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Michael S. O'BRIEN vs. MASSACHUSETTS INSTITUTE OF TECHNOLOGY & others.
Michael S. O'BRIEN vs. MASSACHUSETTS INSTITUTE OF TECHNOLOGY & others. [FN1] No. 11-P-45. September 25, 2012. Handicapped Persons. Anti-Discrimination Law, Handicap, Termination of employment. Employment, Discrimination, Termination, Retaliation. Seth Stoffregen for the plaintiff. Scott A. Roberts for the defendants. RESCRIPT A Superior Court judge awarded summary judgment in favor of Michael S. O'Brien's former employer, the Massachusetts Institute of Technology (MIT), on his handicap discrimination and retaliation claims. The judge ruled that O'Brien's claims failed because he had no reasonable expectation of establishing essential elements of his case. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). On count 1 (handicap discrimination), the judge ruled that O'Brien could not establish that he is a handicapped person within the meaning of G.L. c. 151B (the statute), and that even if he could establish his handicapped status, he would not be able to meet his burden of showing that the reasons given for his discharge were a pretext. On count 2 (retaliation), the judge found that O'Brien could not establish that he experienced adverse employment actions prior to his discharge, and that the discharge itself was too remote from the protected activity (a complaint to the United States Department of Labor) to establish a causal connection. O'Brien appeals, claiming that he presented sufficient evidence to send his case to a jury. With respect to O'Brien's discrimination and retaliation claims against MIT, and viewing the record in the light most favorable to O'Brien, see Lyons v. Nutt, 436 Mass. 244, 245 (2002), we agree. This is not to say that MIT in fact discriminated or retaliated against O'Brien. That is a question for the jury on which we express no opinion. We hold only that the evidence is sufficient to raise genuine issues of material fact that preclude the award of summary judgment on counts 1 and 2. [FN2] Background. O'Brien worked at MIT's central utility plant (CUP) as a second-class engineer for approximately ten years, starting in 1997. Given the nature of the CUP's operations, engineers are expected to work overtime. Throughout his employment, O'Brien suffered from pain in his back and legs. He underwent two surgeries: in 2003, he had surgery on both legs, and in November, 2004, he had spinal surgery. Neither surgery was successful, and O'Brien continued to experience pain. In February, 2005, after his second surgery, O'Brien provided MIT with a letter from his surgeon explaining that because of continued pain, O'Brien's ability to work overtime was limited. O'Brien subsequently tried repeatedly to obtain sick leave under the Family and Medical Leave Act (FMLA) and an accommodation that would excuse him from working overtime. These requests were accompanied by doctors' notes stating, inter alia, that O'Brien had chronic leg pain "that disrupts his sleep"; that he "likely [would] miss work 1-2 days per month"; that he had a neurological condition made worse by working long hours and that it was "important for his long term health that he not be required to work overtime"; and that he had lower extremity neuropathic pain, spinal stenosis, and lumbar radiculopathy, with "[b]urning pain [in] both lower legs that worsens after prolonged standing hence limiting time on feet." MIT rejected each request, generally stating that the medical documentation submitted "did not describe circumstances that would entitle [him] to leave under FMLA," and requesting that he submit additional forms and documentation. In September, 2006, while O'Brien's request that he not work overtime was pending, one of his supervisors, Jack Stark,
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commented to another manager that he could not wait until the day he could fire O'Brien. In November, 2006, after O'Brien's request for an accommodation was formally denied, he filed a complaint with the United States Department of Labor (department). On April 11, 2007, as a result of negotiations with the department, MIT provisionally approved FMLA leave "due to a serious medical condition." In December, 2006, while O'Brien's complaint with the department was pending, another supervisor, Donald O'Mara, sent an internal electronic mail message (e-mail) strongly opposing an accommodation for O'Brien on the ground that it would set a precedent. The e-mail stated, "I have no interest whatever in accommodating [O'Brien] at all." As we have noted, O'Brien first informed MIT that his medical condition affected his ability to work overtime in the beginning of 2005. Prior to that time, during his first eight years of employment, the only disciplinary action involving O'Brien was a single warning he received in January, 2002, for improperly closing a damper. However, following his first request to be excused from working overtime until his employment was terminated in September, 2007, O'Brien received a number of verbal and written warnings and was suspended for a variety of infractions, including insubordination, failing to complete assignments, leaving his post without proper coverage, and abuse of MIT's sick leave policy. [FN3] A fellow worker, John Spinosa, submitted an affidavit stating that O'Mara and Stark "appeared to have two different sets of standards for performance in the CUP. One set of standards for ... O'Brien and the other set of standards ... for the rest of the workforce," and that he had "personally observed much of this discriminatory treatment." As to the termination of O'Brien's employment, there is no dispute as to the following: On September 8, 2007, O'Brien was assigned to work a twelve-hour shift, from 6:00 A.M. to 6:00 P.M. At some point in the early afternoon, he was asked to start CUP chiller number one. During the "slow-roll" start-up process, O'Brien left the CUP to retrieve his truck in a nearby lot, bringing it back to the parking lot next to the CUP. He then washed the truck and a kayak attached to the truck's roof, drove the truck to a parking garage, and returned to the CUP. At the end of his shift, O'Brien left for a scheduled two-week vacation. Upon his return, O'Brien was informed by letter that his employment was terminated for "unacceptable" conduct in connection with having abandoned his post and for other disciplinary concerns. [FN4] Spinosa's affidavit stated that it was common practice to leave the chiller during the slow-roll process because the equipment did not need constant monitoring at that point, and that he was not aware of any discipline imposed on any other engineer for that behavior during his twenty-five years at CUP. Discussion. [FN5] Count 1--handicap discrimination. 1. Handicap status. To establish that he is handicapped within the meaning of G.L. c. 151B, O'Brien must show that (1) his "condition, actual or perceived, constitutes a mental or physical 'impairment'[;] ... [2] the life activity curtailed constitutes a 'major' life activity as defined in G.L. c. 151B,

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