Benoit v. Technical Manufacturing Corp.

United States Court of Appeals
For the First Circuit

No. 02-1519

JOSEPH BENOIT,

Plaintiff, Appellant,

v.

TECHNICAL MANUFACTURING CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Lipez and Howard,
Circuit Judges.

Matthew Cobb, with whom Law Office of Matthew Cobb was on
brief, for appellant.
Mark A. Walsh, with whom LeBoeuf, Lamb, Greene & MacRae, LLP
was on brief, for appellee.

June 9, 2003
 HOWARD, Circuit Judge. Plaintiff-appellant Joseph Benoit

("Benoit") appeals an award of summary judgment to defendant

Technical Manufacturing Corporation ("TMC") on his claims of

discrimination and retaliation on account of disability, race,

color, and national origin in violation of a number of federal and

Massachusetts statutes. Agreeing with the district court that no

genuine issue of material fact exists, we affirm.

I. FACTUAL BACKGROUND

Benoit is a black male of Haitian origin. In October

1991, TMC hired Benoit as a "finisher." TMC manufactures

specialized optical and laboratory tables and tabletop platforms.

Benoit's job duties included checking the flatness of completed

tables, installing table siding and corners, building wooden crates

for the tables, and crating the finished tables for shipping.

Benoit was an at-will employee.

A. Job Performance

Benoit was a capable worker who consistently received

above-average annual ratings for his job performance. His skills

and ability were recognized by his former supervisors, David Byrne

and Manuel Eugenio, as well as by the owner of TMC, Ulf Heide.

Heide described Benoit as a "very talented employee" who was

"capable of very good work." But this did not mean that Benoit's

experience at TMC was a smooth one. Although Benoit displayed

technical proficiency, he was late or absent during the work week

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for 35 out of 52 weeks in 1996, 28 out of 52 weeks in 1997, and 8

out of 12 weeks in 1998, the year in which he was fired. TMC fired

seven employees for excessive absenteeism between 1995 and 1999,

five of whom were white.

Benoit's annual performance evaluations reflected both

his above-average work performance and his problems with tardiness

and absenteeism. In 1995 and 1996, Benoit received many ratings of

"exceptional" for his work ability, yet received the lowest

possible rating for attendance and punctuality. His boss, Eugenio,

frequently reprimanded Benoit about this behavior.

On September 23, 1996, Benoit received a formal written

warning that identified his lateness as habitual and cautioned him

that if it continued, he would be disciplined with a two-day

suspension. TMC's employment handbook states that "[p]oor

attendance and excessive tardiness are disruptive. Either may lead

to disciplinary action, up to and including termination of

employment." The handbook also describes the various kinds of

disciplinary action that may be taken at TMC's discretion,

including verbal warnings, written warnings, suspension, and

termination. Although the section entitled "Progressive

Discipline" indicates that these steps will "normally" be followed

in order, the handbook also states that under some circumstances

one or more of the steps may be bypassed altogether.

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 On March 3, 1997, Eugenio, Heide, Teresa Drelick (TMC's

Vice President and Chief Financial Officer), and Jim Hansen (TMC's

Vice President of Manufacturing) spoke with Benoit about his

attendance problems. After this meeting, Benoit's punctuality and

dependability improved somewhat. In October 1997, Benoit's

performance evaluation noted this improvement but stated that

Benoit's attendance "still needed work." Benoit's more regular

attendance additionally allowed him to compete in the "attendance

pool": an incentive scheme that allowed those employees who had

perfect attendance for one month to submit their names for a cash

prize. Benoit won this pool on three or four separate occasions.

Despite his improved attendance, Benoit was ultimately

fired on March 30, 1998, without any further written warning, and

without any suspension prior to termination.

B. Work Relations

Benoit had other conflicts at work, all of which involved

Eugenio and Hansen. One day in July 1995, Benoit wanted to leave

early, and he and a co-worker, Steve Maxwell, agreed that Maxwell

would finish Benoit's work for him. When Benoit told Eugenio that

he would be leaving early, Eugenio questioned his decision but

allowed him to go.

Immediately upon his return the next day, Benoit was told

by Eugenio to complete the work he had left unfinished the previous

day. When Benoit asked Maxwell why the work was not completed,

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Maxwell explained that Eugenio would not let him finish Benoit's

work. Benoit confronted Eugenio, who began to yell at Benoit for

failing to finish the work. Benoit asked to see Hansen

immediately. Eugenio agreed, but told Benoit that he had to wait

"outside." Interpreting this comment as a demand that he leave the

building, Benoit waited outside in the equipment yard until Hansen

arrived. Benoit felt that this treatment was unfair and demeaning.

After speaking with Benoit, Hansen supported Eugenio.

Benoit eventually complained to Hansen, on February 18,

1997, that Eugenio routinely treated him worse than his white and

Asian co-workers. Benoit stated that Eugenio's disparate treatment

was evident from Eugenio's practices of disciplining him in front

of everyone and writing him up for his poor attendance even when he

had an excuse. Benoit also made reference to a number of specific

incidents, including the unfinished work incident in 1995, an

incident during which Eugenio screamed at Benoit because he left

his work station two minutes before break to use the men's room,

and an incident during which Eugenio told Benoit that if he left

early on a Friday, he would not be eligible to work overtime on

Saturday. A written summary of these complaints was made, and TMC

began a formal inquiry into the matter.

On February 24, 1997, Benoit signed a more detailed

complaint, which was sent to Drelick. Benoit additionally

complained about discriminatory treatment at a meeting with

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Drelick, Hansen, Heide, and Eugenio on March 3, 1997. In notes

written by Heide at the meeting, Heide observed that Eugenio was a

"very demanding" boss, but stated that he was also their "best

supervisor when it comes to knowing what a good day's work is."

Heide suggested that the real problem was not race, but Benoit's

failure to appreciate the disruptive effect he caused by

continually arriving at work late and leaving early. Heide further

stated that Eugenio's treatment of Benoit was "not picking on him"

but was "a simple expectation of department efficiency."

Benoit believed that his treatment by Eugenio only

worsened after making these complaints. On February 17, 1998,

Eugenio ordered Benoit to clean up a mess another employee had left

in the workroom. Benoit told Eugenio that the mess was not his,

but Eugenio insisted that Benoit clean it anyway. Hansen later

discussed this incident with Benoit on the assembly floor, stating:

"If I drop this cup of coffee on the ground, and ask you to come

and clean it up, you just have to do it." Hansen then approached

Benoit and told him that if he didn't get off the shop floor, he

could "get hurt." Benoit interpreted Hansen's demeanor as

threatening. Although there is no record of any formal complaint,

Benoit states that he reported this incident to Heide, and shortly

afterwards was approached by Hansen, who told him never to discuss

the incident with anyone again. Benoit also stated that Hansen

apologized for his behavior after the incident.

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 C. Physical Effects of Employment

Benoit's job was physically demanding. Benoit and his

co-workers often had to move tables measuring up to twenty feet

long and weighing up to 2000 pounds. Benoit began complaining

orally to Eugenio about back pain in 1994. He suggested that TMC

install "simple stands" to take the pressure off his back when

crating and packaging tables. At least one other department at TMC

used stands similar to those Benoit was requesting, but in Benoit's

department, TMC supplied a forklift, which was rarely used because

it was quite time consuming to operate. In 1996, TMC also made a

pulley available for assistance with lifting. Other than the

addition of the pulley, which was made available independent of any

requests by Benoit, no accommodation was made.

Benoit did not see a doctor regarding his back pain until

March 26, 1998. The day before his doctor's appointment, on March

25, 1998, Benoit's hand slipped off a table and he twisted his

back. He immediately reported the injury to Eugenio. The next

day, Benoit went to his previously scheduled appointment, where he

told the doctor that his back pain had begun about six weeks after

he began working for TMC, and had steadily worsened. The doctor

diagnosed "low back strain and strain of the knees with possible

early osteoarthritis." He further explained that some of the pain

was caused by "improper lifting techniques," and that a major

contributing factor may have been the fact that Benoit had "gained

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20 pounds over the last 10 years." The doctor did not prescribe

any drug treatment for the pain, nor did he give Benoit any

instructions to limit himself to light duty at work. He did,

however, schedule Benoit for further tests, and he suggested that

Benoit talk to his employer about the problem.

Benoit returned to work on Friday, March 27, 1998, and

told Hansen about his recent work injury and doctor's visit.

Benoit did not have a similarly detailed conversation with Eugenio.

Benoit was subsequently put to work as a "grinder," grinding the

tops and edges of the tables in preparation for finishing.

Although the duties of a grinder require no bending and are less

strenuous than those of a finisher, Hansen denies having officially

put Benoit on light duty. Benoit had worked as a grinder on

previous occasions, despite the fact that grinding was not part of

his job description.

Benoit continued to work as a grinder on the following

Monday, March 30, 1998. At the end of the day, Hansen met with

Benoit and told him that he had been fired. He did not give Benoit

any reason for his termination other than, "I have to let you go."

Although Hansen informed Benoit of his termination, it is

undisputed that Drelick alone made the decision to fire Benoit.

Drelick had no knowledge of Benoit's recent injury or longstanding

back problems when she made this decision.

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II. PROCEDURAL BACKGROUND

Approximately two months after his termination, on May 5,

1998, Benoit filed a Charge of Discrimination against TMC with the

Massachusetts Commission Against Discrimination ("MCAD"), alleging

discrimination and "reprisal." In response, TMC filed an MCAD

Position Statement dated July 23, 1998, stating that Benoit was not

discriminated against, but was fired for "repeated refusal to

perform his job duties and repeated failure to meet performance

standards."

On February 8, 2000, Benoit filed this action, claiming

that (1) TMC discriminated against him on the basis of his race,

national origin, or color in violation of Title VII of the 1964

Civil Rights Act, 42 U.S.C. § 2000e ("Title VII") and Mass. Gen.

Laws ch. 151B ("Chapter 151B"); (2) TMC unlawfully retaliated

against him for his complaints about his treatment based on race,

national origin, or color in violation of Title VII; (3) TMC

discriminated against him on the basis of his disability in

violation of Title IX of the Americans with Disabilities Act, 42

U.S.C. § 12102 ("ADA") and Chapter 151B; (4) TMC retaliated against

him in violation of the ADA; and (5) TMC retaliated against him in

violation of Mass. Gen. Laws ch. 152, § 75B, the Commonwealth's

workers' compensation act ("Workers' Compensation Act").

The defendants moved for summary judgment, arguing that

there was insufficient evidence to support Benoit's claims. In

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granting the motion, the District Court concluded that Benoit had

failed to establish a prima facie case of discrimination based on

disability and retaliation, and that Benoit had failed to provide

sufficient evidence to show that TMC's stated reason for his

termination was a pretext for racial discrimination. This appeal

followed.

III. LEGAL ANALYSIS

A. Summary Judgment Standard

We review summary judgment rulings de novo, construing

the record evidence in the light most favorable to the nonmoving

party. Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st

Cir. 2001); Feliciano De La Cruz v. El Conquistador Resort &

Country Club, 218 F.3d 1, 5 (1st Cir. 2000). Summary judgment is

appropriate when "there is no genuine issue as to any material

fact." Fed. R. Civ. P. 56(c). "Even in employment discrimination

cases where elusive concepts such as motive or intent are at

issue," summary judgment is appropriate if the non-moving party

rests "merely upon conclusory allegations, improbable inferences,

and unsupported speculation." Feliciano, 218 F.3d at 5 (quoting

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.

1990))(internal quotations omitted).

B. Discrimination Under Title VII and Chapter 151B

Benoit first contends that the district court erred in

awarding TMC summary judgment on his discrimination claims. Where,

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as here, there is no direct evidence of discrimination,1 we apply

the well-established McDonnell Douglas-Burdine-Hicks burden-

shifting framework. See Straughn, 250 F.3d at 33; Feliciano, 218

F.3d at 5; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792,

804-05 (1973); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S.

248, 256 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993). Although created for use in Title VII cases, this

framework is also applied when evaluating discrimination claims

under Chapter 151B. Mullin v. Raytheon Co., 164 F.3d 696, 699 (1st

Cir. 1999); see also Lewis v. City of Boston, 321 F.3d 207, 213-14

(1st Cir. 2003)(employing the framework in analyzing a

discrimination claim under Chapter 151B). Under this rubric,

Benoit carries the initial burden of establishing a prima facie

case of discrimination. See McDonnell Douglas, 411 U.S. at 802.

To establish a prima facie case of racial discrimination,

Benoit must show that (1) he belonged to a protected class, a

racial minority; (2) he was performing his job at a level that

rules out the possibility that he was fired for job performance;

(3) he suffered an adverse job action by his employer; and (4) his

employer sought a replacement for him with roughly equivalent

qualifications. Smith v. Stratus Computer, Inc., 40 F.3d 11, 15

(1st Cir. 1994); see also Hicks, 509 U.S. at 506; McDonnell

Douglas, 411 U.S. at 802. This initial burden is not an onerous

1
No TMC manager or employee is alleged to have made any
explicit reference to Benoit's race, national origin, or color.

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one, Burdine, 450 U.S. at 253, and we shall assume arguendo that

Benoit has satisfied it.2

Having made this assumption, we take the second step in

our inquiry: whether TMC has articulated "a legitimate, non-

discriminatory reason for its adverse employment action."

Straughn, 250 F.3d at 33 (citing McDonnell Douglas, 411 U.S. at

802). TMC claims that it discharged Benoit because of his

persistent tardiness and frequent absences, and because of his

unwillingness to work cooperatively with his supervisor. This

explanation satisfies TMC's burden of providing a non-

discriminatory reason for its conduct.

"Where, as here, the employer proffers a

nondiscriminatory reason for its action, the burden shifts back to

the plaintiff to show that the reason was a coverup for a

2
As a black Haitian, Benoit was a member of a protected
class. He was good at his job, a fact that was recognized by a
number of TMC managers, from his immediate supervisors to the owner
of TMC. He received satisfactory or above-satisfactory ratings in
every one of his performance evaluations, and it was clear that
when Benoit was at work, he was an asset to the company. Benoit
was fired on March 30, 1998, the quintessential "adverse job
action." TMC did not hire a new employee to fill Benoit's
position, but instead shifted his job responsibilities to his co-
workers. TMC has admitted that other, non-black, employees
performed Benoit's job after his discharge.
Of course, Benoit's tardiness and absenteeism could be taken
to undermine any finding that he was performing his job adequately.
But because TMC has identified these factors in providing a non-
discriminatory explanation for Benoit's termination, we will
assess the correctness of the district court’s summary judgment
ruling by analyzing whether a jury could find TMC's explanation to
be a pretext masking discrimination.

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discriminatory decision." Straughn, 250 F.3d at 34 (internal

quotations omitted). In assessing pretext, the court must look at

the total package of proof offered by the plaintiff. See Mesnick

v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991).

Here, Benoit has not provided sufficient evidence for a

jury to disbelieve TMC's stated reasons for termination, let alone

that those reasons masked racial discrimination. Benoit has not

shown that any other similarly situated employee was treated

differently. Cf. Perkins v. Brigham & Women's Hosp., 78 F.3d 747,

751 (1st Cir. 1996)(holding that the individuals with whom a

plaintiff seeks to be compared must have engaged in the same

conduct without such differentiating or mitigating circumstances as

would distinguish their conduct or the employer's treatment of them

for it). Nor has he established that TMC failed to fire other

employees despite habitual or frequent absences, tardiness, or

conflicts with their supervisors. To the contrary, the record

shows that TMC discharged seven employees for excessive absenteeism

between 1995 and 1999, five of whom were white.

It is true that Benoit's attendance improved somewhat

during the last six months of his employment. But one performance

review stating that Benoit's attendance was "better" but "still

needs improvement" is insufficient to create a trialworthy issue as

to pretext, especially since attendance issues were not the only

reasons given by TMC for firing Benoit. In any event, Benoit was

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late or absent during eight out of his last twelve weeks of work.

No rational factfinder could find for Benoit on the pretext

evidence that has been adduced. Cf. Byrd v. Ronayne, 61 F.3d 1026,

1032 (1st Cir. 1995)(deeming insufficient plaintiff's evidence of

one favorable performance review 15 months prior to termination,

mixed performance evaluations later in that year, and two

performance bonuses).

C. Retaliation Under Title VII

Benoit next argues that the district court erred in

awarding TMC summary judgment on his claim that he was discharged

in retaliation for engaging in conduct protected by Title VII. As

a matter of law, Benoit's retaliation claim may be viable even if

the underlying discrimination claim is not. Mesnick, 950 F.3d at

827 (citing Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 33

(1st Cir. 1990)). Moreover, the employment activity or practice

that Benoit opposed need not be a Title VII violation so long as

Benoit had a reasonable belief that it was, and he communicated

that belief to his employer in good faith. Higgins v. New Balance

Athletic Shoe, Inc., 194 F.3d 252, 261-62 (1st Cir. 1999).

To establish his prima facie case of retaliation under 42

U.S.C. § 2000e-3(a), Benoit must show that (1) he engaged in

protected activity; (2) he suffered an adverse employment action

after or contemporaneous with such activity; and (3) there existed

a causal link between the protected activity and the adverse job

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action. Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994).

Benoit has failed to establish a trialworthy issue as to the last

of these three elements.

Although Benoit engaged in protected activity when he

complained to his supervisors about perceived racial

discrimination, Higgins, 194 F.3d at 262, and was terminated

subsequent to the complaints, there is insufficient evidence for a

jury to find that the two were causally related. Benoit complained

about race and national origin discrimination to Hansen on February

18, 1997, and again in a formal meeting with Drelick, Hansen,

Heide, and Eugenio on March 3, 1997. He was discharged more than

one year later, on March 30, 1998. As this is the sum and

substance of his retaliation evidence, it is insufficient to

forestall summary judgment. See Dressler v. Daniel, 315 F.3d 75,

80 (1st Cir. 2003)("[T]he inference of a causal connection becomes

more tenuous with time."); Mesnick, 950 F.2d at 828 (observing that

a nine-month period between the protected conduct and adverse

action suggested the absence of any causal connection).

D. Discrimination Under ADA and Chapter 151B

Benoit next argues that the district court erred in

granting TMC summary judgment on his disability discrimination

claims. To prevail on such a claim under the ADA or its

Massachusetts analogue, Chapter 151B, Benoit must establish that he

(1) suffered from a disability as defined by the statutes; (2) was

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otherwise qualified to perform the essential functions of his

employment with or without reasonable accommodation; and (3) was

subject to an adverse employment action. Carroll v. Xerox Corp.,

294 F.3d 231, 237 (1st Cir. 2002). Benoit fails to satisfy the

first element.

In order to be considered "disabled" or "handicapped"

under the statutes, Benoit must demonstrate a physical or mental

impairment that substantially limited one or more of his major life

activities. 42 U.S.C. § 12102(2)(A); Mass. Gen. Laws ch. 151B, §

1(17); See Carroll, 294 F.3d at 237 n.3 (stating that, with some

exceptions, the definitions of "disability" under the federal law

are virtually identical to the definitions of "handicap" under

Massachusetts law, and as such the state has looked to federal case

law in interpreting the statute).3

The Supreme Court has held that "these terms need to be

interpreted strictly to create a demanding standard for qualifying

as disabled." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.

184, 197 (2002). A "substantial" limitation cannot include any

impairment which interferes "in only a minor way with the

performance of manual tasks," and the phrase "major life

activities" refers to only those activities which are of "central

3
Although there are instances in which Massachusetts law
diverges from the ADA, no such distinctions are at issue or were
argued in this case, and we accordingly dispose of the state and
federal claims together. See Whitney v. Greenberg, Rosenblatt,
Kull & Bitsoli, P.C., 258 F.3d 30, 32 n.1 (1st Cir. 2001).

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importance to daily life." Id. The impact of the impairment must

also be permanent or long term. Id. at 198; Katz v. City Metal

Co., Inc., 87 F.3d 26, 30-31 (1st Cir. 1996).

Benoit complained of back pain beginning in late 1991,

but the injury was insufficiently severe to merit a doctor's

appointment until March 26, 1998. After his first doctor's

appointment, Benoit was diagnosed as having "low back strain" and

a "strain of the knees." The doctor added that the cause of these

strains could have been "improper lifting techniques" or the fact

that Benoit had gained weight. A follow-up visit on March 31,

1998, revealed that Benoit had back and shoulder sprains. The

subsequent medical reports indicate that Benoit had a physical

impairment.

This impairment, however, does not rise to the level of

"disability" or "handicap" as defined by the statutes, because no

"major life activity" was impaired. Benoit claims that he was

substantially limited in the major life activity of working.

However, the "inability to perform a single, particular job" does

not constitute the required substantial limitation. Lebron-Torres

v. Whitehall Labs., 251 F.3d 236, 240 (1st Cir. 2001)(citing 29

C.F.R. § 1630.2(j)(3)(i)). The only activity that Benoit was

advised by his doctor to avoid was "heavy lifting," and Benoit has

not demonstrated that this precluded him from working in a

substantial class or broad range of jobs. Id. Benoit had

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continued working as a finisher throughout the years despite his

complaints of back pain, and returned to work as a grinder the day

after his doctor's appointment.

Further, there is no indication that the impairment was

permanent or long term. Benoit's medical records indicate that the

impairment was temporary, and the treatment for the injury was

limited to a prescription for anti-inflammatory drugs and pain

relievers. Benoit did not seek further medical attention for his

injury until after a little more than a month had passed, and he

did not indicate to any subsequent employers or prospective

employers that he had any physical restrictions.

Benoit alternatively contends that TMC "regarded" him as

disabled. Thus, he argues, he should be protected, as someone who

"whether actually impaired or not, may be the victim[] of

stereotypic assumptions, myths, and fears regarding such

limitations." Dahill v. Police Dept., 748 N.E. 2d 956, 962-63

(Mass. 2001). The evidence does not support this argument. "A

plaintiff claiming that he is 'regarded' as disabled cannot merely

show that his employer perceived him as somehow disabled; rather,

he must prove that the employer regarded him as disabled within the

meaning of the ADA." Bailey v. Georgia-Pacific Corp., 306 F.3d

1162, 1169 (1st Cir. 2002)(emphasis in original). Although Benoit

requested simple stands to assist with lifting, he at no point

indicated to TMC that he was disabled within the meaning of the

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ADA. The fact that TMC assigned Benoit to the lighter work of

grinding after Benoit sustained a work injury and visited a doctor

shows no more than TMC's possible awareness of a temporary injury.

See Champagne v. Servistar Corp., 138 F.3d 7, 14 (1st Cir.

1998)("That [defendant] voluntarily decided to [accommodate

plaintiff] for a period of time does not establish that [plaintiff]

was disabled or that [this] was a required reasonable

accommodation."); Katz, 87 F.3d at 31 (listing examples of

"impairments that are usually not disabilities because they are

temporary, non-chronic, and of short duration, with little or no

long term or permanent impact," including sprains)(internal

quotations omitted). The evidence shows that TMC believed, at

most, that Benoit was temporarily unable to meet the requirements

of one particular job, that of "finishing." This is not enough.

See Bailey, 306 F.3d at 1170.

E. Retaliation Under the ADA and Workers'
Compensation Act

Finally, Benoit argues that the district court erred in

granting TMC summary judgment on his claims of retaliation under

the ADA and Workers' Compensation Act. We evaluate each of these

arguments in turn.

Under the ADA, as with claims of retaliation under Title

VII, Benoit must establish that (1) he engaged in protected

conduct, (2) he suffered adverse employment action, and (3) there

was a causal connection between his conduct and the adverse action.

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Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997).

As Benoit's claims of retaliation under Title VII failed on the

third element, so too do his claims of retaliation based on

disability.4

We have previously stated that it is "questionable"

whether a plaintiff who merely requests an accommodation fits

within the literal language of 42 U.S.C. § 12203(a). Soileau, 105

F.3d at 16. At the same time, we observed that "it would seem

anomalous . . . to think Congress intended no retaliation

protection for employees who request a reasonable accommodation

unless they also file a formal charge." Id. Accordingly, as in

Soileau, we shall assume arguendo that such behavior on the part of

a plaintiff brings him within the ambit of 42 U.S.C. § 12203(a).

See id.

Benoit has established that he complained about his

injuries to his superiors at TMC. He complained to Eugenio when he

requested simple stands, when he informed Eugenio of the injury he

sustained at work on March 25, 1998, and again when he complained

to Hansen on March 27, 1998, the day after his doctor's

appointment. Benoit has further established that he was fired the

4
The ADA's prohibition against retaliation and coercion
states: "No person shall discriminate against any individual
because such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter." 42
U.S.C. § 12203(a).

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next working day after his last complaint, on Monday, March 30,

1998. However, it is undisputed that Drelick was solely

responsible for the decision to fire Benoit, and that Drelick was

unaware of Benoit's injury and recent doctor's appointment at the

time of that decision. Thus, no reasonable factfinder could

conclude that TMC retaliated against Benoit for complaining about

his impairment.

These same facts underlie Benoit's failure to establish

a trialworthy issue as to retaliation under the Workers'

Compensation Act.5 Drelick fired Benoit without any knowledge of

his injury, let alone any knowledge that Benoit might avail himself

of his rights under the Workers' Compensation Act. As such,

Benoit's final claim of retaliation fails.

IV. CONCLUSION

For the reasons stated above, the judgment of the

district court is affirmed.

5
Under the Workers' Compensation Act, Benoit must demonstrate
that (1) he engaged in an activity protected by the Workers'
Compensation Act; (2) TMC was aware of the protected activity; (3)
TMC thereafter engaged in an adverse employment action; and (4) but
for his engagement in the protected activity, TMC would not have
taken the adverse employment action against Benoit. Fallon v.
Federal Express Corp., Inc., No. 200000367, 2002 WL 31677216, at *6
(Mass. Super. Oct. 11, 2002).

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