
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.                                         -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 & 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  & 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 &  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-
