Opinion
Civil Action No. 01-11979-DPW.
August 30, 2004
MEMORANDUM AND ORDER
Plaintiff Kevin Tobin brings this action against his former employer, Liberty Mutual Insurance Company ("Liberty Mutual"), alleging seven counts arising out of his termination in January 2001. Tobin raises both state and federal law claims of unlawful discrimination and retaliation on the basis of age and disability, and he additionally brings claims for breach of the covenant of good faith and fair dealing and wrongful termination. Liberty Mutual has moved for summary judgment on all counts.
I. BACKGROUND
A. Facts
Unless noted otherwise, the following facts are undisputed by the parties.
Liberty Mutual has moved to strike large portions of Tobin's affidavit in support of his opposition to summary judgment and Tobin's Local Rule 56.1 statement of facts. Liberty Mutual contends, inter alia, that both include a number of conclusory, vague, and unsupported allegations. The extent to which the contentions Tobin offers in opposition to Liberty Mutual's motion for summary judgment are or are not sufficiently supported by evidence in the record cannot be dealt with in such a sweeping fashion. Rather, I deal with the factual disputes in context as they arise in my analysis, and I will consider on a case-by-case basis whether a particular allegation is, for example, vague or unsupported and therefore entitled to no weight.
1. Tobin's Performance
Kevin W. Tobin was hired by Liberty Mutual on September 17, 1964 in an administrative position. In May 1968, Tobin began work as a sales representative for Liberty Mutual. As a sales representative, Tobin sold various types of insurance policies, including policies for automobile, home, and life insurance. Among Tobin's primary responsibilities as a sales representative was selling new insurance policies.
Beginning around 1993, although he had by that time amassed a substantial book of business since beginning working as a sales representative, Tobin's yearly performance reports reflected deficiencies in sales of new insurance policies. For instance, a "Sales Representative Appraisal" written in September 1993 indicated that over the prior 12-month period, Tobin had sold a total of 270 new policies compared to the quota for new policy sales of 339. The sales numbers were broken down into 5 categories, "Auto," "Home," "Life," "Invest Serv," and "Other," and Tobin's sales for each category were below the respective sales quotas for the categories. On a scale from 1-6, with a "1" being the highest, Tobin received a "6" in "Sales Rating." The following comments accompanied the rating:
Kevin is working hard in terms of effort, but is not focusing enough on SALES activity. He spends far too much time in the office, and allows his time to be controlled by too much service work which could be handled by our service reps. Kevin needs to get out of the office and see more people!
Tobin received a "5" for "Overall Evaluation of the Sales Representative," accompanied by the following comments:
Additionally, Tobin received a "6" rating for "Prospecting," a "2" for "Quality," "3" for "Loss Ratio," and a "2" for "Retention."
Kevin is a veteran sales rep with many years of experience. He is popular with his policy holders. He needs to focus on prospecting methods to increase his volume of new business. Kevin has been resistant to changes in the way he spends his working time, but has voiced a willingness to try new ideas and methods He [sic] is currently relying on referrals to meet his new business quotas and falling far short of goals. . . .
At the end of the appraisal, Tobin hand wrote in the following:
I need to work smarter rather than harder. I work too many hours without the benefit of more sales. I also need to take advantage of our new technology the personal sales workstation and our registry information system in order to obtain more auto lead cards. In addition I will set time each and every day for just prospecting and prospecting only.
The yearly sales representative appraisals for Tobin for 1994, 1995, 1996, and 1998 reflect essentially the same story: negative ratings and comments for sales, prospecting, performance, and overall evaluation and positive ratings and comments for quality, loss ratio, and retention. In addition, the evidence indicates that while the weekly sales quota for sales representatives was decreased in 1999 and 2000, Tobin did not meet the quotas.
No appraisal was produced for 1997.
Tobin received ratings of "6" for 1994 and 1995. In 1996, the appraisal form was changed and a rating was given only for overall evaluation. The 1996 and 1998 appraisals indicated, however, below-quota sales of new policies.
In April of 1996, Tobin's supervisor, Mike Robin, gave Tobin a written warning stating that failure to meet the sales requirements for a 30-day period would lead to a 60-day probation followed by possible termination. Although Tobin did not meet the requirements for the 30-day period, Liberty Mutual waived the probation because Tobin's wife was ill. On November 21, 1997, Robin placed Tobin on a nine-week warning period. The written warning stated:
The critical component of your sales representative job is to sell new business. Each sales representative is expected to meet standards for selling new Auto, Homeowner and Life policies according to current underwriting guidelines. Other areas of job performance that are critical to your success include participation in sales initiatives and your behavior.
The warning went on to give examples of "inappropriate and insubordinate behavior in the office," including using profane language. The warning further stated:
In addition, over the past several months, I have had frequent discussions with you about your performance, in particular, your poor sales results and your lack of appropriate participation in sales initiatives.
Although you have developed action plans to improve your sales results, you have not achieved the goals set out in your plans.
The warning indicated that in order to bring his performance to an acceptable level, Tobin would have to demonstrate increased sales results and participate in sales initiatives. It stated that the warning period would extend until January 23, 1998 and that if Tobin's performance did not improve by that date, he would face probation and, in turn, "further corrective action up to and including termination."
Tobin took a leave of absence at the beginning of December 1997. In a "Restrictions Form" filled out in March 1998, Tobin's doctor, Dr. William Kantar, indicated that he had diagnosed Tobin as "Bipolar" and "depressed." Kantar indicated that Tobin was "significant[ly]" restricted as to "Interpersonal Relations," "Daily Activities: Occupation/Social" and all "Work-Related Activities" listed on the form. He additionally indicated that Tobin was significantly restricted in two areas of "Mental Status," "Concentration" and "Insight and Judgment."
These categories were: "Ability to Think and Reason," "Understand and Carry Out Instructions," "Sustain Work Performance," "Attention Span," and "Cope with Work Pressure."
The form also indicated that Tobin was "moderate[ly]" restricted in "Personal Habits, Appearance/Behavior" and "Thought Content" but was not restricted at all as far as "Past/Present Memory."
In June of 1998, Kantar wrote a letter "To Whom it May Concern," in which he stated:
Mr. Kevin Tobin has been under my care. He is now recovered sufficiently so that he may return to work full time without any limitations or restrictions.
Tobin returned to Liberty Mutual on June 15, 1998. In a letter dated June 16, 1998, Manina Schwitters, Tobin's new supervisor, indicated that Tobin would work a reduced schedule for his first four weeks back from leave. By July 20, 1998, Tobin had phased back into full-time work as a sales representative. Upon his resumption of full-time duties, Tobin's warning period was reinstated.
In September 1998, Tobin took a second leave of absence. In a "Restrictions Form" dated October 10, 1998, Kantar indicated that he had diagnosed Tobin as "Bipolar disorder + manic." Kantar indicated restrictions similar to those he had indicated during Tobin's prior leave, and he stated:
Cannot grasp how to cope with work. Become more fixed, confused, irritable and disorganized as productivity decreases which in turn exacerbates problem.
Tobin returned to work in January of 1999. Upon his return, Liberty Mutual hired a nurse, Cathy Harding, to assist him in resuming his position as a sales representative. In a letter dated January 4, 1999, Schwitters indicated that Tobin would work at reduced hours for the first four weeks following his return, increasing by an hour a week from four hours per day the first week to seven hours per day the fourth week.
Tobin resumed the full-time duties on February 1, 1999. In a letter to Tobin dated February 1, 1999, Schwitters wrote that two weeks remaining from the November 1997 warning period — which Tobin only partially completed from July 1998 to September 1998, prior to his second leave — were revised and would run for four weeks, from February 1 to February 26. Schwitters further wrote that if Tobin did not sell at least 24 new policies during the four-week warning period, he would begin a four-week probation period.
At the end of the warning period, Tobin had not met the terms of the warning, having sold only twenty policies. However, during a meeting with Schwitters and several of his other supervisors, Tobin produced several additional policies from his briefcase, which were accepted for the warning period. Thus, in a letter dated March 8, 1999, Schwitters indicated that Tobin had satisfied the terms of the warning. Schwitters indicated, however, that she would be monitoring Tobin's per capita sales results in four-week increments beginning on March 1, 1999 to ensure that Tobin was meeting the minimum standard.
In a letter dated March 3, 1999, Schwitters indicated that Tobin had not met the terms of the warning and was being placed on probation. Schwitters apparently wrote this letter before the meeting during which Tobin produced the policies from his briefcase, and it appears that the letter was never given to Tobin.
Additionally, Schwitters notified Tobin that he would be expected to meet or exceed 276 new business sales for the period between February 1, 1999 and December 1999. She noted that "[f]ailure to meet or exceed these minimum standards will result in further action up to and including immediate probation." On March 29, 1999, the end of the first four-week monitoring period, Schwitters notified Tobin that he was being placed on probation for failing to meet the minimum sales requirements. Schwitters indicated that the quota for the four-week period was 24 new policies but that Tobin had sold only ten during the period. She stated that if Tobin did not sell a minimum of 30 policies within the five-week probationary period ending April 30, 1999, he could be terminated.
In a letter dated May 10, 1999, Schwitters indicated that Tobin had successfully completed the probationary period, selling the required 30 new policies. She indicated, however, that she would continue to monitor his sales and that he would be required to meet the quota of 78 new policies for each 13-week quarter and 276 policies for the period February 1, 1999 to the end of 1999.
In October 2000, Schwitters again issued Tobin a warning. In a letter dated October 1, 2000, Schwitters wrote that since May 1999, his performance had "deteriorated again." She further stated:
In fact, over the past several months I have had frequent discussions with you about your performance, in particular, your poor sales results and your lack of appropriate participation in sales initiatives.
Schwitters stated that Tobin would again face probation if his performance did not improve during the warning period.
On November 27, 2000, Schwitters placed Tobin on probation for the second time. She stated that Tobin had sold 24 new policies for the six-week warning period, six below the minimum requirement. She further stated that he would be expected to sell at least 30 new policies for the probationary period running from November 27, 2000 to January 5, 2001 and that if he did not do so, he might be terminated.
In an email sent on December 20, 2000, Schwitters notified Tobin that as of December 15, 2000, he had sold only nine new policies since the start of his probationary period. She reiterated that Tobin was required to sell a minimum of 30 during the period ending January 5, 2001 and that if he failed to do so "additional job action will result up to and including termination." Tobin failed to sell the required 30 policies, and he was terminated at a meeting on January 10, 2001.
2. "Mass Marketing" Accounts
A significant area of dispute in this case concerns the assignment of "mass marketing" or "mass merchandising" accounts within the Liberty Mutual sales force. These accounts are group insurance discount programs offered to businesses and associations. Individuals who purchase insurance policies through a mass marketing account receive benefits such as discounts on policy premiums, automatic deduction of premium payments from paychecks, and a waiver of finance and service charges. Mass marketing accounts allow sales representatives access to employees of participating employers in workplace settings and thereby afford sales representatives exposure to a large volume of potential clients.
It is essentially undisputed that mass marketing accounts are desirable to the sales representatives because they provide a good source for potential sales. It is also undisputed that Tobin was never assigned a mass marketing account and that at least on one occasion, he requested that he be assigned such accounts. However, the parties dispute whether assigning Tobin a mass marketing account would have violated Liberty Mutual's policy for assigning such accounts. Liberty Mutual contends that the mass marketing accounts were distributed on the basis of merit — given to those sales representatives who most actively took initiative to land new mass marketing accounts — as well as according to workload. Tobin, however, contends that at least on one occasion Schwitters violated this policy by assigning a mass marketing account to Herb Schneiderman, a sales representative with a substandard sales performance, and that Tobin could have likewise been assigned such accounts despite his below-quota sales.
Liberty Mutual responds that Schwitter's assignments were not inconsistent because, unlike Tobin, Schneiderman took at least some initiative to open new mass marketing accounts. Liberty further argues that, in any event, there is no evidence that Tobin would have been able to handle adequately such an account were it assigned to him or that he would have been able to meet the quotas, even with mass marketing accounts.
II. DISCUSSION
A. 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). If the party seeking summary judgment can make a preliminary showing that no genuine issue of material fact exists, the nonmovant must point to specific facts demonstrating that there is, indeed, a trialworthy issue. Calero-Cerezo v. United States Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
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 for an issue to be "genuine," the evidence relevant to the issue, viewed in the light most flattering to the non-moving party, must be "sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995). "[C]onclusory allegations, improbable inferences, and unsupported speculation," are insufficient to establish a genuine dispute of fact. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). Rather, "[t]he evidence illustrating the factual controversy . . . must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve." Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
B. Age Discrimination/Retaliation (Counts I III) and Wrongful Termination (Count VII)
In his opposition to Liberty Mutual's motion for summary judgment, Tobin does not directly address his age discrimination/retaliation or wrongful termination claims. The mere allegations or denials contained in pleadings are by themselves insufficient to overcome a motion for summary judgment. Instead, the nonmoving party must present specific evidence to demonstrate the existence of each element of its case on which it will bear the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Thus, Tobin's failure to even mention — much less adequately address — his age discrimination and wrongful termination claims is grounds for dismissal of those claims in the face of the facts presented by Liberty Mutual in its motion for summary judgment. I will therefore grant Liberty Mutual's motion on Tobin's age discrimination and wrongful termination claims.
C. Disability Discrimination (Counts IV, V, VI)
In Counts IV and V, Tobin alleges "Handicap Discrimination And/Or Retaliation" under the Massachusetts anti-discrimination statute, Mass. Gen. Laws. ch. 151B ("Chapter 151B"), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101- 12213. He separately alleges, in Count VI, a claim for failure to accommodate under Chapter 151B. While Tobin does not clearly delineate the separate bases for these various claims in either his complaint or his opposition brief, I will, for analytical purposes, group the allegations and evidence into three distinct categories, each under both the ADA and Chapter 151B: claims for discriminatory discharge, failure to accommodate, and retaliation. I discuss these claims in turn.
1. Discriminatory Discharge Claim
Section 12112 of the ADA states that
[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112. To prevail on a discriminatory discharge claim under § 12112 and its Massachusetts analogue, Chapter 151B, Tobin must demonstrate (1) that he suffers from a disability or handicap, as defined by the ADA and Chapter 151B, (2) that he was nonetheless able to perform the essential functions of his job as sale representative, either with or without reasonable accommodation, and (3) that Liberty Mutual fired him because of, in whole or in part, his protected disability. See Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002).
The analogous provision in the Rehabilitation Act provides: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.29 U.S.C. § 794(a).
Chapter 151B makes it unlawful
[f]or any employer, personally or through an agent, to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business. For purposes of this subsection, the word employer shall include an agency which employs individuals directly for the purpose of furnishing part-time or temporary help to others.
Mass. Gen. Laws ch. 151B § 4.
The parties agree that state and federal disability law are in accord, at least for present purposes. Thus, for ease of discussion, I follow the lead of the parties in framing the discussion primarily in terms of the ADA and federal case law.
Ordinarily in discriminatory discharge cases under the ADA, courts analyze motions for summary judgment according to the well-established "pretext" framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). See Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 264.
The alternative analytical framework for discrimination cases involves the so-called "mixed-motive" analysis established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Prior to the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), mixed-motive analysis was appropriate only if the plaintiff could demonstrate some direct evidence of discriminatory intent — as opposed to indirect, circumstantial evidence, which warranted a pretext analysis. Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 64 (1st Cir. 2002). In Desert Palace, however, the Court held that direct evidence of discrimination is not required to establish liability in a mixed-motive Title VII case, id. at 101-02, and thus, it is presently unclear what should determine whether pretext or mixed-motive analysis should apply in a given case — or whether pretext analysis has even survived the decision. The response by the lower courts in this regard have not been uniform. See generally Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1192-95 (N.D. Iowa 2003) (summarizing responses of lower courts to Desert Palace). While the First Circuit has not resolved the issue, it has hinted that pretext is still a viable mode of analysis, see Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 n. 3 (1st Cir. 2003), and it has itself applied pretext analysis in several cases since Desert Palace. See Calero-Cerezo v. United States Dep't of Justice, 355 F.3d 6, 26 (1st Cir. 2004); Candelario-Ramos v. Baxter Healthcare Corp. of P.R., Inc., 360 F.3d 53, 56-57 (1st Cir. 2004); Rathbun v. Autozone, Inc., 361 F.3d 62, 71-72 (1st Cir. 2004). In any event, neither party here disputes that the pretext model is the proper mode of analysis for this case, and thus, I need not pursue the matter further. See Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003) (noting that plaintiff never suggested in district court that he was presenting mixed-motive case).
The McDonnell Douglas-Burdine framework entails a three-step analysis consisting of a shifting allocation of evidentiary burdens. Applied to the ADA, Tobin has the initial burden of establishing a prima facie case by proving by a preponderance of the evidence that he is a member of a protected group who has been denied an employment opportunity for which he was "otherwise qualified." Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir. 1998). If Tobin can establish a prima facie case, a burden of production shifts to the Liberty Mutual to "articulat[e] a legitimate, nondiscriminatory reason" for the adverse employment action — here, termination. Id. Finally, if Liberty Mutual offers such a reason, the burden shifts back to Tobin who bears the ultimate burden of proof of showing that Liberty Mutual's proffered reason is mere "pretext" for unlawful discrimination. Id.
The formal elements of a prima facie case are that the plaintiff (1) has a disability within the meaning of the ADA; (2) is qualified to perform the essential functions of the job, with or without reasonable accommodations; (3) was subject to an adverse employment action by a company subject to the Act; (4) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (5) suffered damages as a result. See Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996).
Liberty Mutual does not dispute — at least for purposes of its summary judgment motion — that Tobin is "disabled" as defined by the ADA. Instead Liberty Mutual argues that summary judgment is warranted as to Tobin's disability discrimination claims because Tobin has not demonstrated that he was a "qualified individual" under § 12112 and Chapter 151B at the time of his discharge. In other words, Liberty Mutual contends that Tobin is not "otherwise qualified" because he has failed to demonstrate that he was able to perform the essential functions of his job, with or without accommodation. Liberty Mutual argues that Tobin's documented failure, over the course of a number of years prior to his termination, to meet Liberty Mutual's minimum requirements for sales of new insurance policies demonstrates his inability to perform the essential functions of his job as a sales representatives.
The ADA defines the term "disability" as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2).
Liberty Mutual additionally argues that Tobin's application for social security in which he claimed to be totally disabled constitutes an admission that he was not a qualified individual under the ADA. I disagree. As an initial matter, whether he claimed to be disabled for the purposes of receiving social security is irrelevant to the issue of whether he was in fact able to perform the essential duties of a sales representative at Liberty Mutual. Moreover, he applied for social security in October 1998 while on his second leave from Liberty Mutual. Thus, even were I to take his application as an admission that he was disabled at that time, it is not at all inconsistent with Tobin's contention that later, after returning from his second leave, he was a "qualified individual" as defined by the ADA.
Liberty Mutual, however, ignores that whether one is "qualified" under the ADA depends on whether an individual was able to perform the essential functions of a job with or without reasonable accommodation. Here, while Tobin cannot seriously dispute that new policy sales constituted an essential part of his job as a sale representative or that he failed to meet Liberty Mutual's quotas for new sales for years prior to his termination, he alleges that he would have been able meet the quotas had he received reasonable accommodation. Thus, whether Tobin should be considered a "qualified individual" under the ADA and Chapter 151B turns on whether Liberty Mutual denied him a reasonable accommodation that would have allowed him to perform adequately his job.
While I discuss the reasonable accommodation issue in the context of Tobin's failure to accommodate claim, infra, I need not reach it with respect to the discriminatory discharge claim because even assuming that Tobin is a "qualified individual" as defined by the ADA, I find that he has not adduced sufficient evidence that Liberty Mutual's proffered reason for firing him — inadequate new insurance policy sales — is pretextual.
Liberty Mutual contends that it fired Tobin because beginning in 1992, his new policy sales consistently fell below established quotas for the company. Indeed, Tobin's inability to meet the quotas is well-documented in both his yearly performance appraisals and communications among his supervisors at Liberty Mutual, and it was the stated reason for the series of probationary periods leading ultimately to his termination. In fact, Tobin himself stated in his deposition that he does not dispute that the "real reason" for his discharge was lack of sales.
Instead, Tobin alleges that his supervisors, including Robert Nadeau, Kevin Vance, and Manina Schwitters conspired against him "by establishing a paper trail to justify" his discharge. In essence, Tobin argues that Liberty Mutual falsely created the impression that it was adequately accommodating Tobin's disability when in fact it was trying to fire him all along. Tobin argues that Liberty Mutual's denial of accommodations for his disability demonstrates that its proffered reason of poor performance was mere pretext for his termination.
Tobin conflates the discriminatory discharge and failure to accommodate claims. Even if taken as true, Tobin's contentions concerning a conspiracy on the part of Liberty Mutual's management to deprive him of reasonable accommodations — while perhaps grounds for some other legal cause of action — do not demonstrate pretext with regard to his discriminatory discharge claim. Tobin has not adduced any evidence to controvert Liberty Mutual's contention that it fired him for poor performance in sales. Whether Tobin could have raised his performance to acceptable levels had Liberty Mutual given him the accommodations he requested and Liberty Mutual's motivations for allegedly refusing the accommodations he requested are irrelevant to the issue of pretext. Showing pretext would require demonstrating that Liberty Mutual's proffered reason of poor performance was not the real reason for Tobin's termination — for example, by showing that it is "unworthy of credence." See Che v. Mass. Bay Trans. Auth., 342 F.3d 31, 39 (1st Cir. 2003) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
Tobin in effect argues that a number of intra-company communications and various company documents demonstrate that several of his supervisors at Liberty Mutual conspired to deny him reasonable accommodations for his disability and that this conspiracy in turn demonstrates pretext. As an initial matter, I disagree with Tobin's characterization of the documents and communications. Rather than indicating a discriminatory motive, they appear to be an attempt by Tobin's supervisors to ensure that firing Tobin for his poor performance was warranted and would not have negative legal ramifications given his disability. But even accepting Tobin's characterization of the evidence, whether Tobin's supervisors conspired against him to cause or ensure poor performance is irrelevant to whether Liberty Mutual in fact fired him for poor performance.
Tobin has not presented any evidence to put in dispute the fact that he consistently failed to perform adequately according to objective criteria and that such performance was the reason for Tobin's termination at Liberty Mutual. Accordingly, I find that Tobin has not sufficiently demonstrated that Liberty Mutual's stated reason for his termination was pretextual, and as a result, I grant summary judgment for Liberty Mutual on the discriminatory discharge claim.
2. Failure to Accommodate
Under the ADA, the term "discriminate" does not only refer to adverse employment actions such as the termination of an employee. Rather, § 12112 states that the term "discriminate" includes
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.42 U.S.C. § 12112(5)(A). Section 12111 in turn defines "reasonable accommodation" to include:
Thus, while Tobin does not allege a separate failure to accommodate claim under the ADA, as he does under Chapter 151B, Count V, which alleges discrimination under the ADA, encompasses such a claim.
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.42 U.S.C. § 12111.
Unlike with most other forms of "discrimination," prevailing on a failure to accommodate claim does not require a showing of discriminatory animus, whether directly, through the McDonnell Douglas burden-shifting framework, or otherwise. See Higgins, 194 F.3d at 264. "Rather, any failure to provide reasonable accommodations for a disability is necessarily 'because of a disability' — the accommodations are only deemed reasonable (and, thus, required) if they are needed because of the disability — and no proof of a particularized discriminatory animus is exigible."Id. Accordingly, to survive a motion for summary judgment on a failure-to-accommodate claim, a plaintiff must satisfy the following "undemanding" requirements:
he must furnish significantly probative evidence that he is a qualified individual with a disability within the meaning of the applicable statute; that he works (or worked) for an employer whom the ADA covers; that the employer, despite knowing of the employee's physical or mental limitations, did not reasonably accommodate those limitations; and that the employer's failure to do so affected the terms, conditions, or privileges of the plaintiff's employment.Id.
Here, Tobin contends that at several different times he requested two accommodations from his supervisors at Liberty Mutual: that he be assigned "mass marketing" accounts and that he receive increased clerical assistance. Tobin has stated in his deposition and affidavit that had Liberty Mutual provided these two accommodations he would have been able to meet Liberty Mutual's sales quotas for new policies. He further argues that Liberty Mutual failed its obligation, imposed by the ADA, to participate in an interactive process with him to identify other appropriate accommodations. I consider the two requests for accommodation in turn before addressing the interactive process issue.
a. Mass Marketing Accounts
Liberty Mutual argues that the assignment of such accounts was not a reasonable accommodation because such accounts were ordinarily distributed according to merit. Thus, Liberty Mutual argues that assigning Tobin a mass marketing account would not have been consistent with its criteria for assigning the accounts given Tobin's failure to show initiative to open new mass marketing accounts. In other words, Liberty Mutual argues that assigning Tobin a mass marketing account would have been unfair.
While the evidence demonstrates that, as a general matter, mass marketing accounts were distributed to sales representatives who were actively "prospecting" for such accounts and that Tobin repeatedly failed to do any such prospecting, I cannot conclude as a matter of law that assigning mass marketing accounts to Tobin would have been an unreasonable accommodation simply because it would have been unfair. As an initial matter, Tobin disputes that the mass marketing accounts were assigned solely according to merit, pointing in particular to evidence that Schwitters assigned such an account to Schneiderman, another sales representative with poor sales numbers. Indeed, the evidence indicates that Schwitters used a number of subjective factors in assigning mass marketing accounts that had nothing to do with "prospecting."
Moreover, even if true, Liberty Mutual's contention that assigning Tobin a mass marketing account would have been inconsistent with Schwitters's assigning criteria is not dispositive as to the reasonableness of such an assignment as an accommodation for Tobin's disability. That assigning Tobin mass marketing accounts would have been, from Liberty Mutual's perspective, undesirable, unfair, or unwarranted is not enough for the conclusion, as a matter of law, that such an assignment was unreasonable. Further, Liberty Mutual has made no showing that assigning Tobin a mass marketing account would not have been, as a practical matter, possible — or in ADA terms that it would have created an "undue hardship."
Liberty Mutual's contentions that Tobin has not shown that he would have been able adequately to handle such accounts or that he would have been able to meet the quotas had they been assigned to him present closer questions for the purposes of the present motion. These are arguably issues for a jury. Tobin has adduced some evidence that the mass marketing accounts would have improved his sales. The evidence generally indicates that several of Tobin's fellow sales representatives derived a substantial increase in the number of sales from the accounts. While the evidence certainly does not conclusively demonstrate that Tobin would have been able to satisfy the sales quotas set by Liberty Mutual had he been assigned mass marketing accounts, he has arguably put the issue in dispute sufficiently to survive summary judgment.
Nevertheless, while a number of disputed facts remain as to the feasibility or effectiveness of the assignment of mass marketing accounts as an accommodation, I find that summary judgment is warranted because the assignment of mass marketing accounts is not tied to Tobin's disability. In other words, even assuming that Liberty Mutual could easily have assigned Tobin mass marketing accounts and that with such accounts he would have been able to meet the sales requirements, summary judgment is appropriate because Tobin has not demonstrated that he was entitled to the accommodations in the first instance. Tobin has introduced no evidence as to how the assignment of mass marketing accounts would have addressed the particular deficiencies created by his particular disability. Indeed, as noted above, more mass marketing accounts would likely have led to increased sales forany sale representative, whether disabled or not.
To be sure, Tobin's disability is grounds for accommodation under the ADA; it does not, however, entitle him to any and every change in work conditions that would improve his performance. Rather, the accommodation must be for the disability, and Tobin has nowhere shown that assignment of mass marketing accounts were reasonable accommodations for his particular disability. Assignment of mass marketing accounts would, therefore, have been functionally equivalent to altering the job performance requirements and quotas, which the ADA does not require of employers. See Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995).
b. Clerical Assistance
Tobin claims that he did not receive adequate clerical assistance to allow him sufficient time to meet his sales quotas. In effect, Tobin argues that because he had to spend a substantial amount of time servicing his existing accounts, he could not adequately prospect for new accounts. This claim is entirely unsupported by the evidence. Indeed, the record is replete with evidence that Tobin's supervisors consistently told him that he spent too much time servicing his own accounts and that he should send such matters to the service department. Other than his conclusory statements, Tobin has not provided any evidence that Liberty Mutual's service department was inadequate to deal with service matters arising from his policies. Tobin was assigned three different assistants to help him with clerical matters. The mere fact that other sales representatives may have had more assistance or that the assistants assigned to him had duties other than exclusively to aid him is not sufficient to show that an increase in clerical assistance was a reasonable accommodation for his disability.
c. Interactive Process
Finally, I find that Tobin has not adduced sufficient evidence for his contention that Liberty Mutual failed to "engage[d] in an interactive process with [Tobin] to determine an effective reasonable accommodation," as required by the ADA. See Katz v. City Metal Co., Inc., 87 F.3d 26, 33 (1st Cir. 1996). The record is filled with evidence of accommodations Liberty Mutual made for Tobin, including the provision of a nurse, computer trainings, and numerous meetings to help Tobin create the skills and plans to increase his sales effectiveness. While the provision of some accommodations is not entirely dispositive, it is certainly relevant to whether Liberty Mutual failed to do what is required by the ADA. See Higgins, 194 F.3d at 265 ("Although an employer's provision of a specific accommodation may provide relevant circumstantial evidence in respect to the reasonableness vel non of a different accommodation, that accommodation will not always be enough to satisfy the employer's duty under the law." (citation omitted)). Tobin has not provided sufficient evidence that Liberty Mutual did not adequately engage him in discussions to determine what accommodations, if any, would address his disability.
d. Conclusion
In sum, I find that Tobin has not shown that he was entitled to the accommodations Tobin requested under the ADA. Additionally, he has not provided any evidence that Liberty Mutual did not discharge its duty under the ADA to identify appropriate accommodations for his disability. Accordingly, I grant Liberty Mutual's motion for summary judgment as to the failure to accommodate claim.
3. Retaliation
In his opposition brief, Tobin offers two potential bases for his retaliation claims: The first is a comment by the regional sales manager that Tobin was "high maintenance." The second is an allegation that upon informing Schwitters that he intended to take disability leave, she discouraged him from doing so. These allegations, even if accepted as true, are insufficient to support a claim of retaliation. The comment that he was "high maintenance" is completely untied to any action that could even potentially be construed as retaliation. Moreover, it is unclear how discouraging Tobin from taking disability leave could be retaliation for voicing an intention to take leave. To the extent Tobin means to imply his termination was retaliation for indicating an intent to take disability leave, that contention is equally meritless. The mere fact that Schwitters telephoned the human resources department to inform it that Tobin intended to take a leave does not sufficiently support Tobin's allegation that his subsequent termination constituted any sort of retaliation. This is especially so given, as discussed above, the evidentiary support for Liberty Mutual contention that Tobin was fired because of his poor sales performance. Thus, I grant Liberty Mutual's motion for summary judgment as to the retaliation claim.
D. Breach of Covenant of Good Faith and Fair Dealing (Count II)
In his complaint, Tobin alleges that his termination by Liberty Mutual constituted a breach of covenant of good faith and fair dealing because it was without good cause. He alleges that over the course of his employment with Liberty Mutual, he established a substantial book of business and that Liberty Mutual fired him to avoid its obligation to compensate him for the renewal of the policies in that book of business.
These claims are entirely unsupported by any record evidence. As noted above, Tobin has not adduced sufficient evidence to discredit Liberty Mutual's contention that it fired him for deficiency in policy sales, and in any event, there is no evidence whatsoever that Liberty Mutual terminated him to avoid any existing compensation obligations. In his opposition brief, Tobin points out that he performed adequately in areas other than new sales, and he argues that his performance was generally acceptable, as evidenced by the amount of bonuses Liberty Mutual paid him over the years. I find this insufficient to withstand Liberty Mutual's motion for summary judgment, and I therefore dismiss the claims in Count II.
III. CONCLUSION
For the reasons set forth more fully above, Liberty Mutual's motion for summary judgment is GRANTED as to all claims.