USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 97-1963
FRANKLIN RALPH,
Plaintiff - Appellee,
v.
LUCENT TECHNOLOGIES, INC.,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy J. Gertner, U.S. District Judge] ___________________
____________________
Before
Bownes and Cyr, Senior Circuit Judges, _____________________
and Skinner,* Senior District Judge. _____________________
_____________________
Thomas E. Shirley, with whom Elizabeth M. McCarron and ___________________ _______________________
Choate, Hall & Stewart were on brief for appellant. ______________________
Marjory D. Robertson, with whom Curley & Curley, P.C. was on ____________________ _____________________
brief for appellee.
____________________
February 2, 1998
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
SKINNER, Senior District Judge. The plaintiff SKINNER, Senior District Judge. ________________________
originally brought this action against his former employer,
Lucent Technologies, Inc. (Lucent), in the Superior Court for
Essex County, Massachusetts, in aid of a pending claim before the
Massachusetts Commission Against Discrimination (MCAD). The
relief sought by the terms of the complaint was a temporary
injunction (1) permitting him to return to work with a
"reasonable accommodation" for his disability and (2) requiring
Lucent to toll the 90-day deadline for applying for various
benefits. The plaintiff relies on Massachusetts General Laws,
ch. 151B, 9 and the Americans With Disabilities Act, 42 U.S.C.
12111 et seq. The defendant removed the case to the United _______
States District Court, alleging a federal question and diversity
of citizenship. The plaintiff is a resident of New Hampshire and
Lucent is a Delaware corporation having a regular place of
business in Massachusetts.
The district court made findings of likelihood of
success on the merits, irreparable harm and absence of hardship
to the defendant. It entered a preliminary injunction requiring
Lucent to allow the plaintiff to return to part-time work for a
"provisional" period of four weeks and tolling the period for
applying for various benefits for the same period. So much of
the order as required Lucent to allow the plaintiff to work part-
time was stayed pending appeal. This appeal followed.
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The district court had original federal question
jurisdiction of this action, and this court has appellate
jurisdiction. 28 U.S.C. 1331, 1441 and 1292(a)(1).
STANDARDS OF REVIEW STANDARDS OF REVIEW
We have extensively addressed the criteria for the
issuance of a preliminary injunction and the scope of appellate
review in a long series of cases, e.g.:
In the typical case, a party seeking
preliminary injunctive relief must prove:
(1) a substantial likelihood of success on
the merits; (2) a significant risk of
irreparable harm if the injunction is
withheld; (3) a favorable balance of
hardships; (4) a fit (or at least, a lack of
friction) between the injunction and the
public interest. . . . We review the district
court's grant of a preliminary injunction for
a mistake of law or abuse of discretion.
Equal Employment Opportunity Comm'n v. Astra USA, Inc., 94 F.3d ___________________________________ ______________
738, 743 (1st Cir. 1996) (citations omitted).
In its brief, Lucent identifies the plaintiff's
likelihood of success and his risk of irreparable injury as the
two issues presented for review. The other two criteria, balance
of hardship and the public interest, therefore, are not issues in
this appeal.
BACKGROUND BACKGROUND
The following summary of the evidence is taken from the
verified complaint, the verified complaint before the MCAD and
various affidavits submitted to the district court. While the
underlying claim is not at issue in this appeal, we consider
these allegations as relevant background to our resolution of
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this appeal. We take the evidence in the light most favorable to
the plaintiff-appellee.
The plaintiff was employed by Lucent and its
predecessor entities for twenty-four years. He was a "Composite
Master Tradesworker," i.e., an expert carpenter, assigned to
Lucent's Merrimack Valley facility in North Andover,
Massachusetts, and he was represented by a local of the
Communications Workers of America union under a collective
bargaining agreement. He was eligible for 52 weeks of disability
leave at full pay under his employer's "Sickness and Accident
Disability Benefit Plan."
In April of 1996, plaintiff had a mental breakdown and
went on paid disability leave. He had been able to attend work
only briefly in June and July of 1997. Plaintiff attributes his
disability to sexual harassment by other Lucent employees.
According to a complaint he filed with the MCAD in
September of 1996, the plaintiff had been subjected to sexual
harassment by his male co-workers and his male supervisor for
five to six years. He identified six harassers by name. The co-
workers made the plaintiff the butt of crude and derisive jokes
about being a homosexual and a child molester. The plaintiff is
neither a homosexual nor a child molester. The harassment
included offensive touching by his supervisor and others.
At one point, the name "Tookie" was inscribed on the
plaintiff's locker. This graffiti was a reference to Tookie
Amirault, a man convicted of child molestation in a highly
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publicized case. The plaintiff's co-workers called him by this
name. The plaintiff's supervisor did not act on the plaintiff's
requests for redress, and even participated in the harassment.
According to the MCAD complaint, the last instance of harassment
occurred on April 9, 1996. The plaintiff discovered that someone
had placed on his truck a picture of a man in his underwear. He
brought the photo to his supervisor, said that he could not take
it anymore, and went home. Thereafter, the plaintiff made
attempts on his own life and was hospitalized several times.
In July of 1996, the plaintiff consulted Dr. Jack
Danielian, a psychologist. He was diagnosed with major
depression and post-traumatic stress disorder. In late October
or November of 1996, he consulted with Rowen Hochstedler, a
psychiatrist at a Newburyport hospital. Dr. Hochstedler
prescribed medication, but discontinued it in early 1997, because
the plaintiff functioned well without it, and it was likely to do
more harm than good.
Lucent notified the plaintiff in March of 1997 that his
disability benefits would expire on May 27, 1997. He sought and
obtained from Dr. Danielian and Dr. Hochstedler medical clearance
to return to work in April. Dr. Morin, a psychiatrist hired by
Lucent, recommended that he be kept away from his alleged
harassers upon his return.
Dr. Waugh, a general practice physician who serves as
Medical Director at Lucent's Merrimack Valley facility finally
authorized the plaintiff's return to work on May 23, 1997.
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Consistent with the plaintiff's wishes and Dr. Morin's
recommendation, he was assigned to a new work site with a new
supervisor named Robert Bartley.
The plaintiff was to work five days a week, 6:30 a. m.
to 3:00 p. m. His first day, May 23, was the Friday before
Memorial Day weekend. He completed the day without incident. A
human resources officer for Lucent named Sheila Landers met with
the plaintiff that day and ordered him to stay away from his
former co-workers.
The next workday was Tuesday, May 27. Ms. Landers met
with the plaintiff's former co-workers and told them to stay away
from him. No disciplinary action was imposed for their conduct.
That morning, the plaintiff returned to his former locker at his
old work site and found the words "Tooky's Toys" (or "Tookie's
Toys") inscribed in the locker. According to his affidavit, this
inscription was probably present before his disability leave, but
it was different from the inscription "Tookie" on the outside of
his locker which was referred to in his MCAD complaint and which
he says he had removed himself.
The plaintiff was upset by the inscription to such a
degree that he could not continue with work. He reported to
Lucent's medical department, saw Dr. Waugh, and was sent home at
8:10 a. m.
The plaintiff returned to work the next day, Wednesday,
May 28. He met with Dr. Waugh and they agreed to meet weekly to
monitor his progress. The plaintiff worked the remainder of the
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week. He used some of his paid personal time to leave two hours
early on Friday, May 30. He worked a full day on the following
Monday, June 2.
On the morning of Tuesday, June 3, the plaintiff became
emotionally distraught and went home with the consent of his
supervisor at about 8:30 a. m. Without giving any names, the
plaintiff ascribed his distress to people giving him dirty looks.
By a subsequent affidavit he explained that the wife of one of
the men he accused of harassment had given him hostile looks and
two male employees appeared to be smirking at him and laughing.
As he departed, the plaintiff had some conversation
with his supervisor in which the possibility of a temporary part-
time schedule was discussed. Bartley suggested he use vacation
time to fill in a part-time schedule until he got used to being
back at work.
The plaintiff remained home the following day,
Wednesday, June 4. He expressed a desire to return to work.
Dr. Danielian, the psychologist treating the plaintiff,
spoke to Dr. Waugh on the telephone. They agreed that the
plaintiff should see Dr. Hochstedler. Later that day, Bartley
spoke to Dr. Waugh and an employee of Lucent's benefits
department named Lina McLaughlin. Dr. Waugh said he would need
input from the plaintiff's treating physicians in order to
authorize the plaintiff's return to work.
Mr. Bartley and Lina McLaughlin then telephoned the
plaintiff and told him he would need Dr. Waugh's clearance to
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return to work, else he would be removed from the payroll because
he had run out of disability benefits.
On Thursday, June 5, the plaintiff reported for work.
Dr. Waugh refused to authorize his return. Mr. Bartley and
Ms. McLaughlin then met with him and told him he had three
options:
(i) apply for a disability pension pursuant
to the pension plan;
(ii) apply for disability payments under the
long-term disability plan; or
(iii) take an additional unpaid disability
leave for up to six months to allow for the
possibility of a recovery permitting a return
to work.
Later that day, the plaintiff's counsel called
Dr. Danielian and informed him of the ultimatum put to the
plaintiff. Dr. Danielian called Dr. Waugh. Dr. Danielian
reports by affidavit that Dr. Waugh disclaimed responsibility for
the decision to turn the plaintiff away. On Monday, June 9,
plaintiff's counsel made a demand to Lucent that the plaintiff be
afforded the accommodation of a temporary return to work part-
time.
At this point the record reveals a series of letters
and affidavits from the plaintiff's treating therapists, Dr.
Danielian (psychologist) and Dr. Hochstedler (psychiatrist), the
gist of which may be summarized as follows:
1. The plaintiff is fit to go to work, part-time at
the outset, with the likelihood of full-time work as he adjusts
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to the return to the workplace. A trial period of part-time work
would be a reasonable accommodation to his disability.
2. The plaintiff is likely to function better without
medication.
3. Facing up to the reality of returning to Lucent is
a critical factor in curing the plaintiff's depression, although
it is likely that his progress would be uneven.
4. Delay in return to work will tend to exacerbate his
condition.1
A psychiatrist, hired by Lucent, and Lucent's medical
director ultimately expressed contrary views, and the plaintiff
was not permitted to return to part-time work.
The plaintiff's therapists were qualified in their
respective fields, and the district judge, as finder of fact, was
entitled to accept their opinions, which she did.
DISCUSSION DISCUSSION
A. Likelihood of Success on the Merits ___________________________________
"The likelihood of success on the merits is a predicate
to the issuance of a preliminary injunction." American Auto. ______________
Mfrs. Ass'n v. Commissoner, Mass. Dep't of Envtl. Protection, 31 ___________ ______________________________________________
F.3d 18, 28 (1st Cir. 1994). The merits to be considered are the
merits of Ralph's underlying ADA and state-law disability-
____________________
1 The defendant's contention at oral argument that the
therapists meant work anywhere is contradicted by this record.
In any case, it would hardly be considered therapeutic to send
the plaintiff on a search for another job after 24 years at
Lucent. Employment discrimination is not appropriately corrected
by removing the victim.
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discrimination claims, which turn primarily on whether Lucent has
afforded Ralph's disability all "reasonable accommodation;" and
whether Ralph is entitled to injunctive relief to preserve the
status quo pending the resolution of his original MCAD
complaint.2 A preliminary injunction to prevent irreparable
injury during the pendency of a complaint before the MCAD is
authorized by Mass. Gen. Laws ch. 151B, 9. Accommodation of a
disability by providing for part-time work is authorized by the
Americans With Disabilities Act, 42 U.S.C. 12111(9)(B), and by
the E.E.O.C. guideline, Enforcement Guidance: The Americans With _________________________________________
Disabilities and Psychiatric Disabilities, 23 (1997) cited by the _________________________________________
district judge. See Morgan v. Massachusetts Gen. Hosp., 901 F.2d ___ ______ ________________________
186, 192 (1st Cir. 1990). The district court was warranted in
finding a likelihood of success on the merits of this limited
complaint.
B. Likelihood of Irreparable Harm ______________________________
"Though mistake of law is a rubric that
requires no elaboration, abuse of discretion
is a fuzzier concept. That inquiry is case-
specific, see Weaver [v. Henderson], 984 F.2d ______ _________
[11] at 13 [(1st. Cir. 1993)]; Narragansett ____________
Indian Tribe [v. Gilbert], 934 F.2d [4] at 5- ____________ _______
6 [(1st. Cir. 1991)], and a finding of abuse
usually entails proof that the nisi prius
court, in making the challenged ruling,
ignored pertinent elements deserving
____________________
2 Success on the merits of the underlying claim for same-sex
sexual harassment may be likely as well. Morgan v. Massachusetts ______ _____________
Gen. Hosp., 901 F.2d 186 (1st Cir. 1990); Doe by Doe v. City of __________ __________ ________
Bellville, Ill., 119 F.3d 563, 570 (7th Cir. 1997). The contrary _______________
conclusion by the Fifth Circuit is presently before the Supreme
Court. Oncale v. Sundowner Offshore Servs., Inc., 83 F.3d 118 ______ ________________________________
(5th Cir. 1996). The matter is not before us, however, and we
venture no opinion.
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significant weight, considered improper
criteria, or, though assessing all
appropriate and no inappropriate factors,
plainly erred in balancing them. See
[Independent Oil and Chem. Workers of Quincy, ____________________________________________
Inc. v.] Proctor & Gamble Mfg. Co., 864 F.2d ___ _________________________
[921] at 929 [(1st Cir. 1988)]."
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 _____________________________ ______________
(1st Cir. 1996).
A federal court must find a cognizable threat of
irreparable harm as an essential prerequisite to the issuance of
a preliminary injunction. Id. 102 F.3d at 19. ___
The district judge made the following finding:
"I also find that Ralph has demonstrated
irreparable harm. Though losses occasioned
by employment disputes often do not rise to
the level of irreparable harm, Ralph's case
is different for two reasons. First, the
harassment Ralph suffered at Lucent played a
significant role in his breakdown. Medical
evidence suggests that returning to work is
essential to his recovery. Second, Ralph's
disability will worsen the longer he is out
of work. These circumstances distinguish
Ralph's case from the standard discrimination
lawsuit."
We agree.
C. Preemption __________
The defendant's first preemption argument is that the
plaintiff's claim is preempted by the collective bargaining
agreement between the plaintiff's union and Lucent which, among
other things, provides a grievance and arbitration procedure.
Labor Management Act, 301, 29 U.S.C. 185. This argument
fails, however, because the present controversy concerns the
plaintiff's rights under state and federal statutes which exist
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independently of the collective bargaining agreement and do not
require interpretation of that agreement. Livadas v. Bradshaw, _______ ________
512 U.S. 107, 123-124 (1994); Hawaiian Airlines v. Norris, 512 __________________ ______
U.S. 246, 261 (1994).
The cases cited by the defendant are inapposite. In
Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40 (1st Cir. 1997), ______ _________________________
provisos in the State Workers' Compensation statute itself gave
precedence to conflicting provisions of a collective bargaining
agreement. We note:
"It is doubtful whether without the last
quoted proviso, [defendant] would have any
plausible claim of federal preemption.
Massachusetts has an independent interest in
regulating injury compensation and apart from
the proviso the elements of both [of the
plaintiff's] state-law claims appear to be
independent of bargaining agreement
provisions."
Id. at 41. __
In Reese v. Houston Lighting & Power Co., 79 F.3d 485, _____ _____________________________
487 (5th Cir. 1996), the court upheld a finding of preemption
because the litigated issues were specifically covered in the
collective bargaining agreement, e. g., promotion, seniority, and
assignment to training programs.
The rights alleged here are independent, nonnegotiable
rights founded not only in a state statute, but in a federal
statute, the Americans With Disabilities Act. We hold that these
rights are not to be preempted by the collective bargaining
agreement.
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Secondly, the defendant asserts preemption by the
Employment Retirement Income Security Act (ERISA), 29 U.S.C.
1144(A). In Boston Children's Heart Found., Inc. v. Nadal- _______________________________________ ______
Ginard, 73 F.3d 429, 439-40 (1st Cir. 1996), we stated: ______
State laws that have merely a "tenuous,
remote, or peripheral connection with a
covered benefit plan" may not be preempted by
ERISA. . . . . Such is normally the case
with respect to laws of general
applicability. . . . A court cannot conclude
that a state law is one of general
applicability, and as such is not preempted
by ERISA, based on the form or label of the
law, however. Absent precedent on a closely
related problem, the inquiry into whether a
state law "relates to" an ERISA plan or is
merely "tenuous, remote, or peripheral"
requires a court to look at the facts of [a]
particular case.
See also Rozzell v. Security Servs., Inc., 38 F.3d 819 (5th Cir. ________ _______ ______________________
1994); Angone v. 990 Lake Shore Drive Home Owners Ass'n, 866 ______ _________________________________________
F. Supp. 377, 380 (N.D. Ill. 1994). In this case, the only
impact on Lucent's ERISA plan is the extension of time to make
application for certain benefits. No variation in the terms of
benefits or their application is implicated. The Seventh Circuit
has held that the time limits under an ERISA plan are subject to
equitable tolling. Doe v. Blue Cross & Blue Shield United of ___ ____________________________________
Wis., 112 F.3d 869, 875-878 (7th Cir. 1997), and the extension of ____
time in this case "does not raise the core concern underlying
ERISA preemption." Nadal-Ginard, 73 F.3d at 440. ____________
Moreover, there is no authority for the proposition
that ERISA preempts rights under a federal statute. In this _______
case, the very minor impingement on the defendant's ERISA plan is
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in aid of a reasonable accommodation under the Americans With
Disabilities Act.
We hold that there is no preemption by ERISA.
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D. Reasonable Accommodation ________________________
The defendant argues that it has already made a
reasonable accommodation to the plaintiff's disability by giving
him 52 weeks of leave with pay, plus changing his work assignment
and supervisor. The duty to provide reasonable accommodation is
a continuing one, however, and not exhausted by one effort.
Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1285 (7th __________ _________________________
Cir. 1996).
The very limited four-week accommodation ordered by the
district court strikes us as eminently reasonable; so reasonable,
in fact, that we are puzzled that Lucent has drawn a line in the
sand at this point. In colloquy with counsel, the district judge
made it clear that if the plaintiff failed this four-week test,
that was the end of the matter.
We hold that the accommodation ordered by the court was
reasonable and in accord with the Americans With Disabilities
Act.
CONCLUSION CONCLUSION
We do not perceive either a mistake of law or an abuse
of discretion. Accordingly, we affirm the order of the district affirm ______
court.
Costs of the appeal shall be assessed against the
defendant-appellant.
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