MCAD affirms $130K disability bias award.

Byline: Eric T. Berkman

A hearing officer properly found that Tufts Medical Center failed to reasonably accommodate a nurse who could not work overtime or night shifts due to rheumatoid arthritis, the Massachusetts Commission Against Discrimination has decided.

According to complainant Marie Dalexis' doctor, such shifts impacted her ability to sleep, exacerbating her condition.

The hearing officer determined that Dalexis was constructively discharged for her disability in violation of G.L.c. 151B when, in seeking to return from medical leave, respondent Tufts failed to reasonably accommodate her disability by providing her with a position that required her to work only day or evening shifts or by engaging in an "interactive process" to determine if she could handle infrequent overtime.

On appeal before the full commission, Tufts argued that working overtime was an essential function of the job.

MCAD disagreed.

"[T]he parties' Collective Bargaining Agreement did not mandate overtime; instead it merely permitted Tufts Medical Center to require 'reasonable overtime,'" the panel wrote, adding that "while Tufts Medical Center asserted that overtime work was a universal practice ... some nurses performed as little as three hours of overtime [the previous year] and about 5% of nurses performed no overtime at all."

Additionally, the commission stated, evidence showed Tufts declined to bring vacant day-shift positions in Dalexis' unit to her attention, offering only a night-shift position instead.

"The Hearing Officer made the reasonable inference that this was a direct tactic by Tufts Medical Center to avoid interactive dialogue with the Complainant," MCAD said.

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The Massachusetts Commission Against Discrimination, et al. v. Tufts Medical Center, et al., Lawyers Weekly No. 22-029-19 (25 pages)

THE ISSUE:Did a hearing officer properly find that Tufts Medical Center failed to reasonably accommodate a nurse who could not work overtime or night shifts?

DECISION:Yes (Massachusetts Commission Against Discrimination)

LAWYERS:Howard M. Fine of Boston; Elisabeth M. LeBrun of Georgetown (complainant)

Gregory A. Brown of Littler Mendelson, Boston (respondent)[/box]

'Cautionary tale'

Counsel for the complainant, Howard M. Fine of Boston, expressed regret that his client, who passed away while the litigation was pending, did not live long enough to learn her complaint was upheld on administrative appeal.

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