Godfrey v. Globe Newspaper Co. Inc

• Decision Date: 16 June 2010
• Docket Number: SJC-10532.
• Citation: 457 Mass. 113,928 N.E.2d 327
• Parties: Douglas GODFREYv.GLOBE NEWSPAPER COMPANY, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 113

928 N.E.2d 327

Douglas GODFREYv.GLOBE NEWSPAPER COMPANY, INC.

SJC-10532.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 11, 2010.

Decided June 16, 2010.

COPYRIGHT MATERIAL OMITTED

Mark W. Batten, Boston, for the defendant.

Paul H. Merry, Boston (Andrea L. Haas, with him), for the plaintiff.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

COWIN, J.

The plaintiff was disabled as a result of injuries sustained during the course of his employment. He contends that he is a qualified handicapped person under G.L. c. 151B, § 1(16), and that, in violation of G.L. c. 151B, § 4(16), his employer refused to offer him a reasonable accommodation to enable him to continue to work as an assistant press foreman after his injury. In addition, the plaintiff claims that, shortly after he requested such accommodation, his employment was terminated and the reasons offered for his discharge were a pretext for unlawful discrimination under G.L. c. 151B. He contends also that his employer contravened provisions of the workers' compensation act by discriminating against him because of his disability, in violation of G.L. c. 152, § 75B. Following the dismissal of his complaint by the Massachusetts Commission Against Discrimination, the plaintiff filed a complaint in the Superior Court. See G.L. c. 151B, §§ 5, 9; Everett v. 357 Corp., 453 Mass. 585, 599-600, 904 N.E.2d 733 (2009). Summary judgment in favor of the defendant was granted on all counts.

Background. We summarize the facts derived from the summary judgment record, ¹ relying primarily on the parties' statements of undisputed facts, see Rule 9A(b)(5) of the Rules of the Superior Court (2004),² and reserving certain facts for later discussion in conjunction with specific issues. The facts are undisputed ³ except as noted.⁴ The plaintiff, Douglas Godfrey, worked for the defendant, Globe Newspaper Company, Inc. (Globe), for over twenty years. He started in 1977 as a substitute newspaper handler, later worked as a press operator (pressman), and became an assistant press foreman in 1997. The position of pressman consisted of loading and operating the presses to produce the printed newspapers and involved frequent climbing on the machinery. While the assistant press foreman position involved supervision of a “crew” of pressmen, it also required climbing on the presses to ensure that the paper was loaded properly and to resolve production problems.

In January, 2002, the plaintiff slipped on oil while working on the printing floor and was seriously injured. He was placed on extended medical leave and was out of work for most of the following one and one-half years. While on leave, the plaintiff underwent multiple surgeries on his shoulder and knee, the last one in March, 2003. Throughout this period, pursuant to its policy for supervisory employees injured on the job, the Globe continued to pay the plaintiff his full salary. In turn, the Globe required that the plaintiff remit to the Globe all workers' compensation payments that he received that related to the injury.⁵

Although still in pain, the plaintiff returned to work on June 3, 2003. He asserts that he brought with him a letter from his physician stating that he was unable to work for more than five hours at a time and that his work schedule should be limited to five hours per day.⁶ The plaintiff claims that he showed this letter to Frank Volpe, the general foreman, who derided the plaintiff and took no action on the plaintiff's request. The plaintiff states further that another assistant press foreman, James Alexander, took the letter from the plaintiff, tore it up while Volpe watched, and said that if the plaintiff was unable to work a full shift, he should not have come back to work.

The plaintiff continued working until July 21, 2003, but suffered severe pain and had to leave early or not report to work a minimum of several days each week. At his deposition, the plaintiff was unable to recall how frequently he left work early, but stated that he believed he had not worked even three days per week for the entire seven-week period. He did not recall any occasion on which his request to leave early was denied. His condition continued to deteriorate, and on July 21, 2003, he took another leave due to workplace injury pursuant to the terms of the workers' compensation act.

On August 11, 2003, while on leave, the plaintiff was asked to come to work and meet with Globe managers concerning the remittance of workers' compensation checks that the plaintiff had not signed over to the Globe. On August 13, 2003, the plaintiff was examined by a physician employed by the Globe's workers' compensation insurer. The physician's report, dated August 14, 2003, states that the plaintiff was unable to work at all at that time. On August 20, 2003, the plaintiff was informed by letter that his employment was terminated because of his failure to return the workers' compensation payments. ⁷

After his termination, the plaintiff underwent additional surgeries on both of his knees during 2004. A letter from a workers' compensation physician in November, 2004, stated that, if his condition continued to improve, the plaintiff might be able to return to work as a full-time pressman. In December, 2004, more than fifteen months after the termination, and without acknowledging that his employment had been terminated, the plaintiff sent a letter to the Globe seeking an “accommodation to permit [his] return” to work. The letter asserted that the plaintiff believed light-duty positions existed that would not require him to stand or climb on the presses. The Globe declined to offer the plaintiff the sedentary position he sought (or, indeed, any position).

In January, 2005, after his complaint before the Massachusetts Commission Against Discrimination was dismissed for lack of probable cause, the plaintiff filed a complaint in the Superior Court alleging unlawful discrimination in employment under G.L. c. 151B (count I); failure to give preference in hiring under the terms of the workers' compensation act, G.L. c. 152, § 75A (count II); unlawful discrimination because of the filing of the workers' compensation claim, G.L. c. 152, § 75B (count III); defamation (count IV); wrongful termination in violation of public policy based on complaints to the Occupational Safety and Health Administration concerning workplace safety conditions at the Globe (count V); and invasion of privacy (count VII).^8,9

A judge in the Superior Court granted the Globe's motion for summary judgment on all claims. The plaintiff appealed from the ensuing final judgment as to count I (discrimination due to disability), count II (failure to give preference in hiring), and count III (discrimination for exercising rights under the workers' compensation act). The Appeals Court affirmed the motion judge's decision on the preferential hiring claim, but vacated the judge's decision on the two unlawful discrimination claims. See Godfrey v. Boston Globe Newspaper, Inc., 73 Mass.App.Ct. 1123, 901 N.E.2d 729 (2009). We allowed the defendant's petition for further appellate review with respect to the plaintiff's claims on counts I and III, and we affirm the judge's decision on both counts.

Discussion. The plaintiff argues that, when he returned to work in June, 2003, he was denied the reasonable accommodation he sought to enable him to perform his duties as an assistant press foreman, in violation of G.L. c. 151B, § 4; that, because no reasonable accommodation was offered, he was forced to take a second workers' compensation leave; and that, shortly after he exercised his rights under the workers' compensation act at the end of July, 2003, and without engaging in any discussion of possible reasonable accommodations, the Globe terminated his employment, in violation of both G.L. c. 151B, § 4, and G.L. c. 152, § 75B. The plaintiff contends that the reason offered by the Globe for the termination was a pretext for unlawful discrimination because of his physical disability and his exercise of rights under the workers' compensation act. Asserting that there are genuine issues of material fact concerning whether he is a “qualified handicapped person” under the terms of both statutes, the plaintiff contends that the judge erred in granting the Globe's motion for summary judgment on both the G.L. c. 151B, § 4, and G.L. c. 152, § 75B, claims.

The Globe contends that there is no material dispute of fact and that the judge determined correctly that the plaintiff is not a “qualified handicapped person” pursuant to G.L. c. 151B, § 4, and G.L. c. 152, § 75B. The Globe maintains also that, because the plaintiff is not entitled to protection under either statute, it is not necessary to determine whether the reason for the termination of employment was a pretext. The Globe asserts also that it terminated the plaintiff's employment not because of his disability or his exercise of rights under the workers' compensation act, but because he failed to remit to the Globe more than one year's worth of workers' compensation checks.

1. Standard of review. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644, 766 N.E.2d 864 (2002). In deciding a motion for summary judgment, the motion judge must consider all factual allegations, and draw all reasonable inferences therefrom, in favor of the nonmoving party. See Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 242-243, 867 N.E.2d 300 (2007). We review the material evidence in the light most favorable to the nonmoving party. See Correia v. Fagan, 452 Mass. 120, 130, 891 N.E.2d 227 (2008). Summary judgment is generally disfavored in cases involving employment discrimination because the question of intent requires a credibility determination. See ...