USCA1 Opinion

July 18, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1001

BEVERLY RUTH D'APRILE,

Plaintiff - Appellant,

v.

FLEET SERVICES CORP.,

Defendant - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

__________________________

____________________

Before

Cyr, Circuit Judge,

_____________
Aldrich, Senior Circuit Judge,
____________________
and Gertner,* District Judge.
______________

_____________________

Frank J. Manni, with whom John F. DiMeglio

______________
________________

was on brief for

appellant.
Lynette Labinger, Roney & Labinger,
________________ ________________
and

Rodio & Brown on

_____________

Civil Liberties

brief for Rhode

Union and

System, Inc., amici curiae.

Christopher M. Mulhearn
_______________________

Island Affiliate American

Rhode Island Protection

and Advocacy

Cynthia M. Hiatt on brief

_________________

for Rhode Island

Commission for

Human Rights, amicus curiae.

Lincoln D. Almond,
_________________

with whom

Mark A. Pogue
_____________

and Edwards &

__________

Angell were on brief for appellee.

______

____________________
____________________

Of the District of Massachusetts, sitting by designation.

____________________
GERTNER,
GERTNER,

District Judge.
District Judge.
_______________

Plaintiff

Beverly

Ruth

D'Aprile brought

the

District

defendant

this action in

of

Rhode

Fleet

the United States

Island

Services

against

her

District for

former

Corporation ("Fleet").

employer,

She charged

Fleet with violation of the handicap discrimination provisions of

the

Rhode Island Fair Employment Practices Act, R.I. Gen. Laws

28-5-1,

et seq.,
________

on

account of

Fleet's

alleged

refusal

to

reasonably accommodate the symptoms she experienced from Multiple

Sclerosis ("MS").1

MS is

symptoms

death.

of

ranging

a degenerative nerve disorder

from fatigue

and

numbness

which can produce

to paralysis

and

The severity of symptoms is related in part to the amount

stress experienced by the

alleges that her symptoms were

patient.

In

D'Aprile's case, she

sufficiently in abeyance that she

was capable of

Analyst.

performing her

She

accommodation

schedule

slowly

Fleet

contends,

of

being

job as a

however,

permitted

for a short time (one to

reacclimate herself to

refused

to

to

Senior Systems

that

she

work

only

needed

the

part-time

two months) so that she could

full-time work.

provide this

Support

accommodation

Her

claim that

constitutes

the

gravamen of her case.

On

Fleet's

November

motion

for

22,

1995,

summary

the

district

judgment.

The

court

granted

district

court

____________________

R.I. Gen.

Laws

refuse to hire,
basis

28-5-7(1) generally

or to

of handicap.

addition, the

makes it unlawful

discriminate against an
R.I.

Gen. Laws

to

employee on

the

28-5-7(1)(i)-(iii).

In

statute specifically makes it

unlawful "to refuse

to reasonably accommodate an employee's or prospective employee's

handicap

unless

accommodation would

the

employer

pose a

can

demonstrate

hardship on the

that

the

employer's program,

enterprise, or business."

concluded

decision

that

R.I. Gen. Laws

summary judgment

was

28-5-7(1)(iv).

mandated

by our

earlier

in August v. Offices Unlimited, Inc., 981 F.2d 576 (1st

______
_______________________

Cir. 1992).

Because we

disagree that August

______

for the defendant in this case, we reverse.

BACKGROUND
BACKGROUND
__________

mandates judgment

In

Fleet on a

November 1991,

D'Aprile commenced

full-time basis.

to experience the

which lasted for

In January of

first symptoms of

four days.

employment with

1992, D'Aprile began

MS, a numbness

in her

leg

Then, in July of 1992, she began to

experience numbness in the entire left side of her body, and took

a medical leave of absence for the entire month of July.

D'Aprile's symptoms

which time

she

was diagnosed

symptoms, D'Aprile was unable

1992 until January 31, 1993.

absence, during October and

at home, and

do so.

recurred in

with

MS.

October

As

a result

to travel to work from

In the beginning of

of

at

her

October 1,

this period of

November, D'Aprile continued to work

Fleet provided her with a computer

By the

of 1992,

end of November,

to allow her to

however, D'Aprile's

condition

deteriorated to the point that she completely ceased working.

In

January

somewhat, and she

of

1993,

expressed a

D'Aprile's

desire to

symptoms

return to

work.

abated

Her

doctor advised her that she should return to a full-time position

in stages, beginning with

later asked

return on

part-time work.

her supervisor,

part-time

basis

Accordingly, D'Aprile

Debbie Sullivan, for

for

-3-

two

month

permission to

period.

In

particular,

(taking

resume

take

she

asked if

she could

work

three days

per week

Mondays and Fridays off) until she felt strong enough to

a full-time schedule.

She told Sullivan

eight vacation days for

continue receiving

the first month

a full-time

salary.

that she would

so that she could

According

to D'Aprile,

Sullivan told her that her proposed arrangement sounded okay, and

that she

have

was willing to "work with" D'Aprile, but that she would

to get

back

to her

about it

after

checking with

Diane

DeCosta, the Human Resources Manager.

D'Aprile

states

called her back and

for her to work

Sullivan's

19,

1993, Sullivan

told her that it was against

company policy

part-time.

superior.

that on

January

D'Aprile then called

Henry Korsiak,

Korsiak endorsed Sullivan's description of

company

policy.

D'Aprile

employee, Mary Gendreau, who

time

after

maternity

then asked

Korsiak

about

another

had been permitted to return

leave.

Korsiak

told

part-

D'Aprile

that

Gendreau had negotiated a "special deal" with her supervisor.

proposed

Notwithstanding Fleet's refusal

to approve

part-time

returned

February 1,

1993.

worked in Human

work

schedule,

After her

she

return, she called

Resources, and asked her

Friday, February 5th

and Monday, February

D'Aprile's

to

on

Jan Wyant, who

if she could

8th.

work

Wyant

take off

approved

the absence, and told D'Aprile to take two personal days.

When

D'Aprile

did

not

February 5th, she called Korsiak.

"screamed" at her, telling her

come

to

work

on

Friday,

According to D'Aprile, Korsiak

that she had no right to

go over

-4-

his

head to get permission to take

"You said

that you

should be here,

you're

D'Aprile

not

were coming

and I don't

here,

maybe

states that she

and interpreted it

as an

you

personal days.

back for

February 1st and

know why you're

shouldn't

was very upset

He told her,

not here.

bother

coming

And

you

if

back."

by Korsiak's response,

ultimatum that she

work full-time

or

lose her job.

Despite

Korsiak's

returned to work on the

three day-a-week

March, 1993.

harsh

response, however,

following Tuesday, and continued working

schedule during the

months of

"not without a

every time

during the

February-March period that

time

the

Sullivan, who

only be

request

would

fight."

initially

She states

that

she requested

be denied

by

Debbie

took the position that accrued vacation time could

used with

occasions,

February and

As D'Aprile describes it, however, she only managed

to achieve this result

off,

D'Aprile

a supervisor's

D'Aprile

was forced

approval.

to

appeal

On each

to

of these

Jan Wyant,

who

approved each request.

This weekly

pattern of requests for

time off, denials

by Sullivan and reluctant approvals by Wyant continued during the

month of

February and

through most

of March.

At some

point

during this time, Korsiak and Sullivan indicated to D'Aprile that

she

had no more vacation time.

she could no

condition

fatigued."

longer work

had

D'Aprile eventually decided that

under such conditions.

deteriorated, causing

After

discussing the

-5-

her

matter

to

Her

physical

feel "very,

with her

very

doctor, she

concluded that her symptoms

strain"

had worsened due to the

"stress and

produced by Fleet's refusal to approve her request for a

part-time

work schedule.

On

March 24,

1993, she

returned to

disability status.

On

working,

was

March

"unable

to

January 21,

work

As a

Fleet's

day

after D'Aprile

stopped

at this

time

and

should

be placed

on

result, D'Aprile received disability benefits

short

1995,

Fleet's insurance

disabled.

the

she submitted a letter from her doctor stating that she

disability."

under

25, 1993,

and

long-term

when those

disability

benefits were

carrier found that

plans

until

terminated because

she was no

longer totally

STANDARD OF REVIEW
STANDARD OF REVIEW
__________________

We review a grant of summary judgment de novo.

_______

v.

General Electric Co.,

_____________________

Accordingly,

to the

that

upheld

950 F.2d

816,

Cir. 1991).

we view the entire record in a light most favorable

non-moving party, indulging all

party's favor.

only

822 (1st

Mesnick
_______

if

interrogatories,

Id.
___

"the

and

The

reasonable inferences in

entry of summary judgment will be

pleadings,

admissions

on

depositions,

file,

answers

together

with

to

the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law."

Id.
___

DISCUSSION
DISCUSSION
__________

-6-

The

district court

entered judgment

in favor

of the

defendant solely on the authority of August v. Offices Unlimited,

______
__________________

Inc.,
____

to

supra.
_____

In essence, the

district court interpreted August

______

stand for

the proposition

that a

plaintiff is

barred from

claiming

handicap

employment, she

the meaning of

discrimination

contends that

if,

after

she is "totally

her employer's disability

leaving

her

disabled" within

insurance policy.

We

think that August stands for a much narrower proposition.

______

The plaintiff

began

in August
______

was a furniture

salesman who

to suffer from symptoms of severe clinical depression.

a result of this depression, August asked

As

for and received a six

week paid leave of absence from his employer.

At

the end of the

six week period, August

advised his employer that he was not yet

able to return to work.

His doctor submitted a letter estimating

that

August would

recuperate.

require an

additional two

to four

weeks to

The employer told August that he would be permitted

to take an additional two weeks as vacation, but that he would be

expected to

return to work at

the end of that

period.

August,
______

981 F.2d at 578.

Shortly before his scheduled return,

August's employer

asked him if he was feeling "100 percent better."

don't

know

employer then

if I'm

100

advised

percent until

him that

I start

the company

percent" from him when he returned,

August then

requested that he

-7-

working."

His

would expect

"110

and that he was "going to be

under a lot more pressure than he was prior to

579.

He replied, "I

leaving."

be allowed to

Id. at
___

return on a

part-time

that

if

schedule, but this was

he was

unable to

applying for disability

plan.

under

He

was told instead

full-time, he

should consider

benefits under the employer's

insurance

Id.
___

The day

before

work

refused.

after being refused a

his scheduled

the

application

company's

for

return to

disability

benefits

that

part-time schedule, and

work, August submitted

plan.

he

He

had

asserted

been

a claim

in

his

totally

and

continuously disabled starting on a date forty-nine days earlier.

Id. at 579.
___

Thus, by August's own admission, he had been totally

disabled as of

the date he requested

and was refused the

part-

time schedule.

August

brought suit

under Massachusetts

General Laws

ch. 151B, a statute which, like the Rhode Island statute at issue

here,

prohibits employment

disabilities.2

August

discrimination

claimed that his

against people

with

employer had failed

to

____________________

One

difference

Massachusetts

between

statute

the

prohibits

two

statutes

discrimination

person alleging to be a qualified handicapped

Rhode

Island

law

handicap, and

Compare Mass. Gen.

_______

Gen. Laws

specifically
handicap is

28-5-7.

provides

that

unlawful, even

the discriminatory practice.

Amici

bars

Rhode Island

"any

"because

of"

"reasonably accommodate"

the Rhode

discrimination
if other, lawful,
R.I. Gen. Laws

Commission

the

against

Laws ch. 151B

Moreover,

that

person," while the

discrimination

requires the employer to

such handicap.
R.I.

simply

is

for Human

on

4(16)

with
____

Island statute
the

basis

of

factors motivated
28-5-7.3.

Rights, the

Rhode

_____
Island Affiliate of the American Civil Liberties Union and

Rhode

Island Protection and Advocacy

Rhode

System, Inc. urge that the

Island statute creates broader protections than the Massachusetts

law, protecting even
adverse

actions

those who

motivated

discriminatory animus.
since,

as we

We

explain below,

are not qualified

even

in

part

need not decide

by

to work
an

employer's

this question

summary judgment

from

here

is inappropriate

-8-

reasonably accommodate his handicap by refusing to permit a part-

time work schedule.

The

district court granted summary judgment

for the employer, and we affirmed.

[was]

fatally bereft

of

We concluded that "the record

indication that

ability to perform his job."

had

declared himself

employer's

disability plan

reasonable

accommodation

the

Id. at 581.
___

Crucial to our conclusion

August

August possessed

to be

as

from

in August was the fact

______

totally disabled

of the

his

time

under his

he applied

employer.

that

for

Although

the

disability plan's definition of "totally disabled" was not in the

record, we

concluded that "[u]nder

any definition of

the term,

August's declaration that he was 'totally disabled' means that he

was not able to

perform the essential functions of his job . . .

with or without reasonable

August admitted

that

he

accommodations."

was unable

to

Id. at 581.
___

work at

the

Since

time

he

requested

his part-time schedule, we concluded that he was not a

"qualified

handicapped person" and thus had failed to make out a

prima facie case under the Massachusetts statute.

_____ _____

Two

require a

have

facts

distinguish D'Aprile's

different outcome.

been

totally

disabled

at

from Fleet.

for a

part-time schedule

experiencing

the

and therefore

First, D'Aprile never

accommodation

formal

It

case

Id. at 584.
___

the

time

was not until

stress resulting

had

she

requested

her

an

after her requests

been refused,

from

claimed to

ad hoc
______

and

after

part-time

____________________

even

on the issue of whether D'Aprile was otherwise qualified to

work.

-9-

status, that she

issue

that

claims to

have become totally

disabled.

The

which concerned us in August, that a plaintiff would claim

______

he was entitled to

a reasonable accommodation

at the same
___________

time he claimed to be unable to work at all, is absent here.

In addition,

disability

broad

benefits in

admission

of

we note that

this case

incapacity

D'Aprile's application

may not have

that

we

for

constituted the

construed

such

an

application

to

be in

August.
______

defines a

unable

to perform

entire

regularly scheduled work week as the result of an illness

Such

injury and

disabled" employee

the material

requires

duties of

the ongoing

benefits.

because

schedule,

D'Aprile's contention,

her employer

is

refused

entirely consistent

is

for the

a physician. . ."

to work" is entitled to

that she

to permit

one "who

his/her job

care of

a disabled employee who "is unable

as

disability

policy

or

"totally

Fleet's short-term

was unable

a temporary

with her

claim to

"totally disabled" within the meaning of the policy.

to work

part-time

have been

It does not

constitute an admission that she had been unable to work with the

accommodation of a part-time schedule prior to that point.

August simply
______

stands

for

the

proposition

that

the

plaintiff's ability

element

of

handicap

Massachusetts law.

found

that

combined

(before

to work with reasonable

Under

August's

with his

or after

employment

discrimination

case

the particular facts of that

application

demonstrated

the

accommodation is an

for

disability

inability to

requested accommodation)

-10-

under

case, we

insurance,

perform any

eliminated

work

any

genuine

issue

accommodation.

disabled

as

to

ability

to

work

with

reasonable

Since D'Aprile never claimed to have been totally

during the

demonstrated

his

her

time she

ability to

requested her

work

with

accommodation, and

the accommodation

she

requested, the reasoning of August does not apply.

______

CONCLUSION
CONCLUSION
__________

D'Aprile contends that the

permitting her to

basis

--

was not

condition and

asserts

take vacation and

reasonable

its sensitivity

accommodation Fleet made --

personal days on an

one given

to stress

the

factors.

ad hoc
______

nature of

her

She further

that she was capable of working part-time in the absence

of additional stressors, and would have been able to continue her

employment

response

were

it

not

for the

of her

supervisors

to

Given

that D'Aprile

hostile

her

and

request

non-cooperative

for

modified

schedule.

almost two months

genuine

issue

after her

of material

did

in fact

work part-time

initial request, she

fact as

to

has raised

whether she

for

could have

continued even longer if Fleet had accommodated her as requested.

D'Aprile's subsequent

Fleet

refused to

because it sheds no

application for disability

accommodate her

light on how

the accommodation been made.

does not

benefits after

resolve

this issue

D'Aprile would have fared

had

-11-

For the foregoing reasons, the judgment of the district

court

is

reversed
________

and

the

case

is

proceedings consistent with this opinion.

SO ORDERED.
SO ORDERED.

remanded
________

for

further

Costs to appellant.

-12-