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Consedine v. Willimansett East Snf

United States District Court, D. Massachusetts

September 30, 2016


          Glorena B. Consedine, Plaintiff, represented by Michael O. Shea, Law Office of Michael O. Shea, P.C..

          Willimansett East SNF, Defendant, represented by Nancy Abrams, Spector, Gadon & Rosen, P.C., pro hac vice, James E. Gallagher, Davis Malm & D'Agostine & Tamsin R. Kaplan, Davis, Malm & D'Agostine P.C..


          MARK G. MASTROIANNI, District Judge.


         Glorena B. Consedine ("Plaintiff") brings this employment discrimination action against Willimansett East SNF ("Willimansett East" or "Defendant"), her former employer. Plaintiff asserts claims for disability discrimination (Counts I and VI), failure to accommodate (Counts II and VII), and retaliation (Counts III and VIII) in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and Mass. Gen. Laws ch. 151B, as well as interference (Count IV) and retaliation (Count V) in violation of the Family Medical Leave Act, 29 U.S.C. § 2611 et seq. ("FMLA"). Presently before the court is Defendant's motion for summary judgment as to all counts. For the reasons which follow, the court will deny Defendant's motion.


         The following facts, which are construed in a light most favorable to Plaintiff, are not disputed, except as otherwise noted. Willimansett East is a long term care facility located in Chicopee, Massachusetts. (Dkt. No. 44, Def.'s Statement of Material Facts ("Def.'s SOF") ¶ 1.) On April 4, 2011, Plaintiff was hired as the Admissions Director at Willimansett Center West ("Willimansett West"), the sister facility of Willimansett East. ( Id. ¶ 2.)[1] On May 20, 2011, Plaintiff was transferred to Willimansett East into the position of Admissions and Business Development Director. ( Id. ¶ 3.) This position required her to conduct at least two or three, and up to ten, tours of the facility per week. ( Id. ¶ 7.)[2] The tours generally lasted between thirty and forty-five minutes each, but they could also take longer than an hour. ( Id. ¶ 7.)

         On May 19, 2012, Plaintiff fell off a ladder outside of work and sustained a tibia fibula plateau fracture of her right leg. (Def.'s SOF ¶ 11.) Her injury required surgery, which entailed the insertion of a bone graft and hardware, to repair the bones and her right knee joint. ( Id. ¶ 13; Pl.'s SOF ¶ 70.) On May 21, 2012, Plaintiff reported her injury and anticipated extended absence to the Administrator of Willimansett West, and later she explained her situation to James Lomastro, the Administrator of Willimansett East. (Def.'s SOF ¶ 14.) Her surgery occurred on May 25, 2012. ( Id. ¶ 15.) Plaintiff's physician, Dr. Bennett Burns, explained that the surgery disrupted the daily life activities of standing, bathing, and driving, among others. (Pl.'s SOF ¶ 70.) On June 7, 2012, Plaintiff requested leave under the FMLA from May 21, 2012 through August 21, 2012 to recuperate from the surgery. (Def.'s SOF ¶ 16.) Defendant granted Plaintiff's request on June 11, 2012, and Plaintiff received the full twelve weeks of leave to which she was entitled under the FMLA. ( Id. ¶¶ 17, 29.)

         On August 9, 2012, during a post-operation appointment, Dr. Burns released Plaintiff to return to work with certain restrictions contained in a work modification note. (Pl.'s SOF ¶ 74; Dkt. No. 45, Ex. N.) The restrictions, which Dr. Burns noted should remain in effect for four weeks or until Plaintiff was seen again, included walking with a crutch or cane, limited distance and duration of walking, not lifting over ten pounds, and sedentary work. ( Id. ¶ 75; Dkt. No. 45, Ex. N.) Dr. Burns also noted that Plaintiff "[s]hould start with part time work" for the first two to four weeks. ( Id. ) At the bottom of the note, Dr. Burns wrote: "If these restrictions cannot be accommodated, then patient is on no duty' status for the same time period." (Dkt. No. 45, Ex. N.) In a separate note, Dr. Burns stated Plaintiff "usually has to do a fair amount of running to get data and paperwork" at her job, but "[i]f they accommodate by bringing paperwork to her, I think it would be reasonable for her to go back to work in a sedentary fashion at any time." (Dkt. No. 45, Ex. I.)[3]

         After Plaintiff tried calling Lomastro and left a copy of the work modification note on his desk, Lomastro contacted Plaintiff on August 17, 2012. (Pl.'s SOF ¶¶ 76-77.) Plaintiff asserts Lomastro told her she could only return to work when she was "100 percent" and did not have any restrictions or require any accommodations. (Pl.'s SOF ¶ 77.)[4] On August 20, 2012, Plaintiff sent Lomastro an email asking for a copy of the "Corporate Policy" he had mentioned which prohibits part-time work. (Dkt. No. 45, Ex. O.) Plaintiff also asked if there was "any way Corporate can permit a variation of this policy per ADA employee reasonable accommodation' clauses(s), " "[s]o I can get back to work on 8/27/12, at least part time." ( Id. )[5] Plaintiff further stated she could "get around in my wheel chair." ( Id. )

         On August 23, 2012, Lomastro sent Plaintiff a letter stating that her medical leave had expired on August 21, 2013, and "[r]eturn to work is predicated on a fitness for duty certificate without restriction and full time." (Dkt. No. 45, Ex. P.) Lomastro further stated he had not heard "the date that you will return to work full time" and Plaintiff was "welcome to apply for any future openings that occur." ( Id. ) He requested Plaintiff contact him regarding her intentions by August 29, 2012 and stated "[f]ailure to return will result in a voluntary resignation." ( Id. ) On August 29, 2012, Plaintiff and Lomastro met to discuss Plaintiff's return to work. (Pl.'s SOF ¶ 81.) Lomastro told Plaintiff she could not return until she had "no restrictions" and was "100 percent" in accordance with "corporate policy." ( Id.; Dkt. No. 45, Ex. C at 75, Ex. A at 85.)

         On August 30, 2012, Plaintiff filed a Charge of Discrimination with the Massachusetts Commission Against Discrimination ("MCAD") alleging Defendant had discriminated against her based upon her disability and failed to provide her with reasonable accommodations. (Pl.'s SOF ¶ 82.)[6] That same day, Lomastro sent Plaintiff an email informing her that she would be placed on a personal medical leave of absence ("PMLA") effective August 29, 2012 through September 10, 2012. ( Id. ¶ 83; Dkt. No. 45, Ex. Q.) Lomastro further stated:

If you are not released to full duty at that time, a decision will be made to terminate the leave. On PMLA, your job is not guaranteed, when you come off the leave. If no one is hired and you are released to full duty, you will be placed back into a job. If a replacement has been hired prior to your returning to work, we will make every effort to find a position for you. If there is not one available, your employment will be terminated. Please know we will make every attempt to find you a position.

(Dkt. No. 45, Ex. Q.)

         On September 10, 2012, Plaintiff was re-evaluated by Dr. Burns and received clearance to work full-time with restrictions. (Pl.'s SOF ¶ 85; Dkt. No. 45, Ex. S.) The restrictions included: "no lifting greater than 30 lbs, " "limit pulling/pushing to 50 lbs, " "may limit duration of walking (15 min at a time with breaks in between), " "may use cane, " and "starting driving." (Dkt. No. 45, Ex. S.) These restrictions were to remain in effect for four to six weeks or until Dr. Burns saw Plaintiff again. ( Id. ) After Plaintiff provided this work modification note to Lomastro, he told her that she still had to come back "100 percent" with "no restrictions." (Pl.'s SOF ¶ 85; Dkt. No. 45, Ex. C at 82.) Lomastro also stated Plaintiff had to be able to lift sixty pounds. ( Id. ) Plaintiff then emailed Lomastro and Richard Parker, the Director of Human Resources for Airamid (a company that provides consulting services to Defendant), questioning the sixty-pound-lifting requirement and requesting to return to work with the restrictions noted in the work modification note. (Def.'s SOF ¶ 38; Dkt. No. 45, Ex. T.) On September 11, 2012, Parker wrote in an email that he "agree[d] that a 60-pound lifting restriction is arbitrary and unnecessary for this job." (Dkt. No. 45, Ex. T.) "[H]owever, " he continued:

I'm not sure we can make reasonable accommodations for the restrictions provided by her physician. I assume the essential functions of her job is to conduct tours. In the restrictions from her physician she is restricted to walking 15 minutes with breaks. I don't see how we can have her conduct tours with that restriction.

(Dkt. No. 45, Ex. T.)

         On September 12, 2012, Plaintiff replied with another email stating her procedure for giving tours "has always allowed me moments to stop/pause to point out our features and benefits, as well as introduce the [prospective] client/family to our professional staff, which most often results in the department head taking the lead to explain his or her department['s] advantages in the care of their loved one." ( Id. ) Plaintiff therefore asserts, consistent with her email, that the fifteen-minute-break restriction would not have interfered with her ability to conduct the tours, because "[t]ouring patients and their families would never have had to wait for [her] to rest before she resumed the tour since there were plenty of opportunities for her to rest [and/or sit down] during the course of the tour." (Pl.'s SOF ¶¶ 88-89.)[7] Moreover, no one at Willimanset East ever told Plaintiff's replacement that she could not sit down while giving a tour. (Pl.'s SOF ¶ 90.) Plaintiff requested, in the alternative, to conduct tours in a wheelchair, but this request was also denied by Defendant. ( Id. ¶ 91; Dkt. No. 52, Ex. EE ¶ 13.) However, many residents used wheelchairs in the facility, and no one ever indicated to Plaintiff that giving a tour in a wheelchair would create any safety hazard. (Pl.'s SOF ¶ 92.)

         Plaintiff asserts that on September 11, 2012, during a conversation with Parker, he informed her that her PMLA was going to be extended beyond September 10, 2012. ( Id. ¶ 93.)[8] On September 18, 2012, however, Lomastro terminated Plaintiff's employment. (Def.'s SOF ¶ 44; Pl.'s SOF ¶ 94.) By mid-October of 2012, Plaintiff no longer had walking restrictions which would have required her to rest while giving tours. (Pl.'s SOF ¶ 95.) In late October or early November of 2012, Lomastro hired Michaela Cassidy, who had been filling in during Plaintiff's absence, for the Admissions and ...

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