Martino v. Forward Air Inc

• Decision Date: 14 June 2010
• Docket Number: No. 09-1663.,09-1663.
• Citation: 609 F.3d 1
• Parties: Edward MARTINO, Plaintiff, Appellant,v.FORWARD AIR, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

609 F.3d 1

Edward MARTINO, Plaintiff, Appellant,v.FORWARD AIR, INC., Defendant, Appellee.

No. 09-1663.

United States Court of Appeals First Circuit.

Heard Feb. 3, 2010.

Decided June 14, 2010.

Kevin G. Powers with whom Linda Evans and Rodgers, Powers & Schwartz LLP were on brief for appellant.

David C. Casey with whom Amy E. Mendenhall and Littler Mendelson P.C. were on brief for appellee.

Catherine Ziehl, General Counsel/Special Assistant Attorney General, and Beverly Ward, Commission Counsel, were on brief for the Commonwealth of Massachusetts Commission Against Discrimination, amicus curiae.

Before LYNCH, Chief Judge, SOUTER, Associate Justice,^* and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Edward Martino, the plaintiff-appellant, brought a variety of claims against Forward Air alleging that the company did not hire him because of discrimination based on disability. The district court dismissed two of his claims during trial, concluding that the statutes at issue did not provide private rights of action. The jury found in favor of Forward Air, determining that the company had not discriminated based on disability when it decided not to hire Martino.

On appeal, Martino does not contest the jury verdict as to discrimination. He only argues that the district court improperly dismissed his claim that Forward Air committed a separate, actionable wrong by making a preemployment inquiry regarding his workers' compensation history. Martino brought this “illegal inquiry” claim under both the Massachusetts Fair Employment Practices Act, Mass. Gen. Laws ch. 151B, § 4(16), and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d)(2). The district court dismissed both claims but Martino only appeals the dismissal of the state law claim.

We review the grant of a motion to dismiss de novo. See Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir.2005). In order to survive a motion to dismiss, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” SEC v. Tambone, 597 F.3d 436, 444 (1st Cir.2010) (en banc) (quoting Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (internal quotation marks omitted). We accept as true all well-pleaded facts in the complaint and make all reasonable inferences in plaintiff's favor. See Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 11 (1st Cir.2010).

In this case, we do not reach the question of whether the Massachusetts statute provides an independent cause of action for preemployment inquiries regarding disability. Rather, because the jury already concluded that Martino suffered no discriminatory harm and he has alleged no other cognizable harm, we conclude that, even if we assume that a private cause of action is available, Martino's claim would necessarily fail.

The facts of the case are straightforward. Edward Martino had long worked in the freight forwarding industry. In 2003 he was seriously injured on the job. As a result, he was out of work for two years and received a workers' compensation settlement. In 2005, having heard that Forward Air was considering creating a new position for which he might be qualified, Martino submitted an employment application and signed a background check authorization form. During his interview, when asked about his two-year employment gap, Martino stated that he had been out on workers' compensation leave while recovering from his injuries. In response, the Forward Air manager conducting the interview asked that Martino provide a doctor's note stating that he was cleared to return to work. The manager also informed Martino that he was unsure whether he would create the new position but would remain in contact with Martino. The manager submitted a background check request to a company called Pre-employ.com,¹ and specifically requested information regarding Martino's workers' compensation history.² A few months later, according to Forward Air, the company decided not to create the new position for business reasons, and so informed Martino. At trial, Martino alleged that the manager told him (and, at another point, also told Martino's wife, who works in the same industry) that the background check revealed that Martino had a workers' compensation history, that hiring him would cause the company's insurance rates to rise, and that he would therefore be a “liability” for Forward Air.

Martino brought a variety of discrimination claims against Forward Air under both state and federal law. During trial, the district court, in an oral order, dismissed Martino's claims that Forward Air's preemployment inquiry regarding Martino's workers' compensation history constituted independent, actionable violations of Massachusetts and federal law (respectively, Mass. Gen. Laws ch. 151B, § 4(16) and 42 U.S.C. § 12112(d)(2)). The district court's reason for dismissing these “illegal inquiry” claims was as follows:

[I]t is my view that both the federal and state law ban discrimination, and that an improper [workers'] compensation inquiry is one way that you can prove there was a discriminatory intent. I do not think it is a freestanding cause of action, because I cannot find anything in the statute itself that specifically ties damages to that act itself, although I agree, as I instructed the jury that it is relevant to their consideration of whether there was, in fact, discriminatory conduct.

Following dismissal of the illegal inquiry claims, the jury was tasked with deciding whether Forward Air discriminated against Martino based on disability. The judge instructed the jury that it was free to consider the alleged inquiry into Martino's workers' compensation history as proof of discriminatory animus. The jury returned a verdict favorable to Forward Air, finding that it did not discriminate. Presumably the jury believed Forward Air's explanation that it chose not create the new position for business reasons alone.

As previously stated, Martino only appeals the district court's dismissal of his illegal inquiry claim brought under the state statute, which reads as follows:

It shall be an unlawful practice:

16. For any employer, personally or through an agent to 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, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business. For purposes of this subsection, the word employer shall include an agency which employs individuals directly for the purpose of furnishing part-time or temporary help to others.

In determining whether an accommodation would impose an undue hardship on the conduct of the employer's business, factors to be considered include:-

(1) the overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget or available assets;

(2) the type of the employer's operation, including the composition and structure of the employer's workforce; and

(3) the nature and cost of the accommodation needed. Physical or mental job qualification requirement with respect to hiring, promotion, demotion or dismissal from employment or any other change in employment status or responsibilities shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job.

An employer may not make preemployment inquiry of an applicant as to whether the applicant is a handicapped individual or as to the nature or severity of the handicap, except that an employer may condition an offer of employment on the results of a medical examination conducted solely for the purpose of determining whether the employee, with reasonable accommodation,

is capable of performing the essential functions of the job, and an employer may invite applicants to voluntarily disclose their handicap for purposes of assisting the employer in its affirmative action efforts.

Mass. Gen. Laws ch. 151B, § 4(16) (emphasis added).

The parties and amicus curiae, the Massachusetts Commission Against Discrimination (MCAD), dispute whether this statute provides a private right of action on the basis of an illegal inquiry alone. We are sympathetic to the district court's conclusion that the statute's plain language does not provide such a cause of action because the statute makes discrimination based on disability an “unlawful practice,” but does not do the same for the paragraph discussing preemployment inquiries. On the other hand, the MCAD argues that the illegal inquiry paragraph applies to the broader class of job “applicants,” rather than just the narrower class of “employees” covered by the first paragraph, and therefore permits a cause of action for an illegal preemployment inquiry, even without proof of disability.³ While there are some differences in the relevant language of the ADA and of Mass. Gen. Laws ch. 151B, § 4(16), the MCAD notes several federal cases which it says supports its position. See, e.g., Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1213-14 (11th Cir.2010) (interpreting the ADA's illegal inquiry provision, 42 U.S.C. § 12112(d)(2), as applying to the broader class of “applicants” and therefore creating an independent cause of action that does not require proof of disability). In addition, it is instructive that several circuit courts have concluded that...