A former kindergarten teacher can proceed with a disability discrimination claim alleging that the school district refused to accommodate her fibromyalgia by permitting her to work part time, a U.S. District Court judge in Massachusetts has ruled.

The Newton Public Schools argued that full-time attendance was an essential function of plaintiff Irene Incutto’s teaching position.

But Judge Leo T. Sorokin found that evidence that other teachers in the system had been permitted to enter into job-sharing arrangements raised an issue for the jury about whether full-time attendance was indeed an essential function.

“On the record before the Court, the position of elementary school teacher is not inherently, nor as implemented by NPS, a job that required performance by a single teacher all day, every day, for each classroom of elementary students,” Sorokin wrote in denying the school district’s motion for summary judgment.

The 13-page decision is Incutto v. Newton Public Schools, et al.

‘Legal minefield’

One of the plaintiff’s lawyers, Justine H. Brousseau of Boston, said even though the lawsuit has been going on since 2016, it was only recently that the school district raised the issue of full-time attendance being an essential function of the job.

“They didn’t contest that she was disabled and they frankly didn’t argue that [offering a part-time work schedule] was an undue hardship,” Brousseau said. “They hung their hat on that she could not perform an essential function of her job, that she needed to be in the classroom five days a week.”

According to Brousseau, the defendants’ position never made any sense and was one that, if accepted, would undermine the very purpose of the Americans with Disabilities Act.

“Other teachers in Newton — and at one point even Mrs. Incutto herself — have taken advantage of working a part-time schedule,” Brouseau said. “Even as late as the last fiscal school year, teachers who had accepted full-time jobs were allowed to take a part-time leave of absence in order to stay home for child care.”

greene_maura_a2019 “Inconsistency can be very challenging for employers when they want to take a position that a certain job function is essential.”

— Maura A. Greene, employment attorney

Boston employment attorney Maura A. Greene viewed the Newton school district’s “inconsistency” in the treatment of its employees as key to the decision reached by the judge.

“Inconsistency can be very challenging for employers when they want to take a position that a certain job function is essential,” Greene said, adding that the case is a prime example of how a plaintiff’s attorney can successfully marshal all the facts in a case.

Marblehead employment attorney Mark M. Whitney said Incutto highlights the difficulties employers have in accommodating conditions like fibromyalgia, which flare up and are difficult to predict.

“It’s a legal minefield and it’s an operational minefield,” Whitney said.

Sorokin made the right decision given evidence calling into question the school district’s argument that a teacher must be full time in order to have the plaintiff’s job, Whitney added.

“What seemed to really motivate the court here was the fact there was evidence presented that job-sharing not only existed in the school system but was increasing,” he said. “If you’re going to say something is essential, you better have practice that backs it up.”

Reasonable accommodation cases are typically fact-specific, according to Sarah E.A. Sousa.

“It seems like the court made the right call based on the facts,” said Sousa, who added that the case serves as a cautionary lesson to employers that try to be too “rigid” in determining what accommodations are reasonable.

The Boston employment attorney pointed out that Sorokin’s decision still leaves the door open for the school district’s attorneys to prove at trial that offering the plaintiff the opportunity to work part time was not “reasonable” under the circumstances.

Defense counsel did not respond to a request for comment prior to deadline.

Request for accommodation

The defendant hired the plaintiff as a kindergarten teacher in 2012. According to the school district, the plaintiff interviewed for and accepted a full-time position. There was also deposition testimony that, during the interview process, a school principal had emphasized the position was full time and discussed that precise point with the plaintiff to ensure that was her understanding.

In August 2013, the plaintiff informed the school district that she suffered from fibromyalgia, a chronic disorder characterized by fatigue and widespread musculoskeletal pain. Because of her medical condition, the plaintiff requested to work on a part-time basis.

The plaintiff had worked part time by job-sharing in prior school years before obtaining her full-time position. The plaintiff further introduced evidence that in every school year between 2008 and 2018, from three to seven elementary classroom positions in the district were shared between two teachers.

The plaintiff made repeated requests for a part-time assignment between 2013 and 2016 but was denied. According to the plaintiff, at the same time she was asking for part-time work, multiple part-time and job-share opportunities were becoming available within the school district.

After resigning from her job, the plaintiff sued the school district for disability discrimination under the ADA and G.L.c. 151B. The plaintiff alleged that the defendant failed to accommodate her documented fibromyalgia by denying her repeated requests to work part time.

The defendant moved for summary judgment.

‘Phelps’ distinguished

As a preliminary matter, Sorokin noted that the same analysis applied in deciding the merits of the plaintiff’s federal and state disability discrimination claims given that the ADA and Chapter 151B are comparable statutes.

The undisputed evidence in the case established that the plaintiff could not work full time due to her disability. Accordingly, in moving for summary judgment, the defendant argued that the plaintiff was not a “qualified individual” protected under the ADA because she could not perform what it contended was an essential function of her job either with or without a reasonable accommodation.

In attendance cases, the 1st U.S. Circuit Court of Appeals employs a two-step analysis, first deciding whether the attendance demanded by the employer is an essential function of the plaintiff’s position. If it is not an essential function, the inquiry turns to whether a modified schedule is a reasonable accommodation that would allow the plaintiff to perform the essential functions of her job.

Sorokin concluded that the school district failed to establish that full-time attendance was an essential function of the plaintiff’s job. In reaching that conclusion, the judge noted case law standing for the proposition that whether a particular function is essential “initially focuses on whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential.”

Sorokin wrote that, based on the evidence in the record, a jury could conclude as a matter of fact that the plaintiff’s job was “elementary school teacher” rather than “full-time teacher.”

“This is particularly so because at summary judgment, NPS has not asserted that continuity with a single teacher in each classroom is essential (i.e. the job always requires full-time presence of the same teacher in each classroom) nor has it asserted that idiosyncratic scheduling considerations preclude an accommodation for partial attendance or job sharing,” Sorokin wrote.

The defendant relied on the 1st Circuit’s 2001 decision in Phelps v. Optima Health, Inc. to argue that even if the plaintiff was in fact a qualified individual, her failure-to-accommodate claim still failed because her request to work part time was “per se unreasonable” under the ADA.

In Phelps, the court held that “[a]n employer is not required by the ADA to create a new job for an employee, nor to re-establish a position that no longer exists.” The 1st Circuit concluded that the mere fact that a disabled nurse had previously engaged in job-sharing to cover for her inability to lift heavy weight did not defeat the employer’s argument that being able to lift 50 pounds without assistance was an essential function of her job.

The court in Phelps reasoned that because “an employer need not exempt an employee from performing essential functions, nor need it reallocate essential functions to other employees,” the defendant was not required under the ADA to engage in job-sharing as a reasonable accommodation.

Although Sorokin recognized that Phelps supported the school district’s position, he ultimately concluded that that 1st Circuit precedent was distinguishable from the case at hand. The judge noted that at least at the summary judgment stage it was not contested that the plaintiff could perform all the functions of the job of kindergarten teacher, though only on a part-time rather than full-time basis.

“Because the Court does not find that full-time classroom presence by the same teacher was necessarily an essential function of Ms. Incutto’s job, this case differs materially from Phelps and is not controlled by the disposition there,” Sorokin wrote.

Given the evidence in the record of previous job-sharing by the plaintiff and by other teachers within the school district, Sorokin concluded the plaintiff satisfied her burden to establish that her proposed accommodation of part-time work was reasonable, at least for purposes of surviving summary judgment.