Ellis v. North Andover Public Schools

United States District Court

District of Massachusetts

)

Renee Ellis, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 19-11224-NMG

North Andover Public Schools, )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of the alleged discriminatory

treatment and wrongful termination of Renee Ellis (“Ellis” or

“plaintiff”). Ellis claims that her employer, North Andover

Public Schools (“NAPS” or “defendant”), discriminated against

her due to her diabetes-related disabilities, in violation of

the Americans with Disabilities Act, as amended (“ADA”), 42

U.S.C. § 12101 et seq., and M.G.L. c. 151B, §§ 4(4A) & 4(16).

Pending before the Court is the defendant’s motion for summary

judgment.

I. Background

A. Employment at NAPS and Health Issues

Ellis began working for NAPS in 1998 as a cafeteria aide

and a substitute teacher. In 2003, she began working as a

Special Needs Teaching Assistant, also known as a

paraprofessional, at North Andover Middle School (“NAMS”).

Between the 2010-2011 school year and the 2014-2015 school year,

Ellis was assigned to be the paraprofessional for sixth-grade

students in the classroom of Aaron Drosdek (“Drosdek”), a

special education teacher at NAMS.

In 2011, Ellis began experiencing vision issues related to

her diabetes and was diagnosed with proliferative diabetic

retinopathy. Due to that condition, as well as related medical

treatment, Ellis began to have difficulty reading fine print.

As a result, she began using a handheld magnifying glass and

received photocopies of written assignments with enlarged text

from Drosdek.

During the 2014-2015 school year, Ellis had eye surgery and

took a leave of absence for several months to recover. In

January, 2015, she provided a letter from her doctor to NAMS

Principal Joan McQuade (“McQuade”) clearing her to return to

work with accommodations. She returned to Drosdek’s classroom

for the remainder of the school year.

On September 1, 2015, McQuade informed Ellis that she was

being reassigned to a seventh-grade special education class

following the purported elimination of three paraprofessional

positions from Drosdek’s classroom. After Ellis expressed her

concern about the reassignment due to her disability, McQuade

asked Ellis to provide a doctor’s note to understand what

accommodation Ellis might need to perform her job.

Ellis subsequently provided McQuade with notes from two

doctors, one dated September 15, 2015, and the other dated

September 21, 2015. The latter note suggested several

accommodations, including that Ellis have access to large print

materials, good lighting and writing or reading guides. NAPS

contends that McQuade organized a meeting with Ellis and the

rest of the seventh-grade staff shortly thereafter to discuss

accommodation for Ellis. Both parties concede that McQuade

spoke briefly to Ellis about the recommended accommodations,

asking for clarification, and sent the doctor’s note to NAPS’

administrative personnel for further guidance.

Ellis was out of work for a few days and then later

suffered a fracture in her left foot that led to a diagnosis of

Charcot arthropathy, a diabetic condition which causes a

weakening of the foot bones. Treatment of that condition kept

Ellis on medical leave, beginning October 13, 2015, for the

remainder of the 2015-2016 school year.

On May 3, 2016, plaintiff sent McQuade a letter from her

doctor stating that she would need to remain on medical leave

for the remainder of the 2015-2016 school year but that she

should be able to return at the beginning of the following

school year.

B. Non-Renewal and Termination of Employment

On June 1, 2016, Ellis received a letter from NAPS

notifying her that it would not renew her employment for the

2016-2017 school year. Ellis requested a meeting to discuss her

desire to return to work and submitted a note from a nurse

practitioner, dated June 16, 2016, stating that she could return

to work immediately with certain restrictions.

Ellis and her union representatives Ryan Landry (“Landry”)

and Tedi Winkler (“Winkler”) met with McQuade and then-business

administrator Jim Mealey (“Mealey”) on June 22, 2016. Landry

and Winkler requested that NAPS rescind plaintiff’s non-renewal

notice, permit her to return to work with accommodations and

place her in Drodek’s classroom. McQuade said that Ellis would

not be able to return to her preferred position in Drodek’s

classroom but Mealey indicated the school district might be able

to place her in another school. The meeting ended without

resolution.

After the meeting, NAPS agreed to rescind the non-renewal

notice on condition that Ellis undergo an independent physician

evaluation by a general practitioner of the district’s choosing.

Neither Ellis nor her union representatives responded to that

offer and her employment with NAPS was terminated.

C. Procedural History

In May, 2019, Ellis filed suit in this Court asserting two

counts against NAPS for failure to accommodate (Count I) and

wrongful termination (Count II) in violation of the ADA, 42

U.S.C. § 12111 et seq., and M.G.L. c. 151B, § 4(16).

In March, 2021, NAPS filed the pending motion for summary

judgment with respect to both claims.

II. Motion for Summary Judgment

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving

party to show, through the pleadings, discovery and affidavits,

“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).

A fact is material if it “might affect the outcome of the

suit under the governing law....” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party satisfies its burden, the burden shifts

to the nonmoving party to set forth specific facts showing that

there is a genuine, triable issue. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). The Court must view the entire record in

the light most favorable to the non-moving party and make all

reasonable inferences in that party's favor. O'Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is

appropriate if, after viewing the record in the non-moving

party's favor, the Court determines that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

B. Application

1. Failure to accommodate

As a preliminary matter, the Court notes that plaintiff’s

memorandum in opposition to the defendant’s motion for summary

judgment asserts that NAPS failed to provide reasonable

accommodations on three occasions: (1) when Ellis requested in

June, 2015 to remain in Drosdek’s classroom for the 2015-2016

school year, (2) when she requested accommodations in September,

2015, and (3) in the summer of 2016 when she requested

reassignment to Drosdek’s classroom or another position for the

following school year, with accommodations. Plaintiff’s

complaint, however, contains no factual assertions or theories

of liability regarding the alleged June, 2015 request.

It is well-settled that plaintiffs may not “raise new and

unadvertised theories of liability for the first time in

opposition to a motion for summary judgment.” Miranda-Rivera v.

Toledo-Davila, 813 F.3d 64, 76 (1st Cir. 2016); accord. Tchankpa

v. Ascena Retail Grp., Inc., 951 F.3d 805, 817 (6th Cir. 2020).

Rather, the appropriate method by which to advance a new claim

that arises out of discovery is to amend the complaint, as

provided for under Fed. R. Civ. P. 15(a). See Asociacion de

Suscripcion Conjunta del Seguro de Responsabilidad Obligatorio

v. Juarbe-Jimenez, 659 F.3d 42, 53 (1st Cir. 2011) (citing

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th

Cir.2004)). To do otherwise would subject defendants to unfair

surprise at a late stage in the litigation.

In her complaint, Ellis bases her claim of failure to

accommodate exclusively on events that occurred during and after

the fall of 2015. Nowhere in her original complaint did she

address her alleged requests prior to that period, nor has she

sought leave to file an amended complaint alleging such facts.

This new theory of liability is therefore not appropriately

before the Court.

To prevail at the summary judgment stage for failure to

accommodate on either of the two described occasions, Ellis must

present sufficient evidence that, at the time of the alleged

discrimination: (1) she was disabled within the ADA's

definition, (2) she could perform the job's essential functions

either with or without a reasonable accommodation, and (3) NAPS

knew of her disability but failed to make a reasonable

accommodation. See Audette v. Town of Plymouth, MA, 858 F.3d 13,

20 (1st Cir. 2017). If Ellis can meet all three of these

elements, the burden shifts to NAPS to articulate a legitimate,

non-discriminatory reason for its employment decision and to

produce credible evidence to show that the reason advanced was

the real reason. See generally Freadman v. Metro. Prop. & Cas.

Ins. Co., 484 F.3d 91, 104 (1st Cir. 2007). If NAPS offers such

a reason, the burden returns to Ellis, who must then provide

evidence to establish that the defendant’s non-discriminatory

justification was mere pretext, cloaking discriminatory animus.

See id.

The parties do not dispute that Ellis was disabled, as

statutorily defined. Nor do defendants contend that she was

unable to perform the essential functions of her job, with or

without accommodation. Rather, the parties disagree about the

third element: whether NAPS reasonably accommodated Ellis’

disability.

Federal regulations implementing the ADA state:

To determine the appropriate reasonable accommodation

it may be necessary for the covered entity to initiate

an informal, interactive process with the qualified

individual with a disability in need of the

accommodation. This process should identify the

precise limitations resulting from the disability and

potential reasonable accommodations that could

overcome those limitations.

29 C.F.R. § 1630.2(o)(3). Thus, an employee’s request for

accommodation may create “a duty on the part of the employer to

engage in an interactive process.” E.E.O.C. v. Kohl's Dep't

Stores, Inc., 774 F.3d 127, 132 (1st Cir. 2014) (quoting Enica

v. Principi, 544 F.3d 328, 338 (1st Cir. 2008)). Both the

employer and the employee have an obligation to engage in this

process in good faith. See id. The scope of the employer’s

obligation is not, however, “crystal clear.” Tobin v. Liberty

Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005) (quoting

Calero–Cerezo v. Dep't of Justice, 355 F.3d 6, 23–24 (1st Cir.

2004)).

Based on the facts alleged, Ellis’ claim fails as a matter

of law. Upon hearing that Ellis’ disability would complicate

her new assignment, McQuade immediately initiated an interactive

dialogue concerning possible accommodations. Between the date

of the doctor’s note providing a list of possible

accommodations, September 21, 2015, and her extended absence,

only 16 workdays elapsed. During that period, plaintiff

concedes that McQuade forwarded information regarding Ellis’

disability to NAPS personnel to seek additional guidance and had

a brief conversation with Ellis.

While “an unreasonable delay may amount to a failure to

provide reasonable accommodations,” Callbeck v. Fallon Cmty.

Health Plan, Inc., 480 F. Supp. 3d 308, 314 (D. Mass. 2020), the

delay in this case was not unreasonable. See Marks v. Washington

Wholesale Liquor Co. LLC, 253 F. Supp. 3d 312, 324 (D.D.C.

2017), and cases cited (“[a] relatively short delay of a few

weeks (or even a few months)” does not typically support failure

to grant reasonable accommodation under ADA). Nor does

plaintiff present evidence that NAPS impermissibly “stonewalled”

the dialogue required under the ADA. Calero-Cerezo v. U.S. Dep't

of Just., 355 F.3d 6, 25 (1st Cir. 2004). McQuade initiated and

pursued communication with Ellis and it was plaintiff’s own

circumstances, not defendant’s delay, that ultimately

interrupted progress. See Enica v. Principi, 544 F.3d 328, 339

(1st Cir. 2008) (“an employer will not be held liable if it

makes reasonable efforts both to communicate with the employee

and provide accommodations based on the information it

possessed”) (quotation and citation omitted). A factfinder

could not reasonably conclude that the defendant failed to make

a reasonable effort to respond to Ellis’ disability during the

short period under consideration.

Not can Ellis base her claim on the request made in June,

2016 to return to Drosdek’s classroom or another position with

accommodations. NAPS did not renew Ellis’ employment for the

2016-2017 school year and, according to the termination letter,

her last day was June 22, 2016, the very day that she met with

school officials to discuss her desire to return to work.

Plaintiff therefore contends that NAPS had an obligation to make

a reasonable accommodation, even though she was not scheduled to

be employed by the defendant. This Court is unaware of any

caselaw to support such an assertion, and the plaintiff cites

none. Other courts have found that such requests are not

properly viewed as requests for accommodation but rather as

requests for reinstatement. See Mole v. Buckhorn Rubber Prods.,

Inc., 165 F.3d 1212, 1218 (8th Cir.1999), cert. denied, 528 U.S.

821 (1999); see also McDonald v. Town of Brookline, 863 F.3d 57

(1st Cir. 2017) (district court did not abuse its discretion in

declining to instruct jury that town had duty to engage in

interactive process with employee post-termination and to use

information learned after employee's termination to reasonably

accommodate disability). Ellis therefore cannot base her

failure to accommodate claim on requests regarding

accommodations after her termination.

2. Wrongful termination

To establish her prima facie case for wrongful termination

based on disability discrimination under either federal or state

law, Ellis must present credible evidence that, at the time of

her termination: (1) she was handicapped within the meaning of

the statute, (2) she was qualified to perform the essential

functions of the job with or without reasonable accommodation,

(3) she was terminated or otherwise subject to an adverse action

by her employer, and (4) the position she occupied remained open

and the employer sought to fill it. Piccadaci v. Town of

Stoughton, 2019 WL 653146, at *2 (D. Mass. 2019) (citing Jacques

v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996); Dartt

v. Browning-Ferris Indus., Inc., 427 Mass. 1, 3 (1998)). The

parties do not contest the first or fourth elements of this

claim. Rather, they dispute only whether Ellis was qualified to

perform the essential functions of the job and whether she can

claim she was terminated because she never responded to the

defendant’s offer to rescind her non-renewal notice on the

condition that she undergo an independent physician evaluation.

Plaintiff has presented sufficient credible evidence that

she was qualified to perform her job with or without

accommodation to survive defendant’s motion for summary

judgment. At the time of Ellis’ termination, in June, 2016, the

latest information NAPS had regarding her medical condition was

a doctor’s note dated May 3, 2016 indicating that, while Ellis

“should” remain out of work through the 2015-2016 school year,

she “should be able” to return at the beginning of the following

school year. Contrary to defendant’s assertion, that does not

amount to a request for an indefinite leave because there was an

expected end date. See Fiumara v. President & Fellows of

Harvard Coll., 327 F. App'x 212, 213 (1st Cir. 2009) (finding

indefinite leave unreasonable accommodation under ADA). That

note made no mention of accommodations that might have been

necessary for Ellis to perform her job but defendants have

provided no evidence to suggest that plaintiff’s expected

request for accommodation would have been unreasonable. The

defendant has therefore failed to show, as required at the

summary judgment phase, that NAPS is entitled to judgment on

this issue as a matter of law.

Defendant’s reliance upon the failure of Ellis to respond

to its offer of renewal to prove that she did not suffer adverse

action is unwarranted. Ellis was terminated well in advance of

NAPS’ offer to rescind the non-renewal notice. As described

above, the negotiations that occurred between the parties after

the non-renewal notice was sent were about her reinstatement,

not her initial termination. Ellis’ failure to communicate with

NAPS after her termination is therefore irrelevant to the issue

at hand and does not substantively refute her claim of

discrimination.

ORDER

For the foregoing reasons, the motion of defendant NAPS for

summary judgment (Docket No. 28) is, with respect to the failure

to accommodate claim, ALLOWED, but is otherwise DENIED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated October 29, 2021