Can’t have your cake and eat it, too

Attempting to play one agency off against another won’t work

Since 1986, Berghuis had received treatment for his mental condition. Berghuis worked for and remained in his position with the University of Massachusetts while he received treatment. During his emp1oyment at the University, Berghuis received treatment for obsessive-compulsive disorder (“OCD”), depression and anxiety. Berghuis claimed (and medical reports confirmed) that his OCD symptoms worsened do to certain work conditions. Berghuis’ physicians recommended that he take time off from work. Berghuis took a total of nine months unpaid leave during 1991 and used all of his accrued time off.

While on leave from the University, Berghuis filed for workers’ compensation temporary disability benefits. The University challenged the determination that Berghuis’ disability was caused by his employment. However, the University and Berghuis executed an agreement for compensa¬tion for total, temporary disability to be retroactively applied to the period of June 12, 1990 to November 19, 1991. On April 2, 1993 the Department of Indus¬trial Accidents approved the agreement between Berghuis and the University for redeeming liability by lump sum settlement. The agency found that:

as a result of a series of identifiable, work-related incidents, Berghuis suffered serious emotional injuries, culminating in his inability to continue work as of June 11, 1990 . . . . All of the examining doctors agree that he suffered and is suffering from obsessive compulsive disorder, paranoid delusions, depression and anxiety; that these conditions are causally related to the incidents at work; that he is totally disabled to do any kind of gainful work.

While approval of the agreement between the parties was pending before the DIA. Berghuis received a notice from the University which stated that his accrued sick, vacation and personal time would expire on January 5, 1993. The notice further stated that if he did not return to work by January 11, 1993 his employment would be terminated be¬cause of Berghuis’ inability to return to work. Berghuis claims that, following his receipt of the notice of termination, he became suicidal.

On May 6, 1993, Berghuis filed an application with the State Board of Retirement for accidental disability retirement benefits. The Board approved Berghuis’ application on October 16, 1995. On March 7, 1994, Berghuis filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) Berghuis charged the defendant with discrimination related to the receipt of notice of termination of employment.

The University requested the court dismiss the action on the grounds that Berghuis failed to exhaust his administrative remedies with the MCAD; and that Berghuis is not a “qualified handicapped person” under Massachusetts law, the Americans with Disabil¬ities Act (“ADA”), the Massachusetts Worker’s Compensation Act.

1. Failure to Exhaust Administrative remedies

The University contends that for statute of limita¬tions purposes the alleged discriminatory act occurred on December 23, 1992, the date of the notice of termination. The plaintiff’s MCAD complaint was not filed until March 7, 1994, more than fourteen months later. Therefore, according to defendant’s position, the plaintiff is barred from bringing suit because he did not file with the MCAD within the six month statute of limitations period. The defendant argued that plaintiff was similarly barred from bringing suit under the ADA because he failed to file a timely charge with the Equal Employment Opportunity Com¬mission (“EEOC”); that is, within three hundred days of the alleged discriminatory event. Berghuis claimed that the statute of limi-tations should be tolled because the defendant’s ac¬tions caused him to be suicidal, which made him incapable of discovering his rights under the state and federal anti-discrimination statutes.

Before a plaintiff may file a complaint in the Supe¬rior Court, he must comply with statutory filing re¬quirements by filing a complaint with the MCAD. Resort to the judicial process is not available to a party claiming handicap discrimination (or other discrimination claims within the adjudicatory sphere of the MCAD) unless that party has first lodged a complaint of unlawful discrimination with the MCAD within six months of the occurrence of the discriminatory event. Since this did not occur, Berghuis’ MCAD claim must fail.

2. “Qualified Handicapped Person”

The University argued that Berghuis did not meet the definition of a “qualified handicapped person.” A “qualified handicapped person” is defined as a person who is capable of performing the essential functions of a particular job with reasonable accommodation to his handicap. Similarly, under the ADA, a “qualified individual with a disability” is defined as an individual with a disabil¬ity who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. The workers’ compensation statute contains language mirroring the definition of a quali¬fied handicapped person and prohib¬its discrimination against employees who exercise their rights under that chapter.

The University maintained that since Berghuis began his leave from the University, Berghuis had stated that he was unable to return to work because of his disability. The University took the position that Berghuis cannot now argue that he is a “qualified handicapped person” or “a qualified individual with a disability” within the meaning of the anti-discrimination statutes because the ability to perform the duties of the job with or without reasonable accommodation is necessary to be “qualified.” Berghuis argued in opposition to this mo¬tion that he has consistently had the ability to perform essential job functions, even with his disability.

The record demonstrated that Berghuis has received treatment for his disability since at least 1986. Since that time, Berghuis maintained employment with the University, receiving favorable performance reviews. However, it is clear Berghuis was no longer able to continue in his employment. Doctors who examined Berghuis came to the conclusion that he is totally and permanently disabled. It would be inconsistent to hold that Berghuis is totally disabled for the purpose of collect¬ing benefits, yet able to perform essential job functions for the purpose of finding that his termination was discriminatory. Accordingly. Berghuis does not meet the criteria of a “qualified” handicapped or disabled person.

Similarly, courts have held that a sales employee unable to work due to depression was not a qualified handicapped person, even if requests for accommodations were reasonable, where the employee admitted on disability insurance forms that he was totally disabled. Also, when an employee represents that he or she is totally disabled in order to collect social security disability benefits, that em¬ployee is estopped from claiming that he or she can perform essential functions of the job with or without reasonable accommodation within the meaning of the ADA.

Basically, you can’t have your cake and eat it too. One cannot collect total disability workers’ compensation benefits; and accidental retirement benefits and yet claim discrimination due to lack of accommodation. You cannot inform one agency, such as the workers’ compensation board, that you are totally disabled, and attempt to pursue a discrimination claim based on handicap discrimination alleging lack of reasonable accommodation, in essence stating that you are not totally disabled.