Articles Posted in Disability Discrimination

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Massachusetts employers can not refuse to accommodate handicapped employees who are lawfully prescribed medical marijuana to treat or alleviate a medical condition. Stated differently, continued use of medical marijuana as a reasonable accommodation request is not facially unreasonable. In Barbuto v. Advantage Sales, the Massachusetts Supreme Judicial Court (SJC) reversed the Superior Court’s decision granting summary judgment to the employer and reinstated the employee’s handicap discrimination claim under the Fair Employment Practices Act (M.G.L. c. 151B, §4). There, the plaintiff, Cristina Barbuto, receive a valid prescription for medical marijuana to treat the debilitating symptoms caused by Crohn’s disease. According to the decision, due to this medical condition, Ms. Barbuto has little or no appetite, finds it difficult to maintain a healthy weight, and typically uses marijuana for medicinal purposes in small quantities two or three times per week. The record also makes clear that Ms. Barbuto did not use marijuana daily, nor would she consume it before or during work.

Ms. Barbuto’s employer, Advantage Sales & Marketing, required her to submit a urine sample as part of the hiring process. After learning of this requirement, Ms. Barbuto was up front with her future supervisor about her diagnosis of Crohn’s disease and her medical marijuana use. The decision further reports that her future supervisor responded that this “should not be a problem,” which he later confirmed with others at the company. After completing her first day of work, Ms. Barbuto received a call from a human resources representative, who informed her that she was terminated for testing positive for marijuana. In doing so, Ms. Barbuto was allegedly told that the company did not care if she used marijuana to treat her medical condition because “we follow federal law, not state law.”

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Overview: In Joyce v. CSX Transportation, the MCAD found in favor of the Complainant, awarding six years of back pay and considerable emotional distress damages for a disability-based discrimination claim. The 66-year-old Complainant, who was a conductor with the Respondent transportation company, suffered from cognitive disabilities such as ADHD and depression. He charged his employer with denying him a reasonable accommodation in requiring him to use an administrative computer system with which he had a great deal of difficulty.

In finding a failure to accommodate, the hearing officer reasoned that the Complainant’s requests for accommodation were fairly straightforward. The Respondent’s assertion that it had no knowledge of the Complainant’s disabilities was deemed not credible. The hearing officer held the Respondent liable under the “cat’s paw” theory of discrimination, finding a supervisor with discriminatory animus who influenced the decision to take disciplinary action against the Complainant, action which was deemed pretext for discrimination.

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Overview: In Codinha v. Bear Hill Nursing Center, the MCAD found in favor of the Complainant and awarded emotional distress damages for unlawful termination based on age and disability. The Complainant, a Certified Nursing Assistant, was in her early 70s when she fell at home and broke her wrist. After a period of medical leave, the Respondent informed her that it would not be feasible for her to return to work.

The Respondent claimed that the Complainant was terminated due to concerns over her attitude and poor performance, but the hearing officer determined that this was not credible. The hearing officer noted that the timing was suspect, that coworkers had not previously complained to management about the Complainant, that there were no negative reports about the Complainant’s performance, and that her most recent evaluation was positive. In addition, the Respondent had characterized the termination as a layoff, and not as a termination for cause.

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Overview: In Bloomfield v. MA Department of Correction, the MCAD found in favor of the Respondent and dismissed the complaint from a DOC Sergeant alleging a racially-motivated hostile work environment, retaliation, and discrimination based on disability from diabetes. Many of the Complainant’s allegations fell outside the applicable statute of limitations, including some charges dating back to 1990. Those charges that were not untimely were neither credible nor sufficient to support the claims.

The hearing officer reasoned that the one-year gap between the protected activity of filing an MCAD charge and the Complainant’s subsequent termination was too long in this case to support an inference of causation. Additionally, there was credible evidence showing that the penalties imposed on the Complainant “were valid, job-related responses to misconduct, not punishments for complaining about discrimination.” The Complainant was disciplined for making false claims of misconduct against other employees and for lying about sleeping while on duty, not for making allegations of discrimination.

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Overview: In Lapete v. Country Bank, the MCAD found in favor of the Complainant and awarded back pay and emotional distress damages. The hearing officer determined that the Respondent bank failed to provide a reasonable accommodation for the Complainant’s disability—post-partum depression following the birth of her son via emergency C-section—and improperly terminated the Complainant instead of granting a reasonable request for a brief extension of medical leave.

Although the Complainant had been on leave for more than the 12 weeks afforded by statute and the FMLA, the Complainant met her obligation to engage in an interactive dialogue and keep the Respondent informed as to her condition. The Respondent, conversely, arbitrarily terminated the Complainant without engaging in any interactive dialogue. At the time of her termination, the Complainant was only seeking a few additional weeks of leave and not an indefinite extension. The hearing officer reasoned that sole reliance on the 12-week leave period required by the FMLA would be misguided because “Massachusetts disability law requires a more flexible approach” in determining what constitutes reasonable accommodation.

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Overview: In Tsigas v. Department of Correction, the MCAD found in favor of the Respondent and dismissed the Complainant’s disability discrimination claim. The factual record established that the Complainant was not a handicapped individual as defined by statute, as his medical history presented “an array of conflicting symptoms that cannot be tied to a single disabling condition.” Furthermore, even if the Complainant had established he was handicapped, his inability to attend work consistently would disqualify him from performing the essential function of his role.

The hearing officer concluded that the Complainant’s termination was not due to disability but was instead because of extensive absenteeism. The Complainant was “lackadaisical in obtaining the medical clearances necessary to return to work,” and his “absences were numerous and poorly defined as to causation.”

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Overview: In Diaz v. Ace Metal Finishing Inc., the MCAD found in favor of the Respondent industrial company and dismissed the complaint alleging termination of employment based on disability. The Complainant, who went out on a six-month medical leave when his chronic leg condition worsened, was laid off upon returning to work. The Respondent cited a decline in revenue, changes in the business model, and an ongoing conversion to a more complex process as legitimate, nondiscriminatory reasons for the Complainant’s termination.

The hearing officer concluded that it was likely the Respondent assumed that the Complainant was not returning and “made the determination to lay him off for legitimate reasons relating to its finances and change in business model” after being caught off-guard by the Complainant’s return. Even though the decision to lay off the Complainant appeared to have been precipitated by his seeking to return to work, the Complainant failed to establish the layoff was motivated by discriminatory animus.

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Overview: In Santos v. X-Treme Silkscreen & Design, the MCAD found in favor of the Complainant and awarded emotional distress damages for disability discrimination. The MCAD also amended the complaint to add as an individual the sole owner of the Respondent silk screening and embroidery company. Evidence established that the Complainant—who suffered from morbid obesity, diabetes, hypertension, and sleep apnea—was terminated on the first workday after he requested a leave of absence to undergo gastric bypass surgery.

Even though the Complainant had displayed a decline in his work performance, the hearing officer concluded that “his request for medical leave was the but-for cause of his termination.” This conclusion was motivated in part by the temporal proximity of the two events. The hearing officer declined to award back pay, however, finding that the Complainant was not forthcoming about his interim earnings and went more than a year without making a good faith effort to seek new work.

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Overview: In Ke v. New England Baptist Hospital, the MCAD dismissed a complaint accusing the Respondent orthopedic hospital of unlawful termination on the basis of age, disability, race, and national origin. The Complainant was a trained cardiologist of Chinese national origin who worked as an echocardiographer after coming to the United States in 1983. She injured her back while at work in April 2010 and was terminated following an incident in May 2010 that prompted a patient complaint regarding quality of care.

The hearing officer concluded that the Respondent “articulated a reasonable belief, based on a thorough investigation, that Complainant had engaged in serious breaches of policy for which she accepted no responsibility,” which justified termination. There was insufficient credible evidence to conclude that the Respondent was motivated by discriminatory intent. Even if the termination was harsh or unfair, it was clear that the decision to terminate arose from misconduct and subsequent failure to accept responsibility rather than discriminatory animus.

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Disability discrimination claims under both the Massachusetts Fair Employment Practices Act and the Americans with Disabilities Act are among the most sophisticated claims that an employment lawyer can undertake. To maximize the chance of overcoming summary judgment and prevailing at trial, there are several technical points worth emphasizing when bringing claims for handicap discrimination, retaliation, failure to investigate, and failure to accommodate.

General Principles

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