August v. Offices Unlimited, Inc.

• Citation: 981 F.2d 576
• Decision Date: 06 May 1992
• Docket Number: No. 91-2329,91-2329
• Parties: 60 Empl. Prac. Dec. P 41,904, 61 USLW 2515, 124 Lab.Cas. P 57,202, 2 A.D. Cases 401, 3 NDLR P 272 Irving AUGUST, Plaintiff, Appellant, v. OFFICES UNLIMITED, INC., Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 576

981 F.2d 576

60 Empl. Prac. Dec. P 41,904, 61 USLW 2515,

124 Lab.Cas. P 57,202, 2 A.D. Cases 401,

3 NDLR P 272

Irving AUGUST, Plaintiff, Appellant, v. OFFICES UNLIMITED, INC., Defendant, Appellee.

No. 91-2329.

United States Court of Appeals,

First Circuit.

Heard May 6, 1992.

Decided Dec. 11, 1992.

Howard I. Wilgoren, Framingham, MA, for plaintiff, appellant.

William B. Koffel, with whom Foley, Hoag & Eliot, Boston, MA, was on brief, for defendant, appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and PETTINE, ^* Senior District Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

This appeal arises from an alleged wrongful employment termination. Defendant-appellee Offices Unlimited, Inc. ("OUI") fired plaintiff-appellant Irving August from his position as an office furniture salesman in May 1989. In 1990, August filed an eleven-count complaint against OUI and two other defendants in United States District Court for the District of Massachusetts. On October 30, 1991, the district court granted defendants' summary judgment motion as to all eleven claims raised by August's complaint. ¹

The sole issue now presented is whether the district court erred in granting summary judgment in favor of OUI on August's claim that his employment termination constituted a discriminatory discharge on the basis of a handicap in violation of Massachusetts statute Mass.Gen.L. ch. 151B, § 4(16). ² For the reasons stated below, we affirm.

I. BACKGROUND

August worked as an office furniture salesman for OUI and its predecessor company since 1966. He began experiencing symptoms of clinical depression in late 1988. In September 1988, August went to his internist, Dr. Martin Vogel, for a routine physical examination. At this visit, August told Dr. Vogel that he felt distressed because of number of personal and family problems, including the fact that his pay from OUI had been cut by fifty percent.

On February 14, 1989, August visited Dr. Vogel again. August asked the doctor to write a letter to OUI recommending that August be given a month's leave of absence from work. August later presented this letter to OUI management. Dr. Vogel's letter stated that August "has been severely distressed with resultant weight loss, fatigue and weakness. It is most desirable that he have a month's leave from work to avoid continued stress. During this time he will receive therapy in hopes that on his return he can better compensate."

At a February 1989 meeting with OUI management August requested a one-month leave of absence. OUI responded to this request by offering August a six-week paid leave. August preferred to continue working another month until April 1st because the weather would be better then. OUI initially agreed to the April 1st start, but later asked August to leave on March 27, 1989, because of complaints OUI had received from one of August's customers. Before leaving, August met with OUI sales personnel to arrange for his accounts to be covered by other sales representatives while he was away.

In early May, August contacted Mel Goldberg, his supervisor at OUI, to notify him that he would not be able to return to work on May 8, 1989, the scheduled end of the leave period. August also sent Goldberg a letter from Dr. Stanley Wallace, a psychiatrist. Dr. Wallace's letter, dated May 3, 1989, stated that August "is currently under my care for treatment of his Major Depression. He has shown significant improvement in his condition but has not yet fully recovered. My estimation is that he will require another two to four weeks before complete recovery is achieved." Goldberg told August that he could take an additional two weeks off, until May 22, 1989, but that the time would count as vacation.

At August's request, he met with Goldberg and Marilyn Campbell, OUI's Director of Administration, on May 11, 1989. According to August's deposition, at the meeting he told the OUI officials that he expected to feel ready to return to work by May 22. When asked whether he was "100 percent better," August replied, "I don't know if I'm 100 percent until I start working." Goldberg told August that the company would expect "110 percent" from him and that August was "going to be under a lot more pressure than [he was] prior to leaving." August was advised that business conditions were worsening, that fewer sales representatives were available to handle customer accounts, and that he would be assigned different accounts when he returned.

August says he asked if he could "come back on a part-time basis" and if he "could miss the first couple of sales meetings because the sales meetings were in the morning" when he experienced side effects of the antidepressant medication. Goldberg refused both requests. Ms. Campbell suggested that if August continued to feel unable to work, he should consider applying for disability benefits under the company's insurance plan.

August claims that the May 11 meeting so distressed him as to reactivate his depression. On May 12, 1989, August made out and executed a claim application under the company's disability plan. In the signed application, August asserted that he had been totally and continuously disabled since March 24, 1989. August also wrote on the form that he did not know when he would be able to resume work. An attending physician's statement attached to the application, completed by Dr. Wallace, verified that August had been totally disabled since March 1989 and that it was unknown when he could resume part-time or full-time work.

In a letter dated May 18, 1989, August's attorney notified OUI that August had filed for disability benefits. In that letter the attorney stated that "[t]he commencement date of Mr. August's disability was March 27, 1989." The letter made no mention of when August would return to OUI. Four days later, August's attorney wrote to Goldberg again, maintaining that August had not resigned from OUI and that it was his "intention to return to his employment with OUI upon the conclusion of his disability." Again, August's attorney did not indicate when August might return.

On May 22, 1989, the end of the second leave of absence, August did not report for work. On May 25, 1989, Campbell, on OUI's behalf, sent August a letter informing him that his employment with OUI was terminated effective June 1, 1989, because "it is certainly unclear when and if you will be able to return to work." The letter explained that OUI could not continue to have other sales representatives temporarily cover August's accounts because "continuity of staff managing account business is, as you know, critical in our industry." Except for the termination letter, there is no evidence of any communication between August and OUI on or after May 22, 1989.

August renewed his claim for disability benefits in December 1989, February 1990, April 1990, and June 1990. Each signed application stated that he had been totally and continuously disabled since late March 1989, the day he began his first leave of absence from OUI. Attached to each application was a statement from Dr. Wallace, verifying the fact that August had been totally disabled since March 1989.

II. STANDARD OF REVIEW

The district court granted OUI's summary judgment motion on all counts. Regarding the handicapped discrimination claim, the court found that August was not a "qualified handicapped person" and that, even if he was, OUI had made all necessary reasonable accommodations to his handicap. The appropriate standard of review for cases disposed of by summary judgment was recently articulated by this Court in another employment discrimination case. Since appellate review of a grant of summary judgment is plenary, the court of appeals, like the district court, "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." An appellate panel is not restricted to the district court's reasoning but can affirm a summary judgment on any independently sufficient ground. In the end, the entry of summary judgment can be upheld only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (citations omitted), cert. denied, --- U.S. ----, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992); see Fed.R.Civ.P. 56.

We accordingly review the district court's grant of summary judgment de novo, looking at the entire record in the light most favorable to August. However, to avoid summary judgment, August must be able to point to specific, competent evidence to support his claim. Wynne v. Tufts Univ. School of Medicine, 976 F.2d 791, 795 (1st Cir.1992); Mesnick, 950 F.2d at 822. Mere allegations, or conjecture unsupported in the record, are insufficient to raise a genuine issue of material fact. Wynne, 976 F.2d at 795; Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989).

III. DISCUSSION

"Chapter 151B protects people against unlawful discrimination. It does not protect against all instances of arbitrary action or from poor managerial judgment." Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 355 N.E.2d 309, 314 (1976). The provision under which August sued protects only "qualified handicapped persons." See Mass.Gen.L. ch. 151B, § 4(16). Thus, August must demonstrate that he is a "qualified handicapped person." Conway v. Boston Edison Co., 745 F.Supp. 773, 781 (D.Mass.1990); Mueller v. Corenco Corp., 13 M.D.L.R. 1146, 1153 (Mass.Comm'n Against Discrim.1991); Silva v. Fairhaven Marine, Inc., 11 M.D.L.R. 1173, 1183 (Mass.Comm'n Against Discrim.1989). Massachusetts statute Mass.Gen.L. ch. 151B, § 1(16) defines the term "qualified handicapped person" as "a...