460 F.3d 141 (1st Cir. 2006), 05-2160, Mulloy v. Acushnet Co.

• Citation: 460 F.3d 141
• Party Name: Michael D. MULLOY, Plaintiff, Appellant, v. ACUSHNET COMPANY, Defendant, Appellee.
• Case Date: August 24, 2006
• Court: United States Courts of Appeals, U.S. Court of Appeals — First Circuit

Page 141

460 F.3d 141 (1st Cir. 2006)

Michael D. MULLOY, Plaintiff, Appellant,

v.

ACUSHNET COMPANY, Defendant, Appellee.

No. 05-2160.

United States Court of Appeals, First Circuit.

Aug. 24, 2006

Heard Feb. 8, 2006.

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[Copyrighted Material Omitted]

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Richard E. Burke, Jr., with whom James Hodgson and Law Offices of Beauregard, Burke & Franco were on brief, for appellant.

Laurence J. Donoghue, with whom Corinne L. Hood and Morgan, Brown & Joy, LLP were on brief, for appellee.

Before SELYA, LYNCH, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Michael D. Mulloy appeals from the entry of summary judgment for his former employer, Acushnet Company, in a suit alleging disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B, § 4. Mulloy contends that Acushnet failed to accommodate his disability when it refused to allow him to work from a remote location. The district court held that Mulloy was not a "qualified individual with a disability" under the ADA or a "qualified handicapped person" under Chapter 151B, § 4. We affirm.

I.

The following facts are undisputed except as otherwise noted. Acushnet, headquartered in Fairhaven, Massachusetts, manufactures and sells golf balls and other golf equipment and accessories. It has several manufacturing facilities, including a facility in Dartmouth, Massachusetts ("Ball Plant II"). In December of 1998, Acushnet hired Michael Mulloy as one of two electrical engineers at Ball Plant II.

The golf ball manufacturing process uses materials containing chemical sensitizers known as isocynates. The parties disagree as to the hazards of isocynate exposure: according to Acushnet, exposure to isocynates may exacerbate the symptoms of those with asthma, allergies, or chronic respiratory problems, while Mulloy believes isocynate exposure may cause these conditions. All of Acushnet's manufacturing facilities use isocynates. As a result, Acushnet has developed a formal isocynate protocol "[t]o ensure the safe placement of any associate in an area with isocynate exposure and to provide ongoing medical monitoring post exposure to isocynates."

From December 1998 through January 2001, Mulloy designed programs for the golf ball manufacturing machines (governing their movement and timing); specified, purchased, and supervised the installation of electronic controls for new and modified equipment; evaluated machine capabilities and identified mechanical and electrical changes; trained and supported maintenance personnel to "troubleshoot" (i.e., respond to malfunctions with) electrical and electronic controls; supported electrical safety programs; and specified electrical services for new machines. During this period, Mulloy spent an average of two hours per day on the manufacturing floor, and another six hours per day in his cubicle away from the manufacturing floor. Some days, Mulloy spent all or a majority of his day on the plant floor. The parties disagree about whether Mulloy sometimes worked on the plant floor for a full week or more at a time.

At the time of his hire, Mulloy completed a medical history form, reporting that he had no allergies, was taking no medication, and had no prior exposure to isocynates. Nine months later, however, Mulloy began to experience throat and chest tightness and discomfort, and presented Acushnet with a note from his physician reporting these symptoms. Acushnet responded by taking steps under its isocynate

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protocol, which involved Mulloy's completion of an allergy questionnaire and his taking a pulmonary function test. Dr. Charles Lutton, Acushnet's occupational medicine consultant, examined Mulloy and referred him to a respiratory specialist, who noted no signs of isocynate sensitivity and cleared him to return to work.

On May 9, 2000, while working in the paint spray room (where golf balls are spray painted), Mulloy began to feel dizzy. Over the next several days, he felt "foggy and feverish." Acushnet kept Mulloy out of the paint spray room pending further pulmonary function testing and examination by Dr. Lutton. Dr. Lutton recommended that Mulloy not be exposed to isocynates or another respiratory irritant, CX-100. Accordingly, Mulloy was restricted from areas in the plant where these irritants are generated, known as "red zones," and was reassigned to work on machines outside of the red zones on the other side of the building, in areas of the plant such as "core molding" (where the rubber cores of golf balls are made). When Mulloy needed to work on machines in the red zones, he did so remotely from the other side of the building by relying on other personnel to download his programs into these machines located in the restricted areas.

This arrangement worked for over a year. However, beginning in November 2001, Mulloy began to experience dizziness and other symptoms while outside of the red zones. Dr. Lutton examined Mulloy and recommended that he be removed from all Acushnet buildings where isocynates were used. Accordingly, Acushnet transferred him to its headquarters in Fairhaven, Massachusetts, located fifteen miles away from Ball Plant II, where there is no manufacturing and no use of chemicals such as isocynates.

The parties disagree about the extent to which Mulloy continued to perform his job functions in Fairhaven. Mulloy contends that he continued to perform all of his job functions in Fairhaven, and even received a positive job performance evaluation three months after his transfer. Acushnet contends that while Mulloy was able to perform some of the functions of his job, his inability to enter the plant prevented him from performing others. Following his transfer to Fairhaven, the Vice President of Employee Relations, Ken Riall, consulted with Acushnet's Vice President of Golf Ball Manufacturing, Eric Bartsch, and its Director of Health Safety and Field Services, Jean Sutherland, regarding what tasks Mulloy could perform and what accommodations could be made for his limitations. Riall specifically asked Bartsch whether Mulloy could perform his job remotely. Bartsh concluded that Mulloy could not. Riall did not consult with Kimberly Francis, the Director of Engineering at Ball Plant II and Mulloy's immediate supervisor. On January 10, 2002, Acushnet told Mulloy that his employment would be terminated effective March 4, 2002.

Approximately 50% of the work that Mulloy used to perform is now done by Acushnet employees inside the plant. Due to a shortage of personnel, another 40% of the work Mulloy used to perform is handled by outside vendors, and the majority of this work (70%) is likewise performed inside the plant. A small percentage of the work (10%) that Mulloy used to perform has been designated low-priority by Acushnet and, therefore, is not being done.

Since his termination from Acushnet, Mulloy has been diagnosed with occupational asthma. The parties disagree about the extent of the limitations imposed by this diagnosis. Mulloy contends that he is "permanently partially disabled" and can work only in a "meticulously clean work

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environment because exposure to dusts and numerous common chemical compounds ... can trigger a respiratory attack." Acushnet argues that, based on the medical evidence, Mulloy need only avoid working in areas containing isocynates or other volatile chemicals. Mulloy also contends that he sustained emotional and psychological damage as a result of his termination which may preclude him from future employment.

For several years following his termination, Mulloy sought employment as an electrical engineer and also considered other job options such as teaching, to no avail. He eventually enrolled as a full-time student at Syracuse Law School. On May 28, 2003, Mulloy filed a complaint in the district court, alleging that Acushnet discriminated against him on the basis of his disability in violation of the ADA and Chapter 151B, § 4. Acushnet subsequently filed a motion for summary judgment, which the district court granted. This appeal followed.

II.

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). "For the purposes of summary judgment, 'genuine' means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a 'material fact' is one which 'might affect the outcome of the suit under the governing law.' " Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-19 (1st Cir.2004) (internal quotation marks and citation omitted).

"The scope of appellate review of entry of summary judgment in ADA cases, as in all others, is de novo." EEOC v. Amego, Inc., 110 F.3d 135, 141 (1st Cir.1997). While we "constru[e] the record in the light most favorable to the nonmovant and resolv[e] all reasonable inferences in that party's favor [,] ... we can safely ignore conclusory allegations, improbable inferences, and unsupported speculation." Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002) (internal quotation marks and citation omitted). In so doing, "[w]e are not wed to the lower court's rationale but, rather, may affirm the entry of summary judgment on any ground made manifest by the record." Okmyansky v. Herbalife Int'l of America, Inc., 415 F.3d 154, 158 (1st...