Opinion
11-P-824
03-21-2012
ANGIE WONG v. VERIZON NEW ENGLAND, INC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Since 1985, Angie Wong has worked for Verizon New England, Inc. (Verizon) and its predecessors. From March 21, 2006, through February 4, 2008, Wong was out of work with respiratory ailments and a back injury. In this handicap discrimination case pursuant to G. L. c. 151B, § 4(16), Wong claimed that Verizon discriminated against her by failing to reasonably accommodate her disability, resulting in an unnecessary delay in her return to full-duty work. In a well-reasoned decision, a judge of the Superior Court, ruling on cross-motions, granted Verizon's motion for summary judgment. After review of the record, we affirm the judgment, concluding, as did the judge, that Wong will be unable to establish essential elements of her claim.
For the first twenty years of her employment, Wong worked an indoor position as a customer service representative. In the fall of 2005, Verizon promoted Wong to splice service technician (SST), a physically demanding, outdoor position.
Wong's brief, one-count complaint, which was never amended, was limited to events occurring up through her return to work. On April 15, 2010, Wong filed a second administrative charge, alleging continuing disability-based discrimination and retaliation by Verizon.
Even assuming that Wong was handicapped within the meaning of the statute, she was unable to demonstrate that she was a qualified handicapped person, capable of performing the essential functions of her position with or without accommodations anytime before her return to work in February, 2008. See G. L. c. 151B, § 1(16); Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119-120 (2010); Tompson v. Department of Mental Health, 76 Mass. App. Ct. 586, 593-596 (2010).
The essential basic functions of an SST are the installation, maintenance, and repair of telephone cables and lines. In order to reach overhead cables, SSTs are required to carry, set up, and climb ladders of a minimum of twenty-four feet.
Verizon issues three standard ladders for use by the SSTs. The sixteen foot ladder weighs forty-one pounds; it cannot reach the splicing connection area on telephone poles. The shortest ladder with that capability is the twenty-four foot ladder, which weighs fifty-eight pounds. The twenty-eight foot ladder weighs sixty-seven pounds. Safety equipment adds another six to twenty pounds to all these ladders. Tool belts carried by SSTs weigh approximately twenty-five pounds. In contrast to her position below, Wong admits that carrying, lifting, and climbing ladders are essential functions of the SST position.
Wong contends that she demonstrated that no later than June, 2007, she was a qualified handicapped person capable of performing these essential functions with reasonable accommodations. We disagree. As Wong's back condition improved over time, Dr. Joseph Barr, Wong's orthopedist, periodically increased her lifting restrictions and the size of the ladder he thought she could handle. By June 18, 2007, Dr. Barr had authorized Wong's return to work as an SST on the conditions that she not be required to lift more than forty-five pounds or use a ladder exceeding twenty-two feet. Thus, on that date, Wong was not yet cleared to use the ladder required to perform essential functions of her job. The record established that Dr. Barr did not clear Wong to use a twenty-four foot ladder until January 28, 2008.
Dr. Barr gave Verizon three options with respect to the second condition, expressing his preference for Wong to use a bucket truck. Dr. Barr reaffirmed these same restrictions on September 24, 2007, and November 12, 2007. According to Wong, her back problems continued to limit her ability to walk, turn, bend, climb, and move well into 2007. This testimony undermined her claim that she was a qualified handicapped person by June, 2007.
When Wong reported for work as instructed by Verizon on January 28, 2008, her managers informed her that she needed an updated letter from Dr. Barr on official letterhead. Once Wong provided that letter on February 4, 2008, Verizon permitted her to resume her SST duties with accommodations. As Verizon notes, Dr. Barr incorrectly stated in his February 4, 2008, letter that he had 'expressed' the same proposed reasonable accommodations in his June 18, 2007, letter. Wong last saw Dr. Barr in February, 2008. There is no evidence that Wong is under the continuing care of any other orthopedist.
No reasonable accommodation that would have permitted Wong to perform the essential functions of the SST job was possible up to that time. See Godfrey v. Globe Newspaper Co., 457 Mass. at 124-125. Although bucket trucks would have permitted Wong to reach the cables without the need to carry and climb ladders, by Wong's own estimate, bucket trucks could be used to perform only sixty-five to seventy-five percent of SST jobs. The bucket trucks could not be used on any job requiring work in a backyard or in an area with tightly-packed houses. See Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 377 (1993). As Wong admitted, if she were assigned to a bucket truck, she would still be required to use a ladder periodically. Verizon was not required to waive Wong's inability to perform an essential function of the job, even one performed only occasionally. See id. at 390. While Wong was entitled to employment on the same terms and conditions as nondisabled employees, here the evidence demonstrated that SSTs assigned to bucket trucks regularly used twenty-four and twenty-eight foot ladders.
Wong was also unable to establish on this record that Verizon failed to provide her with reasonable accommodation. See Alba v. Raytheon Co., 441 Mass. 836, 843 n.9 (2004). When Wong sought to return to work with accommodation in 2007, Verizon offered her the position of central office technician (COT), a job with comparable pay for which she had applied in May, 2007. For reasons unknown, Wong changed her mind about the COT position, demanding as of September, 2007, to return to work as an SST. Wong also rejected Verizon's offer to provide her with a two-week light duty position. The accommodation provided to Wong upon her return to work was one of the alternatives proposed by Dr. Barr after discussions with Wong.
For a limited period of time upon her return, Verizon permitted Wong to use a sixteen-foot ladder and to call in other SSTs for assistance when longer ladders were required. It was undisputed that by the end of 2008, Verizon had assigned Wong a twenty-four foot ladder. Consistent with its policy of accommodating SSTs who have difficulty using a twenty-eight foot ladder, Verizon has not required Wong to use that length ladder. Verizon's temporary, voluntary accommodations did not raise any question of fact as to Wong's qualifications for her position prior to February, 2008, or as to the reasonableness of Verizon's accommodation decision.
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Given Verizon's agreement to not one but two specific accommodation requests by Wong, no reasonable jury could find its responses to Wong's requests unreasonable. Compare Godfrey v. Globe Newspaper, Inc., 457 Mass. at 122-123 (no triable issue of fact concerning the initial request for accommodation where employee received essentially the accommodation he sought).
The focus of Wong's appeal is her contention that Verizon's failure to assign her to a bucket truck -- the best accommodation for her disability -- raised a triable issue on the reasonableness of Verizon's accommodations. Where, as here, an employee's physician provided the employer with options, the employer had no duty to provide the employee with the accommodation of her choice. See Tompson v. Department of Mental Health, 76 Mass. App. Ct. at 596-597. Moreover, the evidence of Wong's pain and difficulty in climbing ladders in 2009 and 2010 and the allegedly adverse effect upon her performance would not have been relevant to Verizon's accommodation decision in 2008. Compare Godfrey v. Globe Newspaper, Inc., 457 Mass. at 123 n.15.
Wong's reliance upon Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632 (2004), as support for the requirement of assignment to a bucket truck is misplaced. In that case, the employer argued that the employee's ability to perform his job without accommodation conclusively established that he did not need accommodation. The Supreme Judicial Court rejected the employer's argument, noting that the employee took significantly longer to perform his duties because of his disability, and thus was unable to perform his job functions under equal terms and conditions of employment as those enjoyed by nondisabled employees. See id. at 648-649 & n.19. The Supreme Judicial Court concluded, as did the Massachusetts Commission Against Discrimination, that the employer violated c. 151B by making no response to the employee's timely requests for accommodation. See id. at 650.
Here, in contrast, Verizon not only worked with Wong and her physician in coming up with an appropriate accommodation, it adopted one of their suggestions as to what was reasonable.
We have considered the rest of Wong's arguments and find them lacking in merit.
Judgment affirmed.
By the Court (Green, Brown & Agnes, JJ.),