Tompson v. Dep't Of Mental Health

• Citation: 76 Mass.App.Ct. 586,924 N.E.2d 747
• Decision Date: 12 April 2010
• Docket Number: No. 08-P-1365.,08-P-1365.
• Parties: Judith TOMPSONv.DEPARTMENT OF MENTAL HEALTH.
• Court: Appeals Court of Massachusetts

76 Mass.App.Ct. 586

924 N.E.2d 747

Judith TOMPSONv.DEPARTMENT OF MENTAL HEALTH.

No. 08-P-1365.

Appeals Court of Massachusetts,

Suffolk.

Argued May 12, 2009.

Decided April 12, 2010.

Jeffrey R. Mazer, Lynnfield, for the plaintiff.

Teresa W. Walsh, Assistant Attorney General, for the defendant.

Present: KANTROWITZ, McHUGH, & MEADE, JJ.

McHUGH, J.

Judith Tompson appeals from a summary judgment entered in Superior Court dismissing an employment discrimination complaint she filed against her employer, the Department of Mental Health (DMH). Essentially, Tompson's complaint alleged that she was a qualified handicapped person whom the DMH had discharged without making a reasonable accommodation so that she could continue working with the disability she undoubtedly had. Because the record reveals that Tompson was not a qualified handicapped person, we affirm the judgment of dismissal.

Background. In 1996, the DMH hired Tompson as a Mental Health Worker I. Her duties included retrieving client medication at the pharmacy, traveling to clients' homes, and driving clients to medical appointments. Three years later, the DMH promoted Tompson to Mental Health Worker III, a supervisory position, but one that contained some direct care responsibilities as well. ¹ In 1997, before her promotion, Tompson was diagnosed with ulcerative colitis, a condition that affects the colon, but she nevertheless was able to continue her work and carry out her responsibilities. In April, 2000, however, she took a seven-month medical leave to undergo treatment for her condition. In December, 2000, one month after Tompson returned to work, the DMH promoted her to Residential Supervisor III, also a supervisory position, but one with broader responsibilities. In her new capacity, Tompson oversaw two residential DMH programs and supervised approximately fifteen employees. Tompson's new position was covered by a collective bargaining agreement that placed her in a six-month probationary status, during which the DMH had the right to return her to her previous position if her performance was below expectations.

At some point in early 2001, Tompson received a performance review indicating that she met all DMH expectations with the exception of those involving her supervisory responsibilities. In April, 2001, she met with her supervisors, one of whom asked Tompson to “exercise [her] rights to return to [her] Mental Health Worker” III position because “things were not going well” in her new position. Tompson claims that the supervisor gave no “specific work performance reason” for the request but “asked [her] a few times whether [she] was well enough to do the job.”

Tompson declined the supervisor's request. Later that month, however, she began a second medical leave, following emergency surgery on April 17, 2001, for perirectal disease, an event that caused her physicians to change her diagnosis from colitis to Crohn's disease. On May 21, 2001, during her medical leave, Tompson applied for Social Security Disability Insurance (SSDI) benefits, stating on her application, “I became unable to work because of my disabling condition on April 17, [2001] ... [and] am still disabled.” The Social Security Administration (SSA) allowed her claim, and, under applicable rules, she began receiving benefits in December, 2001. She continued to receive the same monthly benefit, adjusted for inflation, at all material times thereafter, including the periods when she returned to work at the DMH.

In June, 2001, while Tompson was on her second medical leave, the DMH demoted her to her former position of Mental Health Worker III, an action she believed the DMH took as a result of her disability. With the assistance of union representatives, Tompson challenged the demotion. Ultimately, however, she, her supervisors, and her union representatives agreed that her medical leave would end on December 15, 2002,² and that she then would return to work in a Mental Health Worker III position.

Tompson did return to work in December, 2002. She accompanied her return with a note from her treating physician setting forth “absolute limitations” on her working conditions. The restrictions included a prohibition on driving except to and from work, a work limit of no more than eight hours each day, and a requirement that she remain near a bathroom at all times. The DMH accommodated those constraints without objection, although the limitation on Tompson's ability to drive directly affected one of the specific requirements of her job. See note 1 supra.

One month later, in early January, 2003, Tompson presented the DMH with another note from her physician, this one adding an additional “absolute limitation,” reducing her working hours to four per day. After receiving that note, the DMH notified Tompson by letter that she could not remain in her position while working a four-hour day because her job “require[d] that the incumbent work a full time schedule.” The DMH letter alerted Tompson to available part-time positions in a different unit from the one in which she was then working. The DMH maintained, however, that continued work in Tompson's current unit required her to supervise staff members during their full eight to ten-hour shifts.

Tompson “wasn't interested” in the part-time positions the DMH suggested and never explored that option. Instead, although her shift started at 3:00 p.m. and ended at 11:30 p.m., she began in early January, 2003, to depart at 7:00 p.m., exactly four hours into the shift, leaving coworkers to cover her remaining hours.

Tompson's approach to her shift responsibilities led the DMH to convene a hearing on February 19, 2003, to determine whether Tompson could perform the essential functions of her job. By then, in response to a DMH request for information regarding the length of time the four-hour limitation would be in effect, Tompson had provided the DMH with a supplemental physician's note stating that the physician would “re-evaluate again in roughly 2-3 months to see if there has been any interval change ... that may allow her to work more hours. At present, however, she needs to be maintained on [the four-hour] part-time [status] until further notice.”

As a result of the hearing, the DMH found that Tompson could not perform her essential job responsibilities and stated in a termination letter to her dated March 26, 2003, that her restrictions:

“limited her ability to assist clients in a community setting, restricted her ability to be a shift supervisor, limited her ability to write shift report[s], made her unable to close out the shift, and narrowed her time for role modeling, training and guidance to less experienced staff.”

The DMH terminated her employment effective March 31, 2003.

In April, 2003, Tompson filed a charge with the Massachusetts Commission Against Discrimination (MCAD), alleging that, in discharging her, the DMH had engaged in handicap discrimination in violation of G.L. c. 151B, § 4. The MCAD dismissed the charge, finding that Tompson was not a qualified handicapped person under the statute and, thus, that her discharge did not violate the statute. That finding was upheld on administrative appeal.

Tompson then commenced the present action against the DMH in Superior Court, again alleging handicap discrimination in violation of G.L. c. 151B. At an April 25, 2007, pretrial conference, the DMH sought leave to file a summary judgment motion after expiration of the time set by the applicable time standards tracking order. See Superior Court Standing Order 1-88. A Superior Court judge denied the request. In August, 2007, the DMH filed a second motion for leave to file the summary judgment motion. A second judge denied the motion without prejudice, indicating that the DMH should direct it to the first judge. The DMH did so, and the first judge again denied it. Undaunted, the DMH filed essentially the same motion with a third judge, who allowed the late filing and then, in a comprehensive decision after hearing, allowed the summary judgment motion. In essence, the third judge found that Tompson's request for a four-hour workday was a request for an unreasonable accommodation, and also found that Tompson could not satisfy her burden of proving that she was a qualified handicapped person within the meaning of c. 151B, §§ 1, 4.

Tompson now appeals, claiming the third judge erred in granting the DMH leave to file a late summary judgment motion, in determining that she was not a qualified handicapped person under G.L. c. 151B, in finding that her request for a four-hour workday was unreasonable, and in failing to engage in an interactive process designed to produce an acceptable accommodation. The DMH, while agreeing with the result the third judge reached and the reasoning he advanced, also argues that Tompson's receipt of SSDI benefits estops her from claiming that she can perform the essential functions of her job. We turn to each of those claims.

Discussion. a Timing of summary judgment motion. The third judge acted within his discretion when he granted the DMH leave to file a summary judgment motion beyond the time allowed by the tracking order. See Bonnie W. v. Commonwealth, 419 Mass. 122, 123 n. 1, 643 N.E.2d 424 (1994) (rejecting argument that because summary judgment motion was not timely filed in compliance with Superior Court Standing Order 1-88, the Superior Court lacked jurisdiction to allow it). The standing order that set the time for filing such motions recognized that discretion. See Superior Court Standing Order 1-88(D)(1). As with other interlocutory decisions, the judge had this discretion even though a different judge previously had denied a similar motion. See I.S.K. Con of New England v. Boston, 19 Mass.App.Ct. 327, 329, 474 N.E.2d 188 (1985) (“When a judge reviews an interlocutory decision in the same case by another judge of the same court, the second judge has the power to review or modify the prior decision”); Barron...