117. While the plaintiff may rely on the same evidence to prove both pretext and discrimination, the evidence must be sufficient for a reasonable trier of fact to infer that the employer's decision was motivated by discriminatory animus. Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995); Smith v. F.W. Morse Co., 76 F.3d 413, 422 (1st Cir. 1996).
Evidence of discriminatory animus or hostility toward the plaintiff provides support for a finding that the company's stated reason is pretextual. See Abramian, 432 Mass. at 114 (derogatory references to plaintiff's national origin were probative of pretext); Blare, 419 Mass. at 447 (". . . remarks made by [the plaintiff's] supervisor regarding the ability of [the plaintiff] to work considering his age" influenced the court's finding as to pretext); but see Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n. 7 (1993) ("Isolated or ambiguous remarks, tending to suggest animus based on age, are insufficient, standing alone, to prove an employer's discriminatory intent").
Here, Lukacinsky has introduced sufficient evidence, taken as a whole, from which a reasonable jury could conclude that Panasonic's proffered reason for discharging him was a pretext for disability discrimination. Most significantly, he has demonstrated that Kent, an individual with significant input in the company's decision to terminate Lukacinsky, harbored substantial hostility toward his back condition. In addition, there is evidence to suggest that the statistical basis for the termination was based in part on protected absences or, alternatively, that the metric chosen to measure Lukacinsky's performance was selected for inappropriate reasons. While there is substantial countervailing evidence, such as the lengthy gap between the end of Kent's overt expressions of hostility and the date of Lukacinsky's termination, the evidence of pretext is sufficient for the claim of discriminatory termination to survive a motion for summary judgment.
C. The Claim of Termination in Retaliation for Exercise of Protected Rights
Finally, Lukacinsky contends that Panasonic terminated him in retaliation for the exercise of his rights under Mass. Gen. Laws ch. 151B. Pursuant to Mass. Gen. Laws ch. 151B, §§ 4(4), 4(4A), it is unlawful to "discharge, expel or otherwise discriminate" against any person because "he has opposed any practice forbidden under [chapter 151B]" or to "coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by [chapter 151B]." Mass. Gen. Laws ch. 151B, §§ 4(4), 4(4A). Claims for retaliation are also subject to the tripartite burden-shifting analysis of McDonnell Douglas. See Wright, 352 F.3d at 478 (under ADA antiretaliation provision); McMillan, 140 F.3d at 309.
1. Prima Facie Case
In order to establish a prima facie case of retaliation under §§ 4(4) or 4(4A), a plaintiff must prove that: (1) he or she engaged in protected conduct under Chapter 151B; (2) he or she suffered an adverse employment action; and (3) there was a causal connection between the protected conduct and the adverse action. See McMillan, 140 F.3d at 309. It is undisputed that Lukacinsky satisfies the second element, as he was terminated by the company. The first and third elements will be considered in turn.
An analogous cause of action for retaliation is available under the ADA. See Lewis v. Gillette Co., 22 F.3d 22, 24-25 (1st Cir. 1994) (observing that Massachusetts anti-retaliation law parallels federal law).
a. Whether Lukacinsky Engaged in Protected Conduct
The allegedly protected conduct engaged in by Lukacinsky consists of (1) his various requests for reasonable accommodation in the form of leave and a modified work schedule; (2) his complaint to Panasonic's personnel department regarding Kent's harassment and hostility; and (3) his various requests for use of the electronic lift, to avoid moving heavy boxes, and to work at Cambridge Sound Works.
An employee's request for reasonable accommodation may constitute protected conduct for purposes of a retaliation claim. See Wright, 352 F.3d at 478. Under Massachusetts law, a reasonable accommodation is defined as "any adjustment or modification to a job (or the way a job is done), employment practice, or work environment that makes it possible for a handicapped individual to perform the essential functions of the position involved and to enjoy equal terms, conditions and benefits of employment." Ocean Spray, 441 Mass. at 648 (citing the MCAD Guidelines). A request for leave may constitute a request for reasonable accommodation under some circumstances. Russell, 437 Mass. at 455; see Calef v. Gillette Co., 322 F.3d 75, 79 (1st Cir. 2003).
Chapter 151B, § 4(4), by its terms, protects good-faith opposition to any practice forbidden under the anti-discrimination statute. Mass. Gen. Laws ch. 151B, § 4(4); see Abramian, 432 Mass. at 121. Thus, because workplace harassment is forbidden under Chapter 151B, Lukacinsky's complaint to the personnel department about Kent's harassment also constitutes protected conduct. See Cuddyer, 434 Mass. at 522. Lukacinsky's claims that he engaged in protected conduct by requesting changes to his physical environment do not, however, qualify, as there is no evidence that he framed those requests in terms of a necessary accommodation to his disability as opposed to a convenience to avoid discomfort. See Ocean Spray, 441 Mass. at 649 n. 21; Reed, 244 F.3d at 260.
Lukacinsky has proffered evidence that he engaged in protected conduct by requesting reasonable accommodation in the form of medical leave and by opposing Kent's harassment. He has therefore satisfied the first element his prima facie case of retaliatory termination.
b. Whether Lukacinsky Can Demonstrate a Causal Connection
The third element of Lukacinsky's prima facie burden is whether he can demonstrate a causal connection between the protected conduct and the adverse action. A causal connection may be established if the alleged retaliatory acts are close in time to the plaintiff's protected activity. See, e.g., Ruffino, 908 F. Supp. at 1046; Wright, 352 F.3d at 478 (plaintiff could establish a causal link where he was terminated immediately after returning from medical leave and requesting accommodation for his ADD). However, chronological proximity, standing alone, does not establish causality where "[t]he larger picture undercuts an claim of causation." Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997).
Here, Lukacinsky has proffered sufficient evidence to establish a causal connection between his requests for medical leave and his termination. The termination occurred one week after he returned from his second FMLA leave. Lukacinsky has also put forth evidence that Kent exhibited hostility toward his medical condition and protected leaves, and was substantially involved in the termination decision. See Wright, 352 F.3d at 478; compare Soileau, 105 F.3d at 16. In addition, Lukacinsky has produced evidence that Panasonic may have improperly accounted for his protected medical leave in the termination decision.
It is a closer question whether Lukacinsky can establish a causal connection between his complaints about Kent's harassment and Panasonic's decision to terminate him. Clearly, the remoteness of Lukacinsky's termination from Kent's alleged harassment creates some doubt as to the presence of a causal connection between the two events. Compare Cardona v. United Parcel Serv., 79 F. Supp. 2d 35, 41 (D.P.R. 2000) (citing Hodgens and stating that close temporal proximity between an adverse employment action may give rise to a permissible inference of retaliation). Nonetheless, the six-month interlude between Lukacinsky's discharge and the alleged harassment does not automatically preclude his claim of retaliation. Despite the absence of temporal proximity, a reasonable jury could find a causal connection where Kent participated directly in the decision to take adverse employment action against him.
Lukacinsky has therefore established a prima facie case of retaliation under Mass. Gen. Laws ch. 151B, §§ 4(4), 4(4A), based on his requests for medical leave and his complaint about harassment. The next question is whether Panasonic can rebut the prima facie case with evidence of a legitimate reason for its termination decision.
2. Whether Panasonic Has Provided a Legitimate, Non-Discriminatory Reason for the Termination
Panasonic has put forth evidence of a legitimate, non-discriminatory business reason for its decision to terminate Lukacinsky. It contends that it needed to eliminate one technician position for budgetary reasons and that it selected Lukacinsky based on objective data. See, e.g., McMillan, 140 F.3d at 300 (employer's testimony that it terminated the plaintiff due to her poor work performance and acrimonious relationship with her coworkers was sufficient to shift the burden to the plaintiff to show that these reasons were a pretext for retaliation); Soileau, 105 F.3d at 16-17 (employer's explanation that it discharged plaintiff due to his poor performance constituted a legitimate business reason). Panasonic has thus satisfied its burden of producing evidence of a legitimate, non-discriminatory reason for the termination. The burden thus shifts back to Lukacinsky to establish that Panasonic's stated reason is a pretext for discrimination.
3. Whether Lukacinsky Can Establish That the Stated Reason is Pretextual
Because Panasonic has put forth a legitimate, non-discriminatory reason for its termination decision, the burden shifts to Lukacinsky to demonstrate that Panasonic's stated reason is a pretext for retaliation. In Wright, the plaintiff, who suffered from ADD and had difficulties with his supervisor's management style, requested and received a two-week FMLA leave of absence. 352 F.3d at 474. When he returned to work, he gave his employer a doctor's note recommending that the company make changes in the workplace to accommodate the plaintiff's condition. Id. Approximately one week later, the plaintiff was terminated, allegedly because he missed a meeting of the company's sales managers. Id. at 474-475. The court denied summary judgment on plaintiff's ADA retaliation claim, reasoning that "the evidence presented by [the plaintiff] creates a triable issue of fact as to whether his discharge was in fact due to his allegedly insubordinate behavior . . . or whether [the defendant's] charge of insubordination masked retaliation for [plaintiff's] requesting accommodation of his ADD." Id. at 478.
Like the plaintiff in Wright, Lukacinsky was terminated shortly after requesting and receiving FMLA-protected leave. In addition, unlike in Wright, Lukacinsky has introduced evidence that one of the individuals involved in Panasonic's termination decision exhibited hostility toward his medical condition subsequent to his exercise of protected activity. Compare Soileau, 105 F.3d at 16-17. As in Wright, therefore, there is a triable issue of fact as to whether the company's proffered reasons for its employment decision masked retaliation for protected activity, and the court will deny summary judgment on Lukacinsky's state law retaliation claim.
ORDER
For the foregoing reasons, the court orders the following:
1) Panasonic's motion for summary judgment on Lukacinsky's retaliation claim under the Family and Medical Leave Act, 29 U.S.C. §§ 2601- 2619, is DENIED.
2) Panasonic's motion for summary judgment on Lukacinsky's claims under Mass. Gen. Laws ch. 151B for unlawful termination on the basis of handicap and for unlawful retaliation for the exercise of protected rights is DENIED.
3) Panasonic's motion for summary judgment on Lukacinsky's claims under
Mass. Gen. Laws ch. 151B for hostile work environment or harassment and for failure to provide reasonable accommodation is GRANTED.
So Ordered.