July 18, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1001
BEVERLY RUTH D'APRILE,
Plaintiff - Appellant,
v.
FLEET SERVICES CORP.,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Cyr, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Gertner,* District Judge.
Frank J. Manni, with whom John F. DiMeglio was on brief for
appellant.
Lynette Labinger, Roney & Labinger, Christopher M. Mulhearn
and Rodio & Brown on brief for Rhode Island Affiliate American
Civil Liberties Union and Rhode Island Protection and Advocacy
System, Inc., amici curiae.
Cynthia M. Hiatt on brief for Rhode Island Commission for
Human Rights, amicus curiae.
Lincoln D. Almond, with whom Mark A. Pogue and Edwards &
Angell were on brief for appellee.
* Of the District of Massachusetts, sitting by designation.
GERTNER, District Judge. Plaintiff Beverly Ruth
GERTNER, District Judge.
D'Aprile brought this action in the United States District for
the District of Rhode Island against her former employer,
defendant Fleet Services Corporation ("Fleet"). She charged
Fleet with violation of the handicap discrimination provisions of
the Rhode Island Fair Employment Practices Act, R.I. Gen. Laws
28-5-1, et seq., on account of Fleet's alleged refusal to
reasonably accommodate the symptoms she experienced from Multiple
Sclerosis ("MS").1
MS is a degenerative nerve disorder which can produce
symptoms ranging from fatigue and numbness to paralysis and
death. The severity of symptoms is related in part to the amount
of stress experienced by the patient. In D'Aprile's case, she
alleges that her symptoms were sufficiently in abeyance that she
was capable of performing her job as a Senior Systems Support
Analyst. She contends, however, that she needed the
accommodation of being permitted to work only a part-time
schedule for a short time (one to two months) so that she could
slowly reacclimate herself to full-time work. Her claim that
Fleet refused to provide this accommodation constitutes the
gravamen of her case.
On November 22, 1995, the district court granted
Fleet's motion for summary judgment. The district court
1 R.I. Gen. Laws 28-5-7(1) generally makes it unlawful to
refuse to hire, or to discriminate against an employee on the
basis of handicap. R.I. Gen. Laws 28-5-7(1)(i)-(iii). In
addition, the statute specifically makes it unlawful "to refuse
to reasonably accommodate an employee's or prospective employee's
handicap unless the employer can demonstrate that the
accommodation would pose a hardship on the employer's program,
enterprise, or business." R.I. Gen. Laws 28-5-7(1)(iv).
concluded that summary judgment was mandated by our earlier
decision in August v. Offices Unlimited, Inc., 981 F.2d 576 (1st
Cir. 1992). Because we disagree that August mandates judgment
for the defendant in this case, we reverse.
BACKGROUND
BACKGROUND
In November 1991, D'Aprile commenced employment with
Fleet on a full-time basis. In January of 1992, D'Aprile began
to experience the first symptoms of MS, a numbness in her leg
which lasted for four days. Then, in July of 1992, she began to
experience numbness in the entire left side of her body, and took
a medical leave of absence for the entire month of July.
D'Aprile's symptoms recurred in October of 1992, at
which time she was diagnosed with MS. As a result of her
symptoms, D'Aprile was unable to travel to work from October 1,
1992 until January 31, 1993. In the beginning of this period of
absence, during October and November, D'Aprile continued to work
at home, and Fleet provided her with a computer to allow her to
do so. By the end of November, however, D'Aprile's condition
deteriorated to the point that she completely ceased working.
In January of 1993, D'Aprile's symptoms abated
somewhat, and she expressed a desire to return to work. Her
doctor advised her that she should return to a full-time position
in stages, beginning with part-time work. Accordingly, D'Aprile
later asked her supervisor, Debbie Sullivan, for permission to
return on a part-time basis for a two month period. In
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particular, she asked if she could work three days per week
(taking Mondays and Fridays off) until she felt strong enough to
resume a full-time schedule. She told Sullivan that she would
take eight vacation days for the first month so that she could
continue receiving a full-time salary. According to D'Aprile,
Sullivan told her that her proposed arrangement sounded okay, and
that she was willing to "work with" D'Aprile, but that she would
have to get back to her about it after checking with Diane
DeCosta, the Human Resources Manager.
D'Aprile states that on January 19, 1993, Sullivan
called her back and told her that it was against company policy
for her to work part-time. D'Aprile then called Henry Korsiak,
Sullivan's superior. Korsiak endorsed Sullivan's description of
company policy. D'Aprile then asked Korsiak about another
employee, Mary Gendreau, who had been permitted to return part-
time after a maternity leave. Korsiak told D'Aprile that
Gendreau had negotiated a "special deal" with her supervisor.
Notwithstanding Fleet's refusal to approve D'Aprile's
proposed part-time work schedule, she returned to work on
February 1, 1993. After her return, she called Jan Wyant, who
worked in Human Resources, and asked her if she could take off
Friday, February 5th and Monday, February 8th. Wyant approved
the absence, and told D'Aprile to take two personal days.
When D'Aprile did not come to work on Friday,
February 5th, she called Korsiak. According to D'Aprile, Korsiak
"screamed" at her, telling her that she had no right to go over
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his head to get permission to take personal days. He told her,
"You said that you were coming back for February 1st and you
should be here, and I don't know why you're not here. And if
you're not here, maybe you shouldn't bother coming back."
D'Aprile states that she was very upset by Korsiak's response,
and interpreted it as an ultimatum that she work full-time or
lose her job.
Despite Korsiak's harsh response, however, D'Aprile
returned to work on the following Tuesday, and continued working
a three day-a-week schedule during the months of February and
March, 1993. As D'Aprile describes it, however, she only managed
to achieve this result "not without a fight." She states that
every time during the February-March period that she requested
time off, the request would initially be denied by Debbie
Sullivan, who took the position that accrued vacation time could
only be used with a supervisor's approval. On each of these
occasions, D'Aprile was forced to appeal to Jan Wyant, who
approved each request.
This weekly pattern of requests for time off, denials
by Sullivan and reluctant approvals by Wyant continued during the
month of February and through most of March. At some point
during this time, Korsiak and Sullivan indicated to D'Aprile that
she had no more vacation time. D'Aprile eventually decided that
she could no longer work under such conditions. Her physical
condition had deteriorated, causing her to feel "very, very
fatigued." After discussing the matter with her doctor, she
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concluded that her symptoms had worsened due to the "stress and
strain" produced by Fleet's refusal to approve her request for a
part-time work schedule. On March 24, 1993, she returned to
disability status.
On March 25, 1993, the day after D'Aprile stopped
working, she submitted a letter from her doctor stating that she
was "unable to work at this time and should be placed on
disability." As a result, D'Aprile received disability benefits
under Fleet's short and long-term disability plans until
January 21, 1995, when those benefits were terminated because
Fleet's insurance carrier found that she was no longer totally
disabled.
STANDARD OF REVIEW
STANDARD OF REVIEW
We review a grant of summary judgment de novo. Mesnick
v. General Electric Co., 950 F.2d 816, 822 (1st Cir. 1991).
Accordingly, we view the entire record in a light most favorable
to the non-moving party, indulging all reasonable inferences in
that party's favor. Id. The entry of summary judgment will be
upheld only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Id.
DISCUSSION
DISCUSSION
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The district court entered judgment in favor of the
defendant solely on the authority of August v. Offices Unlimited,
Inc., supra. In essence, the district court interpreted August
to stand for the proposition that a plaintiff is barred from
claiming handicap discrimination if, after leaving her
employment, she contends that she is "totally disabled" within
the meaning of her employer's disability insurance policy. We
think that August stands for a much narrower proposition.
The plaintiff in August was a furniture salesman who
began to suffer from symptoms of severe clinical depression. As
a result of this depression, August asked for and received a six
week paid leave of absence from his employer. At the end of the
six week period, August advised his employer that he was not yet
able to return to work. His doctor submitted a letter estimating
that August would require an additional two to four weeks to
recuperate. The employer told August that he would be permitted
to take an additional two weeks as vacation, but that he would be
expected to return to work at the end of that period. August,
981 F.2d at 578.
Shortly before his scheduled return, August's employer
asked him if he was feeling "100 percent better." He replied, "I
don't know if I'm 100 percent until I start working." His
employer then advised him that the company would expect "110
percent" from him when he returned, and that he was "going to be
under a lot more pressure than he was prior to leaving." Id. at
579. August then requested that he be allowed to return on a
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part-time schedule, but this was refused. He was told instead
that if he was unable to work full-time, he should consider
applying for disability benefits under the employer's insurance
plan. Id.
The day after being refused a part-time schedule, and
before his scheduled return to work, August submitted a claim
under the company's disability plan. He asserted in his
application for benefits that he had been totally and
continuously disabled starting on a date forty-nine days earlier.
Id. at 579. Thus, by August's own admission, he had been totally
disabled as of the date he requested and was refused the part-
time schedule.
August brought suit under Massachusetts General Laws
ch. 151B, a statute which, like the Rhode Island statute at issue
here, prohibits employment discrimination against people with
disabilities.2 August claimed that his employer had failed to
2 One difference between the two statutes is that the
Massachusetts statute prohibits discrimination against "any
person alleging to be a qualified handicapped person," while the
Rhode Island law simply bars discrimination "because of"
handicap, and requires the employer to "reasonably accommodate"
such handicap. Compare Mass. Gen. Laws ch. 151B 4(16) with
R.I. Gen. Laws 28-5-7. Moreover, the Rhode Island statute
specifically provides that discrimination on the basis of
handicap is unlawful, even if other, lawful, factors motivated
the discriminatory practice. R.I. Gen. Laws 28-5-7.3.
Amici Rhode Island Commission for Human Rights, the Rhode
Island Affiliate of the American Civil Liberties Union and Rhode
Island Protection and Advocacy System, Inc. urge that the Rhode
Island statute creates broader protections than the Massachusetts
law, protecting even those who are not qualified to work from
adverse actions motivated even in part by an employer's
discriminatory animus. We need not decide this question here
since, as we explain below, summary judgment is inappropriate
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reasonably accommodate his handicap by refusing to permit a part-
time work schedule. The district court granted summary judgment
for the employer, and we affirmed. We concluded that "the record
[was] fatally bereft of indication that August possessed the
ability to perform his job." Id. at 581.
Crucial to our conclusion in August was the fact that
August had declared himself to be totally disabled under his
employer's disability plan as of the time he applied for a
reasonable accommodation from his employer. Although the
disability plan's definition of "totally disabled" was not in the
record, we concluded that "[u]nder any definition of the term,
August's declaration that he was 'totally disabled' means that he
was not able to perform the essential functions of his job . . .
with or without reasonable accommodations." Id. at 581. Since
August admitted that he was unable to work at the time he
requested his part-time schedule, we concluded that he was not a
"qualified handicapped person" and thus had failed to make out a
prima facie case under the Massachusetts statute. Id. at 584.
Two facts distinguish D'Aprile's case and therefore
require a different outcome. First, D'Aprile never claimed to
have been totally disabled at the time she requested an
accommodation from Fleet. It was not until after her requests
for a formal part-time schedule had been refused, and after
experiencing the stress resulting from her ad hoc part-time
even on the issue of whether D'Aprile was otherwise qualified to
work.
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status, that she claims to have become totally disabled. The
issue which concerned us in August, that a plaintiff would claim
that he was entitled to a reasonable accommodation at the same
time he claimed to be unable to work at all, is absent here.
In addition, we note that D'Aprile's application for
disability benefits in this case may not have constituted the
broad admission of incapacity that we construed such an
application to be in August. Fleet's short-term disability
policy defines a "totally disabled" employee as one "who is
unable to perform the material duties of his/her job for the
entire regularly scheduled work week as the result of an illness
or injury and requires the ongoing care of a physician. . ."
Such a disabled employee who "is unable to work" is entitled to
benefits. D'Aprile's contention, that she was unable to work
because her employer refused to permit a temporary part-time
schedule, is entirely consistent with her claim to have been
"totally disabled" within the meaning of the policy. It does not
constitute an admission that she had been unable to work with the
accommodation of a part-time schedule prior to that point.
August simply stands for the proposition that the
plaintiff's ability to work with reasonable accommodation is an
element of a handicap employment discrimination case under
Massachusetts law. Under the particular facts of that case, we
found that August's application for disability insurance,
combined with his demonstrated inability to perform any work
(before or after the requested accommodation) eliminated any
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genuine issue as to his ability to work with reasonable
accommodation. Since D'Aprile never claimed to have been totally
disabled during the time she requested her accommodation, and
demonstrated her ability to work with the accommodation she
requested, the reasoning of August does not apply.
CONCLUSION
CONCLUSION
D'Aprile contends that the accommodation Fleet made --
permitting her to take vacation and personal days on an ad hoc
basis -- was not a reasonable one given the nature of her
condition and its sensitivity to stress factors. She further
asserts that she was capable of working part-time in the absence
of additional stressors, and would have been able to continue her
employment were it not for the hostile and non-cooperative
response of her supervisors to her request for a modified
schedule.
Given that D'Aprile did in fact work part-time for
almost two months after her initial request, she has raised a
genuine issue of material fact as to whether she could have
continued even longer if Fleet had accommodated her as requested.
D'Aprile's subsequent application for disability benefits after
Fleet refused to accommodate her does not resolve this issue
because it sheds no light on how D'Aprile would have fared had
the accommodation been made.
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For the foregoing reasons, the judgment of the district
court is reversed and the case is remanded for further
proceedings consistent with this opinion. Costs to appellant.
SO ORDERED.
SO ORDERED.
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