United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
TALWANI, UNITED STATES DISTRICT JUDGE.
James Zavaglia alleges that his former employer, Defendant
Boston University School of Medicine,  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.
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.
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].
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.
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.
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”]
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.
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.
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
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 ¶
2013, Plaintiff filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”).
Id. at ¶ 46; Zavaglia Dep. 160:16-20. In August
2013, he filed a charge of disability discrimination and
retaliation with the Massachusetts Commission Against