Last week, a Massachusetts Appeals Court upheld a determination by the Massachusetts Commission Against Discrimination (“MCAD”) that an older custodian, fired after he missed work due to a heart attack, was unlawfully terminated on the basis of his age and handicap in violation of Massachusetts General Laws Chapter 151B (“Chapter 151B”).
The custodian, 74 year old William Glynn, had worked for Massasoit Industrial Corporation (“Massasoit”) for twenty years and had a “spotless” personnel record. Over his twenty-year tenure, Glynn never took a single sick day, until March of 2007, when he left work early because he was not feeling well. He was subsequently diagnosed with pneumonia and hospitalized for three days. Less than a week after leaving the hospital, Glynn had a heart attack and was hospitalized for an additional month. After both incidents, Glynn’s daughter-in-law went to Glynn’s worksite and told a co-worker that he would not be able to come to work because of his health concerns. The co-worker promised to relay the message to Glynn’s supervisor.
After he was discharged from the hospital the second time, Glynn attempted to return to work, without restrictions, but was told he had been terminated for being a “no call, no show.” In Glynn’s absence, Massasoit had hired a 68 year old woman to replace him. Glynn then filed a complaint with the MCAD, alleging that Massasoit had unlawfully terminated him because of his age and handicap. Massasoit argued that Glynn was not handicapped, because his heart attack was a temporary condition that did not rise to the level of a handicap as that term is defined by law. In addition, it argued that the fact that it replaced Glynn with a 68 year-old woman demonstrated that it had not discriminated based on age.
The MCAD found in favor of Glynn, holding that Massasoit had illegally terminated Glynn because of both his age and due to the heart attack. In its finding, the MCAD did not explicitly state that Gylnn’s heart attack constituted a handicap; rather, the MCAD found that Massasoit perceived Glynn to be handicapped and terminated Glynn based on that perceived handicap in violation of Chapter 151B.
The MCAD also rejected the claim that Massasoit could not have discriminated against Glynn based on age because it hired a replacement who was 68 years old. The decision followed established precedent on the issue of age discrimination, noting that replacing an older worker with someone who is at least five years younger than the terminated employee can be evidence of age discrimination.
Finally, the MCAD concluded that Massasoit’s stated reason for terminating Glynn, his alleged “no call, no show,” was a pretext for discrimination because 1) Glynn’s daughter-in-law had informed Massasoit about Glynn’s absences (although Massasoit claimed it had never been notified of Glynn’s absences, the MCAD found that the employer’s testimony on this point was not credible); 2) Massasoit did not engage in the interactive process with Glynn as required by law, and; 3) Massasoit acted with “haste” to terminate an older, long-term employee with absolutely no performance concerns in his record. Massasoit appealed the MCAD’s findings to the Massachusetts Appeals Court, but the court affirmed the MCAD’s decision. Glynn was awarded $55,650 in lost wages and $35,000 in emotional distress damages.
Employers who suspect that one of their employees is absent due to medical reasons, even when a medical condition may be temporary in nature, should take steps to clarify the reasons for the employee’s absence and to engage in the interactive process if appropriate. Employers may not discipline employees for certain disability-related absences, and may be required to accommodate handicapped individuals, unless such accommodations constitute an undue hardship. Because the laws surrounding protected leave, the interactive process, and accommodation can be complex, employers should seek the advice of experienced employment counsel when dealing with issues related to absences taken for medical reasons.