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Incutto v. Newton Public Schools

United States District Court, D. Massachusetts

April 4, 2019

IRENE INCUTTO, Plaintiffs,


          Leo T. Sorokin, United States District Judge.

         Plaintiff 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[1] 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.

         I. Count I: Failure to Accommodate

         The Americans with Disabilities Act (“ADA”)[2] 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. § 12111(8).

[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 party's favor.”).

         As the 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)).

         Admittedly, 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.

         In 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?'”).

         The 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.

         NPS 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 the classroom.

         While a 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 ...

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