Henry v. United Bank , 686 F.3d 50 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1666
KATHY HENRY,
Plaintiff, Appellant,
v.
UNITED BANK,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Kenneth P. Neiman, U.S. Magistrate Judge]
Before
Torruella, Howard and Thompson,
Circuit Judges.
Michael O. Shea, with whom Law Office of Michael O. Shea, P.C.
was on brief, for appellant.
Marylou Fabbo, with whom Skoler, Abbot & Presser, P.C. was on
brief, for appellee.
July 13, 2012
HOWARD, Circuit Judge. Plaintiff-appellant Kathy Henry
appeals an award of summary judgment in favor of her former
employer, defendant-appellee United Bank, on her claims of
retaliation in violation of the Family and Medical Leave Act
(FMLA), 29 U.S.C. §§ 2601-2654, and disability discrimination in
violation of Massachusetts law, Mass. Gen. L. ch. 151B. Her claims
arise from United Bank's decision to terminate her employment after
she had exhausted 12 weeks of medical leave. Agreeing with the
magistrate judge that the undisputed material facts compel judgment
in favor of United Bank, we affirm.
I. Background
We recite the facts in the light most favorable to Henry
as the non-moving party. See Jones v. Walgreen Co., 679 F.3d 9, 12
(1st Cir. 2012). Henry began working for United Bank in 2006 as a
commercial loan administrative assistant and in the following year
was promoted to the position of commercial credit analyst. As a
credit analyst, her tasks included evaluating the credit-worthiness
of commercial borrowers and making lending recommendations. She
reported to Joanne Sheedy, the Assistant Vice President of Credit,
who in turn reported to Jack Patterson, the Vice President of Risk
Management.
In January 2008, Henry began experiencing neck pain,
blurred vision, and dizziness. Her primary care physician (PCP)
Dr. Suzanne Jorey examined her and referred her to a neurologist,
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Dr. Christopher Comey. Dr. Comey determined that Henry was
suffering from a spinal cord compression in her cervical spine.
She received physical therapy during this time frame and scheduled
another appointment with Dr. Comey for early September. That
appointment was later changed to September 24. Henry kept the bank
informed of her physical condition and of the scheduled September
appointment with the neurologist.
With some workplace accommodations provided by the bank,
Henry was able to perform her job for a time. These accommodations
included, for example, an ergonomic chair and modifications to an
air conditioning vent in the plaintiff's office. Henry also
compensated for her sedentary position by walking around several
times during the day. Despite these adjustments, however, her
symptoms worsened, and on the first day of July she had difficulty
getting out of bed. That day Henry went to her PCP, who examined
her and completed an "Excuse Slip." This note, which Henry gave to
the bank, stated that she would be on "bed rest until further
notice."
Near the end of July, Henry's PCP recommended that her
leave of absence be extended for three weeks while further tests
were performed and a diagnosis reached. In mid-August, the PCP
provided an "Attending Physician Statement" to the Bank. This
statement noted that Henry could not sit all day, that she suffered
a decreased range of motion in her neck and back, and that it was
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"indeterminable" when she could return to work. Henry told the
bank's human resources department that her PCP wanted her to remain
out of work until her appointment with the neurologist at the end
of September.
Intermittently over the course of the summer, Henry's
employer provided her with forms to complete for FMLA leave and
short-term disability leave. Toward the end of July, the bank
informed her that her 12-week "FMLA/Disability leave" had begun on
July 1, leaving about nine more weeks of leave time remaining. In
early September, however, the bank sent Henry a letter stating that
her request for short-term disability had not yet been approved,
pending "further documentation from [her] doctor," and, therefore,
it was unable to qualify her work absence as FMLA leave. The
correspondence included a "Certification of Health Care Provider"
form (CHCP form) which was to be completed within fifteen days. At
Henry's direction, the bank also sent the form to her PCP's office.
A few days later, the bank's disability insurance company informed
Henry that her request for short-term disability had been denied
due to a lack of medical documentation showing that she was totally
disabled.
Meanwhile, Sheedy, Patterson, and Senior Vice President
of Human Resources Miriam Siegal met in early September to discuss
the staffing needs of the credit analysis department. This
discussion included the topic of the bank's ability to continue to
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hold Henry's position open indefinitely. Sheedy communicated to
Siegal that the department was strained from short staffing; two
other credit analysts, as well as Sheedy herself, had been carrying
the plaintiff's workload. They opted, however, to wait to make a
decision until the end of September.
By mid-month, the bank received the completed CHCP form
from the PCP's office. That certification stated that Henry was
"not incapacitated" and was "able to perform [her] job" on a normal
work schedule with "no heavy lifting." On September 22, Sheedy,
Patterson, and Siegal decided that the bank was unable to hold
Henry's position open any longer; Siegal told Henry that she was
expected to return to work on September 25, after her scheduled
September 24 appointment with the neurologist. In her
correspondence memorializing the bank's decision, Siegal
characterized Henry's "lengthy absence" as "unexcused" and not
FMLA-eligible leave, because it had "not been supported by [her]
healthcare providers."
The morning of September 25, after she saw her
neurologist Henry arrived at the bank with a note authored by him.
It stated:
Ms. Henry is under my care for a
neurosurgical condition (cervical myelopathy).
Our office will be scheduling a surgical
procedure for her in the next few weeks. Due
to extreme pain Ms. Henry has been unable to
go to work since July 1, 2008, she is to
remain out of work until further notice.
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When Henry attempted to deliver the note to Lynn Orr, the Payroll
and Benefits Administrator, Orr told her that she needed to wait
for Siegal to arrive to work in a "few minutes" in order to give
the note directly to her. Henry declined to wait and left the note
with another employee to deliver to Siegal. Later that same day,
Henry sent an email message to Siegal, advising her that the
surgery referred to in the neurologist's note was scheduled for
October 17. Siegal responded by informing Henry that her
employment was terminated, noting that the Bank "cannot continue to
hold [her] position open indefinitely" and that she had been given
a full 12-week period of FMLA leave commencing July 1, even though
the medical documentation did not support it.
Henry took the position that the CHCP form submitted by
her primary care physician in August had mistakenly characterized
her as able to work. She never provided a statement from the PCP
to modify that form, however, nor did she provide an additional
CHCP form completed by the neurologist. Henry did undergo the
surgery in October, and on April 2009 she was cleared to work
without restrictions.
Henry subsequently filed this action, which United Bank
removed to federal court, and the parties consented to proceed
before a magistrate judge. In due course, the bank moved for
summary judgment on all claims, and also sought to strike certain
portions of the plaintiff's statement of facts. The magistrate
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judge granted the motion to strike in part and entered judgment in
favor of United Bank. This timely appeal followed.
II. Analysis
We review a grant of summary judgment de novo, taking the
record evidence in the light most favorable to Henry as the
nonmoving party. See Hodgens v. General Dynamics Corp., 144 F.3d
151, 158 (1st Cir. 1998); Fed. R. Civ. P. 56(c). To defeat summary
judgment in the trial court, the plaintiff must provide "specific
facts showing that there is a genuine issue of material fact as to
each issue upon which [s]he would bear the ultimate burden of proof
at trial," an obligation that is triggered once the defendant has
properly supported its summary judgment motion. Hodgens, 144 F.3d
at 158 (internal quotation marks omitted). "The very mission of
the summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need
for trial." Id. (internal quotation marks omitted); see also
Godfrey v. Globe Newspaper Co., Inc., 928 N.E.2d 327, 333 (Mass.
2010) (noting that while "[s]ummary judgment is generally
disfavored in cases involving employment discrimination because the
question of intent requires a credibility determination," it
nonetheless "may at times be appropriate").
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A. Scope of Summary Judgment Record
Henry first challenges the district court’s decision to
strike from her Rule 56 Statement of Material Facts an assertion
that the CHCP form completed by her PCP's office had "mistakenly"
characterized her health status and endorsed her ability to work
with minimal limitation. The court did not commit error.
At bottom, the plaintiff's belief that the statements
were wrong does not affect the PCP's stated position as represented
on the form. Henry offered no evidence that the PCP's office ever
modified or otherwise corrected any perceived error. Further, as
noted by the magistrate judge, the neurologist's opinion
(memorialized in the September 24 note) that Henry had been unable
to work since July 1 does not necessarily override the PCP's
opinion because the conflict could simply represent a difference in
medical opinions. In any event, even assuming that the form
mistakenly characterized Henry's work abilities, she has not
demonstrated how this conclusion helps establish that the bank
acted unlawfully when it decided to terminate her on the stated
ground that it could not hold the position open indefinitely. We
find no abuse of discretion in the magistrate's decision to strike
the statement, see Casas Office Machines, Inc. v. Mita Copystar
America, Inc., 42 F.3d 668, 681 (1st Cir. 1994), and turn next to
Henry's claim that this case should be resolved by a jury.
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B. FMLA Retaliation Claim
The Family and Medical Leave Act entitles eligible
private sector employees to take, for medical reasons, reasonable
leave up to a maximum of twelve weeks, and then to return to the
same or an alternative position with some equivalency. See
Hodgens, 144 F.3d at 159; 29 U.S.C. §§ 2612(a)(1)(D), 2614(a)(1).
The Act also prohibits employers from retaliating against employees
for exercising their statutory rights. See 29 U.S.C. § 2615(a).
Thus, an employer cannot regard the taking of FMLA leave as a
negative factor in deciding to terminate an employee. See 29
C.F.R. § 825.220(c); Mellen v. Trustees of Boston Univ., 504 F.3d
21, 26-27 (1st Cir. 2007). But, although an employee who properly
takes FMLA leave cannot be discharged for exercising a right
provided by the statute, she nevertheless can be discharged for
independent reasons. Nagle v. Acton-Boxborough Reg'l Sch. Dist.,
576 F.3d 1, 3 (1st Cir. 2009).1
Henry's claim challenges United Bank's motivation for
terminating her, and she acknowledges that the McDonnell Douglas
burden-shifting framework applies. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973); Hodgens, 144 F.3d at 160(noting that the burden-shifting framework applies when there is no
direct evidence of discrimination); Colburn v. Parker
1
This case does not require us to determine whether Henry was
entitled to the FMLA leave that she received.
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Hannifin/Nichols Portland Div., 429 F.3d 325, 336 (1st Cir. 2005);
see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
141-49 (2000) (further explaining McDonnell Douglas framework in
the summary judgment context).2
We will assume for the sake of argument that the
plaintiff has satisfied her initial burden of establishing a prima
facie case. See Hodgens, 144 F.3d at 161 (setting forth the
elements of a prima facie FMLA retaliation claim). Additionally,
because Henry does not challenge the magistrate judge's ruling that
the bank satisfied its evidentiary burden under the second step of
McDonnell Douglas, we also assume that the bank produced "enough
competent evidence which, if taken as true, would permit a rational
factfinder to conclude that the challenged employment action was
taken for a legitimate, nondiscriminatory reason." Id. at 166(internal quotation marks omitted). Nonetheless, we describe the
evidence supporting the bank's proffered business decision -- that
it could not hold Henry's position open indefinitely -- in order to
set the stage for the final McDonnell Douglas prong on pretext,
which is the crux of the dispute.
2
Stated in simplified form, under this test the employee
must first bring forward enough evidence to make out a prima facie
case of discrimination; if the employer then provides a legitimate,
nondiscriminatory reason for the employment action, the plaintiff
must show that the employer's stated reason was pretextual.
Hodgens, 144 F.3d at 161.
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Siegal testified at her deposition that the credit
analysis department was critical to the bank's business because the
analysts perform credit risk assessments with respect to both
potential and current commercial loans. She underscored that, in
2007, an independent auditing company had recommended that the bank
maintain three credit analysts, and that the auditors were due to
perform their bi-annual review of the bank's credit functions in
the fall of 2008. At the time that the bank made its termination
decision, Henry had been out of work for about three months. The
two remaining analysts and Sheedy had taken on the extra work,
which strained the department.
Siegal also testified that no other employee in the bank
was available to temporarily fill the third analyst position, and
that hiring a temporary employee was not a wise business practice,
due to the confidential nature of the client information to which
the credit analysts have access and the particularized training
involved in preparing an employee to competently perform the job.
Additionally, she explained that the analysts' loan review
responsibilities were expected to increase for a variety of
reasons. These included the fact that the poor state of the
economy had created a need for increased financial documentation
when scrutinizing credit-worthiness, and the fact that an increase
in new loans was expected due to the bank having recently hired
additional commercial lenders. Finally, Siegal testified that the
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neurologist's note did not change the bank's decision to terminate
Henry's employment, because the note gave no indication of a date
by when she possibly might return to work.
In light of this undisputed evidence that the Bank's
termination decision was animated by legitimate, nondiscriminatory
reasons, any presumption of retaliatory animus created by the prima
facie case evaporates. See id. at 160; see also Reeves, 530 U.S.
at 142-43. Thus, to survive summary judgment, Henry's burden is to
demonstrate, without the benefit of the animus presumption, a
trialworthy issue on whether the stated reason was but a pretext
for retaliating against her for having taken protected FMLA leave.
Hodgens, 144 F.3d at 161; see also Reeves, 530 U.S. at 143.
Henry argues that, viewed in her favor, the summary
judgment record would permit a jury to infer pretext and
discriminatory animus. She focuses primarily on the circumstances
leading up to her termination and on two remarks made by Sheedy in
the workplace. Additionally, she contends that the record contains
evidence that undermines the veracity of the bank's stated need to
fill the third analyst position.
Henry first points to the employer's conduct leading up
to her termination, including: (1) the bank's changed position
about the status of her requested FMLA leave that it had initially
approved; (2) Siegal's insistence that Henry return to work,
despite being aware of her upcoming appointment to see the
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neurologist; (3) Orr's demand that she have the CHCP form completed
in mid-September, rather than allowing her to wait for the
scheduled appointment with the neurologist; (4) the bank's failure
to reconsider its termination decision once she informed Siegal
that the PCP's statements in the CHCP form were mistaken; and (5)
Orr's refusal to accept the neurologist's note on the morning of
September 25.
We first note with respect to Orr's conduct that there is
no evidence that she had anything to do with the decision to
terminate Henry. See Colburn, 429 F.3d at 337. Additionally, we
reject the argument that the bank took an inconsistent stance on
the status of Henry's leave that is suggestive of pretext or bad
motive. In late July, about three weeks into her absence, the bank
simply sent her a letter stating that her FMLA leave began on July
1. In early September, after two months had passed since she left
work, the bank informed Henry that her absence could not qualify as
FMLA leave without proper medical documentation substantiating her
claimed disabled status. The bank included a CHCP form in that
correspondence, in order to assist her in providing the necessary
documentation.
Neither do the circumstances surrounding the submission
of the CHCP form itself suggest retaliatory animus. We detect
nothing nefarious in Siegal's requiring that Henry return to work
once the bank learned in mid-September that her PCP deemed her able
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to do so with the minimal accommodation of "no heavy lifting."
Further, although Henry told Siegal that the form was mistaken, she
points to no evidence suggesting that the bank prevented her from
submitting a modified form by the PCP to correct any perceived
error. And, once the bank received the neurologist's note stating
that she would be out of work "until further notice," it simply
remained consistent in its position that it could not hold her job
open indefinitely.
Henry highlights the temporal proximity between the
conclusion of the 12-week FMLA leave period, Dr. Comey's note
documenting her need for additional time, and her termination.
Although timing can be relevant when considering whether there was
retaliatory animus, the timing here is unremarkable. See id. at
170-71; Colburn, 429 F.3d at 337-38. The undisputed facts show
that the decisionmakers began discussing staffing issues related to
Henry's continued absence in early September, and, before ever
receiving the neurologist's note, Siegal notified Henry that the
bank could not hold her position open indefinitely, setting
September 25 as the date for her to return to work.
We next consider the workplace comments made by Sheedy.
Viewed in the context offered by the record, we agree with the
magistrate judge that neither comment can be understood fairly to
communicate a discriminatory or retaliatory message. First, during
a telephone call with Siegal in mid-September discussing her need
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to remain out of work, Henry apparently heard Sheedy in the
background exclaiming "What did I do to you? Did I do something to
you?" Even assuming that this background remark was directed at
the plaintiff, it does not reflect any FMLA-related animus.
The second comment, according to Henry, was made while
another employee was out on disability leave. In Henry's presence,
Sheedy asked whether "anybody [had] heard from Dan or his wife on
when he's coming back to work," and later, when the co-worker's
spouse called the office, Sheedy remarked that he was a "wuss" and
"needed to get a back bone." Nothing in the record connects this
stray remark to Henry's medical leave. Suffice to say, neither of
Sheedy's comments help create a triable issue on pretext and
motive.
Finally, Henry attempts to discredit the evidentiary
basis for the bank's stated reason for terminating her. Relying on
her own deposition testimony, she contends that the bank could have
hired a temporary employee because her job was not a complicated
one and the bank could have taken extra precautions to ensure that
any such employee treated confidential customer information in an
appropriate manner. Similarly, she challenges the bank's
perspective on the increasing workload of the credit analysis
department, and the purported immediate need for three credit
analysts. These iterations, as well as the others she raises in
her brief, constitute mere disagreement with her employer's
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business decisions and do not display the kind of weaknesses or
implausibilities that give rise to a triable question on pretext.3
Cf. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir. 2007)
("In the absence of some other proof that the decisionmaker
harbored a discriminatory animus, it is not enough that [the
employer's] perception may have been incorrect. Rather, the
plaintiff must show that the decisionmaker did not believe in the
accuracy of the reason given." (citations omitted)).
In sum, Henry does no more than raise tenuous
insinuations on the facts surrounding her termination and the
bank's reason for taking that action. This is insufficient to
create a triable issue on discriminatory or retaliatory animus.
See Roman v. Potter, 604 F.3d 34, 40 (1st Cir. 2010); see also
Reeves, 530 U.S. at 148. Indeed, the undisputed facts reflect that
the bank made several workplace accommodations for Henry from the
time that she began displaying physical symptoms in January 2008.
While she was out of work, it held her position open for 12 weeks
and contributed to her group health insurance during that period,
3
There is only one piece of evidence offered by the plaintiff
that potentially belies the stated needed to fill the third analyst
position. Henry testified in her deposition that in May and June
of 2008, before she began her leave time, the credit analysis
department "was slow" because "[t]he market was tumbling" to such
an extent that she was performing "idle work." However, this does
not answer the evidence that the bank had hired two more commercial
lenders in 2008 and thereby anticipated having more borrowers for
credit analyst review. Nor does it undermine the evidence that the
auditing company had recommended that the department be stocked
with three full-time analysts.
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despite its view that she failed to provide appropriate medical
documentation supporting FMLA leave. And there is no evidence of
contemporaneous statements made by the decisionmakers suggesting
retaliation for her requesting and taking leave. In the end, the
plaintiff's attempt to establish a triable issue on pretext and
motive comes to naught. See Jones, 679 F.3d at 21-22; Hodgens, 144
F.3d at 167 Reeves, 530 U.S. at 147-48; cf. Roman, 604 F.3d at 40(explaining that the employee's individual belief that the adverse
employment action was motived by retaliatory animus is not enough
to show pretext or animus).
C. State Law Claims under Chapter 151B
In her brief, Henry advances three state law theories for
relief under Massachusetts General Laws ch. 151B: disparate
treatment, retaliation, and failure to provide a reasonable
accommodation.4 As Chapter 151B is considered the state analogue
4
Massachusetts General Law Chapter 151B, § 4(4), provides:
It shall be an unlawful practice . . . [f]or
any . . . employer . . . to discharge, expel
or otherwise discriminate against any person
because he has opposed any practices forbidden
under this chapter or because he has filed a
complaint, testified or assisted in any
proceeding under section five.
Massachusetts General Law Chapter 151B, § 4(16), further
provides:
It shall be an unlawful practice . . . [f]or
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to the Americans with Disabilities Act (ADA), Massachusetts courts
look to cases decided under the federal counterpart to inform its
interpretation; we do likewise as needed. See Jones, 679 F.3d at
13-14; Russell v. Cooley Dickinson Hosp., Inc., 772 N.E.2d 1054,
1062 n.6 (Mass. 2002).
We may address the first two state law claims --
disparate treatment and retaliation -- summarily. Premising these
claims on the same operative facts as her federal FMLA retaliation
claim, Henry asserts that the bank discriminated against her by
terminating her because of her medical disability, and retaliated
against her for requesting and taking medical leave.5 Our
conclusion on her federal claim, however, is equally fatal to these
state law claims because the evidence on pretext and discriminatory
intent is no stronger. See Sensing v. Outback Steakhouse of Fla.,
an employer . . . to dismiss from employment
. . . or otherwise discriminate against,
because of his handicap, any person alleging
to be a qualified handicapped person, capable
of performing the essential functions of the
position involved with reasonable
accommodation, unless the employer can
demonstrate that the accommodation required to
be made to the physical or mental limitations
of the person would impose an undue hardship
to the employer's business.
5
See Godfrey, 928 N.E.2d at 333 (generally setting forth the
elements of a disability discrimination claim under Mass. Gen. Law
ch. 151B § 4(16)); Mole v. Univ. of Mass., 814 N.E.2d 329, 338-39
(Mass. 2004) (generally setting forth the elements of a retaliation
claim under Mass. Gen. Law ch. 151B § 4(4)).
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LLC, 575 F.3d 145, 154 (1st Cir. 2009) (noting that Chapter 151B
employment discrimination cases follow the McDonnell Douglas
framework); Abramian v. President & Fellows of Harvard Coll., 731
N.E.2d 1075, 1084-86 (Mass. 2000) (same).
As a final matter, Henry argues that the district court
incorrectly analyzed her failure-to-accommodate claim. She says
that the magistrate judge required her to show discriminatory
animus, even though there is no animus requirement in establishing
that an employer failed to provide a disabled person with a
reasonable accommodation. In this respect, however, she has on
appeal impermissibly attempted to recast her complaint as including
an independent reasonable accommodation claim under the ADA and
Chapter 151B.
First, the only federal claims in the complaint are
expressly asserted to be violations of "the Family Medical Leave
Act - 29 U.S.C. § 2601, et. seq." Next, while two counts do assert
state claims under Chapter 151B, they are entitled "Discrimination
and Harassment" and "Retaliation," respectively. More so, the
operative allegations point to "harass[ment]" and "adverse action"
that the bank allegedly took against Henry because of her "medical
condition and/or handicap" and her having requested and taken
medical leave. Thus, it is doubtful that either state law count
can be read fairly to lodge an independent reasonable accommodation
claim under Chapter 151B. Moreover, it does not appear that Henry
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argued in the district court that it had misread the complaint, and
she makes no effort on appeal to parse her own complaint to
illustrate the putative independently-raised claim. In any event,
even assuming that the complaint does allege a state law reasonable
accommodation claim, the claim nevertheless fails.
Generally stated, a disability discrimination claim based
upon a failure to accommodate requires a plaintiff to show that:
(1) she is a handicapped person within the meaning of the statute;
(2) she is qualified to perform the essential functions of the job
with or without reasonable accommodation; and (3) the employer knew
of her disability but did not reasonably accommodate it upon a
request. Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 (1st Cir.
2010) (reciting the tandem legal standards for a reasonable
accommodation claim under the ADA and Chapter 151B); see also
Russell, 772 N.E.2d at 1054 (noting that the employee bears the
initial burden to request reasonable accommodation in order to be
able to perform his existing duties).
With respect to extended medical leave, the Supreme
Judicial Court of Massachusetts has held that "[a] request for a
limited extension, setting a more definite time for the employee's
return to work, may . . . constitute a reasonable accommodation .
. . based on the circumstances." Russell, 772 N.E.2d at 1064. It
also has held, however, that "[a]n open-ended or indefinite leave
extension" does not constitute a reasonable accommodation under
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Chapter 151B. Id.6 Russell relied on analogous federal case law
to the effect that the term "reasonable accommodation" connotes one
"which presently, or in the immediate future, enables the employee
to perform the essential functions of the job." Id. (internal
quotation marks omitted). Here, the record does not give rise to
a jury question on whether Henry's apparent request for extended
leave constitutes a reasonable accommodation.
From July through September, United Bank received several
communications from Henry's medical providers documenting her
inability to work. While one note that the bank received from
Henry's PCP in July suggested that she may return to work after
three more weeks of leave time, ultimately she did not. And
although her PCP indicated (in the CHCP form provided to the Bank
in mid-September) that the plaintiff was able to work with a slight
restriction, Henry says that this was an error. Thus, as of the
date of her termination, the plaintiff could not work in her
position at all and had given the bank neither a relative time
frame for her anticipated recovery nor any indication of when or
whether she would ever be able to return to her credit analyst
position in the future.
6
To the extent that the appellant suggests that the bank was
required to hold open an alternative position during her leave, we
disagree. See, e.g., Godfrey, 928 N.E.2d at 336 ("Neither
elimination of an essential duty from a position nor assignment to
an unrelated position are 'reasonable accommodations' within the
meaning of G.L. c. 151B, § 1.")
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Henry counters that the content of the September 24
neurologist's note creates a factual issue about whether it would
have been reasonable for the bank to have provided an additional
three-week extension for her to undergo surgery and allow time for
a proper diagnosis to be made. While there may be circumstances in
which a request to wait for a medical diagnosis may constitute a
reasonable accommodation, such is not the case here.
Upon exhaustion of her FMLA leave, Henry had been out of
work for three months, and the bank had informed her on September
22 that it could not hold her position open indefinitely, requiring
her to return to work on September 25. Even after the long-awaited
appointment with the neurologist on September 24, Henry provided
the bank with only a generally stated note that she had been unable
to work since July 1, surgery would be scheduled in a few weeks,
and she must remain out of work "until further notice." The record
is devoid of even an estimate as to expected recovery time or the
possibility that she may be able to perform any portion of the
essential functions of her sedentary credit analyst position.7
Such an open-ended request for additional leave is just
the type of wait-and-see approach that has been rejected as giving
rise to a triable issue on reasonable accommodation. See, e.g.,
Russell, 772 N.E.2d at 1065 (concluding that the employee failed to
7
The fact that Henry later fully recovered by April 2009 is
immaterial since neither party knew as of September 25, 2008 when
and whether she would be able to return to work.
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demonstrate a triable issue on reasonable accommodation when at the
time the employee requested a leave extension, "she did not
indicate when (if ever) she would be able to return to her
position"); Scott v. Encore Images, Inc., 955 N.E.2d 319, 325
(Mass. App. Ct. 2011) (concluding that the employer was not
required to provide the possible accommodation of an indefinite
leave of absence).
The federal case law relied upon by the appellant does
not persuade us otherwise; the circumstances of each cited case
differ materially from this one. Cf. Garcia-Ayala, 212 F.3d at
647-48 (finding that the employee's request for a leave extension
was a reasonable accommodation given that the employee proffered a
definitive date, the employer had been relying on help from
temporary agencies, and the employer's termination decision
centered on per se compliance with company leave policy rather than
on its business needs); Criado v. IBM Corp., 145 F.3d 437, 444 (1st
Cir. 1998) (concluding that a factual issue remained about whether
a request was reasonable where the employee offered "evidence
tending to show that her leave would be temporary and would allow
her physician to design an effective treatment program," and it was
undisputed that the leave would not produce an undue burden on the
employer).8
8
The appellant's reliance on the federal district court
decision Fink v. Printed Circuit Corp., 204 F. Supp. 2d 119 (D.
Mass. 2002), is of little help to her. That case does not endorse
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Because the extended leave requested by Henry is not a
reasonable accommodation, the bank had no obligation to show that
the request would impose an undue burden on its business or to
engage in the informal interactive process. See Godfrey, 928
N.E.2d at 333-34, 337. And, to the extent that such burdens may be
relevant to the reasonable accommodation mix in this case, the
claim still falls short. There is no material factual issue on the
bank's need to fill Henry’s position, and no trier of fact could
reasonably find on this record that the bank was required to go
further than it did to accommodate Henry, especially since she
remained firm in her stance that she could perform no part of her
duties for an indefinite time. See Jones, 679 F.3d at 19-20.
This ends the matter.
III. Conclusion
We affirm the judgment in favor of United Bank.
non-definitive requests for extended leave time as reasonable
accommodations. See id. at 127-28 ("The instant case certainly
approaches . . . an open-ended time frame" which is unreasonable as
a matter of law, but "[a]t this point in the litigation . . . this
Court cannot conclude that the plaintiff sought a per se
unreasonable accommodation."). Indeed, the particular circumstances
before us are more in line with another, recent district court
decision. See Cailler v. Care Alternatives of Mass., No. 09-12040,
2012 WL 987320, at *5-6 (D. Mass. March 23, 2012) (ruling on
summary judgment that the employee had failed to establish that an
extended leave was a possible reasonable accommodation where she
remained unable to perform her job after exhausting FMLA leave time
and participating in the company's modified work plan, and her
physician was unable to provide an estimated time for recovery and
return to work date).
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