Opinion
Civil Action No. 98-11085-RGS
November 29, 2000
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Donato Quintiliani was terminated by the Massachusetts Bay Transportation Authority (MBTA) on May 12, 1995. Quintiliani contends that he was fired for reasons of age and disability. He seeks redress under the federal Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the analogue Massachusetts statute, M.G.L. c. 151B.
At the motion hearing, Quintiliani's counsel waived a fourth claim brought under Title VII of the Civil Rights Act of 1964.
BACKGROUND
The following material facts are undisputed. The MBTA provides public transportation in seventy-eight cities and towns in eastern Massachusetts. The MBTA Materials Department procures and maintains parts for the system's trains and buses. These are warehoused at a facility known as Central Stores or Everett Stores in Everett, Massachusetts. The Materials Department has a smaller warehouse in Charlestown, Massachusetts, and an administrative office in the State Transportation Building at Ten Park Plaza in Boston.Quintiliani was hired by the MBTA in 1975, and then laid off in 1979. He was rehired as a Special Projects Coordinator in the Materials Department on October 3, 1988. Quintiliani's primary responsibility was to identify and sell obsolete or redundant parts. Quintiliani was assigned to work at Everett Stores.
Special Projects Coordinators had no fixed duties. At times, they would be assigned to the same projects; at other times, to different projects with different duties. See Boodry Dep., at 62; McGrath Dep., at 22-23.
Immediately after being rehired, Quintiliani began to miss work. During his three months on the job in 1988, he took fifteen days of paid sick leave. Over the next three years, Quintiliani took a total of 162.5 days of paid sick leave. In February of 1993, Quintiliani underwent open heart surgery. He returned to work in July, but immediately took an additional five weeks of paid sick leave. Quintiliani took a total of 168 days of paid sick leave in 1993, 76 days in 1994, and five days in 1995, before being terminated on May 12, 1995.
Quintiliani was warned by his supervisors, orally and in writing, that his absenteeism, tardiness and early departures from work were unacceptable, and that "further incidents will result in appropriate disciplinary action, up to and including termination." McGrath Aff., at Ex. B. On January 22, 1993, Paul Barton, the Deputy Director of Administrative Services, ordered Quintiliani to
call me directly in each and every instance whenever you will not be able to be present at work during your normal working hours. This includes sick days, late arrivals, time off for personal reasons (doctors appointments, etc.), and requests for early sign-outs for any other reason.
Id.
According to Quintiliani, MBTA managers made "hostile" remarks to him about his absences. "On or about June 13, 1994, Hubert Holley commented to me that I should elect to take early retirement as I was 'ripe for the picking' because of my absences. . . . On or about April 11, 1995, David McGrath stated that he would be watching my attendance and threatened that I would be part of a layoff." Opposition, at Ex. B, Interrogatory Answer No. 7.
In late 1994, Quintiliani requested a transfer from the Everett Stores to the MBTA's downtown Boston office because of the "stress" caused by his daily car commute to Everett. The Personnel Department requested documentation of Quintiliani's condition, and suggested that he apply for medical leave. Quintiliani rejected this option. The MBTA denied Quintiliani's request for a transfer on January 30, 1995, noting that as an MBTA employee, Quintiliani could use readily available public transportation free of charge.
This was an apparent response to a letter submitted by Quintiliani from Dr. Starobin, his personal physician. In Dr. Starobin's opinion, commuting by train would relieve Quintiliani's stress from driving.
In FY 1995, the MBTA faced a budget shortfall of $40 million. The MBTA's General Manager directed senior administrators to identify potential savings, including the layoff of non-essential employees. David McGrath, the Manager of Stores and Inventory Control, recommended that Quintiliani's job be eliminated. McGrath met with Quintiliani on May 12, 1995, to tell him that his position had been eliminated and that he was being terminated. Quintiliani was then 59 years old.
The MBTA ultimately eliminated 439.8 employee positions in FY 1995. Belliveau Aff. ¶ 9.
Shortly thereafter, Quintiliani applied for social security disability benefits. The Social Security Administration (SSA) approved Quintiliani's claim of total disability on or about September 9, 1995. Quintiliani has since received approximately $15,000 in SSDI benefits annually.
On November 10, 1995, Quintiliani filed charges with the Massachusetts Commission Against Discrimination (MCAD). Quintiliani claimed that he had been singled out for termination while younger Special Projects Coordinators in the Materials Department had not been laid off, specifically Charles Menard (age 47), Susan Campbell (age 33), and Glen Brayman (age 52), and that Menard had been permitted to work from the MBTA's Boston office. Quintiliani withdrew his MCAD claim after filing this action on May 5, 1998.
The case was filed originally in Suffolk Superior Court and then removed by the MBTA to the federal district court.
DISCUSSION
Fed.R.Civ.P. 56(c) "mandates the entry of summary judgment . . . upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).Age Discrimination
The ADEA states that it is "unlawful for an employer to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's age." 29 U.S.C. § 623 (a)(1). M.G.L. c. 151B, § 4, contains a similar prohibition. In McDonnell Doualas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court set out a burden-shifting framework to be used in evaluating employment discrimination claims in cases where direct evidence of discrimination is lacking. According to this formula, if a plaintiff succeeds in establishing a prima facie case of discrimination, a presumption of discrimination arises. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for an adverse employment action. McDonnell, supra at 802; Burdine, supra at 252-253. See also Sinai v. New England Tel. and Tel. Co., 3 F.3d 471, 474 (1st Cir. 1993). If the employer meets its burden of production, theMcDonnell-Burdine presumption disappears from the case. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-511 (1993). The plaintiff then has the opportunity to demonstrate "through presentation of his own case and through cross-examination of the defendant's witnesses, 'that the proffered reason was not the true reason for the decision,' and that [age discrimination] was." Id. at 507-508 (quoting Burdine, supra at 256). See also Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991).
While McDonnell-Burdine allocates the burdens of production, the "ultimate burden of persuasion" remains at all times with the plaintiff.St. Mary's, 509 U.S. at 511. A plaintiff must produce specific facts that would enable a jury to find that the reasons proffered by the employer for his discharge were a pretext to conceal discrimination. Olivera v. Nestle Puerto Rico, Inc., 922 F.2d 43, 48 (1st Cir. 1990). The plaintiff must do more than simply question the employer's reasons or motives.Gadson v. Concord Hosp., 966 F.2d 32, 34 (1st Cir. 1992). He must put forward "definite, competent evidence fortifying [his] version of the truth." Vega v. Kodak Caribbean Ltd., 3 F.3d 476, 479 (1st Cir. 1993). "Direct or indirect evidence of discriminatory motive may do, but 'the evidence as a whole must be sufficient for a reasonable fact finder to infer that the employer's decision was motivated by age [or gender] animus.'" LeBlanc v. Great American Ins. Co.,
"There is no absolute rule that a discrimination plaintiff must adduce evidence in addition to that comprising the prima facie case and the rebuttal of defendant's justification in order to prevail either at the summary judgment stage or at trial. Rather, the evidence as a whole, whether direct or indirect, must be sufficient for a reasonable fact finder to infer that the employer's decision was motivated by [discriminatory] animus. If no such inference can be drawn, summary judgment is appropriate." Villanueva v. Wellesley College, 930 F.2d 124, 128 (1st Cir. 1991).
6 F.3d 836, 843 (1st Cir. 1993), (quoting Connell v. Bank of Boston, 924 F.2d 1169, 1172 n. 3 (1st Cir. 1991)). Under both state and federal law, a showing that the employer's explanation for an adverse job reaction is pretextual may permit (but does not compel) an inference of a discriminatory motive. Abramian v. President Fellows of Harvard College, 432 Mass. 107, 117-118 (2000); Reeves v. Sanderson Plumbing Products, Inc., ___ U.S. ___, 120 S.Ct. 2097, 2109 (2000).
The McDonnell-Burdine framework does not apply if a plaintiff is able to produce direct evidence of discrimination. While Quintiliani claims his managers made hostile comments about his repeated absences, he makes no claim of similar remarks concerning his age.
To establish a prima facie case of age discrimination under the ADEA, a plaintiff must show (1) that he was at least forty years of age; (2) that he met the employer's legitimate performance expectations; (3) that he experienced an adverse employment action; and (4) his job responsibilities were assumed by a person with similar skills, thus demonstrating the employer's continuing need to fill the position.Keisling v. Ser-Jobs For Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994). Cf. O'Connor v. Consolidated Coin Caterers Corps., 517 U.S. 308, 312 (1996) ("[T]hat an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case"). The elements of a prima facie M.G.L. c. 151B case are identical: "In the first stage, the employee has the burden to establish a prima facie case of discrimination by showing that: '(1) he is a member of a class protected by [M.]G.L. c. 151B; (2) he performed his job at an acceptable level; (3) he was terminated; and (4) his employer sought to fill the plaintiff's position by hiring another individual with qualifications similar to the plaintiff's.'" Abramian, 432 Mass. at 116 (quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995)).
Quintiliani's prima facie case fails for the reason that he is unable to show that he met his employer's minimum job expectations. Quintiliani argues that because McGrath (who served briefly as his supervisor) characterized his abilities as "fair," it follows that his chronic absenteeism did not impinge on his job performance. This is a dubious proposition. Employers, with rare exception, consider regular attendance an express condition of employment. See Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996). Moreover, it is something of a stretch to construe McGrath's remark that Quintiliani was "capable of doing his job" as an endorsement of his actual performance.
Quintiliani has also failed to establish the fourth element of his prima facie case, that subsequent to his termination, the MBTA filled his position with someone of similar qualifications. The record demonstrates rather that Quintiliani's duties were absorbed by his former co-workers. See Dougherty v. Blue Cross Blue Shield of Massachusetts, Inc., 966 F. Supp. 80, 87-88 (D.Mass. 1996) (a terminated employee is not "replaced" if his work is re-distributed among existing employees performing related work). Quintiliani counters that "[t]his is really a 'reduction-in-force' case . . . [and that he] can meet his burden, in part, by showing that younger persons were retained in the same position." Opposition, at 11. Quintiliani notes that both Menard (age 47) and Larry Hunt (age 57) were retained as "Special Projects Coordinators." This is true. However, the differences in age among Menard, Hunt, and Quintiliani (age 59) is insignificant. See Williams v. Raytheon, 220 F.3d 16, 20 (1st Cir. 2000). Moreover, despite their job titles, Hunt and Menard's duties differed substantially from Quintiliani's. Menard worked on projects other than the Obsolescence Program, including warehouse consolidation, while "Hunt had managerial and supervisory responsibilities, which covered a broader range of function areas than those in which the plaintiff was involved." Opposition, at Ex. C, MBTA Interrogatory Answer No. 15. That Hunt and Menard, among others, took over aspects of Quintiliani's job is also irrelevant in a reduction-in-force context. See Smith v. F.W. Morse Co., Inc., 76 F.3d 413, 423 (1st Cir. 1996) ("[A] position elimination defense is not defeated merely because another employee, already on the payroll, is designated to carry out some or all of the fired employee's duties in addition to his own, or because those duties are otherwise reallocated within the existing work force").
"In reduction-in-force cases, the plaintiff establishes the prima facie case by demonstrating that he or she (1) was a member of a protected class, (2) met the employer's legitimate job-performance expectations, (3) was laid off, and (4) that the employer either did not treat members of the protected class neutrally or retained persons not within the protected class in the same position." Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995).
Even if the court were to find the elements of a prima facie case, which it does not, Quintiliani has failed to offer any evidence suggesting that the MBTA's proffered explanation for its decision to eliminate his position was pretextual. Boodry, the Director of Purchasing and Administrative Services, testified that he recommended that Quintiliani be terminated because of his absences and because of McGrath's judgment that Quintiliani was one of his "lesser-producing employees." Boodry Dep., at 52; McGrath Dep., at 61-62. Quintiliani has offered no evidence impugning Boodry's testimony. He points only to the "hostile" comments that Holley and McGrath made about his absences and tardiness. An employer confronting the need to downsize may eliminate positions for good or bad reasons so long as the decision is not motivated by discrimination. Smith, 76 F.3d at 422. Absenteeism is a valid ground for discharge, even if the absenteeism is causally related to a characteristic of a person within a protected class (greater propensity to sickness, for example, because of age). Cf. Troy v. Bay State Computer Group, Inc., 141 F.3d 378, 381 (1st Cir. 1998) (The discrimination statutes are not medical leave acts, and [defendant] would not automatically be liable for gender discrimination if it had discharged [plaintiff] for poor attendance under standards applied to other employees, even if the poor record were due to pregnancy complications).
Disability Claims
Quintiliani also contends that he was terminated because of his heart-related disability. To prevail under the ADA (or M.G.L. c. 151B), Quintiliani must show that: (1) he was disabled within the meaning of the Act; (2) that he was qualified to perform the essential functions of his job, with or without a reasonable accommodation; and (3) that the employer discharged him in whole or in part because of his disability. 42 U.S.C. § 12132; M.G.L. c. 151B, § 4, (16); Dartt v. Browning-Ferris Industries, Inc., 427 Mass. 1, 2 (1998). Assuming that Quintiliani's medical problems rendered him a "qualified individual" within the meaning of the ADA and c. 151B, Quintiliani does not offer evidence "that might affect the outcome of the suit under governing law" with regard to the second and third elements of his disability claim. I disagree in the first instance with Quintiliani's assertion that the MBTA "would be hard-pressed to establish as a factual matter that the plaintiffs regular attendance was an essential function of his job after acknowledging that the plaintiffs extensive absenteeism had occurred over some seven years with virtually no repercussions." Plaintiffs Opposition, at 13. See Troy, 141 F.3d at 381. That aside, the MBTA persuasively argues that Quintiliani cannot claim total disability for SSDI purposes while, on the other hand, claiming that he is able to perform the essential functions of his job. These contentions are mutually exclusive unless Quintiliani can "proffer sufficient explanation . . . [for] the apparent contradiction. . . ." Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806 (1999). Quintiliani's "explanation" is as follows:
Although Quintiliani states that he suffers from "stress," "a trial fibrillation," and "coronary heart disease," there is no medical testimony squaring his condition with the ADA's definitions of physical impairment. See 29 C.F.R. § 1630.2 (h)-(j).
Justice Breyer offers two specific examples of a satisfactory explanation.
[T]he nature of an individual's disability may change over time, so that a statement about that disability at the time of an individual's application for SSDI benefits may not reflect an individual's capacities at the time of the relevant employment decision . . . [or] if an individual has merely applied for, but not been awarded SSDl benefits.Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 805 (1999). There is no suggestion in the record that Quintiliani's condition "changed over time" or that he has not received continuing SSDI benefits.
Q. Speaking of your disability, how are you able to collect disability for being totally disabled but at the same time tell us you'd be able to come back to work for us?
A. Until I go back to work I'm disabled cause I'm stressed out and got to find work somewhere. And I've been looking for work, but I am disabled because of my arrhythmia. The arrhythmia and everything else, blood pressure. My medicine controls everything. Once I'm on the medicine I'm just fine.
Q. So are you capable of returning to work?
A. If I can find work, I can try it. And if I am able to do it, then the Social Security office will monitor me. And then if I'm able to stay at the job, they'll take me off Social Security. So yes.
Plaintiffs Dep., at 113-114. Quintiliani's suggestion that "I can try it" [meaning his former MBTA job] and "if I am able to do it, . . . they'll take me off Social Security," does not explain the inconsistency, or even amount to an affirmation of his ability to perform his former job. Nor does the fact that Quintiliani was terminated because of medically-related absenteeism and tardiness give rise to an inference of discrimination. See Troy, 141 F.3d at 381; E.E.O.C. v. Amego, Inc., 110 F.3d 135, 149 (1st Cir. 1997). See also Ward v. Massachusetts Health Research Institute, Inc., 48 F. Supp.2d 72, 80 (D.Mass. 1999), rev'd on other grounds, 209 F.3d 29 (1st Cir. 2000) ("[E]ven if his arthritis caused Ward to be tardy . . . and he was then fired "because of" his tardiness, it does not follow that he was fired 'because of the arthritis.")
Reasonable Accommodation
Quintiliani claims that the MBTA violated the employment discrimination laws by not authorizing his request for a transfer to the Boston office as a "reasonable accommodation of his disability." Under the ADA, "the term 'discriminate' includes . . . not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless (the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]." 42 U.S.C. § 12112 (b)(5)(A); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). The plaintiff carries the burden of showing the need for an accommodation because of an "impairment" that impacts a "major life activity". 42 U.S.C.A. § 12111(8); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646-647 (1st Cir. 2000). It is the employer's burden to show that the requested accommodation is unreasonable. Id., at 647.
Under EEOC regulations, an individual is disabled if he or she is "[u]nable to perform a major life activity that the average person in the general population can perform." 29 C.F.R. § 1630.2 (j)(1)(i)-(ii). "Major life activities" are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. § 1630.2(i). The three factors to be taken into account in the determining of whether an impairment substantially limits a major life activity are: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact of or resulting from the impairment. See id. § 1630.20(j)(2)(i)-(iii).
Quintiliani does not offer any evidence that he has a substantial limiting impairment. Dr. Starobin's submission (originally offered in support of Quintiliani's request for a transfer) states:
Quintiliani has cited no authority supporting the proposition that "commuting to work" is a major life activity.
Mr. Donato Quintiliani is under my care for coronary heart disease with intermittent a trial fibrillation. Stress is a major factor in the causation of his a trial fibrillation. Therefore he needs to be relieved of the stress of driving to and from work. Commuting by train would relieve that stress and be most helpful in his care.
Opposition, at Ex. F. While Dr. Starobin's recommendation was that Quintiliani commute by train to his job site as a means of relieving his stress, Quintiliani, in fact, continued to commute by car to Everett Stores from the time his request was submitted until he was terminated in May of 1995, despite the availability of free train transportation to Everett.
Pursuant to the Interpretative Guide to the ADA regulations, an employer does not have to choose the best accommodation available or the accommodation that the employee prefers. 29 C.F.R. § 1630.9, App.; Lewis v. Zilog, Inc., 908 F. Supp. 931, 947 (N.D.Ga. 1995). Instead, the employer has the "ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." 29 C.F.R. S 1630.9, App.Salmon v. Dade County School Board, 4 F. Supp.2d 1157, 1162 (S.D.Fla. 1998). An employer is granted reasonable latitude in identifying the essential functions of a job for ADA purposes. 42 U.S.C. § 12111 (8) ("[C]onsideration shall be given to the employer's judgment as to what functions of a job are essential") Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 35 (1st Cir. 2000) (same). See alsoFeliciano v. State of Rhode Island, 160 F.3d 780, 785 (1st Cir. 1998) ("The ADA does not require an employer to accommodate a disability by foregoing an essential function of the position"). There was nothing unreasonable in the MBTA's insistence that Quintiliani, as an inventory control specialist, report to work at Everett Stores where the inventory was kept.
In Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), the Supreme Court held that hypertension did not constitute a disability within the meaning of the ADA where: (1) it was controlled by medication such that it did not substantially limit plaintiffs major life activities; (2) it did not significantly restrict plaintiffs ability to perform a class of jobs; and (3) the plaintiff was not otherwise regarded as disabled. While Quintiliani states in his Opposition that he "received certification as to handicapped status from the defendant's EEO/AA office in December of 1993," he provides no evidence of the "certification" or of its significance.
The Plaintiff was hired on October 3, 1988 as a Special Projects Coordinator. The Plaintiff originally was hired to perform administrative duties and/or work on the programs, including but not limited to: reviewing and updating levels of inventory; development of a new central materials distribution center; coding of inventory; and compiling and maintaining records of obsolete material; modernization of base stock locations. The Plaintiff provided coordination between the MBTA departments and potential bidders. At the time of his layoff, the Plaintiff worker on the Obsolescence Program. In this capacity, the Plaintiff compiled lists and performed data entry, both clerical functions. The Plaintiff had no supervisory duties.
Opposition, Ex. C.
Quintiliani counters that attendance at Everett Stores was not essential to the performance of his job because the employees who took over his duties work were permitted from the MBTA's Boston office. However, the only relevant instance cited by Quintiliani is that of Charles Menard. Opposition Ex. B, at No. 7. McGrath, however, testified that Menard performed only "some . . . [of] the duties that had previously been performed by Mr. Quintiliani." McGrath Dep., at 57. "Menard was able to perform all of his duties that he had previously performed as well as administering to the Obsolescence Program." Id., at 58. McGrath further testified that while most of Menard's "tasks were oriented towards Ten Park Plaza . . . there were occasions where Mr. Menard had to go over to Everett." Id., at 56.
Quintiliani also offers the opinion (in his answer to Interrogatory No. 15) that he "would have been able to perform all my essential job functions from the Boston [MBTA] location." Opposition, at Ex. B.
Employers and employees are encouraged to engage in an interactive process in developing a reasonable accommodation. See 29 C.F.R. Pt. 1630 App., § 1630.9. See also Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 199 n. 9 (1st Cir. 1999). The MBTA informed Quintiliani that free public transportation was available to the Everett facility. Opposition, at Ex. H. The MBTA also offered Quintiliani a medical leave. Quintiliani is silent as to why these suggested accommodations were unreasonable.
ORDER
For the foregoing reasons, the MBTA's motion for summary judgment is ALLOWED.SO ORDERED.