Beal v. Board of Selectmen of Hingham

• Decision Date: 21 February 1995
• Citation: 419 Mass. 535,646 N.E.2d 131
• Parties: , 71 Fair Empl.Prac.Cas. (BNA) 1048, 4 A.D. Cases 482, 8 A.D.D. 622, 6 NDLR P 193 Terri BEAL v. BOARD OF SELECTMEN OF HINGHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 131

646 N.E.2d 131

419 Mass. 535, 71 Fair Empl.Prac.Cas. (BNA) 1048,

4 A.D. Cases 482, 8 A.D.D. 622, 6 NDLR P 193

Terri BEAL v. BOARD OF SELECTMEN OF HINGHAM.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Dec. 5, 1994.

Decided Feb. 21, 1995.

Kevin P. Phillips, Marshfield, for plaintiff.

Andrew J. Waugh, Quincy (James A. Toomey, with him), for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The plaintiff appeals from the entry of summary judgment for the defendant, the board of selectmen of Hingham (board). We transferred the appeal to this court on our own motion, and now affirm.

The following are the relevant facts viewed in the light most favorable to the plaintiff. See Alioto v. Marnell, 402 Mass. 36, 37, 520 N.E.2d 1284 (1988). In 1986, the board appointed the plaintiff to the position of police officer. On July 26, 1988, the plaintiff was injured in a head-on collision while on duty. Following the accident, an ambulance transported the plaintiff to South Shore Hospital where she was treated for multiple injuries. As a result of the accident, the plaintiff suffered from severe injuries to her head, neck, and back. In addition, a neurologist treated the plaintiff for headaches and dizziness resulting from the collision.

While convalescing from her injuries, the plaintiff was unable to continue working as a police officer. The plaintiff, therefore, received compensation benefits pursuant to G.L. c. 41, § 111F (1992 ed.), from July 26, 1988, until June, 1990. In May of 1990, a neurologist, hired by the defendant, examined the plaintiff and concluded that she was not suffering from any neurological disabilities which would prevent her from performing the regular duties of a police officer. Subsequently, the chief of police directed the plaintiff to report for duty by June 26, 1990, and he notified her that her paid injury leave would end on June 26, 1990. The plaintiff, however, refused to report for duty. Instead, she requested an ex parte temporary restraining order to prevent the town from discontinuing her § 111F benefits. A Probate Court judge granted the temporary restraining order on June 28, 1990. On July 9, 1990, however, the judge denied the plaintiff's request for a preliminary injunction.

On July 20, 1990, the plaintiff applied for accidental disability retirement claiming injuries to her neck, back, and head. When the Hingham retirement board denied the application, the plaintiff appealed. On December 1, 1992, an administrative magistrate of the Division of Administrative Law Appeals concluded that there were no orthopedic specialists on the medical panel that had examined the plaintiff. Deciding that the plaintiff had alleged disabilities which should have been examined by an orthopedic specialist, the administrative magistrate remanded the plaintiff's claim to the retirement board with an order to convene a new medical panel comprised of orthopedic specialists.

Earlier, on October 15, 1991, the plaintiff requested that she be permitted to return to work in a letter to the board. In support of her request to perform "light duty" work, the plaintiff presented two letters from her personal physicians. Although the physicians released the plaintiff to return to her duties as a police officer, they indicated that the plaintiff still suffered from various injuries. The board, however, refused to allow the plaintiff to return to her position as a police officer for two reasons: (1) the board claimed that she had abandoned her position and (2) refused her apparent request for "limited duty." On October 30, 1991, the plaintiff informed the defendant that she wanted to return to "full" duty. In response, the board notified the plaintiff that a hearing would be conducted to determine whether to discipline, suspend, or terminate her. On May 2, 1992, the board discharged the plaintiff from employment as a police officer after conducting a hearing on December 2, 1991, January 8, and May 2, 1992.

On July 30, 1992, the plaintiff filed an employment handicap and sex discrimination claim against the defendant with the Massachusetts Commission Against Discrimination (MCAD) pursuant to G.L. c. 151B, § 4 (1992 ed.). After the MCAD granted the plaintiff's request to remove her claim to the Superior Court, the plaintiff filed a complaint in the Superior Court on December 10, 1992. The docket reflects return of service on June 26, 1993. Subsequently the board filed a motion to dismiss pursuant to Mass.R.Civ.P. 4(j), as appearing in 402 Mass. 1401 (1988), ¹ and a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). In response, the plaintiff filed a motion to enlarge the time for service pursuant to Mass.R.Civ.P. 6(b)(2), 365 Mass. 747 (1965). ² The motion judge treated the board's motion to dismiss under rule 12(b)(6), as a motion for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), and granted the board's motion.

1. Failure to consider rule 4(j) motion. The plaintiff argues that the motion judge abused his discretion when he granted the board's motion to dismiss without first addressing the issue whether the plaintiff had complied with the time limits for service of the complaint on the board in accordance with rule 4(j). We disagree.

The board waived any objection to the timeliness of the plaintiff's service of the complaint by failing to object to the court's not addressing the issue. In addition, the plaintiff herself filed a motion to enlarge the time for service pursuant to rule 6(b)(2), claiming that the failure to serve the complaint on the board in a timely manner was the result of excusable neglect. The plaintiff cannot now claim on appeal that the reason that she had offered previously did not constitute excusable neglect.

2. Summary judgment. The plaintiff argues next that the motion judge erred by granting the board's motion for summary judgment pursuant to rule 56 on all counts of the plaintiff's complaint. We disagree.

"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Mass.R.Civ.P. 56(c). See Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 626, 536 N.E.2d 1067 (1989); Leavitt v. Mizner, 404 Mass. 81, 88, 533 N.E.2d 1334 (1989); Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). We may consider any ground supporting the judgment. Champagne v. Commissioner of Correction, 395 Mass. 382, 386, 480 N.E.2d 609 (1985)." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Judson v. Essex Agric. & Technical Inst., 418 Mass. 159, 162, 635 N.E.2d 1172 (1994). "[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in rule 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).

A. Handicap discrimination. The plaintiff argues that the motion judge erred in granting the board's motion for summary judgment because she had established a prima facie case of handicap discrimination pursuant to both G.L. c. 151B and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988 & Supp. V 1993). ³ There was no error.

General Laws c. 151B, § 4(16), provides in material part that it shall be unlawful practice "[f]or any employer ... to ... 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.... Physical or mental job qualification requirement with respect to hiring, promotion, demotion or dismissal from employment or any other change in employment status or responsibilities shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job."

In an employment discrimination case pursuant to G.L. c. 151B, the plaintiff has the initial burden of establishing a prima facie case. ⁴ See Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 614-615, 447 N.E.2d 1228 (1983); Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 229, 380 N.E.2d 121 (1978). Although we follow the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), we have noted that the facts necessary to establish a prima facie case of discrimination will vary depending on the circumstances of each case. See Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 135 n. 5, 355 N.E.2d 309 (1976), citing McDonnell Douglas Corp. v. Green, supra at 802 n. 13, 93 S.Ct. at 1824 n. 13. In order to establish a prima facie case of unlawful employment discrimination on the basis of handicap pursuant to G.L. c. 151B, a plaintiff must present some evidence that: (1) she is handicapped; (2) she is a qualified handicapped person and she applied for a position for which the employer was seeking applicants; (3) the employer terminated the plaintiff for the position in spite of her qualifications; (4) after the employer terminated the plaintiff, the position remained open and the employer continued to seek applicants. See McDonnell Douglas Corp. v. Green, supra at...