McHUGH, J.
Chelsea D. Scott and Tina Brelin-Penney, husband and wife, appeal from a Superior Court judgment dismissing employment discrimination claims they brought against their former employer, Encore Images, Inc. (Encore), and Laurel Mervis. The claims stem from an injury Scott suffered while he was employed by Encore as a warehouse coordinator. The injury resulted in a disability, a workers' compensation proceeding and, they claim, their discharge. Both plaintiffs filed claims with the Massachusetts Commission Against Discrimination (MCAD) asserting that they had been terminated in violation of G. L. c. 151B. Later, they filed claims in Superior Court
Background. It appears that Encore is a small manufacturer of toner ink cartridges for printers and facsimile machines, and provides in-house servicing and repairs for its customers. The company, which employs approximately fourteen people, is owned and operated by Paul and Laurel Mervis.
Encore employed Scott as its warehouse coordinator. The position was described as involving "constant lifting of items of varying weights and sizes anywhere from a few ounces up to approx [fifty pounds]. The majority of job time is spent with the up and down, off and on part of a `warehouse coordinator' position." Scott's other responsibilities included maintaining and managing the warehouse, shipping and receiving functions such as packaging and shipping orders to customers, and assisting clients and technicians with loading and unloading their cars. Scott worked in the warehouse, and Brelin-Penney worked as Encore's bookkeeper.
On September 11, 2006, Scott fell from a ladder in Encore's
As a result of the September 27 report, Encore hired an ergonomist to "job shadow" Scott in an effort to find techniques that would allow him to do his job despite the injury and the limitations the doctor imposed. The effort failed. By November 7, 2006, Scott's prognosis worsened when Dr. Fehnel, an orthopedic surgeon, reported he needed surgery for a torn cartilage in his left rotator cuff. As a result, Dr. Fehnel stated that Scott was prohibited from any lifting and should do "desk work only." A day later, Scott informed Laurel Mervis that because he needed surgery, he would not be able to return to work. He did not provide her with an anticipated return date and, in fact, never worked at Encore again.
Scott had shoulder surgery on December 11, 2006. Postoperative orders prohibited him from using his left arm and required that he keep it in a sling for four weeks. The four weeks passed, but a January 17, 2007, medical report revealed that he continued to experience "quite a bit of pain" and that for at least six more weeks he was to lift nothing heavier than a cup of coffee. In that report, Dr. Fehnel observed that he "[would] not have [Scott] return to any warehouse lifting or anything, until he is at least 3, if not 4 months, from the time of his surgery." Moreover, Dr. Fehnel stated that Scott would "remain out of work until [he] reassess[ed] him in mid to end February to assess his progress with therapy and potential modified work capacity in the future."
Notwithstanding a variety of different approaches to treatment, Scott's condition did not improve over the ensuing months. Indeed, on April 26, 2007, Dr. Fehnel reported that Scott was experiencing so much pain that he required emergency room treatment. That report, the last one the record contains, also suggested for the first time that Scott's disability might be permanent.
By mid-October, Scott's health had improved to the point that he was ready to return to work, though by then he was involved in this litigation and did not inform Encore of his recovery.
As for Brelin-Penney, she claims she and Laurel Mervis enjoyed a friendly relationship before Scott's injury. Beginning in early 2007, she claims, Mervis began to harass her. The harassment consisted of asking her questions on more than five occasions between January and May about Scott's progress and his anticipated return to work. Brelin-Penney characterizes Mervis's tone as accusatory during these conversations, and claims that Mervis would pull Brelin-Penney's employee file and make notes in it while they spoke. Brelin-Penney consistently told Mervis that Scott would return when his doctors cleared him to do so.
Mervis, who has multiple sclerosis and whose physicians had advised her to avoid stressful situations, was extremely upset by the incident. Through a relative who acted as Encore's lawyer, she informed Brelin-Penney that evening that she was not to return to work at Encore again.
Discussion. We review the allowance of a motion for summary
a. Scott's claim. To make out a prima facie case of employment discrimination based on a disability, Scott must show that he was a "qualified handicapped person" and that he was terminated from his job at Encore because of his handicap. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002). For purposes of summary judgment, Encore concedes that Scott was employed by Encore, that his shoulder injury amounted to a handicap as defined by G. L. c. 151B, § 1(17), and that he was terminated from his position because of his handicap.
General Laws c. 151B, § 1(16), as inserted by St. 1983, c. 533, § 2, defines a "qualified handicapped person" as "a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap." For two reasons, Scott did not meet that definition.
First, on July 2, 2007, three months before Scott now claims that he would have been able to return to work, he accepted a $45,000 lump-sum workers' compensation settlement. Acceptance of the settlement triggered the provisions of G. L.
Under the terms of the statute, then, Scott's acceptance of the settlement created a presumption that he was unable to work, even with reasonable accommodation, for thirty months, or until January, 2010. See Safford vs. Wyman Gordon Co., U.S. Dist. Ct., No. 96-40185-NMG, slip op. at 6 (D. Mass Nov. 10, 1997).
Although § 48(4) creates a presumption, the presumption is rebuttable. Here, though, the record contains no rebuttal. Indeed, Scott has not discussed, or even cited, the statute, and the record is devoid of any evidence that Scott ever received medical clearance to resume work as a warehouse coordinator. Instead, he underwent retraining and found another line of work.
Even if one puts § 48(4) entirely to one side, Scott faces a second insurmountable problem. The record will not support his claim to be a qualified handicapped person, i.e., a person who could, with reasonable accommodation, perform the essential functions of his job. By April 26, 2007, almost eight months after the accident, the record is clear that he was not capable of performing any of the essential requirements of the job. Nevertheless, Encore had installed a placeholder and had kept the job open pending Scott's recovery.
At that point, only two accommodations were possible. One
On this record, therefore, Scott was not a "qualified handicapped person" and Encore did not impermissibly discriminate against him when it discharged him from his employment. Consequently, the judge properly allowed Encore's motion for summary judgment dismissing his claim.
b. Brelin-Penney's claim. Brelin-Penney claims that Encore harassed and terminated her because of Scott's disability and in retaliation for confronting Laurel Mervis about the harassment. She does not claim that she, herself, is disabled or that she was terminated because of her own disability, but claims "associational standing" to pursue the claims just described.
Encore resists Brelin-Penney's claim by asserting that G. L. c. 151B provides no basis for an "associational" claim like the one she proffers.
This is a case of first impression for this court, but this is not the record on which to decide it, for even if Brelin-Penney has associational standing, her claim fails. To make out a prima facie case for retaliation based on Scott's disability, Brelin-Penney has the burden to show that Scott engaged in a protected activity, here the filing of a workers' compensation claim; that Encore was aware of the protected activity; that Encore engaged in an adverse employment action against Brelin-Penney; and that but for Scott's actions, Encore would not have taken the adverse action. See MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (1996); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997); Mole v. University of Mass., 442 Mass. 582, 591-592 (2004).
Encore does not contest that it knew that Scott filed a workers' compensation claim, nor does it contest that the filing of the claim is protected activity. Accordingly, the only disputed issues are whether Brelin-Penney suffered any adverse employment action and, if so, whether the adverse action constituted retaliation as a result of Scott's protected activity.
Brelin-Penney claims that Encore's adverse action consisted of two elements: Laurel Mervis's harassment, which created a hostile work environment, and Brelin-Penney's termination. A hostile work environment however, may only serve as the basis for a retaliation charge if it is "objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. Boca Raton, 524 U.S. 775, 787 (1998). In considering the totality of the circumstances, including the severity, frequency, and
Brelin-Penney's harassment claim arises out of the more than five instances between January and May, 2007, on which Mervis asked her questions in an accusatory tone about Scott's progress and his anticipated return to work, often making notes in her employment file as they spoke. These interchanges cannot be characterized as "severe or pervasive harassment that materially altered the conditions of [Brelin-Penney's] employment." Noviello v. Boston, 398 F.3d 76, 92 (1st Cir. 2005). Brelin-Penney testified that at no time did Mervis threaten her or her job. In addition, there are no allegations that Brelin-Penney's work performance was hampered during this period. In December, 2006, she received an "above average" performance review from Mervis which was accompanied with a salary increase. Moreover, through the spring of 2007, well after Scott's workers' compensation claim had been filed, Mervis, consistent with her friendly relationship with Brelin-Penney, continued giving her gifts and financial assistance.
As for Brelin-Penney's discharge, though it is undisputed that termination from employment is an adverse employment action, this claim fails as well because she has no reasonable expectation of proving causation, an essential element of a viable retaliation claim. Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 705 (1992). In rebuttal to Brelin-Penney's claim that she was fired because of Scott's actions, Encore presented evidence that Brelin-Penney was fired because of the way she conducted herself and the language she used during the argument she had with Mervis about Mervis's conversation with Al Rizzo. Upon Encore's submission of a reason for her lawful termination, the burden shifted back to Brelin-Penney to show that Encore's reasons were pretextual. Mole, 442 Mass. at 591-592. But Brelin-Penney does not deny her part in the argument, does not deny Mervis's pre-existing condition, and does not deny the impact Brelin-Penney's conduct had on Mervis. Her claim fails as a matter of law.
Judgment affirmed.
The letter made no mention of Scott.