142 F. Supp.2d 161 (2001) | Cited 0 times | D. Massachusetts | May 14, 2001


(Docket Nos. 20, 23 and 26)


Plaintiff Marilyn Barry ("Barry") has sued Wing MemorialHospital ("Hospital") for violation of the Family and MedicalLeave Act, 29 U.S.C. § 2614 ("FMLA"), and the MassachusettsAnti-discrimination Statute, Mass. Gen. Laws ch. 151B § 4(16)("chapter 151B"). Before this court are the parties' crossmotions for summary judgment and Barry's motion to amend hercomplaint. The Hospital's motion for summary judgment will beallowed in full. Barry's motions for summary judgment and toamend her complaint will be denied.


Summary judgment is proper where "the pleadings, depositions,answers to interrogatories, and admissions on file, together withaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to judgmentas a matter of law." FED.R.CIV.P. 56(c). A "genuine" issue is onethat reasonably could be resolved in favor of either party, and a"material" fact is one that affects the outcome of the suit undergoverning law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing themotion, the court views all the evidence in the light mostfavorable to thenonmoving party, "drawing all reasonable inferences in thatparty's favor." Thomas v. Eastman Kodak Co., 183 F.3d 38, 42(1st Cir. 1999), cert. denied, 528 U.S. 1161, 120 S.Ct. 1174,145 L.Ed.2d 1082 (2000).1


Marilyn Barry began working at Wing Memorial Hospital as amedical librarian in 1975. In 1984, she became Director of PublicRelations, Marketing and Development for the Hospital. Shereported directly to the Hospital's President and Chief ExecutiveOfficer, Richard Scheffer ("Scheffer").

In the fall of 1995, Barry began to experience mental andemotional difficulties. Her marriage was failing and she sufferedfrom family and work related stress. As part of an effort toaddress these difficulties, Barry was placed on antidepressantsin March 1996. She was referred to Susan James, a licensedclinical social worker, and began counseling that May.

Unfortunately, Barry's condition thereafter worsened. Duringthe spring and summer of 1996 she began exhibiting symptoms ofserious depression; she lost her ability to concentrate, felthelpless and despondent, and had moments of suicidal ideation. Inaddition, she began to have difficulties at work. She felt thatScheffer had been unjustly critical of her and that their workingrelationship was deteriorating. By September 30, 1996, she washospitalized and began medical leave for what was later diagnosedas major depression.

The Hospital determined that Barry was entitled to a leave ofabsence under the FMLA and sent her an FMLA certification form.On October 10, 1996, Barry's Psychiatrist, Dr. Edward Ballis,returned the form, stating that since the September 30, 1996hospitalization, Barry had been unable to perform work of anykind.

On October 10, 1996, Barry was released from the hospital, butwas not cleared to return to work until later that month. OnOctober 23, however, Dr. Ballis informed the Hospital thatBarry's return date had been postponed; she would not be able togo back to work until sometime in November.

During Barry's leave, Scheffer decided that Barry's position atthe Hospital needed restructuring. In a letter dated October 28,1996 ("the letter"), Scheffer informed Barry that, in an effortto "consolidate roles and responsibilities and save moneywherever possible," the hospital would be eliminating herposition of Public Relations Director. Pl.'s Mot. forSumm. J., Dkt. No. 26, Ex. 11. Scheffer created the position of"Marketing Coordinator" as a replacement and offered thatposition to Barry. The letter stated that "although some of thefunctions may be similar to what you were doing prior to yourleave, there will no longer be any managerial functions orultimate responsibility." Id. In addition, the MarketingCoordinator position would require fewer hours. Finally, theletter stated that Barry need not notify Scheffer whether shewould accept the position at that time since the final jobdescription and salary needed to be discussed.

Following receipt of the letter, Barry's psychiatric conditiondeteriorated and she was re-hospitalized from November 11 throughNovember 27. Dr. Ballis and Susan James opined that Barry'ssecond hospitalization was a direct result of the letter fromScheffer.

Since her initial leave in September 1996 to the present time,Barry has not returned to work. She has never requested anyaccommodation and concedes that she has been incapable of workingsince her September 1996 medical leave. By September 2000,Barry's doctor still had not cleared her for work for anyemployer in any capacity. See Index of Docs. in Supp. of Def.'sStmt. of Undisputed Facts ("Barry Dep.") at 59-60.

After her hospitalization, Barry began applying for andreceiving various disability benefits, including long termdisability from the Hospital's insurance carrier, Social Securitydisability and worker's compensation from the Department ofIndustrial Accidents. On each of these applications, Barryindicated that she was permanently disabled and that herdisability began in late September 1996.

This lawsuit originated as a Massachusetts Commission AgainstDiscrimination ("MCAD") complaint filed on April 30, 1997, inwhich Barry alleged violations of Mass. Gen. Laws ch. 151B. Thecomplaint was dismissed on April 15, 1998. On October 27, 1999,plaintiff filed a complaint in Massachusetts Superior Courtalleging the chapter 151B violation and several common lawclaims. Barry moved to amend her complaint by eliminating thecommon law claims and adding a claim under the FMLA. The motionwas granted on March 14, 2000. The Hospital's petition to removethe complaint, alleging violations of chapter 151B and the FMLA,to this court was filed on March 20, 2000.


A. Violation of the Family and Medical Leave Act

Barry asserts that under the FMLA she had a right to berestored to either her prior position or a substantiallyequivalent position. According to Barry, the Hospital violatedthat right when it sent her the letter informing her that her jobhad been eliminated and the Marketing Coordinator positionestablished. The Hospital contends that the right to be restoredto the same or equivalent position is not triggered until aworker returns from leave. Since Barry never returned from herleave, she never had a right to be restored to the same orequivalent position.2 The Hospital has the better argument.Because Barry never returned from her FMLA leave, she cannotclaim that the Hospital violated her right to reinstatement.

The FMLA entitles an employee up to twelve weeks of leaveduring a twelve month period for "a serious health condition thatmakes the employee unable to perform the functions of theposition of such employee." 29 U.S.C. § 2612(1)(D). Any employeewho takes FMLA leave "shall be entitled, on return from suchleave — (A) to be restored by the employer to the [previous]position . . . or (B) to be restored to an equivalent positionwith equivalent employment benefits, pay, and other terms andconditions of employment." 29 U.S.C. § 2614(a)(1)(A), (B);Watkins v. J & S Oil Co., Inc., 164 F.3d 55, 59 (1st Cir.1998).

The First Circuit has described the FMLA as containing twodistinct types of rights. See, Hodgens v. Gen. Dynamics Corp.,144 F.3d 151 (1st Cir. 1998). The FMLA first creates certainsubstantive entitlements that the First Circuit described as"prescriptive" rights. Id. at 159. The FMLA also providescertain protections from discrimination known as "proscriptive"rights. Id. at 159-60. When prescriptive rights are incontroversy, "[t]he issue is simply whether the employer providedits employee the entitlements set forth in the FMLA — forexample, a twelve-week leave or reinstatement after taking amedical leave." Id. at 159. "Because the issue is the right toan entitlement, the employee is due the benefit if the statutoryrequirements are satisfied, regardless of the intent of theemployer." Id. With proscriptive rights, however, an employer'smotive is relevant "and the issue is whether the employer tookthe adverse action because of a prohibited reason or for alegitimate nondiscriminatory reason." Id. at 60.

Barry complains of a violation of her prescriptive rights underthe FMLA. She claims that she was entitled to return to the sameor equivalent position and that the Hospital failed to provideher with that entitlement. See Hodgens, 144 F.3d at 159 (citingentitlement to return to same or equivalent position as aprescriptive right created by the FMLA). Thus, the question hereis whether Barry has satisfied the statutory requirements toassert her right to reinstatement under the FMLA. See id. at159.

The FMLA requires that an employee who has taken leave underthe act be restored to the same or equivalent position "on returnfrom such leave." 29 U.S.C. § 2614(1). Although an employee neednot "show up on the employer's doorstep" in order to havequalified as returning from FMLA leave, Watkins, 164 F.3d at59, the employee must be able to return to her prior positionbefore she has a right to reinstatement. See id. at 60 (whetherplaintiff "had `returned from leave' . . . and was thereforeeligible for reinstatement" was disputed issue of fact left tothe jury); cf. 29 C.F.R. § 825.214(b) ("[i]f the employee isunable to perform an essential function of the position becauseof a physical or mental condition . . . the employee has no rightto restoration to another position under the FMLA"). In addition,courts have held that an employee has no right to reinstatementif she has not returned to work after her twelve weeks of FMLAleave have ended. See, Cehrs v. Northeast Ohio Alzheimer'sResearch Center, 155 F.3d 775, 784-785 (6th Cir. 1998)(termination of employee did not violate FMLA where employee wasunable to return to work after the twelve week leave period).

Here, Barry has not met the statutory requirement. It isundisputed that Barry is currently unable to work and has notbeen able to work since she began her FMLA leave. Herpsychiatrist, Dr. Ballis, has indicated that Barry is totallydisabled and unable to work in either her formerposition or any other position. Barry herself has applied forSocial Security benefits and worker's compensation and, on thoseapplications, stated that she is totally disabled. Since theundisputed evidence indicates that Barry is completely disabledand cannot return to work, she does not have a statutory right toreinstatement under the FMLA.

Barry's arguments in support of an FMLA violation under thesecircumstances are unavailing. Barry first argues that regardlessof whether she returned to work, the Marketing Coordinatorposition described in the letter was not substantially equivalentto her prior position and that, by sending the letter, theHospital violated the FMLA. This argument, however, ignores thefact that Barry's FMLA right to reinstatement would not have beentriggered until she returned to work. It is perhaps possiblethat the Marketing Coordinator position would not have met thecriteria for a substantially equivalent position. Yet, becauseBarry never returned to work, she cannot invoke the FMLA tochallenge the substance of the position change.

Similarly, Barry argues that the letter amounted to aconstructive discharge and precluded her from being able toreturn to work. Constructive discharge, however, "usuallydescribes harassment so severe and oppressive that staying on thejob while seeking redress is intolerable." Keeler v. PutnamFiduciary Trust Co., 238 F.3d 5, 10 (1st Cir. 2001). The lettermay have been insensitive given Barry's struggles, but it was notso insensitive that it prevented Barry from working while seekingher FMLA remedies. See id. (loss of responsibilities and staff,lower evaluations and elimination of bonuses do not amount toconstructive discharge.)

Finally, Barry argues that receipt of the letter was such anemotional blow that it caused her relapse and is the primaryreason she was not able to return to work. The thrust of thisargument is that but for the Hospital's decision to eliminateBarry's former position, she would have been able to recover. Asevidence, Barry states that she had been released from thehospital and was scheduled to return to work in November but,after receiving the letter, had to be re-hospitalized.

Assuming for the purposes of summary judgment that thisassertion is true, Barry still does not raise a claim cognizableunder the FMLA. The essence of her argument is that by sendingthe letter the Hospital either caused or contributed to herinjury. Barry may be able to pursue this theory in a claim underworker's compensation statutes or for negligence under sometheory perhaps of intentional infliction of emotionaldistress.3 The FMLA, however, does not address the cause ofan employee's injury. Instead, the FMLA entitles an employee totake a medical leave of absence and addresses an employee'srights upon return from leave. As a result, the fact that theletter may have caused plaintiff's relapse, if accepted as true,does not help her FMLA claim.

B. Violation of Mass. Gen. Laws ch. 151B

Barry claims that her right to return to work under the FMLA isa reasonableaccommodation she must be afforded under Mass. Gen. Laws ch.151B. The Hospital, she argues, denied her this reasonableaccommodation by eliminating her position as Director of PublicRelations and offering her the new position of MarketingCoordinator.

Barry's chapter 151B claim fails for the same reason as herFMLA claim; she has not met the statute's necessary requirements.Barry has never sought a reasonable accommodation and haseffectually conceded that there is no accommodation that wouldallow her to return to work. As a result, she does not fit thecriteria of a qualified handicapped person protected under Mass.Gen. Laws ch. 151B.4

Chapter 151B prohibits an employer from discriminating against"any person alleging to be a qualified handicapped person"because of her handicap. Mass. Gen. Laws ch. 151B § 4(16).Chapter 151B defines the term "qualified handicapped person" as"a handicapped person who is capable of performing the essentialfunctions of a particular job, or who would be capable ofperforming the essential functions of a particular job withreasonable accommodation to his handicap." Mass. Gen. Laws ch.151B, § 1(16); see also August v. Offices Unlimited, Inc.,981 F.2d 576, 580 (1st Cir. 1992).

In the analogous context of the Americans with DisabilitiesAct,5 the First Circuit has articulated a two part test fordetermining if an employee is a qualified handicapped person: (1)whether the employee could perform the essential functions of thejob; (2) if not, whether any reasonable accommodation by theemployee would enable him to perform those functions. Ward v.Massachusetts Health Research Institute, Inc., 209 F.3d 29,33-34 (1st Cir. 2000)

The record indicates that Barry does not satisfy either part ofthe test. She cannot perform the essential functions of the joband no reasonable accommodation would enable her to do so. Acolloquy from her deposition squarely settles the issue.

Q: And in terms of giving a prognosis of when you might be able to return to work, even as of March '98 the doctor was indicating that was unknown?

Barry: That's right.

Q: Has that changed at any point? Have you been told you are able to return to work?

A: No.

Q: So your medical treatment still has not cleared you to return to work for any employer in any capacity with or without accommodations?

A: That's right.

Barry Dep., Dkt. No. 27, Ex. A., at 59-60. A similar colloquyplaces her disability in even starker terms.

Q: And you contend there is no job, there is no gainful employment for any employer you can perform with your limitations with or without reasonable accommodations?

Barry: I have trouble making change at the supermarket.

Id. at 76.

As noted, Barry all but concedes that she does not currentlymeet the criteria for a qualified handicapped person. She doesargue, however, that after her initial discharge from thehospital on October 10, 1996, she had exhibited signs ofimprovement and met the criteria for a qualified handicappedperson at that time. The objective record, however, belies thisargument.

Most notably, Barry has filled out several disability benefitsforms in which she has stated that she has been "totally disabledand prevented from doing any task pertaining to [her] occupation"since late September 1996 — a month before she received theletter. Barry Dep., Dkt. No. 27, Ex. 18; accord, Exs. 15 and20. The Supreme Court has recently held that a plaintiff who hasstated that she is totally disabled on benefits forms does notmeet the ADA's criteria of a "qualified handicapped person"unless she explains her contradictory statements sufficiently toallow a reasonable juror to conclude that she could perform theessential functions of her job, with or without accommodation.See, Cleveland v. Policy Management Systems, Corp.,526 U.S. 795 807, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999).

Here, Barry cannot sufficiently explain the contradiction. Therecord repeatedly indicates that Barry has been disabled, withoutinterruption, since her initial hospitalization in lateSeptember. As Susan James indicated, Barry received the letterfrom Scheffer "before she had sufficiently recovered to return towork." Barry Dep., Ex. 19. Dr. Ballis' assessment confirms thatBarry was not able to return to work by late October. See,Barry Dep. Ex. 8; Ex. 10. Although it seems that the letter didnot help her recovery — and may, in fact, have hurt it — Barry'sillness never sufficiently subsided to allow her to return towork. As a result, she does not meet the criteria of a qualifiedhandicapped person protected under chapter 151B.

C. Plaintiff's Motion For Leave to Amend the Complaint

Barry has also requested leave to amend her complaint. Theamended complaint would not assert any new claims or legaltheories on which recovery could be granted. Instead, it would"amplif[y] those alleged facts which form the basis" of Barry'spre-existing claims. Pl.'s Mot. for Leave to Am. Compl., Dkt. No.20 at 1. These facts have been thoroughly amplified throughdiscovery and the summary judgment motions; amending the claimsto include those amplifications would not stave off summaryjudgment. As a result, the Motion for Leave to Amend theComplaint will be denied.


No one can deny the terrible ordeal of clinical depression, orthe extraordinary courage needed to face it. Plaintiff'sdetermination to pursue these claims despite the burden of herdisability is truly impressive.

It would be false generosity, however, to mislead the plaintiffby permitting claims to go forward that lack adequate support asa matter of law. Since the facts of record and all reasonableinferences that might be drawn from them are insufficient,legally, to justify any jury verdict in favor of plaintiff, thedefendant's motion for summary judgment must be ALLOWED and theplaintiff's motions for summary judgment and to amend thecomplaint must be DENIED.

A separate order will issue.

1. In addition to its motion on the merits, the Hospital movedto dismiss because Barry did not file a statement of undisputedfacts pursuant to D.Mass.R. 56.1. This motion has some merit. Asa matter of necessity, district courts require the parties'assistance in sorting through the factual issues at play in asummary judgment motion. See Stepanischen v. Merchants DespatchTransp. Corp., 722 F.2d 922, 927 (1st Cir. 1983). In theDistrict of Massachusetts this requirement has been codified inthe local rules. See D.Mass.R. 56.1. A party must provide aroadmap for the court by including a "concise statement ofmaterial facts as to which the party contends there is no genuineissue to be tried, with page references to affidavits,depositions and other documentation" with its motion papers.Id. A failure to include such a statement constitutes groundsfor denial of the motion. Id. In addition, if a party fails tocontrovert the facts asserted in the opponent's statement, thosefacts "will be deemed for purposes of the motion to be admitted."Id. This Local Rule has teeth, and can be dispositive; partiesignore such rules "at their own peril." Morales v. A.C.Orssleff's EFTF, 246 F.3d 32, 2001 WL 339187 (1st Cir. April 11,2001); citing, Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.2000).

Given the court's ruling on the merits, it is unnecessary toaddress this issue. Counsel should, however, note the importanceof scrupulous compliance with D.Mass.R. 56.1.

2. The Hospital also asserts a statute of limitations defense.Because this court finds that Barry's FMLA claim fails as amatter of law, the statute of limitations arguments will not beaddressed.

3. In fact, the first complaint Barry filed in MassachusettsSuperior Court did include a common law claim of intentionalinfliction of emotional distress based on Scheffer's decision torestructure Barry's position. See, Petition for Removal, Dkt.No. 1, Ex. A. That claim was dismissed on January 28, 2000.See, Pl.'s Opp'n to Def.'s Mot. for Summ. J., Dkt. No. 28, Ex.1.

4. In addition to arguing that Barry does not meet thecriteria of a qualified handicapped person, the Hospital alsoargues that her chapter 151B claim is narrowed by the applicablestatute of limitations. The Hospital is correct. The statute oflimitations for chapter 151B limits Barry to claiming thoseincidents occurring on or after October 30, 1997 — six monthsprior to the filing of her complaint with the MCAD — as evidenceof employment discrimination. See Mass. Gen. Laws ch. 151B § 5.There is no evidence of a serial violation that would permit"reaching back" beyond the established limitations period. See,Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5,14 (1st Cir. 1998) (serial violation requires a chain of similardiscriminatory acts emanating from the same discriminatoryanimus). Since the Hospital does not argue otherwise, this courtassumes that the letter sent by Scheffer on October 28, 1996 wasnot received by Barry until on or after October 30, 1996 and,therefore, falls within the proper limitations period.

5. The Supreme Judicial Court of Massachusetts has indicatedthat federal case law construing the ADA should be followed ininterpreting the Massachusetts disability law. See Labonte v.Hutchins & Wheeler, 424 Mass. 813, 678 N.E.2d 853, 856 n. 5(1997); Wheatley v. American Tel. & Tel. Co., 418 Mass. 394,636 N.E.2d 265, 268 (1994).

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