Murray v. Warren Pumps, LLC et al
Filing
54
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 19 Motion for Summary Judgment (Woodlock, Douglas)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RAYMOND MURRAY,
Plaintiff,
v.
WARREN PUMPS, LLC and COLFAX
AMERICAS,
Defendants.
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CIVIL ACTION NO.
11-40176-DPW
MEMORANDUM AND ORDER
September 11, 2013
After Plaintiff Raymond Murray’s employment with Defendant
Warren Pumps ended in 2011, he brought this action alleging
disability discrimination, retaliation, and harassment under both
federal and Massachusetts law.
Warren Pumps had rehired Murray
in early 2008 knowing of his history of back problems due to a
failed surgery on herniated discs in his spine in 1997.
Murray
argues that Warren Pumps discriminated against him as a disabled
person by failing to accommodate his disability and by firing him
for being disabled.
He also argues that Warren pumps retaliated
against him by firing him for raising safety complaints.
Finally, Murray argues that his superiors created an unlawfully
hostile work environment.
The parties dispute nearly every aspect of this case, from
the most fundamental - such as whether Murray qualifies as
disabled and whether Warren Pumps fired Murray at all - to
subordinate details - such as the accuracy of citations to
evidence in support of various arguments.
Defendants move for
summary judgment on all counts of the Complaint.
I will grant
Defendants’ motion.
I.
BACKGROUND
Warren Pumps hired Murray in April 2008 as Safety and
Compliance Manager.
Murray had previously worked for Warren
Pumps from 2003 until 2005, when he left voluntarily to pursue
another opportunity.
At the time Warren Pumps rehired Murray, it
understood that Murray could not lift more than 10 pounds and
could not stand, sit, or walk for an extended period of time due
to a prior back injury and failed surgery.
In 1985, Murray had suffered a disc herniation in his spine.
In 1997, after the herniated disc calcified and broke apart,
Murray underwent spinal surgery.
However, this surgery failed,
and one year later, he had a second surgery to fuse his L4-L5
vertebrae together.
He continues to experience chronic sciatic
pain, cannot do any heavy lifting, and cannot sit, stand, or walk
for long periods of time.
Murray also contends that his back
impairment affects his ability to climb ladders and stairs,
interferes with his sleep, and prevents him from kneeling or
bending over.
However, Defendants dispute these further
restrictions and dispute that Murray ever informed them of any
restrictions other than the lifting and extended walking,
sitting, or standing restrictions.
2
Murray was involved in a car accident on December 28, 2010.
He suffered whiplash, lower back pain, and sciatic pain in his
left leg.
Over the course of his employment with Warren Pumps, Murray
requested various accommodations for his back injury, including
time off for medical treatment, light duty, lifting restrictions,
and standing/sitting restrictions as well as an adjusted start
time from 6:00 a.m. to 7:00 a.m.
Murray also contends that he
requested breaks to raise his legs/feet and an ergonomic
workstation to avoid headaches and pain, but Defendants dispute
that these requests relate to Murray’s alleged disability from
his back injury and failed surgery, claiming that they relate
instead to his car accident or other issues.
Murray contends that over the course of his employment, his
Warren Pumps supervisors discriminated against him on the basis
of his disability and because he was raising concerns over safety
issues.
He alleges that on May 27, 2011, his supervisor, Matthew
Korzec, required him to manage a project for which he had to be
at both ends of the Warren Pumps facility and walk more than his
restrictions allowed.
He alleges that Korzec gave him
unnecessary paperwork which caused him to violate his sitting
restrictions.
He also alleges that on three occasions, Korzec
required him to violate his lifting restriction, once by asking
him to paint, once by asking him to do electrical work involving
3
carrying a 20-pound toolbox, and once by asking him to accept a
shipment over 10 pounds because the shipping department employees
had already gone home for a holiday.
In addition, Murray alleges that Korzec and Nicole Belechto,
a corporate recruiter for Defendant Colfax Americas made
discriminatory comments.
He alleges that Korzec stated that “a
younger person would be able to accomplish [Plaintiff’s] tasks,”
that Plaintiff “needed to work faster,” and that Plaintiff would
have been more successful if he “had been at work more often,”
which Murray contends refers to his leave from work for medical
issues.
He also alleges that Belechto and Korzec would question
him “on why he needed to take time off” when he requested leave.
In an affidavit, he claims that Peter Elleman, Corporate Health
Safety and Environmental Manager, told him that Belechto wanted
to get rid of disabled employees and that Murray was considered
disabled.
Over the course of his employment, Murray raised a number of
safety concerns to his supervisor, Korzec, and management.
In
particular, in April and May 2011, Murray raised certain health
and safety complaints.
Murray alleges that Warren Pumps employees were welding
without the proper monitoring devices surrounding the welding
area, without the proper protective equipment, and that at least
one employee was welding upside down or vertically when he was
4
only certified to weld flat.
He argues that these practices
violate a number of industry standards, such as AWS-d18.1 and
ASTM 312, as well as federal regulations such as 29 C.F.R.
1910.253(a)(4).
Murray also alleges that Warren Pumps impermissibly allowed
other employees to do electrical work under Murray’s license
outside his presence, and without the proper protective
equipment.
He argues that these practices violate a number of
industry standards, such as 527 C.M.R. 12, as well as state
statutes, such as M.G.L. 14 § 5, 8.
Murray next alleges that his supervisors denied his requests
to purchase required personal protective equipment, refused to
allow him to attend OSHA training, failed to implement a training
and noise level program when the shop floor exceeded 85 decibels,
and failed to institute Hazard Communication Standard (HAZCOM)
training.
He argues that these practices violate a number of
federal regulations such as 29 C.F.R. 1910.95, 1910.133,
1910.134, 1900.1200.
Finally, Murray alleges that Warren Pumps failed to certify
employees properly to operate forklifts, trucks, and cranes, but
he cites no statutes or other law in this regard.
Defendants contend - and Murray disputes - that Defendants
investigated each and every complaint and found no merit to
5
Murray’s allegations, although they did not always keep Murray
informed of the progress of the inquiries.
On June 1, 2011, Brian Mills and Crystal Baker called Murray
into a meeting during which they asked him whether he was unhappy
working at Warren Pumps.
during the meeting.
The parties dispute the discussions
Murray alleges that he was fired.
Defendants allege that Murray quit and that one of the
participants in the meeting later told Korzec that Murray had
quit.
The parties agree that Defendants offered Murray a choice
between two severance packages and that Murray did not accept
either.
II.
STANDARD OF REVIEW
A movant is entitled to summary judgment when “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).
“A dispute is genuine if the evidence about the fact is such that
a reasonable jury could resolve the point in the favor of the
non-moving party,” and “[a] fact is material if it has the
potential of determining the outcome of the litigation.”
Farmers
Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011)
(citation omitted).
I view the facts in the light most favorable to the party
opposing summary judgment.
(1st Cir. 2011).
Rivera–Colón v. Mills, 635 F.3d 9, 10
However, “conclusory allegations, improbable
6
inferences, and unsupported speculation” are insufficient to
create a genuine issue of material fact to survive summary
judgment.
Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st
Cir. 2009) (quotation and citation omitted).
III. DISCUSSION
The Complaint is in five counts.
Count I alleges wrongful
termination of an at-will employee in violation of public policy.
Counts II and III allege disability discrimination under
Massachusetts law.
Finally, Counts IV and V allege disability
discrimination and harassment under federal law.
A.
Disability Discrimination
Both federal law and Massachusetts law prohibit employers
from discriminating against employees based on any real or
perceived disability.
See 42 U.S.C. §§ 12112(a),
12112(b)(5)(A)(2011); M.G.L. 151B § 4(16).
As with other claims
for discrimination, courts apply the McDonnell Douglas burdenshifting analysis in the disability discrimination context:
Plaintiff bears the initial burden to establish a prima facie
case of discrimination; the burden then shifts to Defendants to
articulate non-discriminatory reasons for their actions; and
finally the burden shifts back to Plaintiff to show that the nondiscriminatory reasons are pretextual.
See McDonnell Douglas
Corp. v. Green 411 U.S. 792, 802-805 (1973).
Because Defendants
maintain that they did not fire Murray at all, but that he quit,
7
the parties focus their arguments on the first stage of the
analysis: the prima facie case.
Murray alleges both disability
discrimination and failure to accommodate his disability.
Although federal courts and state courts articulate the
requirements for a discrimination claim somewhat differently, the
basic elements are the same.
In order to establish a prima facie
case of disability discrimination, a plaintiff must show (1) that
he is disabled, (2) that he is capable of performing his job with
or without reasonable accommodation, (3) that an adverse
employment action was taken regarding him and (4) that the
employer sought to fill the same position the plaintiff held.
See Dartt v. Browning-Ferris Indus., Inc., 691 N.E.2d 526, 528
(Mass. 1998); see also Jones v. Walgreen Co., 679 F.3d 9, 14 (1st
Cir. 2012) (not requiring that the employer sought to fill the
same position the plaintiff held).
The first two elements of the prima facie case for failure
to accommodate are the same as those for disability
discrimination generally: (1) disability, and (2) that the
plaintiff is capable of performing the job with reasonable
accommodation.
See Alba v. Raytheon Co., 809 N.E.2d 516, 522 n.9
(Mass. 2004); see also Orta-Castro v. Merk, Sharp & Dohme Quimica
P.R., Inc., 447 F.3d 105, 112 (1st Cir. 2006).
Failure to
accommodate also requires a Plaintiff to show: (3) that he
requested a reasonable accommodation, (4) that his employer
8
refused the accommodation, and (5) that he suffered harm from the
employer’s refusal.
See Alba, 809 N.E.2d at 522 n.9; see also
Orta-Castro, 447 F.3d at 112.
The meaning of “disability” under federal law and the state
definition of “handicap” may differ to some degree.
Until 2008,
courts considered M.G.L. 151B the “‘Massachusetts analogue’ to
the Federal Americans with Disabilities Act (“ADA”).
See Whitney
v. Greenberg, Rosenblatt Kill & Botsoli, P.C., 258 F.3d 30, 32 &
n.1 (1st Cir. 2001) (“The definitions of ‘disability’ and
‘handicap’ are virtually identical in the statutes.
U.S.C. § 12102(2) with [M.G.L.] ch. 151B, § 1(17).”).
Compare 42
In 2008,
Congress passed the ADA Amendments Act (“ADAAA”) mandating a
broader reading of the term “disability.”
See 29 C.F.R.
1630.1(b)(4) (“The primary purpose of the ADAAA is to make it
easier for people with disabilities to obtain protection under
the ADA”); Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 87 n.6
(describing the amended definition of “disability” as “more
generous”).
Murray’s citation to a 2010 First Circuit case,
Faiola v. APCO Graphics, Inc., for the proposition that the
federal and state standards are still the same is somewhat out of
focus because the ADAAA is not retroactive, Thornton v. UPS,
Inc., 587 F.3d 27, 34 n.3 (1st Cir. 2009)(“The [ADA Amendments]
Act is not retroactive.”), and Faiola considered circumstances
arising before Congress enacted the ADAAA, see 629 F.3d 43, 45
9
(1st Cir. 2010)(plaintiff terminated in 2007).
By contrast,
Murray’s employment ended in 2010, after the effective date of
the ADAAA.
Therefore, the amended federal standard applies.
The language in federal law defining “disability” after
ADAAA remains substantially similar to the Massachusetts
definition of “handicap.”
Both mean “(a) a physical or mental
impairment which substantially limits one or more major life
activities of a person; (b) a record of having such impairment;
or (c) being regarded as having such impairment . . . .”
151B § 1(17); accord 42 U.S.C. § 12102(1).
M.G.L.
The distinction lies
in the meaning of the term “substantially limits.”
The federal
statute provides that “[t]he term ‘substantially limits’ shall be
interpreted consistently with the finding and purposes of the ADA
Amendments Act of 2008.”
42 U.S.C. § 12102(4)(B).
The
Massachusetts statute does not have an analogous clause.
Defendants do not contest that Murray’s back condition
constitutes an “impairment.”
Nor do Defendants dispute that his
impairment implicates “major life activities.”
Murray’s back
condition certainly affects his ability to walk, work, sit,
stand, and lift.
However, Defendants argue that this impairment
does not “substantially limit” any of these major life
activities.
They also argue that there is no record that his
impairment “substantially limits” any major life activities or
that Defendants regarded Murray as having such an impairment.
10
In his Complaint, Murray bases his claim of handicap solely
on his back condition.
In his submissions opposing summary
judgment, he raises a collection of new impairments that he
argues can also form the basis for his disability discrimination
claims.
These new impairments include whiplash and leg pain from
a car accident as well as headaches from sitting in a nonergonomic chair.
However, “isolated medical problems (such as a
broken arm that heals normally) and illnesses of short duration
usually are not handicaps.”
MCAD Guidelines § II(A)(6); see
also ADA Pract. & Compliance Manual § 1:29 (“A severe limitation
that is short-term and temporary is not evidence of a
disability”).
Murray’s whiplash, leg pain, and headaches are not
related to any long-term impairment.
They cannot be evidence of
a disability or handicap and therefore cannot form the foundation
for a disability discrimination claim.
As a result, I will
restrict my analysis of Murray’s disability claims to whether his
back condition qualifies as a disability under either the state
or federal standard, whether Warren Pumps reasonably accommodated
it, and whether Murray’s termination resulted from discrimination
for such a disability.
1.
Massachusetts Handicap
Under Massachusetts law, “[a]n impairment is substantially
limiting if it prohibits or significantly restricts an
individual’s ability to perform a major life activity as compared
11
to the ability of the average person in the general population .
. .”
MCAD Guidelines § II(A)(6).
It may also be substantially
limiting “when the impairment ‘prevents or significantly
restricts the individual from performing a class of jobs or a
broad range of jobs in various classes.’”
O’Brien v. MIT, 976
N.E.2d 154, 158 (Mass. App. Ct. 2012) (quoting Ocean Spray
Cranberries, Inc. v. MCAD, 808 N.E.2d 257, 264 (Mass. 2004)).
In interpreting Chapter 151B, courts afford substantial
deference to Guidelines of the Massachusetts Commission Against
Discrimination (“MCAD”).
Dahill v. Police Dep’t of Boston, 748
N.E.2d 956, 961 (Mass. 2001).
Massachusetts courts also consider
federal case law construing the ADA and Rehabilitation Act when
determining whether a person qualifies as handicapped under
M.G.L. 151B.
See Shedlock v. Dep’t of Correction, 818 N.E.2d
1022, 1031-32 (Mass. 2004).
Pre-ADAAA federal caselaw remains
particularly analogous to the M.G.L. 151B analysis because
Massachusetts has not amended M.G.L. 151B in the same way that
Congress amended the ADA.
Murray alleges that he is handicapped by virtue of his back
and spinal cord disc herniation in 1985 and his failed surgery in
1997, after which his doctors fused his L4-L5 vertebrae together.
In his affidavit, submitted in support of his opposition to
summary judgment, he states that he can only stand, sit, or walk
for up to two hours at a time and can run, but not for any
12
extended period of time.
He states that he can climb stairs as
long as he goes slowly and holds onto the railing, but cannot
climb objects such as ladders.
He also states that he loses
between one and three hours of sleep each night due to chronic
pain.
His most significant impairment, and the one most fully
established on the current record, is his doctor-imposed
restriction not to lift more than 10 pounds.
As a matter of law,
these impairments do not rise to the level of a handicap under
M.G.L. 151B.
Numerous courts have held that the inability to walk, stand,
or sit continuously for more than one to two hours does not
constitute a handicap.
See, e.g., McDonough v. Donahoe, 673 F.3d
41, 48 (1st Cir. 2012) (collecting cases) (inability to stand for
more than one or two hours is not a disability); Dupre v. Charter
Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 614 (5th
Cir. 2001) (“In the case before us, Dupre’s ability to sit or
stand in one place for up to one hour at a time . . . was not
significantly restricted as compared with the average person.”).
For his part, Murray cites Shedlock for the proposition that his
walking restrictions constitute a handicap, but that case
actually demonstrates the deficiency of Murray’s argument.
In
Shedlock, the court held that evidence that an inmate could not
walk for two or three days out of each week and could not climb
stairs without the help of others created a genuine issue of
13
fact, but did not affirmatively demonstrate that the plaintiff
was handicapped as a matter of law.
1030.
Shedlock, 818 N.E.2d at
The court also noted that the differentiating factor is
often whether a plaintiff needs a device such as a cane, brace or
crutches to assist him in walking or standing.
Id. at 1030-31.
In this case, Murray shows no such restrictions.
He does not
require a cane, brace, or crutches in order to stand or walk, and
he has sworn in his affidavit that he can climb stairs without
assistance and can walk every day as long as it is not for more
than an hour at time.
Murray’s allegations of difficulty sleeping fare no better.
As the Second Circuit held in Colwell, “[d]ifficulty sleeping is
extremely widespread” and Murray has not demonstrated that his
difficulty is substantially worse than that of the rest of the
adult population.
Colwell, 158 F.3d at 644.
By contrast, an
individual may be handicapped when the substantial interference
with sleep rises to the level of only sleeping one or two hours
per night and often going days at a time with “only four hours of
broken sleep.”
See O’Brien v. MIT, 976 N.E.2d 154, 158 (Mass.
App. Ct. 2012).
Murray’s impediments do not reach this level.
As for his lifting restrictions, the statute and MCAD
Guidelines make clear that “lifting” constitutes a “major life
activity.”
§ 1(20).
See MCAD Guidelines § II(A)(5); see also M.G.L. 151B
However, the First Circuit has clarified that “heavy
14
lifting” does not constitute such an activity because “the
capacity to perform heavy lifting is not a trait shared by the
majority of the population.”
Gillen v. Fallon Ambulance Serv.,
Inc., 283 F.3d 11, 22 (1st Cir. 2002); see also Benoit v. Tech.
Mfg. Corp., 331 F.3d 166, 178 (1st Cir. 2003).
Otherwise, “the
ranks of the disabled would swell to include infants, the
elderly, the weak, and the out-of-shape.”
22.
Gillen, 283 F.3d at
Numerous courts have held that the ability to lift no more
than 10 pounds continuously or 20 pounds intermittently does not
constitute a disability or handicap.
See, e.g., McDonough, 673
F.3d at 48; Colwell, 158 F.3d at 644.
But see Picinich v. UPS,
Inc., 321 F. Supp. 2d 485, 502 (N.D.N.Y. 2004) (permanent
inability to stand, sit, or walk for more than thirty minutes at
a time and to lift over 12 pounds constituted disability).
Murray’s back injuries limit his daily activities somewhat, but
they do not rise to the level of a handicap.
As the Seventh
Circuit noted, “[t]he number of Americans restricted by back
problems is legion.
They are not disabled.”
Mays v. Principi,
301 F.3d 866, 869 (7th Cir. 2002) (“A disability within the
meaning of . . . the ADA ‘substantially prevents a person from
engaging in one of the major activities of life.’
We doubt
whether lifting more than 10 pounds is such an activity.”
(collecting cases)).
15
Finally, Murray’s back condition does not substantially
impair his ability to work.
In order to prove a substantial
limitation on the ability to work, Murray must show “that [his]
back injury precluded [him] from a class of jobs or a broad range
of jobs.”
Dupre, 242 F.3d at 614; see also Sutton v. United Air
Lines, Inc., 527 U.S. 471, 492 (1999).
Murray’s limitations do
not foreclose a class or broad range of applicable jobs.
“If
jobs utilizing an individual’s skills (but perhaps not his or her
unique talents) are available, one is not precluded from a
substantial class of jobs.
Similarly, if a host of different
types of jobs are available, one is not precluded from a broad
range of jobs.”
Sutton, 527 U.S. at 492.
Murray’s skills remain available to him.
Many jobs utilizing
He moved from his role
as an electrician to a new role as a manager in order to avoid
some of the activities with which he now struggles, but his
impairments do not foreclose the kind of broad range of jobs
contemplated by disabilities law.
In Dupre, the Fifth Circuit
held
[a]n inability to engage in the kind of intense physical
exertion required of some jobs hardly disqualifies Dupre
from all jobs involving manual labor. Even if her claim
regarding an inability to perform manual labor were true,
Dupre would not necessarily be excluded from a
substantial class of jobs.
Dupre, 242 F.3d at 615.
Likewise, Murray’s impediments do not
exclude him from a substantial class of jobs.
16
Indeed, he was able
to obtain appropriate employment at the same companies he had
already worked for in a managerial position with responsibilities
for oversight of activities related to his skill and knowledge set.
Cf. Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 861 (5th
Cir. 1999) (pharmacist not substantially limited in working because
there
was
no
evidence
he
could
not
perform
clerical
or
administrative jobs within the hospital at which he formerly
worked).
2.
Federal Disability
After the ADAAA, the federal standard for disability has
become “more generous” than it was before.
Co., 696 F.3d at 87 n.6.
Nationwide Life Ins.
Although few courts have specifically
addressed what the ADAAA’s expansion means for the term
“substantially limits,” see Harty v. City of Sanford, 2012 WL
3243282, at *5 (M.D. Fla. Aug. 8, 2012), those that have done so
have applied it more broadly than previously, and federal
regulations also provide some guidance.
Federal regulations
provide that courts should measure “substantially limits” as
“compared to most people in the general population.”
1630.2(j)(1)(ii).
29 C.F.R. §
Yet the regulations repeatedly emphasize that
it is “not meant to be a demanding standard,” and that the focus
of ADA cases “should be whether covered entities have complied
with their obligations and whether discrimination has occurred,
not whether an individual’s impairment substantially limits a
17
major life activity.”
29 C.F.R. § 1630.2(j)(1)(iii).
Still,
“not every impairment will constitute a disability within the
meaning of [29 C.F.R. § 1630.2].”
29 C.F.R. § 1630.2(j)(1)(ii);
see also Nationwide Life Ins. Co., 696 F.3d at 87 n.6.
I am not persuaded that Congress intended waking up in the
middle of the night, only being able to walk for two hours, and
an incapacity for heavy lifting to qualify as disabilities even
under the more generous ADAAA standard.
However, Murray’s back
condition does not clearly fall outside the range of disability
under the ADAAA, and thus requires some significant analysis of
what constitutes a disability.
See, e.g., Fleck v. WILMAC Corp.,
No. 10-05562, 2011 WL 1899198, *5 (E.D. Pa. May 19, 2011)
(finding plaintiff may be disabled because she could not stand
for more than an hour without an accommodation); Picinich, 321 F.
Supp. 2d at 502 (permanent inability to stand, sit, or walk for
more than 30 minutes at a time and to lift over 12 pounds
constituted disability); Harty, 2012 WL 3243282 at *2 (plaintiff
presented a genuine issue of fact regarding disability by showing
that he “could not squat, kneel, use stairs, run or jump”).
Therefore, because “the threshold issue of whether an impairment
‘substantially limits’ a major life activity should not demand
extensive analysis,” 29 C.F.R. § 1630.2(j)(1)(iii), I find that
Murray has produced sufficient evidence of a collection of
limitations to present the issue of disability under the federal
18
standard to a jury.
See Ladenheim v. Am. Airlines, Inc., 115 F.
Supp. 2d 225, 230 (D. P.R. 2000)(“[T]he question of substantial
limitation is a question of fact properly decided by the
jury.”)(citing Santiago Clemente v. Executive Airlines, Inc., 213
F.3d 25, 32 (1st Cir. 2000)).
3.
Record of Disability or Regarded as Disabled
Murray also argues that he qualifies as a handicapped or
disabled person because he has a record of a handicap or because
he was regarded as handicapped.
Any argument that Murray
qualifies as handicapped under Massachusetts law because of a
record of impairments that substantially limit major life
activities must fail because I have already determined that
Murray’s impairments do not constitute “substantial limitations”
under Massachusetts law.
Therefore, any records of his
impairments cannot qualify as “a record of having such
impairment” under the meaning of M.G.L. 151B § 1(17).
His arguments that Warren Pumps regarded him as handicapped
also fail.
Murray has produced no competent evidence in support
of this position.
The evidence existing in the record undercuts
the proposition that Warren Pumps regarded Murray as handicapped.
First, he argues in his brief that his supervisor, Matthew
Korzec made comments such as “a younger person would be able to
accomplish [Plaintiff’s] tasks,” that Plaintiff “needed to work
faster,” and that Plaintiff would have been more successful if he
19
“had been at work more often,” which Murray contends refers to
his leave from work for medical issues.
However, in his
testimony, Murray only states that Korzec made “snide comments”
that “a younger person [could] do this very easily,” and confirms
vague comments about working faster and being around more.
Even
if these vague statements - untethered to any specific instance,
absence, or task - could support an inference into the way Korzec
regarded Murray - a dubious proposition in itself - the
statements certainly do not support an inference that Korzec
regarded Murray as handicapped as opposed to simply less than
vigorous or otherwise subpar.
Second, Murray argues, citing his affidavit, that Peter
Elleman, Corporate Health Safety and Environmental Manager told
him that Nicole Belechto, a Corporate Recruiter for Colfax,
wanted to “get rid of” handicapped employees and that Murray was
considered handicapped.
This is heartland double hearsay not
falling under any exception.
See Fed. R. Evid. 805.
In other
words, “[Murray] here relies on double hearsay, an out of court
statement of [Belechto] made to [Elleman], and [Elleman’s] out of
court statement made to [Murray], offered to prove the truth of
the matter asserted,” that Belechto and Defendants regarded
Murray as handicapped.
Pakizegi v. First Nat. Bank of Boston,
831 F. Supp. 901, 909 (D. Mass. 1993).
Murray has offered no
reason to believe that either part of the combined statement
20
falls within a hearsay exception, let alone both.
Murray’s
recitation is not competent evidence and I decline to consider
it.
Finally, the existing evidence probative of how Defendants
regarded Murray cuts against a finding that they considered him
handicapped.
Murray’s supervisor, Korzec, testified that he knew
of Murray’s lifting restriction, but did not know of any other
medical or physical restrictions.
Furthermore, while Warren
Pumps was aware of Murray’s back condition and lifting
restriction when it hired him in both 2003 and 2008, it
apparently did not find the issue important because Korzec, who
recruited and hired Murray, has stated that the lifting
restriction “didn’t matter because his job wasn’t physical in
nature.”
4.
Accommodation
Defendants argue that even if a jury finds Murray disabled
under the ADAAA, he cannot sustain a claim for failure to
accommodate his disability because Defendants reasonably
accommodated all of Murray’s requests.
I have already held that
Murray does not meet the Massachusetts standard for a handicapped
individual, see supra Section III(A)(1).
Therefore, in this
section, I address only Murray’s federal claim for failure to
accommodate a disability.
21
An employer must “make reasonable accommodations to the
known physical . . . limitations of an otherwise qualified
individual with a disability.”
42 U.S.C. § 12112(b)(5)(A).
A
reasonable accommodation is a “modification[] or adjustment[] to
the work environment, or to the manner . . . under which the
position . . . is customarily performed, that enable[s] an
individual with a disability who is qualified to perform the
essential functions of that position.”
1630.2(o)(1)(ii).
29 C.F.R.
An employer is not required to provide an
employee’s first choice of accommodation, but must provide
reasonable accommodation to allow the employee to perform the
essential functions of his job.
Murray argues that he requested accommodations for time off,
light duty, lifting restrictions, standing/sitting restrictions,
an adjusted daily start time, not to work over-time, periodic
breaks, and for an ergonomic workstation.
In support of this
argument, Murray does not cite to any evidence that he actually
requested any of these accommodations.
He cites only to
testimony that these were his physical restrictions.
Nevertheless, even assuming Murray did request each of these
accommodations, he cannot support a failure to accommodate claim.
He admits that Defendants granted “the majority of [these]
accommodations, with the exception of breaks and ergonomics,” and
argues that Defendants effectively denied his lifting restriction
22
accommodation because Matthew Korzec asked him to do more than 10
pounds of lifting on a number of occasions.
Murray raises no
genuine dispute of material fact regarding any of the three
accommodations he claims Defendants denied him.
Murray provides no evidence that his request for an
ergonomic workstation relates to his back condition, stating only
that his workstation “would cause the Plaintiff significant pain
and headaches.”
He also admitted in his deposition that the
headaches and ergonomic-workstation request were not related to
his back condition or sciatic nerve.
In response to the question
“Were those headaches related at all to the issue that you had
with your back or your sciatic nerve?,” Murray answered “No.”
Therefore, because headaches are not an element of Murray’s
impediment, the ergonomic workstation cannot be a part of a
reasonable accommodation for any disability and likewise cannot
sustain a claim for failure to reasonably accommodate a
disability.
With respect to Murray’s argument that Defendants denied him
the breaks he required as reasonable accommodation for his
difficulties walking, standing, and sitting for long periods of
time, Plaintiff cites no evidence in his submissions that he
asked for breaks, let alone that Defendants denied such requests.
My own review of the record reveals that the only evidence that
he ever actually asked for breaks is his own testimony responding
23
to the question “you also asked for breaks in terms of
accommodations for your handicap - to sit from time to time?”
saying “Correct.”
I have not uncovered any evidence in the
record capable of supporting Murray’s contention that Defendants
denied his request.
Without evidence of such a denial, Murray’s
claim fails.
Finally, Murray admits that Defendants acknowledged his
lifting limitations and agreed not to make him lift anything over
10 pounds.
Yet he argues that Defendants effectively denied him
a reasonable accommodation because his supervisor Korzec
“repeatedly requested and sometimes required” him to break his
lifting restriction.
In support, he points to three instances in
which Korzec “requested” or “required” Murray to lift more than
10 pounds.
First, Korzec asked Murray to paint.
Second, Korzec
asked Murray to do some wiring/manual labor, which required him
to lift a toolbox weighing more than 10 pounds.
Third, Plaintiff
accepted a large shipment weighing more than 10 pounds because
Korzec had let everyone in the shipping department go home early
on a holiday.
None of these can support Murray’s claim.
Murray makes no allegation or argument that he actually did
paint or even that the painting requested would have required him
to lift more than 10 pounds.
not paint.
In fact, he testified that he did
In his deposition, he answered the question “When you
asked to not paint did [Korzec] tell you to go back and paint?”
24
by saying, simply, “No.”
Murray cannot sustain a failure to
accommodate claim merely by alleging that his supervisor asked
everyone to paint, including Murray, when his supervisor did not
force him to do so once Murray requested a reasonable
accommodation.
The wiring/manual labor event presents a somewhat closer
issue.
Murray testified that Korzec asked him to do some wiring
work that would have required Murray to lift and carry a toolbox
weighing approximately 20 pounds.
In this case, Murray testified
that when he told Korzec this would force Murray to break his
lifting restriction, Korzec told him to “[g]et it done somehow”
and Murray ultimately lifted the toolbox.
However, he also
testified that he “pulled somebody else off the floor to do it,”
demonstrating that another employee might have borne the lifting
responsibilities and Korzec did not necessarily require Murray to
lift the toolbox himself.
While a series of such instances might
give rise to a pattern of violating Murray’s lifting restriction
capable of supporting a claim for failure to reasonably
accommodate a disability, this one instance, in isolation, cannot
sustain such a claim.
Murray’s argument regarding the shipment he received does
little to bolster his position.
Although Murray did testify that
he spoke to Korzec, who told him that he would have to accept the
shipment because all of the shipping employees had gone home
25
early, and that the shipment was more than 10 pounds, he also
testified that he did not ask for a reasonable accommodation.
He
testified that he did not remind Korzec that he could not lift
more than 10 pounds because “I can only tell him that so many
times.
Really.
He knows it.”
These three, seemingly isolated incidents, which are far
from clear evidence that Defendants ever required Murray to
violate his lifting restriction - let alone that they did so
“repeatedly” - cannot sustain a claim for failure to reasonably
accommodate.
5.
Retaliatory Termination
Defendants contend that they did not terminate Murray’s
employment in retaliation for any reason related to his
disability because his employment was not terminated; rather,
they contend, he quit.
However, recognizing that this presents a
genuine issue of material fact inappropriate for resolution by
summary judgment on this record, Defendants focus on their
argument that, even assuming Murray was fired, he cannot sustain
a claim for retaliation.
Defendants challenge all three elements
of Murray’s retaliation claim: (1) legally protected conduct, (2)
an adverse employment action, and (3) causal connection between
the protected conduct and the adverse employment action.
See
Colon Fontanez v. Municipality of San Juan, 660 F.3d 17, 36 (1st
Cir. 2011).
They also argue that the First Circuit has recently
26
raised the bar on the element of cause, by holding disability
discrimination cannot merely be a motivating factor in the
adverse employment action, rather, it must be the but-for cause.
See Palmquist v. Shinseki, 689 F.3d 66, 73-74 (1st Cir. 2012)
(construing the ADA as requiring but-for cause because the ADA
provision was analogous to the Rehabilitation Act provision
before the court); see generally Univ. of Tex. Southwestern Med.
Ctr. v. Nassar, 133 S.Ct. 2517 (2013)(Title VII retaliation
claims must be proved under principles of but-for causation).
Because I find that Murray cannot demonstrate any causal link
between protected conduct and adverse employment action, I do not
reach the questions whether the but-for cause standard applies
except to observe that Murray could not meet it.
a.
Protected Conduct
Requests for reasonable accommodations for a disability
constitute protected conduct.
Freadman v. Metro. Prop. & Cas.
Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007).
Similarly,
complaints of discrimination on the basis of a disability also
constitute protected conduct.
Valle-Arce v. P.R. Ports
Authority, 651 F.3d 190, 198 (1st Cir. 2011).
It is undisputed
that Murray engaged in both of these forms of protected conduct.
Although Defendants dispute that Murray made some of the
accommodation requests he articulates in this action, they
acknowledge that he made his lifting restrictions clear when
27
Defendants hired him in 2008 and periodically when his supervisor
asked him to do tasks that would require heavy lifting.
Defendants also argue that the only disability-discrimination
complaint Murray lodged was in June or July of 2010, when he
complained to Sylvia Cummings, a Human Resource Specialist, about
how Korzec was treating him.
This argument speaks to causation.
It does not undermine the fact that Murray engaged in protected
conduct.
There is, therefore, no genuine dispute of fact
regarding whether Murray engaged in protected conduct when he
requested accommodations and complained of disability
discrimination.
b.
Adverse Employment Action
Defendants dispute any adverse employment action, arguing
that Murray quit rather than that Defendants fired him.
This
presents a genuine dispute of material fact for a jury:
On the
one hand, Murray swears in his affidavit that Defendants
terminated his employment and offered him a severance package.
On the other hand, Crystal Baker, Vice President of Human
Resources, testified in her deposition that she did not terminate
Murray’s employment; that he was welcome to continue working at
Warren Pumps after the meeting; and that after the meeting, one
of the attendees told Korzec that Murray had quit.
This presents
a quintessential credibility dispute inappropriate for resolution
on summary judgment.
Rodriguez v. Municipality of San Juan, 659
28
F.3d 168, 175 (1st Cir. 2011) (“[T]he ground rules for summary
judgment leave no room for credibility determinations, no room
for the measured weighing of conflicting evidence . . . .”).
Murray also argues that he suffered adverse employment
actions other than termination by being harassed for his
disability.
As discussed below, see infra Section III(C), these
allegations do not rise to the level of harassment or a hostile
work environment, and they also do not constitute adverse
employment actions.
c. Causal Connection
To show a causal connection, Murray relies on the
permissible inference of causation when allegedly retaliatory
acts occur close in time to the protected activity.
See Ruffino
v. State Street Bank & Trust Co., 908 F. Supp. 1019, 1046 (D.
Mass. 1995) (“[T]emporal proximity may provide the necessary
[causal] nexus.”).
But this reliance is misplaced.
None of
Murray’s protected conduct happened within a sufficiently short
time before his termination to support a reasonable inference of
causation.
The meeting during which Murray either quit or was fired
occurred on June 1, 2011.
All of the instances of protected
conduct to which Murray ascribes a specific date happened long
before that meeting.
For instance, Murray testified that he
complained to Sylvia Cummings in “mid-2010, somewhere into the
29
June or July area.”
This is a year before the date Murray
alleges Defendants fired him.
Similarly, the only date Murray
ascribes to an accommodation request with any level of precision
relates to the discussion surrounding his re-hire in 2008, three
years before the date Murray alleges Defendants fired him.
Although he states that he told Korzec he could not paint
“sometime in 2010,” that incident occurred no later than six
months before the June 1, 2011 meeting, even assuming, for the
sake of argument, it constituted a request for reasonable
accommodation at all.
Finally, Murray testified that the
incident during which he told Korzec that he could not do
electrical work occurred “sometime after the car accident” in
December 2010, leaving a potential six-month span of time in
which the incident might have occurred.
None of these events has
the “temporal proximity” necessary to raise an inference of
causation.
With respect to the painting and electrical work incidents,
Murray does not sufficiently specify when those events occurred.
Therefore, “any temporal link is entirely conjectural.”
Shinseki 629 F.3d 49, 58 (1st Cir. 2010).
Ahern v.
Because “[c]onclusions
that rest wholly on speculation are insufficient to defeat a
motion for summary judgment,” such a conjectural temporal link
cannot support a claim for retaliation.
30
Id.
With respect to Murray’s re-hire and complaint of disability
discrimination, both occurred more than a year before the June 1,
2011 meeting, far outside the temporal range giving rise to an
inference of causation.
See id. (“[A] gap of several months
cannot alone ground an inference of a causal connection between a
complaint and an allegedly retaliatory action.”); Calero-Cerezo
v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004)(periods
of three or four months are insufficient to establish a causal
connection (collecting cases)).
*
*
*
Murray does not meet the definition of handicap under
Massachusetts law, and he has not raised any material factual
dispute regarding a failure to accommodate a disability or
retaliation for protected activity related to his disability
under federal law.
I will therefore grant summary judgment to
the defendants regarding his disability and handicap
discrimination claims under both state and federal law.
B.
Safety Concerns
Murray argues that Defendants impermissibly terminated his
employment in retaliation for his safety complaints.
An employer
may not terminate an employee “when employment is terminated
contrary to a well-defined public policy.”
Wright v. Shriners
Hosp. for Crippled Children, 589 N.E.2d 1241, 1244 (Mass. 1992).
This is an exception to the general rule that an employer may
31
terminate at-will employees for “almost any reason or no reason
at all.”
Id. at 1244.
“The public policy exception is
interpreted narrowly to prevent conversion of the general rule .
. . into a rule that requires just cause to terminate an at-will
employee.”
Mercado v. Manny’s T.V. & Appliance, Inc., 928 N.E.2d
979, 983 (Mass. App. Ct. 2010) (internal alterations and
quotation marks omitted).
Defendants maintain that Murray quit
and that they did not terminate his employment, but as discussed
above, see supra Section III(A)(5)(b), this presents a dispute of
fact inappropriate for summary judgment.
In the alternative,
Defendants argue that Murray’s safety concerns claim fails for
two reasons: (1) a plaintiff cannot sustain a retaliation claim
based on safety complaints unless the complaints implicate
criminal wrongdoing, which is not present in this case, and (2)
Murray cannot sustain his particular retaliation claim based on
raising safety complaints because raising such complaints was in
the nature of his job as Safety and Compliance Manger.
1.
Criminal Wrongdoing
Murray’s safety complaints fall into four categories: (1)
welding safety violations, (2) electrical work violations, (3)
lack of proper Personal Protection Equipment (“PPE”) and
training, and (4) employees’ operation of forklifts and other
vehicles without a commercial drivers license.
32
Murray alleges that Warren Pumps employees were welding
without the proper monitoring devices surrounding the welding
area, without the proper protective equipment, and that at least
one employee was welding upside down or vertically when he was
only certified to weld flat.
He alleges that these practices
violate a number of industry standards, such as AWS-d18.1 and
ASTM 312, as well as federal regulations such as 29 C.F.R.
1910.253(a)(4).
These standards and regulations govern safety
procedures, but Murray has not provided any support for the
proposition that they implicate criminal liability.1
1
Murray argues that violations of OSHA or the electrical code
implicate criminal penalties, but this misconstrues statutory and
case law. He cites United States v. Ward, No. CRIM 00-681, 2001
WL 1160168 (E.D. Pa. Sept. 5, 2001) for the proposition that OSHA
violations can result in criminal liability. However, Ward deals
specifically with 29 U.S.C. § 666(e) which is not at issue here
and which imposes criminal liability for willful violations of
safety regulations resulting in an employee’s death. Id. at *1.
Murray does not allege that any employee has died or that any
safety violations were willful. Therefore, Ward is inapposite.
He also cites Commonwealth v. Porrazzo, 516 N.E.2d 1182 (Mass.
App. Ct. 1988) for the proposition that violations of electrical
codes can implicate criminal liability. However, Porrazzo dealt
with specific statutory provisions. Id. at 1184. Porrazzo
discussed M.G.L. 143 § 3L, which provides criminal penalties for
failure to give notice before conducting certain work, but Murray
makes no allegations that Defendants failed to provide such
required notice in this case. Finally, he cites Mercado v.
Manny’s T.V. & Appliance, Inc., 928 N.E.2d 979, 983 (Mass. App.
Ct. 2010), in which the plaintiff was fired for refusing an order
to continue installing appliances illegally, see id. at 141,
facts not present in this case. Murray does not allege that
Defendants ordered him to engage in any conduct they knew to be
illegal.
33
Murray also alleges that Warren Pumps impermissibly allowed
other employees to do electrical work under Murray’s license
outside his presence, and without the proper protective
equipment.
He alleges that these practices violate a number of
industry standards, such as 527 C.M.R. 12, as well as state
statutes, such as M.G.L. 14 § 5, 8.
These standards and statutes
govern safety procedures, but Murray has not provided any support
for the proposition that they implicate criminal liability.
Murray next alleges that his supervisors denied his requests
to purchase required PPE, refused to allow him to attend OSHA
training, failed to implement a training and noise level program
when the shop floor exceeded 85 decibels, and failed to institute
Hazard Communication Standard (HAZCOM) training.
He alleges that
these practices violate a number of federal regulations such as
29 C.F.R. 1910.95, 1910.133, 1910.134, 1900.1200.
These
regulations govern safety procedures, but Murray has not provided
any support for the proposition that they implicate criminal
liability.
Finally, Murray alleges that Warren Pumps failed to certify
employees properly to operate forklifts, trucks, and cranes, but
he cites no statutes or other law in support.
When an employee brings a claim for wrongful termination on
the basis of retaliation for internal complaints regarding
company conduct,
34
The distinction of importance is between a discharge
for an employee’s internal complaint about company
policies or the violation of company rules, for which
liability may not be imposed, and an internal complaint
made about the alleged violation of the criminal law
for which we now decide that liability may be imposed.
Shea v. Emmanuel College, 682 N.E.2d 1348, 1350 (Mass. 1997).
Murray’s complaints fall into the gap between the two poles
identified by the Shea court.
They are not based on internal
company policies, which clearly cannot be the basis for a claim
wrongful termination in violation of public policy.
See, e.g.,
Falcon v. Leger, 816 N.E.2d 1010, 1017-18 (Mass. App. Ct. 2004)
(“It is well established that Massachusetts law does not protect
at-will employees who claim to be fired for their complaints
about internal company policies or the violation of company
rules, even though the employees’ actions may be considered
appropriate and ‘socially desirable.’”); Smith-Pfeffer v.
Superintendent of the Walter E. Fernald State Sch., 533 N.E.2d
1368, 1371-72 (Mass. 1989).
Neither are his complaints based on
alleged violations of criminal law, which clearly would support
such a claim.
See, e.g., Shea, 682 N.E.2d at 1350.
Rather, he
complains about non-criminal statutory mandates governing the
health and safety of a variety of industries.
But cf. Wright v.
Shriners Hosp. for Crippled Children, 589 N.E.2d 1241, 1245
(Mass. 1992) (“[W]e have never held that a regulation governing a
particular profession is a source of well-defined public policy
sufficient to modify the general at-will employment rule, and we
35
decline to do so now.”).
This murky interstitial area lacks
clear guidance in the case law.
In 1988, the Massachusetts Supreme Judicial Court held that
a nurse who attempted to enforce the municipal ordinance that
nursing staff must supervise hospital patients who wanted to cook
meals sufficiently plead a claim for wrongful termination in
violation of public policy.
Hobson v. McLean Hosp. Corp., 522
N.E.2d 975, 977-98 (Mass. 1988).
Since then, Massachusetts
courts at every level have acknowledged that “[i]f [an] employer
discharges an at-will employee . . . for fulfilling her duty to
assure the employer’s compliance with the law involving public
safety . . . , another class of public policy considerations
warrants recovery.”
Mello v. Stop & Shop Co., Inc., 524 N.E.2d
105, 106-07 (Mass. 1988).
More recently, the Massachusetts
Appeals Court stated the principle more broadly, holding that
“[o]ur cases have suggested that an employee could be shielded
from the risk of discharge if he or she reasonably, but perhaps
erroneously, reports that an employer is violating State and
municipal laws and ordinances concerning public safety.”
Falcon
v. Leger, 816 N.E.2d 1010, 1019 (Mass. App. Ct. 2004). (“Where
Falcon’s claims are grounded in regulations directly bearing on
public safety, we will give weight to the statement of public
policy that such regulations represent.”).
However Falcon dealt
with a different set of circumstances from those at issue here.
36
The court in Falcon denied a defendant’s motion for summary
judgment where the plaintiff refused his employer’s orders
purposefully to deceive a safety inspector, conduct that the
court characterized as tantamount to fraud.
1019.
See id. at 1017,
In this case, Murray has made no allegations that Warren
Pumps asked him to deceive anyone or engage in conduct tantamount
to fraud.
On the other hand, numerous Massachusetts courts have held
that the existence of a safety statute is not, alone, sufficient
to constitute an established public policy precluding
termination.
The Supreme Judicial Court held that
[w]hile we often look to statutes to find
pronouncements of public policy, it is not
necessarily true that the existence of a statute
relating to a particular matter is by itself a
pronouncement of public policy that will protect,
in every instance, an employee from termination.
King v. Driscoll, 638 N.E.2d 488, 493 (Mass. 1994); see also
Smith-Pfeffer, 533 N.E.2d at 1371 (“An employee, even one in a
socially important occupation, who simply disagrees with her
employers policy decisions, may not seek redress in the
courts.”).
In this connection, a justice of the Massachusetts
Superior Court held that a plaintiff’s complaints that the
company did not have adequate staff to meet FDA regulations was
insufficient it invoke the public policy exception to at-will
termination.
See Nelson v. Anika Therapeutics, No. 09-03231,
2011 WL 4056320, *6 (Mass. Super. Aug. 12, 2011) (Leibensperger,
37
J.).
The court there held that the plaintiff raised only issues
of background safety compliance leading to potential safety
concerns, but not any actual concerns.
Id. at *8 (“[The
violations] might possibly allow product to be sold that could be
unsafe.
There is no allegation or evidence that a product sold
by Anika was, in fact, harmful or unsafe.”) (emphasis in
original); see also King v. Driscoll, 638 N.E.2d at 493 (a policy
governing something that has the potential to due harm does not
necessarily lay the groundwork for a claim of wrongful
termination in violation of public policy.
The effect is has to
remote an effect until there is some specific danger to public
safety.).
It is clear that the simple existence of a safety statute is
not sufficient to create the kind of established public policy
that shields an employee from termination.
However, Defendants’
proposed bright line rule requiring a showing of criminal
liability finds no support in a study of the relevant case law.
In order for complaints under a statute to shield an
employee from termination, the plaintiff must either raise
instances of some specific danger to public safety, not merely an
unsafe process that may lead to unsafe products, or else he must
demonstrate that the statutes provide for criminal liability.
the final analysis, Murray has shown neither.
In
His complaints
concern issues of safety in the process of creating pumps, not a
38
specific concern over unsafe pumps themselves.
WL 4056320 at *6.
See Nelson, 2011
He has also failed to show that any of his
complaints implicate violations carrying criminal liability.
Therefore, I find that Murray cannot invoke the public policy
exception to the general at-will termination rule.
2.
Safety and Compliance Manager
Defendants propose another bright line rule, arguing that
Murray cannot complain that Defendants fired him for raising
safety concerns because his job was to raise safety concerns.
This proposed categorical test cannot withstand even cursory
scrutiny of the case law.
The Supreme Judicial Court has
repeatedly held firing an employee for enforcing safety
regulations for which he is responsible violates an important
public policy and is actionable.
See, e.g., Flesner v. Tech.
Comm’ns Corp., 575 N.E.2d 1107, 1110 (Mass. 1991); Mello v. Stop
& Shop Co., Inc., 524 N.E.2d 105, 106-07 (Mass. 1988).
However, Defendants do raise a reasonable concern that
allowing all at-will safety inspectors to bring claims for
wrongful termination in violation of public policy simply for
doing their job - raising safety concerns - would effectively
insulate all safety and compliance employees from the at-will
employee doctrine, effectively swallowing the rule.
See Nelson,
2011 WL 4056320 at *6 (“Nelson’s alleged reporting of a potential
threat to public safety is too remote.
39
This is especially true
in the context of a quality control manager . . . .
Nelson’s
theory would insulate every quality control or compliance manager
from the at-will doctrine where the employee was simply doing his
or her job (reporting deficiencies).
The public policy exception
to the at-will employment rule is not that broad.” (internal
citations and quotations omitted)).
Nevertheless, it would be
similarly untenable to hold that companies are categorically
incapable of responding adversely regarding a safety and
compliance employee for the way he makes safety complaints, no
matter how egregious the employer’s actions.
The problem lies in proof of causation.
If courts were to
allow a safety and compliance employee to rely solely on temporal
proximity between an adverse employment action and a safety
complaint, the causation element would be meaningless because, by
the very nature of his job, there will presumably always be a
safety complaint in close proximity to the adverse action.
would obliterate the at-will doctrine.
This
I therefore find that
when a safety compliance offer invokes the public policy
exception to the at-will doctrine for alleged retaliation for
raising safety complaints, the plaintiff must do more to show
causation than merely demonstrate temporal proximity.
Although
temporal proximity exists in this case because Murray raised a
flood of complaints in April and May 2011, and his employment
ended on June 1, 2011, see Ruffino, 908 F. Supp. at 1046
40
(“[T]emporal proximity may provide the necessary [causal]
nexus.”), a safety compliance officer seeking to hold his
employer liable for alleged retaliation against him for doing his
job must show more.
This, Murray has not done.
He has only
provided evidence that his supervisors told him he no longer
seemed happy with his job, which Murray confirmed.
This is not
evidence that Defendants fired him for raising complaints.
I will grant summary judgment on Murray’s claims for
retaliation based on his safety complaints on this independent
basis as well.
C.
Harassment and Hostile Environment
I have already held that Murray does not qualify as
handicapped under Massachusetts state law.
Therefore, he can
only sustain his harassment and hostile environment claims under
the ADA, if at all.
As a preliminary matter, it is not entirely
clear that the ADA supports such claims in this Circuit, though
it is likely that the First Circuit would hold that it does.
While other circuits have held that the ADA can support such
claims, see, e.g., Flowers v. S. Reg’l Physician Serv., Inc., 247
F.3d 229, 235 (5th Cir. 2001); Fox v. Gen. Motors Corp., 247 F.3d
169, 176 (4th Cir. 2001), the First Circuit has declined the
opportunity to rule explicitly on the issue, see Rocafort v. IBM,
334 F.3d 115, 121 (1st Cir. 2003), but has on at least one
occasion “assumed such claims to be cognizable,” see id. (citing
41
Rivera-Rodriguez v. Frito Lay Snacks Caribbean, A Div. of Pepsico
P.R., Inc., 265 F.3d 15, 23 (1st Cir.2001)).
I find that the ADA
can support a claim for hostile work environment.
See Rodriguez
v. Loctite P.R., Inc., 967 F. Supp. 653, 662-63 (D.P.R. 1997).
However, Murray presents no genuine dispute and no facts from
which a reasonable jury could find a hostile work environment
where “the complained of conduct was so severe or pervasive that
it altered the terms of [his] employment.”
Pomales v. Celulares
Telefonica, Inc., 447 F.3d 79, 80 (1st Cir. 2006).
Murray bases his hostile work environment claim on three
facts: (1) the allegedly discriminatory comments Matthew Korzec
made to him, (2) Korzec and Nicole Belechto questioning why he
needed to take time off whenever he requested it, and (3)
Korzec’s requests that Murray perform tasks outside his lifting
restrictions.
These fall far short of the requirements of a
hostile environment claim.
As discussed above, see supra Section III(A)(3), it is a
dubious proposition whether Korzec’s statements such as “a
younger person would be able to accomplish [Plaintiff’s] tasks,”
and that Plaintiff “needed to work faster,” implicate Murray’s
alleged disability at all.
Even if Murray could somehow prove
that such comments were directed specifically at his impairments,
they are “mere offensive utterance[s,] and . . . [do not]
42
unreasonably interfere[] with an employee’s work performance.”
Pomales, 447 F.3d at 83.
Next, it is in the nature of Korzec’s position as supervisor
and Belechto’s position in human resources to inquire into the
reasons for employee’s requested leave.
If a plaintiff could
survive summary judgment on a hostile environment claim merely by
providing evidence that his supervisor and human resources
personnel asked him the reasons for requested leave when he asked
for it, every disabled person could bring a hostile work
environment claim no matter how appropriate or understanding the
employer’s response might be.
Murray provides no evidence that
these questions from Korzec and Belechto fell outside the
appropriate and necessary duties of their jobs.
He therefore
cannot sustain a claim for a hostile environment.
Finally, and as discussed more fully above, see supra
Section III(A)(4), Korzec’s few requests that would have required
Murray to break his lifting restrictions were not “so severe or
pervasive that [they] altered the terms of [his] employment.”
Pomales, 447 F.3d at 80.
As discussed above, Korzec requested
that all employees help with painting; it was not directed at
Murray or his alleged disability.
Murray received the shipment
because the shipping staff had already left; this cannot be
construed as directed toward his alleged disability.
43
Furthermore, three incidents over the course of
approximately three years of employment constitute isolated
incidents which “will not amount to discriminatory changes in the
terms and conditions of employment” unless “extremely serious.”
Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783 (1st Cir.
1990).
Korzec’s requests are not the kind of “extremely serious”
forms of harassment necessary to overcome the presumption against
finding that isolated incidents give rise to a hostile
environment.
I therefore will grant defendants summary judgment as to
Murray’s harassment and hostile environment claims.
IV.
CONCLUSION
For the foregoing reasons, I GRANT Defendants’ motion for
summary judgment (Dkt. 19).
I direct the Clerk to enter judgment
for the Defendant.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
44
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