United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE
Abeba Mekonnen has proceeded pro se in this workplace
discrimination action against her former employer Defendant
OTG Management, LLC, alleging several different theories of
discrimination under Title VII of the Civil Rights Act of
1964, the Americans with Disabilities Act
(“ADA”), and state law.
operates a CIBO Express Gourmet Market at Logan Airport in
Boston, MA, where it employs both utility workers, who
transport materials from the storage room to the storefront,
Mekonnen applied for a cashier position at the CIBO Express
Gourmet Market on July 2, 2007. In her application, she
indicated that she preferred to work from 1 PM to 10 PM and
that she needed Sunday mornings off to attend church. Ms.
Mekonnen is an Orthodox Christian. The only shift OTG had
available at the time was an early morning shift from 5 AM to
1 PM. Ms. Mekonnen accepted the early morning shift, with the
hope that she would be able to have Sunday mornings off, and
began working for OTG on August 4, 2007.
parties dispute whether OTG required Ms. Mekonnen to work on
Sunday mornings in 2007. According to William Khayat, a
former Terminal Director for OTG, Ms. Mekonnen's regular
work schedule was Monday to Friday and every effort was made
to avoid scheduling her shifts on Sunday. Ms. Mekonnen claims
she had to work during church services approximately two or
three times in her first month at OTG. OTG no longer has
copies of Ms. Mekonnen's work schedule from 2007 and
2008, but payment records indicate Ms. Mekonnen worked
several Sundays in 2007, including every Sunday in December
parties also dispute whether Ms. Mekonnen informed OTG that
she had a disability in 2007. Ms. Mekonnen claims that in
early August 2007, she told her direct supervisor Lily Molla
that she had a leg problem and requested to sit in an
elevated chair during her shift. In addition, she claims she
gave OTG a medical certificate from Ethiopia that stated she
suffers from osteoarthritis in her right knee. Mr. Khayat
denied ever seeing the Ethopian medical certificate and
claimed Ms. Mekonnen never informed him she was disabled.
weeks after Ms. Mekonnen started work, Begashaw Ayele, Ms.
Mekonnen's then husband, who also worked at Logan
Airport, had a conversation with Mr. Khayat about issues Ms.
Mekonnen was having at OTG. Mr. Ayele told Mr. Khayat that
Ms. Mekonnen was concerned about having to work on Sunday
mornings. According to Mr. Ayele, he also informed Mr. Khayat
that Ms. Mekonnen had a permanent leg injury. Mr. Khayat
recalled that a discussion with Mr. Ayele took place, but did
not recall any discussion of Ms. Mekonnen's medical
issues. Mr. Ayele wrote a letter to Mr. Khayat a few days
later, in which he informed Mr. Khayat that recently at OTG
“a Christian employee who was offered full time job
from Monday to Friday was required to work on his/her
religious observance day all in favor of a Muslim
employee.” Mr. Ayele cited Mass. Gen. Laws ch. 149
§ 103 and wrote that “[a]ccording [to] this
statute, employers must allow employees to do their work in a
seated position . . . all industries are covered and OTG is
no exception.” Mr. Ayele also claims he later called
the human resources department at OTG to discuss these
Mekonnen claims Mr. Khayat and Ms. Molla treated her less
favorably after Mr. Ayele sent the letter. According to Ms.
Mekonnen, they prevented her from taking a lunch break until
approximately an hour before her shift ended and from taking
bathroom breaks during her shift. She also claims Mr. Khayat
and Ms. Molla assigned her tasks that were not a part of her
regular duties and failed to provide her with the proper
change for her register at the start of her shift. Mr. Khayat
denies that he treated Ms. Mekonnen differently than any
other employee when it came to providing her with meal
breaks, restroom breaks, or proper change for her register.
January 2008, Ms. Mekonnen was injured at work when a door
fell on her leg. She sprained her knee and had a contusion,
but did not break any bones. She received two doctor's
notes: one on January 22, 2008 which advised her to remain
out of work for three days, and one on February 11, 2008
which advised her to remain out of work for five days. Ms.
Mekonnen returned to work after two weeks and continued
Ms. Mekonnen's time with OTG, the company received mixed
feedback about her from customers; the trend in this feedback
suggested diminishing performance over time. In this
connection, OTG participated in a “secret
shopper” program, in which customers would visit stores
and report on their experiences. In the first report about
Ms. Mekonnen, dated August 27, 2007, she received an overall
score of 78% and was described as having “a lovely
smile and demeanor” that “made [the customer]
feel very welcome.” In a second report, dated November
16, 2007, she received an overall score of 58%. This
“customer” found that Ms. Mekonnen did not
understand English well and did not demonstrate knowledge of
the items for sale. In the third report, dated May 8, 2009,
Ms. Mekonnen received an overall score of 32%. The customer
found that “[i]nteracting with the unfriendly Associate
was memorable” and reported that Ms. Mekonnen was
talking on her cell phone when the customer entered the
store. OTG had previously received a complaint that Ms.
Mekonnen took a personal phone call while checking out a
customer on February 9, 2009. Ms. Mekonnen claims she was not
on her cell phone during either of these exchanges.
Mekonnen was also disciplined repeatedly by her supervisors
at OTG. She received and signed a written warning on June 10,
2008 for sitting on top of a plastic box while working. Ms.
Mekonnen admits she would sit at times while she worked, but
claims she had to do so because of her knee issues. On May
19, 2009, Ms. Mekonnen received a written warning for failing
to check the expiration date on a product. The warning noted
that the consequence of further infractions would be
termination. Ms. Mekonnen's signature does not appear on
this written warning. Ms. Mekonnen claims utility workers at
OTG, not cashiers, were responsible for inspecting the
expiration dates of products.
Ms. Mekonnen received another low score on a secret shopper
report and she was terminated on November 19, 2009. Her
termination form listed the reason for firing as “poor
job performance, 3 below avg. failing secret shopper
Mekonnen filed an administrative charge of discrimination and
retaliation with the Equal Employment Opportunity Commission
(“EEOC”) and the Massachusetts Commission Against
Discrimination (“MCAD”) on May 10, 2010. She also
filed a complaint with the Massachusetts Office of the
Attorney General regarding OTG's alleged failure to pay
out her accrued vacation time promptly. On May 25, 2010, the
Attorney General granted Ms. Mekonnen the right to bring an
MCAD dismissed Ms. Mekonnen's complaint on April 30,
2012. Thereafter, the EEOC sent her a right to sue letter on
August 28, 2012.
Mekonnen initially filed her complaint in state court and OTG
removed the case to this court on November 23, 2012. Ms.
Mekonnen filed an amended complaint on April 23, 2014. She
alleged that OTG discriminated against her on the basis of
her disability, religion, sex, and age in violation of state
and federal law. She also alleged that OTG retaliated against
her for raising such claims with management. With respect to
wages and hours, Ms. Mekonnen alleged that OTG had failed to
pay out her vacation benefits, and that it violated Mass.
Gen. Laws ch. 136 § 6(50) and § 16 by forcing her
to work on Sunday. Finally, Ms. Mekonnen brought assorted
claims against Mr. Khayat in his individual capacity. I have
dismissed Ms. Mekonnen's age discrimination claim, her
claim under Mass. Gen. Laws ch. 136 § 6(50) and §
16, and her claims against Mr. Khayat. OTG has moved for
summary judgment as to the remaining claims.
MOTION TO STRIKE
with her opposition to summary judgment, Ms. Mekonnen
submitted several exhibits and affidavits. OTG moved to
strike certain of the exhibits and sections of the
affidavits, contending that they include documents Ms.
Mekonnen did not identify or produce during discovery and
statements that constitute hearsay or that were not based on
personal knowledge and therefore are inadmissible.
Fed.R.Civ.P. 37(c)(1), “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or
witness to supply evidence on a motion.” Fed.R.Civ.P.
37(c)(1). If a party fails to comply with the discovery
requirements imposed by the Federal Rules and his failure to
comply is neither substantially justified nor harmless, then
the belatedly offered evidence may be stricken. Greene v.
Ablon, 2012 WL 4104792, at *2 (D. Mass. Sept. 17, 2012),
aff'd in part, 794 F.3d 133 (1st Cir. 2015)
(“In its analysis [with respect to a motion to strike],
the Court considers a number of factors . . . Surprise and
prejudice are important integers in this calculation.”
(internal citations omitted)).
strike certain exhibits not produced during discovery,
specifically Ms. Mekonnen's medical certificate from
Ethiopia and the three sets of cell phone records. Ms.
Mekonnen herself admits she did not provide these exhibits to
OTG during discovery, despite being required to do so. Her
failure to inform OTG earlier of these exhibits is not
harmless. The medical certificate introduced a
previously underdeveloped theory of disability or handicap
into the case, while the cell phone records attempt to offer
a new way of proving that OTG's reason for terminating
Ms. Mekonnen was pretextual. For the sake of completeness,
however, and because consideration of these documents does
not change my ultimate view of the merits, I will discuss
them in conjunction with my consideration of the merits of
her underlying claim.
not strike the November 1, 2016 letter from her doctor at
Massachusetts General Hospital, though this letter was not
produced as part of the original round of discovery. The
letter itself did not exist until November 1, 2016 and Ms.
Mekonnen provided it to opposing counsel on December 12,
2016. Although Ms. Mekonnen could have submitted the letter
more promptly, I do not find OTG was prejudiced by this brief
I will not strike references to these submissions in Ms.
Mekonnen's affidavit, her other filings, and Mr.
Ayele's affidavit. Ms. Mekonnen may explain the history
of her leg problems and Mr. Ayele may offer his observations
of Ms. Mekonnen's condition. I will simply treat other
references to the Ethiopian medical certificate in the
statement of facts as argument.
to the affidavits submitted by Ms. Mekonnon, I will strike
some, but not all, of the sections identified by OTG. Under
Fed.R.Civ.P. 56(c)(4), “[a]n affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge” and must “set out facts that would be
admissible in evidence.” When striking statements in an
affidavit, a court must use “a scalpel, not a butcher
knife” in order “to disregard those parts of it
that are inadmissible and to credit the remaining
portions.” Perez v. Volvo Car Corp., 247 F.3d
303, 315 (1st Cir. 2001).
strike the portions of her submissions that constitute
garden-variety hearsay. From Ms. Mekonnen's affidavit, I
will strike the part of paragraph 5, where she states:
“One day, Begashaw [Ayele] . . . asked Mr. Khayat, Ms.
Molla's boss, why my request for leg injury and religious
accommodation was ignored. Begashaw told me that Khayat had
no answer.” From Mr. Ayele's affidavit, I will
strike the part of the second sentence of paragraph 5, where
he states: “Abeba [Mekonnen] told me that Lily's
promise have Sunday off as an to accommodation for church
[sic] was not realized”; the part of the
second sentence of paragraph 14, where he states:
“Abeba said ‘I do know that they took the money
to the office but unable to know whether they pocket the
money for themselves”; the part of paragraph 15, where
he states: “Abeba told me that she can not continue to
work unless she sit at a given time interval to alleviate her
leg problem”; and, the first two sentences of paragraph
16. From Samuel Negash's affidavit, I will strike the
part of paragraph 11, where he states “I heard that she
[meaning Ms. Mekonnen] was conversing with employees that Mr.
Khayat had fired her for talking by phone while she was on
note that I will not consider the sections of Mr. Ayele's
affidavit which recount his interviews with other OTG
employees as substantive evidence of how other OTG employees
were treated. This recounting is focused on the second
sentence of paragraph 17 and on paragraphs 18, 19, and 20.
not strike the sections of Ms. Mekonnen's submissions
that are based upon her review of other documents. Most of
OTG's objections arise from instances where Ms. Mekonnen
provides her own understanding and interpretation of
OTG's business records or other evidence properly before
me. For example, Ms. Mekonnen submitted a document titled
“Refuting Murphy's Declaration and his Exhibit No.
9, ” in which she compares OTG's records of her
work schedule to her own calculation of her work schedule
based on her pay records. “Motions to strike have been
denied when the declarant did not personally experience the
matters discussed in the affidavit, but did review business
or public records and included information from those records
with the affidavit.” Facey v. Dickhaut, 91
F.Supp.3d 12, 20-21 (D. Mass. 2014). To the extent these
submissions could raise evidentiary concerns, I will simply
treat her gloss on other documents as argument and will rely
only on the underlying documents themselves as evidence.
I recognize Ms. Mekonnen's Statement of Material Facts
contains many statements not supported by citations to the
record, as required by Local Rule 56.1. I will deem admitted
those facts Ms. Mekonnen has failed to dispute with citations
to the record and strike statements included in her
submission that are not supported with citations to the
record, though I will still fully consider “whether the
moving party has met its burden” based on ”those
facts adequately supported by the record.” Paul v.
Johnson, 2013 WL 5299399, at *1-2 (D. Mass. Sept. 17,
2013). For the purpose of evaluating OTG's motion for
summary judgment, I will treat these statements as in the
nature of argument.
MOTION FOR SUMMARY JUDGMENT
Mekonnen alleges that OTG failed to provide her with a
reasonable accommodation for her disability and that OTG
discriminated against her on the basis of her disability by
issuing her a warning for sitting on a plastic box, by
altering her job duties, and ultimately by terminating her.
analyze her disparate treatment claims under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq., and the Massachusetts
Antidiscrimination Act, Mass. Gen. Laws ch. 151B
(“151B”), using the McDonnell-Douglas
burden-shifting framework. Tobin v. Liberty Mut. Ins. Co.
(“Tobin I”), 433 F.3d 100, 104 (1st Cir.
2005) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). Ms. Mekonnen must first
(1) [s]he suffers from a disability or handicap, as defined
by the ADA and Chapter 151B, that (2) [s]he was nevertheless
able to perform the essential functions of [her] job, either
with or without reasonable accommodation, and that (3)
[defendant] took an adverse employment action against [her]
because of, in whole or in part, [her] protected disability.
both the ADA and 151B, a person “is considered disabled
if she (a) has a physical or mental impairment that
substantially limits one or more of her major life
activities; (b) has a record of such an impairment; or (c) is
regarded as having such an impairment.” Ruiz Rivera
v. Pfizer Pharm., LLC, 521 F.3d 76, 82 (1st Cir. 2008);
see also Dahill v. Police Dep't of Boston, 748
N.E.2d 956, 962-63 (Mass. 2001) (identifying “three
avenues by which a person can establish that [s]he falls
within the statute's protection” under state law).
Mekonnen establishes a prima facie case of
discrimination, the burden shifts to OTG to articulate a
legitimate, nondiscriminatory reason for its employment
decision and show this was the true reason for its action.
Tobin I, 433 F.3d at 105 (citing, inter
alia, McDonnell Douglas, 411 U.S. at
802). At this point, if OTG “offers such a
reason, the burden shifts back to [Mekonnen], and [s]he must
proffer evidence to establish that [defendant's]
non-discriminatory justification is mere pretext, cloaking
discriminatory animus.” Id. (citing
McDonnell Douglas, 411 U.S. at
804). “The ultimate burden of proving
unlawful discrimination rests at all times with [Ms.
survive summary judgment for her reasonable accommodation
claims under the ADA, Ms. Mekonnen must show “(1) [s]he
is disabled within the meaning of the ADA, (2) [s]he was able
to perform the essential functions of the job with or without
a reasonable accommodation, and (3) [defendant], despite
knowing of [her] disability, did not reasonably accommodate
it.” Rocafort v. IBM Corp., 334 F.3d 115, 119
(1st Cir. 2003). Similarly, for her reasonable accommodation
claims under 151B, Ms. Mekonnen must show “[she] was a
‘qualified handicapped person' capable of
performing the essential functions of [her] job with
reasonable accommodation; [she] requested such accommodation,
and [defendant] refused to provide it; and, as a result of
this refusal, [s]he suffered some harm.” Alba v.
Raytheon Co., 809 N.E.2d 516, 522 n.9 (Mass. 2004).
examining the merits of her claims, I must determine whether
Ms. Mekonnen has adequately pled and previously exhausted all
of the theories of disability discrimination she now
advances. Relying in part on the Ethiopian medical
certificate I have stricken, Ms. Mekonnen claims in her
opposition to summary judgment to suffer from osteoarthritis.
Ms. Mekonnen had previously relied on her at-work leg injury
in January 2008 as the sole basis for her disability claim,
both in her administrative charge before MCAD and in her
complaint in this case.
Ms. Mekonnen has sufficiently pled disability discrimination
based on her osteoarthritis in her complaint in this court.
According to her amended complaint, as early as August 2007,
she had a “leg problem” that was aggravated by
OTG's failure to provide her with an elevated chair and
that it was “[b]ecause of this and the
employer's failure to accommodate the Sunday off time for
worship” that Mr. Ayele wrote the September 2007 letter
to Mr. Khayat. The complaint also mentions how she had one
written warning for sitting while at work because of a
preexisting leg problem and later injury sustained while at
work. Even if Ms. Mekonnen previously placed greater emphasis
on her at-work injury, her complaint gave OTG adequate notice
of a theory of disability discrimination based on a
preexisting leg problem, even if it did not elaborate on the
source of that problem.
Ms. Mekonnen exhausted administrative remedies for her
disability claim based on her pre-existing knee condition is
a closer call. Under both the ADA and 151B, an employee must
file an administrative charge either with the EEOC or with
the parallel state agency before filing
suit. Lattimore v. Polaroid Corp.,
99 F.3d 456, 464 (1st Cir. 1996); see also Thornton v.
United Parcel Service, Inc., 587 F.3d 27, 31 (1st Cir.
2009). Because it would frustrate the purpose of the
administrative proceedings “if the employee were
permitted to allege one thing in the administrative charge
and later allege something entirely different in a subsequent
civil action, ” the scope of any successive lawsuit is
limited to the scope of the administrative charge “and
the investigation which can reasonably be expected to grow
out of that charge.” Id. When an employee acts
pro se, as Ms. Mekonnen does here, courts construe
the administrative charge liberally and “afford the
complainant the benefit of any reasonable doubt, ” but
“[e]ven a pro se complainant is required to
describe the essential nature of the claim and to identify
the core facts on which it rests.” Id.
Mekonnen's administrative charge does not mention her
osteoarthritis diagnosis. Instead, her administrative charge
framed her disability claim entirely around the January 2008
On or about January 22, 2008 I had a work-related injury when
a sliding door fell on my leg. I was out of work for eight
days due to this injury. Upon my return I requested to be
able to sit when there were no customers around. Respondent
failed to accommodate my request and issued me a warning on
June 10, 2008 for sitting when there were no customers in my
line. I also requested a transfer to a delivery position as
an accommodation to my disability but was told delivery
positions were only given to male employees.
rebuttal to OTG's position statement, she again discussed
her at-work injury but did not discuss her osteoarthritis
diagnosis. Relying on her administrative charge, the MCAD
investigative disposition examined her disability claim only
through the lens of her at-work injury.
Mekonnen's permanent leg problem is one of those
“core facts” upon which her disability
discrimination claim may be said to rest; it should have been
identified fully in her administrative charge.
Lattimore, 99 F.3d at 464. The investigator would
likely have conducted a very different investigation had she
known Ms. Mekonnen was contending she suffered from a
permanent leg problem, in addition to the consequences of a
one-time (and relatively minor) injury, as the charge
the osteoarthritis diagnosis was information that was fully
within Ms. Mekonnen's control. She knew she had
osteoarthritis and, at least according to her opposition to
summary judgment, she believed she was discriminated against
because of this condition. Nothing prevented her, then, from
providing this information to the MCAD in her initial
sure, at least the complaint makes clear reference to
disability discrimination based on an injury to Ms.
Mekonnen's leg and indicates, albeit obliquely, that Ms.
Mekonnen had sought an accommodation to sit at work as early
as September 2007. An investigator reading Mekonnen's
complaint could reasonably be expected to ask why her husband
referred to the Massachusetts right-to-sit law in his
September 2007 letter, months before her January 2008
accident. An investigator could also reasonably be expected
to ask the complainant if she had any other problems with the
same leg, which would presumably reveal the osteoarthritis
condition, assuming the complainant was forthright during the
process. See Perch v. City of Quincy, 204 F.Supp.2d
130, 134 (D. Mass. 2002) (disability discrimination claim
based on employee's cancer diagnosis was within the scope
of investigation for disability discrimination claim based on
employee's chronic fatigue syndrome diagnosis).
the matter is close, and because I will grant summary
judgment for OTG on Ms. Mekonnen's disability claims on
other grounds, I will assume, without deciding, that her
disability claim based on her permanent leg problem were
Ms. Mekonnen had fully exhausted administrative remedies, her
disability claims are, at least in part, time-barred. Under
both the ADA and 151B, an employee is required to file an
administrative claim “within 300 days after the alleged
unlawful employment practice occurred.” Thorton,
587 F.3d at 31. Ms. Mekonnen filed her administrative charge
on May 10, 2010, which means her claims must be premised on
acts that occurred after July 14, 2009. However, at least
some of the discrete acts on which Ms. Mekonnen seeks to rely
here - her requests in August and September 2007 for an
elevated chair, her request for a transfer to a utility
position, and the written warning issued to Ms. Mekonnen for
sitting during her shift - occurred before July 14, 2009 and
individually cannot form the basis of a disability
there is no evidence that Ms. Mekonnen made a specific
request to sit while working after July 14, 2009 that OTG
denied. In determining the timeliness of a reasonable
accommodation claim, “[t]he pivotal question . . . is
whether [the employee] made a specific request for
accommodation that was denied during the statutory
periods.” Tobin v. Liberty Mut. Ins. Co.
(“Tobin II”), 553 F.3d 121, 133 (1st
Cir. 2009). The only arguably specific requests for an
accommodation Ms. Mekonnen made were in August and September
2007, when she asked Ms. Molla if she could sit in an
elevated chair while she worked and when ...