Opinion
CIVIL ACTION NO, 03-11077-DPW.
June 20, 2005
MEMORANDUM AND ORDER
Plaintiff Michael D. Mulloy claims that the termination of his employment by defendant Acushnet Company ("Acushnet") amounted to disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Massachusetts General Laws chapter 151B. Acushnet filed a motion for summary judgment, which, for the reasons provided below, I will grant.
See Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 20 n. 5 (1st Cir. 2002) ("Although we write in terms of the ADA, our comments apply with equal force to the appellant's claim under its state-law counterpart, Mass. Gen. Laws, ch. 151B, § 4. That statute tracks the ADA in virtually all respects. The lone exception is that the use of mitigating measures must be taken into account when determining the extent of an individual's disability under the ADA, whereas the disability must be considered in its natural state under Massachusetts law.") (citations omitted); see also Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 33 n. 2 (1st Cir. 2000) ("The Supreme Judicial Court of Massachusetts has indicated that federal case law construing the ADA should be followed in interpreting the Massachusetts disability law.") (citing Labonte v. Hutchins Wheeler, 424 Mass. 813 (1997), and Wheatley v. American Telephone Telegraph Co., 418 Mass. 394 (1994)).
I. Background
Acushnet, based in Fairhaven, Massachusetts, manufactures and sells golf balls and other golf-related products. Mr. Mulloy began working for the company late in 1998 as one of two electrical engineers overseeing one of the company's plants. Before joining the ranks of Achushnet, Mr. Mulloy worked as an electrical engineer in manufacturing facilities run by companies such as Kimberly Clark, Polaroid, Black Clawson, and Owens B-rockway Glass Company. In some of these locations, he was exposed to dust but had no exposure to chemicals. That changed upon his arrival at the Acushnet manufacturing facility.
Isocyanates, which are chemical sensitizers, are used in the manufacture of golf balls and are present in all of Acushnet's manufacturing facilities. According to defendant, exposure to the chemicals can exacerbate symptoms experienced by people with asthma, allergies, or other chronic respiratory problems; according to plaintiff, exposure may cause the development of such conditions. Acushnet, therefore, has instituted a formal protocol for employees who have prolonged exposure to the chemicals. Mr. Mulloy, like all Acushnet employees, filled out a medical history form at the time the company hired him. He reported no allergies nor that he had prior exposure to isocyanates. He was taking no medication at the time.
From December 1998 until January 2001, Mr. Mulloy designed programs for machines, purchased and supervised installation of machine controls, evaluated machine capabilities, identified mechanical and electrical changes, trained and supported maintenance personnel, troubleshot electrical and electronic controls and supported electrical safety programs. He worked from a cubicle approximately 6 hours a day and spent an average of 2 hours each day on the plant floor. Occasionally, Mr. Mulloy spent all or most of the day in the plant or in the spray room. There is disagreement between the parties about whether he worked on projects requiring him to work from the plant floor for as long as a week at a time.
Mr. Mulloy began to experience throat and chest tightness and discomfort in the fall of 1999 and presented to defendant a note from his physician reporting those symptoms. Acushnet responded by taking actions within the isocyanate protocol, which included giving Mr. Mulloy an allergy questionnaire and conducting a pulmonary function test ("PFT"). Acushnet's occupational medicine consultant, Dr. Charles Lutton, also examined plaintiff and referred him to a respiratory specialist. The specialist noted no signs of isocyanate sensitivity and cleared Mr. Mulloy for work.
On May 9, 2000, Mr. Mulloy began to feel dizzy while working in the paint spray room and over the ensuing days felt groggy and feverish. Acushnet kept him out of the spray room until another PFT could be performed and Dr. Lutton could reexamine him. The results of further testing caused Dr. Lutton to bar Mr. Mulloy from further exposure to isocyanates and other respiratory irritants. Consequently, Mr. Mulloy was restricted from areas in the plant where the chemicals are generated, also known as "red zones." He worked on machines outside of "red zones," relying on electromechanics to download programs into machines located in the restricted areas. Although this arrangement worked for a time, Mr. Mulloy began once again to suffer dizziness and other symptoms. Dr. Lutton, therefore, decided that he should stay out of all buildings where the chemical irritants were used. Accordingly, Acushnet moved Mr. Mulloy to its Fairhaven headquarters, fifteen miles from the plant.
The parties disagree about the extent to which Mr. Mulloy continued to perform functions important to his job from Fairhaven. This implicates one of the overarching disputes in this case; whether he must be on or near the plant floor to fulfill the essential duties of his job and whether there are practical accommodations that can be made to permit him to work remotely.
Three officers of the company — Eric Bartsch, the Vice President of Golf Ball Manufacturing, Jean Sutherland, Director of Health Safety and Field Services, and Ken Riall, Vice President of Employee Relations — discussed and evaluated what tasks Mr. Mulloy could still perform and whether accommodations could be made for his limitations. Mr. Riall discussed with Mr. Bartsch whether plaintiff could perform his duties remotely; Mr. Bartsch did not believe that he could. Ms. Kim Francis, Director of Engineering, also believed that Mr. Mulloy could not perform all of his essential duties remotely. Mr. Mulloy does not adopt the view of these supervisors. He emphasizes that during the time he was restricted from the "red zones" he was able to perform his job without being able to see the machines, and could have continued to do so from a remote location.
Acushnet terminated Mr. Mulloy in January 2002. He contends that the decision to terminate him was made by Mr. Riall, who did not have the requisite knowledge to make such a decision in part because he did not adequately consult with Ms. Francis. At that time, Mr. Mulloy began looking for a new job as an electrical engineer and also considered a career change. He is now a full time student at Syracuse Law School. Although he plans to practice law after graduation, he has been treated for a psychiatric condition his treating physician causally connects to his termination by Acushnet. His old job, approximately seventy percent of which occurs inside the plant, is now done by a combination of Acushnet employees and outside vendors.
Mr. Mulloy contends that he is now disabled in a permanent partial fashion and can work only in a "meticulously clean environment because of his disability."
II. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it has the "potential to affect the outcome of the suit under the applicable law,"Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000), and a "genuine" issue is one supported by such evidence that "a 'reasonable jury, drawing favorable inferences,' could resolve it in favor of the nonmoving party."Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Smith v. F.W. Morse Co., 76 F.3d 413, 427 (1st Cir. 1996)).
A party seeking summary judgment must make a preliminary showing that no genuine issue of material fact exists. Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied, 515 U.S. 1103 (1995). Once the movant has made such a showing, the nonmovant must point to specific facts demonstrating that there is, indeed, a trialworthy issue. Id. A genuine dispute of material fact cannot be established through "conclusory allegations, improbable inferences, and unsupported speculation" alone. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
The nonmovant "may not rest upon the mere allegations or denials of the [moving] party's pleading," and instead "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Additionally, if the nonmovant fails to make "a showing sufficient to establish the existence of an element essential to [its] case, and on which [it] will bear the burden of proof at trial," Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), summary judgment must enter against it. With respect to the nonmovant's burden of proof in establishing the essential elements of its case, the resolution of a motion for summary judgment "implicates the substantive evidentiary standard of proof that would apply at a trial on the merits."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III. Discussion
Acushnet is covered by the ADA and may not "discriminate against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). The proscription against disability discrimination by employers furthers Congress's goal of "remov[ing] barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities." 29 C.F.R. Pt. 1630 App. Employers are not, however, required to remove all barriers. The failure to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" is actionable "unless such covered entity can demonstrate that the accommodation would impose an undue hardship." 42 U.S.C. § 12112(b)(5)(A).
In short, "[t]o establish an ADA claim, a plaintiff must prove by a preponderance of the evidence: first, 'that she was disabled within the meaning of the Act; second, . . . that with or without reasonable accommodation she was a qualified individual able to perform the essential functions of the job; and third, . . . that the employer discharged her because of her disability.'"Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000); see Davidson v. American Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003).
To be disabled for purposes of the ADA "means having or being 'regarded as' having a mental or physical impairment that 'substantially limits one or more . . . major life activities.'"Guzman-Rosario v. United Parcel Service, Inc., 397 F.3d 6, 9 (1st Cir. 2005) (quoting 42 U.S.C. § 12102(2)(A)). And, though the First Circuit has "regularly consulted EEOC definitions of the terms . . ., no agency has been granted authority to issue binding regulations interpreting the term 'disability.'" Id. (citations omitted). A substantial limitation is not a temporary one; the impairment at issue must be a long-term condition. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194 (2002); see also Whitney v. Greenberg, Rosenblatt, Kull Bitsoli, P.C., 115 F. Supp. 2d 127, 132 (D. Mass. 2000), aff'd 258 F.3d 20 (1st Cir. 2002). And, in evaluating the limitation, courts must approach the question in a "case-by case manner."Toyota Motor Mfg., 534 U.S. at 198. To this end, Mr. Mulloy must "offer evidence that the extent of the limitation in terms of [his] own experience . . . is substantial." Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 556-57 (1999).
A. Limitation on Major Life Activity
Acushnet does not dispute that Mr. Mulloy suffers an impairment; rather, it contends that he has failed to show that his impairment substantially limits a "major life activity." Mr. Mulloy argues that the impairment limits his ability to "breath" and "work." Although "breathing" is a "major life activity," there is some question about whether "working" should also be deemed to fall within that category. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999). The First Circuit has said that "[a]waiting a definitive ruling from the Supreme Court otherwise, we have assumed that 'working' is a major life activity. . . ." Guzman-Rosario v. Unite Parcel Service, Inc., 397 F.3d 6, 11 (1st Cir. 2005).
On the question of "working", it is not enough to show that an individual is substantially limited in his ability to perform his particular job. Rather, a plaintiff must be "significantly restricted in or precluded from performing either a 'class' of jobs — a set of jobs utilizing similar skills, knowledge, and training to her prior job — or a 'broad range' of jobs in various classes — a large set of jobs that vary in what skills are required." Guzman-Rosario, 397 F.3d at 10-11. Cf. Schapiro v. New York City Dep't of Health, 25 Fed. Appx. 57, 61 (2d Cir. 2001) ("Schapiro has not shown that his physical impairment substantially limited his ability generally to work in jobs as a staff analyst, as opposed to his particular job at a particular location."); Gits v. Minnesota Mining and Mfg. Co., 2001 U.S. Dist. LEXIS 20871, at *18-19 (D. Minn., June 15, 2001) (finding, in a case where plaintiff had respiratory reaction to "industrial chemicals," that he was not substantially limited in his ability to work because, since termination, he "has been either in school full-time or employed" and "testified that he could perform a job that did not involve exposure to industrial chemicals").
And, as for Mr. Mulloy's "breathing" limitations, the record makes clear that he is now sensitive to irritants encountered in everyday life in addition to the chemicals used at the manufacturing facility. It is not sufficient, however, simply to have intermittent responses to particular irritants. For example, the plaintiff in Chan v. Sprint Corp., 351 F. Supp. 2d 1197 (D. Kan. 2005), suffered from mixed rhinitis, which "prevent[ed] her from being around cigarette smoke and other noxious chemicals, including materials with ammonia, paint thinners, cleaners, exhaust fumes, formaldehyde, bug sprays, fertilizers, turpentine, aerosol hairsprays, and some fragrances, as well as mold." Id. at 1200. Despite the evidence in the record regarding the measures the plaintiff needed to take in order to function in public, the "court conclud[ed] that . . . no reasonable trier of fact could find that Plaintiff's impairment substantially limits her breathing. . . ." Id. at 1204; see also Gits, 2001 U.S. Dist. LEXIS 20871, at *16 ("[T]here is no genuine issue of fact that Gits generally is able to perform the basic function of breathing. Gits' severe breathing difficulties occur only when he is exposed to acrylate adhesive products at 3M."). Cf. Calef v. The Gillette Co., 322 F.3d 75, 85 (1st Cir. 2003) ("A significant restriction does not mean a 'mere difference.'").
In Albert v. Smith's Food Drug Centers, Inc., 356 F.3d 1242 (10th Cir. 2004), however, where the plaintiff's "asthma requires her to avoid a wide variety of everyday situations" such as "crowds, night-time or outdoor activities, cigarette smoke, and perfumes," the court found that the evidence was in dispute as to whether she was "symptomatic most of the time" and was sufficient for her to survive summary judgment. Id. at 1250-51.
I do not find on the present record that Mr. Mulloy has presented sufficient evidence to survive summary judgment on the issue of "substantial impairment" either of breathing or of working. He is not symptomatic most of the time. It is a particular job at a particular location for which his breathing difficulties create an impairment. In the interests of completeness and recognizing that the law of substantial impairment — at least as to "working" — is not yet completely settled, however, I turn to the second relevant element of the disability analysis, the question whether he was an "otherwise qualified individual."
B. Otherwise Qualified Individual
In addition to suffering an impairment that substantially limits a major life activity, a plaintiff must also be an "otherwise qualified individual with a disability." Mr. Mulloy is not. The ADA defines a "qualified individual with a disability" as
an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential.42 U.S.C. § 12111(8). There is no dispute here that prior to the onset of his condition that Mr. Mulloy by training and experience was a fully capable employee. See Tyndall v. Nat. Education Centers, Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) ("We agree, and [the defendant] does not dispute, that the quality of [the plaintiff's] performance when she was working was more than adequate."); see also Gits, 2001 U.S. Dist. LEXIS 20871, at *23. The point of contention as to this element is whether he can continue to perform the essential functions of his job, with or without a reasonable accommodation. See Laurin v. The Providence Hospital, 150 F.3d 52, 56 (1st Cir. 1998) ("It is well settled that an employer need not accommodate a disability by foregoing an 'essential function' of the employment position."); Calef, 322 F.3d at 86 n. 8. It is the plaintiff's burden to show that he can. US Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002); Calef, 322 F.3d at 86; Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 24 (1st Cir. 2002).
I apply a two-step analysis to the issue. Can Mr. Mulloy perform the essential functions of his position? And, if not, would a reasonable accommodation by Acushnet allow him to do so?Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st Cir. 2001).
In this case, the two-step analysis requires that I first determine whether being physically present at the manufacturing facility is itself an essential function of Mr. Mulloy's position or is necessary for him to be able to perform the essential functions of his position. If it is, Mr. Mulloy is not a "qualified individual" for purposes of the ADA. If his absence from the facility does not implicate the essential functions of his job, I must then determine whether moving him to a remote location and supplying a web cam and other means of communication are reasonable accommodations to his disability. The analysis of these points in a case such as this is largely coextensive. But the First Circuit has instructed that "although the qualification analysis could be understood to subsume the concept of reasonable accommodation, we think it analytically sounder to treat the two topics separately." EEOC v. Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997). Accordingly, I do so.
1. Performance of Essential Functions
Implicit in the first question is a requirement that the court first identify the essential functions. Essential functions have been described by federal regulations "somewhat tautologically as 'fundamental job duties,' exclusive of 'the marginal functions of the position.'" Gillen, 283 F.3d at 25. The regulations do go on, however, to provide that
[a] job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.29 C.F.R. § 1630.2(n)(2). They also identify certain evidence important in determining whether a function is essential, and not merely marginal:
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.Id. at § 1630.2(n)(3).
Turning to the present context, many courts "have recognized physical attendance in the workplace is an essential function of most jobs." Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004); see Hypes v. First Commerce Corp., 134 F.3d 721, 726-27 (5th Cir. 1998); Vande Zande v. State of Wis. Dep't of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994); Tyndall v. Nat'l Educ. Centers, Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994);Walders v. Garrett, 765 F. Supp. 303, 309-10 (E.D. Va. 1991),aff'd, 956 F.2d 1163 (4th Cir. 1992). In fact, the Tenth Circuit, in Mason, said it was "the 'unusual' or 'extraordinary' case where evidence supported the employee's contention that he could perform the essential functions of his employment position from home because physical attendance in the workplace was not an essential function of his employment position." Mason, 357 F.3d at 1124; see Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997) (where the employee "failed to present any facts indicating that his was one of those exceptional cases where he could have 'performed at home without a substantial reduction in [the] quality of [his] performance'") (quoting Vande Zande, 44 F.3d at 544). Mr. Mulloy has not presented me with such an "exceptional" case.
That much of the case law deals with a request to work from home is not a material distinction from here, where Mr. Mulloy seeks to work offsite. The analysis in those home-request cases focuses primarily on whether one needs to be in the location where the essential functions are generally performed and relevant coworkers can be found. Here, although Mr. Mulloy would be in an Acushnet office, he would not be "present" in the manufacturing facility, the relevant location for his work.
The parties do not dispute the basic responsibilities, as listed in the job description, of Mr. Mulloy's position. A senior electrical engineer is expected to design programs for machines, purchase and supervise installation of machine controls, evaluate machine capabilities, identify mechanical and electrical changes, train and support maintenance personnel, troubleshoot electrical and electronic controls and support electrical safety programs. The question is whether Mr. Mulloy needs to be at the facility in order to adequately perform these duties.
Acushnet claims that he does, because his duties "require him to have access to the machines in the Ball Plant." (Def.'s Mem. at 10.) Mr. Mulloy, in the estimation of Acushnet, must, at a minimum, be able to see the machines and those operating them to assess their functioning and the installation of the programs he writes for them. The job description also involves training and support of personnel. This teamwork aspect of the job is one courts have stressed in finding that presence in the workplace is essential to most jobs. See, e.g., Mason, 357 F.3d at 1120.
Mr. Mulloy contends, however, that he can perform the essential functions of his job remotely by use of a web cam, as well as other communications tools. In support of this argument, he offers his own testimony. Moreover, to the extent he previously was required to install programs or interact directly with machines, such tasks can easily be done by someone else under his remote supervision and instruction.
The plaintiff in Mason presented the Tenth Circuit with similar arguments, arguing that her presence at the workplace was not essential "because she can perform all of the essential functions of the job at home using a computer, telephone, and fax machine." Mason, 357 F.3d at 1120. There, the plaintiff also contended that "supervision" and "teamwork", because they are not included in her job description, were not essential functions.Id. Regarding "teamwork" in particular, the Mason plaintiff proffered that one of the other coordinators could do the team-related functions. Id. at 1120-21.
First, Mr. Mulloy's "own testimony . . . is insufficient under Fed.R.Civ.P. 56(c) to create a 'genuine' issue of material fact." Mason, 357 F.3d at 1121. The Mason court was "reluctant to allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience." Id. at 1122. I am as well. Mr. Mulloy must offer more, in light of the fact that an employer's judgment regarding the essential functions of a job, though not dispositive, is afforded deference. See Kvorjak, 259 F.3d at 55 ("In the absence of evidence of discriminatory animus, courts generally give 'substantial weight' to the employer's judgment as to what functions are essential.") (quoting Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34 (1st Cir. 2000)); EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997) ("[W]here, as here, no evidence of animus is present, courts may give reasonable deference to the employer's assessment of what the position demands.").
"Where the plaintiff has presented no evidence of discriminatory intent, animus, or even pretext, we think there should be special sensitivity to the danger of the court becoming a super-employment committee." EEOC v. Amego, Inc., 110 F.3d 135, 145 (1st Cir. 1997).
Mr. Mulloy has no testimony from other former and current employees — and, in particular, from the other senior electrical engineer at Acushnet — to substantiate his view of the essential duties of the position. Cf. Kvorjak, 259 F.3d at 58 ("Appellant could have, but did not, depose current claims adjudicators about their duties."). He has simply failed to present an adequate basis to question the company's contention that physical presence is a required, essential aspect of the job.
Mr. Mulloy points to the time he spent outside the "red zones" as evidence that he can work remotely. During that time, however, he was still able to work directly on machines outside the "red zones" and was still working in the same facility as the personnel he was required to train and support. The fact that he may not have been able to see some of the machines upon which he directed work to be done during that time does not support an inference that he could adequately perform his job without being able to see any of the machines or be easily accessible to those working on them. Moreover, Acushnet's efforts to minimize exposure to one particularly dangerous part of the plant does not necessarily mean that the ability to work directly on machines is not an essential job function; "[f]acilitating injured workers' return to their jobs should not expose employers to future litigation." Rooney v. Koch Air, LLC, 2005 U.S. App. LEXIS, at *14 (7th Cir., June 6, 2005).
The question is not simply whether he may be able to perform aspects of each essential function, but whether he can do so adequately. "An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced." Vande Zande, 44 F.3d at 544. And, although the Vande Zande court went on to say that "[t]his will no doubt change as communications technology advances," id. at 544, Acushnet has demonstrated that Mr. Mulloy's training and support of personnel and oversight of machine functioning require his presence in the facility. Acushnet is not required to permit Mr. Mulloy to work 15 miles away from the machines and operators for which he is responsible. Cf. Gits v. Minnesota Mining and Mfg. Co., 2001 U.S. Dist. LEXIS 20871, at *28 (D. Minn., June 15, 2001) ("The concept of supervising a laboratory team remotely from a computer strains even the boundaries of current technology.").
The First Circuit found, in Kvorjak v. Maine, 259 F.3d 48 (1st Cir. 2001), that an employer need not permit a disabled employee to work from home when training and teamwork were essential aspects of his job. Achushnet's position here is similarly "that, by definition, [Mr. Mulloy's position] includes training and joint problem-solving that could not be accomplished effectively by [an employee] based outside" the manufacturing facility. Id. at 57. Nothing Mr. Mulloy has presented provides the basis for a reasonable jury to find that his presence is not required in order for him to adequately perform the essential functions of his position. Cf. id. ("In response to the State's evidence that the advisor function is an 'essential' part of a claim adjudicator's job, appellant offers no specific facts showing that this role either is not essential or could be performed by him at home.").
In Hernandez v. City of Hartford, 959 F. Supp. 125 (D. Conn. 1997), the court found that there was a triable issue of fact concerning whether being in the office full-time was an essential function of the job. There, however, the employee was only seeking to do work from home part-time. Id. at 132. Moreover, two of three supervisors approved the accommodation, "rais[ing] a factual issue as to whether the proposed accommodation would have imposed an undue burden." Id. By contrast, Mr. Mulloy seeks to be out of the facility full-time and none of the supervisors who gave it consideration believed he could do his job without being at the Ball Plant.
Similarly, in a recent Massachusetts Appeals Court decision, Smith v. Bell Atlantic, 03-P-1522, slip op., Mass. Super. Ct., June 10, 2005, the court found that a jury "reasonably could conclude that uninterrupted attendance was not an essential function of her job." Unlike this case, however, inSmith, the plaintiff did not seek to work outside the office full-time and others in her position were permitted to do substantial amounts of their work at home.
In the case of Mr. Mulloy, it is essential not only that he interact with those for whom he has responsibility of training and supporting, but also that he interact, in one way or another, with machines found in the plant. He is not seeking to be removed from the facility only when those duties are not required to be done, but rather requests that he not be required to enter the facility at all. And, Mr. Mulloy has proffered no evidence that anybody else with the same responsibilities has been permitted to work entirely outside the manufacturing facility.
The fact that others could pick up aspects of Mr. Mulloy's job does not advance his "essential function" argument. "The mere fact that others could do [his] work does not show that the work is nonessential." Basith v. Cook County, 241 F.3d 919, 929 (7th Cir. 2001). Mr. Mulloy's emphasis on the ease with which the duties could be delegated "demonstrates [he] also considered those duties as functions of the job," whether essential or not.Mason, 357 F.3d at 1121.
2. Reasonable Accommodation
Having found that material aspects of the essential functions of Mr. Mulloy's job require his physical presence, I must determine whether a reasonable accommodation would permit him to adequately perform those functions. Mr. Mulloy bears the burden of showing the existence of a reasonable accommodation. Feliciano v. Rhode Island, 160 F.3d 780, 786 (1st Cir. 1998). A plaintiff must make a showing "that the accommodation 'would effectively enable [him] to perform [his] job.'" Kvorjak, 259 F.3d at 55 (quoting Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001)). Mr. Mulloy has failed to satisfy this burden, proposing an accommodation — working from a remote location — that inherently vitiates the ability to perform essential functions.
"Although a reasonable accommodation may include job restructuring, 42 U.S.C. § 12111(9)(B), an employer need not exempt an employee from performing essential functions, nor need it reallocate essential functions to other employees." Phelps, 251 F.3d at 26 (citing Feliciano, 160 F.3d at 785, andSoto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 20 (1st Cir. 1998)). To request elimination of an essential function as an accommodation is, in the words of the Tenth Circuit, "not, as a matter of law, a reasonable or even plausible accommodation."Mason, 357 F.3d at 1122-23.
"Reasonable accommodation may include 'reassignment to a vacant position.'" Phelps, 251 F.3d at 27 (quoting 42 U.S.C. § 12111(9)(B). Mr. Mulloy, however, does not seek reassignment. Rather, he seeks to be able to continue doing his job, but from a location that will not permit him to perform the essential functions of that job, even with the aid of the tools he suggests. That is not a reasonable accommodation, for it in essence requires not an accommodation but a redefinition of his job. In short, it is difficult, in a context such as this, to analyze the reasonableness of the accommodation as a separate question from the essential functions.
This, in the words of Judge O'Toole, would be no accommodation at all. See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 654-55 (1st Cir. 2000) (O'Toole, J., dissenting) ("The leave extension requested by the plaintiff was not a reasonable accommodation as a matter of law because it was not an accommodation at all as that term ought to be understood. To be an accommodation, the requested leave would have to do what an accommodation under the ADA must do — enable the employee to perform the essential functions of her job. To put it in the terms of the EEOC's proposed definition of 'reasonable accommodation,' Garcia's requested leave would not have been 'effective.'").
However described — whether under the rubric of the "essential function" test or of the "reasonable accommodation" requirement — the result is the same; Mr. Mulloy cannot show that he satisfies either element.
Plaintiff does attempt, however, to provide suggestions of technology that might permit him to do his job from another location. But, by suggesting the use of a web cam, plaintiff essentially concedes that seeing the machines is an important part of his job. He does not offer a basis to refute — with anything other than his own assertions — Acushnet's contention that the use of a web cam would be ineffective. Defendant points out the size and complexity of the machines, which requires being in their presence to adequately assess them. And, even if the camera would be effective — a proposition the record here does not substantiate — the company makes a compelling "undue burden" argument when it avers that in order to effectuate such an accommodation it would be required to hire an additional employee to communicate with Mr. Mulloy regarding what to capture with the camera.
I need not determine whether that would be an undue burden as a matter of law, but the nature of the requested accommodation does emphasize the need for Mr. Mulloy to interact with both the machines and those who take care of them. As already noted, he has provided no basis for a jury reasonably to conclude that he can adequately perform his duties outside the presence of both the personnel and the machines. His inability to perform certain functions remotely, which allows "physical presence" to be analyzed as a shorthand for those functions, also highlights the unreasonableness of an accommodation based on permanent physical absence from the machines for which he is responsible, both for programming and troubleshooting functions, and from those he must train and support to work with the machines. Cf. Gits, 2001 U.S. Dist. LEXIS 20871, at *25-26 ("Because [the plaintiff] was responsible for managing and improving the product line, it is unreasonable for him to have no contact with laboratories and facilities that contain acrylate adhesive products."). He may be able to do aspects of his job functions, broadly defined, but Acushnet can require that they all be done adequately. Mr. Mulloy has offered no evidence putting in question the proposition that he cannot fully perform his job from a remote location.
In analyzing the reasonableness of a proposed accommodation and the question of undue burden, the First Circuit does not, as do some circuits, apply a burden shifting paradigm. Instead, it "prefer[s] to discuss the burdens of showing reasonable accommodation and undue hardship as they are allocated in the statute: the plaintiff fully bears the former, and the defendant fully bears the latter." Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001); see Calef, 322 F.3d at 86 n. 8 ("The essential function analysis is 'conceptually distinct from, though it frequently overlaps with, the undue hardship defense.'") (quoting H.H. Perritt, Jr., Americans With Disabilities Act Handbook, § 4.19 at 126 (3d ed. 1997)).
Mr. Mulloy has suggested that other employees can do aspects of the job — such as installing the programs he writes — that require being in the plant. But, the ADA does not "require an employer to 'accommodate a disability . . . by reallocating essential functions to make other workers' jobs more onerous.'"Kvorjak, 259 F.3d at 57 (quoting Feliciano, 160 F.3d at 785);see Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998).
Finally, Mr. Mulloy contends that now he can only work in a meticulously clean environment. That fact, which must be credited at this point, principally goes to his ability to qualify as disabled, either as evidence of the restrictions on his breathing or on his ability to work. It is also relevant to the accommodation analysis. Acushnet need not "create a wholly isolated work space for an employee that is free from numerous possible irritants." Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999). "[T]here is only so much avoidance that can be done before an employer would essentially be providing a bubble for an employee to work in." Id.
In sum, where it is clear that an irritant free environment is not possible at the Ball Plant, requiring Acushnet to permit Mr. Mulloy to work remotely both eliminates an essential function of the job and is, therefore, an unreasonable accommodation, if it can be described as an accommodation at all. See Note 6,supra.
IV. Conclusion
For the reasons set forth more fully above, the motion for summary judgment of defendant is GRANTED.