United States District Court, D. Massachusetts
ORDER ON MOTION FOR SUMMARY JUDGMENT (DOC. NO.
Sorokin, United States District Judge.
Irene Incutto has been an elementary-school teacher for over
a decade. She now brings suit against her former employer,
Newton Public Schools (“NPS”), and the City of
Newton for discrimination under federal and state disability
laws. Ms. Incutto alleges that NPS failed to accommodate her
documented disability of fibromyalgia by denying her repeated
requests to work on a part-time basis and that NPS retaliated
against her in a number of ways, including by completing a
negative job evaluation and by denying her requests for
transfer and grade-level assignments. NPS moved for summary
judgment on each of the two pending claims. Doc. No. 36. Ms.
Incutto opposed. Doc. No. 48. For the reasons expressed
below, NPS's motion for summary judgment is DENIED IN
PART AND ALLOWED IN PART.
Count I: Failure to Accommodate
Americans with Disabilities Act
(“ADA”) prevents employers from discriminating
“against a qualified individual on the basis of
disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). A
“qualified individual” is “an individual
who, with or without reasonable accommodation, can perform
the essential functions of the employment position that such
individual holds or desires.” Id. §
[T]o survive an adverse summary judgment on a
failure-to-accommodate claim, a plaintiff must point to
sufficient evidence showing that (a) she is disabled within
the ADA's definition; that (b) she could perform the
job's essential functions either with or without a
reasonable accommodation; and that (c) the employer knew of
her disability, yet failed to reasonably accommodate it.
Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 454
(1st Cir. 2016). For purposes of summary judgment, the
parties agree that Ms. Incutto satisfies prong (a), and NPS
moves for summary judgment only on prongs (b) and
(c). The Court considers this dispute in light of the
familiar standard for summary judgment, drawing all
reasonable inferences in Ms. Incutto's favor and
resolving all disputed issues of material fact in her favor.
See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841
(1st Cir. 1993) (the Court is “obliged to view the
record in the light most favorable to the nonmoving party,
and to draw all reasonable inferences in the nonmoving
employer, NPS bears the burden of establishing the essential
functions of Ms. Incutto's position. See Lang,
813 F.3d at 454 (“the employer bears the burden of
showing that a fought-over job function is essential”).
“An essential function is one that is
‘fundamental' to a position, ” which requires
a “case-by-case determination.”
Sepulveda-Vargas v. Caribbean Restaurants,
LLC, 888 F.3d 549, 553 (1st Cir. 2018).
In making this case-by-case determination, the ADA instructs
[courts] to give consideration “to the employer's
judgment as to what functions of a job are essential, and if
an employer has prepared a written description before
advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential
functions of the job.”
Id. (quoting 42 U.S.C. § 12111(8)). Other
considerations include “the consequences of not
requiring the incumbent to perform the function, the work
experience of past incumbents in the job, and the current
work experience of incumbents in similar jobs.”
Id. (quoting 29 C.F.R. § 1630.2(n)(3)).
in attendance cases, the inquiry into “essential
function” and “reasonable accommodation” is
somewhat muddled, and “courts vary in their treatment
of attendance problems in the ADA context.” Ward v.
Massachusetts Health Research Inst., Inc., 209 F.3d 29,
33 (1st Cir. 2000). The Court follows the guidance of the
First Circuit and “proceed[s] by considering first
whether attendance is an essential function of [Ms.
Incutto's] position, and second, if it is not an
essential function, is a modified schedule a reasonable
accommodation that will allow [Ms. Incutto] to perform the
essential functions of [her] job.” Id. at 34.
August 2013, when Ms. Incutto informed NPS of her medical
condition and requested part-time work, she was then a
full-time employee. Doc. No. 45 ¶ 21. In the spring of
2012, she had interviewed for and accepted a
“full-time” position. Id. ¶¶
19-22. Indeed, she was specifically asked about her
commitment to a full-time position. Doc. No. 37-1 at 145
(deposition of Principal Kathleen Smith, who stated, “I
recall one of the other elementary school principals stopping
the interview to say [to Ms. Incutto], ‘I want to
remind you this is for a fulltime position. Is that what
you're interested in?'”).
evidence establishes that in NPS, “[f]ull-time
classroom teachers are required to be present in the school
building during [school] hours, ” which are essentially
8:20 am to 3:00 pm, Monday through Friday. Doc. No. 45
¶¶ 79-80. As common sense suggests, and Ms. Incutto
does not dispute, the position of an elementary school
classroom teacher is simply not the type of position that one
can perform during off-hours or by telecommuting, for
example. That said, the record in this case also includes
evidence that in previous school years (2006 through 2009),
Ms. Incutto worked part-time by job-sharing. Id.
¶¶ 7-8. Additionally, every school year from
2008-09 through 2017-18, between three and seven elementary
classroom teaching positions were job-shared between two
teachers. Doc. No. 45-1 at 65-67. In fact, in the spring of
2013, when Ms. Incutto inquired about the possibility of a
job-share during the 2013-14 school year, her principal was
receptive and suggested she speak to another teacher about
the possibility of such an arrangement. Id. at 11.
Moreover, between 2013 and 2016, when Ms. Incutto was seeking
part-time employment by way of a job-share, multiple
job-share or part-time positions became available within NPS.
Id. at 65-66.
contends that full-time work was an essential function of Ms.
Incutto's position as a teacher. That is, because Ms.
Incutto had a full-time teaching position, her full-time
(8:20 am to 3:30 pm Monday through Friday) presence in the
school was required. Because the undisputed evidence
establishes that Ms. Incutto could not work full-time due to
her disability, NPS seeks summary judgment in its favor.
However, the summary judgment record establishes that Ms.
Incutto was able to perform all of the essential functions of
her kindergarten position, other than full-time presence in
jury may well accept NPS's position that full-time
classroom presence is an essential function of the particular
job Ms. Incutto held, this is not a required finding.
“Inquiry into whether a particular function is
essential initially focuses on whether the employer actually
requires employees in the position to perform the functions
that the employer asserts are essential.” Rooney v.
Sprague Energy Corp., 581 F.Supp.2d 94, 105 (D. Me.
2008) (quoting Benson v. Nw. Airlines, Inc., 62 F.3d
1108, 1113 (8th Cir. 1995)). On the record before the Court,
the position of elementary school teacher is not inherently,
nor as implemented by NPS, a job that required performance by
a single teacher all day, every day, for each classroom of
elementary students. Thus, as a matter of fact, the jury
could determine that Ms. Incutto's ...