2005 | Cited 0 times | D. Massachusetts | June 20, 2005


Plaintiff Michael D. Mulloy claims that the termination of hisemployment by defendant Acushnet Company ("Acushnet") amounted todisability discrimination in violation of the Americans withDisabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., andMassachusetts General Laws chapter 151B.1 Acushnet filed a motion for summary judgment, which, for thereasons provided below, I will grant.

I. Background

Acushnet, based in Fairhaven, Massachusetts, manufactures andsells golf balls and other golf-related products. Mr. Mulloybegan working for the company late in 1998 as one of twoelectrical engineers overseeing one of the company's plants.Before joining the ranks of Achushnet, Mr. Mulloy worked as anelectrical engineer in manufacturing facilities run by companiessuch as Kimberly Clark, Polaroid, Black Clawson, andOwens B-rockway Glass Company. In some of these locations, he wasexposed to dust but had no exposure to chemicals. That changedupon his arrival at the Acushnet manufacturing facility.

Isocyanates, which are chemical sensitizers, are used in themanufacture of golf balls and are present in all of Acushnet'smanufacturing facilities. According to defendant, exposure to thechemicals can exacerbate symptoms experienced by people withasthma, allergies, or other chronic respiratory problems;according to plaintiff, exposure may cause the development ofsuch conditions. Acushnet, therefore, has instituted a formalprotocol for employees who have prolonged exposure to thechemicals. Mr. Mulloy, like all Acushnet employees, filled out amedical history form at the time the company hired him. He reported no allergies nor that he had prior exposure toisocyanates. He was taking no medication at the time.

From December 1998 until January 2001, Mr. Mulloy designedprograms for machines, purchased and supervised installation ofmachine controls, evaluated machine capabilities, identifiedmechanical and electrical changes, trained and supportedmaintenance personnel, troubleshot electrical and electroniccontrols and supported electrical safety programs. He worked froma cubicle approximately 6 hours a day and spent an average of 2hours each day on the plant floor. Occasionally, Mr. Mulloy spentall or most of the day in the plant or in the spray room. Thereis disagreement between the parties about whether he worked onprojects requiring him to work from the plant floor for as longas a week at a time.

Mr. Mulloy began to experience throat and chest tightness anddiscomfort in the fall of 1999 and presented to defendant a notefrom his physician reporting those symptoms. Acushnet respondedby taking actions within the isocyanate protocol, which includedgiving Mr. Mulloy an allergy questionnaire and conducting apulmonary function test ("PFT"). Acushnet's occupational medicineconsultant, Dr. Charles Lutton, also examined plaintiff andreferred him to a respiratory specialist. The specialist noted nosigns of isocyanate sensitivity and cleared Mr. Mulloy for work.

On May 9, 2000, Mr. Mulloy began to feel dizzy while working in the paint spray room and over the ensuing days felt groggy andfeverish. Acushnet kept him out of the spray room until anotherPFT could be performed and Dr. Lutton could reexamine him. Theresults of further testing caused Dr. Lutton to bar Mr. Mulloyfrom further exposure to isocyanates and other respiratoryirritants. Consequently, Mr. Mulloy was restricted from areas inthe plant where the chemicals are generated, also known as "redzones." He worked on machines outside of "red zones," relying onelectromechanics to download programs into machines located inthe restricted areas. Although this arrangement worked for atime, Mr. Mulloy began once again to suffer dizziness and othersymptoms. Dr. Lutton, therefore, decided that he should stay outof all buildings where the chemical irritants were used.Accordingly, Acushnet moved Mr. Mulloy to its Fairhavenheadquarters, fifteen miles from the plant.

The parties disagree about the extent to which Mr. Mulloycontinued to perform functions important to his job fromFairhaven. This implicates one of the overarching disputes inthis case; whether he must be on or near the plant floor tofulfill the essential duties of his job and whether there arepractical accommodations that can be made to permit him to workremotely.

Three officers of the company — Eric Bartsch, the VicePresident of Golf Ball Manufacturing, Jean Sutherland, Directorof Health Safety and Field Services, and Ken Riall, Vice President of Employee Relations — discussed and evaluated whattasks Mr. Mulloy could still perform and whether accommodationscould be made for his limitations. Mr. Riall discussed with Mr.Bartsch whether plaintiff could perform his duties remotely; Mr.Bartsch did not believe that he could. Ms. Kim Francis, Directorof Engineering, also believed that Mr. Mulloy could not performall of his essential duties remotely. Mr. Mulloy does not adoptthe view of these supervisors. He emphasizes that during the timehe was restricted from the "red zones" he was able to perform hisjob without being able to see the machines, and could havecontinued to do so from a remote location.

Acushnet terminated Mr. Mulloy in January 2002. He contendsthat the decision to terminate him was made by Mr. Riall, who didnot have the requisite knowledge to make such a decision in partbecause he did not adequately consult with Ms. Francis. At thattime, Mr. Mulloy began looking for a new job as an electricalengineer and also considered a career change. He is now a fulltime student at Syracuse Law School. Although he plans topractice law after graduation, he has been treated for apsychiatric condition his treating physician causally connects tohis termination by Acushnet. His old job, approximately seventypercent of which occurs inside the plant, is now done by acombination of Acushnet employees and outside vendors.

Mr. Mulloy contends that he is now disabled in a permanentpartial fashion and can work only in a "meticulously clean environment because of his disability."

II. Standard of Review

Summary judgment is appropriate when "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to judgment as a matter of law." Fed.R.Civ.P.56(c). A fact is "material" if it has the "potential to affectthe outcome of the suit under the applicable law,"Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46,52 (1st Cir. 2000), and a "genuine" issue is one supported bysuch evidence that "a `reasonable jury, drawing favorableinferences,' could resolve it in favor of the nonmoving party."Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1stCir. 1999) (quoting Smith v. F.W. Morse & Co., 76 F.3d 413, 427(1st Cir. 1996)).

A party seeking summary judgment must make a preliminaryshowing that no genuine issue of material fact exists. Nat'lAmusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995), cert. denied, 515 U.S. 1103 (1995). Once the movant hasmade such a showing, the nonmovant must point to specific factsdemonstrating that there is, indeed, a trialworthy issue. Id. Agenuine dispute of material fact cannot be established through"conclusory allegations, improbable inferences, and unsupported speculation" alone. Medina-Munoz v. R.J. Reynolds Tobacco Co.,896 F.2d 5, 8 (1st Cir. 1990).

The nonmovant "may not rest upon the mere allegations ordenials of the [moving] party's pleading," and instead "must setforth specific facts showing that there is a genuine issue fortrial." Fed.R.Civ.P. 56(e). Additionally, if the nonmovantfails to make "a showing sufficient to establish the existence ofan element essential to [its] case, and on which [it] will bearthe burden of proof at trial," Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986), summary judgment must enter against it.With respect to the nonmovant's burden of proof in establishingthe essential elements of its case, the resolution of a motionfor summary judgment "implicates the substantive evidentiarystandard of proof that would apply at a trial on the merits."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

III. Discussion

Acushnet is covered by the ADA and may not "discriminateagainst a qualified individual with a disability because of thedisability." 42 U.S.C. § 12112(a). The proscription againstdisability discrimination by employers furthers Congress's goalof "remov[ing] barriers which prevent qualified individuals withdisabilities from enjoying the same employment opportunities thatare available to persons without disabilities." 29 C.F.R. Pt.1630 App. Employers are not, however, required to remove all barriers. The failure to make "reasonable accommodations to theknown physical or mental limitations of an otherwise qualifiedindividual with a disability" is actionable "unless such coveredentity can demonstrate that the accommodation would impose anundue hardship." 42 U.S.C. § 12112(b)(5)(A).

In short, "[t]o establish an ADA claim, a plaintiff must proveby a preponderance of the evidence: first, `that she was disabledwithin the meaning of the Act; second, . . . that with or withoutreasonable accommodation she was a qualified individual able toperform the essential functions of the job; and third, . . . thatthe employer discharged her because of her disability.'"Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646(1st Cir. 2000); see Davidson v. American Online, Inc.,337 F.3d 1179, 1188 (10th Cir. 2003).

To be disabled for purposes of the ADA "means having or being`regarded as' having a mental or physical impairment that`substantially limits one or more . . . major life activities.'"Guzman-Rosario v. United Parcel Service, Inc., 397 F.3d 6, 9(1st Cir. 2005) (quoting 42 U.S.C. § 12102(2)(A)). And, thoughthe First Circuit has "regularly consulted EEOC definitions ofthe terms . . ., no agency has been granted authority to issuebinding regulations interpreting the term `disability.'" Id.(citations omitted). A substantial limitation is not a temporaryone; the impairment at issue must be a long-term condition. SeeToyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194 (2002); see also Whitney v. Greenberg, Rosenblatt, Kull &Bitsoli, P.C., 115 F. Supp. 2d 127, 132 (D. Mass. 2000), aff'd258 F.3d 20 (1st Cir. 2002). And, in evaluating the limitation,courts must approach the question in a "case-by case manner."Toyota Motor Mfg., 534 U.S. at 198. To this end, Mr. Mulloymust "offer? evidence that the extent of the limitation in termsof [his] own experience . . . is substantial." Albertson's, Inc.v. Kirkingburg, 527 U.S. 555, 556-57 (1999).

A. Limitation on Major Life Activity

Acushnet does not dispute that Mr. Mulloy suffers animpairment; rather, it contends that he has failed to show thathis impairment substantially limits a "major life activity." Mr.Mulloy argues that the impairment limits his ability to "breath"and "work." Although "breathing" is a "major life activity,"there is some question about whether "working" should also bedeemed to fall within that category. See Sutton v. United AirLines, Inc., 527 U.S. 471, 492 (1999). The First Circuit hassaid that "[a]waiting a definitive ruling from the Supreme Courtotherwise, we have assumed that `working' is a major lifeactivity. . . ." Guzman-Rosario v. Unite Parcel Service, Inc.,397 F.3d 6, 11 (1st Cir. 2005).

On the question of "working", it is not enough to show that anindividual is substantially limited in his ability to perform hisparticular job. Rather, a plaintiff must be "significantly restricted in or precluded from performing either a `class' ofjobs — a set of jobs utilizing similar skills, knowledge, andtraining to her prior job — or a `broad range' of jobs in variousclasses — a large set of jobs that vary in what skills arerequired." Guzman-Rosario, 397 F.3d at 10-11. Cf. Schapirov. New York City Dep't of Health, 25 Fed. Appx. 57, 61 (2d Cir.2001) ("Schapiro has not shown that his physical impairmentsubstantially limited his ability generally to work in jobs as astaff analyst, as opposed to his particular job at a particularlocation."); Gits v. Minnesota Mining and Mfg. Co., 2001 U.S.Dist. LEXIS 20871, at *18-19 (D. Minn., June 15, 2001) (finding,in a case where plaintiff had respiratory reaction to "industrialchemicals," that he was not substantially limited in his abilityto work because, since termination, he "has been either in schoolfull-time or employed" and "testified that he could perform a jobthat did not involve exposure to industrial chemicals").

And, as for Mr. Mulloy's "breathing" limitations, the recordmakes clear that he is now sensitive to irritants encountered ineveryday life in addition to the chemicals used at themanufacturing facility. It is not sufficient, however, simply tohave intermittent responses to particular irritants. For example,the plaintiff in Chan v. Sprint Corp., 351 F. Supp. 2d 1197 (D.Kan. 2005), suffered from mixed rhinitis, which "prevent[ed] herfrom being around cigarette smoke and other noxious chemicals,including materials with ammonia, paint thinners, cleaners, exhaust fumes, formaldehyde, bug sprays,fertilizers, turpentine, aerosol hairsprays, and some fragrances,as well as mold." Id. at 1200. Despite the evidence in therecord regarding the measures the plaintiff needed to take inorder to function in public, the "court conclud[ed] that . . . noreasonable trier of fact could find that Plaintiff's impairmentsubstantially limits her breathing. . . ." Id. at 1204; seealso Gits, 2001 U.S. Dist. LEXIS 20871, at *16 ("[T]here isno genuine issue of fact that Gits generally is able to performthe basic function of breathing. Gits' severe breathingdifficulties occur only when he is exposed to acrylate adhesiveproducts at 3M."). Cf. Calef v. The Gillette Co.,322 F.3d 75, 85 (1st Cir. 2003) ("A significant restriction does not meana `mere difference.'").

In Albert v. Smith's Food & Drug Centers, Inc., 356 F.3d 1242(10th Cir. 2004), however, where the plaintiff's "asthma requiresher to avoid a wide variety of everyday situations" such as"crowds, night-time or outdoor activities, cigarette smoke, andperfumes," the court found that the evidence was in dispute as towhether she was "symptomatic most of the time" and was sufficientfor her to survive summary judgment. Id. at 1250-51.

I do not find on the present record that Mr. Mulloy haspresented sufficient evidence to survive summary judgment on theissue of "substantial impairment" either of breathing or ofworking. He is not symptomatic most of the time. It is a particular job at a particular location for which his breathingdifficulties create an impairment. In the interests ofcompleteness and recognizing that the law of substantialimpairment — at least as to "working" — is not yet completelysettled, however, I turn to the second relevant element of thedisability analysis, the question whether he was an "otherwisequalified individual."

B. Otherwise Qualified Individual

In addition to suffering an impairment that substantiallylimits a major life activity, a plaintiff must also be an"otherwise qualified individual with a disability." Mr. Mulloy isnot. The ADA defines a "qualified individual with a disability"as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential.42 U.S.C. § 12111(8). There is no dispute here that prior to theonset of his condition that Mr. Mulloy by training and experiencewas a fully capable employee. See Tyndall v. Nat. EducationCenters, Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) ("Weagree, and [the defendant] does not dispute, that the quality of[the plaintiff's] performance when she was working was more thanadequate."); see also Gits, 2001 U.S. Dist. LEXIS 20871, at*23. The point of contention as to this element is whether he can continue to perform the essential functions of his job, with orwithout a reasonable accommodation. See Laurin v. TheProvidence Hospital, 150 F.3d 52, 56 (1st Cir. 1998) ("It iswell settled that an employer need not accommodate a disabilityby foregoing an `essential function' of the employmentposition."); Calef, 322 F.3d at 86 n. 8. It is the plaintiff'sburden to show that he can. US Airways, Inc. v. Barnett,535 U.S. 391, 400 (2002); Calef, 322 F.3d at 86; Gillen v. FallonAmbulance Service, Inc., 283 F.3d 11, 24 (1st Cir. 2002).

I apply a two-step analysis to the issue. Can Mr. Mulloyperform the essential functions of his position? And, if not,would a reasonable accommodation by Acushnet allow him to do so?Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st Cir.2001).2

1. Performance of Essential Functions

Implicit in the first question is a requirement that the courtfirst identify the essential functions. Essential functions have been described by federal regulations "somewhattautologically as `fundamental job duties,' exclusive of `themarginal functions of the position.'" Gillen, 283 F.3d at 25.The regulations do go on, however, to provide that [a] job function may be considered essential for any of several reasons, including but not limited to the following: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.29 C.F.R. § 1630.2(n)(2). They also identify certain evidenceimportant in determining whether a function is essential, and notmerely marginal: (3) Evidence of whether a particular function is essential includes, but is not limited to: (i) The employer's judgment as to which functions are 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.Id. at § 1630.2(n)(3).

Turning to the present context, many courts "have recognizedphysical attendance in the workplace is an essential function of most jobs." Mason v. Avaya Communications, Inc., 357 F.3d 1114,1119 (10th Cir. 2004); see Hypes v. First Commerce Corp.,134 F.3d 721, 726-27 (5th Cir. 1998); Vande Zande v. State of Wis.Dep't of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995); Carr v.Reno, 23 F.3d 525, 530 (D.C. Cir. 1994); Tyndall v. Nat'l Educ.Centers, Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994);Walders v. Garrett, 765 F. Supp. 303, 309-10 (E.D. Va. 1991),aff'd, 956 F.2d 1163 (4th Cir. 1992). In fact, the TenthCircuit, in Mason, said it was "the `unusual' or`extraordinary' case where evidence supported the employee'scontention that he could perform the essential functions of hisemployment position from home because physical attendance in theworkplace was not an essential function of his employmentposition."3 Mason, 357 F.3d at 1124; see Smith v.Ameritech, 129 F.3d 857, 867 (6th Cir. 1997) (where the employee"failed to present any facts indicating that his was one of thoseexceptional cases where he could have `performed at home withouta substantial reduction in [the] quality of [his] performance'")(quoting Vande Zande, 44 F.3d at 544). Mr. Mulloy has notpresented me with such an "exceptional" case.

The parties do not dispute the basic responsibilities, as listed in the job description, of Mr. Mulloy's position. A seniorelectrical engineer is expected to design programs for machines,purchase and supervise installation of machine controls, evaluatemachine capabilities, identify mechanical and electrical changes,train and support maintenance personnel, troubleshoot electricaland electronic controls and support electrical safety programs.The question is whether Mr. Mulloy needs to be at the facility inorder to adequately perform these duties.

Acushnet claims that he does, because his duties "require himto have access to the machines in the Ball Plant." (Def.'s 10.) Mr. Mulloy, in the estimation of Acushnet, must, at aminimum, be able to see the machines and those operating them toassess their functioning and the installation of the programs hewrites for them. The job description also involves training andsupport of personnel. This teamwork aspect of the job is onecourts have stressed in finding that presence in the workplace isessential to most jobs. See, e.g., Mason, 357 F.3d at 1120.

Mr. Mulloy contends, however, that he can perform the essentialfunctions of his job remotely by use of a web cam, as well asother communications tools. In support of this argument, heoffers his own testimony. Moreover, to the extent he previouslywas required to install programs or interact directly withmachines, such tasks can easily be done by someone else under hisremote supervision and instruction. The plaintiff in Mason presented the Tenth Circuit withsimilar arguments, arguing that her presence at the workplace wasnot essential "because she can perform all of the essentialfunctions of the job at home using a computer, telephone, and faxmachine." Mason, 357 F.3d at 1120. There, the plaintiff alsocontended that "supervision" and "teamwork", because they are notincluded in her job description, were not essential functions.Id. Regarding "teamwork" in particular, the Mason plaintiffproffered that one of the other coordinators could do theteam-related functions. Id. at 1120-21.

First, Mr. Mulloy's "own testimony . . . is insufficient underFed.R.Civ.P. 56(c) to create a `genuine' issue of materialfact." Mason, 357 F.3d at 1121. The Mason court was"reluctant to allow employees to define the essential functionsof their positions based solely on their personal viewpoint andexperience." Id. at 1122. I am as well. Mr. Mulloy must offermore, in light of the fact that an employer's judgment regardingthe essential functions of a job, though not dispositive, isafforded deference. See Kvorjak, 259 F.3d at 55 ("In theabsence of evidence of discriminatory animus, courts generallygive `substantial weight' to the employer's judgment as to whatfunctions are essential.") (quoting Ward v. Mass. HealthResearch Inst., Inc., 209 F.3d 29, 34 (1st Cir. 2000)); EEOC v.Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997) ("[W]here, ashere, no evidence of animus is present, courts may givereasonable deference to the employer's assessment of what the positiondemands.").4

Mr. Mulloy has no testimony from other former and currentemployees — and, in particular, from the other senior electricalengineer at Acushnet — to substantiate his view of the essentialduties of the position. Cf. Kvorjak, 259 F.3d at 58("Appellant could have, but did not, depose current claimsadjudicators about their duties."). He has simply failed topresent an adequate basis to question the company's contentionthat physical presence is a required, essential aspect of thejob.

Mr. Mulloy points to the time he spent outside the "red zones"as evidence that he can work remotely. During that time, however,he was still able to work directly on machines outside the "redzones" and was still working in the same facility as thepersonnel he was required to train and support. The fact that hemay not have been able to see some of the machines upon whichhe directed work to be done during that time does not support aninference that he could adequately perform his job without beingable to see any of the machines or be easily accessible tothose working on them. Moreover, Acushnet's efforts to minimizeexposure to one particularly dangerous part of the plant does not necessarily mean that the ability to work directly on machines isnot an essential job function; "[f]acilitating injured workers'return to their jobs should not expose employers to futurelitigation." Rooney v. Koch Air, LLC, 2005 U.S. App. LEXIS, at*14 (7th Cir., June 6, 2005).

The question is not simply whether he may be able to performaspects of each essential function, but whether he can do soadequately. "An employer is not required to allow disabledworkers to work at home, where their productivity inevitablywould be greatly reduced." Vande Zande, 44 F.3d at 544. And,although the Vande Zande court went on to say that "[t]his willno doubt change as communications technology advances," id. at544, Acushnet has demonstrated that Mr. Mulloy's training andsupport of personnel and oversight of machine functioning requirehis presence in the facility. Acushnet is not required to permitMr. Mulloy to work 15 miles away from the machines and operatorsfor which he is responsible. Cf. Gits v. Minnesota Mining andMfg. Co., 2001 U.S. Dist. LEXIS 20871, at *28 (D. Minn., June15, 2001) ("The concept of supervising a laboratory team remotelyfrom a computer strains even the boundaries of currenttechnology.").

The First Circuit found, in Kvorjak v. Maine, 259 F.3d 48(1st Cir. 2001), that an employer need not permit a disabledemployee to work from home when training and teamwork wereessential aspects of his job. Achushnet's position here is similarly "that, by definition, [Mr. Mulloy's position] includestraining and joint problem-solving that could not be accomplishedeffectively by [an employee] based outside" the manufacturingfacility. Id. at 57. Nothing Mr. Mulloy has presented providesthe basis for a reasonable jury to find that his presence is notrequired in order for him to adequately perform the essentialfunctions of his position. Cf. id. ("In response to theState's evidence that the advisor function is an `essential' partof a claim adjudicator's job, appellant offers no specific factsshowing that this role either is not essential or could beperformed by him at home.").

In Hernandez v. City of Hartford, 959 F. Supp. 125 (D. Conn.1997), the court found that there was a triable issue of factconcerning whether being in the office full-time was an essentialfunction of the job. There, however, the employee was onlyseeking to do work from home part-time. Id. at 132. Moreover,two of three supervisors approved the accommodation, "rais[ing] afactual issue as to whether the proposed accommodation would haveimposed an undue burden." Id.5 By contrast, Mr. Mulloyseeks to be out of the facility full-time and none of thesupervisors who gave it consideration believed he could do his job without beingat the Ball Plant.

In the case of Mr. Mulloy, it is essential not only that heinteract with those for whom he has responsibility of trainingand supporting, but also that he interact, in one way or another,with machines found in the plant. He is not seeking to be removedfrom the facility only when those duties are not required to bedone, but rather requests that he not be required to enter thefacility at all. And, Mr. Mulloy has proffered no evidence thatanybody else with the same responsibilities has been permitted towork entirely outside the manufacturing facility.

The fact that others could pick up aspects of Mr. Mulloy's jobdoes not advance his "essential function" argument. "The merefact that others could do [his] work does not show that the workis nonessential." Basith v. Cook County, 241 F.3d 919, 929 (7thCir. 2001). Mr. Mulloy's emphasis on the ease with which theduties could be delegated "demonstrates [he] also consideredthose duties as functions of the job," whether essential or not.Mason, 357 F.3d at 1121.

2. Reasonable Accommodation

Having found that material aspects of the essential functionsof Mr. Mulloy's job require his physical presence, I mustdetermine whether a reasonable accommodation would permit him toadequately perform those functions. Mr. Mulloy bears the burdenof showing the existence of a reasonable accommodation. Feliciano v. Rhode Island, 160 F.3d 780, 786 (1st Cir. 1998). Aplaintiff must make a showing "that the accommodation `wouldeffectively enable [him] to perform [his] job.'" Kvorjak,259 F.3d at 55 (quoting Reed v. LePage Bakeries, Inc.,244 F.3d 254, 259 (1st Cir. 2001)). Mr. Mulloy has failed to satisfy thisburden, proposing an accommodation — working from a remotelocation — that inherently vitiates the ability to performessential functions.

"Although a reasonable accommodation may include jobrestructuring, 42 U.S.C. § 12111(9)(B), an employer need notexempt an employee from performing essential functions, nor needit reallocate essential functions to other employees." Phelps,251 F.3d at 26 (citing Feliciano, 160 F.3d at 785, andSoto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 20 (1st Cir.1998)). To request elimination of an essential function as anaccommodation is, in the words of the Tenth Circuit, "not, as amatter of law, a reasonable or even plausible accommodation."Mason, 357 F.3d at 1122-23.

"Reasonable accommodation may include `reassignment to a vacantposition.'" Phelps, 251 F.3d at 27 (quoting42 U.S.C. § 12111(9)(B). Mr. Mulloy, however, does not seek reassignment.Rather, he seeks to be able to continue doing his job, but from alocation that will not permit him to perform the essentialfunctions of that job, even with the aid of the tools he suggests.6 That is not a reasonable accommodation, for itin essence requires not an accommodation but a redefinition ofhis job. In short, it is difficult, in a context such as this, toanalyze the reasonableness of the accommodation as a separatequestion from the essential functions.

Plaintiff does attempt, however, to provide suggestions oftechnology that might permit him to do his job from anotherlocation. But, by suggesting the use of a web cam, plaintiffessentially concedes that seeing the machines is an importantpart of his job. He does not offer a basis to refute — withanything other than his own assertions — Acushnet's contentionthat the use of a web cam would be ineffective. Defendant pointsout the size and complexity of the machines, which requires beingin their presence to adequately assess them. And, even if thecamera would be effective — a proposition the record here doesnot substantiate — the company makes a compelling "undue burden" argument when it avers that in order to effectuate such anaccommodation it would be required to hire an additional employeeto communicate with Mr. Mulloy regarding what to capture with thecamera.

I need not determine whether that would be an undue burden as amatter of law,7 but the nature of the requestedaccommodation does emphasize the need for Mr. Mulloy to interactwith both the machines and those who take care of them. Asalready noted, he has provided no basis for a jury reasonably toconclude that he can adequately perform his duties outside thepresence of both the personnel and the machines. His inability toperform certain functions remotely, which allows "physicalpresence" to be analyzed as a shorthand for those functions, alsohighlights the unreasonableness of an accommodation based onpermanent physical absence from the machines for which he isresponsible, both for programming and troubleshooting functions,and from those he must train and support to work with themachines. Cf. Gits, 2001 U.S. Dist. LEXIS 20871, at *25-26 ("Because [the plaintiff] was responsible for managing andimproving the product line, it is unreasonable for him to have nocontact with laboratories and facilities that contain acrylateadhesive products."). He may be able to do aspects of his jobfunctions, broadly defined, but Acushnet can require that theyall be done adequately. Mr. Mulloy has offered no evidenceputting in question the proposition that he cannot fully performhis job from a remote location.

Mr. Mulloy has suggested that other employees can do aspects ofthe job — such as installing the programs he writes — thatrequire being in the plant. But, the ADA does not "require anemployer to `accommodate a disability . . . by reallocatingessential functions to make other workers' jobs more onerous.'"Kvorjak, 259 F.3d at 57 (quoting Feliciano, 160 F.3d at 785);see Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8thCir. 1998).

Finally, Mr. Mulloy contends that now he can only work in ameticulously clean environment. That fact, which must be creditedat this point, principally goes to his ability to qualify asdisabled, either as evidence of the restrictions on his breathingor on his ability to work. It is also relevant to theaccommodation analysis. Acushnet need not "create a whollyisolated work space for an employee that is free from numerouspossible irritants." Buckles v. First Data Resources, Inc.,176 F.3d 1098, 1101 (8th Cir. 1999). "[T]here is only so much avoidance that can be done before an employer would essentiallybe providing a bubble for an employee to work in." Id.

In sum, where it is clear that an irritant free environment isnot possible at the Ball Plant, requiring Acushnet to permit Mr.Mulloy to work remotely both eliminates an essential function ofthe job and is, therefore, an unreasonable accommodation, if itcan be described as an accommodation at all. See Note 6,supra.

IV. Conclusion

For the reasons set forth more fully above, the motion forsummary judgment of defendant is GRANTED.

1. See Gillen v. Fallon Ambulance Service, Inc.,283 F.3d 11, 20 n. 5 (1st Cir. 2002) ("Although we write in terms of theADA, our comments apply with equal force to the appellant's claimunder its state-law counterpart, Mass. Gen. Laws, ch. 151B, § 4.That statute tracks the ADA in virtually all respects. The loneexception is that the use of mitigating measures must be takeninto account when determining the extent of an individual'sdisability under the ADA, whereas the disability must beconsidered in its natural state under Massachusetts law.")(citations omitted); see also Ward v. Mass. Health ResearchInst., Inc., 209 F.3d 29, 33 n. 2 (1st Cir. 2000) ("The SupremeJudicial Court of Massachusetts has indicated that federal caselaw construing the ADA should be followed in interpreting theMassachusetts disability law.") (citing Labonte v. Hutchins &Wheeler, 424 Mass. 813 (1997), and Wheatley v. AmericanTelephone & Telegraph Co., 418 Mass. 394 (1994)).

2. In this case, the two-step analysis requires that I firstdetermine whether being physically present at the manufacturingfacility is itself an essential function of Mr. Mulloy's positionor is necessary for him to be able to perform the essentialfunctions of his position. If it is, Mr. Mulloy is not a"qualified individual" for purposes of the ADA. If his absencefrom the facility does not implicate the essential functions ofhis job, I must then determine whether moving him to a remotelocation and supplying a web cam and other means of communicationare reasonable accommodations to his disability. The analysis ofthese points in a case such as this is largely coextensive. Butthe First Circuit has instructed that "although the qualificationanalysis could be understood to subsume the concept of reasonableaccommodation, we think it analytically sounder to treat the twotopics separately." EEOC v. Amego, Inc., 110 F.3d 135, 141 (1stCir. 1997). Accordingly, I do so.

3. That much of the case law deals with a request to work fromhome is not a material distinction from here, where Mr. Mulloyseeks to work offsite. The analysis in those home-request casesfocuses primarily on whether one needs to be in the locationwhere the essential functions are generally performed andrelevant coworkers can be found. Here, although Mr. Mulloy wouldbe in an Acushnet office, he would not be "present" in themanufacturing facility, the relevant location for his work.

4. "Where the plaintiff has presented no evidence ofdiscriminatory intent, animus, or even pretext, we think thereshould be special sensitivity to the danger of the court becominga super-employment committee." EEOC v. Amego, Inc.,110 F.3d 135, 145 (1st Cir. 1997).

5. Similarly, in a recent Massachusetts Appeals Courtdecision, Smith v. Bell Atlantic, 03-P-1522, slip op., Mass.Super. Ct., June 10, 2005, the court found that a jury"reasonably could conclude that uninterrupted attendance was notan essential function of her job." Unlike this case, however, inSmith, the plaintiff did not seek to work outside the officefull-time and others in her position were permitted to dosubstantial amounts of their work at home.

6. This, in the words of Judge O'Toole, would be noaccommodation at all. See Garcia-Ayala v. Lederle Parenterals,Inc., 212 F.3d 638, 654-55 (1st Cir. 2000) (O'Toole, J.,dissenting) ("The leave extension requested by the plaintiff wasnot a reasonable accommodation as a matter of law because it wasnot an accommodation at all as that term ought to be understood.To be an accommodation, the requested leave would have to do whatan accommodation under the ADA must do — enable the employee toperform the essential functions of her job. To put it in theterms of the EEOC's proposed definition of `reasonableaccommodation,' Garcia's requested leave would not have been`effective.'"). However described — whether under the rubric of the "essentialfunction" test or of the "reasonable accommodation" requirement —the result is the same; Mr. Mulloy cannot show that he satisfieseither element.

7. In analyzing the reasonableness of a proposed accommodationand the question of undue burden, the First Circuit does not, asdo some circuits, apply a burden shifting paradigm. Instead, it"prefer[s] to discuss the burdens of showing reasonableaccommodation and undue hardship as they are allocated in thestatute: the plaintiff fully bears the former, and the defendantfully bears the latter." Reed v. LePage Bakeries, Inc.,244 F.3d 254, 259 (1st Cir. 2001); see Calef, 322 F.3d at 86 n. 8("The essential function analysis is `conceptually distinct from,though it frequently overlaps with, the undue hardshipdefense.'") (quoting H.H. Perritt, Jr., Americans WithDisabilities Act Handbook, § 4.19 at 126 (3d ed. 1997)).

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