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Zavaglia v. Boston University School of Medicine

United States District Court, D. Massachusetts

January 8, 2018

JAMES ZAVAGLIA, Plaintiff,
v.
BOSTON UNIVERSITY SCHOOL OF MEDICINE, Defendant.

          MEMORANDUM AND ORDER

          INDIRA TALWANI, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiff James Zavaglia alleges that his former employer, Defendant Boston University School of Medicine, [1] violated the Americans with Disabilities Act, 32 U.S.C. § 12101, et seq., (“ADA”) by denying Plaintiff a reasonable accommodation and by retaliating against him for protected activity. Defendant's Motion for Summary Judgment [#72] establishes that there are no genuine disputes as to the material facts and that Defendant is entitled to judgment as a matter of law. Accordingly, Defendant's motion is ALLOWED.

         II. Factual Background[2]

         Plaintiff started working as an Instructional Technology Specialist (“specialist”) in Defendant's Education Media Center in 1998. Def.'s Statement of Undisputed Material Facts [“Def.'s Facts”] ¶¶ 1, 2 [#73]. This job required him to set up, troubleshoot, operate, maintain, and break down instructional technology used during classes, meetings, seminars, conferences, and other events. Id. at ¶¶ 5, 6. Events requiring technology set up and assistance take place at the School of Medicine throughout the day, and typically start on the hour or half hour, with a ten-minute window of time between the end of one event and the start of the next. Id. at ¶¶ 10, 11.

         Six specialists worked for the Education Media Center throughout the day in staggered shifts: two from 7:30 a.m. to 4:00 p.m., one from 8:00 a.m. to 4:30 p.m., one from 8:30 a.m. to 5:00 p.m., one from 10:30 a.m. to 7:00 p.m., and one from 1:00 p.m. to 9:30 p.m. Id. at ¶ 11. Throughout the duration of his employment, Plaintiff worked the 10:30 a.m. to 7:00 p.m. shift. Def.'s Facts ¶ 3. Some days, the number of events requiring setups exceeded the number of available specialists, requiring on-duty specialists to perform setups for multiple events starting at the same time. Id. at ¶ 13. The services the Education Media Center provides are time dependent, and on-time arrival was an “essential function” of the job. Id. at ¶¶ 9, 12; Def.'s Facts Ex. 1 [“Zavaglia Dep.”] 38:12-24 [#73-1].

         Plaintiff began regularly arriving late for his shift in 2011. Def.'s Facts ¶ 13; Zavaglia Dep. 49:3-7. When Plaintiff arrived late, another specialist had to assume responsibility for his setups. Def.'s Facts ¶ 21; Zavaglia Dep. 48:2. In June and July of 2011, one of Plaintiff's supervisors met with him to discuss his tardiness, and Plaintiff assured his supervisors that he would do a better job of arriving on time. Def.'s Facts ¶ 14; Zavaglia Dep. 50:19. In October 2011, Plaintiff's supervisors, Lucy Milne and Kirsten Martin, warned Plaintiff that this tardiness could subject him to discipline. Id. at ¶ 16. Milne and Martin sent Plaintiff a warning letter describing how Plaintiff's late arrivals were making it difficult to assign staffing resources. Def.'s Facts Ex. 3 [“October 2011 Written Warning”] [#73-3]. The letter informed Plaintiff that he was expected to be at work by the start of his shift at 10:30 a.m., that his timeliness would be reviewed weekly, and that if he continued to arrive late to work, Defendant would take further disciplinary action, up to and including termination. Id.

         Plaintiff subsequently requested intermittent leave pursuant to the Family and Medical Leave Act (“FMLA”). Def.'s Facts ¶ 16; Zavaglia Dep. 53:10. In support of his request, Plaintiff submitted a physician's certification explaining that Plaintiff needed to take time off for three appointments per month, each lasting two to three hours, to receive medical treatment for a work-related back injury. Def.'s Facts Ex. 4 [“2011 FMLA Certification”] [#73-4]. Defendant granted this request. Def.'s Facts ¶ 16. An employee in Defendant's Human Resources Department met with Plaintiff in December 2011, and directed Plaintiff to notify his supervisor prior to 10:00 a.m. when he was going to be late due to FMLA leave and to inform that supervisor of an accurate arrival time. Def.'s Facts ¶ 18; Def.'s Facts Ex. 2 [“Lucy Milne Affidavit”] ¶ 14 [#73-2]; Zavaglia Dep. 94:13.

         In June and July 2012, Martin and Milne met with Plaintiff to discuss his tardiness. Zavaglia Dep. 100:12. In August 2012, Plaintiff submitted another FMLA intermittent leave request. With the request, Plaintiff submitted a chiropractor letter stating, “[Plaintiff] claims that it is taking him extra time getting moving in the morning. He has difficulty with use of his left shoulder and movement of the neck.” Def.'s Facts Ex. 5 [“2012 FMLA Certification”] 2 [#73-5]. The letter stated that intermittent leave may be necessary, as Plaintiff “may have difficulty getting into work and lifting.” Id. at 3. In an email responding to the request, Defendant's Human Resources Consultant stated that Plaintiff would be permitted this leave so long as he complied with the established notification procedures. Def.'s Facts Ex. 6 [“Jill Jacobs Email”] [#73-6].

         Martin and Milne met with Plaintiff again in November 2012 to discuss his tardiness. Zavaglia Dep. 99:21. They provided Plaintiff with a warning letter listing sixteen instances between September 19 and October 25, 2012, in which he either called after 10:20 a.m. to say he would be late or failed to call altogether. Def.'s Facts ¶ 20; Def.'s Facts Ex. 7 [“November 2012 Written Warning”] [#73-7]. On several occasions, Plaintiff stated that he was late as a result of traffic. Id. The November 2012 Written Warning informed Plaintiff that Defendant would continue to accommodate his FMLA intermittent leave, but would hold him accountable “for excessive non-FMLA related tardiness.” Id. It further reminded Plaintiff that when he was going to be late, he needed to inform his supervisor prior to 10:00 a.m. and provide an accurate arrival time. Id.

         At the November 2012 meeting, Plaintiff also informed his supervisors that he would be requesting a disability accommodation for his back injury. Def.'s Facts ¶ 23. Plaintiff submitted this request in writing to Defendant's Equal Opportunity Office on December 13, 2012. Def.'s Facts ¶ 23; Def.'s Facts Ex. 9 [“Accommodation Request”] 2 [#73-9]. He requested a half hour to an hour adjustment to his work schedule, permitting him to arrive between 11:00 a.m. and 11:30 a.m. Id.; Zavaglia Dep. 71:5-6. Plaintiff submitted a note from his chiropractor stating that Plaintiff needed to “adjust his work schedule to accommodate an exercise program to maintain functionality and chiropractic care.” Def.'s Facts ¶ 25.

         Eleanor Druckman, the Assistant Director of Defendant's Equal Opportunity Office, met with Plaintiff to discuss his accommodation request in early 2013. Def.'s Facts ¶ 26. Druckman requested more information from Plaintiff's medical provider in support of the request. Zavaglia Dep. 76:12-13. In response, Plaintiff provided another note from his doctor. Def.'s Facts Ex. 11 [“March 2013 Chiropractor's Note”] [#73-11]. The new note stated that Plaintiff “insists that he has to perform the exercises in the morning because it allows him to loosen up which therefore allows him to stand, walk, bend, lift and carry which are integral parts of his work activities.” Def.'s Facts ¶ 28. The note also stated that, according to Plaintiff, this morning exercise routine took between sixty and ninety minutes to complete. Id. at ¶ 29.

         On April 4, 2013, Druckman informed Plaintiff that his medical documentation was insufficient to show that a later start time was necessary to enable Plaintiff to perform the essential functions of his job. Id. at ¶ 32; Def.'s Facts Ex. 12 [“Accommodation Denial Letter”] [#73-12]. Druckman wrote that the chiropractor's note “did not state why a slightly later schedule, beginning at 11:00 a.m. rather than 10:30 a.m., is necessary for you to perform the essential functions of your job. The need for you to perform exercises for 1 ½ hours in the morning does not reflect a need for a particular schedule.” Id. Druckman's letter denying Plaintiff's accommodation request also noted that Plaintiff had not applied for a recent vacancy in the 1:00 p.m. to 9:30 p.m. shift, which would have provided Plaintiff with more time in the morning to complete his exercises and then travel to work. Def.'s Facts ¶ 33.

         In May 2013, Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Id. at ΒΆ 46; Zavaglia Dep. 160:16-20. In August 2013, he filed a charge of disability discrimination and retaliation with the Massachusetts Commission Against ...


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