Tarbell v. Rocky's Ace Hardware

2018 | Cited 0 times | D. Massachusetts | March 20, 2018


STEPHEN R. TARBELL, ) Plaintiff, ) v. ) CIVIL ACTION NO. 15-10033-JGD Defendant. )


March 20, 2018 DEIN, U.S.M.J.

I. INTRODUCTION , has brought this action against his former Ace Hardware 1 disability discrimination termination from his empl for iscrimination

(Count I) and violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. 2


Defendant asserts that its See Def. SJ Br. (Docket No. 57) at 1). 2 The parties dispute whether Tarbell has properly asserted a cause of action for failure to reasonably accommodate a disability. (See Def. SJ Br. at 4 n.4; Pl. SJ Opp. (Docket No. 62) at 14-15). See Henry v. United Bank, 686 F.3d 50, 59 (1st Cir. 2012) (disability discrimination and reasonable accommodation (Docket No. 56). Also before this court by which is seeking to strike certain of es to its Rule 56 statement of

undisputed f opposition to summary judgment. (Docket No. 69).

tion fail on the merits. Specifically, the undisputed facts do not show, or tend to show, that Tarbell was capable of performing the essential functions of his job with or without reasonable accommo- dation. Therefore, otion for Summary Judgment is ALLOWED. For the reasons set forth below, the defend Motion to Strike is MOOT.

II. SCOPE OF THE RECORD motion to strike certain of Tarb tate- ment of undisputed f memorandum in support of his opposition to summary judgment. (See Docket No. 69). In support of its motion, Rock citations to record evidence, are contrary to record evidence, are argumentative, or are

speculative. (See . of Mot. to Strike (Docket No. 70)). - responsive. (See id. make individual rulings on the various alleged di claims are independent claims under the ADA and Chapter 151B). However, as discussed below, the

court need not decide this issue as it finds that, assuming arguendo, plaintiff has properly asserted such a claim, it fails on the merits. determine which facts are supported by record evidence and whether they are, in fact, truly

e material matter of law.

III. STATEMENT OF FACTS 3 The following facts are undisputed unless otherwise indicated.

¶ 1). By September or October of 2010,

Tarbell was promoted to Store Manager at the Walpole store by District Manager, Joslyn Babich ¶ 2). Babich oversaw 10- Id.). In April 2011, Tarbell was diagnosed with a clogged artery in his heart. (DF ¶ 3). Due to his heart condition, Tarbell needed assistance with heavy lifting. (DF ¶ 4). Babich was aware of

3 Unless otherwise stated, the facts are derived from: (1) Rule 56 Statement of Undisputed Facts (Docket No. E Def. Response to Defendant Rule 56 Statement of Undisputed Facts (Docket No. 63) ; (3) the Affidavit of Karen Markham, which is attached as Def. Ex. 4 (Docket No. 58-4) the supplemental Affidavit of Karen Markham, which is attached to Defendan Memorandum (Docket No. 68-1) “ (5) the Affidavit of Christopher J. Trombetta (Docket No. 64) mbetta Ex. 1“‘ , which is located at Def. Ex. 1 (Docket No. 58- . ¶ 3). Tarbell told Babich that his staff took care of the heavy lifting for him. (DF ¶ 4).

were transferred from store-to-store as needed DF ¶ 5).

¶ 6). This decision was not announced until May 21, 2012. (DF ¶ that business would be picked up by the Walpole store. (DF ¶ 34). In or about May 2012, Babich reorganized the management and staff in her district. (DF ¶ 7). As part of the reorganization, Babich made the decision to move Tarbell to become the M Randolph, where the previous Store Manager had been terminated because he had difficulty

managing his staff and there had been theft issues in the store. (DF ¶ 8). As part of the reorganization, Babich made the decision to reassign Cory King from being the Manager of M ¶ 11). Babich chose Mr. King to manage the Walpole store, in part, because even though he had managed a smaller store (DF ¶ 13) and relationship DF ¶¶ 12-13). 4

On approximately May 7, 2012, Babich told Tarbell that he would be transferring to le store was extremely well run; 4

‘ made anything other than business decisions in connection with the closure of the Norwood store and the subsequent need for reassignment. to run the store shorthanded, [his] assistant managers were very, very well trained and were ; , and only [he], could poss ¶ 16). Tarbell, who was not aware at that time that the Norwood store was closing, responded that he was not interested in being transferred to the ¶ 19). Tarbell told Babich that he was

unhappy going to Randolph and asked her i [,] including take a demotion. (DF ¶ 25; Tarbell Dep. at 14). Babich replied that there was no other position in the company for him. (DF ¶ 25). Later that same day, Karen Markham, Director of Human Services called Tarbell and told him that she would work to try to find out if there was F ¶ 27). Later that week, on a conference call with Babich and Markham, Tarbell, unhappy that Babich and Markham told him that there was no other option for him, brought up that his health was an issue, and Markham replied 5

that she had nothing in her file that reflected a health issue and, according to Tarbell, told him that if he company again. (DF ¶¶ 28-29; Tarbell Dep. at 100).

old her that could handle. (DF ¶ 5

See DF ¶ 29). No heavy lifting, or more physically demanding or new position due to heart con (Id.; Def. Ex. 5 (emphasis added)). Tarbell faxed the note to Babich or Markham that day. (DF ¶ 32). On the same or the following day, Babich and Markham called Tarbell and together they ¶ 33). (Id.).

Markham had significant concerns that Walpole may pick up business from Norwood, and that could result in a different or more stressful job. ¶ 34). Therefore, Markham spoke to Dr. Thompson for clarification of the note, asking whether if the Walpole store was to be picking up new business from a local store closing, would she consider that a new, different or more stressful job for Tarbell. (DF ¶ 35). Dr. Thompson said it would. (Id.). The parties agree that b Tarbell could not be transferred to a new position in Randolph or remain the Walpole Store

Manager. (DF ¶ able to return to work until he was in better health, and provided Tarbell with paperwork to

apply for job-protected leave pursuant to the Family and Me Id.). 6 On May 21 Norwood store closing. (DF ¶¶ 39-40).

On May 22, 2012, Dr. Thompson completed an FMLA Certification of Health Care Provider form 6

Tarbell argues that he was forced to take FMLA leave and was not offered the job of Assistant Manager in Canton, which he asserts was available at that time. However, as discussed later, there is no evidence that the position of Assistant Manager in Canton was available at that time or that there were any other s the employee is unable to ¶ 43; Def. Ex. 6). As the May 22, 2012 form restriction, which was articulated in the May 14 note, Markham asked Tarbell for clarification. (DF ¶ 44). On June 6, 2012, Tarbell emailed Markham that he was seeing his doctor later that week and that he would get back to her after that. (Id.). On June 11, 2012, Dr. Thompson completed a Certification of Health Care Provider form that was identical to the May 22, 2012 form but included an explanatory letter. (DF ¶ 45; Def. Exs. 6, disease and may require cardiac bipass surgery in the near future. Increased stress caused by

changing job positions or assignments at this time could be deleterious to his health and I do (Def. Ex. 9 (emphasis added)). Tarbell took FMLA leave from mid-May through mid-August 2012. He sought and obtained unemployment t contest. (PR ¶ 55).

Offers of Alternative Positions Tarbell and Markham were not in contact in July 2012, while Tarbell was on leave. (DF ¶ but did not tell her when it would take place. (DF ¶ 49). Before August 16, 2012, at the end of open for him. (DF ¶ 50). She offered him the position of Assistant Manager at Ro Canton at the same rate of pay that he had been earning as Store Manager in Walpole. (DF

¶ 50). That position had become available on or about August 6, 2012. (Markham Suppl. Aff. ¶ 4). 7

She also offered Tarbell the position of Paint Advisor in the Canton store, explaining that -$12/hour[.] ¶ 51; Trombetta Ex. 1). In their communications around this time, Tarbell indicated that he needed reduced hours for up to three months and had some lifting restrictions. (Trombetta Ex. 1).

On August 21, 2012, Tarbell emailed Markham to say that he would accept the Canton Assistant Manager position. (DF ¶ 59). In his email accepting the position, Tarbell did not identify any restrictions he thought he may have in returning to work. (Id.). Markham then asked Tarbell to get a note clearing him to work in a new position, with or without accommodations, and identifying what, if any, restrictions he had. (DF ¶ 60).

In response, on or about August 24, 2012, Tarbell provided Markham with a note from

From August 24 through August 30, 2012, Markham and Tarbell engaged in a series of emails wherein Markham sought clarification from Tarbell about letter and about 8

For example, on August 24, after receiving Markham e 7

‘ , that the Assistant Manager position in Canton had been available since at least May 7, 2012, when he was informed that he was going to have to move to Randolph. (See Pl. SJ Opp. at 18). He claims he would have taken the position at that time, and never would have sought a note from his doctor. (See id. at 3). However, ‘ “ Affidavit, the position of Assistant Manager in Canton did not become available until August 6, 2012. (Markham Suppl. Aff. ¶¶ 4-5). 8 ‘ See PR ¶¶ 61-70). Since the emails themselves are not in dispute, the significant portions of them are quoted herein. 10 at 4). Tarbell responded on August 25 [t] Id.). On August 26 Id.).

sorry Karen, I thought we were all set. Please let me know what additional information you

how do you think I feel. Those recommendations have been the same since April 2011. Id. at 3-4). Markham replied,

You recently told me that you believed you were capable of performing the assistant manager job in Canton which I had offered to you prior to your FML running out. However, the note your doctor provided me with on Friday still indicates no new assignment. I need that to be cleared up and she needs to be specific about how much weight you can lift and for how long she expects that restriction to last and confirm that you would be able to work 50 hrs/wk.... I look forward to speaking with you tomorrow; we need to make a decision as I have been holding two key positions open and cannot afford to do that any longer. The paint department/sales in Canton have suffered effect the open assistants position is having on the store as well.

(Id. at 3). [m]y doctor has given you all Id.; DF ¶ 65). Markham replied, has given me everything I need to make a decision, I will remind you that she has said no change in job and if that stands then I ask you how you think I can offer you either the assistants job or the paint advisors job based Def. Ex. 10 at 2). On August 30, Tarbell responded, expressing his desire to return to work but stating advice of a defib specialist I saw at MGM late last week, I really need to follow through with the

cardiac rehab program I had spoken of previously. I can however probably pull 30-40 hours if we can make scheduling work. To be clear I will have things to work around, for the next tially quite open to a [paint advisor] position (pending compensation) or perhaps some type of hybrid situation that benefits all. Hopefully I can resume full status following my therapy. . . . Believe me I wish I could define my medical situation better Id. at 1-2). Markham responded that day, [a]s I continue to say, I need your doctor to clarify to me in writing what you can and cannot do before we go any further. What you are saying is not consistent with what your doctor is providing. How many hours a week can you work, does that include nights and weekends. How many days in a row. How many pounds you can lift. How long does she expect the restrictions to be in place. Can you work in a different position. (Id. asap so that we can continue to try to ge Id.).

schedule I will have to keep. Getting that set up is incredibly slow going and frustrating. I can

also say that the lifting restrictions are likely permanent. Nights and weekends are not an issue, in fact I prefer nights. I will let you know what I can find out from my docs as soon as I c (Id.).

Despite the uncertainty of the situation, Tarbell made no effort to contact Markham in September. (DF ¶ 71). However, during that time period, according to Tarbell, Markham may have left him messages. (Id.). On September 17, 2012, the Assistant Manager Canton position was filled , the store had been without an Assistant Manager for

as the store is open 7 days per week and 362 ¶ 73).

(DF ¶ 75; Def. Ex. 14). Tarbell replied later that

day, [i] . You asked me to get full information from my . . . At your request I did not want to continue giving you partial information so I was waiting until I could give you a full accounting. I would not have been able to provide that to you until I had met with my PCP, my cardiologist, and my electrophysiologist, to discuss the results of the CRT-D that was implanted on Monday 9/17. (Def. Ex. 14). (DF ¶ 76; PR ¶ 76). On July 2, 2013, Tarbell filed a Charge of Discrimination with the Massachusetts Commission Against Discrimination for dual filing with the Equal Employment Opportunity Commission that set forth similar allegations to those in the Complaint in this action. (DF ¶ 80).

IV. ANALYSIS A. Summary Judgment Standard of Review PC Interiors, Ltd. v. J. Tucci Constr. Co.,

794 F. Supp. 2d 274, 275 (D. Mass. 2011) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)) (additional citation omitted). The burden is upon the moving party to show, genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

‘ : Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (quoting Garside v. Osco Drug, Inc. Id. (quotations, punctuation

and citations omitted).

has satisfied its burden, the burden shifts to the non-moving PC Interiors, Ltd., 794 F. Supp. 2d at 275. The opposing party can avoid summary judgment only by providing properly supported evidence of disputed material facts. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841-42 cts showing that there is a genuine issue for trial. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986)). inferences, and unsupported exists. Cherkaoui v. City of Quincy, 877 F.3d 14, 24 (1st Cir. 2017) (citing Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009)).

Applying these principles to the instant case compels the conclusion that the

B. Statute of Limitations the Walpole store to the Randolph store, and claims arising out of his taking FMLA leave, or not

being reinstated upon the end of his FMLA leave, are time-barred. (Def. SJ Br. at 4-8). This court agrees. As the court in Kahriman v. Wal-Mart Stores, Inc. explained,

The ADA adopts the procedural provisions governing Title VII, and as a result, the statutes and case law discussing the statute of limitations in the Title VII context are equally applicable here. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 n.7 (1st Cir. 2009). Under both Title VII and chapter 151B, a plaintiff must file an administrative complaint with the MCAD or the EEOC within 300 days of the date of the occurrence of the alleged unlawful employment practice. See 42 U.S.C. § 2000e 5(e)(1); Mass. Gen. Laws ch. 151B, § 5; Tuli v. Brigham & Women's Hosp., 656 F.3d 33, 40 (1st Cir. 2011); Ocean Spray Cranberries, Inc. v. Mass. Comm'n Against Discrimination, 441 Mass. 632, 808 N.E.2d 257, 265 66 (2004). 115 F. Supp. 3d 153, 160 (D. Mass. 2015) (footnote omitted). 9

The statute of limitations for a discrimination claim begins to run when an employee learns of the allegedly adverse employment action. , 27 F.3d 746, 749 (1st Cir. 1994).

9 Although the charge-filing period for Title VII claims is typically 180 days, it is extended to 300 days where the state anti-discrimination agency enforces a parallel state or local law, as the MCAD does. Kahriman, 115 F. Supp. 3d at 160 n.5 (citing 42 U.S.C. § 2000e 5(e)(1); 42 U.S.C. § 12117(a); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002); and Williams v. City of Brockton, 59 F. Supp. 3d 228, 245 (D. Mass. 2014)). Tarbell filed his charge with the MCAD and EEOC on July 2, 2013. As 300 days prior to July 2, 2013 was September 5, 2012, all alleged discrete actions of discrimination of which Tarbell was aware prior to September 5, 2012 are time-barred. This includes any claim based transfer Tarbell away from the Walpole store in May 2012, any claim any claim related to Tarbell being forced to take FMLA leave. 10 Thus, the only discrete, non-time-barred acts of alleged disability discrimination in this after

the exhaustion of his FMLA leave, in the form of reduced hours or a leave of absence; 11

and (3) See Pl. SJ Opp. at 1).

C. Disability Discrimination under the ADA and Chapter 151B prima facie case of disability discrimination under the ADA and Chapter 151B. This court agrees.

As the court in Boadi v. Center for Human Development, Inc. has explained,

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures,

10 ‘ actions barred by the statute of limitations. See also Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 129 (1st Cir. 2009) (discrete discriminatory acts triggering the statutory limitations period include denial of transfer, refusal to hire, refusal to accommodate, and termination). To the extent that Tarbell argues that these actions should be co ‘ proffered reason for his termination is pretextural, see the discussion below on the merits of his disability claims under the ADA and Chapter 151B. 11 The parties disagree as to whether Tarbell has properly alleged as a cause of action disability discrimination for failure to accommodate. See note 2. However, as discussed below, this court finds that even if properly asserted, a claim for failure to reasonably accommodate would fail on the merits

the hiring, advancement, or discharge of employees, employee compen- sation, job training, and other terms, conditions, and privileges of Similarly, Chapter 151B prohibits the same types of DiBlasi v. Liberty Mut. Grp., Inc., Civil Action No. 12-10967-RGS, 2014 WL 1331056, at *14 (D. Mass. April 3, 2014). 239 F. Supp. 3d 333, 349 (D. Mass. 2017). A plaintiff may prove a claim of disability discrimina- tion under the ADA and Chapter 151B by either direct or indirect evidence. Id. (citing Jacques v. Clean Up Grp., Inc., 96 F.3d 506, 511 (1st Cir. 1996)). Because Tarbell does not present direct evidence of discrimination, his -stage burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802- Id. at 349-50 (quoting Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 138 (1st Cir. 2012); and citing Moebius v. Tharperobbins Co., Civil Action No. 15-10751-MBB, 2016 WL 6476941, at *8 (D. Mass. Nov. 1, 2016)).

As the court further explained, pursuant to the McDonnell Douglas framework:

Plaintiff has the initial burden to establish a prima facie case under this framework. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. - Moebius, 2016 WL 6476941, at *8 (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If Plaintiff establishes the inference, the burden shifts to Defen- dant[] -discriminatory reason for its acti Ramos Echevarría v. Pichis, Inc., 659 F.3d 182, 186-87 (1st Cir. 2011) (citing Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir. 2007)); see also McDonnell Douglas Corp. employer offers a non-discriminatory reason, the burden then shifts back to the plaintiff to show that the employer's justification is mere pretext Ramos Echevarría, 659 F.3d at 187 (citing Freadman, 484 F.3d at 99). Id. at 350.

argues that Tarbell has failed to establish a prima facie case of disability discrimination under the ADA and Chapter 151B. To establish a prima facie case of disability discrimination at the first McDonnell Douglas stage, Plaintiff has the burden of sho that (1) [he] suffers from a disability or handicap, as defined by the ADA and Chapter 151B, that (2) [he] was nevertheless able to perform the essential functions of [his] job, either with or without reasonable accommodation, and that (3) [his employer] took an adverse [employment] action against [him] because of, in whole or in part, [his] protected disability. Id. (footnote omitted) (quoting Tobin, 433 F.3d at 104). 12

In order to prove failure to accommodate a disability under the ADA and Chapter 151B, a plaintiff must also prove that second element, that with or without reasonable accommodation, plaintiff was a qualified individual able to perform the essential functions of the position involved. See Fiumara v. President & Fellows of Harvard Coll., 526 F. Supp. 2d 150, 156 (D. Mass. 2007), .

could have performed the essential job functions with or without reasonable accommodation, between the the date that Tarbell - terminated. (See Def. SJ Br. at 9-10). In return, Tarbell argues that the evidentiary record supports that he could have performed the jobs of Assistant Manager and

12 See dual who, with or without reasonable accommodation, can perform the essential functions of the employment position Mass. Gen. Laws son who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job See also Boadi, 239 F. Supp. 3d at 350 n.18 ( handicap and citing 42 U.S.C. § 12102(2) and Mass. Gen. Laws ch. 151B, § 1(17)). Paint Advisor in Canton, despite his heart condition, 13

with the accommodation of a leave of absence and/or a reduction in hours, and that those accommodations were reasonable. (See Pl. SJ Opp. at 11-13).

After thorough consideration of the record, this court concludes that there is no evidence that shows, or tends to show, that after May 2012, Tarbell could have performed any ne , including those of Assistant Manager and Paint Advisor in Canton. Furthermore, the accommodations that Tarbell asserts would have enabled him to perform the essential functions of those jobs a leave of absence and/or reduction in hours were not reasonable given that there is no evidence that Tarbell could perform either job, even with reduced hours, and because, assuming Tarbell requested leave, the leave he requested was indefinite.

There is no evidence in the record that shows or tends to show, that Tarbell was qualified to perform the essential functions of s, including the Canton Assistant Manager position and the Canton Paint Advisor position, from May 14, 2012 through the date of his termination. that he was not medically capable of taking on a new position. (Def. Ex. 5). This restriction was reiterated June 11, 2012 s May 22 FMLA form, stating [i]ncreased stress caused by changing job positions or assignments at this time could be deleterious to his health and I do not recommend it for medical reasons 13

‘ at Tarbell was disabled. (See Def. SJ Br. at 9 n.6). Ex. 9 (emphasis added)). Thus, the medical notes from May 14 and May 22, as clarified by the June 11 letter, restricted Tarbell from taking any new position due to the stress such a change would cause.

In her August 24, 2012 letter, Dr. Thompson reiterated the limitation when she can continue working with the same restrictions I

On its face, the plain meaning of this note is that Tarbell could return to work, but only in the same position that he had held previously in Walpole but without the added business caused by the closure of the Norwood store. In short, to the extent [him] to return to work, was to a position that simply no longer existed. (Pl. SJ Opp. at 11-12; PR ¶ 61). 14

There- fore, Tarbell has failed to meet his burden of providing evidence that he was capable of performing the essent with or without accommo- dation.

Accommodation of a Leave of Absence and/or Reduced Hours Tarbell argues that he could have performed the positions of Assistant Manager and Paint Advisor with an accommodation in the form of a leave of absence and/or a reduction in

14 Tarbell contends that the August 24, 2012 note approves him for a position as the Canton Assistant Manager and only prohibits him from taking a position that he, himself, felt would cause him undue stress. (See PR ¶ communications reasonably ca‘ proposition that would get the information from his doctor. hours. (Pl. SJ Opp. at 13-15). However, the record indicates discuss such alternatives once it obtained confirmation from Tarbel fact, be able to perform the job with such accommodations, 15

Tarbell never received such a note from his doctor, and the doctor had repeated that Tarbell could not take on a new job. In s notes s not obligated to offer either the position of Assistant Manager or Paint Advisor to Tarbell as an accommodation, as those positions were at that time See Jones v. Wallgreens, 765 F. Supp. 2d 100, 108 n.3 (D. Mass. 2011) , 679 F.3d 9 (1st Cir. 2012) ).

hold those positions open indefinitely for Tarbell. Indeed, after Markham offered the positions of Assistant Manager and Paint Advisor to Tarbell, she held them open for at least four weeks and two weeks, respectively, during which Tarbell was given the opportunity to provide medical clearance indicating that he could perform a new position. (See DF ¶¶ 50, 66, 73). It was entirely reasonable for

Rocky ositions when it became an undue hardship for the Canton store to operate without them. See Watkins v. J & S Oil Co., 164 F.3d 55, 61-62 (1st Cir. 1998) (affirming position open would not be considered a

15 Tarbell provided medical clearance to perform that job. (See Def. Ex. 3 at 56-57; PR ¶ 66). However, the record does not support that Tarbell received medical clearance to perform that job prior to his termination. reasonable acc employer).

Nonetheless, Tarbell argues that he could have performed the Assistant Manager or Paint Advisor position with the accommodation of a leave of absence to undergo and recover from his heart surgery, after the exhaustion of his FMLA leave. The parties dispute whether Tarbell actually requested an extension of his leave to undergo and recover from heart surgery. However, even assuming that he did request such an accommodation, the record evidence shows that Tarbell did not sufficiently communicate a prospective return to work date, or even a date by which he would have been able to provide a prospective return to work date. nder Massachusetts and federal law, a leave of absence and leave extensions are reasonable accommodati [a]n open-ended or indefinite leave extension . . Fiumara, 526 F. Supp. 2d at 157 (citing Watkins, 164 F.3d at 61-62; Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 455-56, 772 N.E.2d 1054, 1064 (2002)).

ther to guess what was going on, or to extend his leave indefinitely. See Fiumara, 526 F. Supp. 2d at 158.

Tarbell argues that he did not communicate with Markham in September because by dribs and drabs of information and therefore Tarbell was waiting to communicate his needs for accommodation until he had all of the information about his health condition and limitations. (See Tarbell Dep. at 165, 166). However, he did not even communicate that he was going to hold off sharing information, terminated his position. In fact, he did not attempt to reopen lines of communication after he received the notice. Thus, his request for an accommodation in the form of an extension of a medical leave, if he in fact made such a request in August 2012, was, , nder no obligation to provide such an accommodation.

Finally, by September 17, 2012, both the Paint Advisor and the Assistant Manager positions in Canton had been filled. Tarbell has provided no evidence that, as of the date of his termination, there was performing, and Chapter 151B or the ADA to create a position for Tarbell. See Russell, 437 Mass. at 454, 772 N.E.2d at 1063 (citing August v. Offices Unlimited, Inc., 981 F.2d 576, 581 n.4 (1st Cir. 1992)).

Tarbell has failed to meet his burden of showing that he could perform essential job functions with or without reasonable accommodation.


/ s / Judith Gail Dein Judith Gail Dein United States Magistrate Judge

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