United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 47)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.
Massacani (“Plaintiff”) has filed a complaint
against Kelly Services, Inc. (“Defendant” or
“Kelly”) alleging state law claims under the
Massachusetts Anti-Discrimination Statute, Mass. Gen. Laws.
ch. 151B (“Chapter 151B”) for disability
discrimination (Count 1), failure to accommodate (Count 2),
retaliation (Count 3), and age discrimination (Count 4).
Defendant has moved for summary judgment on all counts of the
complaint (Dkt. Nos. 47-48). Plaintiff opposed the motion as
to all counts save her claim of age discrimination (Dkt. No.
50), and Defendant replied (Dkt. No. 60). The parties have
consented to this court's jurisdiction (Dkt. No. 11).
See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For
the reasons stated herein, Defendant's motion for summary
judgment is denied as to Counts 1, 2, and 3 of her complaint
alleging disability discrimination, failure to accommodate,
and retaliation, respectively. Because Plaintiff does not
oppose Defendant's motion for summary judgment as to
Count 4 of her complaint alleging age discrimination, summary
judgment shall enter for Defendant with respect to that
Standard of Review
judgment is proper where ‘the pleadings, depositions,
answers to interrogatories and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to judgment as a matter of law.'” Carroll v.
Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (quoting
Fed.R.Civ.P. 56(c)). “A factual dispute is
‘genuine' if ‘it may reasonably be resolved
in favor of either party' and, therefore, requires the
finder of fact to make ‘a choice between the
parties' differing versions of the truth at
trial.'” DePoutot v. Raffaelly, 424 F.3d
112, 117 (1st Cir. 2005) (quoting Garside v. Osco Drug,
Inc., 895 F.2d 46, 48 (1st Cir. 1990)). “[A] fact
is ‘material' ‘if its existence or
nonexistence has the potential to change the outcome of the
suit.'” Jarvis v. Village Gun Shop, Inc.,
805 F.3d 1, 7 (1st Cir. 2015) (quoting Borges ex rel.
S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir.
ruling on summary judgment, the court “view[s]
‘the entire record in the light most hospitable to the
party opposing summary judgment, indulging all reasonable
inferences in that party's favor.'”
Padilla-García v. Guillermo Rodríguez,
212 F.3d 69, 73 (1st Cir. 2000) (quoting Euromotion, Inc.
v. BMW of N. Am., Inc., 136 F.3d 866, 869 (1st Cir.
1998)). A party seeking summary judgment is responsible for
identifying those portions of the record, “which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The movant can meet this burden
“either by offering evidence to disprove an element of
the plaintiff's case or by demonstrating an
‘absence of evidence to support the non-moving
party's case.'” Rakes v. United
States, 352 F.Supp.2d 47, 52 (D. Mass. 2005) (quoting
Celotex, 477 U.S. at 325). If the moving party meets
its burden, “‘the nonmoving party must come
forward with facts that show a genuine issue for
trial.'” Sensing v. Outback Steakhouse of
Fla., LLC, 575 F.3d 145, 152 (1st Cir. 2009)
(quoting Carroll, 294 F.3d at 236).
“‘[T]he nonmoving party “may not rest upon
mere allegations or denials of [the movant's] pleading,
but must set forth specific facts showing that there is a
genuine issue of material fact as to each issue upon which he
would bear the ultimate burden of proof at
trial.”'” Id. (second alteration in
original) (quoting DeNovellis v. Shalala, 124 F.3d
298, 306 (1st Cir. 1997)). “‘The test is whether,
as to each essential element, there is “sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party.”'” Id. at
152-53 (quoting DeNovellis, 124 F.3d at 306).
began working for Defendant in March 2012 (Dkt. No. 47 at
¶ 1). Plaintiff was the only employee in Defendant's
Pittsfield, Massachusetts office, and she was responsible for
finding customers and placing temporary employees with those
customers (Dkt. No. 47 at ¶ 3). Plaintiff's initial
district manager was Brad Drakers (Dkt. No. 47 at ¶ 5).
In January 2013, Pamela Mendes (“Mendes”) became
Plaintiff's new district manager (Dkt. No. 47 at ¶
6). Mendes reported to regional vice-president Dawn Ford
(“Ford”) (Dkt. No. 47 at ¶ 9). The human
resources manager responsible for supporting Kelly employees
with human resources matters in Massachusetts during
Plaintiff's employment was Tracy Hopper
(“Hopper”) (Dkt. No. 47 at ¶ 10).
suffers from high blood pressure and periodically needs
medical treatment to monitor or treat the condition (Dkt. No.
51 at ¶ 1). Plaintiff advised Mendes of her condition
and her need to have appointments three times per week to
monitor it (Dkt. No. 47 at ¶¶ 18-19). Since
Pittsfield was a one-person office, Plaintiff and Mendes
agreed that Plaintiff would go to the medical appointments
during her lunch hour (Dkt. No. 47 at ¶ 19; Dkt. No. 51
at ¶ 34). Plaintiff claims that, despite this agreement,
Mendes refused to allow Plaintiff to attend those
appointments on two occasions (Dkt. No. 51 at ¶ 35).
February 14, 2013, at 1:43 p.m., Mendes sent an email to
Hopper, copying Ford, in which she indicated that she and
Ford wanted to get a Performance Improvement Plan
(“PIP”) in place for Plaintiff (Dkt. No. 47 at
¶ 37). Mendes's concerns about Plaintiff's
performance included her technical capabilities using a
computer, questionable judgment in professional
decision-making, and not meeting minimum standards in filling
orders for temporary employees (Dkt. No. 47 at ¶ 27).
Later in the day on February 14, 2013, at 4:52 p.m.,
Plaintiff sent an email to Mendes advising Mendes that her
blood pressure was 168 over 96 and that she was going home
from work because she was not feeling well (Dkt. No. 47 at
weeks later, on March 7, 2013, Mendes sent an email to
Hopper, again copying Ford, in which she set out a timeline
of events relating to Plaintiff's performance issues
(Dkt. No. 47 at ¶¶ 38-39). Mendes included an entry
in her timeline regarding Plaintiff's February 14, 2013
email about needing to go home due to her high blood pressure
(Dkt. No. 47 at ¶ 38). Hopper replied to Mendes's
email by providing a template for a formal PIP (Dkt. No. 51
at ¶ 15). Hopper indicated that Mendes should feel free
to draft the formal PIP, but she advised Mendes to
“focus specifically on job related and [sic] tasks that
[Plaintiff] is unable to perform, gaps in performance,
missing deadlines, etc., and not include any sort of medical
information . . . (as we know, those are not performance
related factors)” (Dkt. No. 51 at ¶ 15).
morning of March 12, 2013, Plaintiff made an unscheduled
visit to her healthcare provider due to a blood pressure
reading of 160 over 110 (Dkt. No. 51 at ¶¶ 2-3).
Before the visit and before the start of her scheduled shift
that day, Plaintiff sent Mendes a text message letting her
know that she needed to see her healthcare provider due to
her high blood pressure (Dkt. No. 51 at ¶ 4). At the
appointment, Plaintiff's blood pressure was 148 over 80,
and Plaintiff's healthcare provider instructed Plaintiff
not to return to work that day (Dkt. No. 47 at ¶¶
15-16; Dkt. No. 51 at ¶ 5; Dkt. No. 61 at ¶ 5).
the appointment, Plaintiff called Mendes to advise Mendes of
her need to be out of work for the day (Dkt. No. 51 at ¶
6; Dkt. No. 61 at ¶ 6). Mendes had yet to receive
Plaintiff's text message about being out of the office
and had been looking for Plaintiff after the office opened at
8:00 a.m. (Dkt. No. 47 at ¶¶ 53, 57). According to
Plaintiff, Mendes's initial response was to scream at
Plaintiff, “I don't care about your blood pressure.
I expect you to work in fifteen minutes” (Dkt. No. 47
at ¶ 55; Dkt. No. 51 at ¶ 7). Then, in a
threatening tone, Mendes told Plaintiff, “go ahead and
take the day off, and I'll take care of everything”
(Dkt. No. 47 at ¶ 59; Dkt. No. 51 at ¶¶ 8-9;
Dkt. No. 61 at ¶¶ 5, 8).
reported Mendes's behavior to Defendant's human
resources department that same day. According to Plaintiff,
when she returned home from her medical appointment, she
called Hopper and told Hopper what Mendes had said to her
about not caring about her blood pressure and expecting her
to be at work in fifteen minutes (Dkt. No. 51 at ¶¶
10-11). Additionally, the record includes a March 12, 2013
email with a time stamp of 11:48 a.m. from Jessica Biauce, a
human resources coordinator, to Hopper, in which Biauce
advised Hopper that Plaintiff had “stated that she
stayed home today due to high blood pressure and was given
that directive by her doctor. She said that her DM stated
that ‘This behavior is intolerable and that there needs
to be someone in the office at all times'” (Dkt.
No. 47 at ¶ 61).
that day, at 1:56 p.m., Mendes emailed Hopper and Ford a
document titled “First and Final for Lack of Integrity
- Cathy Massacani;” Defendant maintains that this
document is the PIP (Dkt. No. 47 at ¶ 35; Dkt. No. 51 at
¶ 13; Dkt. No. 61 at ¶ 13). The document is
addressed to Plaintiff from Mendes and indicates that it is
intended “to communicate our concerns regarding your
recent communications and lack of integrity” (Dkt. No.
47 at ¶ 35; Dkt. No. 51 at ¶ 13; Dkt. No. 61 at
¶ 13). Included among the items listed in bullet point
format thereafter is the entry from Mendes's March 7,
2013 timeline regarding Plaintiff's February 14, 2013
email about needing to go home due to her high blood pressure
(Dkt. No. 51 at ¶ 14; Dkt. No. 61 at ¶ 14).
later that day, at 4:36 p.m., Hopper forwarded Biauce's
email to Plaintiff, stating:
In speaking with [Mendes] about this matter, not only has she
denied stating such to you - she has sent you a very sincere
follow up email stating the importance of regaining your
health and making it a priority ..... [S]he has articulated
to you (both verbally and written), that she would like you
to make it a focus ...