Furtado v. Standard Parking Corp., Civil Action No. 10–11231–WGY.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 820 F.Supp.2d 261,44 NDLR P 65
• Docket Number: Civil Action No. 10–11231–WGY.
• Parties: Paul FURTADO, Plaintiff, v. STANDARD PARKING CORPORATION, Kenneth Santiago, and William Hajjar, Defendants.
• Decision Date: 27 October 2011

44 NDLR P 65
820 F.Supp.2d 261

Paul FURTADO, Plaintiff,
v.
STANDARD PARKING CORPORATION, Kenneth Santiago, and William Hajjar, Defendants.

Civil Action No. 10–11231–WGY.

United States District Court, D. Massachusetts.

Oct. 27, 2011.

[820 F.Supp.2d 266]

Robert D. Costello, Richard F. Landrigan, Costello & Landrigan, Somerville, MA, for Plaintiff.

James M. Hlawek, Daniel B. Klein, Seyfarth Shaw, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER YOUNG, District Judge.I. INTRODUCTION

Paul Furtado (“Furtado”) alleges that his employer, Standard Parking Corporation (“Standard Parking”), and supervisors, Kenneth Santiago (“Santiago”) and William Hajjar (“Hajjar”) (collectively the “Defendants”), violated his rights under the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and the Massachusetts Anti–Discrimination Statute by failing to accommodate his psychological disabilities and by firing him because of his disability and because he requested leave under the FMLA. The Defendants move for summary judgment.

A. Procedural Posture

Furtado filed his complaint on July 22, 2010. Compl., ECF No. 1. The Defendants filed the instant motion for summary judgment on June 15, 2011. Defs.' Mot. Summ. J., ECF No. 15. The Court heard oral arguments on July 13, 2011, and took the matter under advisement.

B. Facts

This recital recounts the undisputed facts and the disputed facts in the light most favorable to Furtado, the nonmoving party.¹

Furtado worked for Standard Parking from September 9, 1999, until July 23, 2008, when he was terminated. Compl. ¶ 10. Standard Parking provides parking and transportation services to the Massachusetts Institute of Technology (“MIT”). Defs.' Statement Undisputed Facts (“Defs.' Facts”) ¶ 8, ECF No. 17. ² One of the services offered by Standard Parking is the “Saferide Program,” a nightly shuttle service for members of the MIT community. Id. Furtado began as a shuttle driver for the Saferide Program in 1999 and over his years of employment was promoted to “on call” supervisor, supervisor, assistant manager, and ultimately, in 2006, manager of the Saferide Program. Compl. ¶ 11. As a manager, Furtado's duties included tracking drivers and other employees, overseeing nighttime operations (Saferide managers worked only in the evening because the Saferide Program did not operate during the day), handling dispatch, and dealing with situations such as on-site emergencies and accidents. Id. ¶¶ 12, 18; Defs.' Facts ¶ 15. At all relevant times, Furtado's direct supervisor was Santiago. Defs.' Facts ¶ 16. Santiago reported to Hajjar, the Senior Manager of the MIT branch of Standard Parking.

[820 F.Supp.2d 267]

Id. ¶ 17. Santiago and Furtado were close friends, having grown up together, and Santiago even viewed Furtado “like a sibling.” Santiago Dep. 77:14, ECF No 18–8; Compl. ¶ 28.

In 2001, Furtado began suffering from verbal, emotional, and physical abuse from his then girlfriend. Furtado Aff. ¶ 1, ECF No. 22–1. In July 2005, Furtado found his girlfriend, who was pregnant with the couple's second child, in the bathroom of their apartment with self-inflicted throat and wrist wounds. Id. ¶ 2. Furtado initiated custody proceedings and in 2007 was awarded sole legal custody of the couple's two sons. Id. ¶ 3.

On several occasions beginning in 2007, Furtado told Santiago and Hajjar about the issues he was having with his girlfriend, his difficulty in obtaining custody of his children, and the emotional toll these events were taking on him. Id. ¶ 3. He told Santiago and Hajjar that he was “losing it” and experiencing “physical shakes,” anxiety, sleeplessness, fear of leaving his home, and depression. Id. at ¶¶ 3, 7–9; Furtado Dep. 45:7, ECF No. 18–6.

Because of these emotional issues and to be able to see his sons more, Furtado made repeated requests to move to a day shift. Furtado Aff. ¶ 4. These requests began around July 2007. Furtado Dep. 43:9–14. Santiago explained to Furtado that Saferide managers did not work during the day, and thus there were no day positions available, but told Furtado that he would look into whether other options existed for modifying Furtado's work schedule. Furtado Aff. ¶ 5; Santiago Dep. 80:3–6. Furtado claims that he was willing to take a demotion or reduction in pay so that he could work a day shift but that Santiago never came back to him with any options. Furtado Aff. ¶ 6. Furtado never changed positions.

In January 2008, Furtado's work performance as a manager during the prior calendar year was evaluated. Defs.' Facts ¶ 33. He received an overall rating of “below expectations.” Id.; 2007 Evaluation 5, ECF No. 18–10. Santiago and Hajjar noted that Furtado was “not readily motivated on projects or his daily duties,” that he “need[ed] to work on getting his reports in on time,” and that he “ha[d] not been managing effectively due to his lack of interest or caring in his position.” 2007 Evaluation 2, 3. The evaluation also noted that “[i]n past years [Furtado] ha[d] been a great supervisor. This year [2007] seems to have been a struggle with him between his job and personal life.” Id. at 2. Furtado received and signed off on this performance review. Id. at 5.

On April 8, 2008, Furtado was issued a written warning for “Substandard Work” and “Carelessness,” which noted that the day before he had not inspected a bus that had vomit inside it when it returned from its route, and had left another bus in an improper location. Employee Discipline Report, April 8, 2008, ECF No. 18–11. This forced Standard Parking to operate its shuttle schedule without the full fleet of buses the next day. Defs.' Facts ¶ 38. On May 12, 2008, Furtado was issued another initial warning for “Substandard Work” and “Procedure/Rule Violation” for failing to check the buses at the end of his shift, leading the batteries in two of the buses to die. Employee Disciplinary Report, May 12, 2008, ECF No. 18–12. This initial warning also noted that Furtado, without notifying Santiago or Hajjar, had another employee close the parking facility and failed to fill out reports for the shuttle routes that weekend. Id. Furtado was cautioned that another warning would result in suspension. Id.

[820 F.Supp.2d 268]

In May 2008, Furtado commenced psychological treatment for depression, anxiety, and post-traumatic stress disorder with Dan Pollets, Ph.D. (“Dr. Pollets”). Furtado Aff. ¶ 10; Compl. ¶ 27; Defs.' Facts ¶¶ 84–85; Dr. Pollets Referral Letter, ECF 22–5. This fact was not disclosed to Santiago or Hajjar at the time. Defs.' Facts ¶ 86.

As a manager of the Saferide Program, Furtado received a Nextel cellular telephone from MIT. Furtado Aff. ¶ 18; Defs.' Facts ¶ 25. The cell phone enabled Furtado to communicate with the drivers in case of mechanical problems, accidents, or other issues. Defs.' Facts ¶¶ 26–27; Defs.' Mem. L. Supp. Defs.' Mot. Summ. J. (“Defs.' Mem.”) 4, ECF No. 16. On June 20, 2008, Larry Brutti (“Brutti”), an MIT employee, informed Santiago that the charge for Furtado's Nextel phone for the billing cycle from May 4 to June 3, 2008, was $527.03—over $450 more than the typical bill. Defs.' Facts ¶ 46–48; Nextel Bill, June 7, 2008, ECF No. 18–13. The majority of the charges were for phone calls or text messages to Furtado's then girlfriend, Kathleen Taylor (“Taylor”). Defs.' Facts ¶¶ 52–53. Of the over sixty-three hours of calls or texts to Taylor, nearly forty-one hours were made between 4:30 p.m. and 4:30 a.m., when Furtado was at work for Standard Parking. Id. ¶¶ 53–54.

Brutti was “ticked off” about the excessive charges and asked Santiago to address them with Furtado. Id. ¶¶ 49, 55; Santiago Dep. 51:1–2. Santiago responded by suspending Furtado for three days (June 21 to June 23, 2008). Employee Disciplinary Report, June 20, 2008, ECF No. 18–15. Santiago also asked Furtado to pay back the excessive charges, and on June 28, 2008, Furtado signed an agreement to pay $40 per month until the charges were repaid. Repayment Agreement, June 28, 2008, ECF No. 18–16.

Also on June 28, 2008, after Furtado had returned to work from his suspension, Santiago gave him an “Intent to Improve” memorandum which stated that if Furtado's performance did not improve over the next ninety days, “further action [would] be taken, up to and including termination from Standard Parking.” Intent to Improve Mem., June 28, 2008, ECF No. 18–7; Defs.' Facts ¶ 59. This essentially created a 90–day probationary period.

On July 6, 2008, Furtado met with Mark Eisenberg, M.D. (“Dr. Eisenberg”) at Massachusetts General Hospital Charlestown HealthCare Center upon referral from Dr. Pollets. Certification Health Care Provider, July 6, 2008, ECF No. 22–6. Dr. Eisenberg completed a “Certification of Health Care Provider” form pursuant to the FMLA, stating that Furtado's psychological issues prevented him from working and that he would benefit from a three-month leave to receive intensive treatment. Id. at 1–2. On July 7 or July 8, 2008, Furtado showed Santiago the FMLA form completed by Dr. Eisenberg, as well as a letter from Dr. Pollets detailing his psychological diagnoses, and requested to take leave from work. Furtado Aff. ¶ 11. This was the first time that Furtado had shown any of the Defendants documentation regarding his mental health condition. Defs.' Facts ¶ 86. Furtado did not complete a Standard Parking-provided “Request for Family Medical Leave” form pursuant to the FMLA, but claims that no one ever told him he had to do so. Furtado's Aff. ¶ 12; Defs.' Facts ¶¶ 87–90. Santiago suggested that Furtado take a two-week paid vacation while he looked into Furtado's options under the FMLA. Defs.' Facts ¶ 91; Compl. ¶ 32. Furtado took this vacation beginning July 13, 2008. Compl. ¶ 33.

On July 21, 2008, Brutti informed Santiago that Furtado's Nextel bill was, again,

[820 F.Supp.2d 269]

significantly higher than average. Defs.' Facts ¶¶ 60–61. For the billing cycle from June 4 to July 3, 2008 (the billing...