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McDonald v. Town of Brookline

United States Court of Appeals, First Circuit

July 12, 2017

WILLIAM MCDONALD, Plaintiff, Appellant,
TOWN OF BROOKLINE, Defendant, Appellee.


          Before Torruella, Stahl, and Thompson, Circuit Judges. John F. Palmer, with whom the Law Office of John F. Palmer was on brief, for appellant.

          Patricia Correa on brief for appellee.

         William McDonald was fired from his job in the Town of Brookline's ("Town") Department of Public Works in May 2009 for unjustified absences from work and failing to provide adequate documentation for his use of sick leave. McDonald filed a complaint against his former employer in federal district court, alleging that his termination violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12103 et seq. McDonald alleged that he had been suffering from sleep apnea and the Town terminated him on the basis of his poor work performance that resulted from this disability, and failed to make reasonable accommodations for his disability. After a six-day trial, a jury in the District of Massachusetts found in favor of the Town. McDonald now appeals, arguing that the district court erred in its jury instructions. Finding no basis for that contention, we AFFIRM.

         I. Facts & Background

         McDonald joined the Town's Public Works Department in 2003, when he was hired as a Motor Equipment Operator II and Laborer in the Highway and Sanitation Division. McDonald's duties and specific assignments varied and were spread among three subdivisions: the Town could assign him to Highway (street sweeping, potholes, plowing, and road maintenance), Traffic (maintenance and installation of road signs, lighting, and poles), or Sanitation (driving or riding on the back of garbage trucks during collections), depending on the needs of the Department and other factors such as weather and road conditions. In the two years leading up to the events in question in this case, McDonald was principally assigned to the Traffic division, but was asked to fill in on the Sanitation crew on approximately six occasions.

         Although he generally received positive work performance reviews from his supervisor during his first several years on the job, McDonald also struggled with substance abuse issues and, beginning in 2008, began to receive complaints about his use of sick leave. For instance, on March 4, 2008, his supervisor wrote to him that his sick leave record was unacceptable and that he needed to provide further documentation from a physician to justify recent absences. In July 2008, McDonald submitted a doctor's note on a day when he was absent from work. However, during the civil trial in his case against the Town, he admitted that he was absent from work that day because of a mandatory court appearance arising from a previous drug-related arrest. On September 2, 2008, the Town suspended McDonald from work for three days for what it claimed was sick leave abuse.

         The events that ultimately sealed McDonald's fate took place in the winter and spring of 2009. On the one hand, Brookline experienced a particularly bad winter that year, and McDonald clocked a significant amount of overtime hours to assist the Sanitation division with snow removal efforts. On the other hand, McDonald was frequently absent from work. In January, he took a number of sick days and bereavement leave to tend to his father, who had been seriously injured in an accident during the previous fall and ultimately passed away in late January 2009. On February 12, 2009, McDonald called in sick because he was experiencing "flulike symptoms" and was feeling "run down." Several days later, on February 18, 2009, McDonald went to the emergency room at Beth Israel Deaconess Hospital ("BIDH") and complained that he felt tired, achy, and was experiencing "sweats." He was diagnosed with bronchitis, given a prescription for Levaquin, and sent home.

         The next day, February 19, the DPW Commissioner sent McDonald a notice informing him that he was to appear at a disciplinary hearing on March 2, 2009, to address "unsubstantiated questionable sick leave." That notice specifically informed McDonald that he faced possible termination for these violations. On February 20, he visited his primary care physician to procure medical documentation supporting his absences, and renewed his complaints about various symptoms (nausea, vomiting, diarrhea, and "night sweats") that he had previously raised at the BIDH emergency room. The physician wrote him a note to cover his absence from work. Somewhere around this same time, he also visited a psychologist for difficulties that he was having with sleeping. The psychologist referred him to a sleep study at BIDH on March 7, 2009. Additionally, a follow-up letter from the Town to McDonald, dated February 24, 2009, clarified that McDonald was suspended from active employment pending the March 2 hearing. However, after McDonald provided the Town with an authorization to obtain records from his primary physician, the Town was apparently satisfied that the most recent absences had been medically justified, and it withdrew his suspension and reimbursed McDonald for the days that he had been suspended.

         This rapprochement, however, was short-lived. Upon his return to work, McDonald complained of being assigned to the Sanitation division because he had difficulty "keeping up" with the physical nature of the work. He was sent home on March 19 after refusing to perform sanitation work. His physician, reviewing the results from McDonald's March 7 study, concluded that McDonald was suffering from sleep apnea, and suggested he see a sleep specialist "ASAP." He also wrote him a physician's note to return to work which indicated that McDonald was being treated for "fatigue and a related disorder" and that he should be performing "light duty for the foreseeable future."

         The Town, in a March 23 letter authored by DPW Commissioner Thomas DeMaio, requested further information and documentation from McDonald regarding the "medical reasons for the request for light duty, " and informed him that he could not come back to work until that information had been received and until "a determination [has been] made as to your employment status." On March 27, the Town's Assistant Director of Human Resources sent McDonald a letter informing him of his rights under the Family Medical Leave Act ("FMLA") and enclosing a form that McDonald could fill out if he was interested in applying for FMLA leave. McDonald, who had follow-up appointments scheduled with his physician and his sleep specialist on March 31 and April 2, respectively, did not reply to the DeMaio letter until April 6, at which time he reiterated his request for light duty and enclosed the sleep study along with another copy of the March 19 note from his physician. He never filed the FMLA form.

         Thereafter, the parties exchanged a series of letters throughout April 2009. McDonald continued to complain of fatigue, and the sleep study raised a concern on the part of the Town that he could become drowsy while operating heavy equipment. The Town continued to find McDonald's supporting documentation insufficient to justify his use of sick leave, and at times even found the information inconsistent and contradictory. The record, as well as the briefing by the Town to this court, suggests that the Town believed that McDonald's symptoms were the product of substance abuse withdrawal and that they believed he was using sick leave as a cover for these problems. McDonald apparently did not disclose his substance abuse issues to the medical professionals that he met with during the relevant time period.

         By mid-April, McDonald had exhausted his available leave, and on April 16, the HR Director sent him what she described as a "wake-up call" letter, informing McDonald that the documentation that the Town had received was insufficient and that he was subject to termination if he continued to be absent from work without permission. McDonald responded the next day that he would be submitting a comprehensive report from his physician once his follow-up appointments and evaluations were completed in a week or two. On April 21, the DPW Deputy Commissioner sent McDonald a letter informing him that he would be considered absent without pay, an offense which could lead the Town to view McDonald as having "voluntarily and permanently separated [himself] from employment consistent with" Massachusetts law, [1] unless he submitted a completed FMLA leave request form or other sufficient documentation. The Deputy Commissioner enclosed a new FMLA form along with that letter, as McDonald had not returned the one that the Town had previously sent him in March.

         McDonald arranged for a follow-up appointment with the sleep specialist on May 2 and arranged to be fitted with a CPAP mask and machine to wear at night to address his sleep apnea. Although he was informed that the equipment would be delivered within a week, and the sleep specialist advised him that he could return to work in mid-May, he did not respond to the Deputy Commissioner's letter of April 21, nor did he call anyone at the Town to discuss his recent medical appointments and to address the Town's explicitly stated warning that he would be deemed as having abandoned his position (which the Town had kept open since March 19) if he did not promptly provide them with either specific documentation or with a completed FMLA leave request form. Finally, having not heard from McDonald, on May 12, the Town sent him a letter informing him that his employment was being terminated because he had failed to provide adequate medical documentation to ...

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