Manning v. Abington Rockland Joint Water Works

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

TERESA A. MANNING, )

)

Plaintiff, ) CIVIL ACTION NO.

) 16-11895-DPW

v. )

)

ABINGTON ROCKLAND JOINT )

WATER WORKS, )

)

Defendant. )

MEMORANDUM AND ORDER

March 4, 2019

The plaintiff, Teresa Manning, brings this action against

her former employer, Abington Rockland Joint Water Works,

claiming the Water Works failed to provide her reasonable

accommodations for her disabilities and chose instead to

terminate her employment because of those disabilities.

The Water Works has moved for summary judgment both because

Ms. Manning failed to exhaust her administrative remedies and

because she cannot establish that the Water Works failed

reasonably to accommodate her disabilities. I will grant the

Water Works’ motion for summary judgment.

I. BACKGROUND

A. Factual Background1

Ms. Manning began working at the Water Works in 1999 as an

office clerk. She was terminated from her employment with the

Water Works on August 26, 2014. During the course of her

employment with the Water Works, Ms. Manning reported to the

same two supervisors: Dan Callahan, the Superintendent, and Mr.

Callahan’s assistant, JoAnne Hall.

Office clerks perform a variety of tasks, many of which

require the clerk to be present in the office on a daily basis.

Their responsibilities are specialized and include billing

individual customer accounts, answering phone calls, resolving

customer concerns, receiving payments at the office window,

scheduling service calls. It is unlikely that any temporary

1 The Water Works filed its statement of undisputed material

facts with its motion for summary judgment and Ms. Manning

failed to respond to that statement in any way. More

fundamentally, she failed to file her own statement of

undisputed material facts. Therefore, all facts referenced here

are taken from the Water Works statement. See generally Local

Rule 56.1 (“Material facts of record set forth in the statement

required to be served by the moving party will be deemed for

purposes of the motion to be admitted by opposing parties unless

controverted by the statement required to be served by opposing

parties.”); Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st

Cir. 2003) (deeming admitted the uncontroverted facts submitted

by the moving party pursuant to Local Rule 56.1); Stonkus v.

City of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st Cir. 2003)

(“Because Stonkus did not controvert the statement of undisputed

material facts that the defendants filed with their summary

judgment motion, we deem those facts admitted . . . .”)

replacement employee without prior work experience at the Water

Works or a similar entity would be able to perform these duties

effectively unless that employee had weeks or months of on the

job training.

For most of Ms. Manning’s employment with the Water Works,

she had a good attendance record. In fact, Ms. Manning took no

sick leave during the 2013 fiscal year, and she was therefore

given additional personal days for the 2014 fiscal year. But

Mr. Callahan and Ms. Hall had longstanding concerns about Ms.

Manning’s work performance, including frequent mistakes, and her

tendency to respond to criticism of her work performance with a

contentious attitude.

Ms. Manning’s alleged disabilities, a heart condition and a

proclivity to panic attacks, surfaced in 2013. Her heart

condition resolved quickly and has not reappeared since. The

heart condition consisted of a single hospitalization with viral

congestive heart failure on September 8, 2013. Ms. Manning took

a paid medical leave of absence from September 9, 2013 until

October 8, 2013. The Water Works did not object to Ms.

Manning’s leave of absence, and it accommodated her follow up

medical appointments.

According to Ms. Manning, her proclivity to panic attacks

became a disability in October 2013 and ended when her

employment was terminated. The first instance of this type of

disability occurred on October 23, 2013, the day after she had

an argument with Mr. Callahan about taking work papers home.

During that argument, Mr. Callahan told Ms. Manning that the

Water Works policy did not allow documents to leave the office,

and Ms. Manning became upset. She had taken Water Works

documents home many times before this incident, including prior

to the 2013 fiscal year.

On October 23, 2013, Ms. Manning experienced chest pain at

work and left the office early to go to the hospital. Ms.

Manning emailed her supervisors that she was not well; at the

hospital she was diagnosed as likely having had stress-induced

pain and discomfort. After this episode, Ms. Manning did not

return to work until November 18, 2013, providing the Water

Works with notes and documentation from her doctors that

verified her condition. Ms. Manning was paid her full salary

during this leave of absence.

In early November 2013, before she returned to work, Ms.

Manning called Richard Muncey, one of the members of the Water

Works Board of Commissioners (“the Board”), and she told him

about her argument with Mr. Callahan on October 22. Ms. Manning

told Mr. Muncey that she had been mistreated, and Mr. Muncey

told Ms. Manning to bring her concerns before the Board.

On November 6, 2013, Ms. Manning and her attorney appeared

before the Board, and Ms. Manning explained the circumstances

surrounding the October 22 incident and complained that she had

been mistreated. Ms. Manning told the Board that she was on

medical leave and would soon return to work, but she did not say

that she had any disabilities or that she was seeking an

accommodation. The Board did not take action against Mr.

Callahan.

On December 12, 2013, Mr. Callahan and Ms. Hall met with

Ms. Manning to discuss her uncooperative attitude and the strain

it was placing on the work environment. Thereafter, Mr.

Callahan felt that Ms. Manning continued to make careless

mistakes and exhibit an uncooperative attitude. In January

2014, he informed the Board that he wanted to terminate Ms.

Manning’s employment. The Board held a hearing in late January

or early February of 2014 at which Ms. Manning, accompanied by

her attorney, testified and presented supporting witnesses.

Although Ms. Manning complained of unfair treatment by Mr.

Callahan, she did not discuss her alleged disabilities and did

not request any accommodations. The Board chose not to support

Ms. Manning’s discharge.

In February 2014, after the hearing, Ms. Hall sent Ms.

Manning an email telling her that they should communicate with

each other on work-related matters solely in writing. Ms. Hall

instituted this policy in order to help prevent disputes. Over

the next month, Ms. Manning continued to make mistakes at work,

and Ms. Hall sent Mr. Callahan an email on March 5, 2014 that

documented those mistakes.

On March 7, 2014, Ms. Manning took a medical leave of

absence. Ms. Manning’s psychologist, Dr. Vicki Beggs, PhD,

prepared a note on March 11, 2014 that indicated Ms. Manning was

being treated for depression and was unable to work. This was

the first point at which Mr. Callahan was aware that Ms. Manning

suffered from depression. The note did not indicate when Ms.

Manning would return to work. Ms. Manning’s leave was left

open-ended. The leave of absence presented difficulties for the

Water Works because of its open-ended nature. The Water Works

fell behind on its work.

On April 4, 2014, Mr. Callahan sent Ms. Manning a letter

enquiring when she would be returning to work. Ms. Manning’s

psychologist, Dr. Beggs, sent back a note that Ms. Manning would

be reevaluated in May for a possible return to work. Then, on

May 8, Dr. Beggs prepared a note indicating that Ms. Manning

would be able to return to work on May 19, which she did. For

the duration of her leave, Ms. Manning was paid her full salary.

After Ms. Manning returned on May 19, she took 15 days of

vacation and three personal days between May 21 and August 8.

This was time that Ms. Manning was entitled to under her

employment contract.2 Nevertheless, the time off put additional

pressure on the other office staff and caused the Water Works to

continue to fall behind. Even so, Mr. Callahan and Ms. Hall did

not oppose or reject any of Ms. Manning’s requests for time off.

In July, Ms. Hall notified Ms. Manning of a number of

errors she had made that needed to be corrected. Ms. Hall also

notified Mr. Callahan of these mistakes and her frustration.

For his part, Mr. Callahan exchanged emails with Ms. Manning,

seeking an explanation for the mistakes. Mr. Callahan informed

Ms. Manning that he found her mistakes, her excuses, and her

defensive responses troubling.

On August 4, 2014, Ms. Manning began a week-long vacation,

which was followed immediately by an open-ended medical leave of

absence. On August 7, Dr. Beggs prepared a note indicating that

Ms. Manning was being treated for depression and anxiety and

that she was unable to work. The note indicated that Ms.

Manning would be reevaluated on August 29. This was the first

time Mr. Callahan learned that Ms. Manning was being treated for

anxiety. Ms. Manning sent Mr. Callahan an email informing him

of her medical leave of absence on August 10.

2 I note that neither party has submitted the employment

contract for the summary judgment record. However, there is

apparently no dispute between the parties regarding the right of

Ms. Manning to take all of this amount of leave.

Finally, on August 26, 2014, Mr. Callahan sent Ms. Manning

a letter terminating her employment on the basis of her

inability to perform the job duties of an office clerk and

excessive absenteeism. By this time, Ms. Manning had not been

present at work for 81 out of the 124 work days in her last six

months of employment, and she was not present for 129 of 249

total work days during her last 12 months of employment. Of the

129 days missed, 98.5 of the days were due to medical leave.

Manning never requested an accommodation for her disabilities

from the Water Works except to the degree her medical leave

requests may be construed to be accommodation requests.

B. Procedural Background

On May 21, 2015, Ms. Manning filed a Complaint with the

Equal Employment Opportunity Commission (“EEOC”). The Complaint

did not mention that the Water Works failed to accommodate her

disabilities, nor does it address the contention that Ms.

Manning took work papers home in an attempt to accommodate her

disabilities. In fact, Ms. Manning alleged that she took work

papers home over the course of her time with the Water Works —

long before either of her stated disabilities manifested

themselves.

The EEOC issued Ms. Manning a notice of right to sue on

June 28, 2015.

On September 16, 2016, Ms. Manning filed the three-count

Complaint in this case alleging wrongful termination, sexual

harassment and sex discrimination, and a violation of the

Americans with Disabilities Act (“ADA”).

On October 25, 2016, the Water Works filed a motion to

dismiss the Complaint in its entirety. I granted the motion to

dismiss except as to Count III, Ms. Manning’s ADA claim alleging

failure to accommodate her disabilities. Following the

completion of discovery, the Water Works filed the motion for

summary judgment now before me regarding the sole remaining

claim.

II. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is appropriate when “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). An issue is genuine if it “could be resolved in

favor of either party” and a fact is material if it “has the

potential of affecting the outcome of the case.” Calero-Cerezo

v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). I

view the facts in the light most favorable to the nonmovant,

drawing “all justifiable inferences” in her favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “The moving

party bears the burden of showing that ‘there is an absence of

evidence to support the non-moving party’s case.’” Worlds v.

Thermal Indus., Inc., 928 F. Supp. 115, 118 (D. Mass. 1996)

(quoting FDIC v. Municipality of Ponce, 904 F.2d 740, 742 (1st

Cir. 1990)). If the moving party meets its burden, “the burden

then shifts to the non-moving party to establish affirmatively

the existence of a genuine material issue of fact.” Id. The

nonmovant need only establish evidence that is “cognizable and

sufficiently strong to support a verdict in her favor” in order

to survive summary judgment. Calero-Cerezo, 355 F.3d at 19.

B. Analysis

The Water Works moves for summary judgment on Ms. Manning’s

claim for failure to accommodate under the ADA, on grounds that

Ms. Manning failed to exhaust her administrative remedies.

Alternatively, the Water Works contends that it is entitled to

summary judgment because Ms. Manning could not perform the

essential functions of her job and that she had requested no

accommodation aside from medical leave, which the Water Works

granted liberally.

1. Exhaustion of Administrative Remedies

The Water Works argues that Ms. Manning failed to exhaust

her administrative remedies with respect to her failure to

accommodate claim because she made no such claim in her EEOC

Charge. Although the Water Works is correct that Ms. Manning’s

EEOC Complaint did not focus on a failure to accommodate claim,

I conclude that the EEOC submission was sufficient to establish

that Ms. Manning exhausted her administrative remedies with

regard to that claim.

The ADA “mandates compliance with the administrative

procedures specified in Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, and . . . such compliance must occur

before a federal court may entertain a suit that seeks recovery

for an alleged violation of Title I of the ADA.” Bonilla v.

Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277 (1st Cir. 1999).

Thus, a plaintiff seeking to recover under Title I of the ADA

“first must exhaust administrative remedies by filing a charge

with the EEOC . . . within the prescribed time limits.” Id. at

278. While the requirement “is not jurisdictional,” id.

(citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393

(1982)), failure to comply with the requirement does “bar[] the

courthouse door” to plaintiffs. Id.

As a general proposition, the purpose of the exhaustion

“requirement is to provide the employer with prompt notice of

the claim and to create an opportunity for early conciliation.”

Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).

Thus, the “purpose would be frustrated if the employee were

permitted to allege one thing in the administrative charge and

later allege something entirely different in a subsequent civil

action.” Id. Accordingly, “[t]he scope of the civil complaint

is . . . limited by the charge filed with the EEOC and the

investigation which can reasonably be expected to grow out of

that charge.” Id. (quoting Powers v. Grinnell Corp., 915 F.2d

34, 38 (1st Cir. 1990)) (internal quotation marks omitted).

However, “[a]n administrative charge is not a blueprint for

the litigation to follow.” Powers v. Grinnell Corp., 915 F.2d

34, 38-39 (1st Cir. 1990) (citation omitted). It is not clear

whether Ms. Manning was represented by counsel when her EEOC

complaint was filed. In any event, even though an

administrative charge filed by a pro se employee should be

“liberally construed in order to afford the complainant the

benefit of any reasonable doubt . . . pro se status does not

relieve an employee of the obligation to meet procedural

requirements established by law.” Lattimore, 99 F.3d at 464

(citations omitted). Under this protocol, “an employee is not

required to comprehensively set forth with ‘literary exactitude’

all of the facts and theories upon which his or her claim is

based,” but she must “describe the essential nature of the claim

and . . . identify the core facts on which it rests.” Id.

(citations omitted).

Ms. Manning’s EEOC Complaint, supported by the boxes that

she checked, can be grouped into two general allegations —

retaliation and discrimination.

With regard to retaliation, the Complaint outlines the

following: in 2008, she was subjected to sexually harassing

emails from her supervisor, Mr. Callahan, and — after she

reported him to the Board — she was retaliated against.

Specifically, she was “subjected to ridicule” and called a

“scumbag” and a “liar.” Moreover, Ms. Manning alleged that in

2013 Mr. Callahan berated her in the parking lot as she was

leaving work because she was taking paperwork home, a practice

that she had engaged in previously without issue. Ms. Manning

alleged that Mr. Callahan even blocked her car so she could not

leave and that she reported “these and other incidents to the

Board.” Ms. Manning alleged that she was retaliated against

because of her complaints concerning discrimination and

harassment.

With regard to discrimination, Ms. Manning’s EEOC Complaint

includes the following: because of Mr. Callahan’s behavior, she

“developed” her “disability/disabilities, and began taking time

off related to [her] conditions.” Ms. Manning alleges that the

Water Works “was aware as to why [she] was out of work, as [she]

had provided many doctors’ notes to document [her] absences and

need for leave due to medical issues.” In addition, she notes

that she received her termination letter while she was on

medical leave, and she was told that she was terminated in part

because of her “consistent absenteeism.”

Ms. Manning states that the Water Works “was fully aware

that the absences were due to [her] medical conditions.” She

goes on to state that, despite the fact that she gave the Water

Works doctors’ notes that “substantiate[d] the absences, they

chose to hold those absences for medical reasons against [her].”

Ms. Manning makes clear that she had no issues with

“absenteeism” until her “disabilities began.” Finally, Ms.

Manning alleges that she was discriminated against because of

her disabilities and her disability-related absences were held

against her and used as a reason to terminate her.

The Water Works’ contention that Ms. Manning failed to

exhaust her administrative remedies hinges on the precise

language in Ms. Manning’s EEOC Complaint, the EEOC’s decision

dismissing her charges, and some authority that frames the way

in which courts consider the question of exhaustion with regard

to administrative charges.

First, the Water Works argues that Ms. Manning's charges do

not reference a failure to accommodate, and that, in fact, they

indicate that Ms. Manning “believed she had been accommodated

through [her] disability-related absences.”3 In addition, the

3 This appears to be a distortion of Ms. Manning’s EEOC

Complaint. The fact that she took time off from work because of

her medical issues, as to which her supervisor was aware, but

then had her “disability-related absences . . . held against”

her cannot fairly be said to constitute an admission that she

was reasonably accommodated.

Water Works contends that Ms. Manning’s “focus” was not on a

failure to accommodate.

Second, the Water Works relies on the EEOC’s decision

dismissing the charges because the decision only discusses its

investigation of disability discrimination.4

Third, the Water Works references a case, Lara v. Unified

Sch. Dist. 501, No. 06-4145-RDR, 2008 WL 58870 (D. Kan. Jan. 3,

2008), said to “closely mirror” the facts of this case.

Under the ADA there are two forms of disability

discrimination. The first is a violation of a traditional

mandate that an employer shall not discriminate against a

qualified individual with a disability because of the

disability. See Higgins v. New Balance Athletic Shoe, Inc., 194

F.3d 252, 263-64 (1st Cir. 1999). Secondly, ADA law provides

that prohibited discrimination can involve “not making

4 The EEOC’s decision not to pursue Ms. Manning’s Complaint

characterized her charge as one of “employment discrimination

including retaliation . . . because of [her] disability.” The

EEOC discussed the evidence showing that Ms. Manning was

terminated by the Water Works for legitimate, non-discriminatory

reasons. The EEOC’s decision also included the statement that

“[n]o finding is made as to any other issue that might be

construed as having been raised by this charge.” The EEOC was

clearly aware and acknowledged that there might have been other

charges raised within Ms. Manning’s Complaint as to which it

failed to make findings. Thus, the Water Works contention that

her EEOC Complaint was not focused on a failure to accommodate,

or that Ms. Manning’s Complaint should be limited by the EEOC’s

discussion, is unconvincing.

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a

disability” unless the accommodation would pose an “undue

hardship” to the employer. Id. at 264 (quoting 42 U.S.C.

§ 12112(b)(5)(A)). Thus, courts distinguish between disability

discrimination claims and failure to accommodate claims, with

each claim requiring different elements to be met. See, e.g.,

Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 102 (1st Cir.

2005) (affirming the district court’s grant of summary judgment

to the defendant with regard to the plaintiff’s disability

discrimination claim but vacating the district court’s judgment

on the failure to accommodate claim). However, often there is

an overlap between a classic disability discrimination claim and

a failure to accommodate claim; both claims require the

plaintiff to establish she was disabled and that she had the

ability to perform essential functions of the job with or

without a reasonable accommodation. Id. at 104, 107. Where the

inquiries diverge is with respect to the final element of each

test. In a classic disability discrimination claim, the

plaintiff must establish that the defendant “took an adverse

employment action against him because of, in whole or in part,

his protected disability.” Id. at 104 (citations omitted). By

contrast, a failure to accommodate claim requires that the

plaintiff establish only that the defendant knew of her

disability and did not reasonably accommodate it. Id. at 107

(citation omitted).

In Lara v. Unified Sch. Dist. 501, a case with facts the

Water Works contends “closely mirror” the facts of this case,

Judge Rogers explored whether the plaintiff had exhausted his

administrative remedies with regard to a failure to accommodate

claim under the ADA, ultimately concluding that the plaintiff

had failed to do so. 2008 WL 58870 at *3-8. Judge Rogers

considered the allegations within the plaintiff’s administrative

charge in order to determine whether the failure to accommodate

claim was “like or reasonably related to the claims asserted in

the administrative charge.” Id. at *5 (internal quotation marks

omitted). Noting that the Tenth Circuit had previously found

that “a disability discrimination claim alleging termination

because of an actual or perceived disability does not

automatically exhaust administrative remedies for a failure to

accommodate claim,” he concluded that “the claims asserted by

plaintiff in his administrative charge would [not] have provided

reasonable notice to the . . . agency that plaintiff intended to

raise a claim of failure to accommodate.” Id. In further

support of his decision, Judge Rogers referenced the fact that

the agency “investigated only the claims of forced retirement

based upon age and disability” and did not “discuss any findings

concerning failure to accommodate.” Id. Lara is, of course,

not binding authority. However, even considering it from the

perspective of persuasiveness and having in mind the factual

distinctions evident in the case, Lara does not convince me that

Ms. Manning’s EEOC Complaint failed to raise a failure to

accommodate claim.

In Lattimore v. Polaroid, 99 F.3d 456 (1st Cir. 1996),

another case cited by the Water Works, the First Circuit

considered whether the plaintiff had exhausted his

administrative remedies with regard to his workplace harassment

claim. The Lattimore court found that the plaintiff’s

administrative complaint did not contain the harassment charge

brought by the plaintiff in district court because the

harassment charge was “based upon different facts that are

separate and distinct both qualitatively and temporally” from

those articulated in the administrative charge and related “to

the conduct of different individuals.” Id. Specifically, the

plaintiff’s EEOC Complaint “focused exclusively on his

termination and the events leading up to it, all of which

occurred after his injury” and contained “no hint of any claim

that, before his injury, [plaintiff] was harassed.” Id. at 465.

As further evidence of the plaintiff’s failure to exhaust his

administrative remedies with regard to his harassment claim, the

court noted that his original complaint filed in the district

court “also focused entirely on” his termination and “failed to

mention any pre-injury harassment.” Id. at 464.

This case is readily distinguishable from Lattimore.

Unlike Lattimore, Ms. Manning’s disability discrimination claims

here are not separable from her failure to accommodate claims.

They stem from the same alleged disabilities and from the same

general events. Because there are no temporal issues, and the

conduct at issue is similar, if not exactly the same, I cannot

find that Ms. Manning failed to exhaust her administrative

remedies. In fact, Lattimore, with its discussion of the

qualitative and temporal differences between the events in the

plaintiff’s EEOC complaint and the events later alleged in the

district court complaint, supports reading Ms. Manning’s EEOC

charge liberally and broadly to include a failure to accommodate

claim.

In reaching my conclusion that Ms. Manning exhausted her

administrative remedies with respect to her failure to

accommodate claim, I am further guided by the First Circuit’s

decision in Fantini v. Salem State Coll., 557 F.3d 22 (1st Cir.

2009). In Fantini the court examined the district court’s

ruling that the plaintiff failed to exhaust her administrative

remedies with respect to her Title VII claim of gender

discrimination. Id. at 26. The district court found that the

plaintiff’s “barely articulated claim, which was not addressed

by either party nor by the administrative agency, [did] not

satisfy the exhaustion requirement” because “[i]t defeats the

whole purpose of the exhaustion requirement if plaintiff can

raise an entirely new discrimination theory in court after

testing, and losing on, a different theory in the administrative

hearing.” Id. (citation omitted). The First Circuit was

unpersuaded, focusing on the fact that the plaintiff’s EEOC

complaint had “specifically described an alleged incident of

disparate treatment involving her and [a] male employee . . . as

well as specifically stat[ing] that she believed her

termination, while she was on sick leave, was a pretext for

gender discrimination.” Id. at 27-28. Moreover, the First

Circuit considered the way in which the plaintiff’s district

court complaint was consistent with her EEOC complaint. Id. at

28. Because of the description of the incident, and because the

plaintiff’s district court complaint again described the same

incident, the First Circuit concluded that the gender

discrimination claim under Title VII was within the scope of the

EEOC investigation which could reasonably be expected to grow

out of the EEOC complaint. Id.

In this case, Ms. Manning checked the “discrimination” and

“retaliation” boxes of the EEOC Charge. Significantly, there

was no “failure to accommodate” box that she could have checked.

Ms. Manning went on to recount that she developed disabilities,

had to leave work, and provided doctors’ notes to document her

absences and her need for leave because of medical issues.

While she was on leave, she was terminated, and she was told

that one of the reasons for her termination was “consistent

absenteeism.” Ms. Manning even notes that the defendant “chose

to hold those absences for medical reasons against me” and that

prior to the time when her “disabilities began . . . [she] had

no issues with absenteeism.” In combination, these allegations

were sufficient to alert the EEOC of a failure to accommodate

claim. That notice is further reflected in the Complaint before

me, where Ms. Manning alleges that her heart condition and her

“proneness to panic attacks” are disabling conditions and that

the defendant “unlawfully discriminated . . . by failing to make

. . . reasonable accommodations and in fact terminating . . .

[her] employment because of the conditions and circumstances

that would have given rise to reasonable accommodation.”

Even if a failure to accommodate claim does not as a

general proposition automatically flow from a disability

discrimination claim, in this case, where the conduct and timing

do not differ with regard to either claim under the ADA, and

where the elements are so similar, I conclude that Ms. Manning’s

EEOC Complaint sufficiently put the Water Works on notice of a

potential failure to accommodate claim and that any failure to

accommodate her disability could reasonably have been expected

to grow from that Complaint. Therefore, construing the EEOC

Complaint liberally to include a failure to accommodate claim, I

decline to grant the Water Works’ motion on the basis of Ms.

Manning’s failure to exhaust her administrative remedies.

2. Failure to Accommodate

The Water Works contends that Ms. Manning’s failure to

accommodate claim fails on the merits because she could not

perform the essential functions of her job due to her absences.

The Water Works argues that it accommodated her in granting her

lengthy medical leaves of absence until they were no longer

reasonable, that Ms. Manning never sought any other form of

accommodation, and that even if she had sought the accommodation

to which she now claims she is entitled, it was not a

permissible accommodation under the ADA.

The ADA requires that employers make “reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability who is an . . .

employee, unless [the employer] can demonstrate that the

accommodation would impose an undue hardship on [its] operation

of the business . . . .” 42 U.S.C. § 12112(b)(5)(A). “To

survive summary judgment on a failure-to-accommodate claim, a

plaintiff must prove that: ‘(1) he [or she] is disabled within

the meaning of the ADA, (2) he [or she] was able to perform the

essential functions of the job with or without a reasonable

accommodation, and (3) [his or her employer], despite knowing of

[his or her] disability, did not reasonably accommodate it.’”

Ortiz-Martinez v. Fresenius Health Partners, PR, LLC, 853 F.3d

599, 604 (1st Cir. 2017) (quoting Rocafort v. IBM Corp., 334

F.3d 115, 119 (1st Cir. 2003)) (alterations in original).

It is the plaintiff’s burden “to demonstrate in the first

instance what specific accommodations she needed and how those

accommodations were connected to her ability to work.” Id. at

605 (citing Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89

(1st Cir. 2012)). That is, the plaintiff must “provide

sufficient information to put the employer on notice of the need

for accommodation [,] [which] . . . means not only notice of a

condition, but of a causal connection between the major life

activity that is limited and the accommodation sought.” Jones,

696 F.3d at 89 (citations and internal quotation marks omitted).

The plaintiff’s requested accommodation must seem “reasonable on

its face.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401

(2002) (citations omitted).

Once the plaintiff meets her burden, the employer may

defend by showing that the reasonable accommodation sought would

cause “undue hardship.” Reed, 244 F.3d at 258-59. Thus, the

plaintiff “bears the burden of proposing an accommodation that

would enable [her] to perform the job effectively, and that is

feasible for the employer.” Grillasca-Pietri v. Portorican Am.

Broad. Co., Inc., 233 F. Supp. 2d 258, 264 (D.P.R. 2002) (citing

Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001)). Only if the

plaintiff carries her burden does the defendant need to show

“that the proposed accommodation is not as feasible as it

appears . . . .” Id. (quoting Reed, 244 F.3d at 259) (internal

quotation marks omitted).

Turning to the second element of the test,5 the Water Works

contends that Ms. Manning could not perform the essential

functions of her job as an office clerk because she was absent

for 81 of 124 work days over the course of her last six months

of employment and was absent for 129 of 249 days during her last

12 months of employment. Ms. Manning fails to respond

meaningfully to this argument.

Ms. Manning was an office clerk for the Water Works, a

position that involves a variety of tasks and the evidence shows

that these duties “require the clerk to be present in the office

on a daily basis.” Moreover, training and hiring a temporary

replacement would have required, at minimum, weeks of on the job

training.

To give a sense of the amount of paid leave Ms. Manning

requested, and was granted, I will recount in detail her leave

5 The Water Works does not contest for purposes of the motion

for summary judgment now before me that Ms. Manning was disabled

within the meaning of the ADA.

requests from 2013 through 2014. Ms. Manning took her first

extended medical leave of absence beginning on September 9,

2013, and she remained out of work for one month, until October

8, 2013, after which she returned to the job. After suffering

from stress-induced pain and discomfort in her chest on October

23, 2013, Ms. Manning again took a medical leave of absence.

This time, Ms. Manning was out of work from October 23 until

November 18, 2013. Ms. Manning’s primary care physician had

initially written a note on October 30, 2013 that indicated Ms.

Manning would have to be out of work for two weeks. On November

11, 2013, Ms. Manning’s primary care physician prepared a second

note that indicated Ms. Manning would be able to return to work

without restrictions on November 18, 2013. Ms. Manning did, in

fact, return on November 18, 2013.

Starting March 7, 2014, Ms. Manning again took a medical

leave of absence, this time for treatment of depression. Ms.

Manning’s psychologist prepared a note for her on March 11,

2014, which indicated that Ms. Manning could not work. With no

clear end date for the leave, Mr. Callahan sent Ms. Manning a

letter on April 4, 2014 inquiring as to when she would be

returning to work. Ms. Manning’s psychologist wrote back that

Ms. Manning would be reevaluated in May for a possible return to

work. Thereafter, on May 8, Ms. Manning’s psychologist prepared

a note indicating that Ms. Manning would be able to return to

work on May 19.

After returning to work on May 19, Ms. Manning then took

another 18 days off from May 21 through August 8. On August 4,

Ms. Manning took a one-week vacation. Instead of returning to

work, however, Ms. Manning’s psychologist sent a note on August

7, the day before she was scheduled to return, indicating Ms.

Manning would be out seeking treatment for depression and

anxiety and would be unable to work. The note was open-ended,

indicating that Ms. Manning would be reevaluated on August 29.

It was during this leave of absence, on August 26, that Mr.

Callahan sent a letter to Ms. Manning terminating her

employment.

Ms. Manning’s failure to respond or point to any evidence

in support of the proposition that she could, in fact, perform

the essential functions of the job (with or without an

accommodation) is fatal to her failure to accommodate claim.

The uncontroverted evidence shows that Ms. Manning was absent

from work for 65% of the last six months of her employment with

the Water Works and for 52% of the work days during her last 12

months of employment with the Water Works. The First Circuit

has made clear that “attendance is an essential function of any

job.” Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir.

2008). Courts hold that this is so even if the reason for the

absences is the disability itself. See, e.g., Castro-Medina v.

Procter & Gamble Commercial Co., 565 F. Supp. 2d 343, 369

(D.P.R. 2008) (“Gross attendance problems can prevent a disabled

person from being qualified for a position even when the

attendance problem is related in whole or in part to the

disability.”) (citation omitted).

It is clear from the record that to perform the essential

functions of the office clerk position with the Water Works, the

clerk should be physically present in the office. Ms. Manning

points to no evidence to show that, without accommodation, she

had the ability to be present in the office for even half the

work days in a given year.6 Thus, it is clear that Ms. Manning

could not perform the essential functions of her job without a

reasonable accommodation.

But that is not the end of the inquiry, for if Ms. Manning

could perform the essential functions of her job when given a

reasonable accommodation for her disabilities, then she would

still have a colorable claim. However, Ms. Manning has failed

to establish that there were reasonable accommodations that

would have allowed her to perform the essential functions of her

6 As I discuss below, she also points to no evidence indicating

that if granted an accommodation she could have been physically

present in the office. In fact, the only accommodation she ever

requested was the very medical leave that made it evident that

she could not perform the essential functions of her job.

job or that she even requested the accommodations that she now

claims should have been granted to her. Ms. Manning’s four-page

opposition brief is unhelpful. From what I can surmise, she

argues that she requested two kinds of accommodation, or at

least that she would have done so if she had not had her

communication channels blocked. These accommodations were

medical leave and a change in the way she was spoken to and

criticized by her supervisors. Neither of these purported

accommodations, however, was reasonable on this record.

First, as to the leave requests, it is unreasonable on its

face to take as much time away from work as Ms. Manning did,

especially when she requested time off without warning and for

open-ended and non-specific amounts of time and when the

uncontroverted evidence is that her job duties required her to

be in the office. Ms. Manning has presented no evidence to

suggest that her requests for unconstrained medical leave could

feasibly be accommodated by the Water Works. By contrast, the

Water Works has presented evidence that supplying a temporary

worker to fill Ms. Manning’s position would have been quite

difficult requiring, at a minimum, weeks of on-the-job training.

As to the second “accommodation,” Ms. Manning’s argument is

unavailing because first, she never made a request that as a

form of accommodation her supervisors speak to her differently,

and second, even if she had, that kind of request would on this

record be unreasonable as a matter of law.

Ms. Manning argues that there is “an issue of whether or

not there were constructive requests” for accommodation. Ms.

Manning claims that a letter from her psychologist indicating

“that she would be disabled from employment for a finite period

of time . . . essentially acted as a request for accommodation

of her present condition.”7

It is unclear whether Ms. Manning intends to assert that

she actually requested accommodations aside from medical leave

or whether she means to assert that her psychologist’s letter

was sufficient to put the Water Works on notice of her

disabilities such that the Water Works then had a duty to work

with her to find a suitable accommodation for her disabilities.

To the extent Ms. Manning is arguing the latter, it is true that

once a qualified individual with a disability requests the

provision of a reasonable accommodation the employer “has an

obligation . . . to engage in a meaningful dialogue with the

employee to find the best means of accommodating that

7 Ms. Manning’s purported “finite” request for accommodation

consists of a letter drafted by her psychologist on August 7,

2014, which states “Teresa A Manning . . . is being treated for

depression and anxiety and is currently unable to work. She

will be re-evaluated in [sic] 8/29/2014 for ability to return to

work.” This request is clearly not finite, nor does it suggest

a request for any kind of accommodation aside from the

problematic leave itself.

disability.” Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d

91, 104 (1st Cir. 2007) (internal quotation marks and citation

omitted). But that obligation only arises if the request for an

accommodation is “sufficiently direct and specific” and the

employee “explain[s] how the accommodation is linked to

plaintiff’s disability.” Id. at 102. Here, what kind of

accommodation Ms. Manning might have been seeking remains

unclear, and Ms. Manning was not sufficiently specific as to

what she was looking for. See Id. at 104 (noting that the

plaintiff’s request to take medical leave was not sufficiently

specific with regard to the time period she wanted and finding

that the defendant “granted the request it thought had been

made” such that the defendant “offered plaintiff a reasonable

accommodation”). All that the record shows is that Ms. Manning

requested open-ended and continuously recurring medical leave

for a variety of medical issues as they arose. The Water Works

accommodated those requests for an extended period and was well

within the realm of reason in concluding any more leave would be

inconsistent with the essential features of her job.

To the degree Ms. Manning’s contention could be read to

suggest that she somehow constructively requested accommodations

beyond the requests for medical leave in the form of “an

adjustment in how the administrative staff addressed her and

dealt with issues of possible clerical errors,” I find there is

no evidence in the record that she ever made this request or

even alluded to anything like it. The failure to articulate any

kind of accommodation related to the way in which the staff

addressed her or the way in which her errors were dealt with is

fatal to the claim that Ms. Manning had requested a reasonable

accommodation that the Water Works refused to consider.8 See

Grillasca-Pietri, 233 F. Supp. 2d at 264 (“The accommodation

requirement does not apply unless triggered by a request from

the employee” and “job-related stress and lack of concentration

simply do not allow for a finding that [the] employer was on

sufficiently direct and specific notice that [the plaintiff]

needed a special accommodation”) (citations omitted); Kvorjak,

259 F.3d at 55 (“[T]he plaintiff bears the burden of proposing

an accommodation that would enable him to perform his job

effectively and is, at least on the face of things, reasonable”)

(citations omitted).

Finally, to the extent Ms. Manning means to assert that had

she been given the opportunity to speak orally with her

supervisors about work, rather than being told to put things in

writing, she would have made a different request, i.e., one for

8 Moreover, Ms. Manning’s proposed accommodation, which appears

to amount to a request that when she made mistakes, she should

not be reprimanded for them, is illustrative of the fact that

she could not perform the essential functions of her job because

she could not deal with conventional workplace stressors

necessary for managers to assure quality control.

“an adjustment in how the administrative staff addressed her and

dealt with issues of possible clerical errors,” demonstrates the

futility in her argument. First, Ms. Manning was able to email

Mr. Callahan and Ms. Hall. In addition, she had the ability to

contact the Board, as evidenced by her call to Mr. Muncey, a

member of the Board, to convene a hearing in late 2013. Thus,

there was nothing stopping her from initiating contact with her

supervisors and telling them about her disabilities and/or her

need for accommodations. Second, even if Ms. Manning had

initiated such contact on this basis, it would have been “too

vague to be considered a request under the ADA . . . .”

Posteraro v. RBS Citizens, N.A., 159 F. Supp. 3d 277, 290

(D.N.H. 2016) (finding that a plaintiff’s request for an

accommodation in the form of a “peaceful calm environment” was

too vague to be considered a request under the ADA). The

proposed accommodation, which essentially amounts to making a

busy workplace a stress-free environment, or at least one in

which Ms. Manning is shielded from negative feedback, “is an

unreasonable accommodation as a matter of law.” See Grillasca-

Pietri, 233 F. Supp. 2d at 264 (citations omitted).

Adopting Ms. Manning’s arguments would create perverse

incentives. If the Water Works, having initially granted Ms.

Manning’s leave requests liberally due to her extensive time

away from work, were held liable when ultimately it chose to

terminate her employment precisely because of her extended

absences from work, it is unlikely that initial provisional

liberality would be chosen by managers. The Water Works acted

reasonably, after considerable experience with Ms. Manning’s

leave taking practices, in denying Ms. Manning’s further leave

requests, and insisting that she be present at work despite

disabling medical conditions. A specific warning might have

been gentler and in service of a more fully developed program of

progressive discipline, but Ms. Manning points me to no

authority (and I have found none) that indicates a warning was

necessary, or required. Instead, the Water Works did everything

it could reasonably do to accommodate Ms. Manning’s requests for

medical leave, and it only chose to terminate Ms. Manning’s

employment after the amount of leave that Ms. Manning was using

demonstrated she was unable or unwilling to return to work

regularly.

The undisputed evidence in this case is that Ms. Manning’s

position required that she be present on a daily basis and that

the Water Works fell behind because Ms. Manning took so much

time away from work. On the record before me, I cannot find

that Ms. Manning was able to perform the essential functions of

her job, with or without reasonable accommodations for her

disabilities. Thus, Ms. Manning’s claim for failure to

accommodate fails. See Jones, 696 F.3d at 91 (“[A]n employer’s

duty to accommodate does not arise unless (at a bare minimum)

the employee is able to perform the essential functions of [his]

job with an accommodation.”) (citations and internal quotation

marks omitted; alterations in original).

In sum, because Ms. Manning has proffered no evidence

suggesting that she could perform the essential functions of her

job either with or without reasonable accommodations, and

because she has proffered no evidence in support of her claim

that accommodations she might somehow be deemed to have

requested were reasonable, her claim for failure to accommodate

under the ADA fails.

III. CONCLUSION

For the reasons set forth more fully above, I GRANT the

Water Work’s Motion for Summary Judgment [Dkt. No. 20].

/s/ Douglas P. Woodlock_____

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE