Mulloy v. Acushnet Company

United States Court of Appeals
For the First Circuit

No. 05-2160

MICHAEL D. MULLOY,

Plaintiff, Appellant,

v.

ACUSHNET COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya, Lynch, and Lipez, Circuit Judges.

Richard E. Burke, Jr., with whom James Hodgson and Law Offices
of Beauregard, Burke & Franco were on brief, for appellant.
Laurence J. Donoghue, with whom Corinne L. Hood and Morgan,
Brown & Joy, LLP were on brief, for appellee.

August 24, 2006
 LIPEZ, Circuit Judge. Appellant Michael D. Mulloy

appeals from the entry of summary judgment for his former employer,

Acushnet Company, in a suit alleging disability discrimination in

violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C.

§§ 12101-12213, and the Massachusetts anti-discrimination statute,

Mass. Gen. Laws ch. 151B, § 4. Mulloy contends that Acushnet

failed to accommodate his disability when it refused to allow him

to work from a remote location. The district court held that

Mulloy was not a "qualified individual with a disability" under the

ADA or a "qualified handicapped person" under Chapter 151B, § 4.

We affirm.

I.

The following facts are undisputed except as otherwise

noted. Acushnet, headquartered in Fairhaven, Massachusetts,

manufactures and sells golf balls and other golf equipment and

accessories. It has several manufacturing facilities, including a

facility in Dartmouth, Massachusetts ("Ball Plant II"). In

December of 1998, Acushnet hired Michael Mulloy as one of two

electrical engineers at Ball Plant II.

The golf ball manufacturing process uses materials

containing chemical sensitizers known as isocynates. The parties

disagree as to the hazards of isocynate exposure: according to

Acushnet, exposure to isocynates may exacerbate the symptoms of

those with asthma, allergies, or chronic respiratory problems,

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while Mulloy believes isocynate exposure may cause these

conditions. All of Acushnet's manufacturing facilities use

isocynates. As a result, Acushnet has developed a formal isocynate

protocol "[t]o ensure the safe placement of any associate in an

area with isocynate exposure and to provide ongoing medical

monitoring post exposure to isocynates."

From December 1998 through January 2001, Mulloy designed

programs for the golf ball manufacturing machines (governing their

movement and timing); specified, purchased, and supervised the

installation of electronic controls for new and modified equipment;

evaluated machine capabilities and identified mechanical and

electrical changes; trained and supported maintenance personnel to

"troubleshoot" (i.e., respond to malfunctions with) electrical and

electronic controls; supported electrical safety programs; and

specified electrical services for new machines. During this

period, Mulloy spent an average of two hours per day on the

manufacturing floor, and another six hours per day in his cubicle

away from the manufacturing floor. Some days, Mulloy spent all or

a majority of his day on the plant floor. The parties disagree

about whether Mulloy sometimes worked on the plant floor for a full

week or more at a time.

At the time of his hire, Mulloy completed a medical

history form, reporting that he had no allergies, was taking no

medication, and had no prior exposure to isocynates. Nine months

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later, however, Mulloy began to experience throat and chest

tightness and discomfort, and presented Acushnet with a note from

his physician reporting these symptoms. Acushnet responded by

taking steps under its isocynate protocol, which involved Mulloy's

completion of an allergy questionnaire and his taking a pulmonary

function test. Dr. Charles Lutton, Acushnet's occupational

medicine consultant, examined Mulloy and referred him to a

respiratory specialist, who noted no signs of isocynate sensitivity

and cleared him to return to work.

On May 9, 2000, while working in the paint spray room

(where golf balls are spray painted), Mulloy began to feel dizzy.

Over the next several days, he felt "foggy and feverish." Acushnet

kept Mulloy out of the paint spray room pending further pulmonary

function testing and examination by Dr. Lutton. Dr. Lutton

recommended that Mulloy not be exposed to isocynates or another

respiratory irritant, CX-100. Accordingly, Mulloy was restricted

from areas in the plant where these irritants are generated, known

as "red zones," and was reassigned to work on machines outside of

the red zones on the other side of the building, in areas of the

plant such as "core molding" (where the rubber cores of golf balls

are made). When Mulloy needed to work on machines in the red

zones, he did so remotely from the other side of the building by

relying on other personnel to download his programs into these

machines located in the restricted areas.

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 This arrangement worked for over a year. However,

beginning in November 2001, Mulloy began to experience dizziness

and other symptoms while outside of the red zones. Dr. Lutton

examined Mulloy and recommended that he be removed from all

Acushnet buildings where isocynates were used. Accordingly,

Acushnet transferred him to its headquarters in Fairhaven,

Massachusetts, located fifteen miles away from Ball Plant II, where

there is no manufacturing and no use of chemicals such as

isocynates.

The parties disagree about the extent to which Mulloy

continued to perform his job functions in Fairhaven. Mulloy

contends that he continued to perform all of his job functions in

Fairhaven, and even received a positive job performance evaluation

three months after his transfer. Acushnet contends that while

Mulloy was able to perform some of the functions of his job, his

inability to enter the plant prevented him from performing others.

Following his transfer to Fairhaven, the Vice President of Employee

Relations, Ken Riall, consulted with Acushnet's Vice President of

Golf Ball Manufacturing, Eric Bartsch, and its Director of Health

Safety and Field Services, Jean Sutherland, regarding what tasks

Mulloy could perform and what accommodations could be made for his

limitations. Riall specifically asked Bartsch whether Mulloy could

perform his job remotely. Bartsh concluded that Mulloy could not.

Riall did not consult with Kimberly Francis, the Director of

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Engineering at Ball Plant II and Mulloy's immediate supervisor. On

January 10, 2002, Acushnet told Mulloy that his employment would be

terminated effective March 4, 2002.

Approximately 50% of the work that Mulloy used to perform

is now done by Acushnet employees inside the plant. Due to a

shortage of personnel, another 40% of the work Mulloy used to

perform is handled by outside vendors, and the majority of this

work (70%) is likewise performed inside the plant. A small

percentage of the work (10%) that Mulloy used to perform has been

designated low-priority by Acushnet and, therefore, is not being

done.

Since his termination from Acushnet, Mulloy has been

diagnosed with occupational asthma. The parties disagree about the

extent of the limitations imposed by this diagnosis. Mulloy

contends that he is "permanently partially disabled" and can work

only in a "meticulously clean work environment because exposure to

dusts and numerous common chemical compounds . . . can trigger a

respiratory attack." Acushnet argues that, based on the medical

evidence, Mulloy need only avoid working in areas containing

isocynates or other volatile chemicals. Mulloy also contends that

he sustained emotional and psychological damage as a result of his

termination which may preclude him from future employment.

For several years following his termination, Mulloy

sought employment as an electrical engineer and also considered

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other job options such as teaching, to no avail. He eventually

enrolled as a full-time student at Syracuse Law School. On May 28,

2003, Mulloy filed a complaint in the district court, alleging that

Acushnet discriminated against him on the basis of his disability

in violation of the ADA and Chapter 151B, § 4. Acushnet

subsequently filed a motion for summary judgment, which the

district court granted. This appeal followed.

II.

Summary judgment is proper where "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The mere

existence of some alleged factual dispute between the parties will

not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of

material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986) (emphasis in original). "For the purposes of summary

judgment, 'genuine' means that the evidence is such that a

reasonable jury could return a verdict for the nonmoving party, and

a 'material fact' is one which 'might affect the outcome of the

suit under the governing law.'" Seaboard Sur. Co. v. Town of

Greenfield, 370 F.3d 215, 218-19 (1st Cir. 2004) (internal

quotation marks and citation omitted).

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 "The scope of appellate review of entry of summary

judgment in ADA cases, as in all others, is de novo." EEOC v.

Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997). While we

"constru[e] the record in the light most favorable to the nonmovant

and resolv[e] all reasonable inferences in that party's favor[,] .

. . we can safely ignore conclusory allegations, improbable

inferences, and unsupported speculation." Carroll v. Xerox Corp.,

294 F.3d 231, 237 (1st Cir. 2002) (internal quotation marks and

citation omitted). In so doing, "[w]e are not wed to the lower

court's rationale but, rather, may affirm the entry of summary

judgment on any ground made manifest by the record." Okmyansky v.

Herbalife Int'l of America, Inc., 415 F.3d 154, 158 (1st Cir.

2005).

III.

A. The ADA

The ADA prohibits discrimination against "a qualified

individual with a disability" –- that is, "an individual with a

disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires" –- "based on that disability."

42 U.S.C. §§ 12111(8), 12112(a). In order to establish a claim

under the ADA, a plaintiff must prove the following three elements

by a preponderance of the evidence: first, that she is disabled

within the meaning of the ADA, i.e., that she has "a physical or

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mental impairment that substantially limits one or more [] major

life activities," 42 U.S.C. § 12102(2); "second, . . . that with or

without reasonable accommodation she was a qualified individual

able to perform the essential functions of the job; and

third, . . . that the employer discharged her because of her

disability." García-Ayala v. Lederle Parenterals, Inc., 212 F.3d

638, 646 (1st Cir. 2000) (internal citation and quotation marks

omitted).

B. The District Court Proceeding

The district court held that Mulloy's disability claim

failed to satisfy both the first and second elements of the ADA.1

Under the first element, the district court held that Mulloy failed

to "present[] sufficient evidence to survive summary judgment on

the issue of 'substantial impairment' either of breathing or of

working." Mulloy, 2005 WL 1528208, at *5. With respect to the

major life activity of breathing, the district court held that

"[Mulloy was] not symptomatic most of the time," and that "[i]t is

not sufficient . . . simply to have intermittent responses to

particular irritants." Id. As for the major life activity of

working, the district court held that "it is a particular job at a

1
Relying on our authority that Chapter 151B, § 4 "tracks the
ADA in virtually all respects," Gillen v. Fallon Ambulance Serv.,
Inc., 283 F.3d 11, 21 n.5 (1st Cir. 2002), the district court did
not separately analyze Mulloy's claim under Chapter 151B, § 4. See
Mulloy v. Acushnet Co., No. Civ.A. 03-11077-DPW, 2005 WL 1528208,
at *1 n.1 (D. Mass. June 20, 2005). We analyze the state law claim
later in this opinion, see infra Part III(D).

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particular location for which [Mulloy's] breathing difficulties

create an impairment," and that "it is not enough to show that an

individual is substantially limited in his ability to perform his

particular job." Id. at *4.

Turning to the second element of the ADA,2 the district

court held that Mulloy was not an otherwise qualified individual

capable of performing the essential functions of his job with or

without reasonable accommodation. Specifically, the district court

found that "it is essential not only that [Mulloy] interact with

those for whom he has responsibility [for] training and supporting,

but also that he interact . . . with machines found in the plant."

Id. at *9. These essential functions, the district court held,

"require [Mulloy's] physical presence" in Ball Plant II. Id. at

*10.

Since the only accommodation proposed by Mulloy –- i.e.,

working from a remote location –- "inherently vitiate[d] [Mulloy's]

2
While the district court could have ended its analysis after
deciding that Mulloy failed to satisfy the first element of the
ADA, the district court turned to the second element "[i]n the
interests of completeness and recognizing that the law of
substantial impairment –- at least to 'working' –- is not yet
completely settled." Mulloy, 2005 WL 1528208, at *5. The district
court's comment is understandable. Compare Sutton v. United Air
Lines, Inc., 527 U.S. 471, 492 (1999) (noting "some conceptual
difficulty in defining 'major life activities' to include work"
under the ADA), with Guzmán-Rosario v. United Parcel Serv., Inc.,
397 F.3d 6, 11 (1st Cir. 2005) ("Awaiting a definitive ruling from
the Supreme Court otherwise, we have assumed that 'working' is a
major life activity."), and Mass. Gen. Laws, ch. 151B, § 1(20)
(including "working" among "major life activities").

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ability to perform essential functions," the district court

concluded that it was not reasonable. Id. Such an accommodation,

the district court stated, "in essence requires not an

accommodation but a redefinition of his job." Id. Even assuming

that technological aids such as a web camera "might permit [Mulloy]

to do his job from another location," the district court concluded

that such an accommodation would necessitate the hiring of an

additional employee to man the camera, and would thus impose an

undue hardship on Acushnet. Id.

C. Application of the ADA

1. First Element: Substantial Limitation of a Major
Life Activity

Mulloy argues that he is disabled under the ADA because

his occupational asthma substantially limits his ability to breathe

and work.3 Acushnet argues that Mulloy is not "disabled" because

"his breathing was only affected at a particular job at a

particular location" and, with respect to the major life activity

of working, he "did not show that he was limited from a broad range

or class of jobs." We need not decide whether Mulloy was disabled

within the meaning of the ADA. The second element of an ADA claim

-– i.e., whether Mulloy was a qualified individual capable of

3
For argument's sake, we assume that "working" is a "major
life activity" under the ADA. See Guzmán-Rosario, 397 F.3d at 11.
Unlike the ADA, Chapter 151B, § 1(20) of the General Laws of the
Commonwealth of Massachusetts includes "working" among "major life
activities".

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performing the essential functions of his job with or without

reasonable accommodation –- provides a sufficient basis for the

decision. We therefore assume without deciding that Mulloy was

disabled under the ADA.

2. Second Element: Qualified Individual Capable of
Performing Essential Functions With or Without
Reasonable Accommodation

"In order to be a 'qualified individual' under the Act,

the burden is on the employee to show: first, that she possesses

the requisite skill, experience, education and other job-related

requirements for the position, and second, that she is able to

perform the essential functions of the position with or without

reasonable accommodation." García-Ayala, 212 F.3d at 646 (internal

citation, quotation marks, and brackets omitted); see also 29

C.F.R. § 1630.2(m). There is no dispute that Mulloy satisfies the

first of these requirements.

Turning to the second requirement, we must analyze

"whether the individual can perform the essential functions of her

position" without reasonable accommodation; and if not, whether

"any reasonable accommodation by her employer would allow her to do

so." Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st Cir.

2001). "An 'essential function' is a fundamental job duty of the

position at issue . . . [it] does not include the marginal

functions of the position." Kvorjak v. Maine, 259 F.3d 48, 55 (1st

Cir. 2001) (citing 29 C.F.R. § 1630.2(n)(1)) (internal citations

-12-
omitted). Evidence of whether a particular function is essential

includes, but is not limited to: "[t]he employer's judgment as to

which functions are essential"; "[w]ritten job descriptions

prepared before advertising or interviewing applicants for the

job"; "[t]he work experience of past incumbents in the job"; and

"[t]he current work experience of incumbents in similar jobs." 29

C.F.R. § 1630.2(n)(3); see also Kvorjak, 259 F.3d at 55. In the

absence of evidence of discriminatory animus, "we generally give

substantial weight to the employer's view of job requirements."

Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34 (1st

Cir. 2000). In other words, our inquiry into essential functions

"is not intended to second guess the employer or to require the

employer to lower company standards." Mason v. Avaya

Communications, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004); see

also 29 C.F.R. app. § 1630 ("It is important to note that the

inquiry into essential functions is not intended to second guess an

employer's business judgment with regard to production standards,

whether qualitative or quantitative, nor to require employers to

lower such standards.").

A "reasonable accommodation" is one which "would enable

[the plaintiff] to perform the essential functions of her job [and]

. . . at least on the face of things . . . is feasible for the

employer under the circumstances." Reed v. LePage Bakeries, Inc.,

244 F.3d 254, 259 (1st Cir. 2001); see also 29 C.F.R. §

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1630.2(o)(1)(ii) ("The term reasonable accommodation means . . .

[m]odifications or adjustments to the work environment . . . that

enable a qualified individual with a disability to perform the

essential functions of that position."). An employer who fails to

"mak[e] reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability"

violates the ADA, "unless [the employer] can demonstrate that the

accommodation would impose an undue hardship" –- financial or

otherwise –- "on the operation of the business of such covered

entity." 42 U.S.C. § 12112(b)(5)(A).

Before we proceed further with the analysis of Mulloy's

claim that Acushnet should have allowed him to work at a remote

location, we must decide whether the ADA requires us to evaluate

this claim as an essential function issue or as a reasonable

accommodation issue. Courts have treated the issue both ways.

Compare Mason, 357 F.3d at 1122 ("[T]he district court properly

held Mason's physical attendance at the administration center was

an essential function of the service coordinator position because

the position required supervision and teamwork."), and Hypes v.

First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998) ("[R]egular

attendance is an essential function of most jobs."), with Kvorjak,

259 F.3d at 54 ("The particular question we face here is whether

appellant can 'perform the essential functions of the position' if

given the accommodation he seeks, working at home."), and Smith v.

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Ameritech, 129 F.3d 857, 867 (6th Cir. 1997) (concluding that

"plaintiff failed to propose an objectively reasonable

accommodation for his disability" because he could not perform any

of his job functions from home). The district court referred to

both approaches in its decision. See Mulloy, 2005 WL 1528208, at

*6 n.2, 11 (referring to physical presence as both "necessary for

[Mulloy] to be able to perform the essential functions of his

position," on the one hand, and as "an essential function of Mr.

Mulloy's position" and "a shorthand for [essential] functions," on

the other). We think it makes more sense on the facts of this case

to treat Mulloy's remote location claim as a question of essential

functions.

a. Essential Functions

Here, the parties do not dispute that Mulloy's essential

functions as a senior electrical engineer at Acushnet's Ball Plant

II included designing and programming; troubleshooting4; and

training, supervising, and supporting personnel. They disagree

about whether physical presence was required to perform these

functions and was thereby, itself, an essential function of the

job. Mulloy bears the burden of establishing that he can perform

his job remotely. See Kvorjak, 259 F.3d at 55. Acushnet produced

voluminous evidence in the summary judgment record to challenge

4
As discussed below, Mulloy tries unpersuasively to create a
dispute about troubleshooting as an essential function.

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that proposition. We turn now to an evaluation of the evidence on

this essential function issue.

i. Employer's Judgment

Acushnet argues that, in the judgment of those most

familiar with Mulloy's job functions, Mulloy's physical presence at

Ball Plant II was an essential function of his job. Kimberly

Francis, who was Acushnet's Director of Engineering and Mulloy's

supervisor, stated that "[t]o carry out the full responsibilities

of the job, [Mulloy] was required to have interaction with the

operator of the machine and the machine itself," which necessarily

"required entrance into the Ball Plant." Specifically, Francis

stated that in order to troubleshoot, support electrical safety

programs, lead investigations, and take corrective actions, Mulloy

"had to enter the plant floor, plug his computer into the system to

access the program and observe how the machine was reacting to the

program commands. . . . This task could not be efficiently

performed from a remote location since many of the adjustments are

time sensitive." According to Francis, "[Mulloy] needed to be able

to visually watch the equipment to be able to trouble-shoot it."

While he could "see the controls operation" from a remote location,

he could not "assess [] what the operator is doing, product

quality, whether or not [the machine is] shooting balls in the

air."

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 In order to design and program the machines, Francis

stated that Mulloy "had to work with technicians and other

engineers on the plant floor . . . [and] enter the area with the

machine to make adjustments and finalize the program. To fully

perform this function, the engineer must have access to the

machines." Francis stated that Mulloy also needed to be able to

physically access the machines in order to perform manual

adjustments on them and to fully perform the "hands-on" training

function of his job.

Francis stated that from May 2000 to November 2001, when

Mulloy was restricted from accessing machines in the red zones,

"Mulloy was reassigned to machines outside of the red zone in the

Ball Plant so that he could fully perform all of the necessary

functions of the job. During this time, approximately eighty

percent (80%) of his work was on machines located outside of the

red zone." Mulloy continued to perform a small amount of work -–

presumably, approximately 20% –- on machines inside the red zones,

but relied on others physically to access the machines for him.

When Mulloy was restricted from Ball Plant II, however, Francis

stated that he no longer had "regular[] access [to] the machines"

and the machine operators and, thus, "was unable to perform the

necessary responsibilities and functions of his job as a senior

electrical engineer." Eric Bartsch, Acushnet's Vice President of

Golf Ball Manufacturing, who had supervised Acushnet's electrical

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engineers during his eighteen years at Acushnet, also stated that

"Mr. Mulloy could not perform the necessary responsibilities and

functions of the electrical engineering job from a remote

location." According to Francis, Mulloy's job in Fairhaven

consisted of "finishing up" the documentation of previous projects

on which he worked in Ball Plant II. Francis stated that "[Mulloy]

was no longer assigned work that required access to the machines,"

and instead, [these] assignments were given to other engineers or

technicians in the Ball Plant or to outside vendors." Bartsch

similarly stated that after Mulloy was transferred to Fairhaven,

"his tasks were reprioritized and he was instructed to work on

documentation and a few small tasks that did not require him to

enter the Ball Plant."

Not surprisingly, Mulloy rejects the views of his

employer. Instead, he asserts that his physical presence in Ball

Plant II was not required, and that he performed –- and could have

continued to perform –- his essential job functions remotely from

the Fairhaven facility. Mulloy presents five arguments challenging

the judgment of his employer.

(1) Mulloy's Familiarity With the
Machines and Their Operators

Mulloy first offers his own testimony that he did not

have to see the machines or those operating them in order to

perform his job functions, given his "long experience and

familiarity with the programming, the machines, the electrical

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circuits, and the machine operators," and his ability to

communicate with mechanical engineers and technicians on the

manufacturing floor "using telephone communications and remote

computer technology." In light of the substantial weight we must

accord Acushnet's view of Mulloy's job requirements, together with

the wealth of authority recognizing physical attendance as an

essential function of most jobs,5 we agree with the district court

that Mulloy's own self-serving testimony that he could perform the

essential functions of his job from Fairhaven "is insufficient

under Fed. R. Civ. P. 56(c) to create a 'genuine' issue of material

fact concerning the essential functions of [his job]." Mason, 357

F.3d at 1121; see id. at 1122 ("We are reluctant to allow employees

5
See, e.g., Mason, 357 F.3d at 1122 ("[T]he district court
properly held Mason's physical attendance at the administration
center was an essential function of the service coordinator
position because the position required supervision and teamwork.");
accord Hypes, 134 F.3d at 727; Vande Zande v. State of Wis. Dep't
of Admin., 44 F.3d 538, 545 (7th Cir. 1995) ("[I]t would take a
very extraordinary case for the employee to be able to create a
triable issue of the employer's failure to allow the employee to
work at home."); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994);
Tyndall v. Nat'l Educ. Centrs., Inc. of Cal., 31 F.3d 209, 213 (4th
Cir. 1994) ("Except in the unusual case where an employee can
effectively perform all work-related duties at home, an employee
who does not come to work cannot perform any of his job functions,
essential or otherwise." (internal quotation marks and citation
omitted)); see also Kvorjak, 259 F.3d at 57 (holding that
employee's request for at-home accommodation was not reasonable);
Smith, 129 F.3d at 867 (same). Although most of these cases
involve requests to work from home as opposed to a satellite
office, we agree with Acushnet that they are not distinguishable on
that basis since both involve work from a location remote from the
actual worksite.

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to define the essential functions of their positions based solely

on their personal viewpoint and experience.").

(2) Mulloy's Ability to Work On-Site
but Outside of Red Zones

Mulloy points to his performance of the essential

functions of his job on-site but outside of the red zones as

evidence of his ability to work off-site. We find this comparison

unavailing. Acushnet does not dispute that Mulloy performed the

essential functions of his job when he was on-site.6 After being

restricted from the red zones, Francis stated that 80% of Mulloy's

work assignments were reallocated to machines located outside of

the red zones. The other 20% of his work related to machines

located within the red zones that did not require physical access.

Francis stated that, with respect to those machines located in the

red zones, Mulloy relied on another electrical engineer, Ken Souza,

and one of Acushnet's electrical technicians, George Desrosiers, to

access the restricted areas. Mulloy similarly testified that when

he was restricted from the red zones, his focus shifted to problems

in the non-restricted "half of the plant," while Desrosiers

"switched places" with him. In this way, Mulloy was able to

perform the essential functions of his job while on-site, even

6
In her affidavit, Francis states that after Mulloy was
removed from the red zones, "he was not capable of fully performing
the training function of his job." Acushnet does not press this
argument in its brief, and instead concedes that while Mulloy could
perform his essential functions on-site, he could not do so after
he was restricted from Ball Plant II.

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though he was not able to access all of the manufacturing machines

because some of them were located in the red zones.

When Mulloy was transferred off-site, however, he could

no longer access any of the manufacturing machines, including those

outside of the red zones. As the district court stated, the fact

that Mulloy may have been able to perform the essential functions

of his job on-site despite "not [being] able to see some of the

machines upon which he directed work to be done . . . does not

support an inference that he could adequately perform his job

without being able to see any of the machines or be easily

accessible to those working on them." Mulloy, 2005 WL 1528208, at

*8. In short, Mulloy's ability to perform his job functions on-

site has nothing to do with his ability to perform his job remotely

and, therefore, does not support his argument that he could perform

the essential functions of his job from Fairhaven.

(3) Francis' Positive Evaluation of
Mulloy

Mulloy argues that Francis' positive evaluation of his

work on February 19, 2002, more than two months after he was

transferred to Fairhaven, demonstrates that he was able to perform

the essential functions of his job remotely. We disagree. While

the evaluation does not set forth the period of evaluation, it

appears to be an annual evaluation based on the numerous work

projects listed and its reference to "last year's review." It is

undisputed that after his transfer to the Fairhaven facility at the

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end of November 2001, Mulloy continued performing some of the tasks

that he had performed at Ball Plant II for approximately one and a

half months, until January 10, 2002, when Mulloy was asked to spend

90% of his time typing manuals and his projects were assigned to

other engineers. Therefore, regardless of when the annual

evaluation began, Mulloy's off-site work on Ball Plant II

assignments comprised only one and a half months of the work

reviewed in that evaluation period. Francis' positive evaluation

of Mulloy's performance for the entire year thus provides

inadequate support for Mulloy's argument that he could work

remotely from Fairhaven. In fact, Francis states unequivocally in

both her deposition testimony and affidavit that Mulloy could not

work remotely.

(4) Francis' Post-Termination
Statements

Mulloy also argues that the district court should not

have credited Francis' statements because Riall did not consult

Francis prior to terminating Mulloy, and thus did not rely on the

information that she provided in his decision to terminate. We

disagree. Francis' statements mirror the conclusions of Bartsch

who was consulted prior to Mulloy's termination and, therefore,

corroborate Acushnet's basis for terminating him. The district

court, therefore, did not err in considering this evidence. The

district court likewise did not err in considering the statements

of Bartsch, who "ha[d] worked at Acushnet for eighteen (18) years,"

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"was knowledgeable of the necessary responsibilities and functions

of the senior electrical engineering job at Ball Plant II," and who

"determined that Mr. Mulloy was unable to perform the necessary

responsibilities and functions of the senior electrical engineer

job from a remote location."

(5) Francis' Statements About
Troubleshooting

Mulloy also argues that the district court erred in

crediting Francis' statement that Mulloy needed to see the machines

in order to troubleshoot them. Mulloy notes that the job

description refers only to "training and supporting maintenance

personnel to troubleshoot." According to Mulloy, it is the

maintenance personnel -– not Mulloy -– who need to be able to see

the machines. Even if we ascribe this meaning to the words cited

by Mulloy, Mulloy's argument is not significantly probative and, in

all events, it is directly contradicted by other items in the

record. In a second, more detailed job description not referenced

by Mulloy, the duties of an electrical engineer include

"troubleshoot[ing] process-related issues using proven problem

solving techniques" as well as "[t]rain[ing] and support[ing]

maintenance personnel to troubleshoot." And in his Statement of

Material Facts, Mulloy expressly agreed with Acushnet's list of job

responsibilities, which included "training and supporting

maintenance personnel, [and] troubleshooting electrical and

electronic controls," as well as with Acushnet's statement that

-23-
Mulloy "was responsible for troubleshooting and developing new

equipment." The district court did not err in considering Francis'

statements about troubleshooting.

ii. Job Description

Acushnet points to the job description for an electrical

engineer at Acushnet in support of its argument that physical

presence was an essential function. Among the essential functions

listed in the job description are teamwork, troubleshooting,

evaluating, and training and supporting –- all of which imply some

level of interaction with the machines and personnel at Ball Plant

II. "We are not persuaded the absence of [physical attendance]

from the job description demonstrates th[at] function [was]

non-essential. As commonsense suggests, [the employer] probably

did not even consider informing its employees that they were

actually required to show up at the workplace . . . when it drafted

the [] job description –- that is a given." Mason, 357 F.3d at

1122; see also Kvorjak, 259 F.3d at 57 n.17 (holding that "claims

adjudicator's duties as advisor to other call center staff," which

include troubleshooting, teamwork, and training staff members,

"demonstrate[] that the position cannot be performed at home"); id.

at 57 ("Courts that have rejected working at home as a reasonable

accommodation focus on evidence that personal contact, interaction,

and coordination are needed for a specific position." (quoting EEOC

Enforcement Guidance: Reasonable Accommodation and Undue Hardship

-24-
Under the Americans with Disabilities Act, 1999 WL 33305876, at *34

n. 93 (March 1, 1999)) (internal quotation marks omitted)); Vande

Zande, 44 F.3d at 544 ("Most jobs in organizations public or

private involve team work under supervision rather than solitary

unsupervised work, and team work under supervision generally cannot

be performed at home without a substantial reduction in the quality

of the employee's performance."). We therefore agree with Acushnet

that the job description for an electrical engineer supports

Acushnet's argument that Mulloy's physical presence was an

essential function of his job.

Mulloy argues that since "the job description specifies

that the troubleshooting oversight function represents only 10% of

Mulloy's overall responsibilities," troubleshooting is a "marginal"

–- not an "essential" -– function. This argument also lacks merit.

Mulloy explicitly states that the parties "stipulated that the

'essential functions' of Mulloy's former position as a senior

electrical engineer in Acushnet's Ball Plant II are accurately

represented in a company-drafted job description for Mulloy's

position." This job description lists "trouble-shooting" as one of

those functions. Mulloy cannot now claim that troubleshooting is

only a marginal function. Even if Mulloy had not stipulated to the

essential nature of this function, a job function requiring 10% of

Mulloy's time is not insignificant when considered in relation to

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the five remaining essential functions of his job, each of which

requires only 10% to 25% of his time.

iii. Work Experience of Past Incumbents and
Current Incumbents

Mulloy offers no evidence that any electrical engineer at

Acushnet has ever performed the job remotely. As the district

court stated, "Mulloy has no testimony from other former and

current employees –- and in particular, from the other senior

electrical engineer at Acushnet –- to substantiate his view of the

essential duties of his position." Mulloy, 2005 WL 1528208, at *8;

see id. ("Appellant could have, but did not, depose current claims

adjudicators about their duties." (quoting Kvorjak, 259 F.3d at 58)

(internal quotation marks omitted)). The absence of such evidence,

together with Francis' testimony that she was not aware of any

electrical engineer working out of Fairhaven, supports Acushnet's

argument that physical presence was an essential function of

Mulloy's job.

The experience of those who have taken over Mulloy's job

functions since his termination also supports the conclusion that

the job cannot be performed remotely. It is undisputed that over

70% of Mulloy's former job functions are performed in Ball Plant II

by either employees or outside vendors. Based on the work

experience of past and current employees, Mulloy has failed to

present an adequate basis to challenge the company's contention

that his physical presence was an essential function of his job.

-26-
 b. Reasonable Accommodation

Having determined that Mulloy's physical presence was an

essential function of his job, we next ask whether his proposed

accommodation –- working remotely from Fairhaven –- was reasonable.

It is well established that, while a reasonable accommodation may

include job restructuring, 42 U.S.C. § 12111(9)(B), "[t]he law does

not require an employer to accommodate a disability by foregoing an

essential function of the position or by reallocating essential

functions to make other workers' jobs more onerous." Kvorjak, 259

F.3d at 57 (internal citation and quotation marks omitted); see

also Mason, 357 F.3d at 1124 ("[A] request to work at home is

unreasonable if it eliminates an essential function of the job.");

Phelps, 251 F.3d at 26 ("Although a reasonable accommodation may

include job restructuring, an employer need not exempt an employee

from performing essential functions, nor need it reallocate

essential functions to other employees." (internal citation and

quotation marks omitted)). Here, Mulloy requests an accommodation

which would prevent him from performing an essential function of

his job, namely, being physically present at Ball Plant II.

As the district court stated, Mulloy's request to work

from Fairhaven "in essence requires not an accommodation but a

redefinition of his job." Mulloy, 2005 WL 1528208, at *10. But

"[a]n employer is not required by the ADA to create a new job for

an employee." Phelps, 251 F.3d at 27. Mulloy's proposed

-27-
accommodation is therefore per se unreasonable. See Mason, 357

F.3d at 1124 ("[Employee's] request for an at-home accommodation is

unreasonable on its face because it seeks to eliminate an essential

function of [employment] position.").7 The district court did not

err in concluding that Mulloy's proposed accommodation was

unreasonable, and that he thus was not a "qualified individual with

a disability" under the ADA.8

D. Application of Massachusetts' Countpart to the ADA,
Chapter 151B, § 4

1. Consistency Between ADA and Chapter 151B, § 4

Our analysis so far has focused on whether Mulloy was a

"qualified individual with a disability" under the ADA. We must

now address whether Mulloy was a "qualified handicapped person"

under Massachusetts' state-law counterpart to the ADA, Chapter

151B, § 4. We have previously noted that this statute "tracks the

ADA in virtually all respects." Gillen, 283 F.3d at 20 n.5; see

7
Since Mulloy did not propose a reasonable accommodation, we
need not address whether the accommodation he did propose imposed
an undue hardship on Acushnet. See Cisneros v. Wilson, 226 F.3d
1113, 1129 (10th Cir. 2000) ("[Since] Plaintiff never established
that her request for leave was 'reasonable' . . . the court need
not address whether her request would constitute undue hardship."),
overruled on other grounds by Bd. of Tr. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 374 n. 9 (2001); Vande Zande, 44 F.3d at 543
("The employee must show that the accommodation is reasonable . .
. . Even if this prima facie showing is made, the employer has an
opportunity to prove that upon more careful consideration the costs
are excessive.").
8
Because we decide this case on the second element of the
ADA, we need not address the third element -- whether Acushnet
discharged Mulloy because of his disability.

-28-
also Labonte v. Hutchins & Wheeler, 678 N.E.2d 853, 856 n.5 (Mass.

1997) ("[O]ur statutes in the area of employee discrimination law

closely mirror the [ADA]."). The action proscribed by Chapter

151B, § 4 is nearly identical to the action proscribed by the ADA.

Under Chapter 151B, an employer shall not "discriminate against,

because of his handicap, any person alleging to be a qualified

handicapped person," that is, "a handicapped person 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 with reasonable accommodation to his handicap." Id.

§§ 1(16), 4. In order to establish a claim of unlawful employment

discrimination under Chapter 151B, a plaintiff must demonstrate the

same three requirements as under the ADA: (1) she suffers from a

"handicap," i.e., "a physical or mental impairment which

substantially limits one or more major life activities," id. §

1(17); (2) "[s]he is a 'qualified handicapped person'; and (3)

[s]he was fired solely because of h[er] handicap," Labonte, 678

N.E.2d at 859.

In light of these similarities, "[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, 209 F.3d at 33 n.2 (citing

Wheatley v. Am. Tel. & Tel. Co., 636 N.E.2d 265, 268 (Mass. 1994)

("It is our practice to apply Federal case law construing the

-29-
Federal anti-discrimination statutes in interpreting [Chapter

151B].")). Accordingly, while "we write in terms of the ADA, our

comments apply with equal force to [Mulloy's] claim under [Chapter

151B]." Gillen, 283 F.3d at 20 n.5; see also Whitney v. Greenberg,

Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 32 n.1 (1st Cir.

2001) ("Given the similarity [between ADA and Massachusetts

disability law], our singular analysis disposes of both the federal

and state claims.").

2. Impact of Massachusetts' Workers' Compensation Law
on Chapter 151, § 4

Notwithstanding the many similarities between Chapter

151B, § 4 and the ADA, there is a gloss which Massachusetts'

workers' compensation law, Mass. Gen. Laws ch. 152, § 75B(1),

arguably places on the determination of a "qualified handicapped

individual" under Chapter 151B, § 4 for a work-related injury.

Chapter 152, § 75B(1) states that

[a]ny employee who has sustained a work-related injury
and is capable of performing the essential functions of
a particular job, or who would be capable of performing
the essential functions of such job with reasonable
accommodations, shall be deemed to be a qualified
handicapped person under the provisions of chapter one
hundred and fifty-one B.

Mulloy argues that even if he is not disabled under the

ADA, he is nevertheless a per se "qualified handicapped person"

under Chapter 151B by virtue of the interaction between

Massachusetts' anti-discrimination law and Massachusetts' workers'

compensation law. In other words, Mulloy contends that Chapter

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152, § 75B(1) entitles him to special treatment under Chapter 151B,

§ 4 –- treatment not recognized under the ADA.

The meaning of Chapter 152, § 75B(1) is unclear. The

United States District Court for the District of Massachusetts has

described the statute as a "major exception to the traditional

definition of a 'handicapped person,'" which expands the protection

afforded by Chapter 151B to plaintiffs regardless of whether they

can demonstrate substantial limitation of a major life activity.

See Gilman v. C & S Wholesale Grocers, Inc., 170 F. Supp. 2d 77, 85

(D. Mass. 2001) (holding that a plaintiff who suffered a work-

related injury and was capable of performing the essential

functions of his job under Chapter 152, § 75B(1) "cannot be

excluded as a matter of law, . . . from being a 'qualified

handicapped person' under chapter 151B" -– notwithstanding his

inability to demonstrate substantial limitation of a major life

activity).

While the Supreme Judicial Court has declined to consider

this issue, see Dartt v. Browning-Ferris Indus., Inc., 691 N.E.2d

526, 536 & n.30 (Mass. 1998) (refusing to consider "the

applicability, if any, of [Chapter 152, § 75B(1)] to [plaintiff's]

claim," given the "slight" evidence that plaintiff was regarded as

having a substantially limiting impairment under Chapter 151B), the

majority of Massachusetts' lower courts similarly view Chapter 152,

§ 75B(1) as an alternative means for plaintiffs to demonstrate that

-31-
they are "qualified handicapped persons." Compare Everett Indus.,

Inc. v. Mass. Comm'n Against Discrimination, No. 98-P-960, 2000 WL

1476321, at *5 & n.13 (Mass. App. Ct. June 29, 2000) (unpublished),

and Zarrella v. City of Everett, No. 955305B, 1996 WL 1186938, at

*2 & n.2 (Mass. Super. Ct. May 1, 1996), with Freire v. First

Nat'l, No. 964620, 1998 WL 1181751, at *8 (Mass. Super. Ct. July

22, 1998).

We need not resolve this uncertainty here. While it

remains unclear whether, by virtue of Chapter 152, § 75B(1), a

plaintiff can forego showing substantial limitation of a major life

activity and still be deemed a "qualified handicapped person" under

Chapter 151B, § 4, one thing is clear: both Chapter 151B, § 4 and

Chapter 152, § 75B(1) require that a plaintiff be "capable of

performing the essential functions of a particular job, or [] be

capable of performing the essential functions of a particular job

with reasonable accommodation." Mulloy argues that since "the

onset of [his] occupational asthma was work-related," he should be

deemed a "qualified handicapped person" under Chapter 151B, § 4 by

virtue of Chapter 152, § 75B(1). We disagree. Since Mulloy cannot

show that he was capable of performing the essential functions of

his job with or without reasonable accommodation, he is not a

"qualified handicapped person" under Chapter 151B, § 4. See Poh v.

Mass. Corr. Officers Federated Union, No. 03-11987-RWZ, 2006 WL

1877089, at *4 (D. Mass. July 7, 2006) (holding that even if

-32-
Chapter 152, § 75B(1) constitutes an exception to the traditional

definition of a "qualified handicapped person" under Chapter 151B,

plaintiff still "does not fall within [Chapter 152, § 75B(1)'s]

confines" because "plaintiff has presented no evidence that he was

capable of performing the essential functions of his job."). The

district court correctly rejected this state law claim.

IV.

We conclude that Mulloy was not a qualified individual

with a disability under the ADA or a qualified handicapped person

under Section 151B, §4 because he could not perform the essential

functions of his job with or without reasonable accommodation. The

district court's order granting summary judgment to Acushnet is

affirmed.

So ordered.

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