Massacani v. Kelly Services, Inc.

Filing 67

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons stated herein, the Defendants Motion for Summary Judgment (Dkt. No. 47] is DENIED as to Counts One, Two, and Three of Plaintiffs complaint and GRANTED as to Count Four of Plaintiffs complaint. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CATHERINE MASSACANI,
Plaintiff,
v.
KELLY SERVICES, INC.,
Defendant.

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Civil Action No. 3:16-cv-30069-KAR

MEMORANDUM AND ORDER REGARDING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Dkt. No. 47)
ROBERTSON, U.S.M.J.
I.

Introduction

Catherine Massacani (“Plaintiff”) has filed a complaint against Kelly Services, Inc.
(“Defendant” or “Kelly”) alleging state law claims under the Massachusetts Anti-Discrimination
Statute, Mass. Gen. Laws. ch. 151B (“Chapter 151B”) for disability discrimination (Count 1),
failure to accommodate (Count 2), retaliation (Count 3), and age discrimination (Count 4).
Defendant has moved for summary judgment on all counts of the complaint (Dkt. Nos. 47-48).
Plaintiff opposed the motion as to all counts save her claim of age discrimination (Dkt. No. 50),
and Defendant replied (Dkt. No. 60). The parties have consented to this court’s jurisdiction
(Dkt. No. 11). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons stated herein,
Defendant’s motion for summary judgment is denied as to Counts 1, 2, and 3 of her complaint
alleging disability discrimination, failure to accommodate, and retaliation, respectively. Because
Plaintiff does not oppose Defendant’s motion for summary judgment as to Count 4 of her
complaint alleging age discrimination, summary judgment shall enter for Defendant with respect
to that claim.

II.

Standard of Review

“Summary judgment is proper where ‘the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.’” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (quoting Fed. R. Civ. P.
56(c)). “A factual dispute is ‘genuine’ if ‘it may reasonably be resolved in favor of either party’
and, therefore, requires the finder of fact to make ‘a choice between the parties’ differing
versions of the truth at trial.’” DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005) (quoting
Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). “[A] fact is ‘material’ ‘if its
existence or nonexistence has the potential to change the outcome of the suit.’” Jarvis v. Village
Gun Shop, Inc., 805 F.3d 1, 7 (1st Cir. 2015) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern,
605 F.3d 1, 5 (1st Cir. 2010)).
In ruling on summary judgment, the court “view[s] ‘the entire record in the light most
hospitable to the party opposing summary judgment, indulging all reasonable inferences in that
party’s favor.’” Padilla-García v. Guillermo Rodríguez, 212 F.3d 69, 73 (1st Cir. 2000) (quoting
Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d 866, 869 (1st Cir. 1998)). A party seeking
summary judgment is responsible for identifying those portions of the record, “which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The movant can meet this burden “either by offering evidence to disprove an
element of the plaintiff’s case or by demonstrating an ‘absence of evidence to support the nonmoving party’s case.’” Rakes v. United States, 352 F. Supp. 2d 47, 52 (D. Mass. 2005) (quoting
Celotex, 477 U.S. at 325). If the moving party meets its burden, “‘the nonmoving party must
come forward with facts that show a genuine issue for trial.’” Sensing v. Outback Steakhouse of

2

Fla., LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Carroll, 294 F.3d at 236). “‘[T]he
nonmoving party “may not rest upon mere allegations or denials of [the movant’s] pleading, but
must set forth specific facts showing that there is a genuine issue of material fact as to each issue
upon which he would bear the ultimate burden of proof at trial.”’” Id. (second alteration in
original) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). “‘The test is
whether, as to each essential element, there is “sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.”’” Id. at 152-53 (quoting DeNovellis, 124 F.3d at
306).
III.

Facts 1

Plaintiff began working for Defendant in March 2012 (Dkt. No. 47 at ¶ 1). Plaintiff was
the only employee in Defendant’s Pittsfield, Massachusetts office, and she was responsible for
finding customers and placing temporary employees with those customers (Dkt. No. 47 at ¶ 3).
Plaintiff’s initial district manager was Brad Drakers (Dkt. No. 47 at ¶ 5). In January 2013,
Pamela Mendes (“Mendes”) became Plaintiff’s new district manager (Dkt. No. 47 at ¶ 6).
Mendes reported to regional vice-president Dawn Ford (“Ford”) (Dkt. No. 47 at ¶ 9). The
human resources manager responsible for supporting Kelly employees with human resources
matters in Massachusetts during Plaintiff’s employment was Tracy Hopper (“Hopper”) (Dkt. No.
47 at ¶ 10).

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The recitation of the facts recounts the undisputed facts and the disputed facts in the light most
favorable to Plaintiff, the nonmoving party. It is limited to those facts that are material to
resolving Defendant’s motion for summary judgment. The facts are drawn from Dkt. No. 47,
Def.’s Motion for Summary Judgment, Dkt. No. 51, Pl.’s Statement of Disputed and
Controverted Facts, and Dkt. No. 61, Def.’s Response to Pl.’s Statement of Disputed and
Controverted Facts – to the extent that they are supported by the material in the summary
judgment record – and from the documents referenced therein.
3

Plaintiff suffers from high blood pressure and periodically needs medical treatment to
monitor or treat the condition (Dkt. No. 51 at ¶ 1). 2 Plaintiff advised Mendes of her condition
and her need to have appointments three times per week to monitor it (Dkt. No. 47 at ¶¶ 18-19).
Since Pittsfield was a one-person office, Plaintiff and Mendes agreed that Plaintiff would go to
the medical appointments during her lunch hour (Dkt. No. 47 at ¶ 19; Dkt. No. 51 at ¶ 34).
Plaintiff claims that, despite this agreement, Mendes refused to allow Plaintiff to attend those
appointments on two occasions (Dkt. No. 51 at ¶ 35).
On February 14, 2013, at 1:43 p.m., Mendes sent an email to Hopper, copying Ford, in
which she indicated that she and Ford wanted to get a Performance Improvement Plan (“PIP”) in
place for Plaintiff (Dkt. No. 47 at ¶ 37). Mendes’s concerns about Plaintiff’s performance
included her technical capabilities using a computer, questionable judgment in professional
decision-making, and not meeting minimum standards in filling orders for temporary employees
(Dkt. No. 47 at ¶ 27). Later in the day on February 14, 2013, at 4:52 p.m., Plaintiff sent an email
to Mendes advising Mendes that her blood pressure was 168 over 96 and that she was going
home from work because she was not feeling well (Dkt. No. 47 at ¶ 20). 3
Several weeks later, on March 7, 2013, Mendes sent an email to Hopper, again copying
Ford, in which she set out a timeline of events relating to Plaintiff’s performance issues (Dkt.

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Defendant faults Plaintiff for relying on her MCAD charge for this and other facts set forth in
her L.R. 56.1 statement, arguing that Plaintiff’s statements in the MCAD charge are merely
allegations, not facts. However, in executing the MCAD charge, Plaintiff verified under the
pains and penalties of perjury that the allegations contained therein were true to the best of her
knowledge (Dkt. No. 50-11). Therefore, the court finds that the MCAD charge satisfies the
requirements of Fed. R. Civ. P. 56(c)(4) and will consider the statements made therein for
summary judgment purposes.
3
While Mendes testified that this was “[p]ossibly” the first time she learned of Plaintiff’s high
blood pressure, Plaintiff maintains that she told Mendes of her condition earlier (Dkt. No. 47 at ¶
20; Dkt. No. 51 at ¶ 36).
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No. 47 at ¶¶ 38-39). Mendes included an entry in her timeline regarding Plaintiff’s February 14,
2013 email about needing to go home due to her high blood pressure (Dkt. No. 47 at ¶ 38).
Hopper replied to Mendes’s email by providing a template for a formal PIP (Dkt. No. 51 at ¶ 15).
Hopper indicated that Mendes should feel free to draft the formal PIP, but she advised Mendes to
“focus specifically on job related and [sic] tasks that [Plaintiff] is unable to perform, gaps in
performance, missing deadlines, etc., and not include any sort of medical information . . . (as we
know, those are not performance related factors)” (Dkt. No. 51 at ¶ 15).
On the morning of March 12, 2013, Plaintiff made an unscheduled visit to her healthcare
provider due to a blood pressure reading of 160 over 110 (Dkt. No. 51 at ¶¶ 2-3). Before the
visit and before the start of her scheduled shift that day, Plaintiff sent Mendes a text message
letting her know that she needed to see her healthcare provider due to her high blood pressure
(Dkt. No. 51 at ¶ 4). At the appointment, Plaintiff’s blood pressure was 148 over 80, and
Plaintiff’s healthcare provider instructed Plaintiff not to return to work that day (Dkt. No. 47 at
¶¶ 15-16; Dkt. No. 51 at ¶ 5; Dkt. No. 61 at ¶ 5).
Following the appointment, Plaintiff called Mendes to advise Mendes of her need to be
out of work for the day (Dkt. No. 51 at ¶ 6; Dkt. No. 61 at ¶ 6). Mendes had yet to receive
Plaintiff’s text message about being out of the office and had been looking for Plaintiff after the
office opened at 8:00 a.m. (Dkt. No. 47 at ¶¶ 53, 57). According to Plaintiff, Mendes’s initial
response was to scream at Plaintiff, “I don’t care about your blood pressure. I expect you to
work in fifteen minutes” (Dkt. No. 47 at ¶ 55; Dkt. No. 51 at ¶ 7). 4 Then, in a threatening tone,

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Plaintiff cites to page 87 of her deposition transcript to support the assertion that Mendes
screamed at her during this call. Defendant argues that page 87 of Plaintiff’s deposition does not
support this assertion (Dkt. No. 61 at ¶ 7). Defendant is correct; however, Plaintiff’s testimony
on page 86 does.
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Mendes told Plaintiff, “go ahead and take the day off, and I’ll take care of everything” (Dkt. No.
47 at ¶ 59; Dkt. No. 51 at ¶¶ 8-9; Dkt. No. 61 at ¶¶ 5, 8). 5
Plaintiff reported Mendes’s behavior to Defendant’s human resources department that
same day. According to Plaintiff, when she returned home from her medical appointment, she
called Hopper and told Hopper what Mendes had said to her about not caring about her blood
pressure and expecting her to be at work in fifteen minutes (Dkt. No. 51 at ¶¶ 10-11).
Additionally, the record includes a March 12, 2013 email with a time stamp of 11:48 a.m. from
Jessica Biauce, a human resources coordinator, to Hopper, in which Biauce advised Hopper that
Plaintiff had “stated that she stayed home today due to high blood pressure and was given that
directive by her doctor. She said that her DM stated that ‘This behavior is intolerable and that
there needs to be someone in the office at all times’” (Dkt. No. 47 at ¶ 61).
Later that day, at 1:56 p.m., Mendes emailed Hopper and Ford a document titled “First
and Final for Lack of Integrity – Cathy Massacani;” Defendant maintains that this document is
the PIP (Dkt. No. 47 at ¶ 35; Dkt. No. 51 at ¶ 13; Dkt. No. 61 at ¶ 13). The document is
addressed to Plaintiff from Mendes and indicates that it is intended “to communicate our
concerns regarding your recent communications and lack of integrity” (Dkt. No. 47 at ¶ 35; Dkt.
No. 51 at ¶ 13; Dkt. No. 61 at ¶ 13). Included among the items listed in bullet point format
thereafter is the entry from Mendes’s March 7, 2013 timeline regarding Plaintiff’s February 14,

5

Plaintiff supports the assertion that Mendes made this statement in a threatening tone with an
affidavit that she submitted in conjunction with her opposition to Defendant’s motion for
summary judgment. Defendant objects to Plaintiff’s characterization of Mendes’s tone as
“subjective” and contrary to sworn testimony from her deposition (Dkt. No. 61 at ¶ 9).
Defendant’s objections are ill-founded. Plaintiff’s representation does not contradict earlier
sworn testimony, and Plaintiff is qualified as a percipient witness to testify as to her perception
of Mendes’s tone during the call.
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2013 email about needing to go home due to her high blood pressure (Dkt. No. 51 at ¶ 14; Dkt.
No. 61 at ¶ 14).
And yet later that day, at 4:36 p.m., Hopper forwarded Biauce’s email to Plaintiff,
stating:
In speaking with [Mendes] about this matter, not only has she
denied stating such to you – she has sent you a very sincere follow
up email stating the importance of regaining your health and
making it a priority. . . . . [S]he has articulated to you (both
verbally and written), that she would like you to make it a focus for
you to get well and will make appropriate accommodations to you
as necessary.
(Dkt. No. 47 at ¶ 62).
Two days later, on March 14, 2013, Hopper called Plaintiff and told her, “We are
working on an exit strategy for you. Your last day of work will be Friday, March 15” (Dkt. No.
51 at ¶ 16; Dkt. No. 61 at ¶ 16). Hopper indicated that the impetus for the “exit strategy” was
that “they were concerned with [Plaintiff’s] blood pressure and this would be best for both Kelly
and [Plaintiff]” (Dkt. No. 51 at ¶ 16). 6
The following day, March 15, 2013, Hopper, Ford, and Mendes met with Plaintiff, with
Hopper and Ford participating by phone (Dkt. No. 51 at ¶¶ 18, 20; Dkt. No. 61 at ¶¶ 18, 20).
During the meeting, Plaintiff was instructed to open an email containing a .PDF of a severance
agreement that had been drafted by Defendant’s legal department (Dkt. No. 51 at ¶ 22; Dkt. No.

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Defendant denies that Hopper made this statement and endeavors to establish that Plaintiff
requested information about leaving her employment with Kelly, including a possible severance,
because she did not want to work for Mendes and could not see a way for them to work together,
nor did she want to be placed on a PIP (Dkt. No. 47 at ¶¶ 44, 70-76). Plaintiff denies requesting
information about leaving her employment with Kelly and denies telling anyone at Kelly that she
did not want to work for Mendes and could not see a way for them to work together (Dkt. No. 51
at ¶¶ 30-31). Since Plaintiff is the non-moving party, her version, which is properly supported
by evidentiary material in the record, controls for summary judgment purposes.
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61 at ¶ 22). According to Plaintiff, Hopper instructed Plaintiff to sign the severance agreement
(Dkt. No. 51 at ¶ 22). When Plaintiff refused to sign it, she was instructed to give her keys to
Mendes and leave the office (Dkt. No. 47 at ¶¶ 90-91; Dkt. No. 51 at ¶¶ 23-24; Dkt. No. 61 at ¶
24). Plaintiff testified that, as she was exiting the office, Hopper asked Plaintiff if she could hear
her; when Plaintiff indicated that she could, Hopper said, “You quit your job. That’s our
position, and we’re sticking to it” (Dkt. No. 51 at ¶ 25). Plaintiff’s husband, William Massacani,
was outside of the office at the time, and Plaintiff told him that she had just been terminated for
health reasons (Dkt. No. 51 at ¶ 26; Dkt. No. 61 at ¶ 26).
In order to secure Plaintiff’s replacement, Mendes prepared an internal Kelly document
titled “Staffing Requisition;” in that document, Mendes indicated that Plaintiff’s employment
had been terminated (Dkt. No. 51 at ¶ 37; Dkt. No. 61 at ¶ 37). Robert Romanelli, Defendant’s
general counsel, also represented that Plaintiff’s employment had been terminated (Dkt. No. 51
at ¶¶ 38-39; Dkt. No. 51 at ¶¶ 38-39). In contrast, Ford completed a Notice of Termination, in
which she indicated that the termination of Plaintiff’s employment was voluntary and that she
had resigned after counseling (Dkt. No. 47 at ¶¶ 103-05).
On May 17, 2013, Plaintiff filed a single charge of disability discrimination with the
Massachusetts Commission Against Discrimination (“MCAD”) alleging that Defendant had
violated the Americans with Disabilities Act (“ADA”) and Mass. Gen. Laws ch. 151B (“Chapter
151B) on March 15, 2013 by firing her based on her high blood pressure (Dkt. No. 50-11). On
August 22, 2013, Plaintiff filed a reply to Defendant’s Position Statement (Dkt. No. 50-10). On
November 2, 2015, the MCAD issued a probable cause determination (Dkt. No. 50-15). Plaintiff
initiated this action in state court on March 15, 2016, claiming that the termination of her

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employment violated Chapter 151B (Dkt. No. 1-1). Defendant removed the action to this court
on April 27, 2016 (Dkt. No. 1).
IV.

Discussion
A. Applicable Law

Plaintiff brings her claims under Chapter 151B, which prohibits an employer from
discriminating against a person on the basis of handicap. Mass. Gen. Laws ch. 151B, § 4(16). It
provides in pertinent part:
It shall be an unlawful practice . . . [f]or any employer . . . to
dismiss from employment . . . or otherwise discriminate against,
because of his handicap, any person alleging to be a qualified
handicapped person, capable of performing the essential functions
of the position involved with reasonable accommodation, unless
the employer can demonstrate that the accommodation required to
be made to the physical or mental limitations of the person would
impose an undue hardship to the employer’s business.
Id. The law defines the term “handicap” to 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 . . . .” Id. at § 1 (17).
“[H]andicapped person” means “any person who has a handicap.” Id. at § 1 (19). A “qualified
handicapped person” means “a handicapped person who is capable of performing the essential
functions of a particular job, or who would be capable of performing the essential functions of a
particular job with reasonable accommodation to his handicap.” Id. at § 1 (16). Chapter 151B
also makes it unlawful for an employer to “discharge, expel or otherwise discriminate against
any person because he has opposed any practices forbidden under this chapter.” Id. at § 4(4).
“Chapter 151B is considered the ‘Massachusetts analogue’ to the federal American’s
with Disabilities Act (‘ADA’).” Sensing, 575 F.3d at 153 (citing Whitney v. Greenberg,
Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 32 & n.1 (1st Cir. 2001)). “As a result, ‘“[t]he
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Supreme Judicial Court of Massachusetts [(“SJC”)] has indicated that federal case law
construing the ADA should be followed in interpreting the Massachusetts disability law.”’” Id.
at 153-54 (alterations in original) (quoting Whitney, 258 F.3d at 32 n.1).
B. Count One: Disability Discrimination
In Count 1 of her complaint, Plaintiff alleges that Defendant discriminated against her on
the basis of her disability, in violation of Chapter 151B, by terminating her employment. Proof
of disability discrimination can be direct or circumstantial. Patten v. Wal-Mart Stores E., Inc.,
300 F.3d 21, 24-25 (1st Cir. 2002). See also Connolly v. Suffolk Cty. Sheriff’s Dept., 815 N.E.2d
596, 603 n.6 (Mass. App. Ct. 2004). “Direct evidence . . . ‘consists of statements by a
decisionmaker that directly reflect the alleged animus and bear squarely on the contested
employment decision.’” Patten, 300 F.3d at 25 (quoting Febres v. Challenger Caribbean Corp.,
214 F.3d 57, 60 (1st Cir. 2000)). “Such evidence, if accepted by the factfinder, shifts the burden
of persuasion to the employer, who then must establish that he would have reached the same
decision regarding the plaintiff even if he had not taken the proscribed factor into account.”
Febres, 214 F.3d at 60 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989)). “The
presence of such direct evidence is sufficient to generate a jury issue on the question of a
possibly improper mixed-motive on Defendant’s part.” Katica v. Webster Bank, N.A., No. 13cv-30072-MAP, 2014 WL 3587383, at *8 (D. Mass. July 18, 2014) (citing Price Waterhouse,
490 U.S. at 228). See also Wynn & Wynn, P.C., v. Mass. Comm’n Against Discrimination, 729
N.E.2d 1068, 1080 (Mass. 2000), overruled on other grounds by Stonehill Coll. v. Mass.
Comm’n Against Discrimination, 808 N.E.2d 205 (2004) (following the guidance of the Supreme
Court with respect to the allocation of burdens of proof in mixed-motive cases).

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Where there is no direct evidence of discrimination, the SJC “uses a burden-shifting
framework along the lines of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”
Sensing, 575 F.3d at 154 (citing Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303,
1308-09 (Mass. 1997)). See also Cherkaoui v. City of Quincy, 877 F.3d 14, 24 (1st Cir. 2017)
(“[T]he SJC has consistently applied the three-step burden-shifting framework from McDonnell
Douglas Corp. . . . to antidiscrimination suits under chapter 151B.” (citing Verdrager v. Mintz,
Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016))). Under the
familiar three-part framework, the plaintiff first must make a prima facie showing of handicap
discrimination by offering evidence that (1) he or she is a “handicapped person” within the
meaning of Chapter 151B; (2) he or she is a “qualified handicapped person” within the meaning
of Chapter 151B; (3) he or she was terminated or otherwise subject to an adverse action by his or
her employer; and (4) where the adverse action is termination, the position he or she had
occupied remained open and the employer sought to fill it. Gannon v. City of Boston, 73 N.E.3d
748, 756 & n.5 (Mass. 2017). “Where the plaintiff employee makes this prima facie showing,
the burden shifts to the employer to show with credible evidence that the real reason for the
adverse employment action was not the employee’s handicap but a lawful reason that was
unrelated to the employee’s handicap,” such as insubordination, poor job performance, tardiness,
or a reduction in force. Id. at 756. “Where the employer meets this burden, the burden shifts
back to the plaintiff employee to prove that the adverse action was taken ‘because of his [or her]
handicap,’ [Mass.] G[en]. Laws[ ] c[h]. 151B, § 4 (16), and not for the reason proffered by the
employer.” Id. at 756-57 (first alteration in original) (citations omitted).
Defendant argues that Plaintiff does not have direct evidence of discrimination. The
court disagrees. Plaintiff has submitted evidence sufficient to constitute direct evidence of

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discrimination. Plaintiff testified that Hopper called her on March 14, 2013 and told her that
Defendant was working on an exit strategy for her out of concern over her high blood pressure.
Hopper made this statement the day before Plaintiff was presented with a severance agreement
and, when she refused to sign it, was told to turn over her keys and leave. Thus, the statement
made by Hopper, who Defendant has failed to show lacked decision-making authority, “directly
reflect[ed] the alleged animus and b[ore] squarely on the contested employment decision.”
Febres, 214 F.3d at 60. Moreover, even if Hopper were not a decisionmaker, a fair inference
from Hopper’s statement that “we are working on an exit strategy” is that Hopper was acting at
the direction of a decisionmaker. Thus, if a jury accepted Plaintiff’s testimony that Hopper made
this statement, it would constitute direct evidence of discrimination and would satisfy Plaintiff’s
burden. Id. The burden would then shift to Defendant to show that it would have terminated
Plaintiff regardless of her high blood pressure. Id. According to Defendant, Plaintiff’s high
blood pressure had nothing to do with her termination; the real reason it terminated Plaintiff’s
employment was because Plaintiff decided she could no longer work for Mendes (Dkt. No. 48 at
p. 17). Plaintiff denies this. Because the question is one of fact, it is for a jury.
Defendant also argues that it is entitled to summary judgment under the burden-shifting
framework both because Plaintiff cannot establish a prima facie case of discrimination and
because Plaintiff cannot establish that Defendant’s proffered justification is “‘not only a sham,
but a sham intended to cover up [disability] discrimination’” (Dkt. No. 48 at p. 16 (quoting Tyree
v. Foxx, 835 F.3d 35, 41 (1st Cir. 2016)). With regard to Plaintiff’s prima facie case, Defendant
concedes for purposes of summary judgment that Plaintiff’s high blood pressure constitutes a
disability (the first element) and that the end of Plaintiff’s employment with Defendant qualifies
as an adverse employment action (the third element). While Defendant does not concede that

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Plaintiff’s position remained open and Defendant sought to fill it (the fourth element), it is
uncontested that Mendes filled out the Staffing Requisition document to secure Plaintiff’s
replacement, thereby demonstrating the presence of a triable issue as to the fourth element.
Defendant argues that Plaintiff cannot satisfy the second element of her prima facie case, which
is to show that Plaintiff is a “qualified handicapped person” able to perform the essential
functions of the job, either with or without reasonable accommodation. Gannon, 73 N.E.3d at
756.
The analysis of whether an employee is a “qualified handicapped person” is “generally
broken into two steps: (1) whether the employee could perform the essential functions of the job;
[and] (2) if not, whether any reasonable accommodation by the employer would enable him to
perform those functions.” Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 33-34 (1st
Cir. 2000) (citations omitted). “An essential function is a ‘fundamental job dut[y]’ of the
employment position the individual with a disability holds or desires.” Id. at 34 (alteration in
original) (quoting Laurin v. Providence Hosp., 150 F.3d 52, 56-57 (1st Cir. 1998)). “[W]hether a
particular job duty is an ‘essential job function’ is ‘intensely fact-based,’ requiring
‘individualized inquiry and . . . appropriate findings of fact.’” Godfrey v. Globe Newspaper Co.,
Inc., 928 N.E.2d 327, 334 (Mass. 2010) (second alteration in original) (quoting Cargill v.
Harvard Univ., 804 N.E.2d 377, 380 (Mass. 2004)). The employer bears the burden of proving
that a given job function is an essential function. Ward, 209 F.3d at 35. The only function of
Plaintiff’s position that Defendant has identified is the responsibility to find customers and place
temporary employees with those customers. Defendant has pointed to no evidence in the
summary judgment record that demonstrates that Plaintiff’s high blood pressure prevented her
from performing this function. Instead, Defendant points to Mendes’s concerns with Plaintiff’s

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performance and the initiation of the PIP process as evidence that Plaintiff was not performing
her job in a satisfactory manner. While poor job performance may be an issue for Defendant to
raise at the second stage of the burden shifting framework, it does not negate Plaintiff’s ability to
prove that she is a qualified handicapped person. Thus, Defendant has not met its burden of
showing the absence of a genuine issue of material fact on this element of Plaintiff’s prima facie
case. See Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 34 (Mass. 2016) (“[T]he burden of
persuasion at summary judgment remains with the defendants, who, ‘as the moving part[ies],
“ha[ve] the burden of affirmatively demonstrating the absence of a genuine issue of material fact
on every relevant issue, even if [they] would not have the burden on an issue if the case were to
go to trial.”’” (all but first alteration in original) (quoting Sullivan v. Liberty Mut. Ins. Co., 825
N.E.2d 522, 529 (Mass. 2005))).
Moreover, even if the record supported a finding that Plaintiff was incapable of
performing an essential function of the position because of her high blood pressure, the inquiry
would continue on to the issue of reasonable accommodation. “Once an employee ‘make[s] at
least a facial showing that reasonable accommodation is possible,’ the burden of proof (of both
production and persuasion) shifts to the employer to establish that a suggested accommodation
would impose an undue hardship.” Godfrey, 928 N.E.2d at 333-34 (alteration in original)
(quoting Cox v. New England Tel. & Tel. Co., 607 N.E.2d 1035, 1041 n.3 (Mass. 1993)). Here,
the record reflects that the only accommodations that Plaintiff sought were to attend medical
appointments during her lunch hour three times per week and to be out of work on March 12,
2013. Defendant has not shown that providing these accommodations would impose an undue
hardship, financial or otherwise. To the contrary, Mendes and Plaintiff agreed that Plaintiff
could go to her medical appointments during her lunch hour, Mendes advised Plaintiff to go

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ahead and take the day off on March 12, 2013, and Defendant conceded that “an employee’s
need for time for a medical reason was an accommodation Kelly would make” (Dkt. No. 47 at ¶
60). Accordingly, Defendant is not entitled to summary judgment based on a showing that
Plaintiff is unable to make out a prima facie case of disability discrimination at the first stage of
the burden-shifting framework.
Nor is Defendant entitled to summary judgment at the third stage of the burden-shifting
framework. Contrary to Defendant’s argument, “[t]o survive a motion for summary judgment,
the plaintiff need only present evidence from which a reasonable jury could infer that ‘the
respondent’s facially proper reasons given for its action against him were not the real reasons for
that action.’” Bulwer, 46 N.E.3d at 33 (quoting Wheelock Coll. v. Mass. Comm’n Against
Discrimination, 355 N.E.2d 309, 315 (Mass. 1976)). Plaintiff does not also need to show that the
sham reasons were intended to cover up disability discrimination. Id. This is because where
there are “disputed issues of fact as to whether the employer’s proffered reason was not the true
reason, [it may be inferred] that the employer offered a pretextual reason because the true reason
was discrimination on the basis of handicap.” Gannon, 73 N.E.3d at 757 (citing Bulwer, 46
N.E.3d at 33-34; Blare v. Husky Injection Molding Sys. Boston, Inc., 646 N.E.2d 111, 117 (Mass.
1995))). Plaintiff satisfies this standard. Defendant’s proffered reason for the adverse
employment action is that Plaintiff decided she could no longer work for Mendes. Plaintiff has
pointed to ample evidence in the summary judgment record from which a jury could conclude
that this stated reason was pretextual. First, Plaintiff denies having decided that she could no
longer work for Mendes or having any intention of quitting, and Defendant made multiple
representations that Plaintiff’s employment was terminated. Second, Plaintiff has identified two
statements by Hopper that call into question Defendant’s motivation. Plaintiff testified that

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Hopper advised her on March 14, 2013 – only two days after Plaintiff had to be out of work for
her high blood pressure and after Plaintiff complained to Defendant about Mendes’s treatment of
her as a result – that Defendant was working on an exit strategy for her due to her high blood
pressure. Then, immediately after Plaintiff was told to turn in her keys and leave after she
refused to sign a severance agreement on March 15, 2013, Hopper told Plaintiff that Defendant’s
story was she quit. Third, there is evidence that Mendes circulated a PIP, which she titled “First
and Final for Lack of Integrity,” on March 12, 2013, just hours after screaming at Plaintiff for
needing to be out of work that day for her high blood pressure, and, in that document, Mendes
included Plaintiff’s need to leave work early on February 14, 2013 due to her high blood
pressure as a concern. Finally, Plaintiff’s employment ended on March 15, 2013, only three days
after she had to miss work due to her high blood pressure and after she made her complaint about
Mendes’s treatment of her. Thus, there are disputed issues of fact as to whether Defendant’s
proffered reason why Plaintiff’s employment ended was the true reason, from which a jury could
infer that Defendant offered a pretextual reason to cover up disability discrimination.
Accordingly, Defendant is not entitled to summary judgment on Plaintiff’s disability
discrimination claim.
C. Failure to Accommodate
In Count 2 of her complaint, Plaintiff claims that Defendant failed to reasonably
accommodate her disability in violation of Chapter 151B by not allowing her to attend necessary
medical appointments during her lunch hour. As a preliminary matter, Defendant argues that
Plaintiff failed to exhaust her administrative remedies on her claim of failure to accommodate
because her MCAD charge did not specifically assert discrimination on the basis of failure to
accommodate. “Under Massachusetts law, plaintiffs must first bring their discrimination claims

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before the MCAD; otherwise their claims are barred.” Singleton v. Sinclair Broad. Grp., Inc.,
660 F. Supp. 2d 136, 146 (D. Mass. 2009) (citing Lattimore v. Polaroid Corp., 99 F.3d 456, 464
(1st Cir. 1996)). “The purpose of the administrative filing is ‘(1) to provide the MCAD with an
opportunity to investigate and conciliate the claim of discrimination, and (2) to provide notice to
the defendant of potential liability.’” Pelletier v. Town of Somerset, 939 N.E.2d 717, 727 (Mass.
2010) (quoting Cuddyer v. Stop & Shop Supermarket Co., 750 N.E.2d 928, 936 (Mass. 2001)).
Courts use the “scope of the investigation” rule to determine if a plaintiff has sufficiently
exhausted his or her claims. Id. “Under the ‘scope of the investigation’ rule, ‘a claim that is not
explicitly stated in the administrative complaint may be asserted in the subsequent . . . action so
long as it is based on the acts of discrimination that the MCAD investigation could reasonably be
expected to uncover.’” Id. (quoting Everett v. 357 Corp., 904 N.E.2d 733, 748 (Mass. 2009)).
Here, Plaintiff’s MCAD complaint is fairly sparse and is focused on the events of March
12, 2013 to March 15, 2013. While it does include an allegation that Mendes agreed that
Plaintiff could go to medical appointments for her high blood pressure three times per week
during her lunch hour, it does not allege that Defendant ever denied Plaintiff this particular
accommodation. Nevertheless, the court finds that Plaintiff’s MCAD complaint sufficed to
exhaust her failure to accommodate claim. This is not a case in which a plaintiff seeks to add a
claim based on a protected characteristic that was not identified in her MCAD charge. In the
court’s view, a reasonable investigation of a disability discrimination claim would include an
examination into whether the plaintiff was afforded the very accommodation she identified in her
MCAD complaint. The court’s conclusion is bolstered by the fact that, so far as it appears from
the record, Plaintiff was not represented by counsel at the time she filed her MCAD complaint.
“In cases where . . . the employee acts pro se, the administrative charge is liberally construed in

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order to afford the complainant the benefit of any reasonable doubt.” Lattimore, 99 F.3d at 464
(citations omitted). Thus, Defendant’s motion, to the extent it argues that Plaintiff failed to
exhaust her failure to accommodate claim, is denied.
Turning to the substance of the claim, a disability discrimination claim based upon a
failure to accommodate requires a plaintiff to show that: “(1) she is a handicapped person within
the meaning of the statute; (2) she is qualified to perform the essential functions of the job with
or without reasonable accommodation; and (3) the employer knew of her disability but did not
reasonably accommodate it upon a request.” Henry v. United Bank, 686 F.3d 50, 59-60 (1st Cir.
2012) (citing Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 (1st Cir. 2010)). As discussed
above, Defendant has not contested that Plaintiff is a handicapped person, and the court has held
that Defendant has not met its summary judgment burden of demonstrating the absence of a
genuine issue of material fact as to whether Plaintiff is a qualified handicapped person. Turning
to the third element, Defendant maintains that Plaintiff cannot establish that she was denied a
requested reasonable accommodation. The court disagrees. Viewing the summary judgment
record in the light most favorable to Plaintiff, as the court must, it reveals that Plaintiff advised
Mendes of her high blood pressure, that Plaintiff sought as an accommodation to attend medical
appointments three times per week during her lunch hour to have her blood pressure monitored,
and that Mendes, despite agreeing she could do so, prevented her from going to those
appointments on two occasions. This evidence is sufficient to create a triable issue on Plaintiff’s
claim of failure to accommodate. Defendant faults Plaintiff for not having medical records to
support her testimony that Mendes prevented her from going to two of her appointments. The
lack of corroborating records may well affect a factfinder’s assessment of Plaintiff’s credibility,

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but Plaintiff does not need such records to survive summary judgment. Her testimony suffices to
create a genuine issue of material fact.
D. Retaliation
In Count 3 of her complaint, Plaintiff claims that Defendant retaliated against her, in
violation of Chapter 151B, by terminating her employment as a result of her engaging in
protected activity. 7 Plaintiff’s retaliation claim is governed by the McDonnell Douglas threestage burden-shifting framework. Cherkaoui, 877 F.3d at 28 (citing Pina v. Children’s Place,
740 F.3d 785, 800 (1st Cir. 2014)).
To establish a prima facie case of retaliation, Plaintiff must “show
that (1) she undertook protected conduct; (2) she suffered an
adverse employment action, and (3) the two were causally linked.”
Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir. 2005); CaleroCerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004).
Once Plaintiff has made a prima facie showing of retaliation,
“[D]efendant must articulate a legitimate, non-retaliatory reason
for its employment decision. Id. at 26. “If the [D]efendant meets
this burden, then [P]laintiff must show that the proffered legitimate
reason is pretextual and that ‘the job action was the result of the
[D]efendant’s retaliatory animus.’” Kelly v. Corr. Med. Servs.,
Inc., 707 F.3d 108, 115 (1st Cir. 2013) (quoting St Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993)).
Id. (alterations in original).
In terms of her prima facie case, Plaintiff contends that she engaged in protected activity
when she requested the reasonable accommodations of going to medical appointments three
times per week during her lunch hour and for time off on March 12, 2013, and when she
complained about Mendes’s treatment of her as a result of needing to be out of work on March

7

Defendant argued in its memorandum of law in support of its motion for summary judgment
that Plaintiff failed to exhaust her administrative remedies for her retaliation claim. However, at
oral argument on the motion, Defendant conceded that Plaintiff had exhausted her administrative
remedies on the retaliation claim in light of the fact that the MCAD sua sponte amended the
complaint to allege that Plaintiff was subjected to retaliation.
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12, 2013. Both requests for reasonable accommodation and complaints regarding discrimination
are protected activity. Verdrager, 50 N.E.3d at 801 (citing Abril-Rivera v. Johnson, 806 F.3d
599, 608 (1st Cir. 2015)); Murray v. Warren Pumps, LLC, 821 F.3d 77, 87 (1st Cir. 2016). 8
Moreover, as set forth above, Defendant does not contest that Plaintiff suffered an adverse
employment action on March 15, 2013. This leaves only the element of causation. As evidence
of causation, Plaintiff points to the temporal proximity between her request for accommodation
on March 12, 2013, and her complaining about Mendes’s conduct after she requested that
accommodation, on the one hand, and her termination on March 15, 2013, on the other. The
extremely close timing between these events is sufficient to establish a prima facie case of
retaliation. Cherkaoui, 877 F.3d at 28-29 (“‘The cases that accept mere temporal proximity
between an employer’s knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal
proximity must be “very close”’” (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001))); Katica, 2014 WL 3587383, at *11. Thus, Defendant is not entitled to summary
judgment at the first stage of the burden shifting framework.
Nor is Defendant entitled to summary judgment at the third stage of the burden shifting
framework. Again, Defendant’s proffered reason for terminating Plaintiff’s employment is that
Plaintiff decided she could no longer work with Mendes. For the same reasons discussed above
in connection with Plaintiff’s disability discrimination claim, Plaintiff has pointed to sufficient
evidence in the summary judgment record from which a jury could determine that Defendant’s
facially valid reason was not the real reason for the adverse action, which would support an
8

Defendant complains that the record does not contain any formal request for an accommodation
or medical documentation indicating that an accommodation was required, but cites to no
authority for the proposition that such evidence is necessary.
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inference that the proffered reason was a pretext to cover up unlawful retaliation. Gannon, 73
N.E.3d at 757; Bulwer, 46 N.E.3d at 33-34. Accordingly, Defendant is not entitled to summary
judgment on Plaintiff’s retaliation claim.
V.

Conclusion

For the reasons stated herein, Defendant’s motion for summary judgment is DENIED as
to Counts One, Two, and Three of Plaintiff’s complaint and GRANTED as to Count Four of
Plaintiff’s complaint.
It is so ordered.
January 16, 2018

/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge

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