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Moore v. NSTAR Electric & Gas Co.

United States District Court, D. Massachusetts

July 24, 2018

JASON MOORE, Plaintiff,


          M. Page Kelley United States Magistrate Judge

         I. Introduction.

         On November 25, 2015, Jason Moore filed a complaint (#1) against defendant NSTAR Electric & Gas Corporation (NSTAR)[1] alleging wrongful termination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. Moore claimed to have incurred damages in excess of $75, 000 and requested just compensation for lost wages, lost benefits, and pain and suffering. (#1 at 5.) On September 22, 2017, NSTAR filed a motion for summary judgment (#45), asserting that Moore is not entitled to relief because (A) Moore has not established his prima facie case for disability discrimination, (B) NSTAR proffers a legitimate, non-discriminatory business rationale for Moore's termination, and (C) Moore fails to show that NSTAR's rationale is pretext for discriminatory animus. (#46.) The dispositive motion has been fully briefed (##46, 47, 50, 51, 58) and now stands ready for adjudication.[2]

         II. The Facts.

         The undisputed facts are as follows. On June 4, 2007, plaintiff was hired as a full-time Overhead Lineworker at NSTAR Electric and Gas Corporation. (#47 ¶ 1; #47-1 ¶ 3.) NSTAR's Job Specification describes an Overhead Lineworker as someone who “installs, removes, constructs, inspects, maintains, operates, and repairs transmission and distribution systems, including overhead and underground plant and equipment.” (#47 ¶ 2; #47-2 at 1.) Overhead Lineworkers must also climb poles, operate machinery, drive vehicles, and be able to “perform moderately heavy physical work outdoors in all seasons and at times for extended periods.” (#47-2 at 1, 3.)

         Upon being employed as an Overhead Lineworker, Moore became a member of Local 369 of the Utility Workers Union of America. (#47 ¶¶ 3-4.) NSTAR's Industrial Accident Disability Benefits Plan was then made available to him pursuant to Local 369's collective bargaining agreement. Id. As indicated in the Plan's provisions: “Employees abusing the Plan or having excessive absences shall be subject to disciplinary action by the Company. If the Local [union] claims the Company has exercised any of the foregoing rights in an unjust or unreasonable manner, such claim shall be subject to the [specified] Grievance Procedure . . . and Arbitration . . . .” (#47 ¶ 4; #47-2 at 6.)

         On September 29, 2010, Moore fell from a pole while training to participate in a “Lineman's Rodeo.”[3] (#1 ¶ 2; #47 ¶ 5; #50 at 2.) As a result of his fall, plaintiff fractured his tibia and fibula, requiring him to undergo surgery. (#1 ¶ 3; #47 ¶ 5; #50 at 20.)[4] Moore was discharged from Brigham and Women's Hospital on October 7, 2010, and transported to Spaulding Hospital for rehabilitation. (#47 ¶ 7; #50 at 2.) Liberty Mutual, NSTAR's workers' compensation administrator, partnered with NSTAR to document Moore's claim, and arranged for in-home physical therapy where plaintiff then resided. (#46 at 3; #47 ¶¶ 6, 12.)[5]

         In December 2010, [6] NSTAR learned that Moore had discontinued his physical therapy in October, discharged his visiting nurse, and moved to an “unknown location.” (#47 ¶ 14.) NSTAR then approved Liberty Mutual to retain SOS Services, Inc., a private investigator firm, to locate Moore. (#47 ¶ 15.) SOS Services located plaintiff on January 25, 2011, [7] and two days later submitted a report to NSTAR, including a video, documenting Moore shoveling snow in his driveway. (#46 at 4; #47 ¶¶ 15, 17.) A second report, submitted on February 9, 2011, showed Moore driving a vehicle. (#46 at 4; #47 ¶ 19.)[8]

         Following receipt of these reports, which were inconsistent with plaintiff's assertions of “total disability, ” NSTAR requested that Moore submit to an independent medical examination (IME). (#47 ¶ 21.) The IME was conducted on February 11, 2011, with the examining doctor concluding that Moore had “sedentary work capacity” with no extended periods of standing and “minimal stairs.” (#46 at 5; #47 ¶¶ 21-22.) However, Moore continued to report to NSTAR that he was “totally disabled” with “no work capacity” as diagnosed by his treating physician. (#47 ¶ 23.)

         Ana V. Matthews, a safety analyst for NSTAR, spoke with Moore approximately six times while he was on leave, and each time plaintiff advised that he could not return to work because of his difficulties with mobility. (#46 at 5; #47 ¶ 24.) As part of NSTAR's “normal business practice, ” surveillance on plaintiff continued through June, July, August, and September 2011. (#47 ¶¶ 27-28.) The reports provided during these months “show Moore engaged in substantial physical activity . . . [including] painting his house, climbing a ladder, [and] driving a vehicle.” (#46 at 6; #47 ¶ 30.) Surveillance further depicted Moore jogging out of the rain, loading bags of trash into a truck, climbing on a ladder while holding a five-gallon paint can, cleaning his clapboard house on a ladder, carrying lumber, and carrying buckets of water. (#46 at 6; #47 ¶¶ 30, 32; #47-5 at 2.) Meanwhile, plaintiff reported to NSTAR that he could not “walk without pain, ” “could not drive, ” nor could he “climb down stairs.” (#46 at 5; #47 ¶ 33.) When asked what he could do, Moore told NSTAR that he “only could do some laundry and walk short distances before he was in more pain.” (#46 at 6; #47 ¶ 30; #47-5 at 3.)

         On October 17, 2011, Dr. McGowan, Moore's physician, reported that plaintiff could return to work for four hours per day, with no climbing poles, squatting, or kneeling. (#47 ¶ 35.) While Moore contends he requested a specific, vacant sedentary job, NSTAR's leave administrator noted that “had [Moore's] doctor allowed him to come back to work, then we would have complied with that and had offered some work that was sedentary. . . . It probably would have been . . . some computer work.” (#50-2 at 31.)

         However, in early October 2011, NSTAR's labor relations department initiated an investigation of Moore's claim, as the surveillance reports indicated potential abuse of the company's Accident Disability Benefits Plan. (#46 at 7; #47 ¶ 36.) On November 10, 2011, after a final decision was rendered, NSTAR notified plaintiff of his suspension for violating the Accident Disability Benefits Plan. (#46 at 7; #47 ¶ 37.) Moore's local Union steward represented him in a disciplinary hearing conducted by NSTAR's labor relations department on December 5, 2011, which resulted in a finding that Moore had abused the Accident Disability Benefits Plan, and his suspension was justified. (#47 ¶¶ 38-39; #50-2 at 17.) NSTAR also determined that plaintiff's suspension would convert into a discharge on December 14, 2011. Id. On July 23, 2012, following an appeal hearing, NSTAR upheld its decision to discharge Moore. (#47 ¶ 40.) The termination was not further challenged by plaintiff or the Union under NSTAR'S grievance and arbitration proceedings. (#47 ¶ 41.)

         After exhausting his administrative remedies with the MCAD and EEOC, [9] Moore brought the instant action against NSTAR on November 25, 2015, alleging wrongful termination in violation of the Americans with Disabilities Act (ADA). (#1 at 5; #47 ¶¶ 43, 47.) Specifically, Moore claims that NSTAR failed to provide him with a reasonable accommodation such as “computer work, ” which led to his discharge. (#50 at 3, 8.) Moore does not admit or deny his alleged abuse of the Accident Disability Benefits Policy. (#46 at 16.) Rather, he contends that abuse of the policy is irrelevant because his inability to perform as an Overhead Lineworker, and NSTAR's “choice to ignore [his] medical reports, ” supports his claim for wrongful termination under the ADA. (#50 at 7, 11.)

         III. Summary ...

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