Ward v. MA Health Research Inst.

• Citation: 209 F.3d 29
• Decision Date: 09 December 1999
• Docket Number: No. 99-1651,99-1651
• Parties: (1st Cir. 2000) MICHAEL J. WARD, Plaintiff, Appellant, v. MASSACHUSETTS HEALTH RESEARCH INSTITUTE, INC., Defendant, Appellee. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 29

209 F.3d 29 (1st Cir. 2000)

MICHAEL J. WARD, Plaintiff, Appellant, v. MASSACHUSETTS HEALTH RESEARCH INSTITUTE, INC., Defendant, Appellee.

No. 99-1651

United States Court of Appeals For the First Circuit

Heard December 9, 1999

Decided April 12, 2000

[Copyrighted Material Omitted] Arnold E. Cohen, with whom Bass, Doherty & Finks, P.C. was on brief, for appellant.

Richard L. Alfred, with whom Marjory D. Robertson, Robert F. Schwartz and Hill & Barlow were on brief, for appellee.

Loretta M. Smith, Cynthia L. Amara and New England Legal Foundation on brief for Associated Industries of Massachusetts, amicus curiae.

Before Torruella, Chief Judge, Cyr, Senior Circuit Judge , and Stahl, Circuit Judge.

TORRUELLA, Chief Judge.

This is an appeal from summary judgment for the defendant employer in a claim of wrongful discharge under the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, and the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B, 1. For the reasons discussed below, we reverse and remand for proceedings consistent with this opinion.

I. BACKGROUND

The following facts are summarized in the light most favorable to the appellant. In September 1991, appellee Massachusetts Health Research Institute ("MHRI") hired appellant Michael Ward to split his time as a lab assistant and as a data entry assistant to the plasma program coordinator. The appellant did not notify MHRI of any disability at this time.

MHRI requires its employees to fill out daily time sheets under a "flex-time" schedule that allows all employees to start work any time between 7:00 and 9:00 a.m. and leave for the day after they have worked seven and a half hours. Beginning in early 1992, Ward would often arrive after 9:00 a.m. -- generally between 9:10 a.m. and 9:35 a.m., but occasionally as late as 10:00 a.m. or 12:00 noon. On those occasions, Ward would still work the required seven and a half hours.

In December 1992, Ward received a performance evaluation indicating that his tardiness interfered with his lab duties. Carly Ferrin-Gardner, the supervisor of the screening laboratory, also issued a verbal warning, confirmed in a December 29, 1992 memorandum, noting that Ward had not made it to work by 9:00 a.m. in over three months. As a result, Ward was reassigned to a full-time data entry position working for Thomas Baldwin. Ward maintains that he informed Ferrin-Gardner at this time that he was late because his arthritis caused stiffness and pain in the mornings.

In Ward's July 29, 1993 written performance review, Ward's supervisor again commented on problems related to Ward's tardiness and his need for constant supervision to complete work in a timely manner. Shortly afterward, on August 4, 1993, one of Ward's doctors sent a note to MHRI identifying Ward as a patient who "suffers from an inflammatory arthritis, which may from time to time cause swelling and pain of the joints and interfere with activities." Ward was subsequently presented with the July review along with an August 13, 1993 written warning that addressed Ward's recurring tardiness despite repeated reprimands and put him on notice that further problems would result in disciplinary action up to and including dismissal. Ward challenges the accuracy of his second review, and again claims that he discussed his arthritis with Ferrin-Gardner.

On October 21, 1993, Ward's supervisor and another employee claim to have seen Ward arrive late, but enter 9:00 a.m. on his time sheet. Even though Ward denied that he falsified the entry, he was suspended for three days without pay.

When he returned to work, he submitted an employment form in which he indicated that he has a disability. He also informed Patricia Leonard, the director of human resources, that he suffered from arthritis and requested a modified work schedule to accommodate his disability. Ward did not provide, and Leonard did not seek, further medical information, before Leonard rejected his request on the ground that the ADA does not require an accommodation that would allow Ward to start work later than other employees -- i.e. the two-hour window in the morning should be sufficiently flexible. Leonard never discussed this conversation with Ferrin-Gardner.

On March 4, 1994, after Ward arrived late on two consecutive days,¹ MHRI terminated his employment for excessive tardiness. At the end of March, Ward's doctor wrote a letter to MHRI, discussing Ward's arthritic condition and explaining among other things that his symptoms "tend to be worse after a period of inactivity, and are especially prominent in the morning."

Ward filed this action on June 20, 1996 alleging that he was wrongfully discharged and was subject to a hostile environment in violation of the ADA and Mass. Gen. Laws ch. 151B, 4(16). The district court granted summary judgment for MHRI on May 7, 1999. On appeal, Ward only raises his claim that the ADA and state disability law were violated because he was not provided with reasonable accommodation of his disability and he was terminated because of his disability.

II. STANDARD OF REVIEW

Summary judgment is appropriate if MHRI has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). We review the district court's summary judgment de novo and assess the facts in a light most favorable to Ward. See Morris v. Government Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994).

Ward will defeat MHRI's motion for summary judgment if he has produced "specific facts, in suitable evidentiary form" that establish the presence of a genuine issue for trial. Id.; see also Fed. R. Civ. P. 56(c). A "genuine" issue is one supported by such evidence that "a reasonable jury, drawing favorable inferences," could resolve it in favor of the nonmoving party. Smith v. F.W. Morse & Co., 76 F.3d 413, 427 (1st Cir. 1996); see also Libertad v. Welch, 53 F.3d 428, 435 (1st Cir. 1995).

III. AMERICANS WITH DISABILITIES ACT

To state a prima facie claim of disability discrimination under the ADA,² a plaintiff must prove by a preponderance of the evidence that: (1) he was disabled within the meaning of the Act; (2) he was a qualified individual, i.e. able to perform the essential functions of the position with or without reasonable accommodation; and (3) he was discharged because of his disability. See Criado v. IBM Corp., 145 F.3d 437, 441 (1st Cir. 1998); Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996). For purposes of summary judgment, the district court assumed that the appellant's arthritis was a disability under the ADA,³ but granted summary judgment because the remaining two elements of a prima facie case were not satisfied. We follow the district court's lead and focus on the second and third elements of the appellant's prima facie case.

At first glance, this seems to be an easy case -- we are inclined to presume that regular and reliable attendance is an essential function of any job, and if the appellant has pain and stiffness in the mornings that prevents him from arriving at work on time, then he should start his day earlier. After a thorough review of the record and relevant case law, however, the issues become more muddled. It is apparent from the appellant's testimony, as supported by his doctors, that he already wakes up every morning between 4:00 and 5:00 a.m. and that the level of pain and stiffness he will face on a given morning is unpredictable. Furthermore, there is little evidence in the record that a regular and predictable schedule is an essential function of Ward's data entry position, or alternatively, that his requested accommodation -- an open-ended schedule -- would be an undue burden on his employer. For these reasons, as discussed more fully below, we must reverse the opinion of the district court.⁴

A. Qualified Individual

It is Ward's position that he can perform the essential functions of his job with the reasonable accommodation of a flexible schedule. MHRI argues that maintaining a predictable and regular schedule is an essential function of his job, and that because the record clearly shows that Ward cannot perform this function with or without reasonable accommodation, he is not a qualified individual under the ADA.

Our inquiry is somewhat complicated by the interrelationship between the terms "essential function" and "reasonable accommodation." See Carr v. Reno 23 F.3d 525, 529 (D.C. Cir. 1994) (discussing the connection between both concepts in Rehabilitation Act case).⁵ The examination of an employee's "qualified" status requires consideration of available reasonable accommodations. The analysis is generally broken into two steps: (1) whether the employee could perform the essential functions of the job; (2) if not, whether any reasonable accommodation by the employer would enable him to perform those functions. See White v. Stone, 45 F.3d 357, 361 (10th Cir. 1995) (citing cases); Tyndall v. National Educ. Ctrs. Inc. of California, 31 F.3d 209, 213 (4th Cir. 1994) (citing Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993)).

Particularly with attendance cases -- as opposed to a simpler case where, for instance, a disabled employee needs to sit rather than stand to perform the essential functions of a job -- it is difficult to separate the analysis in this manner, and as a result courts vary in their treatment of attendance problems in the ADA context. Some courts focus on whether a fixed schedule is an essential requirement for the specific job and end the analysis there. See, e.g., Laurin v. Providence Hosp., 150 F.3d 52, 59-61 (1st Cir. 1998); Tyndall, 31 F.3d at 213-14; cf. EEOC v. AIC Sec. Investigation, Ltd., 820 F. Supp. 1060, 1063-64 (N.D. Ill. 1993) (denying summary judgment due to questions of fact whether regular attendance is essential function of job). Some courts conclude that a fixed schedule is essential but...