Talbert Trading Co. v. Massachusetts Com'n Against Discrimination

• Citation: 37 Mass.App.Ct. 56,636 N.E.2d 1351
• Decision Date: 31 October 1994
• Docket Number: No. 92-P-1831,92-P-1831
• Parties: , 3 A.D. Cases 824, 5 NDLR P 282 TALBERT TRADING COMPANY v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.
• Court: Appeals Court of Massachusetts

Page 1351

636 N.E.2d 1351

37 Mass.App.Ct. 56, 3 A.D. Cases 824,

5 NDLR P 282

TALBERT TRADING COMPANY v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.

No. 92-P-1831.

Appeals Court of Massachusetts,

Worcester.

Argued Jan. 10, 1994.

Decided July 22, 1994.

Further Appellate Review Denied Oct. 31, 1994.

Richard T. Tucker, for plaintiff.

Eugenia M. Guastaferri, for defendant.

Before KASS, PORADA and GREENBERG, JJ.

GREENBERG, Justice.

From November, 1979, until his dismissal in March, 1985, Arthur Caddell (the employee) was employed by Talbert Trading Company (the employer). On Friday, March 22, 1985, the employee experienced chest pains while at work. As he suffered from a preexisting heart condition, he became apprehensive and consulted with his cardiologist during the ensuing weekend. He was admitted to the hospital for observation on Sunday, March 24, 1985. Upon his return to work on the following Friday, he learned that, earlier in the week, a decision had been made by the employer to terminate his employment.

On April 1, 1985, the employee filed a complaint with the Massachusetts Commission Against Discrimination (the commission) alleging that the employer had discriminated against him on the basis of a "handicap," in violation of G.L. c. 151B, § 4(16). ¹ After an investigation, the commission found probable cause to credit the employee's allegations, and a hearing was held before a hearing commissioner. The hearing commissioner found that in terminating the employee the employer had discriminated against the employee on the basis of his heart condition, which the commissioner found qualified as a handicap. He also determined that, by not permitting him a four-day absence, the employer did not reasonably accommodate the employee's handicap. The employee was awarded a total of $18,450.40 in damages. That amount included $10,000 for emotional distress resulting from the discharge, $5,000 in back pay, and $3,450.40 in lost pension benefits, plus interest at the statutory rate of twelve percent per year.

The employer appealed to the full commission, which affirmed the decision of the hearing commissioner, concluding that his decision was supported by substantial evidence and was a correct application of the law, and to the Superior Court, see G.L. c. 30A, § 14, arguing that the decision was not supported by substantial evidence. ² The judge affirmed the commission's decision. From the ensuing judgment, incorporating the commission's order, the employer appeals.

We summarize the facts as they were found by the hearing commissioner. For six years, the employee, who was fifty-one years of age at the time of his discharge, was employed as a press operator in the baling department by the employer, an exporter of second-hand clothing to third-world countries. As a baler, the employee packed clothing into large (five to seven hundred pounds) bundles. At the time of his hiring, he had disclosed that he suffered from a heart condition. During the entire time he was employed, however, that condition never affected his ability to do his job. His attendance at work was exemplary.

In March of 1985, there were about 150 persons employed in the employer's Worcester facility. On an annual basis, the employer experienced a 300% turnover rate of employees. To avoid disruption of the workplace because of this circumstance, and given the history of employees leaving the company without warning, the employer posted a notice above the company's time clock that stated: "NOTICE TO ALL EMPLOYEES IF FOR SOME LEGITIMATE REASON, YOU ARE UNABLE TO COME TO WORK, WE EXPECT YOU TO CALL AND LET US KNOW--PROMPTLY IN THE MORNING." Prospective employees were also told, at the time of hiring, that they were required to call the company on any day when illness prevented attendance at work.

We return to the employee's case. When he experienced chest pains on Friday morning of March 22, this was not a novel experience; he continued to operate his baling press until day's end. On Monday, March 25, the employee's ex-wife, who was also employed by the company, called his supervisor, and informed him that the employee had been admitted the day before to the hospital for observation. The supervisor was not left with the impression that the employee might be out for an extended period of time, or that the employee actually had suffered a heart attack. He told the employee's wife to "keep [him] informed of the situation."

On the third day of the employee's absence from work, Wednesday, March 27, a decision was made by the employer to replace him, purportedly because he had violated company policy by not making a daily telephone report. Someone in the higher echelon of the company (not his supervisor) decided to replace him in the event he failed to return to work the following day. At trial, the employer claimed (without much information to substantiate the claim) that the employee's position had to be filled immediately because the absence of a baler would disrupt its entire operation. As it turned out, the employee showed up for work on Friday, March 29, ready to resume work without any restrictions, but he was told that he no longer had a job.

1. Application of G.L. c. 151B, § 4(16). General Laws c. 151B, § 4(16), as inserted by St.1983, c. 533, § 4, provides in pertinent part: "It shall be an unlawful practice ... [f]or any employer ... to dismiss from employment or refuse to ... rehire ... 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 ... would impose an undue hardship to the employer's business." To prove a case of handicap discrimination under the statute, the employee has the burden of persuading the fact finder that the employee (1) is a handicapped person; (2) is otherwise "capable of performing the essential functions of the position"; and (3) is being excluded from the position solely by reason of the handicap. Cox v. New England Tel. & Tel., 414 Mass. 375, 383, 607 N.E.2d 1035 (1993). Conway v. Boston Edison Co., 745 F.Supp. 773, 781-782 (D.Mass.1990).

a. Heart disease as handicap. Although the employer does not raise it, there is an initial hurdle for the employee: to our knowledge, no Massachusetts court has passed on the issue whether a person with heart disease qualifies for the special protections of G.L. c. 151B, § 4(16).

General Laws c. 151B, § 4(16), is patterned after the Federal Rehabilitation Act of 1973, 29 U.S.C. § 791 (1988). Numerous Federal decisions that have construed the equivalent Federal law have held that persons with heart conditions similar to the employee's in this case are regarded as handicapped. See Bey v. Bolger, 540 F.Supp. 910, 927 (E.D.Pa.1982); Bento v. I.T.O. Corp. of R.I., 599 F.Supp. 731, 741 (D.R.I.1984); Johnson v. Sullivan, 764 F.Supp. 1053, 1065 (D.Md.1991). The United States Department of Health and Human Services includes heart disease among those conditions covered by the Rehabilitation Act. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 280 n. 5, 107 S.Ct. 1123, 1127 n. 5, 94 L.Ed.2d 307 (1987).

General Laws c. 151B, § 1(17), as inserted by St.1983, c. 533, § 2, defines the term "handicapped person" as "any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, has a record of such impairment, or is regarded as having such impairment." Guidelines promulgated by the Commission in 1986 "explain the term [handicapped person] to include, for example, ... individuals who are obese or have high blood pressure and thus may be 'regarded as having an impairment' that the employer believes may drive up insurance rates." Heins, Massachusetts Civil Rights Law, 76 Mass.L.Rev. 26, 30 (1991).

Although the hearing commissioner did not discuss in what manner the employee's heart disease "substantially limits one or more [of his] major life activities," the commission could, in the exercise of its administrative functions, promulgate, as it did, guidelines that make such impairment a presumption in the case of a person who suffers from heart disease. Under the circumstances contained in this record, the commission properly concluded that the employee's heart condition qualified him under G.L. c. 151B, § 1(17), as a handicapped person. ³ We conclude that persons suffering from heart disease or other cardiac conditions known to their employers at the time of hiring and who are otherwise able to perform their work, are protected by the statute from discharge solely on account of their heart condition.

b. Employer's perception of handicap. The employer challenges the finding that the employee was perceived or regarded by the employer to be handicapped, which finding, it argues, "was seized upon by the Superior Court [judge] to base his finding that [the employee] had established a prima facie case." While the record in this case does not indicate that the employee suffered limitations of any major life activities other than the one incident which led to his firing, there was ample evidence to suggest that he had a known history of a heart condition and that he was regarded by his employer as someone with a heart condition at the time of the hiring. Testimony that he suffered a heart condition since 1969, was under a doctor's care, took medication for his condition, and submitted a note from his doctor to his employer advising of his heart trouble was uncontested at the hearing before the hearing commissioner. The conclusion that the employee's impairment and the employer's perception of his handicap were the reasons for his termination is supported by substantial evidence.

2. Claimed failure by employee to explain absence. The employer's principal argument is that it did not fire the...