Tufts Medical Center v. Dalexis ( 2023 )

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22-P-15 Appeals Court
TUFTS MEDICAL CENTER vs. MARIE LUNIE DALEXIS1 & another.2
No. 22-P-15.
Suffolk. October 13, 2022. - September 21, 2023.
Present: Green, C.J., Henry, & Englander, JJ.
Massachusetts Commission Against Discrimination. Anti-
Discrimination Law, Employment, Handicap, Termination of
employment. Employment, Discrimination, Constructive
discharge. Handicapped Persons. Nurse.
Civil action commenced in the Superior Court Department on
January 17, 2020.
The case was heard by Jeffrey A. Locke, J., on motions for
judgment on the pleadings.
Gregory A. Brown for the plaintiff.
Caitlin A. Sheehan for Massachusetts Commission Against
Discrimination.
Howard Mark Fine for Marie Lunie Dalexis.
1 Marie Lunie Dalexis died while this matter was pending
before the full commission of the Massachusetts Commission
Against Discrimination. Her claim is defended by Jonel Dalexis,
the personal representative of her estate.
2 Massachusetts Commission Against Discrimination.
2
GREEN, C.J. Tufts Medical Center (Tufts) appeals from a
judgment of the Superior Court affirming the decision and order
of the Massachusetts Commission Against Discrimination
(commission), which found that Tufts had discriminated against
one of its nurses, Marie Lunie Dalexis, on the basis of her
disability.3 See G. L. c. 151B, § 4 (16). The commission's
finding (which followed a public hearing before a hearing
officer) was based on adverse employment actions taken against
Dalexis after her doctor informed Tufts that, due to her medical
conditions, Dalexis could not work overtime. The commission
concluded that, by refusing to excuse Dalexis from the
obligation to work overtime when needed, Tufts had failed to
offer Dalexis a reasonable accommodation for her disability. In
addition, the commission concluded that Tufts had failed to
engage in the dialogue required by G. L. c. 151B, and had
constructively discharged Dalexis. For these statutory
violations, the commission awarded Dalexis damages and
attorney's fees. Our review of the administrative record
reveals that the commission's decision was supported by
3 "[T]he words 'disabled' and 'disability' are the more
common and accepted parlance than the words 'handicapped' and
'handicap.' The word 'handicap,' however, is utilized in the
governing statute and regulations." Massachusetts Commission
Against Discrimination, Guidelines: Employment Discrimination
on the Basis of Handicap, Chapter 151B, § I n.1 (1998). Like
the commission, this decision will use the words "handicap,"
"handicapped," "disability," and "disabled."
3
substantial evidence and free from error of law. See G. L.
c. 30A, § 14 (7). Accordingly, under the deferential standard
we apply to our review of such decisions, we affirm the judgment
of the Superior Court affirming the commission's decision.
Background. We summarize the relevant facts found by the
hearing officer and adopted by the commission.
In 2002, Dalexis was hired by Tufts, a major medical
institution in Boston, as an inpatient registered nurse
(registered nurse or inpatient nurse). During the relevant time
period, Tufts operated twenty-two inpatient units and employed
694 registered nurses to work those units. Nurses in the
inpatient units operated on three shifts: the day shift (7 A.M.
to 3:30 P.M.), the evening shift (3 P.M. to 11:30 P.M.), and the
night shift (7 P.M. or 11 P.M. to 7:30 A.M.). No nurse worked
solely on the day shift. Instead, the majority of nurses worked
a combination of day and evening (day-evening) shifts or,
alternatively, day and night (day-night) shifts as
"day/rotators."
At Tufts, Dalexis first worked in an oncology unit and then
in an oncology medical-surgical unit. In 2005, she transferred
to Proger 5 North (PG5N), a medical-surgical unit, where she
worked as a "day/rotator" on the day-evening shift. On
4
occasion, Dalexis also worked as a charge nurse.4 Dalexis
generally performed well; in the hearing officer's words, she
"received an overall rating of 'excels' on her 2008 performance
appraisal –- the last one submitted into evidence."
On any given day at Tufts, administrators had to ensure
that all the various nursing posts were properly staffed, which
included accounting for nurses out on vacation, out sick, or who
became ill over the course of the day. Patient demand could
change over the course of the day as well, sometimes
substantially. At the relevant time, Tufts utilized a specific
staffing system to fill the required nursing shifts when the
need arose. Open shifts were filled first by the so-called
"float pool" nurses, then by per diem nurses,5 then by staff
nurses not scheduled on that day, then by staff nurses present
on the floor who volunteered to stay through the next shift on
an overtime basis, and finally by nurses present on the floor
who were required to stay until a replacement was found. Nurses
also could be required to stay past the end of their scheduled
4 The hearing officer described the charge nurse position as
follows: "A charge nurse takes responsibility for the flow of
care on the floor, making sure that patients are properly
admitted, collaborating with the emergency room, and assigning
nurses to care for patients."
5 Unlike float pool nurses, per diem nurses were not
guaranteed to work a specified number of hours per week and did
not receive benefits.
5
shifts if, for instance, a nurse on the next shift called out
sick or a patient became critically ill. A nurse scheduled to
work on the evening shift in this scenario then would work some
portion of the night shift on an overtime basis. A critical
consideration for Tufts in making overtime decisions was the
need to ensure that a sufficient number of nurses were on duty
at all times to provide an appropriate level of patient care.
The collective bargaining agreement (CBA) between Tufts and
Dalexis's union, the Massachusetts Nurses Association, provided
Tufts "the right to require reasonable overtime work," and
defined overtime work to include any work performed in excess of
a forty-hour work week and any work in excess of five, full-time
shifts in a week.6,7 The job description for the registered
nurse position listed as one of the "physical demands/working
conditions" that the employee is "[s]ubjected to irregular
hours."
6 Tufts presented testimony that overtime is "[a]nything
beyond a nurse's normal shift, or anything over 40 [hours] in a
work week."
7 The events at issue in this case predate the Legislature's
enactment of G. L. c. 111, § 226, inserted by St. 2012, c. 224,
§ 103, which governs when a hospital may require a nurse to work
mandatory overtime. That statute prohibits mandatory overtime
"except in the case of an emergency situation where the safety
of the patient requires its use and when there is no reasonable
alternative." G. L. c. 111, § 226 (b). However, the statute
does not "limit, alter or modify the terms, conditions or
provisions of a collective bargaining agreement entered into by
a hospital and a labor organization." G. L. c. 111, § 226 (h).
6
During the 2009 fiscal year when Dalexis sought to return
to work with an accommodation, 94.67 percent of inpatient nurses
worked at least some overtime. However, the amount of overtime
worked by individual nurses varied greatly, with some nurses
working hundreds of hours of overtime and others working minimal
amounts -- as little as three hours. Of the nurses who worked
some overtime, fifty-seven percent worked in excess of a forty-
hour work week; the remainder worked overtime in excess of their
scheduled shifts but not more than forty hours per week. And
some nurses -- 5.33 percent -- worked no overtime at all.
Nurses averaged a little less than one hour of overtime per
week.8
As the hearing officer found, Dalexis "never had to force a
nurse to work overtime when she served as charge nurse and she
never had to work overtime against her will." Moreover, the
commission relied on the hearing officer's finding that Dalexis
assured Tufts that in the event of an emergency requiring
overtime, she would never abandon a patient.9
Near the end of 2005, Dalexis began to experience health
8 Dalexis averaged about two hours of overtime per week in
2008 and before she went on leave in 2009.
9 The commission observed, "It is important to note that the
[h]earing [o]fficer also credited [Dalexis]'s testimony that she
would never leave a patient that needed her even if that
required her to work past her normal shift hours."
7
issues. The following year, she was diagnosed with rheumatoid
arthritis, which caused her to feel "really sick" and stiff, and
to have low energy. Dalexis's rheumatoid arthritis also caused
her to contract interstitial lung disease. As a result, Dalexis
experienced difficulty breathing, pain and "crackles" in her
lungs, and an inability to run or climb stairs. During this
time, Dalexis continued to work the day-evening shift on PG5N,
but took intermittent leave for her health issues.
In 2007, Dalexis submitted a note from her doctor
explaining that Dalexis could not work past the normal hours of
her shift due to her interstitial lung disease. As a temporary
accommodation, Dalexis's nurse manager at the time excused her
from working overtime.10
From October 2008 to May 2009, Dalexis continued to take
intermittent leave as needed under the Family and Medical Leave
Act (FMLA). In late May 2009, Dalexis took FMLA leave but her
absence from work was prolonged after she underwent emergency
surgery. In July 2009, Tufts determined that Dalexis had
exhausted her FMLA leave and her protected medical leave under
10The hearing officer did not make an explicit finding as
to the duration of this accommodation, and the administrative
record is unclear on the point. In the commission proceedings,
Tufts maintained that the accommodation was in place for ten
days, while Dalexis asserted that she received an accommodation
for "several months." Nothing in our analysis turns on the
length of the temporary accommodation.
8
the terms of the CBA.11 Dalexis was accordingly informed that
her position on PG5N would be filled, and she would need to
apply for open positions when she was ready to return.
On September 8, 2009, Dalexis's doctor cleared her to
return to work the following month. At Tufts's direction,
Dalexis met with a nurse recruiter to identify job opportunities
and also applied for several inpatient nursing positions that
were posted online; however, she did not receive any interviews,
at least in some instances because the positions to which she
applied were outside of her specialty areas.
During Dalexis's search for a nursing position at Tufts in
the fall of 2009, three non-float, day-rotator jobs on PG5N were
unfilled, but Tufts did not alert Dalexis to the openings. A
fourth non-float, day-rotator position on PG5N was posted on
October 23, 2009, and Tufts again did not notify Dalexis of the
opening. In addition, two float pool, day-rotator jobs for
medical/surgical units were posted in May and August 2009 and
remained unfilled during Dalexis's job search, and a third was
posted for which Dalexis applied on October 23, 2009, but Tufts
did not interview her for the position. These positions could
be day-evening shift or day-night shift positions, and Dalexis
11The CBA required Tufts to hold open the position of a
nurse on medical leave for ninety days. Although Tufts extended
the protection for up to sixty additional days for some
individuals, it declined to do so in Dalexis's case.
9
testified that she would have asked to work the day-evening
shift. Julie Miglietta, the employee relations specialist and
manager for Tufts, testified that Dalexis did not get an
interview for this float pool, day-rotator position because her
overtime restriction made her ineligible. But at that time,
Dalexis was cleared to return to work with no restrictions.12
Dalexis first raised her need for an accommodation on
November 6, 2009, when she was offered a vacant night-shift
position on PG5N -- which, at the time, had not yet been
advertised. Dalexis declined the position, explaining that she
"can't work nights" because doing so would exacerbate her
rheumatoid arthritis. Dalexis and Miglietta then followed up
with Dalexis's doctor to clarify the nature of her work
12The hearing officer also found that on October 27, 2009,
nurse manager Alyson Shea hired Claudia Ballway "into a non-
float day-rotator position on [PG5N] 4, four days after it was
posted." Of particular note, although Shea testified that this
position involved twelve-hour shifts, the hearing officer found
that "[n]othing in the record support[ed] this assertion."
Ballway was hired the same day she submitted her application.
The hearing officer specifically found that
"Shea states that she did not notify [Dalexis] about the
posting because that wasn't her 'role' even though she had
called [Dalexis] the prior summer to inform [Dalexis] that
her position was being posted. Shea claims that she was
not aware that [Dalexis] had been cleared to return to work
despite the note from Dr. Katz clearing [Dalexis] to return
to work full-time as of October 19, 2009. . . . [Dalexis]
submitted he[r] [doctor's] note to Risk Manager Patti
Andrews."
10
restrictions. Ultimately, Dalexis's doctor provided a note to
Tufts on December 10, 2009, explaining that Dalexis "may work a
normal daytime . . . shift [but] . . . cannot work overtime or
[n]ight shifts." Based on that information, Miglietta concluded
that Dalexis was not eligible for an inpatient nurse position
because the ability to work overtime when needed was an
essential function of that position.13
In December 2009, Dalexis initiated a grievance concerning
her reemployment rights that was ultimately unsuccessful.
During the grievance process, Miglietta asked Dalexis to contact
her doctor once again, to determine whether she could work some
nights and overtime. Dalexis did so and, according to a follow-
up e-mail message sent by Dalexis on May 5, 2010, her doctor
declined to lift or modify the restrictions and cited
"overexhaustion" as the cause of flareups of her disease. In
light of those restrictions, Tufts concluded that Dalexis's
return to work in an inpatient capacity was unlikely and she
could be processed for separation as of June 5, 2010.
Dalexis filed a complaint with the commission charging
Tufts with discriminating against her on the basis of her
13Miglietta also determined that a clinic position in a
doctor's office, rather than an inpatient hospital position,
would be a better assignment given Dalexis's restrictions.
Miglietta and others at Tufts encouraged Dalexis to seek
employment outside of the organization.
11
disability, among other protected statuses.14 After an
evidentiary hearing, the hearing officer found that Dalexis was
a disabled employee due to her interstitial lung disease and
rheumatoid arthritis,15 and that Dalexis could have returned to
work with a reasonable accommodation. The hearing officer
explained that on "the unique facts of this case," Tufts should
have accommodated Dalexis by excusing her from overtime and
night-shift work. The hearing officer also concluded that, once
Dalexis requested an accommodation, Tufts failed to participate
in an effective interactive process with her, resulting in
Dalexis's constructive discharge effective October 19, 2009, the
14In addition to charging disability discrimination,
Dalexis alleged discrimination based on national origin and
race, and sought to hold Miglietta individually liable. The
hearing officer found that Dalexis abandoned the national origin
and race-based claims and failed to prove her claim against
Miglietta. Dalexis did not seek further review on these claims,
and they are not before us.
15The hearing officer also found that Tufts regarded her as
disabled, a finding that, the commission concluded, was
supported by substantial evidence. See G. L. c. 151B,
§ 1 (17) (c). We agree with that assessment. On appeal, Tufts
argues that the hearing officer violated its rights by deciding
a claim that was neither in the administrative complaint nor
tried by consent. Even if the commission erred, given
Dalexis's undisputed satisfaction of the first prong of the
definition of "handicap," Tufts's substantial rights were not
prejudiced. See G. L. c. 151B, § 1 (17) (a) (person has
"handicap" if she suffers from "a physical or mental impairment
which substantially limits one or more major life activities");
Dahill v. Police Dep't of Boston, 434 Mass. 233, 241 (2001) ("A
plaintiff may prove that [she] is a handicapped person under
one, two, or all of the three statutory definitions").
12
date Dalexis was medically cleared to return to work.16 However,
the hearing officer made no explicit finding as to whether the
ability to work overtime was an essential function of the
inpatient nurse position.17 The hearing officer awarded Dalexis
back pay, compensatory and emotional distress damages, plus
interest.
Tufts appealed to the full commission, arguing, in part,
16 Specifically, the hearing officer found:
"The foregoing evidence supports a conclusion that [Tufts]
could have fashioned a reasonable accommodation whereby
[c]omplainant, in October of 2009, returned to [PG5N] or to
a float assignment in a day or day-evening rotator capacity
without overtime and night-shift requirements. Rather than
permit [c]omplainant to do so, however, [r]espondents
offered her a single night-shift position, discussed the
possibility of firing her if she refused the position,
failed to interview her for numerous vacant day-rotator
positions on [PG5N], and only relented on interviewing her
in order to placate her union, the Massachusetts Nurs[es]
Association. These actions indicate that [r]espondents
sought to thwart, not assist, [c]omplainant's return to
work."
The hearing officer also concluded that overtime could have been
waived "in [c]omplainant's situation without causing any undue
hardship to [Tufts] or to [c]omplainant's co-workers."
17Though the hearing officer made no explicit finding on
the question whether the ability to work overtime is an
essential function, she expressed skepticism about the
importance Tufts placed on its ability to require overtime when
necessary. Among other things, the hearing officer observed
that, though the CBA authorized Tufts to require overtime work,
the agreement did not require the imposition of overtime. She
also noted the number of nurses, including the nurse hired on
PG5N instead of Dalexis in the fall of 2009, who worked little
or no overtime in fiscal year 2009.
13
that the hearing officer erred by failing to conclude that
overtime work was an essential function of an inpatient nursing
position. On that issue, the commission concluded that the
hearing officer made an implicit determination that working
overtime was not an essential function of the position and
expressed its agreement with that conclusion, stating its view
that the factual findings on which that conclusion was based
were supported by substantial evidence. The commission went on
to affirm the hearing officer's decision in its entirety. A
judge of the Superior Court affirmed the commission's decision.
This appeal followed.
Discussion. "For the purpose of judicial review, 'the
Decision of the Full Commission . . . shall constitute the Final
Order of the Commission.'" Temple Emanuel of Newton v.
Massachusetts Comm'n Against Discrimination, 463 Mass. 472, 479
(2012), quoting 804 Code Mass. Regs. § 1.24(1) (1999). In our
review of the commission's decision, we accept the hearing
officer's conclusions and factual findings (and the reasonable
inferences drawn therefrom) as long as they are supported by
substantial evidence and are free from error of law. See
Massasoit Indus. Corp. v. Massachusetts Comm'n Against
Discrimination, 91 Mass. App. Ct. 208, 210 (2017). See also
G. L. c. 30A, § 14 (7); G. L. c. 151B, § 6. Substantial
evidence is "such evidence as a reasonable mind might accept as
14
adequate to support a conclusion." G. L. c. 30A, § 1 (6). We
give deference to the commission's findings where the evidence
is conflicting, in light of the agency's "experience, technical
competence, and specialized knowledge . . . , as well as the
discretionary authority conferred on it." G. L. c. 30A,
§ 14 (7). See Ramsdell v. Western Mass. Bus Lines, Inc., 415
Mass. 673, 676 (1993); Smith College v. Massachusetts Comm'n
Against Discrimination, 376 Mass. 221, 224 (1978). A court
reviewing the decision of an administrative agency will not
substitute its judgment on a question of fact for that of the
agency. See Southern Worcester County Regional Vocational Sch.
Dist. v. Labor Relations Comm'n, 386 Mass. 414, 420-421 (1982).
See also Zoning Bd. of Appeals of Wellesley v. Housing Appeals
Comm., 385 Mass. 651, 657 (1982) (court may not displace
administrative choice between two fairly conflicting views, even
if court would justifiably have made a different choice had the
matter been before it de novo).
In its challenge to the commission's decision, Tufts does
not contest the finding that Dalexis was a "handicapped person"
within the meaning of G. L. c. 151B, § 1 (17) and (19), but
contends that her claim nonetheless fails because she was unable
to perform an essential function of the job of an inpatient
15
nurse: to work overtime when required.18 See G. L. c. 151B,
§ 1 (16) (defining "qualified handicapped person" entitled to
bring claim under statute). In other words, Tufts contends that
the commission erred in concluding that overtime work was not an
essential function of the job.
Determining whether a particular job function is
"essential" for purposes of G. L. c. 151B "is intensely fact-
based and requires 'individualized inquiry and . . . appropriate
findings of fact.'" Cargill v. Harvard Univ., 60 Mass. App. Ct.
585, 587 (2004), quoting Cox v. New England Tel. & Tel. Co., 414
Mass. 375, 383 (1993). In Cargill, this court identified
several nonexclusive factors to consider in determining whether
a particular function is essential. They include (but are not
limited to):
"(i) The employer's judgment as to which functions are
18 Tufts further contends that it was not required to offer
Dalexis an accommodation that excused her performance of
overtime work, because under the law it is not required to
provide an accommodation that excuses performance of an
essential function. See Godfrey v. Globe Newspaper Co.,
457 Mass. 113, 124 (2010) ("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"); Massachusetts Commission Against Discrimination,
Guidelines: Employment Discrimination on the Basis of Handicap,
Chapter 151B, § II.B (1998) ("The law does not require an
employer to hire, promote or retain a handicapped person who
cannot perform the essential functions of the job"). Because we
discern no error in the commission's conclusion that overtime
work was not an essential function of the job of an inpatient
nurse, the factual premise for Tufts's argument necessarily
fails, and we need not address the argument further.
16
essential;
"(ii) Written job descriptions prepared before advertising
or interviewing applicants for the job;
"(iii) The amount of time spent on the job performing the
function;
"(iv) The consequences of not requiring the incumbent to
perform the function;
"(v) The terms of a collective bargaining agreement;
"(vi) The work experience of past incumbents in the job;
and/or
"(vii) The current work experience of incumbents in similar
jobs."
Cargill, supra at 596, quoting 29 C.F.R. § 1630.2(n)(3) (2003).
See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 823 n.13
(1997).
Cases involving the question whether overtime work (as
compared to a discrete physical task) is an essential function
pose a particular challenge in applying the analytical
framework; an employee may be capable of performing each and
every physical task required for the job and yet still be unable
to perform an essential function of the job if overtime work is
an essential function and she is unable to work overtime when
needed (indeed, that is precisely the question of the present
case). In theory, the need to require overtime is to some
extent subject to the control of the employer, since it depends
in part on the staffing complement assigned to each shift, and
17
an employer could (in theory at least) assign staff to each
shift in excess of ordinarily expected needs in order to provide
a cushion to absorb temporary surges in demand. In reality,
however (and setting aside the additional cost of routinely
carrying staffing capacity that exceeds expected needs), in many
settings the need for overtime on any particular occasion is
subject to any number of unpredictable factors.
In the present case, in explaining its conclusion that
working overtime is not an essential function of the job of an
inpatient nurse, the commission emphasized the hearing officer's
findings that the CBA does not mandate overtime, and that, while
many nurses in fact worked overtime, some nurses performed as
little as three hours of overtime during a full year, and more
than five percent of Tufts nurses worked no overtime at all.19
And the commission noted that Dalexis herself was granted an
accommodation in 2008, exempting her from working overtime. In
the view of the commission, "[t]he totality of these specific
facts, all of which are supported by substantial evidence in the
record, support the Hearing Officer's conclusion that overtime
was not an essential function of an inpatient nursing job at
Tufts."
19As the motion judge observed, "[d]espite her medical
condition, Dalexis could have worked as a nurse at Tufts and
been included in that group of five percent of nurses who
performed no overtime at all."
18
We are aware that a number of cases, arising in a variety
of different settings, have concluded that overtime can be an
essential function of a job. See, e.g., McNeil v. Union Pac.
R.R., 936 F.3d 786, 790-791 (8th Cir. 2019) (critical call
center dispatcher at railroad company); Davis v. Florida Power &
Light Co., 205 F.3d 1301, 1305-1306 (11th Cir.), cert. denied,
531 U.S. 927 (2000) (position requiring time-sensitive
connecting and disconnecting of customers' electric service for
utility company); Tardie v. Rehabilitation Hosp. of R.I., 168
F.3d 538, 543-544 (1st Cir. 1999) (human resources director at
hospital). However, the fact that overtime has been found to be
an essential function in certain settings does not compel the
conclusion that it is an essential function in the circumstances
of the present case.20 Moreover, even if, left to our own
20Indeed, the cases cited by Tufts are readily
distinguishable from the present case. For example, in Godfrey,
457 Mass. at 121, the plaintiff admitted during the summary
judgment proceedings that the key function was essential. See
Rule 9A(b)(5) of the Rules of the Superior Court (2018). In
Cox, 414 Mass. at 376, working conditions were such that Cox
(and each splice service technician like him) had to be able to
climb a certain type of telephone poll safely, and he had twice
failed the pole-climbing test. In Davis, 205 F.3d at 1303, the
employee agreed on his job application to work overtime as a
condition of employment; the CBA expressly granted the employer
the right to require mandatory overtime, and provided that the
employer had to offer voluntary overtime to the most-senior to
least-senior employees; and if more overtime was needed,
mandatory overtime was imposed on the most junior employees
first. McNeil, 936 F.3d at 788, 790, also involved mandatory
overtime policies and a plaintiff who could never perform
overtime under any circumstances. Tardie was decided under the
19
analysis, we might conclude that overtime was an essential
function of the job of an inpatient nurse at Tufts, it is not
for us to substitute our judgment for that of the commission.
See Southern Worcester County Regional Vocational Sch. Dist.,
386 Mass. at 420; Zoning Bd. of Appeals of Wellesley, 385 Mass.
at 657.
Tufts's contention that the commission and the motion judge
erred as a matter of law is likewise misplaced. While it is
true that a task may be an essential function even if its
performance is required rarely or only in an emergency, see Cox,
414 Mass. at 386-387, the evidence in the present case supported
the commission's conclusion that Tufts could meet the needs of
patient care without requiring Dalexis to work overtime. The
commission's rejection of Tufts's arguments to the contrary was
based on the assessment of the credibility and the weight of the
evidence, rather than an erroneous application of the law.21
In the present case, the commission applied correct legal
FMLA, which has very different language from G. L. c. 151B, see
168 F.3d at 544 ("it is not at all clear that the concept of
'reasonable accommodation' is applicable in the FMLA context"),
and also is inapplicable because only one person performed the
employee's job and the job itself required more than forty hours
a week.
21The same may be said about Tufts's challenges to the
commission's determinations that Tufts had failed to engage in
an appropriate interactive dialogue and had constructively
discharged Dalexis.
20
principles to the hearing officer's findings of fact in
evaluating Tufts's claim that overtime work was an essential
function of the job of an inpatient nurse. Though Tufts argues
strenuously that the commission reached an incorrect conclusion,
under the deferential standard we apply to our review of the
commission's decision, we discern no cause to disturb the
judgment of the Superior Court affirming the commission's
decision.
In her brief, Dalexis has requested an award of reasonable
appellate attorney's fees and costs, pursuant to G. L. c. 151B,
§ 9, and, as the prevailing party, she is entitled to such an
award. See Haddad v. Wal-Mart Stores, Inc. (No. 2), 455 Mass.
1024, 1024-1025 (2010). Dalexis shall within fifteen days
following this decision file with this court and serve on Tufts
a motion for determination of the amount of her reasonable
attorney's fees and costs incurred on appeal, supported by an
affidavit detailing such fees and costs, in accordance with the
procedure described in Fabre v. Walton, 441 Mass. 9, 10-11
(2004). Tufts may, within fifteen days thereafter, file with
this court and serve on Dalexis any opposition to the amount of
fees and costs so claimed.
Judgment affirmed.
HENRY, J. (concurring). I fully agree with and join in the
majority opinion. I write separately because I disagree with
some assertions by my learned dissenting colleague and because I
believe we could affirm on a separate and independent basis:
under G. L. c. 151B, even if overtime were an essential function
of a job, elimination of a forced overtime requirement could
still be a reasonable accommodation based on the record in this
case.
First, the dissent's premise that the hearing officer did
not address Tufts Medical Center's (Tufts's) evidence is belied
by the record. The hearing officer's findings acknowledge that
Tufts maintained that "the ability to work overtime" was an
essential function of a registered nurse at Tufts. The hearing
officer simply did not credit Tufts's position.
The dissent notes that Tufts's chief nursing officer
testified that overtime work is "often" required to meet the
demands of patient care. Post at . That is a far cry from
testifying that that ability to work overtime is an essential
function. In any event, the hearing officer weighed that
testimony and Tufts's additional evidence on the point against
other evidence and found Tufts's claim lacking. The hearing
officer found that the written job description and job postings
-- the employer's own statements of what it considers the
essential aspects of the position -- did "not specify that
2
overtime is a job requirement although [the job description]
[did] state that [registered nurses] are 'subjected to irregular
work hours' as a working condition." She reviewed the
collective bargaining agreement (CBA) and found that it
"permit[ted] the [h]ospital to impose overtime but [did] not
require that it impose overtime." She reviewed Tufts's
empirical evidence of overtime work at Tufts in different ways.
For example, she analyzed what percentage of inpatient nurses
performed no overtime at all (5.33 percent) and the variance in
the amount of overtime actually worked (it could be as little as
three hours for the entire year or substantially more); and she
noted that only fifty-seven percent worked more than forty hours
per week, including overtime.
The hearing officer also expressly credited Marie Lunie
Dalexis's testimony that in her seven years on the job she was
never forced to work overtime and that Dalexis, as charge nurse,
never forced anyone else to work overtime. And Tufts presented
no evidence that a nurse was ever mandated or forced to work
overtime. The hearing officer expressly discredited nurse
manager Alyson Shea's testimony that Dalexis worked nights and
overtime under her supervision. Indeed, the hearing officer
expressly discredited evidence from each of Tufts's percipient
3
witnesses and decision makers.1 At bottom, Tufts offered lay
witness testimony of what is an "essential function" of this
nursing job without a definition -- legal or otherwise -- and
without evaluating whether that testimony is consistent with our
antidiscrimination law. Ability to work overtime in the
abstract does not meet the legal test of what constitutes an
essential function under G. L. c. 151B.
The hearing officer found that "[t]he evidence also refutes
the assertion that overtime is a universal practice at Tufts
Medical Center." This was full consideration of Tufts's
evidence that the dissent contends did not occur and an implicit
rejection of Tufts's evidence that working overtime was an
essential function of the job. The hearing officer acted within
her authority to reject Tufts's position.2
1 This in no way indicates that the hearing officer's
findings were one-sided. For example, Dr. Charles Sodikoff
testified as an expert witness for Tufts, and the hearing
officer concurred with his opinion that Dalexis's postdischarge
job search lacked diligence.
2 The outcome here is consistent with the Legislature's
subsequent enactment of a statutory limitation on mandatory
nurse overtime, see G. L. c. 111, § 226, inserted by St. 2012,
c. 224, § 103, which expressly limits the imposition of
mandatory overtime to emergency situations "where the safety of
the patient requires its use" and "there is no reasonable
alternative." G. L. c. 111, § 226 (b). Nursing shortages are a
public health risk, and it is foolhardy to discard a handicapped
person such as Dalexis, who could perform every nursing task
full-time. To the extent the dissent or Tufts would have us
hold that a handicapped person cannot be a qualified handicapped
person under G. L. c. 151B because we might have another event
4
Second, the dissent's contention that "employers define the
functions and requirements of the jobs for which they hire,"
post at , especially misses the mark in this case because
this employment relationship is governed by a CBA. In other
words, the working conditions here were bargained for by the
employees, not imposed by the employer. Our analysis in Cargill
expressly endorses consideration of "[t]he terms of a collective
bargaining agreement." Cargill v. Harvard Univ., 60 Mass. App.
Ct. 585, 596 (2004), quoting 29 C.F.R. § 1630.2(n)(3) (2003).
Third, the dissent cites Federal cases to state incorrectly
that the "employer's judgment" of what job functions are
essential is entitled to "substantial weight." Post at .
This is not Massachusetts law. Rather, the employer's view of
what is an essential function is one factor among several and it
is tested against "the actual functioning and circumstances of
the particular enterprise involved" (citation omitted). Cox v.
New England Tel. & Tel. Co., 414 Mass. 375, 384 (1993). The
Supreme Judicial Court reiterated this point in Labonte v.
Hutchins & Wheeler, 424 Mass. 813, 822-823 (1997):
"The law firm claims that whether a certain function is an
on par with the Boston Marathon bombing, post at , that is
not consistent with the remedial purpose of the statute, it is
not consistent with the hearing officer's finding that Dalexis
would stay with her patients in an emergency, and it is not
consistent with the reality that in a true emergency, on-duty,
and even off-duty, medical providers pitch in heroically to
their physical limits for the benefit of society.
5
'essential function' is solely the employer's judgment.
That judgment is tested by relevant guidelines such as the
work experience of previous incumbents and the current work
experience of incumbents in the same or similar jobs. See
Cox, supra at 383-384 ('essential function' determined by
more than an employer's job description). See also Hall v.
United States Postal Serv., 857 F.2d 1073, 1079-1080 (6th
Cir. 1988) (stating that an employer's job description not
sole factor determining whether function is essential)."
To test the employer's judgment, Labonte lists what the majority
here calls the "nonexclusive factors." Ante at . See
Labonte, supra at 823 n.13.
In fact, this court in Cargill, 60 Mass. App. Ct. at 600
n.14, rejected the assertion that the employer's judgment of
what is an essential function is entitled to deference.
Specifically, we stated:
"[The employer] asserts that 'deference must be given to
[the employer]'s judgment concerning the essential
functions of the position' (emphasis added). However, in
Labonte v. Hutchins & Wheeler, 424 Mass. 813 [(1997)], the
Supreme Judicial Court rejected the contention that whether
a job function is essential 'is solely the employer's
judgment.' Id. at 822. Accord Ward v. Massachusetts
Health Research Inst., Inc., 209 F.3d [29,] 34 [(1st Cir.
2000)] ('While we generally give substantial weight to the
employer's view of job requirements in the absence of
evidence of discriminatory animus, it is only one factor in
the analysis' [citations omitted])."
Id. The dissent is wrong in asserting that "the employer's
judgment is entitled to 'substantial weight' in the essential
functional analysis." Post at . Reading that "accord"
citation to incorporate the Federal "substantial weight"
standard into Massachusetts law would ignore Cargill and
6
subsequent Massachusetts decisions. For example, a year later,
in analyzing the essential job functions of a particular job, we
recognized that consistent with Massachusetts law, "[t]he
employer's judgment as to which functions are essential is a
factor to be considered, but it is not controlling and is to be
tested against other benchmarks . . . ." Smith v. Bell Atl.,
63 Mass. App. Ct. 702, 712 (2005).
Good reason exists for not affording the employer's
judgment or even its description of the job "substantial
weight." The law protects "handicapped persons" from
"deprivations based on prejudice, stereotypes, or unfounded
fear, while giving appropriate weight to such legitimate
concerns of [employers] as avoiding exposing others to
significant health and safety risks" (emphasis added; citation
omitted). Cox, 414 Mass. at 384.
In other words, the employer's judgment is considered,
which of course it should be, and is tested to ensure that it is
not tainted by invidious discrimination.
Fourth, to the extent the dissent or Tufts or any party
relies on Federal case law, we need to be mindful that the
Supreme Judicial Court has often "interpret[ed] G. L. c. 151B to
provide more protection against employment discrimination than
Title VII [of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e-2(a)(1)], in part because of the Legislature's
7
direction that c. 151B is to be applied liberally." Yee v.
Massachusetts State Police, 481 Mass. 290, 299 (2019). See,
e.g., Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456,
465 (2017) ("The fact that the employee's possession of medical
marijuana is in violation of Federal law does not make it per se
unreasonable as an accommodation" under G. L. c. 151B); Dahill
v. Police Dep't of Boston, 434 Mass. 233, 240-243 (2001)
(defining "handicapped person" more broadly under c. 151B than
Americans with Disabilities Act [ADA] due to, among other
factors, "two critical" differences between statutes, and
concluding that "it is not appropriate to follow the Federal
jurisprudence in this case").
Fifth, Tufts expressly argues that the burden was on the
employee to prove that overtime was not an essential function of
the inpatient nursing position. While the employee bears the
burden of proving that the employee is capable of performing the
essential functions of a job, see Dahill, 434 Mass. at 243, our
case law has not addressed which party bears the burden of
proving a function is essential. In my opinion, placing the
burden of proof on the employer, who has better access to the
relevant evidence, would be consistent with the remedial purpose
of the statute. See Cargill, 60 Mass. App. Ct. at 603 (noting
statute's "remedial purpose of preserving the employment status
of a qualified handicapped person by making reasonable
8
accommodations"). This is what the United States Court of
Appeals for the First Circuit has decided. See Ward v.
Massachusetts Health Research Inst., Inc., 209 F.3d 29, 35 (1st
Cir. 2000) ("the defendant [employer], who has better access to
the relevant evidence, should bear the burden of proving that a
given job function is an essential function"). In future cases,
when the question of the essential functions of a job is in
dispute, litigants should consider briefing who has the burden
of proof.
Sixth, even if overtime were an essential function of the
inpatient nursing job, I would still affirm on the basis that
elimination of forced overtime can be a reasonable accommodation
under G. L. c. 151B, where the employee can perform every task
the job requires and elimination of the overtime requirement
would not cause the employer an undue hardship. See G. L.
c. 151B, § 4 (16).
The implication of the dissent and Tufts's argument is that
if overtime is an essential job function, that is the end of the
matter. They contend that the employer does not have to offer a
reasonable accommodation even when it would not cause the
employer undue burden. This would be contrary to the plain
language and spirit of G. L. c. 151B and our cases.
General Laws c. 151B, § 1 (16), provides: "The term
'qualified handicapped person' means a handicapped person who is
9
capable of performing the essential functions of a particular
job, or who would be capable of performing the essential
functions of a particular job with reasonable accommodation to
[their] handicap" (emphasis added). According to the plain
language of this statute, an employer can be required to provide
an employee with a reasonable accommodation to allow that
employee to perform an essential function of a particular job.
See Lipchitz v. Raytheon Co., 434 Mass. 493, 505 (2001)
(applying plain language canon to G. L. c. 151B, § 4). Numerous
cases underscore the point. For example, in Cox, the court
wrote, "[w]hen a handicapped person is not able to perform the
essential functions of the job, the court must also consider
whether any 'reasonable accommodation' by the employer would
enable the handicapped person to perform those functions." Cox,
414 Mass. at 383. Of course there is a limit: "Reasonable
accommodation does not require an employer to disregard or waive
an employee's inability to perform an essential function of the
job." Id.As the court explained in Godfrey v. Globe Newspaper Co.,
457 Mass. 113, 119 (2010): "[a] 'qualified handicapped person'
is entitled to a 'reasonable accommodation' that will enable
[them] to perform the essential functions of [their] job, so
long as the accommodation does not place an undue burden or
hardship on the employer." After the court determined that a
10
particular function was an essential function, the court
analyzed whether a reasonable accommodation was possible. Id.
at 121-122. Similarly, in Barbuto, 477 Mass. at 464, the court
held that "[a] qualified handicapped employee has a right under
G. L. c. 151B, § 4 (16), not to be fired because of [their]
handicap, and that right includes the right to require an
employer to make a reasonable accommodation for [their] handicap
to enable [them] to perform the essential functions of [their]
job."
Indeed, that is precisely what this court held in Cargill.
There, a lead reference librarian employed by a university
suffered from rheumatoid arthritis. The issue was whether it
was essential that she perform two physical tasks:
paging/retrieval and shelving of "sometimes quite heavy" books.
Cargill, 60 Mass. App. Ct. at 587. On our review of a summary
judgment for the employer, we held that "the record present[ed]
significant and genuine issues of disputed material fact, both
as to [1] whether paging/retrieval and shelving constitute
essential functions of the reference librarian job and, [2] if
so, whether a reasonable accommodation could have been tailored
without undue hardship to [the employer]." Id. at 588. We
specifically held that even if the two physical tasks were
essential functions, "the inquiry does not end there," id. at
603, because the employee "offered sufficient evidence to make a
11
facial showing that a reasonable accommodation was possible,
including, but not limited to, utilization of the available
student workers and part-time staff employees, and the use of
shelving carts," id. at 604. Accordingly, we reversed an award
of summary judgment to the university employer. In other words,
even an essential function of the job can be subject to a
reasonable accommodation, including that someone else do the
task if it would not put an undue burden on the employer. This
was consistent with the plain language of the statute.
Cases involving the question whether overtime work is an
essential function do not fit neatly into the established
rubric. In an overtime case, as here, the employee is capable
of performing each and every physical and mental task required
for the job. When the court stated in Cox that a "[r]easonable
accommodation does not require an employer to disregard or waive
an employee's inability to perform an essential function of the
job," Cox, 414 Mass. at 383, that statement was in the context
of whether the employee expressly possessed a skill (i.e., was
"able") or could perform a task -- safely climbing a particular
type of telephone pole. See id. In addition, Cox based this
statement on its finding that "the Federal law is clear, and
there is no reason to construe the Commonwealth's law
differently." Id. at 390. However, as already explained supra,
since Cox, the first disability discrimination case decided
12
under G. L. c. 151B, § 4 (16), by our highest court, the Supreme
Judicial Court has often departed from the Federal cases to
require greater protections under c. 151B than the Federal law
requires, and a split in the circuits has developed on the
question of schedule accommodations.3 Similarly, when the court
in Godfrey ruled that "[n]either 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," Godfrey, 457 Mass. at 124, the employee was not physically
able to perform what he admitted was an essential task --
3 The First Circuit addressed a split in the circuits on the
same issue:
"Our inquiry is somewhat complicated by the
interrelationship between the terms 'essential function'
and 'reasonable accommodation.' . . . Particularly with
attendance cases -- as opposed to a simpler case where, for
instance, a disabled employee needs to sit rather than
stand to perform the essential functions of a job -- it is
difficult to separate the analysis in this manner, and as a
result courts vary in their treatment of attendance
problems in the ADA context. Some courts focus on whether
a fixed schedule is an essential requirement for the
specific job and end the analysis there. . . . Some courts
conclude that a fixed schedule is essential but move on to
consider whether there is an effective reasonable
accommodation. . . . And others confine the attendance
issue to whether a modified schedule is a reasonable
accommodation to perform the essential functions of the
job."
Ward, 209 F.3d at 33-34. Because the First Circuit concluded
that the function was not essential, it did not have to address
the circuit split.
13
climbing on the printing presses.
The question in an overtime case is different. In a small
workplace, it might be untenably burdensome on the employer and
other employees if the disabled person is excused from overtime.
Yet, elimination of overtime for one worker might impose a de
minimis burden or no burden at all in a larger workplace, such
as Tufts.4 Moreover, the agency guidelines expressly mention
"modifying work schedules" as a reasonable accommodation.
Massachusetts Commission Against Discrimination, Guidelines:
Employment Discrimination on the Basis of Handicap, Chapter
151B, § II.C (1998).5 See ADA, 42 U.S.C. § 12111(9)(B)
("'reasonable accommodation' may include . . . job
restructuring, part-time or modified work schedules").
Here, Dalexis was a disabled person who possessed all of
the skills and could perform all of the tasks required of a
Tufts nurse for forty hours a week on an irregular day-rotator
4 As the majority acknowledges, the need to require overtime
is to some extent subject to the control of the employer, who
may staff leanly or robustly for variable capacity. For
example, the employer may maintain a float pool, as this
employer does. Also, the impact of overtime can vary depending
on whether overtime is offered on a seniority basis and
mandatory overtime is imposed on a reverse seniority basis.
5 "[W]e give 'substantial deference' to the guidelines
interpreting G. L. c. 151B promulgated by the [Massachusetts
Commission Against Discrimination], although we recognize that
the guidelines do not carry the force of law." Gannon v.
Boston, 476 Mass. 786, 792 (2017).
14
shift with day and evening work. She is not seeking what
Godfrey condemned –- that the employer create a different
position.6 Even if Godfrey and Cox are controlling on a schedule
issue and not just a physical task, when applied in the context
of overtime where scores of other employees could work overtime
and where some affirmatively want to work overtime, those cases
are inconsistent with the plain language of c. 151B and should
be limited accordingly.
The hearing officer expressly found based on "the unique
facts of this case," that "elimination of an overtime
requirement" in Dalexis's schedule was a reasonable
6 The other cases Godfrey cites are similarly
distinguishable. In Russell v. Cooley Dickinson Hosp., Inc.,
437 Mass. 443, 454 (2002), the plaintiff could not physically
perform the computer tasks that were the essential functions of
the position. The Russell case also is distinguishable because
the employer did provide reasonable accommodations as to certain
aspects of the job, just not indefinite leave or transferring
the employee to a different department, and the plaintiff,
unlike Dalexis, never sought to return to her original job ("the
position involved" for purposes of G. L. c. 151B, § 4 [16]),
with accommodation. Russell, supra. In Beal v. Selectmen of
Hingham, 419 Mass. 535, 542 (1995), the court concluded "the
plaintiff has failed to demonstrate that she is capable of
performing the essential functions required of a police officer"
because she could not fulfill the "fundamental duty" of
"protect[ing] the public at large," and her "capacity for
fulfilling th[ose] duties . . . would not be enhanced by any
reasonable accommodation." Among other things, due to her
disabilities, "she [was] at risk for blackouts in high-stress
situations." Id. The employees in these cases could not
perform their jobs. Dalexis, in contrast, could perform the
inpatient nurse job, even with irregular hours. She just could
not perform overtime (absent a true emergency) when many, many
others could.
15
accommodation that did not impose an undue hardship on Tufts.
This determination was well grounded in the record, which
established that (1) Tufts had a large pool of inpatient nurses
from which it could obtain nurses to work overtime; (2) some
nurses preferred overtime and night-shift work and sought it out
in order to earn money and to be relieved of work obligations
during the day; (3) Tufts also had "per diems" and "floaters" to
cover nursing absences; (4) five percent of nurses did not work
any overtime in fiscal year 2009; (5) day-evening rotating
nursing schedules existed at Tufts, and Dalexis was available to
work these shifts; (6) Dalexis assured Tufts that if an
emergency were to occur requiring her to stay past her normal
hours, she would work overtime because she would never abandon a
patient; and (7) the CBA did not mandate the imposition of
overtime, thereby rendering the accommodation unreasonable.
Even Tufts concedes that those who worked overtime averaged less
than one hour of overtime per week. Modifying Dalexis's
overtime schedule would have accommodated her disability and
fulfilled the purpose G. L. c. 151B was enacted to achieve
without placing an undue burden on Tufts's ability to run a
well-staffed hospital.
Legislative intent is paramount. The goal of G. L. c. 151B
is to "protect[] handicapped individuals from deprivations"
based on invidious discrimination. Cox, 414 Mass. at 383-384.
16
It defies all reason to interpret c. 151B to provide that if a
reasonable accommodation that would not create an undue hardship
on the employer is available, the employer can lawfully
discharge the disabled employee. That would be inconsistent
with the plain language and remedial purpose of c. 151B, which
the Legislature has directed "shall be construed liberally."
G. L. c. 151B, § 9. This is a separate basis to affirm.
ENGLANDER, J. (dissenting). Throughout this case, Tufts
Medical Center's (Tufts's) position has been that its inpatient
nurses must be able to work overtime if circumstances require it
-- that is, the ability to work overtime is an essential
function of the inpatient nursing position. The plaintiff,
Marie Dalexis, informed Tufts that she did not have that
ability. She told Tufts this in December of 2009, via a
doctor's note explaining that she "cannot work overtime." And
she confirmed the restriction in May of 2010, during the
grievance process. Because Dalexis was not able to work
overtime, the critical issue before the Massachusetts Commission
Against Discrimination (commission) hearing officer was the
following: is the ability to work overtime an essential
function of the inpatient nursing job at Tufts? Although she
ruled for Dalexis, the hearing officer did not make a finding on
this issue. Indeed, the hearing officer did not even address
some of the most important evidence bearing on the question.
And although the commission concluded that such a finding was
"implicit," it too failed to address the important evidence
bearing on the question. In my view, those failures require a
remand for further proceedings.
Under the case law, the question whether a job function is
"essential" is answered by applying a multifactor test. See
Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 595-596 (2004).
2
The first listed factor is "[t]he employer's judgment as to
which functions are essential." Id. at 596. The importance of
this factor is hardly surprising; employers define the functions
and requirements of the jobs for which they hire, and thus
courts must of course consult the employer's own views as to
what functions are essential. Accordingly, although not
dispositive, the employer's judgment is entitled to "substantial
weight" in the essential function analysis. See id. at 600
n.14.1 See also Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st
Cir. 2006) ("[i]n the absence of evidence of discriminatory
animus, 'we generally give substantial weight to the employer's
view of job requirements'" [citation omitted]); Ward v.
Massachusetts Health Research Inst., Inc., 209 F.3d 29, 34 (1st
Cir. 2000) (same).2 As the United States Court of Appeals for
the First Circuit put it, the essential function inquiry "is not
1 The concurrence misreads Cargill as holding that the
employer's judgment is not entitled to substantial weight. All
Cargill says is that the employer's stated position as to
essential job functions cannot be dispositive -- in other words,
the employer's judgment "is not controlling and is to be tested
against other benchmarks." Smith v. Bell Atl., 63 Mass. App.
Ct. 702, 712 (2005). Cargill cites and quotes approvingly,
however, to the "substantial weight" formulation in the Federal
cases. See Cargill, 60 Mass. App. Ct. at 600 n.14.
2 "We look to the Federal cases decided under the [Americans
with Disabilities Act] as a guide to the interpretation of G. L.
c. 151B." Russell v. Cooley Dickinson Hosp., Inc., 437 Mass.
443, 451 n.6 (2002). See Cargill, 60 Mass. App. Ct. at 595
("Federal courts define 'essential functions' along similar
lines" to commission guidelines).
3
intended to second guess the employer or to require the employer
to lower company standards" (citation omitted). Mulloy, supra.Here, Tufts maintained that the ability to work overtime is
essential to ensure that at all times -- through snowstorms,
emergencies, and (as we now know) pandemics -- Tufts had
sufficient nurses in the building to meet "the vital and
unpredictable demands of patient care." Tufts introduced
evidence to that effect before the hearing officer -- that is,
evidence of its own judgment as to job essentials. Tufts's
chief nursing officer and senior vice-president of patient care
services testified that all nurses were required to be available
to work overtime, most nurses did in fact work overtime, and no
nurse received a permanent "exception" from the overtime
requirement. The chief nursing officer also explained that
despite having a system in place to minimize overtime work, such
work is "often" required to meet the demands of patient care.
As an example, a Tufts nurse manager cited the Boston Marathon
bombings, when unexpected demands for patient care required all
available staff to remain on shift to meet patient needs.
Dalexis herself acknowledged that it is "fundamentally
important" -- and also that it was her ethical obligation as a
nurse -- to stay on the job until she is relieved if patient
4
care necessitates it.3 This evidence, if credited, supports that
the ability to work overtime is an essential function of an
inpatient nurse at Tufts.4
The hearing officer, however, did not address this evidence
concerning Tufts's judgment, nor did she actually find that the
ability to work overtime was not an essential job function. And
although the commission determined that the hearing officer
"implicitly" found that overtime was not an essential function,
the commission did not directly address Tufts's evidence either,
nor did it address the very first factor in the analysis it was
supposed to apply. See Doe, Sex Offender Registry Bd. No. 11204
3 The hearing officer accorded great weight to Dalexis's
testimony that in her own experience, "no such emergencies" had
occurred, but such anecdotal evidence from a single employee
cannot bear the weight it was accorded, particularly where the
contrary evidence was not addressed.
4 I do not mean to suggest that the other factors listed in
Cargill are unimportant. Those factors also must be addressed,
although of course the factors are not all of equal weight, and
their significance will vary from case to case. In my view, the
commission's discussion of the other factors was also lacking
here. For example, the commission relies on the fact that in a
single fiscal year, 2009, five percent of the nurses did not
work overtime -- as if this shows that the ability to work
overtime is not essential. That logic is faulty. First of all,
the cases make clear that a function can be essential even if it
is rarely required. See Cox v. New England Tel. & Tel. Co., 414
Mass. 375, 386-388 & n.4 (1993) (gaff climbing essential
function of job even if rarely performed in particular area).
And second, what the data showed is that overtime is
commonplace; the fact that one in twenty nurses did not work
overtime in a particular year hardly demonstrates that Tufts can
forgo a nurse's ability to do so, in a pinch.
5
v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 575 (2020)
("[t]roublesome facts . . . are to be faced rather than ignored"
by agency decision makers [citation omitted]). For example, the
commission's analysis failed even to discuss Tufts's evidence
that exempting a nurse from overtime would risk patient care.
Where the commission ruled that the ability to work overtime was
not an essential job function, but neither the hearing officer
nor the commission addressed a critical factor in the analysis
or some of the most important evidence directed thereto, the
decision is erroneous as a matter of law. See Uvello v.
Director of the Div. of Employment Sec., 396 Mass. 812, 815-817
(1986) (remand required where agency failed to make findings "on
all material issues"). Unlike the majority, I cannot infer the
required finding from discussions that do not address the issue.
In my view, a remand is required. I therefore respectfully
dissent.5
5 The concurrence devotes several pages to arguing that even
if Tufts showed that the ability to work overtime was an
essential job function, the judgment here could still be
affirmed because "elimination of forced overtime can be a
reasonable accommodation." Ante at . Put differently, the
concurrence's position is that even if Dalexis could not perform
all the essential job functions (because she could not work
overtime), she should nevertheless be deemed "qualified" for the
job under G. L. c. 151B, because some other employee could
perform that function as a reasonable accommodation. The
position the concurrence advances finds no support in the
statutory language, or the case law. As the majority opinion
notes, ante at , it is unquestionably the law that to be a
"qualified handicapped person," the employee must be personally
6
capable of performing all essential job functions. See Cox, 414
Mass. at 390 ("the Federal law is clear, and there is no reason
to construe the Commonwealth's law differently, that reasonable
accommodation does not include waiving or excusing an inability
to perform an essential job function"). This includes the
ability to work at particular times, if that ability is
essential to the job. See, e.g., McNeil v. Union Pac. R.R., 936
F.3d 786, 790-791 (8th Cir. 2019); Laurin v. Providence Hosp.,
150 F.3d 52, 60-61 (1st Cir. 1998). Nothing in the First
Circuit's decision in Ward, 209 F.3d 29, or the cases cited in
Ward, is to the contrary.