Miller v. Verizon Communications, Inc., Civil Action No. 05-30117-KPN.

• Decision Date: 07 February 2007
• Docket Number: Civil Action No. 05-30117-KPN.
• Parties: Kathleen MILLER, Plaintiff v. VERIZON COMMUNICATIONS, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

474 F.Supp.2d 187

Kathleen MILLER, Plaintiff v. VERIZON COMMUNICATIONS, INC., Defendant.

Civil Action No. 05-30117-KPN.

United States District Court, D. Massachusetts.

February 7, 2007.

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Michael O. Shea, Anne S.Diebold, Law Office of Michael O. Shea, Wilbraham, MA, for Plaintiff.

Timothy P. Van Dyck, Windy L. Rosebush, Edwards Angell Palmer & Dodge LLP, Boston, MA, Brian H. Lamkin, Manchel & Brennan, P.C., Newton, MA, for Defendant.

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 28)

NEIMAN, Chief United States Magistrate Judge.

Kathleen Miller ("Plaintiff"), who suffers from diabetes, brings this employment discrimination action against her former employer, Verizon Communications, Inc. ("Defendant"), alleging disability discrimination and retaliation in violation of the American with Disabilities Act, 42 U.S.C. § 12101 et seq. ("the ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 706 ("the Rehabilitation Act"), and Mass. Gen. L. ch. 151 B ("chapter 151 B"). Defendant, in response, alleges that it acted appropriately when it discharged Plaintiff for excessive absenteeism.

The parties have consented to the jurisdiction of this court, see 28 U.S.C. § 636(c), and Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons indicated below, Defendant's motion will be allowed with respect to the Rehabilitation Act claim, but otherwise denied.

I. STANDARD OF REVIEW

When ruling on a motion for summary judgment, the court must construe the facts in a light most favorable to the nonmoving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). Summary judgment is appropriate when "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). For this purpose, an issue is "genuine" when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is "material" when it might affect the outcome of the suit under the applicable law. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1 st Cir.1994). The nonmoving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

II. BACKGROUND

The following facts are stated in a light most favorable to Plaintiff, the nonmoving party. See Uncle Henry's Inc. v. Plant Consulting Co., 399 F.3d 33, 41 (1st Cir. 2005). Additional facts are addressed in the discussion section below.¹

A. Plaintiff's Job and Defendant's Attendance Policies

Plaintiff was hired as a Customer Service Representative ("CSR") in June of 1998 by Defendant's predecessor, Bell Atlantic. (Defendant's Facts ¶ 1.) Plaintiff's duties consisted of "handling the onslaught of incoming calls into the customer service center." (Id. ¶ 5.) She was required to spend a considerable amount of time communicating with customers — fielding about fifty to seventy calls per day — and was extensively monitored by her supervisors. (Id. ¶¶ 6, 7, 18, 19.)

The CSR job is subject to attendance guidelines. (Id. ¶ 20.) These guidelines, set out in an employee handbook, state that Defendant "has a right to expect and receive an acceptable level of productive attendance from each employee." (Id. ¶ 24.) The guidelines further state that, although Defendant "may be patient and forbearing with extraordinary bona fide illnesses or personal problems, it has a right to take appropriate steps to obtain an acceptable level of productive attendance." (Id.) Similarly, the CSR job description, referred to as the "Job Brief," states that CSRs may be required to "work day, evening, and weekend shifts, [as well as] overtime, and holidays as assigned." (Id. ¶ 16.)

Defendant also has a Family Medical Leave Act ("FMLA") policy which states that employees who are unable to work, for whatever reason, must first call a toll-free number to request leave and then contact and inform a manager of the impending absence. (Id. ¶ 26.) Defendant does not offer sick days. (Plaintiff's Facts ¶ 48.) Rather, all absences have to be approved through the FMLA policy process. (Id.) According to Plaintiff, unapproved absences are considered un-excused and, unless the employee receives subsequent approval from a manager, she may be disciplined for such absences. (Id.)

Defendant's disciplinary process for absent employees entails several steps. First, the employee is given a series of warnings. (Defendant's Facts ¶¶ 20-25.) If the employee's absences continue, a series of suspensions are then imposed. (Id.) After a final thirty-day suspension, the employee is given a final warning. (Id.) Should the employee have any more unapproved absences within a year's time, she is terminated. (Id.)

B. Plaintiffs Diabetes

Plaintiff was first diagnosed with diabetes in February of 2000. (Id. ¶ 27.) As discussed more fully below, Plaintiff asserts that her condition limits her "major life activities" of working, sleeping, eating and basic mobility. (Id. ¶¶ 29-36.) While Defendant disputes those legal conclusions, it agrees that, at least, Plaintiff had to modify her diet because of her diabetes. (Id. ¶¶ 29, 42. See also Plaintiff's Facts ¶ 29.) Defendant also acknowledges that it is necessary for Plaintiff to regularly check her blood sugar, get sufficient rest, and take medication. (Defendant's Facts ¶¶ 42, 43.)

C. Plaintiffs Discipline and Termination

Plaintiff adhered to Defendant's attendance policies without major incident for the first few months of her employment and, in 1999, sought and was granted several FMLA-approved absences. (Id. ¶ 55.) Sometime in 2000, however, after Plaintiff's diabetes diagnosis, Defendant began taking disciplinary action against Plaintiff for excessive absenteeism. (See Memorandum of Law in Support of Defendant's Motion for Summary Judgment (Document No. 29, hereinafter "Defendant's Brief") at 10.) Subsequently, in July of 2001, Plaintiff was denied FMLA leave because she had not worked sufficient hours in the previous year. (Defendant's Facts ¶ 62.) Plaintiff then began to accrue several unapproved absences. (Id. ¶¶ 62, 63.) Plaintiff now claims that most of these absences were diabetes-related. (Plaintiff's Facts ¶¶ 56, 57.)

By August of 2001, Defendant suspended Plaintiff for excessive absenteeism. (Defendant's Facts ¶ 64.) Plaintiff was suspended again in September. (Id. ¶ 65.) At about the same time, Plaintiff requested that Defendant "accommodate" her medical condition with a modified work schedule. (Id. ¶ 85.) She asked one of her managers if she could (1) take personal or vacation time instead of a sick day, (2) reduce her work schedule so that she could come in late on the days that she was ill, or (3) switch to part-time employment for a definite period of time. (Plaintiff's Facts ¶ 84.) Although Defendant denied these requests (id.), it did recommend that Plaintiff seek the assistance of the company's Employee Assistance Program ("EAP") (Defendant's Facts ¶ 80). Plaintiff declined to contact the EAP. (Id. ¶ 83.)

Approximately one year later, in August of 2002, Plaintiff received a final warning. (Id. ¶ 69.) Then, on January 22, 2003, Plaintiff left work early and never returned. (Id. ¶ 71.) Plaintiff's subsequent application for FMLA leave was denied and she was fired on February 11, 2003. (Id. ¶ 72.) Since April of 2003, Plaintiff has been employed by the Magic Wings Butterfly Conservatory ("Magic Wings") and is currently its general manager. (Id. ¶¶ 106, 107.)

III. DISCUSSION

In the present five-count action, Plaintiff asserts that her termination resulted from discrimination and retaliation by Defendant because of her diabetes. At the outset, however, the court, with the agreement of Plaintiff, will allow Defendant's motion for summary judgment with respect to one of those counts, the Rehabilitation Act claim (Count V), since there is no evidence that Defendant is a program receiving federal funds. See 29 U.S.C. § 794(a). The remaining counts are Plaintiff's claims of disability discrimination (Counts I and III) and retaliation (Counts II and IV) in violation, respectively in each instance, of chapter 151 B and the ADA. In the end, the court will deny Defendant's motion for summary judgment with respect to these four causes of action, albeit by a slim margin.

A. Disability Discrimination (Counts I and III)

To state a prima facie case of disability discrimination under the ADA, "a plaintiff must prove by a preponderance of the evidence that: (1)[she] was disabled within the meaning of the Act; (2)[she] was a qualified individual with a disability, i.e. able to perform the essential functions of the position with or without reasonable accommodation; and (3)[she] was discharged because of her disability." Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 32-33 (1st Cir.2000) (citations omitted). These three elements must also be proven for disability discrimination claims under chapter 151 B. See id. at 33 n. 2 (citing Labonte v. Hutchins & Wheeler, 424 Mass. 813, 678 N.E.2d 853, 856 n. 5 (997); Wheatley v. Am. Tel. & Tel. Co., 418 Mass. 394, 636 N.E.2d 265, 268 (1994)). See also Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 20 n. 5 (1 st Cir.2002) (noting that chapter 151 B "tracks the ADA in virtually all respects"). Defendant challenges Plaintiff's ability to prove each of these three elements.

1. "Can Plaintiff show that she is disabled"?

A plaintiff is considered disabled under both the ADA and chapter 151 B if she "(A) [has] a physical or mental impairment that substantially limits one Or more of [her] major life activities; (B) [has] a record of such an impairment; or (C) [is]...