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Mekonnen v. OTG Management, LLC

United States District Court, D. Massachusetts

July 25, 2019

ABEBA MEKONNEN, Plaintiff,
v.
OTG MANAGEMENT, LLC Defendant.

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

         Plaintiff Abeba Mekonnen has proceeded pro se[1] 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.

         I. BACKGROUND

         A. Facts

         OTG 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, and cashiers.

         Ms. 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.

         The 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 2007.

         The 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.

         A few 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.”[2] 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 issues.

         Ms. 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.

         In 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 working full-time.

         During 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.

         Ms. 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.

         Subsequently, 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 scores.”

         B. Procedural History

         Ms. 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 action.

         The MCAD dismissed Ms. Mekonnen's complaint on April 30, 2012. Thereafter, the EEOC sent her a right to sue letter on August 28, 2012.

         Ms. 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.

         II. MOTION TO STRIKE

         Along 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.

         Under 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)).

         I will 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.[3] 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.

         I will 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 delay.

         Finally, 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.

         Turning 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).

         I will 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 duty.”

         I also 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.

         I will 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.

         Finally, 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.

         III. MOTION FOR SUMMARY JUDGMENT

         A. Disability Discrimination

         Ms. 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.

         I 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 show that:

(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.

Id.

         Under 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).

         If Ms. 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).[4] “The ultimate burden of proving unlawful discrimination rests at all times with [Ms. Mekonnen].” Id.

         To 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).

         1. Exhaustion

         Before 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.

         I find 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.

         Whether 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.

         Ms. Mekonnen's administrative charge does not mention her osteoarthritis diagnosis. Instead, her administrative charge framed her disability claim entirely around the January 2008 injury:

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.

         In her 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.[5]

         Ms. 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 represented.

         Moreover, 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.[6] Nothing prevented her, then, from providing this information to the MCAD in her initial administrative charge.

         To be 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).

         Because 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 properly exhausted.

         2. Timeliness

         Even if 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.”[7] 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 discrimination claim.

         I find 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 ...


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