Discrimination Based On Temporary Disability Held Not Actionable: Sullivan v. Mansfield, Norfolk Super. Ct., C.A. No. 06-00352-A (October 31, 2008)
PD&P obtained summary judgment for the Town of Mansfield and several Town officials against a former Department of Public Works employee claiming disability discrimination, based on a temporary asthmatic condition, and retaliation. The employee, a skilled laborer at the Town’s wastewater treatment plant, was doing grounds keeping work when his breath became labored and he broke out in a rash. The employee had no history of allergies, and no doctors ever identified what, if anything, caused the allergic reaction. At no time did the employee request reassignment to another job, or any other accommodation, to alleviate his allergies. Several months after the allergy incident, the employee claimed a temporary disability, based on a scheduled sinus surgery allegedly related to his recent asthmatic reaction. The employee was eventually awarded workers’ compensation benefits for his alleged temporary disability. According to the employee, his asthmatic troubles completely resolved within three months of the sinus surgery.
While the employee was out on temporary disability, the Town decided to terminate him at the end of his six-month probationary employment period. Because the termination occurred within the probationary period, the Town was under no obligation to show cause for its decision. Nonetheless, the Town pointed to several factors upon which the termination was based, including that the employee had missed 14 days of work, only three of which could be traced to his allergic reaction, and failed to obtain a commercial driver’s license, which was a condition of his employment. Several months after his employment was terminated, the Town’s municipal light department turned off the employee’s electricity because his account was in arrears.
The employee filed a claim at the Massachusetts Commission Against Discrimination (“MCAD”), for which PD &P obtained a lack of probable cause finding. The employee then sued the Town in Norfolk Superior Court under the provisions of G.L. c. 151B, Massachusetts’ anti-discrimination law, claiming disability discrimination and retaliation.& On the Town’s Motion for Summary Judgment, the Superior Court (Sanders, J.) agreed that the employee’s asthma condition was temporary in nature and could not, in this instance, be considered a disability within the meaning of Chapter 151B. The Superior Court also found no merit to the employee’s retaliation claim. Because the alleged adverse employment actions – the electricity shut-off, as well the Town’s apparent delay in processing the employee’s workers’ compensation documents – occurred well after the employee’s termination, the employee’s retaliation claim was temporally impossible. The Superior Court accordingly granted summary judgment in favor of the Town on both claims.
This decision joins several others in Massachusetts which hold that discrimination claims based upon temporary disabilities – particularly those where the injury is minor in nature, the plaintiff recovers quickly, and there is no evidence of any long-term residual effects of the injury – are not actionable. See, e.g., Dartt v. Browning-Ferris Industries, Inc., 427 Mass. 1, 17 (1998); Muse v. United Parcel Service, Inc., 71 Mass. App. Ct. 1103, * 4 (2008); Hallgren v. Integrated Financial Corp., 42 Mass. App. Ct. 686, 687-689 (1997). Municipalities should be cautioned, however, that a disability need not be permanent in order to support recovery. Adverse employment actions based on serious or prolonged, albeit temporary, injuries (i.e., more serious or prolonged than the one at issue here) may be recoverable under Chapter 151B. Each injury must still be analyzed on a case-by-case basis.