# Ellis v. North Andover Public Schools

> District Court, D. Massachusetts · October 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10199854

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** October 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199854

## How later opinions describe it (automated extraction)

- finding indefinite leave unreasonable accommodation under ADA

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199854. Public record. Not legal advice.