No revival of ADA claims of employee who self-monitored activities as accommodation

Affirming summary judgment against the failure-to-accommodate claim of an employee who suffered from a permanent back condition, the First Circuit U.S. Court of Appeals found that in the circumstances of this case, his employer could not be faulted, as a matter of law, when he opted to remain silent, voluntarily chose to participate in certain activities, or otherwise failed to police his own physical needs as the parties had agreed. The employee’s attempt to revive his hostile work environment and retaliatory discharge claims also failed. Summary judgment also was affirmed against his claim that he was fired in retaliation for reporting safety concerns to management that he believed were violations of federal or state law also failed.

Self-monitor.
Recruited in 2008 by his former supervisor to return to Warren Pumps, a company that manufactures pumps for use in sophisticated end products like submarines, the employee resumed his prior duties of monitoring workplace safety. Because he had previously worked for the company, it was aware of his medical limitations from his back condition, which included lifting, walking, sitting, and climbing restrictions. It was agreed that the employee would self-monitor his workplace activities and accommodate his condition as necessary.

Termination. Dissatisfied with his supervisor’s response to his reports of safety violations, the employee informed headquarters that his supervisor had been “breaking laws” and had allowed unapproved repairs. A company VP met with him, investigated his complaints, and found nothing to substantiate them. Not long afterward, the employee was terminated. He then sued, asserting federal and state law disability discrimination claims and a state wrongful discharge claim. The district court granted summary judgment on all counts.

Failure to accommodate. The employee argued that he did not need to show he actually asked for an accommodation when his supervisor instructed him to perform a strenuous task, or that the supervisor actually compelled him to violate his restrictions on any particular occasion. It was enough, he contended, that his supervisor “deliberately requested” he perform tasks that would cause him to violate his medical restrictions and accommodations. Finding this argument unavailing under the circumstances here, the court pointed out that the employee agreed to self-monitor whether certain tasks were stressing his physical abilities and make appropriate adjustments himself or request accommodation.

And while he insisted his supervisor knew of his restrictions, he failed to account for the self-directed and discretionary nature of his mutually agreed accommodation or that his supervisor was in charge of 55 to 60 people. Further, it was undisputed that when he did tell his supervisor he needed an accommodation or that he could not perform a task, the supervisor did not push him to personally do the job.

Harassment. As to the employee’s allegations that his supervisor made “snide comments” such as he could work faster, he might accomplish more if he were at the shop more, and a younger person could do a certain task very easily, the court found these to be stray remarks that could not support his harassment claim. Nor was the “questioning” he endured from his supervisor and an HR rep regarding his need for time off for medical appointments harassment as he failed to show these inquiries fell outside their job duties.

Retaliatory discharge. Turning to his retaliatory discharge claim, the court found the employee’s requests for accommodation when he was rehired in 2008 and when he refused to assist in a shop-wide painting project in 2010 too remote from his 2011 discharge. As for all the times he stayed silent when asked to perform a task that conflicted with his restrictions, these did not amount to protected activity. Nor was there any evidence that two VPs who met with him and took action against him had any knowledge of any protected activity.

Public policy claim. Finally, the court found the employee failed to show his termination implicated a sufficiently important and clearly defined public policy in Massachusetts. There was no evidence Warren Pumps asked him to deceive anyone about the legality of its conduct; fired him for refusing to engage in conduct tantamount to fraud or known illegalities; attempted to subvert his job performance as safety compliance officer in order to mask its suspected illegal conduct; or that his complaints directly implicated public health and safety, particularly given undisputed testimony that all aspects of the company’s pumps were regularly subjected to rigorous safety inspections designed to reveal flaws that would compromise public safety.

Noting that Massachusetts courts recognize limitations on the protection afforded to at-will employees under the public policy exception, the First Circuit pointed out that these “cases warn that the public policy exception is purposely circumscribed, so that the general rule preserving employer prerogative does not morph into an edict requiring just cause to terminate an at-will employee.” Because the district court adhered to the line drawn in the state court decisions, its ruling on the common law claim was also affirmed.

SOURCE:
Murray v. Warren Pumps, LLC, (CA-1), No. 13-2133, April 25, 2016.

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