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Massacani v. Kelly Services, Inc.

United States District Court, D. Massachusetts

January 16, 2018

CATHERINE MASSACANI, Plaintiff,
v.
KELLY SERVICES, INC., Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 47)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Catherine 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 claim.

         II. Standard of Review

         “Summary 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. 2010)).

         In 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).

         III. Facts[1]

         Plaintiff 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).

         Plaintiff suffers from high blood pressure and periodically needs medical treatment to monitor or treat the condition (Dkt. No. 51 at ¶ 1).[2] 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).

         On 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 ¶ 20).[3]

         Several 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).

         On the 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).

         Following 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).[4] 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).[5]

         Plaintiff 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).

         Later 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).

         And yet 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 ...

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