Tufts Med. Ctr. v. Dalexis

218 N.E.3d 121

TUFTS MEDICAL CENTER

v.Marie Lunie DALEXIS ¹ & another.²

No. 22-P-15

Appeals Court of Massachusetts, Suffolk.

Argued October 13, 2022

Decided September 21, 2023

Gregory A. Brown, Boston, for the plaintiff.

Caitlin A. Sheehan, for Massachusetts Commission Against Discrimination.

Howard Mark Fine, Cambridge, for Marie Lunie Dalexis.

Present: Green, C.J., Henry, & Englander, JJ.

GREEN, C.J.

Tufts Medical Center (Tufts) appeals from a judgment of the Superior Court affirming the decision and order of the Massachusetts Commission Against Discrimination (commission), which found that Tufts had discriminated against one of its nurses, Marie Lunie Dalexis, on the basis of her disability.³ See G. L. c. 151B, § 4 (16). The commission's finding (which followed a public hearing before a hearing officer) was based on adverse employment actions taken against Dalexis after her doctor informed Tufts that, due to her medical conditions, Dalexis could not work overtime. The commission concluded that, by refusing to excuse Dalexis from the obligation to work overtime when needed, Tufts had failed to offer Dalexis a reasonable accommodation for her disability. In addition, the commission concluded that Tufts had failed to engage in the dialogue required by G. L. c. 151B, and had constructively discharged Dalexis. For these statutory violations, the commission awarded Dalexis damages and attorney's fees. Our review of the administrative record reveals that the commission's decision was supported by substantial evidence and free from error of law. See G. L. c. 30A, § 14 (7). Accordingly, under the deferential standard we apply to our review of such decisions, we affirm the judgment of the Superior Court affirming the commission's decision.

Background. We summarize the relevant facts found by the hearing officer and adopted by the commission.

In 2002, Dalexis was hired by Tufts, a major medical institution in Boston, as an inpatient registered nurse (registered nurse or inpatient nurse). During the relevant time period, Tufts operated twenty-two inpatient units and employed 694 registered nurses to work those units. Nurses in the inpatient units operated on three shifts: the day shift (7 A.M. to 3:30 P.M. ), the evening shift (3 P.M. to 11:30 P.M. ), and the night shift (7 P.M. or 11 P.M. to 7:30 A.M. ). No nurse worked solely on the day shift. Instead, the majority of nurses worked a combination of day and evening (day-evening) shifts or, alternatively, day and night (day-night) shifts as "day/rotators."

At Tufts, Dalexis first worked in an oncology unit and then in an oncology medical-surgical unit. In 2005, she transferred to Proger 5 North (PG5N), a medical-surgical unit, where she worked as a "day/rotator" on the day-evening shift. On occasion, Dalexis also worked as a charge nurse.⁴ Dalexis generally performed well; in the hearing officer's words, she "received an overall rating of ‘excels’ on her 2008 performance appraisal -- the last one submitted into evidence."

On any given day at Tufts, administrators had to ensure that all the various nursing posts were properly staffed, which included accounting for nurses out on vacation, out sick, or who became ill over the course of the day. Patient demand could change over the course of the day as well, sometimes substantially. At the relevant time, Tufts utilized a specific staffing system to fill the required nursing shifts when the need arose. Open shifts were filled first by the so-called "float pool" nurses, then by per diem nurses,⁵ then by staff nurses not scheduled on that day, then by staff nurses present on the floor who volunteered to stay through the next shift on an overtime basis, and finally by nurses present on the floor who were required to stay until a replacement was found. Nurses also could be required to stay past the end of their scheduled shifts if, for instance, a nurse on the next shift called out sick or a patient became critically ill. A nurse scheduled to work on the evening shift in this scenario then would work some portion of the night shift on an overtime basis. A critical consideration for Tufts in making overtime decisions was the need to ensure that a sufficient number of nurses were on duty at all times to provide an appropriate level of patient care.

The collective bargaining agreement (CBA) between Tufts and Dalexis's union, the Massachusetts Nurses Association, provided Tufts "the right to require reasonable overtime work," and defined overtime work to include any work performed in excess of a forty-hour work week and any work in excess of five, full-time shifts in a week.^{6 ,7} The job description for the registered nurse position listed as one of the "physical demands/working conditions" that the employee is "[s]ubjected to irregular hours."

During the 2009 fiscal year when Dalexis sought to return to work with an accommodation, 94.67 percent of inpatient nurses worked at least some overtime. However, the amount of overtime worked by individual nurses varied greatly, with some nurses working hundreds of hours of overtime and others working minimal amounts -- as little as three hours. Of the nurses who worked some overtime, fifty-seven percent worked in excess of a forty-hour work week; the remainder worked overtime in excess of their scheduled shifts but not more than forty hours per week. And some nurses -- 5.33 percent -- worked no overtime at all. Nurses averaged a little less than one hour of overtime per week.⁸

As the hearing officer found, Dalexis "never had to force a nurse to work overtime when she served as charge nurse and she never had to work overtime against her will." Moreover, the commission relied on the hearing officer's finding that Dalexis assured Tufts that in the event of an emergency requiring overtime, she would never abandon a patient.⁹

Near the end of 2005, Dalexis began to experience health issues. The following year, she was diagnosed with rheumatoid arthritis, which caused her to feel "really sick" and stiff, and to have low energy. Dalexis's rheumatoid arthritis also caused her to contract interstitial lung disease. As a result, Dalexis experienced difficulty breathing, pain and "crackles" in her lungs, and an inability to run or climb stairs. During this time, Dalexis continued to work the day-evening shift on PG5N, but took intermittent leave for her health issues.

In 2007, Dalexis submitted a note from her doctor explaining that Dalexis could not work past the normal hours of her shift due to her interstitial lung disease. As a temporary accommodation, Dalexis's nurse manager at the time excused her from working overtime.¹⁰

From October 2008 to May 2009, Dalexis continued to take intermittent leave as needed under the Family and Medical Leave Act (FMLA). In late May 2009, Dalexis took FMLA leave but her absence from work was prolonged after she underwent emergency surgery. In July 2009, Tufts determined that Dalexis had exhausted her FMLA leave and her protected medical leave under the terms of the CBA.¹¹ Dalexis was accordingly informed that her position on PG5N would be filled, and she would need to apply for open positions when she was ready to return.

On September 8, 2009, Dalexis's doctor cleared her to return to work the following month. At Tufts's direction, Dalexis met with a nurse recruiter to identify job opportunities and also applied for several inpatient nursing positions that were posted online; however, she did not receive any interviews, at least in some instances because the positions to which she applied were outside of her specialty areas.

During Dalexis's search for a nursing position at Tufts in the fall of 2009, three non-float, day-rotator jobs on PG5N were unfilled, but Tufts did not alert Dalexis to the openings. A fourth non-float, day-rotator position on PG5N was posted on October 23, 2009, and Tufts again did not notify Dalexis of the opening. In addition, two float pool, day-rotator jobs for medical/surgical units were posted in May and August 2009 and remained unfilled during Dalexis's job search, and a third was posted for which Dalexis applied on October 23, 2009, but Tufts did not interview her for the position. These positions could be day-evening shift or day-night shift positions, and Dalexis testified that she would have asked to work the day-evening shift. Julie Miglietta, the employee relations specialist and manager for Tufts, testified that Dalexis did not get an interview for this float pool, day-rotator position because her overtime restriction made her ineligible.

But at that time, Dalexis was cleared to return to work with no restrictions.¹²

Dalexis first raised her need for an accommodation on November 6, 2009, when she was offered a vacant night-shift position on PG5N -- which, at the time, had not yet been advertised. Dalexis declined the position, explaining that she "can't work nights" because doing so would exacerbate her rheumatoid arthritis. Dalexis and Miglietta then followed up with Dalexis's doctor to clarify the nature of her work restrictions. Ultimately, Dalexis's doctor provided a note to Tufts on December 10, 2009, explaining that Dalexis "may work a normal daytime ... shift [but] ... cannot work overtime or [n]ight shifts." Based on that information, Miglietta concluded that Dalexis was not eligible for an inpatient nurse position because the ability to work overtime when needed was an essential function of that position.¹³

In December 2009, Dalexis initiated a grievance concerning her reemployment rights that was ultimately unsuccessful. During the grievance process, Miglietta asked Dalexis to contact her doctor once again, to determine whether she could work some nights and overtime. Dalexis did so and, according to a follow-up e-mail message sent by Dalexis on May 5, 2010, her doctor declined to lift or modify the restrictions and cited "overexhaustion" as the cause of flareups of her disease. In light of those restrictions, Tufts concluded...