

                  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 &amp; Stewart were on brief for appellant.                                
     Marjory D. Robertson, with whom Curley &amp; 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.

                               -2-

          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

                               -3-

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

                               -4-

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.

                               -5-

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

                               -6-

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

                               -7-

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

                               -8-

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.

                               -9-

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.

                               -10-

          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 &amp; 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

                               -11-

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  &amp; 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.

                               -12-

          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 &amp;  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

                               -13-

in aid  of a  reasonable accommodation  under the  Americans With

Disabilities Act.

          We hold that there is no preemption by ERISA.

                               -14-

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.

                               -15-
