Mammone v. President & Fellows of Harvard College

Greaney, J.

(dissenting). This case illustrates precisely why *681summary judgment is disfavored in employment discrimination cases. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16 (1998); Labonte v. Hutchins & Wheeler, 424 Mass. 813, 820 (1997). A reasonable jury, presented with the plaintiff’s deposition testimony and other evidence in the summary judgment record, could conclude that the conduct for which the plaintiff was terminated was not “egregious misconduct,” but rather a manifestation of his bipolar disorder, an illness over which he had no control and which was aggravated by confrontational treatment by a supervisor (Piponidis) who should have known better. The plaintiff was entitled to present his claim of discrimination to a jury. The court today holds otherwise and, in so doing, excludes from the scope of G. L. c. 15 IB protection an entire category of persons with mental illnesses, including bipolar disorder, whose symptoms include occasional displays of inappropriate, and sometimes bizarre, workplace behavior. See Diagnostic and Statistical Manual of Mental Disorders 357-361 (4th ed. 2000). There is no indication that the Legislature intended such a harsh interpretation of G. L. c. 151B. I therefore dissent.1

Comparing the behavior of the plaintiff in this case to that of the plaintiff in Garrity v. United Airlines, Inc., 421 Mass. 55 (1995), the court determines that the plaintiff’s conduct “went far beyond anything Garrity said or did,” ante at 668, and thus concludes that the plaintiff in this case had no reasonable expectation of demonstrating he was a “qualified employee,” ante at 680, for purposes of his G. L. c. 151B claim. This conclusion is subjective conjecture and inappropriate for summary judgment *682purposes. The Garrity court set forth a general standard to bar a terminated employee from demonstrating that he or she is a “qualified” individual, regardless of a handicap, when the conduct on which termination was based is “significantly inimical to the interests of his employer and in violation of the employer’s rules.” Id. at 63, citing Little v. Federal Bur. of Investigation, 1 F.3d 255 (4th Cir. 1993). I agree with the court that the Garrity decision cannot fairly be limited to circumstances involving alcoholism or other addictions. See Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 309 (2005). I would, however, point out cautionary language in the Garrity opinion signifying that not every act of misconduct is sufficient to trigger this bar (it must be “egregious misconduct”) and expressly limiting the court’s reasoning to “the circumstances of the present case.” Garrity v. United Airlines, Inc., supra at 62, 63. The court, in its rush to judgment, overlooks distinctive circumstances of the present case that should remove it from the scope of the Garrity holding.2 In my view, whether the plaintiff’s behavior in this case was “significantly inimical to the interests of his employer and in violation of the employer’s rules” to rise to the level of “egregious misconduct” is a clear jury question.

To the court’s recitation of the events leading to the plaintiff’s termination, I add the following additional facts established by the summary judgment record viewed in the light most favorable to the plaintiff. See Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). Although he was diagnosed with bipolar disorder in 1987, the plaintiff experienced symptoms of his disease only on rare occasions. During those occasions, the plaintiff would become paranoid, agitated, hyperactive, and irrational. Until the events that led to his termination, however, the plaintiff’s condition never affected *683his work at Harvard. From approximately mid-August, 2002, the plaintiff had been experiencing symptoms of a manic episode and was briefly hospitalized over the Labor Day weekend. Because hospital physicians administered the plaintiff medication to which he was allergic, hospitalization only served to exacerbate the plaintiff’s manic state. On his return to work on September 2, it was obvious that the plaintiff was exhibiting uncharacteristically abnormal behavior, as shown by electronic mail messages received by Piponidis from museum staff expressing concern for the plaintiff and his mental health. One stated that the plaintiffs “emotions seem to be out of control.” Another observed that the plaintiff appeared to be experiencing psychological problems and suggested the need for a medical intervention.

Instead of following that advice, Piponidis, who had been aware for some time that the plaintiff struggled with mental health issues, chose to address the plaintiff’s problem behavior by arriving at his workstation with two campus police officers, who ultimately arrested the plaintiff and physically dragged him from the museum. The plaintiff testified at his deposition that he was paranoid, frightened, and so overcome by his heightened manic state that he could not control his choice of words, let alone the tone or volume with which he spoke them. After being arraigned on charges of trespassing and disorderly conduct,3 the plaintiff was released by the police later that day. He was unable to go home, however, because the police had retained his house and car keys, and the plaintiff was afraid to attempt to retrieve them. He sought instead the safety of the museum and went there intending to wait outside for friends. The manner in which the plaintiff had been treated was, in his own words, “cruel handling of someone with a mental illness.”

Presented with uncontested evidence of what followed, a reasonable jury might well conclude that the plaintiff’s final outburst was, as characterized by the court, “abusive, threatening, and sexually derogatory.” Ante at 668. Believing the plaintiff, however, they might just as likely conclude that the outburst, *684part and parcel of his paranoid manic state, was intended only as a moral rebuke and, further, that more sensitive handling of the situation by Piponidis would háve averted the crisis altogether. The plaintiff testified at his deposition that it was “pretty obvious that [he] was severely mentally ill” and that “[s]evere mania is frightening to watch [but] even more frightening for the person going through it.” The final scene in the lobby of the Museum of Natural History, which triggered the plaintiff’s immediate termination, was not, as in the Garrity case, a course of behavior independently engaged in by the plaintiff in flagrant disregard of the museum’s rules, but the culmination of a supervisor-employee interaction that, fueled by the plaintiff’s illness, had escalated out of control. The court reasons that language in the Garrity decision compels the conclusion that no unlawful discrimination occurred because the same behavior would have resulted in the termination of a non-handicapped employee. See Garrity v. United Airlines, Inc., supra at 63. This reasoning ignores the critical point of the plaintiff’s argument — a psychologically healthy employee would not have behaved, nor would he have been treated by his supervisors, in the same manner. There is nothing remarkable in my conclusion that, in these circumstances, the plaintiff is entitled to a jury’s assessment whether his behavior rose to the level of “egregious misconduct.” The court’s suggestion that my view might differ “had [the plaintiff], for example, physically assaulted and harmed a museum patron,” ante at note 24, is altogether unfounded. Cases must be decided on the record, and the record in this case contains no evidence that the plaintiff’s symptoms, at any point in time, included physical violence.

I agree with the court that the ability to act calmly and peaceably, as opposed to erratically or threateningly, is an essential component of any job, especially one that involves interaction with the public, such as the plaintiff’s position as staff assistant at Harvard’s Peabody Museum. It follows that a handicapped employee whose disability compels him to behave in a unprofessional manner, or whose behavior poses a safety risk to others, has no chance of demonstrating that he is a “qualified handicapped employee” under G. L. c. 151B. See Beal v. Selectmen of Hingham, 419 Mass. 535, 543 (1995); EEOC v. Yellow *685Freight Sys., Inc., 253 F.3d 943, 949-950 (7th Cir. 2001); Mazzarella v. United States Postal Serv., 849 F. Supp. 89, 94 (D. Mass. 1994). The plaintiff in this case, however, has presented an abundance of evidence that, for seven years up until the days immediately preceding his termination, his job performance at the museum was impeccable and met with only positive work evaluations. During that time, despite his illness, the plaintiff had (in the words of one supervisor) worked with “graciousness,” “enthusiasm,” and “efficiency.” The evidence in the record thus demonstrates conclusively that the plaintiff was in fact capable of performing the essential functions of the job. This factor alone sets the plaintiff apart from plaintiffs in cases such as Beal v. Selectmen of Hingham, supra (police officer susceptible to stress-related blackouts), and EEOC v. Amego, Inc., 110 F.3d 135, 144-145 (1st Cir. 1997) (therapist who abused prescription drugs had job responsibility to monitor and administer psychotropic medication to clients), where summary judgment was proper based on the plaintiff’s inability to demonstrate that she was qualified for the job.

There is another important step in the discrimination analysis.4 General Laws c. 151B defines a qualified handicapped person as one who can perform the essential functions of a job “with or without reasonable accommodation.” In my view, before summary judgment is granted in its favor, Harvard must demonstrate that no “reasonable accommodation” would have enabled the plaintiff successfully to continue to perform his job. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822 (1997); Tate v. Department of Mental Health, 419 Mass. 356, 360 (1995). This Harvard has not attempted to do.

I would reject Harvard’s argument that the plaintiff’s failure to request accommodation relieved it of any responsibility in this fundamental area of discrimination law. It is clear that the plaintiff was unable to recognize, or communicate, at the time his need for special treatment to accommodate his illness. We *686have never held that G. L. c. 151B requires an employer to initiate an interactive process to reach a reasonable accommodation for a handicapped employee. See Sullivan v. Raytheon Co., 262 F.3d 41, 47-48 (1st Cir. 2000). The United States Court of Appeals for the First Circuit has recognized such a duty, however, and has stated that this duty is particularly important when an employee is suffering from a mental disability. See Kvorjak v. State, 259 F.3d 48, 52-53 (1st Cir. 2001); Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998); Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1st Cir. 1996). See also Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1285 (7th Cir. 1996), quoting Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (stating “[i]n a case involving an employee with mental illness, the communication process becomes more difficult,” and “[i]t is crucial that the employer [be] aware of the difficulties, and ‘help the other party determine what specific accommodations are necessary’ ”); Campbell v. Wal-Mart Stores, Inc., 272 F. Supp. 2d 1289, 1276, 1289-1290 (N.D. Okla. 2003) (recognizing that mental illness may prevent individual from comprehending need to request accommodation or ability to do so). I agree with the First Circuit and, based on the reasoning in the above cases, would impose an affirmative duty on the part of employers, in circumstances where it is obvious that a mentally handicapped employee is unable to initiate a request for reasonable accommodation and the employer knows, or should know, of the employee’s need, to communicate to the employee a willingness to provide some type of special arrangements.5 In my view, a jury could find that Harvard had a duty to offer the plaintiff a reasonable accommodation that was triggered at the point when Piponidis became aware, through her own observations and those of others, that the plaintiff was experiencing a severe manic episode and needed medical attention or, at least, an immediate leave of absence to seek medical attention on his own *687accord. See Russell v. Cooley Dickinson Hosp., 437 Mass. 443, 455-456 (2002); Criado v. IBM Corp., supra at 443.

The record demonstrates that the day before the plaintiff was terminated, Piponidis sent him a letter (which the plaintiff did not receive) suggesting that he avail himself of Harvard’s employee assistance program. This letter indicates Piponidis’s recognition of the plaintiff’s need for help and of her responsibility to assist the plaintiff in obtaining that help. It does not, however, necessarily absolve her of her failure to offer the same support the next day, or Harvard of its duty to provide reasonable accommodation in the days that followed when the plaintiff’s union representative, and his attorney, attempted to negotiate his return to work following a leave of absence to seek medical treatment. Based on the body of evidence in the summary judgment record, I conclude that whether the plaintiff was a qualified handicapped employee whom Harvard should have accommodated with a temporary leave of absence for medical treatment is a triable issue. See Labonte v. Hutchins & Wheeler, supra at 820; Bultemeyer v. Fort Wayne Community Schs., supra at 1285.

Mental illness makes life more difficult in almost every way imaginable. As a practical reality, if employees who suffer from bipolar disorder are to hold jobs at all, some measure of special treatment from employers may, from time to time, be necessary. The court’s affirmation of Harvard’s right to summarily terminate the plaintiff, on the basis of one manic episode and with no attempt to accommodate his illness, is regrettable. This conclusion undermines a fundamental purpose of G. L. c. 151B, to preserve the employment status of the handicapped, including the mentally ill. See Dahill v. Police Dep’t of Boston, 434 Mass. 233, 240-241 (2001). We have held that, for purposes of the analogous Federal statute, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, an individualized inquiry into whether a plaintiff is a qualified handicapped person is “essential if [the statute] is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of [employers] as avoiding exposing others to significant health and safety risks.” Cox v. New *688England. Tel. & Tel. Co., 414 Mass. 375, 383-384 (1993), quoting School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987). Given its remedial purpose, G. L. c. 151B likewise requires a reviewing court carefully to “measure whether the employer’s decision ‘reflect[s] a well-informed judgment grounded in a careful and open-minded weighing of the risks and alternatives.’ ” Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 603 (2004), quoting Hall v. United States Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988). No such weighing was conducted by Harvard in this case. The court’s decision will make life even more difficult for those attempting to hold down a job while suffering with a mental illness, thereby undermining the compassion our society has expressed, through the Legislature’s enactment of G. L. c. 151B, for someone in the plaintiffs circumstances.

I agree that summary judgment was proper on the plaintiff’s claim of discrimination under our equal rights statute, G. L. c. 93, § 103, not for the reason set forth by the court, but because this court consistently has treated G. L. c. 151B as the exclusive remedy for claims of handicap discrimination arising out of employment against an employer with six or more employees. See, e.g., Tate v. Department of Mental Health, 419 Mass. 356, 365 (1995); Agin v. Federal White Cement, Inc., 417 Mass. 669, 672 (1994); Charland v. Muzi Motors, Inc., 417 Mass. 580, 585 (1994); O’Connell v. Chasdi, 400 Mass. 686, 693 n.9 (1987). See also Guzman v. Lowinger, 422 Mass. 570, 571 (1996). For Federal cases addressing the same issue, see Woods v. Friction Materials, Inc., 30 F.3d 255, 264 (1st Cir. 1994), citing Martin v. Envelope Div. of Westvaco Corp., 850 F. Supp. 83, 93 (D. Mass. 1994), and DeFazio v. Delta Air Lines, Inc., 849 F. Supp. 98, 103 (D. Mass. 1994).

The plaintiff in Garrity v. United Airlines, Inc., 421 Mass. 55 (1995), was an airline customer service representative terminated for the unauthorized taking of airline coupons for free drinks; using the coupons to obtain drinks while traveling on vacation; becoming drunk during the flight; and making loud, inappropriate comments to other passengers during the flight, such as “what a pain [frequent flyers] are” and that United “screws us.” Id. at 57. This conduct was the subject of a disciplinary hearing, at which Garrity was represented by counsel, and in the end, her failure to comply with company policies specifically set forth in United’s employee handbook led to her termination. Id. at 58-59.

It is significant that the plaintiff was acquitted in the District Court of the charges against him, according to the Superior Court judge, “by reason of his mental state at the time of arrest.”

The court’s conclusion that Garrity v. United Airlines, Inc., 421 Mass. 55 (1995), bars the plaintiff from establishing his status as a “qualified handicapped person capable of performing the essential functions” of his job renders superfluous any discussion of “reasonable accommodation” on its part.

If the plaintiff had been experiencing an epileptic seizure, surely his supervisors could not lawfully have ignored his obvious need for medical attention and then terminate him because of inappropriate workplace behavior. The court responds to this hypothetical, ante at note 4, with the observation that the employee with epilepsy (a physical handicap) “did not commit misconduct at all.” My point precisely.