Mammone v. President and Fellows of Harvard

• Decision Date: 12 May 2006
• Citation: 847 N.E.2d 276,446 Mass. 657
• Parties: Michael MAMMONE v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 276

847 N.E.2d 276

446 Mass. 657

Michael MAMMONE v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued January 4, 2006.

Decided May 12, 2006.

Betsy L. Ehrenberg (Rebecca G. Pontikes, Boston, with her) for the plaintiff.

John P. Coakley, Boston (Richard J. Riley with him) for the defendant.

The following submitted briefs for amici curiae:

Beverly I. Ward & John Lozada, Boston, for Massachusetts Commission Against Discrimination.

Susan Stefan for Center for Public Representation & others.

Present: GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

CORDY, J.

On March 7, 2003, Harvard University terminated the seven year employment of Michael Mammone. Mammone, who suffers from bipolar disorder and claims that he was terminated due to his mental disability, brought suit against the President and Fellows of Harvard College (university) under the Commonwealth's employment discrimination statute, G.L. c. 151B, § 4(16),¹ and Equal Rights Act, G.L c. 93, § 103.² Relying principally on this court's decision in Garrity v. United Airlines, Inc., 421 Mass. 55, 653 N.E.2d 173 (1995) (Garrity), a judge in the Superior Court granted the university's motion for summary judgment, concluding that, because of his misconduct in the workplace, Mammone could not reasonably expect to prove that he was a "qualified handicapped person," a required showing for protection under both statutes.

A "qualified handicapped person" is one "who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap."³ G.L. c. 151B, § 1(16). In granting summary judgment, the judge found that the workplace misconduct, that led to Mammone's termination was egregious and sufficiently inimical to the interests of his employer that it would have resulted in the termination of a nonhandicapped employee. In these circumstances, the judge concluded, it would be impossible for Mammone to show that he was "capable of performing the essential functions" of his job. Mammone appealed, and we transferred the case to this court on our own motion.

Mammone contends that the reasoning of Garrity, that a handicapped employee who engages in egregious workplace misconduct can be held to the same standard as a nonhandicapped employee who engages in similar misconduct, should be strictly limited to cases involving misconduct resulting from drug or alcohol dependence (as opposed to other handicaps). We conclude otherwise. Nothing in the language we used in Garrity suggests that our holding was meant to be so narrow, and we do not discern any legislative intent to create a distinction that would provide different protections against discrimination to persons suffering from one form of handicap (alcoholism) than the protections provided to persons suffering from other disabilities. Because we conclude that Garrity applies to all employment discrimination cases brought under G.L. c. 151B, § 4(16), and G.L. c. 93, § 103, regardless of the type of handicap underlying the workplace misconduct, we affirm the grant of summary judgment.⁴

1. Factual background. We recount the facts in their light most favorable to Mammone. See, e.g., Joslyn v. Chang, 445 Mass. 344, 345, 837 N.E.2d 1107 (2005); Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), citing Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). Mammone worked as a staff assistant at the university's Peabody Museum (museum) from January, 1996, until his termination on March 7, 2003.⁵ He was usually stationed at the museum's receptionist desk in the main lobby. Among other responsibilities, Mammone was required to direct individual visitors and tour groups to destinations inside the museum, as well as answer any questions such guests might have. In this position, Mammone had significant contact with the public.⁶

Mammone suffers from bipolar disorder.⁷ This mental disease manifests itself in occasional periods of mania (of which paranoia, agitation, hyperactivity, and irrationality are symptoms) and occasional periods of depression. Although Mammone was diagnosed with bipolar disorder in 1987, there is no evidence that, previous to the incidents at issue in this case, his mental disease ever negatively affected his ability to perform his workplace duties. Indeed, there is scant evidence that any of Mammone's supervisors or coworkers knew of Mammone's health problems before the events in question.⁸ During the course of his employment, Mammone received both annual salary increases and positive formal reviews from supervisors.

In the middle of August, 2002, Mammone apparently experienced a manic episode. This episode led to workplace misconduct that eventually resulted in his termination. On August 18, Mammone established a website to decry what he believed were the low wages the university pays some of its employees.⁹ On August 20, while on duty at the museum, he began to distribute flyers summarizing and advertising his website. He also engaged coworkers in loud and animated conversations regarding his website and its content. He frequently used his personal laptop computer to access and update his website during his shift. According to his own testimony, Mammone would sing along with, clap to, and dance to protest songs from his website while stationed at the receptionist desk.¹⁰ On August 22, Mammone's supervisor, Michele Piponidis, informed him, both orally and in writing, that he should not use his laptop computer at work. The next day Mammone sent an electronic mail message to Piponidis refusing to follow her instructions. He continued to bring his laptop computer to work, and to use it in the manner described above, until the date of his termination.

Mammone's manic episode appeared to reach its zenith between August 29 and September 4. On August 29, when he could not find the keys to his house, he began to believe that a conspiracy had formed against him. That night, Mammone stayed at a local YMCA. However, because he believed persons at the YMCA were also involved in the conspiracy, he telephoned the police the next morning. Although Mammone thereafter was brought to a hospital for overnight examination,¹¹ he did not meet the criteria for involuntary civil commitment and was thus released at his own insistence on August 31.¹² On September 3, subsequent to the Labor Day holiday, Mammone returned to work, his mania only worsening.¹³ That day, a staff member of the museum's public programs office explained to Piponidis that Mammone's "belligerent attitude is not only affecting [the museum's] staff, but also visitors to the museum." That night, Mammone was contacted by his union representative, who left him with the impression that Piponidis was seeking to meet with Mammone and a representative of the university's office of labor and employee relations for the purpose of terminating his employment.

On the morning of September 4, 2002, Mammone arrived at work in brightly colored, traditional East Indian dress and adorned with necklaces, bracelets, and rings.¹⁴ While at his desk, he telephoned the police, his mother, his sister, and an attorney with the American Civil Liberties Union (ACLU) and spoke to each person "very loudly." When Piponidis approached him and asked him to join her in a private conference room, Mammone refused. He dismissively flicked his hand at her, saying, "Psst, get away from me, you're evil." Piponidis left the lobby and returned with both Mary Reynolds, the museum's human resources administrator, and two university police officers. The officers informed Mammone that Piponidis and Reynolds wanted him to leave the museum and attend a meeting at the university's office of labor and employee relations the following day. When Mammone refused the officers' request, they explained that if he did not leave after five warnings, he would be arrested for trespassing. After the officers' second warning, Mammone left his desk and sat on the floor in the middle of the lobby. After another three warnings, the officers handcuffed Mammone and placed him under arrest. Because he refused to move, the officers were forced to drag Mammone from the museum. During his arrest, he was told by the police not to return "here."¹⁵

Mammone was charged with trespassing and disorderly conduct and arraigned in the Cambridge Division of the District Court Department.¹⁶ Immediately after his arraignment, Mammone walked back to the museum area to assure his friend, who had witnessed the incident, that he was unharmed.¹⁷ Mammone waited outside the museum for the end of his friend's shift. Then, before the end of the workday, Mammone entered the lobby of a second university museum, the Museum of Natural History, which was adjacent to and internally connected with the museum. Mammone did not believe that the arresting officer's admonition not to return "here" included any location other than the museum itself. Using a telephone in the lobby of the Museum of Natural History, Mammone telephoned the ACLU. During this conversation, Piponidis saw Mammone, approached him, and instructed him to leave the building. Mammone ended his telephone call, left the telephone booth, pointed at Piponidis (and Reynolds, who had joined Piponidis in the lobby close to the telephone booth), and stated, "You fucking whack bitches are going down."¹⁸ Mammone then walked past the women and left the building. Reynolds followed Mammone and hailed a nearby university police officer, who told Mammone to leave the university's campus.

On that same day, after Mammone's arrest, but before the confrontation in the Museum of Natural History, Piponidis had written and sent to Mammone a "final written warning," see note 15, supra, summarizing his problematic workplace misconduct and indicating that this misconduct had "become progressively more...