
USCA1 Opinion

	




          D    e    c    e    m    b    e    r 1    8    , 1    9    9    2                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________          No. 91-2329                                    IRVING AUGUST,                                Plaintiff, Appellant,                                          v.                               OFFICES UNLIMITED, INC.,                                 Defendant, Appellee.                               _______________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  the Court  issued on December  11, 1992,  is          corrected as follows:               page 3, footnote 2, line 8:  delete comma after "unless."               page 12, line 14:  insert comma after "accommodations."               page 14, line 9 of first full paragraph:  delete comma after          "full-time."          December 11, 1992 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2329                                    IRVING AUGUST,                                Plaintiff, Appellant,                                          v.                               OFFICES UNLIMITED, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            Howard I. Wilgoren for appellant.            __________________            William B. Koffel with  whom Foley, Hoag & Eliot was on brief  for            _________________            ___________________        appellee.                                 ____________________                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.                      CAMPBELL, Senior Circuit Judge.  This appeal arises                                ____________________            from an alleged wrongful employment termination.   Defendant-            appellee  Offices Unlimited,  Inc.  ("OUI") fired  plaintiff-            appellant  Irving  August  from  his position  as  an  office            furniture salesman in  May 1989.   In 1990,  August filed  an            eleven-count complaint  against OUI and two  other defendants            in  United   States  District  Court  for   the  District  of            Massachusetts.    On October  30,  1991,  the district  court            granted defendants' summary judgment  motion as to all eleven            claims raised by August's complaint.1                      The   sole  issue  now  presented  is  whether  the            district court erred in granting summary judgment in favor of            OUI  on  August's  claim   that  his  employment  termination            constituted  a discriminatory  discharge  on the  basis of  a            handicap in violation of  Massachusetts statute Mass. Gen. L.            ch. 151B,   4(16).2  For the reasons stated below, we affirm.                                            ____________________            1.  In  addition   to  the   appealed  state  law   claim  of            discriminatory  discharge, these  included federal  and state            claims  alleging  unlawful  age  discrimination,  intentional            infliction   of  emotional  distress,  breach  of  employment            contract,  wrongful discharge,  and  claims  arising  out  of            August's participation in a  limited partnership.  August did            not appeal from  the grant of summary  judgment as to any  of            these.  The district court's  jurisdiction over the state law            claims  was conferred by 28  U.S.C.   1367(a).   This court's            jurisdiction to hear August's  present appeal is conferred by            28 U.S.C.   1291.            2.  The Massachusetts  statute at  issue states,  in relevant            part, that it is an unlawful practice                                         -3-                                    I.  BACKGROUND                                        __________                      August  worked as an  office furniture salesman for            OUI  and  its  predecessor  company since  1966.    He  began            experiencing  symptoms of  clinical depression in  late 1988.            In September 1988,  August went to his  internist, Dr. Martin            Vogel, for  a routine physical  examination.  At  this visit,            August  told Dr.  Vogel that  he felt  distressed  because of            number of  personal and  family problems, including  the fact            that his pay from OUI had been cut by fifty percent.                      On  February 14,  1989,  August visited  Dr.  Vogel            again.   August asked  the doctor  to write  a letter  to OUI                                            ____________________                      [f]or any employer personally  or through                      an     agent,     to     dismiss     from                      employment . . .,    because    of    his                      handicap, any  person  alleging to  be  a                      qualified handicapped  person, capable of                      performing the essential functions of the                      position    involved   with    reasonable                      accommodation,  unless  the employer  can                      demonstrate   that    the   accommodation                      required to  be made  to the  physical or                      mental  limitations  of the  person would                      impose   an   undue   hardship   to   the                      employer's business.            Mass. Gen. L. ch. 151B,   4(16).                 August's  claim  of discrimination  on  the  basis of  a            handicap, the  sole claim on  appeal, can be  maintained only            against  OUI, as the other  two defendants were  not named as            respondents  in a  charge of  discrimination filed  by August            with  the  Massachusetts  Commission Against  Discrimination.            See Mass. Gen. L. ch. 151B,    5, 9.  At the request of OUI's            ___            counsel, August  moved for voluntary dismissal  of his appeal            as to those two defendants.  That motion was granted  by this            court on January 14, 1992.  Thus, OUI is the only appellee in            this case.                                         -4-            recommending that August be given a  month's leave of absence            from work.    August  later  presented  this  letter  to  OUI            management.  Dr. Vogel's letter  stated that August "has been            severely distressed with  resultant weight loss,  fatigue and            weakness.  It  is most desirable that he have a month's leave            from work to  avoid continued  stress.  During  this time  he            will  receive  therapy in  hopes that  on  his return  he can            better compensate."                        At a  February  1989 meeting  with  OUI  management            August requested a one-month leave of absence.  OUI responded            to this  request by  offering August a  six-week paid  leave.            August  preferred  to  continue working  another  month until            April  1st because  the weather  would be  better then.   OUI            initially  agreed to  the April  1st start,  but later  asked            August  to leave on March 27, 1989, because of complaints OUI            had received from one of August's customers.  Before leaving,            August  met  with  OUI  sales personnel  to  arrange  for his            accounts to  be covered by other  sales representatives while            he was away.                      In early  May, August  contacted Mel  Goldberg, his            supervisor at OUI, to notify him that he would not be able to            return to work on May 8, 1989, the scheduled end of the leave            period.   August also sent Goldberg a letter from Dr. Stanley            Wallace, a psychiatrist.  Dr. Wallace's letter, dated  May 3,            1989,  stated that  August "is  currently under  my  care for                                         -5-            treatment of his Major Depression.   He has shown significant            improvement in his condition but has not yet fully recovered.            My estimation is  that he  will require another  two to  four            weeks before  complete recovery is achieved."   Goldberg told            August  that he could take an additional two weeks off, until            May 22, 1989, but that the time would count as vacation.                      At  August's  request,  he met  with  Goldberg  and            Marilyn Campbell, OUI's  Director of  Administration, on  May            11, 1989.            According to August's deposition, at the  meeting he told the            OUI officials that  he expected  to feel ready  to return  to            work  by May  22.   When  asked whether  he was  "100 percent            better,"  August replied,  "I don't know  if I'm  100 percent            until  I  start working."    Goldberg  told August  that  the            company  would expect "110 percent" from  him and that August            was  "going to  be under  a lot  more pressure than  [he was]            prior  to  leaving."     August  was  advised  that  business            conditions were  worsening, that fewer  sales representatives            were available to handle customer accounts, and that he would            be assigned different accounts when he returned.                      August  says he asked if  he could "come  back on a            part-time  basis" and if he  "could miss the  first couple of            sales  meetings  because  the  sales  meetings  were  in  the            morning"   when   he   experienced   side   effects   of  the            antidepressant medication.   Goldberg refused both  requests.                                         -6-            Ms.  Campbell  suggested that  if  August  continued to  feel            unable to  work, he  should consider applying  for disability            benefits under the company's insurance plan.                      August claims that the May 11 meeting so distressed            him as to reactivate his depression.  On May 12, 1989, August            made out and executed a claim application under the company's            disability plan.  In  the signed application, August asserted            that  he had  been  totally and  continuously disabled  since            March 24,  1989.  August also  wrote on the form  that he did            not know when he would be able to resume work.   An attending            physician's statement attached to the  application, completed            by  Dr.  Wallace,  verified  that  August  had  been  totally            disabled since March  1989 and  that it was  unknown when  he            could resume part-time or full-time work.                      In a  letter dated May 18,  1989, August's attorney            notified OUI  that August had filed  for disability benefits.            In that  letter the attorney stated  that "[t]he commencement            date of Mr.  August's disability  was March 27,  1989."   The            letter  made no mention of  when August would  return to OUI.            Four days  later, August's attorney wrote  to Goldberg again,            maintaining that August had not resigned from OUI and that it            was  his "intention to return to his employment with OUI upon            the conclusion of his  disability."  Again, August's attorney            did not indicate when August might return.                                         -7-                      On May 22,  1989, the  end of the  second leave  of            absence, August  did not report for  work.  On  May 25, 1989,            Campbell, on OUI's behalf, sent August a letter informing him            that his employment with OUI was terminated effective June 1,            1989, because "it is  certainly unclear when and if  you will            be able to  return to work."   The letter explained that  OUI            could  not  continue  to  have  other  sales  representatives            temporarily  cover August's  accounts because  "continuity of            staff managing  account business is, as you know, critical in            our industry."  Except  for the termination letter,  there is            no evidence of any communication between August and OUI on or            after May 22, 1989.                      August renewed his claim for disability benefits in            December  1989, February  1990,  April 1990,  and June  1990.            Each  signed application stated that he  had been totally and            continuously disabled since late March 1989, the day he began            his  first leave  of  absence from  OUI.   Attached  to  each            application was  a statement from Dr.  Wallace, verifying the            fact that August had been totally disabled since March 1989.                               II.  STANDARD OF REVIEW                                    __________________                      The district  court granted OUI's  summary judgment            motion   on   all   counts.     Regarding   the   handicapped            discrimination claim, the  court found that August  was not a            "qualified handicapped person" and that, even if he  was, OUI            had made  all  necessary  reasonable  accommodations  to  his                                         -8-            handicap.    The appropriate  standard  of  review for  cases            disposed of  by summary judgment was  recently articulated by            this Court in another employment discrimination case.                      Since  appellate review  of  a  grant  of                      summary judgment is plenary, the court of                      appeals, like the  district court,  "must                      view the entire record in the  light most                      hospitable to the party  opposing summary                      judgment,   indulging    all   reasonable                      inferences  in that  party's favor."   An                      appellate panel is  not restricted to the                      district court's reasoning but can affirm                      a summary judgment  on any  independently                      sufficient ground.  In the end, the entry                      of summary judgment can 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."            Mesnick v. General  Elec. Co.,  950 F.2d 816,  822 (1st  Cir.            _______    __________________            1991)  (citations omitted),  cert.  denied, 112  S. Ct.  2965                                         _____________            (1992); see Fed. R. Civ. P. 56.                      ___                      We accordingly review the district court's grant of            summary judgment de novo, looking at the entire record in the                             __ ____            light most favorable  to August.   However, to avoid  summary            judgment, August must be able to point to specific, competent            evidence to support his  claim.  Wynne v. Tufts  Univ. School                                             _____    ___________________            of Medicine, No. 92-1437, slip op. at 9, 1992 U.S. App. LEXIS            ___________            24933  (1st Cir.  Oct. 6,  1992); Mesnick,  950 F.2d  at 822.                                              _______            Mere allegations,  or conjecture unsupported  in the  record,            are  insufficient to raise a  genuine issue of material fact.                                         -9-            Wynne, No. 92-1437, slip op. at 10; Mack v. Great Atl. & Pac.            _____                               ____    _________________            Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).            _______                                   III.  DISCUSSION                                         __________                      "Chapter  151B  protects  people  against  unlawful            discrimination.  It does not protect against all instances of            arbitrary action or from poor managerial judgment."  Wheelock                                                                 ________            College v. Massachusetts  Comm'n Against Discrimination,  355            _______    ____________________________________________            N.E.2d 309,  314  (Mass. 1976).   The  provision under  which            August  sued protects  only "qualified  handicapped persons."            See Mass.  Gen. L.  ch. 151B,     4(16).   Thus, August  must            ___            demonstrate  that  he is  a  "qualified handicapped  person."            Conway v. Boston Edison Co., 745 F. Supp. 773,  781 (D. Mass.            ______    _________________            1990);  Mueller  v. Corenco  Corp.,  13  M.D.L.R. 1146,  1153                    _______     ______________            (Mass.  Comm'n Against  Discrim.  1991);  Silva v.  Fairhaven                                                      _____     _________            Marine, Inc.,  11 M.D.L.R.  1173, 1183 (Mass.  Comm'n Against            ____________            Discrim.  1989).   Massachusetts  statute Mass.  Gen. L.  ch.            151B,   1(16) defines the term "qualified handicapped person"            as  "a handicapped  person who  is capable of  performing the            essential  functions  of a  particular job,  or who  would be            capable of performing the essential functions of a particular            job with reasonable accommodation to his handicap."                      Like the district court, we  shall assume, although            without deciding,  that viewing  the facts most  favorably to            August, his depression rendered him "handicapped" within  the            meaning of Section 1(16).   See Wynne, No. 92-1437,  slip op.                                        ___ _____                                         -10-            at 6 n.2; see also Shea v. Tisch, 870 F.2d 786, 786 (1st Cir.                      ________ ____    _____            1989) (person  with  "anxiety disorder"  was handicapped  for            purposes of federal discrimination law); McWilliams v. A.T. &                                                     __________    ______            T. Information  Systems, Inc., 728 F. Supp.  1186, 1188 (W.D.            _____________________________            Pa. 1990)  (person with  "severe depression and  anxiety" was            handicapped  for  purposes  of   Pennsylvania  discrimination            statute).3   August  concedes  that he  was  not  capable  of            performing  his job without  accommodation by OUI.   Thus, we            must decide whether or not there was at least a genuine issue            of material  fact that, if OUI  made reasonable accommodation            to  August's handicap, he would have been able to perform his            job.                      August  contends that  he would  have been  able to            return to work on May  22, 1989, if OUI had only  granted his            requests to miss some morning meetings and to work part-time.            Assuming, for  purposes of argument, that  permission to miss            sales meetings and work part-time would have been "reasonable            accommodations" to require the employer to have made in these            circumstances, the  record is  nonetheless fatally bereft  of            indication that  August possessed the ability  to perform his                                            ____________________            3.  In  interpreting  Massachusetts discrimination  statutes,            Massachusetts  courts  may  look  to  the interpretations  of            analogous  federal  statutes,  but  are  not  bound  thereby.            College-Town v. Massachusetts Comm'n  Against Discrimination,            ____________    ____________________________________________            508 N.E.2d 587, 591 (Mass. 1987).                                         -11-            job.4   The  record indicates  that from  approximately March            24, 1989, until  the time  this case was  argued, August  was            simply incapable of performing the essential functions of any            job, let alone a furniture sales position at OUI.   This fact            was established by August's  own sworn statements on numerous            disability insurance  claim forms, in which  he asserted that            he was totally and continuously disabled from March 24, 1989,                                            ____________________            4.  We do not decide whether August's requests to report late            to work and to  work on a part-time schedule would  have been            reasonable accommodations  to have  required of  the employer            under these  circumstances.  Federal  regulations state  that            "job  restructuring"   and   "part-time  or   modified   work            schedules"     may     sometimes    constitute     reasonable            accommodations.  29 C.F.R.   1613.704(b).  However, employers            "are not required to find another job for  an employee who is            not  qualified for the job he or  she was doing."  School Bd.                                                               __________            of  Nassau County v. Arline,  480 U.S. 273,  289 n.19 (1987).            _________________    ______            Employers  are  only  required   not  to  "deny  an  employee            alternative  employment  opportunities  reasonably  available            under the employer's existing policies."  Id.                                                        ___                 Furthermore, whether schedule or job description changes            are reasonable accommodations  depends on the  circumstances.            In cases  similar to this one,  courts have found  no duty to            accommodate  handicapped  employees  by  modifying   the  job            schedule  or   description.    See,   e.g.,  Guice-Mills   v.                                           ___    ____   ___________            Derwinski, 967  F.2d 794, 797-98 (2d Cir. 1992) (holding that            _________            a nurse  whose depression and sedating  medication forced her            to  report  to  work  two  hours   late  was  not  "otherwise            qualified" for her position); Chiari v. City of  League City,                                          ______    ____________________            920 F.2d 311, 318 (5th Cir.  1991) ("[T]he City does not have            to create a new  job for Chiari; therefore, it does  not have            to  create a  new  part-time position  for  him."); see  also                                                                _________            Pesterfield v.  Tennessee Valley Auth., 941  F.2d 437, 441-42            ___________     ______________________            (6th Cir. 1991) (affirming decision that employer had no duty            to place mentally-ill employee in a stress-free environment);            Shea  v.  Tisch,  870  F.2d   786,  788-90  (1st  Cir.  1989)            ____      _____            (affirming  decision that  employer had  no duty  to reassign            worker with anxiety disorder to a less stressful location, in            part  because  it  would  violate  a  collective   bargaining            agreement).                                         -12-            onward.   Written statements signed by  his psychiatrist, Dr.            Wallace, verify his total disability.                        For example, August filed his first application for            disability  benefits  with the  Provident  Life and  Accident            Insurance Company on May 12, 1989,  one day after the May  11            meeting with OUI.   On  that form, August  attested that  the            dates of his  "total disability" were "March 24, 1989 through            continuing."   Dr.  Wallace, when  asked on  the accompanying            physician's   form  to   describe   the  "patient's   present            limitations,"  wrote "total  disability."   Dr.  Wallace also            affirmed that,  in his  opinion, August was  "now necessarily            totally disabled."  On  all the other insurance forms  in the            record    filed in December 1989, February 1990, April  1990,            and  June  1990     August  declares  himself to  be  totally            disabled  since approximately  March 24,  1989.5   The record            also shows that Provident Life approved August's applications            and paid him benefits  for his total disability.   Nowhere on            any form did August indicate that his disability began or was            aggravated on May 11, the date of his meeting with OUI.                      Under   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  at                                            ____________________            5.  August was not consistent  in specifying the date  of the            onset  of  his total  disability.    On subsequent  insurance            forms,  he listed the date  also as March  9, 1989, and March            29, 1989.                                         -13-            OUI, with or  without reasonable  accommodations, since  late            March  1989.   The record  does not  show exactly  how "total            disability"  was defined  in  August's insurance  policy; the            Provident  Life application  form described  total disability            simply  as  an "inability  to work."    As used  in insurance            contracts, "total  disability" generally  means a  "person is            incapacitated  from performing  any substantial  part of  his            ordinary  duties, though still  able to  perform a  few minor            duties and be present at his place of business."  Black's Law                                                              ___________            Dictionary 462 (6th ed. 1990).   An insurance treatise states            __________            that  "total disability"  means "the infirmity  or disability            renders the  person unable  to perform substantially  all the            material  acts  of an  occupation  which  his age,  training,            experience  and  physical  condition   would  suit  him  for,            . . . ." 15 Couch  on Insurance 2d    53.40, at 76  (rev. ed.                        ______________________            1983);  see Velez  Gomez v.  SMA Life  Assurance Co.,  793 F.                    ___ ____________     _______________________            Supp. 378,  383 (D.P.R. 1992).   Under Massachusetts workers'            compensation law, "totally disabled"  means one is "unable to            engage in any occupation,  or obtain or perform any  work for            compensation  or profit."  Cierri's Case, 396 N.E.2d 149, 149                                       _____________            (Mass.  1979); Frennier's  Case,  63 N.E.2d  461, 463  (Mass.                           ________________            1945).                      That August was disabled from performing his job at            OUI either  part-time or full-time  on all relevant  dates is            further  borne  out by  other  uncontroverted  facts.   After                                         -14-            leaving work on March  27, 1989, August underwent psychiatric            treatment  and showed no sign of intending to return to work.            August himself told Goldberg  in early May that he  would not            be able to resume work on May 8, the end of the granted leave            period.   At  the May  11 meeting,  August told  Goldberg and            Campbell that he  probably would be ready  by May 22 but  was            not  ready yet.   However,  August points  to nothing  in the            record from which a trier of fact might conclude that, on and            after May 22,  he was in fact able to  work in some capacity.            At  a hearing in the district court, the court asked August's            attorney about August's ability to work on May 22:                      THE COURT: Was there any question at that                      time      May 22nd      that  he was  not                      capable of returning to work?                      MR. WILOGREN: As of  May 22nd, he was not                      capable of returning to work . . .            It  was stated  by  August's attorney,  during oral  argument            before  this Court,  that August  was completely  and totally            disabled from at least May 22, 1989 to the present time.                      Because there  is no  evidence from which  to infer            that August was not completely and totally disabled since the            last  week in  March 1989,  no reasonable  fact  finder could            conclude  that,  at  relevant   times,  he  was  a  qualified            handicapped person  within the meaning  of Mass. Gen.  L. ch.            151B,   4(16).   Permission  to miss morning  meetings or  to            work  part-time,  as requested  on  May  11,  could not  have            enabled one  who was totally  disabled and thus  incapable of                                         -15-            working either part-time or full-time to do his job.  Neither            is August's  further  contention     that  a third  leave  of            absence, which he never requested,  might have enabled him to            recover    supported by anything in the present record,  even            assuming that another extension of  his leave would have been            a reasonable accommodation.6                      The Eighth Circuit has held that a totally disabled            employee  is   not   an  "otherwise   qualified   handicapped            individual  under  the  federal  Rehabilitation  Act."    The            plaintiff in  Beauford v.  Father Flanagan's Boys'  Home, 831                          ________     _____________________________            F.2d  768 (8th Cir. 1987), cert. denied, 485 U.S. 938 (1988),                                       ____________            was hospitalized for physical  and emotional ailments  which,            she  alleged, arose out of pressures from her teaching job at            defendant's  school.  Id. at  769.  She  filed for disability                                  ___            insurance benefits after informing the defendant that she was            unable  to work because of  her mental and physical problems,            and  that  she would  be unable  to  work in  the foreseeable            future.  Id.  at 770.  Plaintiff later  sued her employer for                     ___            discontinuing her salary  and benefits, alleging  handicapped                                            ____________________            6.  August cites  Kimbro v. Atlantic Richfield  Co., 889 F.2d                              ______    _______________________            869  (9th Cir. 1989), cert.  denied, 111 S.Ct.  53 (1990), in                                  _____________            support of his claim that OUI should have offered him a third            leave  of  absence.    However,  Kimbro  only  held  that  an                                             ______            employer's  failure to  offer  any  leave  of absence  to  an                                           ___            employee   with   chronic    migraine   headaches    violated            Washington's handicap  discrimination law.   See id.  at 879.                                                         _______            The Kimbro  court  expressly qualified  its holding,  stating                ______            that it did not obligate ARCO  to grant a second leave if the                                                      ______            migraine  condition recurred  after  return from  the initial            leave.  Id. at 879 n.10.                    ___                                         -16-            discrimination   in   violation  of   section   504   of  the            Rehabilitation  Act of 1973, 29  U.S.C.   794.   The district            court rejected plaintiff's claim, holding that she was not an            "otherwise  qualified handicapped individual" because she was            totally  disabled and thus no longer able to perform her job.            Id. at 771.   Affirming the district court ruling,  the Court            ___            of Appeals wrote:                      [S]ection  504  was designed  to prohibit                      discrimination  within  the  ambit of  an                      employment  relationship   in  which  the                      employee  is potentially  able to  do the                      job  in question.    Though it  may  seem                      undesirable  to  discriminate  against  a                      handicapped  employee  who  is no  longer                      able  to do his or  her job, this sort of                      discrimination is simply  not within  the                      protection of section 504.            Beauford,  831 F.2d at 771;  see also Bento  v. I.T.O. Corp.,            ________                     ________ _____     ____________            599 F. Supp. 731,  742-43 (D.R.I. 1984) (Selya,  J.) (finding            no  violation of the Rehabilitation Act for failure to rehire            a  longshoreman who  retired  as totally  disabled and  later            presented  no  evidence to  his  employer that  he  had fully            recovered).                      August  did  not  renounce  his  statements on  the            insurance forms of  total disability, nor  has he pointed  to            facts  which could  raise  any issue  as  to whether  he  was            totally disabled  during the period in question.  Instead, he            focuses on the  harm allegedly  done to him  by Goldberg  and            Campbell at the  May 11,  1989 meeting.   He argues that  his            negative experience, resulting  especially from their failure                                         -17-            to state that they would accommodate him in the manner he had            requested,  caused him to  relapse into depression, rendering            him  totally  disabled.   But for  OUI's  actions on  May 11,            August contends, he would  or might have been able  to return            to work on May 22.7                      We find no merit in this contention.  August offers            no legal authority  to support his argument that the relevant            date is  not the date he was terminated, but a date two weeks            prior.   See,  e.g.,  Walker v.  Attorney  General of  United                     __________   ______     ____________________________            States,  572  F. Supp.  100,  102  (D.D.C. 1983)  (discussing            ______            whether plaintiff was, in fact, unable to perform his job "at            the time he was terminated.")  Nor is there any evidence that            OUI had any plans to terminate August on May 11 or afterward.            Even if May  11 were treated as the crucial  date, August was            not a  qualified handicapped person  on that  day because  he            was, by his own admission, unable to return to work on May 11            with  or without  reasonable  accommodation.   Moreover,  the            record contains  nothing in the way of psychiatric or medical            evidence to support counsel's bare assertion that the actions            of OUI's employees  at the  May 11 meeting  caused August  to            become totally disabled on May 12, whereas    had they spoken                                            ____________________            7.  August also  argues that OUI, after learning  that he was            totally disabled,  had the duty to  investigate and determine            when he might return.  Courts  in similar cases have found no            such  duty.  See  Cook v. United  States Dep't  of Labor, 688                         ___  ____    ______________________________            F.2d 669, 671  (9th Cir.  1982), cert. denied,  464 U.S.  832                                             ____________            (1983); Walker v.  Attorney General of United States,  572 F.                    ______     _________________________________            Supp. 100, 102 (D.D.C. 1983).                                         -18-            differently     he would have been  able to return to work on            May 22.   Since August had the burden of proof on this issue,            it  was,  of course,  his  obligation  "to present  definite,            competent  evidence" to  prove  the point  and thereby  avert            summary judgment.  Mesnick, 950 F.2d at 822.                               _______                      Moreover,  even if  August could  prove that  OUI's            attitude caused him  further psychic injury  on May 11,  this            would  not establish  a  cause of  action for  discriminatory            discharge on account of  handicap in violation of Mass.  Gen.            L.  ch. 151B.   See  Langon v. Department  of Health  & Human                            ___  ______    ______________________________            Servs.,  959 F.2d 1053, 1061-62 (D.C.Cir. 1992) (establishing            ______            a causal connection between employer's failure to accommodate            and plaintiff's poor job performance may support a claim  for            damages for harm  caused, but does not  establish a violation            of the Rehabilitation Act).  An employee's allegation that an            employer  caused him  mental distress  constitutes at  most a            claim of personal injury, actionable either as  a tort, e.g.,            intentional infliction  of emotional distress, or  as a claim            under   the   workmen's  compensation   statute.8     Alleged            violations of an employee's  civil rights are distinguishable                                            ____________________            8.  The   district  court   dismissed   August's  claim   for            intentional infliction of emotional  distress when it granted            summary judgment.   The court found  no evidence of  "extreme            and  outrageous conduct,"  and also  ruled that the  claim is            barred by Massachusetts workers' compensation law.  See Mass.                                                                ___            Gen.  L. ch. 152,    26; Foley v.  Polaroid Corp., 413 N.E.2d                                     _____     ______________            711, 714-15 (Mass.  1980).   August did not  appeal from  the            court's dismissal of this claim.                                         -19-            from  personal injuries  compensable under  the Massachusetts            workers'  compensation act.    Foley v.  Polaroid Corp.,  413                                           _____     ______________            N.E.2d  711,  714-15 (Mass.  1980).    August's status  as  a            "qualified handicapped  person" does not depend  on the cause                                                                    _____            of  his  disability,   but  rather  on  the   extent  of  his                                                          ______            disability.   The critical question  is whether, in  fact, he            was able to perform  the essential functions of his  job with            or without reasonable accommodation when he was fired.                      Having conceded that he was totally disabled at all            relevant times, August  cannot now  establish that  he was  a            "qualified handicapped person" and thus cannot make the prima                                                                    _____            facie  case required to prevail on his claim under Mass. Gen.            _____            L.  ch. 151B,   4(16).  See  Conway v. Boston Edison Co., 745                                    ___  ______    _________________            F.  Supp. 773, 781 (D. Mass. 1990); Mueller v. Corenco Corp.,                                                _______    _____________            13 M.D.L.R. 1146, 1153  (Mass. Comm'n Against Discrim. 1991);            Silva  v.  Fairhaven Marine,  Inc.,  11  M.D.L.R. 1173,  1183            _____      _______________________            (Mass. Comm'n  Against Discrim.  1989).  Summary  judgment in            favor of OUI was  proper because there are no  genuine issues            of material fact  as to whether  August could have  performed            his job if his handicap had been accommodated.  See Chiari v.                                                            ___ ______            City  of  League City,  920 F.2d  311,  319 (5th  Cir. 1991);            _____________________            Langon, 749 F. Supp. at 7;  see also Prewitt v. United States            ______                      ________ _______    _____________            Postal  Serv., 662 F.2d 292, 310  (5th Cir. Unit A Nov. 1981)            _____________            ("To sustain [a]  prima facie  case, there should  also be  a                                         -20-            facial showing or at least plausible  reasons to believe that            the handicap can be accommodated . . . .").                        This holding conforms with our decision in Wynne v.                                                                 _____            Tufts Univ. School of  Medicine, 932 F.2d 19 (1st  Cir. 1991)            _______________________________            (en banc).  The district court in Wynne had ruled that Wynne,                                              _____            a  medical school  student, was  not an  "otherwise qualified            handicapped individual" within the  protection of the federal            discrimination  law  because  he  was not  able  to  meet his            school's testing  requirements.   We  vacated  that  judgment            because a majority  of the en  banc court found  insufficient            evidence  to  determine whether,  as  a  matter  of law,  the            university had fulfilled its duty of reasonable accommodation            to Wynne.  Id. at  26.  However, the majority  explained that                       ___            "[i]f the record  were crystal clear that  even if reasonable            alternatives  to  written  multiple-choice examinations  were            available,  Wynne  would have  no  chance  of meeting  Tuft's            standards, we might  be able to affirm .  . . ."  Id.  at 27.                                                              ___            Unlike  in  Wynne's  case, the  record  in  August's  case is            crystal  clear.  The crucial  issue in Wynne,  of course, was                                                   _____            whether the accommodations requested were  "reasonable" under            the  circumstances.   See  Wynne  v.  Tufts Univ.  School  of                                  ___  _____      _______________________            Medicine,  No. 92-1437, slip op.  at 6, 1992  U.S. App. LEXIS            ________            24933 (1st Cir.  Oct. 6, 1992) (appeal  after remand); Wynne,                                                                   _____            932 F.2d at 27-28.   Here, we have assumed arguendo  that the                                                       ________            accommodations  requested by August were reasonable but still                                         -21-            find  that,  even so,  there was  no  material issue  of fact            concerning   August's  ability   to  perform   the  essential            functions of his job.                      The district court also granted summary judgment on            the handicapped  discrimination claim on the  ground that OUI            made all  the required  reasonable accommodations  to August,            and  thus, as a matter of law,  did not violate Mass. Gen. L.            ch. 151B,   4(16).  Because we find that the district court's            first ground  for summary judgment was  sufficient to support            its  decision, we need not  consider the second  ground.  See                                                                      ___            Mesnick,  950  F.2d  at  822  ("An  appellate  panel  is  not            _______            restricted to  the district court's reasoning  but can affirm            on any independently sufficient ground.").                      Affirmed.  Ordinary costs for appellee.                      ________   ___________________________                      Dissent follows.                      Dissent follows.                                         -22-            PETTINE, Senior District Judge, dissenting:                     _____________________                 This  appeal   presents   a  narrow   procedural   issue            concerning the  district court's grant  of summary  judgment.            In reviewing summary judgment  awards, as the majority notes,            we "'must view the entire record in the light most hospitable            to  the  party  opposing   summary  judgment,  indulging  all            reasonable inferences  in that  party's favor.'"   Mesnick v.                                                               __________            General Electric  Co.,  950 F.2d  816, 822  (1st Cir.  1991),            _____________________            cert. denied,  __ U.S.  __, 112  S.Ct.  2965 (1992)  (quoting            _____ ______            Griggs-Ryan v. Smith,  904 F.2d  112, 115  (1st Cir.  1990)).            ____________________            Stated another way, a summary judgment examination by a court            is  not  a balancing  exercise  to  determine "which  party's            evidence  is  more  plentiful, or  better  credentialled,  or            stronger."    Greenburg  v.  Puerto  Rico  Maritime  Shipping                          _______________________________________________            Authority,  835 F.2d  932, 936  (1st Cir.  1987).   Rather, a            _________            court must determine "whether the nonmovant's  most favorable            evidence  and  the  most  flattering  inferences  which   can            reasonably be  drawn therefrom  are sufficient to  create any            authentic  question  of material  fact."   Id.   All  of this                                                       __            means, in my view,  that in the interests of  justice, "close            calls" in summary judgment motions  must be resolved in favor            of  the nonmoving  party.   In the  case at  hand, I  believe            plaintiff-appellant August deserves this latitude, and thus I            would reverse  the district  court's decision and  remand the            action for trial.                                         -21-                                          21                                          I.                 From  the   majority's  vantage  point,   the  principal            question in this case is "whether or not there was at least a            genuine issue of  material fact that, if  OUI made reasonable            accommodation to  August's handicap, he would  have been able            to  perform his job."  The majority answers this inquiry with            a  resounding "no."   This conclusion  is based in large part            on  August's   own  statements,  as  well  as  those  of  his            psychiatrist   and  counsel,   that   he  was   totally   and            continuously  disabled  from late  March  1989  onward.   The            majority  points out,  for  example, that  in August's  first            application for  disability benefits with the  Provident Life            and Accident Insurance  Company on May 12,  1989, he asserted            that the dates of his "total disability" were March 24, 1989,            "through  continuing."    An  accompanying  physician's  form            signed  by  August's  psychiatrist,  Dr.  Wallace,  similarly            stated that  August had a  "total disability."   The majority            also observes that in  all subsequent insurance forms  in the            record,  August   declared  that  he  was   totally  disabled            beginning  in  March 1989.    In  addition to  these  written            assertions,  the majority  relies  upon a  statement made  by            August's  counsel at a hearing in the district court, that as            of May 22, 1989, August was not capable of returning to work.                                         -22-                                          22                 All of  this evidence, according to  the majority, would            lead any reasonable  fact finder to conclude that  August was            not a  "qualified handicapped  person" within the  meaning of            Mass.  Gen. L.  ch. 151B.    4 (16).   Thus,  any requests by            August for reasonable accommodations were  meaningless, since            they "could not have enabled one who was totally disabled and            thus incapable  of working either part-time  or full-time, to            do his job."                  With all  due respect, I believe the majority is putting            the cart before the  horse.  The issue is  not whether August            was  classified  by  his  psychiatrist, and  by  himself,  as            totally disabled following the May  11, 1989, meeting at OUI.            Rather, the key factual inquiry is whether the outcome of the            May  11th  meeting  was   determinative  of  this  subsequent            characterization of total disability.  In other words,  it is            unresolved whether August could have returned to work had OUI            accommodated his disability as per his May 11th requests.              ____________                 August  claims that he would have been able to return to            work by the  end of May  if OUI had  granted his requests  to            miss a few meetings and to work part-time.  There is evidence            in  the record  that in  early May  both of  August's doctors            considered  him  fit  to return  to  OUI.9    Dr. Vogel,  his                                            ____________________            9.     The  majority  stresses that  August  did not  present            "definite,  competent evidence" (citing  Mesnick, 950 F.2d at                                                     _______            822) to prove that the actions of OUI at the May 11th meeting            caused  him  to  become totally  disabled  on  May  12th.   I            believe, however,  that the  crucial issue is  whether August                                         -23-                                          23            internist, stated  in his  deposition that after  he examined            August on May  10, 1989, he concluded that  "because [August]            was  feeling  better,  I suggested  he  go  back  to work."              August's psychiatrist, Dr. Wallace, wrote on May 3, 1989 that            in  his judgment  August "will  require another  two to  four            weeks  before complete  recovery  is achieved."     Moreover,            August  himself stated  in a  deposition that  he  told OUI's            representatives at the May 11th  meeting: "I think I'm  ready            to come back to work.  I'm feeling much better."                  According to August, OUI's  "denial of [his] requests to            miss one or two early morning meetings and to work on a part-            time basis constituted a failure  to take steps to reasonably            accommodate  plaintiff's  handicap."    Plaintiff-Appellant's            Brief at 10.   Viewing the facts in the  light most favorable            to  the  plaintiff, these  accommodations, if  granted, could            have enabled  him  to continue  working  notwithstanding  his            handicap.    After  all,  the  Massachusetts  statute defines            "qualified  handicapped person"  as  one "who  is capable  of            performing the essential elements of a particular job, or who                                                                   ______            would be capable  of performing the essential functions  of a            _____________________________________________________________            particular   job  with   reasonable   accommodation  to   his            _____________________________________________________________            handicap."  Mass. Gen. L. ch. 151B,   1(16) (emphasis added).            ________                                            ____________________            offered tangible evidence  that he  might have  been able  to            return  to work if OUI had  made reasonable accommodations to            his handicap.  In  my view, there was sufficient  evidence on            this point to fend off summary judgment.                                         -24-                                          24            To be sure, when OUI denied the May 11th requests, August was            unable to immediately  return to  work.  But  this fact  only            demonstrates that, absent accommodations by OUI, August could                               ______            not  work.   It  does  not  prove that  he  would  have  been                                   ___            incapable of working had his requests been granted.                 While  "[e]mployers cannot  be  required to  accommodate            needs they do not  know exist," Conway v. Boston  Edison Co.,                                            ____________________________            745  F. Supp. 773, 783 (D. Mass.  1990), the evidence in this            case  demonstrates that  OUI was  not only aware  of August's            handicap,  but  also  of  the  accommodations  necessary   to            facilitate  his return to work.  August should be entitled to            have  a fact finder hear  the evidence and  decide whether at            the May 11th meeting he would have been capable of performing            his  essential   job  functions,  had  OUI   made  reasonable            accommodations to his handicap.                 Even accepting the logic of the majority, I believe they            rely too  heavily on August's characterization  of himself as            "totally disabled"  in the aftermath of the May 11th meeting.            For one thing, the disability insurance forms are not legally            or  medically precise.   As the majority  acknowledges, it is            not  clear  how "total  disability"  is  defined in  August's            insurance policy.  The insurance forms simply describe "total            disability" as an  "inability to  work."  On  its face,  this            definition would not preclude an individual from concurrently            claiming   "qualified   handicapped   person"  status   under                                         -25-                                          25            Massachusetts (or federal) law.  Further,  it is logical that            August took  full  advantage of  OUI's  temporary  disability            benefits  following the  May  11th meeting.   Indeed,  August            concedes  that he  was unable  to work  without some  type of            alternative arrangement from  OUI.  But again,  this does not            necessarily mean that August  was "incapable" of working even                                                                     ____            if accommodations were provided by his employer.             __                                         II.                 Although not addressed in the majority's opinion, I also            conclude that the district court erred when it found that OUI            had    reasonably   accommodated  August's  handicap.     For            completeness, I wish to add a few thoughts on this issue.                 OUI  failed almost  entirely  to  fulfill its  statutory            obligation  to  reasonably  accommodate   August's  handicap.            While OUI  might have  argued that the  accommodations August            sought  placed  an  "undue  hardship" upon  the  company,  it            declined to do so.  Instead, OUI contends:                 There is...no authority  to support the proposition                 that a statement by  a totally disabled person that                 he intends  to return  to work at  some unspecified                 time in  the future when  he is no  longer disabled                 constitutes   a   request    for   a    "reasonable                 accommodation."     A   request   to   be   excused                 indefinitely  from performing  any and  all of  the                 functions  of  his  job  is  not  a request  for  a                 "reasonable accommodation."            Defendant-Appellee's Brief at 15.   This argument is specious            since the accommodations at issue are those which  August had            requested at  the May  11th meeting,  and which OUI  rejected                                         -26-                                          26            out-of-hand.    The relevant  accommodation  is  not August's            resultant application for temporary disability benefits.                   OUI's brief  makes no  mention of August's  requests for            absence  from  a few  meetings  and  for temporary  part-time            status, or  of its grounds  for refusing to  accommodate him.            OUI also does not directly refute his claim that these issues            were discussed on May  11th.  Therefore, it was  improper for            the  trial judge not to accept the unrefuted facts alleged by            the  nonmoving  party  in a  summary  judgment  motion.   See                                                                      ___            Blanchard  v. Peerless, Ins. Co., 958 F.2d 483, 489 (1st Cir.            ________________________________            1992).    Without  any  evidence  of  the  reasonableness  or            unreasonableness  of  August's  May  11th  requests,  or  the            reasons for OUI's  failure to accede  to those requests,  one            simply  cannot say  as a  matter of  law that  OUI reasonably            accommodated August's handicap.                                           III.                 I  recognize that  August  would face  an uphill  battle            ahead of  him at trial.   To succeed on the  merits, he would            have  to  prove that:  (1)  he was  a  "qualified handicapped            person" on May 11,  1989; (2) his requests to  work part-time            and to  miss early  morning meetings  constituted "reasonable            accommodations"; and (3) his inability to return to work  was            caused  by his  employer's  wrongful refusal  to grant  these            accommodations.  Still, these are all questions of  fact that                                         -27-                                          27            should  be  determined at  an evidentiary  hearing, not  on a            summary judgment motion.                   However  hard  I try,  I  cannot  fathom the  majority's            conclusion that  the record in this case  is "crystal clear."            In my view, this case  presents genuine disputes over crucial            factual  matters.   At  a minimum,  "[t]here  is enough  of a            patina of  uncertainty  here  as to  the  material  facts  to            deflect  the summary judgment  axe."  Greenburg,  835 F.2d at                                                  _________            937.                   Because  I believe  this plaintiff  deserves his  day in            court, I must respectfully dissent.                                         -28-                                          28
