United States Court of Appeals
For the First Circuit
No. 09-1663
EDWARD MARTINO,
Plaintiff, Appellant,
v.
FORWARD AIR, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Kevin G. Powers with whom Linda Evans and Rodgers, Powers &
Schwartz LLP were on brief for appellant.
David C. Casey with whom Amy E. Mendenhall and Littler
Mendelson P.C. were on brief for appellee.
Catherine Ziehl, General Counsel/Special Assistant Attorney
General, and Beverly Ward, Commission Counsel, were on brief for
the Commonwealth of Massachusetts Commission Against
Discrimination, amicus curiae.
June 14, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
STAHL, Circuit Judge. Edward Martino, the plaintiff-
appellant, brought a variety of claims against Forward Air alleging
that the company did not hire him because of discrimination based
on disability. The district court dismissed two of his claims
during trial, concluding that the statutes at issue did not provide
private rights of action. The jury found in favor of Forward Air,
determining that the company had not discriminated based on
disability when it decided not to hire Martino.
On appeal, Martino does not contest the jury verdict as
to discrimination. He only argues that the district court
improperly dismissed his claim that Forward Air committed a
separate, actionable wrong by making a preemployment inquiry
regarding his workers' compensation history. Martino brought this
"illegal inquiry" claim under both the Massachusetts Fair
Employment Practices Act, Mass. Gen. Laws ch. 151B, § 4(16), and
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d)(2).
The district court dismissed both claims but Martino only appeals
the dismissal of the state law claim.
We review the grant of a motion to dismiss de novo. See
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
5 (1st Cir. 2005). In order to survive a motion to dismiss, a
complaint must "contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face."
SEC v. Tambone, 597 F.3d 436, 444 (1st Cir. 2010) (en banc)
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(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)) (internal
quotation marks omitted). We accept as true all well-pleaded facts
in the complaint and make all reasonable inferences in plaintiff's
favor. See Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 11
(1st Cir. 2010).
In this case, we do not reach the question of whether the
Massachusetts statute provides an independent cause of action for
preemployment inquiries regarding disability. Rather, because the
jury already concluded that Martino suffered no discriminatory harm
and he has alleged no other cognizable harm, we conclude that, even
if we assume that a private cause of action is available, Martino's
claim would necessarily fail.
The facts of the case are straightforward. Edward
Martino had long worked in the freight forwarding industry. In
2003 he was seriously injured on the job. As a result, he was out
of work for two years and received a workers' compensation
settlement. In 2005, having heard that Forward Air was considering
creating a new position for which he might be qualified, Martino
submitted an employment application and signed a background check
authorization form. During his interview, when asked about his
two-year employment gap, Martino stated that he had been out on
workers' compensation leave while recovering from his injuries. In
response, the Forward Air manager conducting the interview asked
that Martino provide a doctor's note stating that he was cleared to
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return to work. The manager also informed Martino that he was
unsure whether he would create the new position but would remain in
contact with Martino. The manager submitted a background check
request to a company called Pre-employ.com,1 and specifically
requested information regarding Martino's workers' compensation
history.2 A few months later, according to Forward Air, the
company decided not to create the new position for business
reasons, and so informed Martino. At trial, Martino alleged that
the manager told him (and, at another point, also told Martino's
wife, who works in the same industry) that the background check
revealed that Martino had a workers' compensation history, that
hiring him would cause the company's insurance rates to rise, and
that he would therefore be a "liability" for Forward Air.
Martino brought a variety of discrimination claims
against Forward Air under both state and federal law. During
trial, the district court, in an oral order, dismissed Martino's
claims that Forward Air's preemployment inquiry regarding Martino's
workers' compensation history constituted independent, actionable
violations of Massachusetts and federal law (respectively, Mass.
Gen. Laws ch. 151B, § 4(16) and 42 U.S.C. § 12112(d)(2)). The
1
Martino originally named Pre-employ.com as a defendant in
this action but the parties entered into a stipulation of dismissal
of those claims before trial.
2
Forward Air argued at trial that it sought the workers'
compensation history in order to confirm that Martino's explanation
of the cause of his two-year gap was truthful.
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district court's reason for dismissing these "illegal inquiry"
claims was as follows:
[I]t is my view that both the federal and state
law ban discrimination, and that an improper
[workers'] compensation inquiry is one way that
you can prove there was a discriminatory intent.
I do not think it is a freestanding cause of
action, because I cannot find anything in the
statute itself that specifically ties damages to
that act itself, although I agree, as I
instructed the jury that it is relevant to their
consideration of whether there was, in fact,
discriminatory conduct.
Following dismissal of the illegal inquiry claims, the jury was
tasked with deciding whether Forward Air discriminated against
Martino based on disability. The judge instructed the jury that it
was free to consider the alleged inquiry into Martino's workers'
compensation history as proof of discriminatory animus. The jury
returned a verdict favorable to Forward Air, finding that it did
not discriminate. Presumably the jury believed Forward Air's
explanation that it chose not create the new position for business
reasons alone.
As previously stated, Martino only appeals the district
court's dismissal of his illegal inquiry claim brought under the
state statute, which reads as follows:
It shall be an unlawful practice:
16. For any employer, personally or through an
agent, to dismiss from employment or refuse to hire,
rehire or advance in employment or otherwise
discriminate against, because of his handicap, any
person alleging to be a qualified handicapped
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person, capable of performing the essential
functions of the position involved with reasonable
accommodation, unless the employer can demonstrate
that the accommodation required to be made to the
physical or mental limitations of the person would
impose an undue hardship to the employer's business.
For purposes of this subsection, the word employer
shall include an agency which employs individuals
directly for the purpose of furnishing part-time or
temporary help to others.
In determining whether an accommodation would impose
an undue hardship on the conduct of the employer's
business, factors to be considered include:--
(1) the overall size of the employer's business with
respect to the number of employees, number and type
of facilities, and size of budget or available
assets;
(2) the type of the employer's operation, including
the composition and structure of the employer's
workforce; and
(3) the nature and cost of the accommodation needed.
Physical or mental job qualification requirement
with respect to hiring, promotion, demotion or
dismissal from employment or any other change in
employment status or responsibilities shall be
functionally related to the specific job or jobs for
which the individual is being considered and shall
be consistent with the safe and lawful performance
of the job.
An employer may not make preemployment inquiry of an
applicant as to whether the applicant is a
handicapped individual or as to the nature or
severity of the handicap, except that an employer
may condition an offer of employment on the results
of a medical examination conducted solely for the
purpose of determining whether the employee, with
reasonable accommodation, is capable of performing
the essential functions of the job, and an employer
may invite applicants to voluntarily disclose their
handicap for purposes of assisting the employer in
its affirmative action efforts.
Mass. Gen. Laws ch. 151B, § 4(16) (emphasis added).
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The parties and amicus curiae, the Massachusetts
Commission Against Discrimination (MCAD), dispute whether this
statute provides a private right of action on the basis of an
illegal inquiry alone. We are sympathetic to the district court's
conclusion that the statute's plain language does not provide such
a cause of action because the statute makes discrimination based on
disability an "unlawful practice," but does not do the same for the
paragraph discussing preemployment inquiries. On the other hand,
the MCAD argues that the illegal inquiry paragraph applies to the
broader class of job "applicants," rather than just the narrower
class of "employees" covered by the first paragraph, and therefore
permits a cause of action for an illegal preemployment inquiry,
even without proof of disability.3 While there are some
differences in the relevant language of the ADA and of Mass. Gen.
Laws ch. 151B, § 4(16), the MCAD notes several federal cases which
it says supports its position. See, e.g., Harrison v. Benchmark
Elecs. Huntsville, Inc., 593 F.3d 1206, 1213-14 (11th Cir. 2010)
(interpreting the ADA's illegal inquiry provision, 42 U.S.C. §
12112(d)(2), as applying to the broader class of "applicants" and
therefore creating an independent cause of action that does not
3
While the MCAD's interpretation of ch. 151B is entitled to
deference, see Sensing v. Outback Steakhouse of Florida, LLC, 575
F.3d 145, 153 (1st Cir. 2009), its views are not dispositive, see,
e.g., Mass. Bay Transp. Auth. v. Mass. Comm'n Against
Discrimination, 879 N.E.2d 36, 48 (Mass. 2008) (reversing MCAD
determination where plain language of statute contradicted the
agency's conclusion).
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require proof of disability). In addition, it is instructive that
several circuit courts have concluded that the federal ADA
provision, § 12112(d)(2), does indeed provide a separate cause of
action irrespective of the plaintiff's disability status.4 See
Harrison, 593 F.3d at 1214; Murdock v. Washington, 193 F.3d 510,
512 (7th Cir. 1999); Fredenburg v. Contra Costa County Dep't of
Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999); Griffin v.
Steeltek, Inc. ("Griffin I"), 160 F.3d 591, 594 (10th Cir. 1998).
But here we need not decide whether there is indeed a
cause of action under the Massachusetts statute because, even
assuming such a claim were permitted, there is no doubt that a
plaintiff would need to show proof of injury caused by the illegal
questioning in order to recover damages. See Davis v. Passman, 442
U.S. 228, 239 (1979) (noting that a "cause of action is a question
of whether a particular plaintiff is a member of the class of
litigants that may, as a matter of law, appropriately invoke the
power of the court; and relief is a question of the various
remedies a federal court may make available"). Every circuit court
to consider illegal inquiry claims under the parallel federal
statute, 42 U.S.C. § 12122(d)(2), has concluded that proof of
4
"Chapter 151B is considered the 'Massachusetts analogue' to
the federal Americans with Disabilities Act." Sensing, 575 F.3d at
153. As a result, "[t]he Supreme Judicial Court of Massachusetts
has indicated that federal case law construing the ADA should be
followed in interpreting the Massachusetts disability law." Ward
v. Mass. Health Research Inst., 209 F.3d 29, 33 n.2 (1st Cir.
2000).
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actual harm is required for recovery. See Griffin v. Steeltek,
Inc. ("Griffin II"), 261 F.3d 1026, 1028-29 (10th Cir. 2001);
Cossette v. Minn. Power & Light, 188 F.3d 964, 971-72 (8th Cir.
1999); Armstrong v. Turner Indus., Inc., 141 F.3d 554, 561-62 (5th
Cir. 1998); see also Tice v. Centre Area Transp. Auth., 247 F.3d
506, 519 (3d Cir. 2001) (requiring "prejudice" showing to sustain
a claim under 42 U.S.C. §12112(d)(3) regarding confidentiality of
medical records). In addition, the MCAD agrees that the
Massachusetts statute does not permit individual recovery for a
"technical violation" of § 14(6), i.e. merely asking preemployment
questions about disability, but instead requires a showing of "some
resulting harm."5
Martino alleged that he suffered various injuries due to
the supposedly improper inquiry into his workers' compensation
history. The most important of these was that he was allegedly
denied employment on the basis of the disability information
uncovered by the preemployment background check. But the jury
concluded that Forward Air did not discriminate but rather had a
legitimate business reason for deciding not to create the new
position. The jury's conclusion means that Martino cannot prove
the most obvious type of harm -- a wrongful employment action.
5
MCAD further asserts that "at a minimum, a plaintiff must
allege and establish that he or she is qualified for a position,
that the employer made an unlawful inquiry, and that an injury in
fact or adverse action was caused by the unlawful inquiry."
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Martino also alleged in his complaint that he suffered
emotional harm because of Forward Air's preemployment inquiry. The
argument Martino made to the jury was that he was emotionally
harmed by the "stress" caused by realizing that "a company could
have an online check of him just by pressing a couple of buttons."
This alleged generalized fear of the loss of anonymity caused by
the ubiquity of personal information available online is not
logically related to any action taken by Forward Air and is far too
tenuous to support recovery. Finally, on appeal, Martino for the
first time argues that he suffered an invasion of privacy because
of the inquiry. Because he failed to raise this allegation below,
Martino has waived invasion of privacy as a potential ground for
recovery.6 See, e.g., Ondine Shipping Corp. v. Cataldo, 24 F.3d
353, 355-56 (1st Cir. 1994). Without any cognizable allegation of
harm, Martino's claim necessary fails.7
6
Before the district court, Martino brought a breach of
privacy claim under Mass. Gen. Laws ch. 214, § 1B, against Pre-
employ.com, but did not raise the issue of privacy as against
Forward Air.
7
To the extent that Martino premises the illegal inquiry claim
on a request for injunctive relief, we find no abuse of discretion
in the district court's denial of his claim. In his complaint he
asked that Forward Air be enjoined from sharing his workers'
compensation history with other employers in the industry. But
Martino's request for injunctive relief is purely speculative; he
put forth no evidence suggesting that "the injury or threat of
injury [is] both real and immediate, not [merely] conjectural or
hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983) (citations and internal quotation marks omitted); see also
Armstrong, 141 F.3d at 563-64. In addition, as to Martino's
request for punitive damages, the facts alleged by Martino are not
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Finally, it is worth emphasizing that regardless of
whether a private right of action exists, the MCAD retains its
authority pursuant to Mass. Gen. Laws ch. 151B, § 5, to seek and
enforce remedial measures against employers who make illegal
preemployment inquiries regarding disability.8
For the foregoing reasons, we affirm the district court's
dismissal of Martino's state law claim.
Affirmed.
"even remotely sufficient to approach the type of conduct required
to support punitive damages." Armstrong, 141 F.3d at 562 n.21.
8
As the MCAD noted in its brief, it may order employers to
"cease and desist the unlawful activity, undergo training, adopt
appropriate policies and pay a civil penalty."
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