Ellis v. N. Andover Pub. Sch.

569 F.Supp.3d 61

Renee ELLIS, Plaintiff,

v.NORTH ANDOVER PUBLIC SCHOOLS, Defendant.

Civil Action No. 19-11224-NMG

United States District Court, D. Massachusetts.

Signed October 29, 2021

Justine H. Brousseau, Kimball Brousseau LLP, Boston, MA, for Plaintiff.

Gregor A. Pagnini, Leonard H. Kesten, Brody, Hardon, Perkins, & Kesten LLP, Boston, MA, for Defendant.

MEMORANDUM & ORDER

GORTON, District Judge

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548.

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....