Kelly v. Cort Furniture

• Decision Date: 07 May 2010
• Docket Number: Civ. No. 06-12291-MLW
• Citation: 717 F.Supp.2d 120
• Parties: Mary KELLY, Plaintiff, v. CORT FURNITURE, Defendant.
• Court: U.S. District Court — District of Massachusetts

717 F.Supp.2d 120

Mary KELLY, Plaintiff,

v.CORT FURNITURE, Defendant.

Civ. No. 06-12291-MLW.

United States District Court, D. Massachusetts.

May 7, 2010.

Christopher J. Trombetta, Law Office of Christopher J. Trombetta, Mansfield, MA, for Plaintiff.

Bronwyn L. Roberts, Duane Morris LLP, Boston, MA, James P. Ferguson, Jr., Duane Morris LLP, Joseph A. Ciucci, Duane Morris, LLP, Atlanta, GA, for Defendant.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

Plaintiff Mary Kelly alleges a state law handicap discrimination claim against defendant CORT Furniture ("CORT"). The claim, brought under Mass. Gen. Laws ch. 151B, arises out of CORT's termination of Kelly, which followed Kelly's unannounced absence from work on a day in which she went to the hospital to obtain treatment for her claimed handicap, a back condition. Kelly also asserts claims of intentional and negligent infliction of emotional distress. After discovery, Magistrate Judge Robert B. Collings issued a thoughtful Report and Recommendation (the "Report") recommending that this court allow the defendant's motion for summary judgment.

Kelly filed objections to the Report as to Count I, her state law handicap discrimination claim, but made no objection to the Magistrate Judge's recommendations concerning Counts II and III, which respectively allege intentional and negligent infliction of emotional distress. The court has considered de novo the matters as to which objections were made. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. Contrary to the Magistrate Judge, the court finds that summary judgement should not be granted on the handicap discrimination claim. The motion for summary judgement is meritorious on the other two claims.

More specifically, the court finds that genuine issues of material fact exist as to whether Kelly was terminated because of a handicap, in violation of ch. 151B. However, the court agrees that the plaintiff's claims for intentional and negligent infliction of emotional distress are preempted by the Massachusetts Workers' Compensation Act, Mass. Gen. Laws ch. 152, § 1 et seq.

Accordingly, the defendant's motion for summary judgment is being denied in part and allowed in part.

II. LEGAL STANDARDS

A. Summary Judgment

The court's discretion to grant summary judgment is governed by Federal Rule of Civil Procedure 56. Rule 56 provides, in pertinent part, that the court may grant summary judgment only if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). A court must examine the record "taken as a whole," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must view the facts in the light most favorable to the nonmoving party, Fennell v. First Step Designs, Ltd., 83 F.3d 526, 534 (1st Cir.1996). However, "[w]hen a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the burden of proof at trial, there can no longer be a genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir.1994).

In determining the merits of a motion for summary judgment, the court is compelled to undertake two inquiries: (1) whether the factual disputes are genuine, and (2) whether any fact genuinely in disputeis material. Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505. To determine if the dispute about a material fact is "genuine," the court must decide whether "the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving party." Id.See also Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990); Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). Under this analysis, the evidence relied upon must be admissible. See Vazquez v. Lopez-Rosario, 134 F.3d 28, 36 (1st Cir.1998).

B. Objections to Magistrate's Report

To the extent a plaintiff objects to the Report, the court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72. As to all other matters, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72.

III. FACTS

Unless otherwise indicated, the following facts are not disputed. The disputed facts are stated in the manner most favorable to Kelly.

Kelly began working for CORT in March, 2002 as a bookkeeper in the company's Norwood distribution center. At the time she was hired, she did not identify herself as a handicapped person for purposes of CORT's affirmative action program. However, in 2003 Kelly reported that she was having problems with her back, and she received some limited accommodations. Specifically, she was provided with help moving boxes during the annual clean up, and she was given several Fridays off to undergo certain procedures for her back.

Kelly received raises in November, 2003 and November, 2004, and a promotion in November, 2004. Her performance evaluations were largely positive as to the quality of her work, but did reflect concerns about excessive lateness. CORT's handbook states that excessive unscheduled absences and lateness "disrupt work flow and customer service" and "will result in disciplinary action, up to and including termination." Employee Handbook at 12-13, Def.'s Memo, Exh. B. Kelly admitted in her deposition that having regular attendance, being punctual, and keeping managers apprised of her work schedule were "essential" to her job. Kelly Dep. at 155-56.

On May 27, 2004, Kelly was issued a formal warning describing several instances in which she had missed time from work. The warning stated that her absenteeism "put a tremendous burden on the rest of the district when it comes to covering her responsibilities and more importantly the districts (sic) customer service." May 27, 2004 Warning, Def.'s Memo, Exh. B. Kelly does not dispute that she received a warning, but contends that on several occasions when she was not at her desk at her scheduled start time, she was in fact on the job speaking to warehouse managers about work-related matters. Kelly also asserts that she frequently worked through her lunch break and that CORT often asked her to work in their Burlington sales facility, thus preventing her from being at her desk in Norwood continuously.As evidence that she was performing her job well, Kelly references her positive performance evaluations, a letter from a CORT client that praises her work, and CORT's decision to retain her at a time when it laid off her entire department.

A November, 2004 performance evaluation indicated that Kelly's attendance had improved. However, after a particularly long lunch break, Kelly received a second warning on May 3, 2005. This time, Kelly was warned that she had to adhere to her assigned schedule of working from 9:00 a.m. to 6:00 p.m. with one hour for lunch, and that she was required to seek approval in advance for any deviations from this schedule.

Beginning in 2003, Kelly's back degenerated. Kelly agreed at her deposition that her back condition did not prevent her from working, walking, climbing stairs, standing, typing, filing papers, or talking on the telephone, and that her doctor never placed her on any written restrictions relating to her work. However, she has submitted records of doctors' visits and of MRIs performed in 2003 and 2005. In addition, she addressed the effects of her condition in her affidavit, stating:

My back condition ... substantially limited major life activities addressed at home. I could not cook. I also could not clean my apartment on a consistent basis. I could stand only for a limited time. I could perform only brief manual tasks. I also did not engage in physical activities. I and my husband spent free time watching television.

* * *

I also could not sit for extended periods at work. I needed to stand for considerable periods.

Kelly Aff. at ¶¶ 17, 19. A February, 2005 MRI report includes, among other things, a finding of "diffuse degenerative changes involving the intervertebral discs" in Kelly's back. Kelly Aff., Exh. C.

On May 31, 2005, after leaving for her lunch break, Kelly decided that she needed to go to the emergency room, and she did not return to work until three hours and fifteen minutes after she had left. The record of that visit to the emergency room states:

33 year old woman with chronic back pain recently made worse by a recent move in which she was carrying boxes. She states low back pain with radiation down the leg. Occasional numbness of left leg though not now similar to her acute episodes in the past. Patient seen here 6 days ago and given script for percocet which is now gone. She was referred to Spine Center and is waiting to hear back from them about an appointment.... She has had MRI of back done on 2/05 which does show several bulging discs with nerve room impingement at one level in the lumbar spine.

Kelly Aff., Exh. D. This report also notes a history of "spiral degenerative disease." Id.

Kelly states that, when she left work on May 31, 2005, she expected to return within the hour, and she was unable to call once she was delayed because the use of cell phones was not allowed in the hospital. She maintains that CORT suffered no prejudice as a result of her absence because she retrieved...