August 7, 2001
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This action presents claims of employment discrimination in connection with the treatment of pregnant members of the Department of State Police ("Department") during a several month period in 1997. Named as defendants in addition to the Department are its medical contractor, Health Services, and that entity's medical director, Dr. Thomas Winters, who served as State Police Surgeon. Presently before the Court are motions of all defendants for summary judgment on all counts of the complaint. After hearing, and after review of all materials submitted in connection with the present motions, including post-argument submissions of the plaintiffs and of Health Resources and Dr. Winters, the Court concludes, for the reasons that will be explained, that the motion of the Department must be denied in part and allowed in part, and that the motion of Health Resources and Dr. Winters must be allowed.
From the evidence offered, considered in the light most favorable to the plaintiffs, a jury could find the following facts. For several months in 1997, beginning early in the year and ending in October, the Department of State Police implemented a policy regarding pregnant troopers. Under that policy, any trooper known to be pregnant was to be sent for evaluation to Health Resources. Upon such evaluation, the Health Resources physician was required to express his or her opinion of the category of duty the "patient is able to perform," by checking a box on a form. The choices provided on the form were three: "Full Duty," "Temporary Modified Duty" (known as "TMD"), and "No Duty."
The evidence indicates that the Department was in the process of developing its policy, and that various draft versions were under discussion, but that it nevertheless put in practice at that time, and applied to the plaintiffs in this case, a version based on what was then still a draft. In October of 1997, the Department abandoned the policy in issue here and adopted a substantially different policy, which the plaintiffs do not challenge.
The Department instructed Health Resources to make that determination by reference to a document, provided to Health Resources by the Department, identified as a list of tasks that every trooper was required to be able to perform. The Department instructed the Health Resources physicians to determine whether the trooper's condition constituted a medical contraindication to performance of any of the items on the task list, and if so, to check the box for Temporary Modified Duty. The Department then placed the trooper on the duty status the physician indicated. The policy, as Health Resources understood it through communications from the Department, was that a pregnant trooper was to be evaluated monthly until she was placed on TMD.
Apparently various versions of the task list existed, with different versions used at different times during the months in which these plaintiffs were evaluated.
Some of the Health Resources physicians, in their deposition testimony, spoke of having "placed" individuals on a particular duty status. The language of the form, however, expresses the physician's determination as a medical opinion of the patient's ability. In that respect the form is consistent with the role of Health Resources, and of Dr. Winters as State Police Surgeon, as described in the contract documents between Health Resources and the Department. In the context of the contractual relationship and the language of the form, the witnesses' phrasing does not give rise to a genuine dispute of fact as to the physicians' role; it is apparent that the physicians did not actually place anyone on any duty status, but rather reported their medical opinions to the Department, which then effectuated placement on the duty status indicated.
Temporary Modified Duty carried substantial restrictions on a trooper's activities, benefits, and opportunities. Some of the restrictions had significant economic consequences; among these were prohibitions on working overtime or details, and on operating a cruiser. Other restrictions carried non-economic but symbolic and functional implications; among these were prohibitions on wearing a uniform, dealing with the public, and appearing in court. No Duty was just that; the trooper was not permitted to work at all, and was not paid.
The task list that the Department provided to Health Resources, according to the Department's answer to an interrogatory posed by the plaintiffs, had been developed by the Department, in consultation with expert consultants, for purposes related to the defense of earlier litigation regarding alleged age discrimination. The Department never formally adopted the task list, never distributed it to troopers, never bargained with the union about it, never developed any test to determine ability to perform the tasks on it, and never subjected any troopers other than these plaintiffs to medical evaluations based on it. Although the Department required troopers to submit to regular physical examinations in connection with re-enlistment, it did not require those examinations to include any determination of ability to perform the listed tasks. Among the tasks listed were some that few if any troopers were ever required to perform.
Although Health Resources' contractual role included advising the Department on health policies, neither Health Resources nor Dr. Winters had any role in developing the policy applied to these plaintiffs, or in developing the task list. Dr. Winters held the opinion that every pregnancy, at some stage, would produce physiological changes such that the pregnancy would constitute a medical contraindication to some of the items on the task list. His opinion was that the timing of such changes was subject to individual variation, but that they would usually occur by the third trimester. Beyond that general opinion, the evidence does not identify any criteria by which Dr. Winters or the other Health Resources physicians would determine whether an individual's pregnancy was a contraindication to performance of any particular task. At a time that apparently coincided approximately with the end of the period when the Department applied the policy in issue here, Dr. Winters consulted with other physicians who had greater expertise than he in obstetrics in an effort to identify criteria by which to determine when an individual's pregnancy had reached that stage. The Department's policy change apparently preempted any changes in Health Resources' practice that might have resulted from that effort.
Dr. Winters and the other Health Resources physicians specialize in occupational health. None has any specialized training in obstetrics.
Each of the five plaintiffs in this case was pregnant during the period of the policy in issue. Each held a duty assignment involving administrative, technical, or investigatory tasks. Each plaintiff's duty assignment involved wearing plainclothes and driving an unmarked cruiser, and did not include patrol duties, traffic stops, or responding to routine calls. Each plaintiff had the benefit of the use of her cruiser for travel to and from work. Each remained fully able to perform all of her regular duties, without medical risk, throughout her pregnancy.
Four of the plaintiffs were sent to Health Resources by their superiors for evaluation upon disclosing their pregnancies. The fifth did not disclose her pregnancy; a Health Resources physician discovered it in the course of a routine re-enlistment physical during her eighth month. In each case, the Health Resources physician determined that the pregnancy was a contraindication to performance of at least some of the items on the task list. The evaluations resulting in these recommendations did not include physical examinations; rather, the physicians determined the stage of the pregnancy, based on information elicited in interviews, the physician's observations, and in some cases on information obtained from the trooper's personal physician. The Health Resources physicians then formulated their opinions as to medical contraindication on that basis.
As to four of the plaintiffs, the Health Resources physician returned the form marked TMD, and the Department placed the Trooper on that status. Each of those four continued to perform her regularly assigned duty, but was deprived of the use of her cruiser, was prohibited from working overtime, and was subject to the other restrictions attendant to TMD. One was also required to change her shift from evening to daytime. Of these four, one remained on TMD until her delivery and maternity leave. The other three were returned to full duty, while still pregnant, upon the Department's change of policy in October of 1997.
The plaintiffs offer evidence suggesting that some of them did in fact work overtime, in order to fulfill the requirements of their assigned duty, but received no pay for that time.
The fifth plaintiff, Trooper Butner, informed Dr. Winters, during an evaluation in the seventh month of her pregnancy, that she refused to accept TMD. Accordingly, he returned the form marked "No Duty," after having informed her that her refusal to accept TMD would have that result. The Department placed Butner on that status until two days before her delivery, when it returned her to full duty status upon its change of policy. Each of the five plaintiffs experienced economic losses and emotional distress as a result of the change of her duty status pursuant to the Department's policy.
With respect to some of the plaintiffs, Health Resources physicians initially returned the forms marked "limited duty," "light Duty," "full duty with accommodation," or "Full Duty," based on the physicians' opinions, in some cases confirmed by the trooper's personal physicians, that no contraindication existed to the trooper's performance of the duties to which she was regularly assigned. Upon receiving those forms, Department personnel contacted Health Resources and demanded revision, insisting that the physician choose one of the three options provided, based on whether the trooper's condition was a contraindication to her performance of any of the items on the task list. The physicians acquiesced in those demands.
After filing charges of discrimination with the EEOC against the Department in January of 1998, the plaintiffs filed this action in April of 1998. The complaint asserts four counts: discrimination on the basis of sex and pregnancy in violation of G. L. c. 151B; intentional infliction of emotional distress; conspiracy to deprive the plaintiffs of equal protection of the laws as guaranteed by the United States Constitution in violation of 42 U.S.C. § 1985; and violation of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I. The phrasing of the complaint leaves some uncertainty as to which claims are asserted against which defendants. With the benefit of clarifications provided at oral argument on the present motions, the Court understands that the c. 151B claim is directed against the Department only, and is the only claim against the Department, and that the other three claims are directed against Health Resources and Dr. Winters.
As to plaintiff Watts, whose TMD status began in April of 1997 and ended with the beginning of her maternity leave in May of 1997, the timing of her administrative charge gives rise to the statute of limitations issue discussed infra.
The Department's motion for summary judgment addresses the claims under the state and federal civil rights statutes, construing the complaint as asserting those claims against the Department as well as the other defendants. Based on plaintiffs' counsel's clarification at argument on these motions, the Court does not address that aspect of the Department's motion. The Department's motion also addresses a purported claim of retaliation based on a hostile work environment, but the complaint does not appear to assert such a claim, and the plaintiffs' opposition does not contend that it does. Accordingly the Court does not address any such claim.
This Court grants summary judgment where no genuine issues of material fact exist and the summary judgment record entitles the moving party to judgment as a matter of law. Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 281 (1997); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine dispute of material fact on every relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party has no reasonable expectation of proving an essential element of the claim at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond with specific facts establishing the existence of a genuine issue of material fact. Pederson, 404 Mass. at 17. "To avoid summary judgment, an opposing party may not rely upon his pleadings or bald conclusions but must set forth specific facts showing that there is a genuine issue for trial." United States Trust Co. of New York v. Herriott, 10 Mass. App. Ct. 313, 318 (1980); see also Trustees of Tufts College v. Parlane Sportswear Co., Inc., 4 Mass. App. Ct. 783, 784 (1976).
1. The Department of State Police .
The plaintiffs' claim against the Department is that it discriminated against them in the terms and conditions of their employment based on their pregnancies. Discrimination based on pregnancy is sex discrimination in violation of G. L. c. 151B. See White v. University of Massachusetts at Boston, 410 Mass. 553, 558 (1991); School Committee of Brockton v. MCAD, 377 Mass. 392, 398-399 (1979); Massachusetts Electric Company v. MCAD, 375 Mass. 160, 167-168 (1978). In order to prove this claim, the plaintiffs must present evidence from which a jury could find (1) that they were pregnant; (2) that they were subjected to some adverse employment action; (3) that the Department held a discriminatory animus toward them based on their pregnancy; and (4) that the discriminatory animus caused the Department's decision to take the adverse action. See Lipchitz v. Raytheon Company, 434 Mass. 493, 502 (2001). The latter two elements may be proven either by direct evidence or by evidence sufficient to support a finding that the reason given by the employer for its action is false, if the jury infers from the falsehood that the real reason was discrimination. See id.; Abramian v. President Fellows of Harvard College, 432 Mass. 107, 117-118 (2000).
The first element, that the plaintiffs were pregnant, is undisputed. As to the second, although the Department characterizes TMD as a voluntary alternative to No Duty status, it is undisputed that the Department involuntarily removed each of the plaintiffs from full duty status, thereby causing her economic and non-economic losses. The dispute here relates to the second and third elements.
The Department contends that it took the challenged action not because of the plaintiffs' pregnancy, but because of the medical opinions given to the Department by Health Resources that the plaintiffs could not perform all of the tasks that the Department deemed essential. In this regard, the Department invokes G. L. c. 22C, § 10, which requires that all members of the Department "shall be subject to all duties of the uniformed members of the state police, including, but not limited to, emergency duties." Based on this legislative mandate, the Department contends that it was required to remove from regular duty any member who could not perform "all duties" of the state police. Under G. L. c. 22C, the argument proceeds, the Colonel of the State Police, as the executive and administrative head of the Department, is empowered to set standards of fitness for duty, including identifying those tasks that all members of the Department must be able to perform. On this basis, the Department contends that it has provided a legitimate, non-discriminatory reason for its actions toward the plaintiffs, and that the plaintiffs lack evidence to support a finding that the reason offered is a pretext for discrimination on the basis of pregnancy.
The argument fails, because the record includes evidence from which a jury could conclude that the reason offered is false. Contrary to the Department's assertions, the evidence offered, considered in the light most favorable to the plaintiffs, indicates that the Colonel never established any standard of fitness to perform "all duties" of a member of the Department, never adopted any list of tasks essential for all troopers to be able to perform, and never applied any such standard to the members of the Department generally. Rather, from the evidence offered, a jury could find that the Department instructed Health Resources to evaluate pregnant troopers based on a standard never applied to any other troopers. On that basis, a jury could conclude that the ability to perform all items on the task list was not necessary to meet the requirement of c. 22C, § 10, and that the Department's assertion to the contrary is false. That conclusion, in the factual context presented here, would support an inference that the real reason for the Department's actions toward these plaintiffs was their pregnancy.
The record also provides direct evidence of discriminatory animus, in the form of statements of various Department personnel, up to and including the Colonel.
The Department also seeks to dismiss Trooper Watts' claim on statute of limitations grounds, based on the timing of her administrative charge, some eight months after her TMD began, and seven months after her TMD ended at the time of her maternity leave. General Laws c. 151B, § 5, requires, as a prerequisite to the filing of suit for an alleged violation, that a plaintiff file a charge within six months of the alleged act of discrimination. Acknowledging that Watts failed to file her charge within six months of the Department's application of its policy to her, the plaintiffs seek to avoid dismissal of Watts' claim based on the continuing violation doctrine, as recognized in Lynn Teachers Union v. MCAD, 406 Mass. 515, 522-523 (1990).
The record does not provide the precise date of Watts' maternity leave, but the parties apparently agree that it began more than six months prior to the date she filed her charge.
In Lynn Teachers Union, the complainants alleged discrimination by their union, based on the union's assignment of seniority credit in a manner that reflected interruptions in the complainants' careers due to resignations forced upon them in connection with their pregnancies nearly a decade earlier. The complainants' seniority status had continuing impact on them, including subjecting them to layoffs. Thus, as the Court observed, "the union's refusal to credit the complainants for their preresignation seniority breathe[d] new life into a concededly illegal policy." Id. at 523.
In this case, as to Trooper Watts, application of the challenged policy occurred, and had its adverse impact, only in April and May of 1997. Whatever harm Watts experienced from being placed on TMD occurred during those months only; thereafter, she was on voluntary maternity leave and then on full duty. Although the policy remained in existence until October, nothing in the record presented indicates that it had any continuing effect on her comparable to the continuing effect recognized in Lynn Teachers Union. It follows that Watts' cause of action accrued not later than the end of the time she spent on TMD, in May of 1997. Her failure to file her charge within six months of that time precludes her claim, and the complaint must be dismissed as to her.
2. Health Resources and Dr. Winters .
Plaintiffs assert three claims against Health Resources and Dr. Winters: intentional infliction of emotional distress; conspiracy to deprive them of equal protection, in violation of 42 U.S.C. § 1985; and violation of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I. These defendants move for summary judgment on all three claims.
The plaintiffs apparently did not assert a charge against these defendants of aiding and abetting a violation of G. L. c. 151B, or of interfering with rights protected under c. 151B by means of threats, intimidation or coercion, pursuant to G. L. c. 151B, § 5. Their failure to do so may preclude any common law or non-federal statutory claims against these defendants for which relief under that provision would have been available. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994).
The claim of intentional infliction of emotional distress, as presented in the plaintiffs' complaint and elucidated in their opposition to the present motion, is apparently based on Dr. Winters' conduct, with Health Resources alleged to be vicariously liable for that conduct as his employer. To recover on a claim for intentional infliction of emotional distress, a plaintiff must show that the defendant's conduct was "`extreme and outrageous' . . . `beyond all possible bounds of decency,' and `utterly intolerable in a civilized community.'" Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976), quoting Restatement (Second) of Torts § 46, comment d (1965). Nothing in the evidence offered here would support such a finding. At most, Dr. Winters assisted the Department in implementing a discriminatory policy, by acquiescing in the Department's request that he and his fellow physicians express medical opinions based on a standard that he knew, or should have known, was being applied only to pregnant troopers. Such conduct, while it may have contributed to violation of the plaintiffs' statutory rights under c. 151B, bears no resemblance to the kinds of conduct that have been held to meet the standard articulated in Agis. Compare, e.g., Bowman v. Heller, 420 Mass. 517, 522, n. 6 (1995) (in context of contested union election, fellow employee created and distributed photographs of the plaintiff's face superimposed on pornographic images). Dr. Winters and Health Resource are entitled to judgment as a matter of law on this claim.
To prevail on their claim under 42 U.S.C. § 1985, the plaintiffs must establish, among other elements, that these defendants engaged in a conspiracy for the predominant purpose of depriving the plaintiffs of their federally protected rights. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993); Griffin v. Breckinridge, 403 U.S. 88, 102 (1971). Further, the plaintiffs must show that the defendants' motivation to do so arose from a class-based, discriminatory animus. Id. The evidence offered against these defendants does not meet that test. The only purpose on the part of these defendants that appears in the evidence was to fulfill their contract with the Department, by providing the evaluations and medical opinions requested, in accord with the instructions given by the Department. The evidence offered, considered in the light most favorable to the plaintiffs, supports their contention that the Department's requests and instructions served to further a discriminatory policy. But the evidence offered would not support a finding that these defendants shared any purpose to further such a policy. Accordingly, Dr. Winters and Health Resources are entitled to judgment as a matter of law on this claim.
In light of this conclusion, the Court does not address the defendants' contention that Dr. Winters cannot be held to have conspired with his own employer while acting in the scope of his employment. The Court also does not consider — and the parties have not addressed — whether discrimination on the basis of pregnancy in public employment would constitute a deprivation of equal protection for purposes of § 1985. Compare Great American Federal Savings Loan Association v. Novotny, 442 U.S. 366, 378 (1979) (holding that retaliation for opposition to sex discrimination in private employment, in violation of federal statute, was not deprivation of equal protection for purposes of § 1985).
Plaintiffs' final claim is that these defendants conspired to interfere with the plaintiffs' rights by means of threats, intimidation or coercion, in violation of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I. The conduct that forms the basis for this claim, as alleged in the complaint and elucidated in the plaintiffs' opposition to this motion, is that the Health Resources physicians coerced the plaintiffs to accept TMD by threatening them with placement on No Duty. In particular, the plaintiffs cite Trooper Butner's testimony that Dr. Winters told her she would be placed on No Duty if she refused TMD.
Although earlier decisions under the Massachusetts Civil Rights Act may have left some uncertainty on the point, e.g. Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 104 (1987), more recent cases have clarified that to establish the element of threats, intimidation or coercion, a plaintiff must show "an actual or potential physical confrontation accompanied by a threat of harm." Planned Parenthood League of Massachusetts, Inc. v. Blake, 417 Mass. 467, 473 (1994), and cases cited. Even if Dr. Winters' statement to Trooper Butner could fairly be characterized as a threat, nothing in the evidence offered suggests any potential for physical confrontation between the plaintiffs and these defendants. Accordingly, these defendants are entitled to judgment as a matter of law on this claim.
CONCLUSION AND ORDER
For the reasons stated, the Department of State Police's Motion for Summary Judgment is ALLOWED as to Plaintiff Watts only, and otherwise DENIED , and the Motion for Summary Judgment of Defendants Health Resources and Dr. Thomas Winters is ALLOWED .
_________________________________________ Judith Fabricant Justice of the Superior Court