United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 57)
KATHERINE A. ROBERTSON United States Magistrate Judge.
Grace Boadi ("Plaintiff") alleges that her former
employer, the Center for Human Development, Inc.
("CHD"), and her former supervisor, Candy
Pennington ("Pennington"), (collectively
"Defendants"), interfered with her rights under the
Family and Medical Leave Act ("FMLA"), and violated
her rights under the Americans with Disabilities Act
("ADA") and the Massachusetts anti-discrimination
statute, Mass. Gen. Laws ch. 151B ("Chapter 151B"),
by terminating her employment on April 21, 2013 while she was
hospitalized due to the sudden onset of a mental impairment.
After the parties consented to this court's jurisdiction,
see 28 U.S.C. § 636(c); Fed.R.Civ.P. 73,
Defendants moved for summary judgment. The court heard oral
arguments on September 20, 2016. For the reasons that follow,
the motion for summary judgment is DENIED as to Count I
(FMLA), and GRANTED as to Counts II (ADA) and III (Chapter
a non-profit human service agency, which offers a wide range
of human service and behavioral health programs to a number
of different populations (Dkt. No. 58 at ¶ 1). On
December 16, 2003, Plaintiff began working as a residential
counselor in CHD's Community Reentry Program (Dkt. No.
60-1 at 3-5; Dkt. No. 60-4 at 2; Dkt. No. 65 at 7 ¶ 1).
Darlean Thomas directly supervised Plaintiff, who assisted
adult clients with mental illnesses at a group home in
Springfield (Dkt. No. 60-1 at 3-5; Dkt. No. 65 at 8 ¶
8). Thomas reported to Pennington, the program manager of
adult mental health in Springfield (Dkt. No. 60-7 at 3; Dkt.
No. 65 at 8 ¶ 8). As program manager of all group homes,
Pennington indirectly supervised Plaintiff (Dkt. No. 60-7 at
3). Pennington came under the supervision of Jeffrey Trant,
the program director (Dkt. No. 60-6 at 3; Dkt. No. 65 at 16
April and May 2013, Julianne Shea was CHD's Human
Resources ("HR") Director and Carol Fitzgerald was
Vice President of HR (Dkt. No. 58 ¶ 10; Dkt. No. 60-7 at
4; Dkt. No. 65 at 14 ¶ 39). Fitzgerald and Shea
supervised Louise Ochrymowicz, an HR representative who
processed applications for short term disability and FMLA
leave (Dkt. No. 60-10 at 4; Dkt. No. 65 at 12 ¶ 32).
Plaintiff's Employment History
job performance was mostly satisfactory during her tenure at
CHD from December 2003 to April 2013 (Dkt. No. 65 at 8 ¶
9). Thomas' most recent evaluation in January 2009
indicated that Plaintiff showed "great improvements in
her attendance and how she accepts constructive criticism
from her supervisor. She is working very hard on being on
time for work and is doing a good job" (Dkt. No. 65-5 at
10). One of Plaintiff's goals for the next year was to
"continue to improve on getting to work and meetings on
Plaintiff's job evaluation indicated, she sometimes had
problems reporting to work on time (id.). She
received written warnings for tardiness and/or failure to
follow call-in procedures on June 24, 2004, April 4, 2006,
July 12, 2007, August 1, 2007, May 9, 2008,  and October 4,
2012 (Dkt. No. 60-4 at 16, 19, 21, 22, 23, 24; Dkt. No. 65 at
7 ¶ 4).
also received three written notices from Thomas regarding
absenteeism (Dkt. No. 60-4 at 20, 25). On November 23, 2005,
Thomas warned Plaintiff that she would face discipline if she
did not work her scheduled shift on Christmas (Dkt. No. 60-4
at 36). In September 2006, Plaintiff received a written
warning for "calling out of work deliberately" on a
Saturday when Thomas alleged that Plaintiff knew, in advance,
that she was going to attend a wedding (Dkt. No. 60-4 at 20).
Plaintiff responded that her absence "had nothing to do
with [a] wedding;" she had a "family
emergency" (id.). In September 2009, Thomas
signed a "verbal warning" after Plaintiff called
out sick on a weekend when the other staff member who worked
her shift was on vacation (Dkt. No. 60-4 at
Thomas' warning said, "It has been noticed that
every time [the other staff member] goes on vacation, you
always call out on one of those days and that day is usually
on the weekend" (id.). Plaintiff countered that
she was sick with a stomach ache (id.).
received five written or verbal warnings for failing to
comply with CHD's policies, and she was admonished for
arguing with her supervisors or other staff members in April
2007, October 2008, February 2010, May 2011, and June 2012
(Dkt. No. 60-4 at 26, 27, 28, 29, 30, 31, 32, 33, 34,
Plaintiff's Hospitalization and Termination
April 15, 2013
April 15, 2013, Plaintiff's incoherence, agitation, and
threats to her neighbors caused her son, James Takyi, and her
brother to transport her to the Mercy Medical Center
("Mercy") emergency room (Dkt. No. 65 at 8-9 ¶
11; Dkt. No. 65-12 at 5). She was admitted to the hospital
when her aggression intensified (Dkt. No. 65 at 9 ¶ 13).
April 16, 2013
April 16, Plaintiff was transferred from the Mercy to the
Pembroke Hospital ("Pembroke"), an acute care
psychiatric facility (id. at 9 ¶¶ 14, 15).
Her Global Assessment of Functioning ("GAF") score
was 21 when she arrived at Pembroke (id. at 9 ¶
She was diagnosed with "psychotic disorder NOS"
(id. at 9 ¶ 15).
than once in the past when Plaintiff was sick and unable to
call CHD, Takyi had notified them that Plaintiff would be
absent from work (Dkt. No. 65 at 14 at ¶ 41). CHD had
not objected to this practice (id.).
April 16, 2013, Takyi left Pennington a voice mail message
and she returned his call (Dkt. No. 60-7 at 4-5; Dkt. No. 65
at 10 ¶ 22). Takyi told Pennington that his mother was
unable to work because she was hospitalized and was not doing
well and he was unsure when Plaintiff would be able to return
to work (Dkt. No. 65 at 10 ¶ 22, at 14 ¶ 42).
Pennington asked whether Plaintiff could communicate (Dkt.
No. 59 ¶ 8; Dkt. No. 65 at 14 ¶ 42). When Takyi
replied in the affirmative, Pennington directed him to have
Plaintiff call her "because it's not good enough . .
. to allow . . . other people [to] call in for you when you
can't come to shift" (Dkt. No. 58 ¶ 8; Dkt. No.
65 at 10-11 ¶ 22, at 14 ¶ 42; Dkt. No. 65-8 at 7).
Pennington did not request other details of Plaintiff's
condition and recorded this call on her weekly calendar along
with Takyi's phone number and the notation
"[Plaintiff] in hospital??" (Dkt. No. 60-8 at 2;
Dkt. No. 65 at 10-11 ¶ 22).
April 17, 2013
was scheduled to work on April 17, 2013 (Dkt. No. 60-7 at 11;
Dkt. No. 65 at 11 ¶ 24). When Plaintiff did not report
for work, Thomas called Plaintiff's phone, but did not
reach her (Dkt. No. 65 at 11 ¶ 24). Thomas reported
Plaintiff's absence to Pennington who told Thomas to
"fill her shift" (Dkt. No. 65 at 11 ¶ 24).
However, Pennington did not inform Thomas, or anyone else at
CHD, that she had spoken to Takyi on the previous day and did
not give Thomas any information about Plaintiff's status
(Dkt. No. 65 at 11 ¶¶ 23, 24). Pennington's
calendar entry for April 17, 2013 noted, "[Plaintiff] -
no show/no call" (Dkt. No. 60-8 at 2; Dkt. No. 65 at 11
at ¶ 25).
April 18 to April 21, 2013
Thomas still had not heard from Plaintiff the next day, April
18, 2013, she grew concerned, found Takyi's number listed
as Plaintiff's emergency contact, called him, and left a
message (Dkt. No. 65 at 11 ¶ 27). Takyi returned
Thomas' call and advised her that Plaintiff had been
admitted to the Mercy, was presently unable to work, and her
return date was uncertain (Dkt. No. 65 at 12 ¶ 28). When
Thomas asked if Plaintiff could speak, Takyi said,
"yes" (id.). Thomas told him that
Plaintiff should call to let her know when she expected to
return to work (id.). Thomas reported this
conversation to Pennington, who, again, did not mention her
conversation with Takyi (Dkt. No. 65 at 12 ¶ 29).
Pennington only directed Thomas to wait to see if Plaintiff
spoke to Takyi a second time on April 18 (Dkt. No. 65 at 12
¶ 30). She advised him to contact HR about short term
disability benefits if Plaintiff was still hospitalized and
expected to be out of work for more than five days
(id.). Takyi then called Ochrymowicz in CHD's HR
department and informed her that Plaintiff was in the
hospital (Dkt. No. 65 at 12 ¶ 31, at 13 ¶ 34).
Hearing this, Ochrymowicz prepared the short term disability
and FMLA paperwork packet for Plaintiff (Dkt. No. 58 ¶
10; Dkt. No. 65 at 13 ¶ 34). The letter to Plaintiff
regarding her medical leave of absence is dated April 17,
2013 and begins, "We have been informed that you are on
a medical leave of absence due to a non-work related accident
or illness. You are eligible to file a claim with CHD's
short term disability policy through The Standard Benefit
Administrators" (Dkt. No. 60-11 at 2; Dkt. No. 65 at 13
¶ 36). Ochrymowicz also signed and dated the notice of
FMLA guidelines on April 17, 2013 (Dkt. No. 60-11 at 5; Dkt.
No. 65 at 13 ¶ 37). This form showed April 15, 2013 as
the "approximate date leave will begin" (Dkt. No.
60-11 at 3; Dkt. No. 65 at 13 ¶ 37). Ochrymowicz did
not discuss the preparation of the FMLA paperwork or
Plaintiff's possible entitlement to FMLA leave with
anyone at CHD (Dkt. No. 58 ¶ 10; Dkt. No. 65 at 13-14 at
same date, Pennington directed Thomas to fill Plaintiff's
shifts for the remainder of the week, Friday, April 19
through Sunday, April 21, 2013, because they did not expect
Plaintiff to return to work (Dkt. No. 65 at 14 ¶ 43).
Pennington's calendar entries for April 18 and 19 show:
"[Plaintiff] - no call/no show" (Dkt. No. 60-8 at
April 18, Plaintiff was transferred from Pembroke to the
South Shore Hospital's emergency room after she fell and
hit her head on the floor while attempting to speak to Takyi
on the telephone (Dkt. No. 65 at 9 ¶ 17; Dkt. No. 70 at
¶ 17). When Plaintiff returned to Pembroke on April 20,
2013, her GAF score was 15 (Dkt. No. 65 at 10 ¶
Plaintiff did not work her shifts on April 20 and 21, and did
not personally notify CHD of her absence (Dkt. No. 58
¶¶ 11, 12).
April 22, 2013
Monday, April 22, 2013, Pennington reported to Trant that
Plaintiff was absent on April 19, 20 and 21, 2013 without
contacting her supervisors (Dkt. No. 58 ¶ 14; Dkt. No.
65 at 16 ¶ 49). Pennington recounted her conversation
with Takyi when he indicated Plaintiff could communicate, and
Pennington told him Plaintiff needed to contact her directly
to discuss her absence from work (Dkt. No. 58 ¶ 14).
According to Trant, Pennington did not notify him that
Plaintiff was hospitalized (Dkt. No. 65 at 16 ¶ 49).
on the information that Pennington relayed to Trant -- that
Plaintiff failed to report to work or notify anyone of her
absence on three consecutive days -- he and Fitzgerald, the
Vice President of HR, determined that Plaintiff had
voluntarily resigned according to CHD's job abandonment
policy (Dkt. No. 60-4 at 7; Dkt. No. 65 at 16 ¶
On the same date, Fitzgerald, who, like Trant, was unaware
that Plaintiff was in the hospital, drafted a letter for
Trant's signature notifying Plaintiff that she
effectively resigned as of April 21, 2013 based on her
failure to comply with CHD's call-in policy on three
consecutive days (Dkt. No. 58 ¶¶ 16, 19; Dkt. No.
60-4 at 7; Dkt. No. 65 at 17 ¶ 57).
Community Re-entry Residential Program's call-in policy
required a staff member who was unable to work to call either
a supervisor, or the program director, if she could not reach
a supervisor (Dkt. No. 58 ¶ 6; Dkt. No. 60-4 at 5).
CHD's policy for all employees stated:
1. It is not sufficient to have a friend or
relative call in, unless the staff member is physically
unable to do so.
. . .
3. The staff member must call in as soon as possible for
lateness or absence. Calls regarding a complete absence
must be made three
hours in advance to allow adequate time to find
** In order to be granted paid time off, the staff member who
will be absent must speak directly with the supervisor.
Failure to follow this procedure may result in disciplinary
action including: unpaid time off for absence, suspension, or
(Dkt. No. 60-4 at 6; Dkt. No. 65 at 16 ¶ 51) (emphasis
original). Neither Trant, nor Fitzgerald, nor
Pennington discussed Plaintiff's termination with