Dartt v. Browning-Ferris Industries, Inc. (Mass.)

• Decision Date: 26 February 1998
• Docket Number: BROWNING-FERRIS
• Citation: 691 N.E.2d 526,427 Mass. 1
• Parties: , 12 NDLR P 37 Brian A. DARTT v.INDUSTRIES, INC. (MASS.).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 526

691 N.E.2d 526

427 Mass. 1, 12 NDLR P 37

Brian A. DARTT v. BROWNING-FERRIS INDUSTRIES, INC. (MASS.).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 6, 1997.

Decided Feb. 26, 1998.

Paul J. Murphy (Theodore E. Daiber with him), Boston, for defendant.

Kevin G. Powers, Boston, for plaintiff.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

MARSHALL, Justice.

We clarify today the prima facie standard a plaintiff must meet to establish liability in a case involving a claim of handicap discrimination in violation of G.L. c. 151B, § 4(16). ¹ The defendant, Browning-Ferris Industries, Inc. (Mass.) (BFI), appeals from a jury verdict that it unlawfully fired the plaintiff, Brian A. Dartt, because of a handicap, an earlier work-related injury to his back. BFI maintained that Dartt's prior injury played no role in its decision to terminate him, and that he was terminated because he was grossly negligent when a BFI tractor-trailer that he was operating flipped over. The jury awarded Dartt $83,000 in back pay, $16,000 in emotional distress damages, and $175,000 in punitive damages. BFI filed posttrial motions and Dartt filed a motion for attorney's fees. After a hearing, the judge denied BFI's motions and awarded Dartt substantially all of his attorney's fees. We granted BFI's application for direct appellate review.

We rule that to establish a prima facie case of unlawful employment discrimination on the basis of handicap under G.L. c. 151B, § 4(16), a plaintiff must present credible evidence that (1) he is handicapped within the meaning of the statute; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; (3) he was terminated or otherwise subject to an adverse action by his employer; and (4) the position he had occupied remained open and the employer sought to fill it. ² See Beal v. Selectmen of Hingham, 419 Mass. 535, 541, 646 N.E.2d 131 (1995). See also Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441, 646 N.E.2d 111 (1995). It is not a requirement that a plaintiff show, as part of his prima facie case, that he was terminated "solely" because of his handicap. In this case the judge's instructions were generally consistent with these requirements. We nevertheless conclude that a new trial is required because two of the judge's rulings, described below, constitute prejudicial error. We also conclude that Dartt presented insufficient evidence to support the punitive damages awarded to him.

I

From 1985 until 1992, when he was terminated, Dartt was employed by BFI as a truck driver, first in Colorado and later in Tyngsborough. Dartt operated a ten-wheel tractor-trailer used to transport and dump large loads of waste. In March, 1990, Dartt injured his back when he fell from a trailer while attempting to secure a canvas flap. BFI's safety review board determined that Dartt was not at fault for that accident. As a result of his injury, Dartt was required to undergo two operations and he was unable to work for almost two years. BFI paid Dartt $61,389 in workers' compensation benefits for that injury.

On May 19, 1992, approximately two months after returning to full-time work, Dartt had another accident that precipitated this lawsuit. On that day, the vehicle that Dartt was operating flipped over while he was dumping a load of sludge at a landfill in Rochester, New Hampshire. After he had backed the vehicle to an appropriate location, Dartt engaged the hydraulic dumping mechanism located in the cab of the vehicle to raise the trailer bed. He aborted that initial process when he observed through the vehicle's mirrors that the trailer was rising unevenly. Dartt then moved the vehicle forward to what he thought was more level ground, and commenced the dumping procedure a second time. He testified that, while he watched through two side mirrors as the trailer rose, he reached down for a soda located in a plastic lunch box placed to the right of the driver's seat. To retrieve the soda, Dartt removed the lid on the plastic cooler and then transferred the soda bottle from one hand to the other. Dartt testified that "the next thing [he] knew," the truck had flipped and was lying on its side. Dartt did not sustain any injury, but the accident caused damage to the tractor-trailer.

Dartt immediately telephoned Ernest G. Stone, the district safety manager for BFI, and informed him of the accident. Stone traveled to the landfill to investigate. Dartt told Stone that the vehicle had tipped over while he was reaching for the soda. He testified that he also told Stone that, in his view, the sludge load had stuck to one side of the trailer, creating an imbalance that had caused the vehicle to tip over.

The following morning BFI's management review board consisting of Stone, Ronald Greenwood, BFI's district manager, and Donald Butler, Dartt's immediate supervisor, met to discuss the accident. Based on his observations at the site and on his interview with Dartt, Stone informed the others that it was his view that Dartt had not been paying attention to what he was doing when the truck flipped on its side. Greenwood directed Stone to terminate Dartt for violating BFI's safety policy. ³ A few days later, at his request, Dartt met with Greenwood and Butler to explain the accident. Greenwood told Dartt that he would look into the matter, but Dartt heard nothing further from him.

On May 31, 1992, after Stone had told Dartt he was terminated, BFI's safety review board met to review the accident. The role of the safety review board in employee discipline matters, as described in BFI's policy and procedures manual, is to determine whether an accident was "preventable." The board, composed of managers and other employees, reviews all aspects of the accident with the driver involved, then presents its findings to the district manager for evaluation, and possible disciplinary action, including termination. The driver also is informed of the board's decision, and he may appeal it. The manual provides that after a third "preventable" accident in any twelve-month period, a driver "may" be subject to discharge. ⁴ In this case the board concluded that the accident could have been prevented by Dartt. Although the manual provided that "the board will review all aspects of the accident with the driver involved," Dartt was not informed of the board meeting. Other than this incident, Dartt had a safe driving record, as documented by BFI.

Dartt never claimed that he was injured in the second accident. He argued that he was fired because BFI was concerned that he might file a new claim for workers' compensation, and that BFI wanted to avoid paying him any such compensation. There was evidence that before this accident BFI was concerned about containing what it perceived were escalating workers' compensation claims: Dartt testified that, at one of the weekly safety meetings that he was required to attend, Stone told a group of employees that the number of workers' compensation claims had to be reduced. ⁵ In addition, while Dartt was on the earlier disability leave of absence, BFI's workers' compensation administrator told Stone that BFI would have "exposure for future temporary partial benefits in the event that [BFI] would not be able to accommodate [Dartt] on a permanent basis in a position within his restrictions." ⁶

II

BFI claims that the judge erred in her instructions to the jury on the elements of a prima facie case of handicap discrimination, and that there was insufficient evidence as a matter of law to support a finding of discriminatory termination. We address first BFI's challenge to the judge's instructions. In cases of handicap discrimination brought under G.L. c. 151B, § 4(16), we use the familiar three-stage order of proof that we have recognized in cases alleging disparate treatment ⁷ under G.L. c. 151B, § 4(1), which prohibits discrimination "because of the race, color, religious creed, national origin, sex, sexual orientation ... or ancestry" of an individual. ⁸ Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821, 678 N.E.2d 853 (1997). At issue here is the first stage order of proof--the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441, 646 N.E.2d 111 (1995).

General Laws c. 151B, § 4(16), provides that an employer may not "dismiss from employment or 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" (emphasis supplied). The parties dispute how the term "because of" affects a plaintiff's prima facie burden of proof. At trial, relying on Garrity v. United Airlines, Inc., 421 Mass. 55, 653 N.E.2d 173 (1995), and Tate v. Department of Mental Health, 419 Mass. 356, 361, 645 N.E.2d 1159 (1995), BFI asked the judge to charge the jury that in his prima facie case Dartt had to prove that he was terminated "solely because of his handicap." The judge rejected BFI's request. Relying on Blare, supra, she gave the following charge to the jury:

"To recover, the plaintiff must prove at the outset the following by a fair preponderance of the credible evidence, first, that the plaintiff had a 'handicap' at the relevant time; second, that the plaintiff was a 'qualified handicapped person'; and third, that the plaintiff was terminated by the defendant."

On appeal, BFI argues further that any dispute concerning this issue was put to rest by our recent opinion in Labonte v. Hutchins & Wheeler, 424 Mass. 813, 678 N.E.2d 853 (1997), where we said that it is a plaintiff's burden to establish in his prima facie case that he was terminated "solely" because of his handicap.

We recognize...