Zavaglia v. Boston University School of Medicine

Filing 85

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING 72 MOTION for Summary Judgment. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES ZAVAGLIA,
Plaintiff,
v.
BOSTON UNIVERSITY SCHOOL OF
MEDICINE,
Defendant.

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Civil Action No. 14-cv-13924-IT

MEMORANDUM AND ORDER
January 8, 2018
TALWANI, D.J.
I.

Introduction
Plaintiff James Zavaglia alleges that his former employer, Defendant Boston University

School of Medicine,1 violated the Americans with Disabilities Act, 32 U.S.C. § 12101, et seq.,
(“ADA”) by denying Plaintiff a reasonable accommodation and by retaliating against him for
protected activity. Defendant’s Motion for Summary Judgment [#72] establishes that there are no
genuine disputes as to the material facts and that Defendant is entitled to judgment as a matter of
law. Accordingly, Defendant’s motion is ALLOWED.
II.

Factual Background2
Plaintiff started working as an Instructional Technology Specialist (“specialist”) in

Boston University School of Medicine, one of Boston University’s sixteen schools and
colleges, is not a separate legal entity. “Trustees of Boston University” is the proper Defendant.
1

Unless otherwise indicated, these facts are from the parties’ Local Rule 56.1 statements and
responses. The facts are undisputed or not properly disputed, see Fed. R. Civ. P. 56(c), (e)(2), or
where there are genuine disputes, are construed in the light most favorable to Plaintiff, as the
nonmovant. See Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).
2

Defendant’s Education Media Center in 1998. Def.’s Statement of Undisputed Material Facts
[“Def.’s Facts”] ¶¶ 1, 2 [#73]. This job required him to set up, troubleshoot, operate, maintain,
and break down instructional technology used during classes, meetings, seminars, conferences,
and other events. Id. at ¶¶ 5, 6. Events requiring technology set up and assistance take place at
the School of Medicine throughout the day, and typically start on the hour or half hour, with a
ten-minute window of time between the end of one event and the start of the next. Id. at ¶¶ 10,
11.
Six specialists worked for the Education Media Center throughout the day in staggered
shifts: two from 7:30 a.m. to 4:00 p.m., one from 8:00 a.m. to 4:30 p.m., one from 8:30 a.m. to
5:00 p.m., one from 10:30 a.m. to 7:00 p.m., and one from 1:00 p.m. to 9:30 p.m. Id. at ¶ 11.
Throughout the duration of his employment, Plaintiff worked the 10:30 a.m. to 7:00 p.m. shift.
Def.’s Facts ¶ 3. Some days, the number of events requiring setups exceeded the number of
available specialists, requiring on-duty specialists to perform setups for multiple events starting
at the same time. Id. at ¶ 13. The services the Education Media Center provides are time
dependent, and on-time arrival was an “essential function” of the job. Id. at ¶¶ 9, 12; Def.’s Facts
Ex. 1 [“Zavaglia Dep.”] 38:12-24 [#73-1].
Plaintiff began regularly arriving late for his shift in 2011. Def.’s Facts ¶ 13; Zavaglia
Dep. 49:3-7. When Plaintiff arrived late, another specialist had to assume responsibility for his
setups. Def.’s Facts ¶ 21; Zavaglia Dep. 48:2. In June and July of 2011, one of Plaintiff’s
supervisors met with him to discuss his tardiness, and Plaintiff assured his supervisors that he
would do a better job of arriving on time. Def.’s Facts ¶ 14; Zavaglia Dep. 50:19. In October
2011, Plaintiff’s supervisors, Lucy Milne and Kirsten Martin, warned Plaintiff that this tardiness
could subject him to discipline. Id. at ¶ 16. Milne and Martin sent Plaintiff a warning letter

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describing how Plaintiff’s late arrivals were making it difficult to assign staffing resources.
Def.’s Facts Ex. 3 [“October 2011 Written Warning”] [#73-3]. The letter informed Plaintiff that
he was expected to be at work by the start of his shift at 10:30 a.m., that his timeliness would be
reviewed weekly, and that if he continued to arrive late to work, Defendant would take further
disciplinary action, up to and including termination. Id.
Plaintiff subsequently requested intermittent leave pursuant to the Family and Medical
Leave Act (“FMLA”). Def.’s Facts ¶ 16; Zavaglia Dep. 53:10. In support of his request, Plaintiff
submitted a physician’s certification explaining that Plaintiff needed to take time off for three
appointments per month, each lasting two to three hours, to receive medical treatment for a
work-related back injury. Def.’s Facts Ex. 4 [“2011 FMLA Certification”] [#73-4]. Defendant
granted this request. Def.’s Facts ¶ 16. An employee in Defendant’s Human Resources
Department met with Plaintiff in December 2011, and directed Plaintiff to notify his supervisor
prior to 10:00 a.m. when he was going to be late due to FMLA leave and to inform that
supervisor of an accurate arrival time. Def.’s Facts ¶ 18; Def.’s Facts Ex. 2 [“Lucy Milne
Affidavit”] ¶ 14 [#73-2]; Zavaglia Dep. 94:13.
In June and July 2012, Martin and Milne met with Plaintiff to discuss his tardiness.
Zavaglia Dep. 100:12. In August 2012, Plaintiff submitted another FMLA intermittent leave
request. With the request, Plaintiff submitted a chiropractor letter stating, “[Plaintiff] claims that
it is taking him extra time getting moving in the morning. He has difficulty with use of his left
shoulder and movement of the neck.” Def.’s Facts Ex. 5 [“2012 FMLA Certification”] 2 [#73-5].
The letter stated that intermittent leave may be necessary, as Plaintiff “may have difficulty
getting into work and lifting.” Id. at 3. In an email responding to the request, Defendant’s Human
Resources Consultant stated that Plaintiff would be permitted this leave so long as he complied

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with the established notification procedures. Def.’s Facts Ex. 6 [“Jill Jacobs Email”] [#73-6].
Martin and Milne met with Plaintiff again in November 2012 to discuss his tardiness.
Zavaglia Dep. 99:21. They provided Plaintiff with a warning letter listing sixteen instances
between September 19 and October 25, 2012, in which he either called after 10:20 a.m. to say he
would be late or failed to call altogether. Def.’s Facts ¶ 20; Def.’s Facts Ex. 7 [“November 2012
Written Warning”] [#73-7]. On several occasions, Plaintiff stated that he was late as a result of
traffic. Id. The November 2012 Written Warning informed Plaintiff that Defendant would
continue to accommodate his FMLA intermittent leave, but would hold him accountable “for
excessive non-FMLA related tardiness.” Id. It further reminded Plaintiff that when he was going
to be late, he needed to inform his supervisor prior to 10:00 a.m. and provide an accurate arrival
time. Id.
At the November 2012 meeting, Plaintiff also informed his supervisors that he would be
requesting a disability accommodation for his back injury. Def.’s Facts ¶ 23. Plaintiff submitted
this request in writing to Defendant’s Equal Opportunity Office on December 13, 2012. Def.’s
Facts ¶ 23; Def.’s Facts Ex. 9 [“Accommodation Request”] 2 [#73-9]. He requested a half hour
to an hour adjustment to his work schedule, permitting him to arrive between 11:00 a.m. and
11:30 a.m. Id.; Zavaglia Dep. 71:5-6. Plaintiff submitted a note from his chiropractor stating that
Plaintiff needed to “adjust his work schedule to accommodate an exercise program to maintain
functionality and chiropractic care.” Def.’s Facts ¶ 25.
Eleanor Druckman, the Assistant Director of Defendant’s Equal Opportunity Office, met
with Plaintiff to discuss his accommodation request in early 2013. Def.’s Facts ¶ 26. Druckman
requested more information from Plaintiff’s medical provider in support of the request. Zavaglia
Dep. 76:12-13. In response, Plaintiff provided another note from his doctor. Def.’s Facts Ex. 11

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[“March 2013 Chiropractor’s Note”] [#73-11]. The new note stated that Plaintiff “insists that he
has to perform the exercises in the morning because it allows him to loosen up which therefore
allows him to stand, walk, bend, lift and carry which are integral parts of his work activities.”
Def.’s Facts ¶ 28. The note also stated that, according to Plaintiff, this morning exercise routine
took between sixty and ninety minutes to complete. Id. at ¶ 29.
On April 4, 2013, Druckman informed Plaintiff that his medical documentation was
insufficient to show that a later start time was necessary to enable Plaintiff to perform the
essential functions of his job. Id. at ¶ 32; Def.’s Facts Ex. 12 [“Accommodation Denial Letter”]
[#73-12]. Druckman wrote that the chiropractor’s note “did not state why a slightly later
schedule, beginning at 11:00 a.m. rather than 10:30 a.m., is necessary for you to perform the
essential functions of your job. The need for you to perform exercises for 1 ½ hours in the
morning does not reflect a need for a particular schedule.” Id. Druckman’s letter denying
Plaintiff’s accommodation request also noted that Plaintiff had not applied for a recent vacancy
in the 1:00 p.m. to 9:30 p.m. shift, which would have provided Plaintiff with more time in the
morning to complete his exercises and then travel to work. Def.’s Facts ¶ 33.
In May 2013, Plaintiff filed a discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”). Id. at ¶ 46; Zavaglia Dep. 160:16-20. In August 2013, he
filed a charge of disability discrimination and retaliation with the Massachusetts Commission
Against Discrimination (“MCAD”). Def.’s Facts Ex. 19 [“MCAD Charge”] [#73-19].
Plaintiff continued to arrive late for his shift through 2013 and early 2014. Zavaglia Dep.
110:16. In March 2013, his supervisors compiled a list of twenty-one days in January, February,
and March 2013 when Plaintiff failed to arrive on time for his shift and also failed to notify his
supervisor prior to 10:00 a.m. that he would be late. See Def.’s Facts Ex. 8 [“March 2013

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Email”] [#73-8]. Between March 28 and April 23, 2014, Plaintiff arrived late and failed to
provide an accurate arrival time on eight occasions, according to Defendant’s unrebutted records.
Def.’s Facts ¶ 40. Defendant issued Plaintiff a third written warning on April 29, 2014. Id.
At several times in 2014, Plaintiff submitted additional medical documentation in support
of his request for a disability accommodation. This included a March 4 note from his osteopath
stating that it was medically necessary for Plaintiff to walk and stretch every half hour away
from his desk, as well as a June 30 note from the osteopath noting that Plaintiff should not
remain seated for more than thirty minutes at a time. Id. at ¶¶ 34, 35. Neither of these notes
stated that these medical issues required the schedule change Plaintiff requested. Id.
On June 26, 2014, Defendant issued a final written warning letter to Plaintiff. Id. at ¶ 41.
This letter reiterated the procedures Plaintiff needed to follow when he was going to arrive late
for work. Id. at ¶ 43. Plaintiff’s supervisors met with him five more times after the final written
warning to discuss his failure to arrive at work on time or comply with the notification
procedures. Id. at ¶ 45. Defendant fired Plaintiff on October 7, 2014. Id.
IV.

Discussion
Summary judgment is proper “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Review of a summary judgment motion requires the court to “draw all reasonable
inferences in the light most favorable to the nonmovant.” Cabán–Hernández v. Philip Morris
USA, Inc., 486 F.3d 1, 8 (1st Cir.2007). Nonetheless, “[t]here is no genuine dispute of material
fact when the moving party demonstrates that the opposing party has failed ‘to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.’” EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127,

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131 (1st Cir. 2014) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A party must
support any assertion of a genuine factual dispute by citing to “particular parts of materials in the
record.” Fed. R. Civ. P. 56(c)(1)(A); see also Cabán–Hernández, 707 F.3d at 7-8.
A. Failure-to-Accommodate Claim
Plaintiff claims he has a disability, including a “back injury and other detrimental medical
issues,” that “requires a certain work schedule which the Defendant rejected.” Am. Compl. ¶¶ 5,
6 [#35]. Under the ADA, it is unlawful for an employer to “discriminate against a qualified
individual on the basis of disability,” which includes not making reasonable accommodations.
See 42 U.S.C. § 12112(b)(5)(A). For purposes of this motion, Defendant does not contest that
Plaintiff is disabled. See Def.’s Mem. in Support of Mot. Summ. J. 9 n.4 [#74]. It is undisputed
that Plaintiff requested a half-hour to one-hour adjustment to his schedule and that Defendant
denied this request. Defendant contends that Plaintiff’s requested accommodation was neither
tied to his disability nor reasonable.
To survive summary judgment, Plaintiff “must produce enough evidence for a reasonable
jury to find that (1) he was able to perform the essential functions of the job with or without a
reasonable accommodation, and (2) [Defendant], despite knowing of [Plaintiff’s] disability, did
not reasonably accommodate it.” Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102
(1st Cir. 2007) (quoting Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003)). An
accommodation request “must explain how the accommodation is linked to plaintiff’s disability.”
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012). “[T]o prove ‘reasonable
accommodation,’ a plaintiff needs to show not only that the proposed accommodation would
enable [him] to perform the essential functions of [his] job, but also that, at least on the face of
things, it is reasonable for the employer under the circumstances.” Reed v. LePage Bakeries,

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Inc., 24 F.3d 254, 259 (1st Cir. 2001).
Plaintiff fails to meet his burden. The accommodation request and the physicians’ letters
do not explain why Plaintiff’s disability required a later start time. Insofar as the letters request a
schedule change, those letters do not explain why Plaintiff was unable to address his medical
needs prior to the start of his scheduled shift. The documents also do not offer a medical
provider’s opinion, but instead simply reiterate Plaintiff’s opinion as to his need for a later start
time.
Plaintiff contends in his opposition papers that he was suffering from other disabilities,
including diabetes, a heart condition, and asthma. Plaintiff explained in his deposition that he
was unable to wake up early enough to do his exercises for his back before work because of his
sleep apnea. Yet Plaintiff made no reference to his sleep apnea in his accommodation request.
Zavaglia Dep. 80:5-10, 80:25. His diagnoses for each of these conditions occurred after his
employment with the Defendant ended, and Plaintiff admits that he did not request an
accommodation for these disabilities. See Zavaglia Dep. 60:17-61:11. There is no evidence that
Plaintiff made Defendant aware of these newly alleged disabilities. Therefore, Defendant is not
liable for failing to accommodate them. Estades-Negroni v. Assocs. Corp. of North America, 377
F.3d 58, 64 (1st Cir. 2004) (citing Reed, 244 F.3d at 261).
Even if Plaintiff had established that he needed a later start time based on his medical
condition, his claim would still fail because he has not shown that his demand that the employer
create a new shift, commencing at 11:00 a.m. or 11:30 a.m., was reasonable. Plaintiff admits that
he chose not to apply for the position commencing at 1:00 p.m. Zavaglia Dep. 87:16-21. He
states multiple reasons for his decision not to apply, including that one doctor told him that he
needed to maintain a regular sleeping schedule. Id. at 88:2-9, 89:17-23, 92:4-5. At the time

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Plaintiff was requesting a disability, however, Plaintiff failed to provide Defendant with any
reason that his disability prohibited him from working the 1:00 p.m. shift.
Because Plaintiff fails to meet his burden to show that Defendant denied a reasonable
request for a disability accommodation, Defendant is entitled to judgment as a matter of law on
Plaintiff’s failure-to-accommodate claim.
B. Retaliation Claim
Plaintiff argues next that he was retaliated against for engaging in the following protected
conduct under the ADA: (1) requesting a disability accommodation in late 2012; and (2) filing a
charge of disability discrimination with the EEOC in July 2013. To survive summary judgment
on his retaliation claim, Plaintiff must first make out a prima facie case of ADA retaliation by
showing that “(1) [he] engaged in protected conduct, (2) [he] suffered an adverse employment
action, and (3) there was a causal connection between the protected conduct and the adverse
employment action.” Freadman, 484 F.3d at 106. Defendant concedes that Plaintiff engaged in
ADA-protected conduct by requesting an accommodation and filing the EEOC charge, and that
Plaintiff suffered an adverse action when Defendant terminated Plaintiff’s employment on
October 7, 2014. Defendant contests, however, that there is any causal connection between the
protected activity and termination.
The October 2014 termination was temporally remote from the November 2012 disability
accommodation request and the July 2013 filing of EEOC charges. See Abril-Rivera v. Johnson,
806 F.3d 599, 609 (1st Cir. 2015) (more than fourteen months between EEO complaint and
adverse action was too long to support inference of causation); Morón–Barradas v. Dep't of
Educ. of Commonwealth of P.R., 488 F.3d 472, 481 (1st Cir.2007) (eight-month gap between
protected activity and adverse action is “insufficient to establish temporal proximity”). “Without

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some corroborating evidence suggestive of causation . . . a gap of several months cannot alone
ground an inference of a causal connection between a complaint and an allegedly retaliatory
action.” Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010). Plaintiff produces no corroborating
evidence, either circumstantial or direct, to suggest causation.
Even assuming Plaintiff somehow made out a prima facie case of retaliation, his
retaliation claim still fails as a matter of law on the remaining elements. If a plaintiff makes out a
prima facie case, the burden shifts to the employer “to offer a legitimate, nonretaliatory reason
for [its] actions.” Collazo-Rosado v. Univ. of P.R., 765 F.3d 86, 92 (1st Cir. 2014). According to
Defendant, it terminated Plaintiff for his persistent failure between June 2011 and October 2014
to arrive on time for the start of his 10:30 a.m. shift or to notify his supervisors by 10:00 a.m. that
he would be late and provide an accurate arrival time. With this reason articulated, the burden
returns to the employee to prove that his employer’s reason was mere pretext. Id.
Plaintiff does not dispute that he frequently was late for his 10:30 a.m. shift and that this
meant setups occurred late. Zavaglia Dep. 47:7-48:6. He asserts that he was on FMLA leave for
a work-related injury. Pl.’s Facts ¶ 19. This response is beside the point. There is no evidence in
the record that Defendant penalized Plaintiff for those hours when he was on FMLA leave, and
Plaintiff admits that Defendant accommodated his right to FMLA intermittent leave. Zavaglia
Dep. 107:8. And while Plaintiff contends that he “tried to” comply with the notification
procedures, he admits that he sometimes failed to do so. Id. at 98:13, 102:18. The record shows
that the employer repeatedly warned Plaintiff that this conduct would result in termination, to no
avail. On this undisputed record showing the employer’s care not to penalize legitimate absences
and its clear warnings as to expected conduct and consequences, no reasonable jury could find
that the termination here was pretextual. Quite simply, Plaintiff provides no factual support for a

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claim of pretext. Accordingly, Defendant is entitled to summary judgment on the retaliation
claim.
V.

Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment [#72] is

ALLOWED.
IT IS SO ORDERED.
January 8, 2018

/s/ Indira Talwani
United States District Judge

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