575 F.3d 145 (1st Cir. 2009), 08-1865, Sensing v. Outback Steakhouse of Florida, LLC

Docket Nº:08-1865.
Citation:575 F.3d 145
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:Suzanna SENSING, Plaintiff, Appellant, v. OUTBACK STEAKHOUSE OF FLORIDA, LLC and Charles Kozmits, Defendants, Appellees.
Attorney:Paul H. Merry, for appellant. John F. Welsh, with whom Jennifer Belli and Bello Black & Welsh LLP, were on brief for appellees.
Judge Panel:Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.
Case Date:August 11, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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575 F.3d 145 (1st Cir. 2009)

Suzanna SENSING, Plaintiff, Appellant,


OUTBACK STEAKHOUSE OF FLORIDA, LLC and Charles Kozmits, Defendants, Appellees.

No. 08-1865.

United States Court of Appeals, First Circuit.

August 11, 2009

Heard Jan. 7, 2009.

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[Copyrighted Material Omitted]

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Paul H. Merry, for appellant.

John F. Welsh, with whom Jennifer Belli and Bello Black & Welsh LLP, were on brief for appellees.

Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

This is an appeal from a grant of summary judgment in a diversity action. Plaintiff-appellant Suzanna Sensing, who suffers from multiple sclerosis, brought suit against her former employer, defendant-appellee Outback Steakhouse (" Outback" ), and her manager, defendant-appellee Charles Kozmits, (collectively, " the appellees" ), alleging handicap discrimination in violation of the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B, § 4. The district court granted summary judgment in favor of the appellees.

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Sensing timely appealed. After careful consideration, we reverse.

I. Background

A. Facts1

Outback operates a nationwide group of steakhouse restaurants, including one located in Peabody, Massachusetts, where the events related to this appeal took place. Kozmits was the managing partner of the Peabody Outback during the relevant period. Sensing was employed at the Peabody Outback restaurant from March 2000 until May 2005. Initially hired as a hostess, Sensing was soon promoted to the position of " takeaway." A takeaway at Outback takes down customers' take-out orders by telephone, does various order preparation work, packages the orders, and delivers the orders to customers waiting in the parking lot.2 Sensing twice won " Employee of the Month" awards as a takeaway.

In December 2003, Sensing, a diabetic, was also diagnosed with an episodic, remitting-relapsing form of multiple sclerosis (" MS" ). MS is a disease affecting the central nervous system. During the disease's aggravated state, known as a " flare-up" or " exacerbation," persons suffering from the disease experience a worsening of neurologic function, which may include numbness in extremities, difficulty with muscular control affecting activities such as walking, grasping, and balancing, increased fatigue, and emotional lability. Flare-ups can last from a few days to two months or longer. These episodes are followed by partial or complete recovery periods (remissions), during which persons with MS can function similarly to disease-free persons. Sensing discussed her medical diagnoses and her symptoms with her co-workers at Outback, including " key employee" Erin Ray, a member of Outback's management who was in charge of scheduling workers' shifts.3

In November 2004, Sensing experienced her first major MS flare-up. The episode was extremely debilitating: Sensing was bedridden, unable to walk or feed herself without assistance. During the flare-up, Sensing was granted a medical leave from her position at Outback. At the end of the month Sensing's MS symptoms improved and she returned to work at Outback in a " light duty" position, performing tasks such as answering telephones and filling out gift certificates. Sensing's condition continued to improve during this period, though she still had some symptoms and admits to an episode in December 2004 when she had to leave work early.

In February 2005, Sensing informed Kozmits that she wished to return to her previous takeaway role. She provided a note from her neurologist, Dr. Timothy Kelliher, stating that she could resume duties " as tolerated," and Kozmits cleared her to resume her normal takeaway shifts. From mid-February 2005 until April 21, 2005, Sensing worked regularly as a takeaway. During this period Sensing experienced no physical symptoms of MS that

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impaired her performance, and was able to perform her job in all respects with only minor, unobjected-to, accommodations.4

Sensing experienced a minor recurrence of her MS symptoms in early April 2005, when she began to experience some numbness. During her shift on April 21, 2005, Sensing felt unwell and became emotional at work. When Ray asked Sensing what was wrong, Sensing said she had been unable to feel her legs for the past few weeks. Ray said that she should go home, but Sensing replied that she could not because she needed the money. Nevertheless, after arranging to have the remainder of her shift covered and securing her manager's approval, Sensing went home early.

Although she intended to work her next scheduled shift on April 23, Sensing woke up that day again feeling unwell. Sensing spoke to Ray by telephone and told Ray that while she could work if needed, she was still experiencing leg cramps. Ray suggested that Sensing take that shift off as well because another worker could cover her duties. Sensing made clear, however, that she wished to return for her next shift, scheduled for April 27.

On April 27, 2005, just before Sensing's scheduled work shift, Kozmits telephoned her and told her not to report to work that night and that her shift had been covered. Sensing told him that she was fine to work and was planning on coming to work. Kozmits responded that he was " not comfortable" with her coming back to work that night because of the " liability," that she should take the vacation she had previously scheduled for early May, get her medications in order and then call him back. Sensing was upset and surprised by the decision. She called Ray to indicate that she was capable of working and needed the shifts. Sensing also asked Ray for the fax number for Outback so she could fax a new note from her doctor.

The following day, April 28, Sensing visited Kozmits at the restaurant and repeated that she was capable of working and desired to return to work. She presented Kozmits with the new note from Dr. Kelliher, which stated that she could " return to work without restrictions." Kozmits responded that he had serious questions about whether Sensing could continue her job as a takeaway and stated that he did not believe that Sensing's doctors " know what's going on." Kozmits again expressed concerns about liability, stating that he could not have Sensing falling in the restaurant because it would cost the restaurant two to three hundred thousand dollars. Sensing stated that she was no more of a liability than anyone else, but Kozmits disagreed. Kozmits said that he would have to contact his corporate superiors for guidance on how to handle the matter.

On April 29 Sensing called and left a message for Kozmits to call her. Kozmits returned her call on April 30th. Sensing told Kozmits that she had canceled her planned vacation and wished to return to work. Kozmits again indicated that he would have to wait for instructions from Outback's corporate office in Tampa, Florida, before scheduling Sensing for work and that he would get back to her.

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Sensing called Outback again on May 3 and left a verbal message with a co-worker asking for Kozmits to call her, but Kozmits never returned her call.5 On May 5, Sensing again telephoned Kozmits at the restaurant and repeated her request to be put back on the work schedule. She stated that she really wanted to get back on the work schedule because she needed the money.6 Kozmits replied that he had placed a second call to the corporate office and would let her know as soon as he heard back. Later that day, Sensing faxed Kozmits the following message:

Dear Charles: Thank you for the brief chat this morning. As we discussed I really need an answer today regarding my takeaway shifts. I am planning on returning to my normal takeaway schedule on Wednesday 5/11 and would like to pick back up this Saturday 5/7 , unless I hear otherwise. I need to work and cannot drag this on any longer. Thank You, Suzanna.

Shortly after this fax was sent, Kozmits called Sensing back. He stated that before Sensing would be allowed to return to work as a takeaway, she must submit to an independent medical examination (" IME" ), at the company's expense and by a physician of their choosing, to determine whether she could safely perform that job.7 He indicated that while the IME was being set up, Outback might be willing to schedule Sensing for " light duty" work. This light duty work would be paid at approximately half the hourly rate of the takeaway role and involve approximately one-third the number of hours per week. Sensing told Kozmits that she did not know if she could financially manage doing the light duty work, but recalls not giving Kozmits a firm answer because she wanted to discuss the financial effects of doing so with her husband. Kozmits told Sensing that he would look for a physician to do the IME and would get back to her with the details as soon as he found a suitable physician to examine her. Sensing agreed, and said that she would wait to hear back from him regarding the examination.8

After consulting with her husband, Sensing concluded that she could not afford to take the light duty position and that it made more sense for her to apply for unemployment. On May 6, Sensing filed for unemployment. In Sensing's deposition testimony, when asked why she did not agree to take a light-duty position while waiting to hear about the IME, she

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responded: " it made more sense for me to apply for unemployment than to work three or four hours a day-I'm sorry-two to three hours a day for the shift they were talking about." After the May 5 conversation, Sensing also contacted an attorney and did not make further contact with Kozmits directly. Nor did Kozmits make further contact with Sensing.

Kozmits alleges that after several days...

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