
USCA1 Opinion

	




          July 18, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1001                                BEVERLY RUTH D'APRILE,                                Plaintiff - Appellant,                                          v.                                FLEET SERVICES CORP.,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                            and Gertner,* District Judge.                                          ______________                                _____________________               Frank J. Manni, with whom John F. DiMeglio  was on brief for               ______________            ________________          appellant.               Lynette Labinger, Roney & Labinger,  Christopher M. Mulhearn               ________________  ________________   _______________________          and  Rodio & Brown on  brief for Rhode  Island Affiliate American               _____________          Civil Liberties  Union and  Rhode Island Protection  and Advocacy          System, Inc., amici curiae.               Cynthia M.  Hiatt on brief  for Rhode Island  Commission for               _________________          Human Rights, amicus curiae.               Lincoln D. Almond,  with whom  Mark A. Pogue  and Edwards  &               _________________              _____________      __________          Angell were on brief for appellee.          ______                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                                 ____________________                    GERTNER,  District  Judge.    Plaintiff   Beverly  Ruth                    GERTNER,  District  Judge.                              _______________          D'Aprile brought  this action in  the United States  District for          the  District  of  Rhode  Island  against  her  former  employer,          defendant  Fleet  Services  Corporation ("Fleet").    She charged          Fleet with violation of the handicap discrimination provisions of          the  Rhode Island Fair Employment Practices Act, R.I. Gen. Laws            28-5-1,  et  seq.,  on  account of  Fleet's  alleged  refusal  to                   ________          reasonably accommodate the symptoms she experienced from Multiple          Sclerosis ("MS").1                      MS is  a degenerative nerve disorder  which can produce          symptoms  ranging  from fatigue  and  numbness  to paralysis  and          death.  The severity of symptoms is related in part to the amount          of  stress experienced by the  patient.  In  D'Aprile's case, she          alleges that her symptoms were  sufficiently in abeyance that she          was capable of  performing her  job as a  Senior Systems  Support          Analyst.     She   contends,   however,  that   she  needed   the          accommodation  of  being  permitted  to  work  only  a  part-time          schedule  for a short time (one to  two months) so that she could          slowly  reacclimate herself to  full-time work.   Her  claim that          Fleet  refused  to  provide this  accommodation  constitutes  the          gravamen of her case.                       On  November  22,  1995,  the  district  court  granted          Fleet's  motion  for  summary   judgment.    The  district  court                                        ____________________          1   R.I. Gen.  Laws    28-5-7(1) generally  makes it unlawful  to          refuse to hire,  or to  discriminate against an  employee on  the          basis  of handicap.   R.I.  Gen. Laws    28-5-7(1)(i)-(iii).   In          addition, the  statute specifically makes it  unlawful "to refuse          to reasonably accommodate an employee's or prospective employee's          handicap   unless  the   employer   can   demonstrate  that   the          accommodation would  pose a  hardship on the  employer's program,          enterprise, or business."  R.I. Gen. Laws   28-5-7(1)(iv).          concluded  that  summary judgment  was  mandated  by our  earlier          decision  in August v. Offices Unlimited, Inc., 981 F.2d 576 (1st                       ______    _______________________          Cir. 1992).   Because we  disagree that August  mandates judgment                                                  ______          for the defendant in this case, we reverse.                                      BACKGROUND                                      BACKGROUND                                      __________                    In  November 1991,  D'Aprile commenced  employment with          Fleet on a  full-time basis.  In January of  1992, D'Aprile began          to experience the  first symptoms of  MS, a numbness  in her  leg          which lasted for  four days.  Then, in July of 1992, she began to          experience numbness in the entire left side of her body, and took          a medical leave of absence for the entire month of July.                    D'Aprile's symptoms  recurred in  October  of 1992,  at          which time  she  was diagnosed  with  MS.   As  a result  of  her          symptoms, D'Aprile was unable  to travel to work from  October 1,          1992 until January 31, 1993.  In the beginning of  this period of          absence, during October and  November, D'Aprile continued to work          at home, and  Fleet provided her with a computer  to allow her to          do so.   By the  end of November,  however, D'Aprile's  condition          deteriorated to the point that she completely ceased working.                     In   January  of   1993,  D'Aprile's   symptoms  abated          somewhat, and she  expressed a  desire to  return to  work.   Her          doctor advised her that she should return to a full-time position          in stages, beginning with  part-time work.  Accordingly, D'Aprile          later asked  her supervisor,  Debbie Sullivan, for  permission to          return on  a  part-time  basis  for  a  two  month  period.    In                                         -3-          particular,  she  asked if  she could  work  three days  per week          (taking  Mondays and Fridays off) until she felt strong enough to          resume  a full-time schedule.   She told Sullivan  that she would          take  eight vacation days for  the first month  so that she could          continue receiving  a full-time  salary.  According  to D'Aprile,          Sullivan told her that her proposed arrangement sounded okay, and          that she  was willing to "work with" D'Aprile, but that she would          have  to get  back  to her  about it  after  checking with  Diane          DeCosta, the Human Resources Manager.                    D'Aprile  states  that on  January  19,  1993, Sullivan          called her back and  told her that it was against  company policy          for her to work  part-time.  D'Aprile then called  Henry Korsiak,          Sullivan's  superior.  Korsiak endorsed Sullivan's description of          company  policy.    D'Aprile  then asked  Korsiak  about  another          employee, Mary Gendreau, who  had been permitted to return  part-          time  after  a  maternity  leave.   Korsiak  told  D'Aprile  that          Gendreau had negotiated a "special deal" with her supervisor.                    Notwithstanding Fleet's refusal  to approve  D'Aprile's          proposed  part-time  work  schedule,  she  returned  to  work  on          February 1,  1993.  After her  return, she called  Jan Wyant, who          worked in Human  Resources, and asked her  if she could  take off          Friday, February 5th  and Monday, February  8th.  Wyant  approved          the absence, and told D'Aprile to take two personal days.                      When  D'Aprile   did  not  come  to   work  on  Friday,          February 5th, she called Korsiak.  According to D'Aprile, Korsiak          "screamed" at her, telling her  that she had no right to  go over                                         -4-          his  head to get permission to take  personal days.  He told her,          "You said  that you  were coming  back for  February 1st and  you          should be here,  and I don't  know why you're  not here.  And  if          you're  not  here,  maybe  you  shouldn't  bother  coming  back."          D'Aprile  states that she  was very upset  by Korsiak's response,          and interpreted it  as an  ultimatum that she  work full-time  or          lose her job.                    Despite  Korsiak's  harsh  response, however,  D'Aprile          returned to work on the  following Tuesday, and continued working          a  three day-a-week  schedule during the  months of  February and          March, 1993.  As D'Aprile describes it, however, she only managed          to achieve this result  "not without a  fight."  She states  that          every time  during the  February-March period that  she requested          time  off,  the  request  would  initially  be denied  by  Debbie          Sullivan, who  took the position that accrued vacation time could          only be  used with  a supervisor's  approval.   On each  of these          occasions,  D'Aprile  was forced  to  appeal  to  Jan Wyant,  who          approved each request.                     This weekly  pattern of requests for  time off, denials          by Sullivan and reluctant approvals by Wyant continued during the          month of  February and  through most  of March.    At some  point          during this time, Korsiak and Sullivan indicated to D'Aprile that          she  had no more vacation time.  D'Aprile eventually decided that          she could no  longer work  under such conditions.   Her  physical          condition  had  deteriorated, causing  her  to  feel "very,  very          fatigued."   After  discussing the  matter  with her  doctor, she                                         -5-          concluded that her symptoms  had worsened due to the  "stress and          strain"  produced by Fleet's refusal to approve her request for a          part-time  work schedule.   On  March 24,  1993, she  returned to          disability status.                    On  March  25, 1993,  the  day  after D'Aprile  stopped          working,  she submitted a letter from her doctor stating that she          was  "unable  to  work  at this  time  and  should  be placed  on          disability."  As a  result, D'Aprile received disability benefits          under  Fleet's   short  and  long-term  disability   plans  until          January 21,  1995,  when those  benefits were  terminated because          Fleet's insurance  carrier found that  she was no  longer totally          disabled.                                    STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    We review a grant of summary judgment de novo.  Mesnick                                                          _______   _______          v.  General  Electric Co.,  950 F.2d  816,  822 (1st  Cir. 1991).              _____________________          Accordingly,  we view the entire record in a light most favorable          to the  non-moving party, indulging all  reasonable inferences in          that  party's favor.  Id.  The  entry of summary judgment will be                                ___          upheld  only   if  "the   pleadings,   depositions,  answers   to          interrogatories,  and  admissions  on  file,  together  with  the          affidavits, if any, show that there is no genuine issue as to any          material fact and that the moving party is entitled to a judgment          as a matter of law."  Id.                                ___                                      DISCUSSION                                      DISCUSSION                                      __________                                         -6-                    The  district court  entered judgment  in favor  of the          defendant solely on the authority of August v. Offices Unlimited,                                               ______    __________________          Inc.,  supra.  In essence, the  district court interpreted August          ____   _____                                               ______          to  stand for  the proposition  that a  plaintiff is  barred from          claiming   handicap   discrimination   if,   after   leaving  her          employment, she  contends that  she is "totally  disabled" within          the meaning of  her employer's disability  insurance policy.   We          think that August stands for a much narrower proposition.                     ______                    The plaintiff  in August  was a furniture  salesman who                                      ______          began  to suffer from symptoms of severe clinical depression.  As          a result of this depression, August asked  for and received a six          week paid leave of absence from his employer.  At  the end of the          six week period, August  advised his employer that he was not yet          able to return to work.  His doctor submitted a letter estimating          that  August would  require an  additional two  to four  weeks to          recuperate.   The employer told August that he would be permitted          to take an additional two weeks as vacation, but that he would be          expected to  return to work at  the end of that  period.  August,                                                                    ______          981 F.2d at 578.                    Shortly before his scheduled return,  August's employer          asked him if he was feeling "100 percent better."  He replied, "I          don't  know  if I'm  100  percent until  I start  working."   His          employer then  advised  him that  the company  would expect  "110          percent" from him when he returned,  and that he was "going to be          under a lot more pressure than he was prior to  leaving."  Id. at                                                                     ___          579.   August then  requested that he  be allowed to  return on a                                         -7-          part-time  schedule, but this was  refused.  He  was told instead          that  if  he was  unable to  work  full-time, he  should consider          applying for disability  benefits under the employer's  insurance          plan.  Id.                 ___                    The day  after being refused a  part-time schedule, and          before  his scheduled  return to  work, August submitted  a claim          under  the  company's  disability  plan.    He  asserted  in  his          application   for  benefits   that  he   had  been   totally  and          continuously disabled starting on a date forty-nine days earlier.          Id. at 579.  Thus, by August's own admission, he had been totally          ___          disabled as of  the date he requested  and was refused the  part-          time schedule.                      August  brought suit  under Massachusetts  General Laws          ch. 151B, a statute which, like the Rhode Island statute at issue          here,  prohibits employment  discrimination  against people  with          disabilities.2  August  claimed that his  employer had failed  to                                        ____________________          2     One  difference  between  the  two  statutes  is  that  the          Massachusetts  statute  prohibits  discrimination   against  "any          person alleging to be a qualified handicapped  person," while the          Rhode  Island   law  simply  bars   discrimination  "because  of"          handicap, and  requires the employer to  "reasonably accommodate"          such handicap.   Compare Mass. Gen.  Laws ch. 151B    4(16)  with                           _______                                     ____          R.I.  Gen. Laws    28-5-7.   Moreover,  the Rhode  Island statute          specifically  provides   that  discrimination  on  the  basis  of          handicap is  unlawful, even  if other, lawful,  factors motivated          the discriminatory practice.  R.I. Gen. Laws   28-5-7.3.             Amici  Rhode Island  Commission  for Human  Rights, the  Rhode             _____          Island Affiliate of the American Civil Liberties Union and  Rhode          Island Protection and Advocacy  System, Inc. urge that the  Rhode          Island statute creates broader protections than the Massachusetts          law, protecting even  those who  are not qualified  to work  from          adverse  actions   motivated  even  in  part   by  an  employer's          discriminatory animus.   We  need not decide  this question  here          since,  as we  explain below,  summary judgment  is inappropriate                                         -8-          reasonably accommodate his handicap by refusing to permit a part-          time work schedule.  The  district court granted summary judgment          for the employer, and we affirmed.  We concluded that "the record          [was]  fatally bereft  of  indication that  August possessed  the          ability to perform his job."  Id. at 581.                                         ___                    Crucial to our conclusion  in August was the fact  that                                                  ______          August  had  declared himself  to be  totally disabled  under his          employer's  disability plan  as  of the  time  he applied  for  a          reasonable  accommodation  from  his   employer.    Although  the          disability plan's definition of "totally disabled" was not in the          record, we  concluded that "[u]nder  any definition of  the term,          August's declaration that he was 'totally disabled' means that he          was not able to  perform the essential functions of his job . . .          with or without reasonable  accommodations."  Id. at 581.   Since                                                        ___          August admitted  that  he  was unable  to  work at  the  time  he          requested  his part-time schedule, we concluded that he was not a          "qualified  handicapped person" and thus had failed to make out a          prima facie case under the Massachusetts statute.  Id. at 584.          _____ _____                                        ___                    Two  facts  distinguish D'Aprile's  case  and therefore          require a  different outcome.   First, D'Aprile never  claimed to          have  been  totally  disabled  at  the  time  she   requested  an          accommodation  from Fleet.  It  was not until  after her requests          for a  formal  part-time schedule  had  been refused,  and  after          experiencing  the  stress resulting  from  her  ad hoc  part-time                                                          ______                                        ____________________          even  on the issue of whether D'Aprile was otherwise qualified to          work.                                         -9-          status, that she  claims to  have become totally  disabled.   The          issue  which concerned us in August, that a plaintiff would claim                                       ______          that  he was entitled to  a reasonable accommodation  at the same                                                                ___________          time he claimed to be unable to work at all, is absent here.                    In addition,  we note that  D'Aprile's application  for          disability  benefits in  this case  may not have  constituted the          broad  admission   of  incapacity  that  we   construed  such  an          application  to  be in  August.    Fleet's short-term  disability                                  ______          policy  defines a  "totally  disabled" employee  as  one "who  is          unable  to perform  the material  duties of  his/her job  for the          entire  regularly scheduled work week as the result of an illness          or  injury and  requires  the ongoing  care of  a physician. . ."          Such  a disabled employee who "is unable  to work" is entitled to          benefits.   D'Aprile's contention,  that she  was unable  to work          because  her employer  refused  to permit  a temporary  part-time          schedule,  is  entirely consistent  with her  claim to  have been          "totally disabled" within the meaning of the policy.  It does not          constitute an admission that she had been unable to work with the          accommodation of a part-time schedule prior to that point.                     August simply  stands  for  the  proposition  that  the                    ______          plaintiff's ability  to work with reasonable  accommodation is an          element  of  a  handicap  employment  discrimination  case  under          Massachusetts law.  Under  the particular facts of that  case, we          found  that   August's  application  for   disability  insurance,          combined  with his  demonstrated  inability to  perform any  work          (before  or after  the  requested accommodation)  eliminated  any                                         -10-          genuine  issue  as  to  his  ability  to  work  with   reasonable          accommodation.  Since D'Aprile never claimed to have been totally          disabled  during the  time she  requested her  accommodation, and          demonstrated  her  ability to  work  with  the accommodation  she          requested, the reasoning of August does not apply.                                        ______                                      CONCLUSION                                      CONCLUSION                                      __________                    D'Aprile contends that the  accommodation Fleet made --          permitting her to  take vacation and  personal days on an  ad hoc                                                                     ______          basis  --  was not  a  reasonable  one given  the  nature of  her          condition and  its sensitivity  to stress  factors.   She further          asserts  that she was capable of working part-time in the absence          of additional stressors, and would have been able to continue her          employment  were  it  not  for the  hostile  and  non-cooperative          response  of her  supervisors  to  her  request  for  a  modified          schedule.                      Given  that D'Aprile  did  in fact  work part-time  for          almost two months  after her  initial request, she  has raised  a          genuine  issue  of material  fact as  to  whether she  could have          continued even longer if Fleet had accommodated her as requested.          D'Aprile's subsequent  application for disability  benefits after          Fleet  refused to  accommodate her  does not  resolve  this issue          because it sheds no  light on how  D'Aprile would have fared  had          the accommodation been made.                                            -11-                    For the foregoing reasons, the judgment of the district          court  is  reversed   and  the  case  is   remanded  for  further                     ________                        ________          proceedings consistent with this opinion.  Costs to appellant.                    SO ORDERED.                    SO ORDERED.                                         -12-
