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holding that even if Chapter 152, § 75B constitutes an exception to the traditional definition of a "qualified handicapped person" under Chapter 151B, plaintiff still "does not fall within [Chapter 152, § 75B's] confines" because "plaintiff has presented no evidence that he was capable of performing the essential functions of his job."
Summary of this case from Mulloy v. Acushnet Co.Opinion
Civil Action No. 03-11987-RWZ.
July 7, 2006
MEMORANDUM OF DECISION
In October 2003, plaintiff Jerel Poh filed a twelve-count complaint against the Massachusetts Correction Officers Federated Union ("the Union") and Paul Boudreau, alleging violations of the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (Counts I-III), violations of the Massachusetts antidiscrimination statute, M.G.L. c. 151B (Counts IV-VII), violation of the Massachusetts civil rights statute (Count VIII), breach of contract (Count IX), tortious interference with advantageous contractual relations (Count X), intentional infliction of emotional distress (Count XI), and civil conspiracy (Count XII). The complaint details a long and contentious history between the parties. Plaintiff, who is a corrections officer, was one of the founding members of the Union. In July 1995, he sustained an injury on the job and was placed on workers' compensation for several months. Eventually he returned to work. His claims arise out of discrimination he allegedly suffered as a result of his disability. Specifically, he claims that the Union discriminated against him on the basis of disability when it recommended in January 2001 that, based on his injured-leave status, he be disqualified from running for Union office in the March 2001 election. Based on that recommendation, plaintiff filed charges with the Massachusetts Commission Against Discrimination ("MCAD"). Plaintiff was ultimately allowed to run in the March 2001 election, and lost. Shortly thereafter, he withdrew his MCAD claim since he had been allowed to run. In late April 2001, defendant Boudreau, a Union officer, filed internal union charges against plaintiff, based upon his efforts to decertify the Union in 1994, and his support of a rival union, the American Federation of State, County and Municipal Employees, Council 93 ("AFSCME"). Plaintiff contends that the charges and his subsequent expulsion from the Union constituted retaliation for the MCAD charges. The Union has moved for summary judgment on the claims against it (Counts I-IV, VI-IX, and XI-XII), and plaintiff opposes. Summary judgment is appropriate if — viewing the evidence in the light most favorable to plaintiff and drawing all reasonable inferences in his favor — no genuine issue of material fact remains. See Fed.R.Civ.P. 56©); Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 684 (1st Cir. 1994).
I. Counts I and IV: Discrimination
Counts I and IV allege discrimination on the basis of disability or handicap, in violation of the ADA and M.G.L. c. 151B, respectively.
A. Disability Status Under the ADA
The ADA prohibits discrimination on the basis of disability. To establish a prima facie case, plaintiff must show (1) that he was disabled within the meaning of the statute; (2) that he was able to perform the essential functions of the job with or without reasonable accommodation; and (3) that he was discharged or adversely affected in the terms and conditions of his employment, in whole or in part, because of his disability. Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996). Plaintiff claims that the Union violated both federal and state law by trying to prevent him from running for a Union position because of his industrial-leave status. Plaintiff further contends that, once he was allowed to run, the Union told him it would indicate his leave status on the ballot. Plaintiff asserts that although the Union ultimately listed him on the ballot without indicating his leave status, both of these actions constituted discrimination because they adversely affected him. Defendant moves for summary judgment on the basis that plaintiff is not disabled within the meaning of the statute.
Under the ADA, an individual is disabled if he or she (1) has a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). Neither party addresses the second definition, and plaintiff does not dispute the Union's assertion that the third definition does not apply. Thus, only the first definition is at issue. The Union assumes that plaintiff's 1995 work-related injury constituted a physical impairment, but argues that it did not substantially limit any major life activities. Plaintiff contends that four major life activities were substantially limited: "performing manual tasks, lifting, sleeping and working." (Pl.'s Opp. 3).
With respect to the first three activities, plaintiff asserts that "there is substantial evidence" of limitation. (Id. at 5). In fact, the only evidence plaintiff has produced is his own affidavit, in which he states that he experienced "significant restrictions and limitations" for a period of "years" and thus "could not do anything strenuous," such as "lifting, pushing and pulling." (Poh Aff. ¶ 10). He further explains that before his injury, he "would work out at the gym on a frequent basis," but due to his injury was unable to return to weight training for seven years. (Id. ¶ 11). Plaintiff also claims that he previously had difficulty lifting his young son and that he has experienced trouble sleeping at night, though it is less severe now than it originally was.
For several reasons, plaintiff has failed to establish that his impairment substantially limited the three claimed major life activities. First, major life activities are "only those that are of central importance to daily life." Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st Cir. 2002) (internal quotation marks omitted). To the extent that plaintiff claims his ability to engage in recreational weight training and sports activities was limited, such activities do not fall within the protected category. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998); Hanson v. Prarie Material Sales, Inc., No. 00 C 1574, 2001 WL 1105097, at *8 (N.D. Ill. 2001). Second, plaintiff has provided no evidence — beyond his own affidavit — that demonstrates the effect that his physical impairment has had on his major life activities. The affidavit is insufficient to demonstrate a substantial limitation. See Machin-Rodriguez v. CC Partnership Coca Cola P.R., No. Civ. 03-1746, 2005 WL 2293574, at *4 (D.P.R. 2005) (plaintiff's affidavit stating that impairment had substantially limited certain major life activities could not withstand summary judgment burden). Plaintiff has submitted no medical evidence from which a jury could reasonably find that his ability to perform manual tasks, lifting, or sleeping was substantially limited. See Cruz Carillo v. AMR Eagle, Inc., 148 F. Supp. 2d 142, 145 (D.P.R. 2001) (in absence of medical evidence, plaintiff's testimony alone insufficient to show substantial limitation). Third, "[t]o be substantially limiting, the impairment's impact must be permanent or long-term." Bailey, 306 F.3d at 1167. Plaintiff's affidavit indicates that many of the problems associated with his injury have subsided or resolved completely and that he has returned to work and to his weight-training regimen. For all of these reasons, plaintiff has failed to establish that his impairment substantially limited his ability to engage in the major life activities of manual tasks, lifting, or sleeping.
Indeed, a medical diagnosis of impairment is itself insufficient to prove a substantial limitation, Calef v. Gillette Co., 322 F.3d 75, 83 (1st Cir. 2003), unless the plaintiff also provides "specific information as to how [his] diagnosis substantially affects his major life activities,"Machin-Rodriguez, 2005 WL 2293574, at *4.
With respect to working, I follow the First Circuit's approach and assume for purposes of argument that working is a major life activity. See id. at 1168 n. 5. An ADA claimant alleging substantial limitation of his ability to work must make a "weighty showing." Id. at 1168. Specifically, plaintiff cannot just show that his ability to perform a "single, particular job" was limited; rather, he "must prove that he is `significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'" Id. (quoting 29 C.F.R. § 1630.2(j)(3)(I)). Thus, while there appears to be no dispute that plaintiff was unable to perform his duties as a correctional officer for a period of several years due to his physical impairment (Def.'s Statement of Facts ¶ 3), this is not enough. Plaintiff has adduced no evidence that his ability to perform other jobs was limited. In fact, during the years that he was on disability leave, plaintiff apparently completed an undergraduate degree, and a law degree, and gained admission to the state bar. (Def.'s Ex. A, at 7-8). Rather than suggesting that plaintiff's occupational abilities were limited by his physical impairment, this record instead suggests that plaintiff used his disability leave to expand his professional opportunities. In any event, it is undisputed that plaintiff has returned to work as a corrections officer and that any physical impairment thus has not resulted in a "permanent or long-term" limitation on his ability to work. In the absence of any evidence that plaintiff's ability to engage in major life activities has been substantially limited, plaintiff is not disabled within the meaning of the ADA. Summary judgment is therefore allowed on Count I.
B. Qualified Handicapped Person Under M.G.L. c. 151B
Plaintiff contends that, regardless of whether he is disabled within the meaning of the ADA, he satisfies the definition of a "qualified handicapped person" under M.G.L. c. 151B, which prohibits employment discrimination against such persons. The Massachusetts statute defines "handicap" in a manner "essentially identical" to the federal definition of disability. Dahill v. Police Dep't of Boston, 434 Mass. 233, 237 (2001). Courts therefore typically conduct a single analysis for federal and state discrimination claims, and regularly find that a plaintiff who cannot show substantial limitation of a major life activity is neither disabled within the meaning of the ADA nor handicapped under M.G.L. c. 151B. See, e.g., Whitney v. Greenberg, Rosenblatt, Kull Bitsoli, P.C., 115 F. Supp. 2d 127, 130-33 (D. Mass. 2000). Plaintiff, however, argues that even if he is not disabled under the ADA, he is nevertheless a "qualified handicapped person" under the Massachusetts statute by virtue of the workers' compensation statute, which provides:
Any employee who has sustained a work-related injury and is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of such a job with reasonable accommodations, shall be deemed to be a qualified handicapped person under the provisions of [c. 151B].
M.G.L. c. 152, § 75B(1). Plaintiff maintains that under this provision he is a qualified handicapped person because he sustained a work-related injury.
Plaintiff is correct to the extent that some courts have described M.G.L. c. 152, § 75B(1) as "a major exception to the traditional definition of a `handicapped person.'" Gilman v. CS Wholesale Grocers, Inc., 170 F. Supp. 2d 77, 83 (D. Mass. 2001). Thus, in Gilman, the court concluded that the plaintiff was not handicapped insofar as he could not demonstrate substantial limitation of a major life activity. Id. Nevertheless, the court found that plaintiff might be handicapped under § 75B(1) because he had sustained a work-related injury and was capable of performing the essential functions of his job. Id. at 84-85;see also Everett Indus., Inc. v. MCAD, 49 Mass. App. Ct. 1116, 2000 WL 1476321, at *5 (2000). The Supreme Judicial Court has not considered the issue, see Gilman, 170 F. Supp. 2d at 83-84, and contradictory case law does exist, see Freire v. First Nat'l, No. 964620, 1998 WL 1181751, at *8 (Mass.Super. 1998) (concluding that M.G.L. c. 152, § 75B(1) simply establishes that "an injury which substantially impairs a major life activity is not excluded as a handicap under [c. 151B] merely because it was sustained on the job," but that the provision "does not . . . transform all work-related injuries . . . into handicaps");Berghuis v. Univ. of Mass. Medical Center, No. 950875B, 1998 WL 1182068, at (Mass.Super. 1998) (finding that M.G.L. c. 152, § 75B(1) simply "mirror[s]" M.G.L. c. 151B, § 1(16)).
Even if I accept plaintiff's interpretation of § 75B(1), however, he does not fall within its confines. Both chapter 151B and the workers' compensation statute require that an individual be capable of performing the essential functions of a job or capable of performing the essential functions of a job with reasonable accommodations, in order to satisfy the definition of a qualified handicapped individual. Thus, all of the cases cited by plaintiff concerned persons who were capable of performing the essential functions of their jobs, with or without reasonable accommodations. See, e.g., Gilman, 170 F. Supp. 2d at 85 (finding that reasonable jury could conclude plaintiff was capable of performing essential functions of job);Everett, 2001 WL 1476321, at *5 (reviewing evidence that plaintiff was capable of performing essential functions of job with reasonable accommodations). Here, plaintiff has presented no evidence that he was capable of performing the essential functions of his job. Indeed, in his statement of facts, plaintiff explains that he was unable to return to work on a modified basis because the Department of Corrections had determined that "he was unable to perform the essential functions of his job, more specifically the ability to have contact with inmates" and gives no indication that he ever disputed this determination. (Pl.'s Statement of Facts ¶ 35). On this record, no reasonable jury could find that plaintiff satisfied the definition of a handicapped person under either M.G.L. c. 151B, § 1(16) or M.G.L. c. 152, § 75B(1). The Union is thus entitled to summary judgment on Count IV.
I note in addition that it is unclear whether M.G.L. c. 152, § 75B(1) — which defines a "qualified handicapped person" as an "employee" — should apply where the plaintiff is not an employee of the defendant. Under M.G.L. c. 151B, plaintiffs may sue non-employer defendants, such as labor organizations. See M.G.L. c. 151B § 4(2), (4). But where a plaintiff sues not as an employee, but as a union member, application of § 75B(1) for purposes of satisfying the definition of "qualified handicapped person" may be inappropriate, since that provision covers only "employee[s]."
II. Counts II, III, VI, and VII: Retaliation
Counts II and III allege retaliation under the ADA, and Counts VI and VII allege the same under Chapter 151b. Plaintiff contends that even if his discrimination claims fail, he may nevertheless pursue his retaliation claims, and he is correct. An ADA plaintiff "need not succeed on a disability claim to assert a claim for retaliation." Wright v. CompUSA, Inc., 352 F.3d 472, 477 (1st Cir. 2003). "Massachusetts's anti-discrimination law also treats retaliation as a `separate and independent cause of action.'" Id. (quoting Abramian v. President Fellows of Harvard Coll., 432 Mass. 107, 121 (2000)). Thus, plaintiff's "failure to establish a disability does not preclude his retaliation claim." Id. The Union's motion addresses only plaintiff's discrimination claims; it has offered no grounds for summary judgment on these four counts.
Plaintiff, on the other hand, has established the basic elements of a retaliation claim. To make out a prima facie case, plaintiff must show (1) that he engaged in protected conduct, (2) that he was thereafter subjected to an adverse action, and (3) that a causal connection existed between the protected conduct and the adverse action. See Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 177 (1st Cir. 2003). Plaintiff filed MCAD charges on January 8, 2001, alleging that the Union had discriminated against him on the basis of disability by recommending that he not be allowed to run for union office based upon his leave status. Filing such charges constituted protected activity. See Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997). Plaintiff's expulsion from the Union satisfies the second prong. Finally, plaintiff has presented facts that, viewed in the light most favorable to him, give rise to an inference of causal connection between his protected activities and his expulsion.
The precise nature of the adverse action suffered by plaintiff is unclear from the record. In some cases, expulsion from a labor union results in clearly adverse consequences for the employee. See, e.g., Trailmobile Co. v. Whirls, 331 U.S. 40, 64-65 (1947). Here, however, plaintiff is still employed by the DOC; the terms of his employment remain unchanged, as do his salary and benefits, which equal those of other officers of his rank and tenure. (Pl.'s Ex. 9, at 10-13). Moreover, even after his expulsion, the Union has continued to file grievances and to arbitrate on his behalf. (Id. at 12-13). The adverse changes plaintiff perceives are (1) his inability to participate in and express views on Union matters, and (2) his social isolation at work and feelings of worry. The latter cannot alone constitute a materially adverse change sufficient to sustain a retaliation claim. Cf. Ruggieri v. Harrington, 146 F. Supp. 2d 202, 216-17 (E.D.N.Y. 2001) (where plaintiff suffered no reduction in salary, benefits, or responsibilities but felt embarrassed and worried, court found no adverse employment action). Whether or not the former suffice, I assume — in the absence of any contrary argument from the Union — that plaintiff has satisfied the second prong for summary judgment purposes.
Specifically, after plaintiff lost the Union election in March 2001, and just a few weeks after he withdrew his MCAD complaint in early April 2001, the Union filed charges against him based upon his activities some seven years earlier, in 1994. (Pl.'s Exs. 2, 4). Plaintiff has presented evidence that it was unusual for such charges to be brought after such a long period of time. (Id., Ex. 5, at 10). The record also indicates that plaintiff was not present at the Union hearing on the charges, and that his absence played a large role in the board's decision to expel him. (Id. at 136-41). According to plaintiff, he was never served with the charges or notified of the hearing. He claims he was never notified. (Pl.'s Ex. 6, ¶ 40; Def.'s Ex. B at 9). Plaintiff alleges that other corrections officers who, like him, campaigned on behalf of AFSCME in 1994 have not been expelled from the Union, giving rise to an inference that his AFSCME activities were not the real reason for his expulsion. (Pl.'s Ex. 6, ¶ 43). He has also submitted the affidavit of Michael Langlois, a corrections officer who asserts that defendant Boudreau, who filed the charges against plaintiff, told Langlois that he did so because plaintiff had filed MCAD charges against the Union. (Pl.'s Ex. 7). From this evidence, a reasonable jury could find that plaintiff's MCAD complaint against the Union and his subsequent expulsion were causally connected.
Because plaintiff has made out a prima facie claim and defendants have failed to rebut it, summary judgment is denied on Counts II, III, VI and VII.
III. Count VIII: Massachusetts Civil Rights Claim
Count VIII alleges a violation of the Massachusetts Civil Rights Act ("MCRA"). To make out an MCRA claim, plaintiff must establish (1) that his exercise or enjoyment of rights secured by the Constitution or federal or state laws, (2) have been interfered with, or attempted to be interfered with, and (3) that such interference of attempted interference was by "threats, intimidation or coercion." M.G.L. c. 12, § 11l. The Union moves for summary judgment on grounds that plaintiff cannot establish that it engaged in any threats, intimidation or coercion. Specifically, the Union contends that plaintiff's expulsion was an "administrative action" that did not rise to the level of threats or coercion. (Def.'s Mem. in Supp. of Mot. for Summ. J. 7). This is an odd argument, since the administrative-action exception typically concerns municipalities or state agencies.E.g., Murphy v. Town of Duxbury, 40 Mass. App. Ct. 513, 518-19 (1996) (administrative exception applied to town planning board's decision); Swanset Dev. Corp. v. City of Taunton, 423 Mass. 390, 396-97 (1996) (administrative exception applied to enforcement of zoning regulations).
In the absence of any other arguments by the Union in favor of summary judgment, plaintiff's allegations are sufficient to make out an MCRA claim. In this case, plaintiff contends that the Union interfered with his free speech rights and his right to bring a defamation suit by expelling him from the Union. The interference, according to plaintiff, rose to the level of coercion because it involved the loss of contract rights. Plaintiff is correct that "coercion may be found where one party deprives another of rights due under a contract." Buster v. George Moore, Inc., 438 Mass. 635, 647 (2003). Moreover, although plaintiff exercised his free speech rights before the alleged interference, "Massachusetts courts and this district court have recognized [MCRA claims] where the offensive conduct consisted of retaliation for a single instance of protected speaking." Acciavatti v. Prof. Servs. Group, Inc., 982 F. Supp. 69, 79 (D. Mass. 1997).
Plaintiff may ultimately be unable to sustain a claim of interference with his free speech rights. Courts frequently find that unions are justified in expelling members who have helped to organize a rival union. See Meader v. District Lodge No. 4, Indus. Union of Marine Shipbuilding, 786 F. Supp. 95, 102 (D. Mass. 1992). The "fine line between insubordination and free speech" requires a fact-specific determination. Maceira v. Pagan, 649 F.2d 8, 14-15 (1st Cir. 1981). And it is, after all, inconsistent for plaintiff to claim for ADA purposes that the Union expelled him for bringing MCAD charges, while simultaneously claiming for MCRA purposes that it expelled him for his 1994 AFSCME activities. But without a more fully developed record and in the absence of any viable arguments by defendant, summary judgment on Count VIII is inappropriate.
IV. Count IX: Breach of Contract
In Count IX, plaintiff alleges that the Union breached its contract with him by violating the terms and conditions set forth in the Union's constitution and bylaws. (Compl. ¶¶ 123-24). Inexplicably, the Union construes Count IX as a "misplaced" claim for breach of plaintiff's contract with the Department of Corrections. (Def.'s Mem. in Supp. of Mot. for Summ. J. 9). The Union argues that such a claim cannot be advanced because no breach of contract action can lie against a third party. It is the Union's argument that is "misplaced." The Union also asserts, without any foundation, that plaintiff cannot bring a breach of contract action against it "because there was no employment relationship between the Plaintiff and [the Union]," but rather "Plaintiff was simply a member of [the Union]." (Id.). It is well established that the relationship between a union and a union member is contractual in nature, and that the parties' duties and obligations are defined by the union's constitution and bylaws. E.g., Sullivan v. Barrows, 303 Mass. 197, 201 (1939). Because the Union's papers are utterly devoid of any argument pertaining to plaintiff's contract claim against the Union itself, its motion for summary judgment on Count IX is denied.
V. Count XI: Intentional Infliction of Emotional Distress
To sustain a claim of intentional infliction of emotional distress, plaintiff must demonstrate that the Union's conduct was so outrageous and extreme that it exceeded all possible bounds of decency, and could only be regarded as atrocious and utterly intolerable in a civilized society. Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976). Nothing in the complaint or the summary judgment record rises to this level. Accordingly, summary judgment is appropriate on Count XI.
VI. Count XII: Civil Conspiracy
Finally, plaintiff alleges a civil conspiracy "to wrongfully and tortiously cause harm to Plaintiff." (Compl. ¶ 137). Massachusetts law recognizes two kinds of civil conspiracy — one based upon coercion, and one based merely upon concerted action.See Kurker v. Hill, 44 Mass. App. Ct. 184, 188 (1998). With respect to coercive civil conspiracy, plaintiff must establish that the defendants, "acting in unison, had some peculiar power of coercion over plaintiff that they would not have had if they had been acting independently." Aetna Cas. Sur. Co. v. PB Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994). For example, such a cause of action may lie where the plaintiff alleges that the defendants, acting together, were able to negate certain safeguards that would have prevented the defendants, were they acting independently, from accomplishing fraud. Id. at 1564. No allegations or evidence of such "peculiar" coercive power are before the court.
Alternatively, a plaintiff may allege civil conspiracy as a kind of common law joint liability in tort. Id. For liability to exist under this theory, however, plaintiff must establish "first, a common design or agreement, although not necessarily express, between two or more persons to do a wrongful act and, second, proof of some tortious act in furtherance of the agreement."Id. To the extent that Count XII is based upon the underlying tortious activity alleged in Count XI, it fails because Count XI fails. In any event, the record lacks any evidence of a "common design or agreement" between the Union and defendant Boudreau. Accordingly, summary judgment on Count XII is allowed.
VII. Conclusion
The Union's motion for summary judgment (Docket #37) is allowed on Counts I, IV, XI, and XII. It is denied as to Counts II, III, VI-VIII, and IX.
Plaintiff's unopposed motion to compel discovery (#28) is allowed except as to the following items, as to which it is denied:
Interrogatories: Nos. 15, 23, 25
Document Requests: Nos. 18-22 and 32