King v. Mestek, Inc.

Filing 68

Judge Michael A. Ponsor: MEMORANDUM AND ORDER on Defendants' Motion for Summary Judgment and Motion to Strike (Doc. Nos. 55 and 64), ENTERED. "...For the foregoing reasons, Defendant's motion for summary judgment is hereby ALLOWED as to counts II and VIII with regard to Plaintiff's claims of hostile work environment. However, summary judgment is hereby DENIED as to counts I, IV, VI, VII, and X. The clerk will set forth the case for a final pre-trial conference." (Healy, Bethaney)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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KATIE KING
Plaintiff,
v.
MESTEK, INC.,
Defendants.

C.A. No. 3:15-cv-30071-MAP

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND MOTION TO STRIKE
(Dkt. No. 55 and 64)
September 18, 2017
PONSOR, U.S.D.J.
I.

INTRODUCTION

Plaintiff Katie King brings suit under federal and
state law against Defendant Mestek, Inc., her former
employer, for discrimination on the basis of real or
perceived disability, as well as for interference with her
rights under the Family and Medical Leave Act.
On December 10, 2015, Judge Mark G. Mastroianni allowed
Defendant’s motion to dismiss counts III, V, and XI.
Defendant now seeks summary judgment on all remaining counts
in the Amended Complaint.

In its reply to Plaintiff's

opposition, Defendant also asks the court to strike Exhibit
20, an affidavit by Plaintiff. For reasons set forth below,
the court will allow the motion for summary judgment in part
and deny the motion to strike.
II.

BACKGROUND

The facts are drawn from Plaintiff's Statement of
Material Facts (Dkt. No. 60.) and Defendant's Memorandum in
Support re Motion for Summary Judgment (Dkt. No. 56). They
are recited in the light most favorable to the non-moving
party, here Plaintiff; all justifiable inferences are drawn
in her favor. See Tolan v. Cotton, 134 S. Ct. 1861, 1863
(2014). The court will first discuss Plaintiff's role at
Defendant and then move to an overview of her health
condition.
A.

Employment History

Plaintiff began her employment at Defendant in July
2012 as an Assistant Controller in the Finance Department.
Her supervisor, Fran Robertson, held the position of
Controller, but retired in March 2013. Also around this
time, another position in the department, that of Cost
Manager, opened due to a retirement. Instead of filling the
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open positions, Defendant decided to evaluate the structure
of the entire Finance Department. Defendant did not
advertise or seek applicants for the job of Controller.
For the following six to eight months, Plaintiff had no
formal supervisor. At some point in this period, Defendant's
CFO, Steve Shea, asked Plaintiff if she would be interested
in taking the position of Cost Manager. Plaintiff declined.
Around October 2013, Timothy Zambelli became Plaintiff's
supervisor. Throughout this period, Plaintiff's job
responsibilities remained unchanged.
During the entire period of her employment, Plaintiff
never received any formal warning that her job performance
was unsatisfactory. Zambelli stated in his deposition that
Plaintiff's work contained errors that required another
person to double check her work. For example, in an email
exchange between Jeanne Moriarty (who worked in the
Accounting Department) and Zambelli, Moriarty complained
about Plaintiff's work. In response, Zambelli stated that
Plaintiff's work was "awful". (Dkt. No. 60 at 13.) In
October 2013, Moriarty sent Plaintiff an email, copied to
Zambelli, criticizing Plaintiff for failing to review
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statements for accuracy and to investigate and report
anomalies in allocations. Despite these negative
assessments, both Zambelli and Moriarty conceded in their
depositions that Plaintiff was "not a bad employee." (Id.)
B.

Plaintiff’s Health Condition and Termination
In September 2012, several months after starting her

job with Defendant, Plaintiff suffered a seemingly banal
injury - she stubbed her toe - that triggered a difficult
medical condition called Complex Regional Pain Syndrome
(CRPS). This condition is marked by chronic pain. For
Plaintiff, this meant severe and constant pain in her foot
and toes, for which she received ongoing and escalating
treatment. For a short while after initially injuring her
foot, Plaintiff wore a walking boot and used crutches. She
continued using a crutch, particularly for descending
stairs, for another six months after the injury. Plaintiff
received injections in her foot to alleviate her discomfort.
Additionally, she took medication for the pain, had great
difficulty sleeping, and struggled with walking, in
particular downstairs.
Shortly after first injuring her foot, Plaintiff asked
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Shea if she could have an accommodation in the dress code
(specifically, regarding footwear) and use a parking spot
nearer to the office. Though Plaintiff cannot recall what
answer she got to her requests, she admits that she did wear
comfortable shoes on her injured foot and did park closer to
the building in a spot that did not require crossing the
street.
About a year later, in October 2013, Plaintiff received
a request from Human Resources for a note from her medical
provider in support of her continuing need for
accommodation. Plaintiff characterizes the request as a
demand with only a one-day notice. Although Defendant
disputes whether Plaintiff ever provided the note, the
court, accepting Plaintiff’s version of the facts, must
conclude that she did provide a note from the Baystate Pain
Management clinic.

In any event, Plaintiff received no

complaint regarding the note request. Eventually, she
decided on her own to stop using the parking spot closer to
the building.
In February 2014, Plaintiff underwent a surgical
procedure that temporarily attached needles in her spine as
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part of a spinal cord simulator, with the hope that this
treatment would alleviate her pain. Plaintiff returned to
work with wires hanging out of her clothes.

It is unclear

from the record whether any of Plaintiff's co-workers
noticed this.
Because Plaintiff experienced significant relief, she
decided to undergo a more significant medical procedure. On
March 24, 2014, Plaintiff notified Zambelli that she needed
medical leave for this treatment, beginning April 22, 2014.
She requested two weeks, which Defendant approved.
The day before her scheduled leave, Plaintiff forwarded
to Moriarty an email from April 1, 2014, about a question
related to Plaintiff's work responsibilities. In the email,
Plaintiff stated that she would need more information in
order to complete the task that day, the last day before her
medical leave, or, alternatively, Moriarty could seek
assistance from Plaintiff's supervisor, Zambelli. In
response, Moriarty sent a hostile email to Plaintiff as
follows:
It's a shame you waited until today to follow up on
this issue. If you are going to be out for an extended
time a well-planned absence would have included
following up on outstanding issued [sic]. You are in no
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position to issue me an ultimatum regarding your duties
that you should have well under wraps. This should have
been resolved with the January closing. It looks like
you will have some reconciliation work upon your
return. (Dkt. No. 61 at 4.)
Plaintiff then went to speak to Zambelli about
Moriarty's email. Both Plaintiff and Defendant agree that
Zambelli told Plaintiff that, given the work left to do, she
would have to help with her responsibilities either over the
phone or by coming into the office, adding that she would
have to be available “24/7" during her leave. (Dkt. No. 61
at 5.) Plaintiff felt Zambelli's comments were intended to
threaten her for taking FMLA leave. Thereafter, Plaintiff
spoke to Matt Brown, in Human Resources, who assured her
that she would not be contacted during her leave. He
reported the matter to the vice president of his department.
In fact, no one from work contacted Plaintiff during her
leave.
After her surgery in April, Plaintiff took two weeks of
leave and then requested another two weeks, which Defendant
granted. Plaintiff returned to work on May 21, 2014. At this
point, according to Plaintiff, her workplace climate had
changed: neither Zambelli nor Moriarty spoke to her; other
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employees ignored her as well; and Moriarty would often look
in on Plaintiff to make sure she was doing her work.
Plaintiff felt uncomfortable and anxious.
On June 2, 2014, Defendant terminated Plaintiff.
According to Defendant, it eliminated Plaintiff's position
as part of a restructuring of the Finance Department. In
all, three positions were eliminated. Defendant maintains
that Shea, the CFO, made the final decision on eliminating
the position of Assistant Controller. However, Plaintiff
asserts that Zambelli and Moriarty made the actual decision,
with Shea merely giving final approval. After Defendant
fired Plaintiff, some of her job responsibilities were
assigned to Anna Matovich, who held the position of Staff
Accountant and had been with the company for almost a
decade. Matovich was already familiar with much of the work,
as she had filled in for Plaintiff's position both before
Plaintiff was hired in 2012 as well as when Plaintiff took
her medical leave. Plaintiff claims that this reassignment
resulted in a promotion for Matovich, who also got
Plaintiff's office. Also, Defendant hired a new employee,
Amy LaMadeline, in the Accounting Department, who reported
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directly to Zambelli.
Plaintiff brought this action in ten counts under state
and federal law for discrimination and harassment on the
basis of real or perceived disability, failure to
accommodate, and retaliation for her exercise of rights. As
noted, on December 10, 2015, counts III, V, and IX, all
regarding Plaintiff's claims for failure to accommodate or
interference under the FMLA, were dismissed. (Dkt. No. 26.)
Defendant now moves for summary judgment on the remaining
claims and asks the court to strike Plaintiff's Exhibit 20.
III.

DISCUSSION

At the summary judgment phase, the court looks "to
pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial."

Garside v. Osco

Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990).

Pursuant to

Fed. R. Civ. P. 56(a), "[t]he court shall grant summary
judgment if the movant shows that there is no genuine
dispute as to material fact and the movant is entitled to
judgment as a matter of law."

The court's task is not to

weigh the evidence or determine the "truth of the matter."
Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

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Rather, the court must determine whether the moving party
has "affirmatively produce[d] evidence that negates an
essential element of the non-moving party's claim" or
pointed to evidence "that demonstrate[s] that the non-moving
party will be unable to carry its burden of persuasion at
trial."

Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.

2000).
In considering a motion for summary judgment, the facts
are considered in the light most favorable to the non-moving
party, with all reasonable inferences drawn in her favor.
Pina v. Children's Place, 740 F.3d 785, 795 (1st Cir. 2014).
The court will grant summary judgment where there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Id.
Discrimination and retaliation claims brought pursuant
to the ADA and chapter 151B, and retaliation claims under
the FMLA, are analyzed under the McDonnell Douglas burden
shifting framework used in Title VII cases.

See Tobin v.

Liberty Mut. Ins. Co., 433 F.3d 100, 104-105 (1st Cir. 2005)
(citing to the burden shifting analysis in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)); Benoit v. Technical

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Manufacturing Corp., 331 F.3d 166, 173 (1st Cir. 2003);
Hodgens v. General Dynamics Corp., 144 F. 3d 151, 160 (1st
Cir. 1998). Under this approach, a plaintiff must first
establish a prima facie case of discrimination or
retaliation.

If a plaintiff does so, then the burden shifts

to the defendant to articulate a legitimate,
non-discriminatory basis for the adverse employment action.
The burden then reverts back to the plaintiff to show that
such reason was actually a pretext to cover discrimination
or retaliation.

Each of Plaintiff's claims will be assessed

within this framework.
A.

Discrimination Under the ADA and Ch. 151B
To demonstrate a prima facie case of disability

discrimination, Plaintiff must show that "(1) [she] suffers
from a disability or handicap, as defined by the ADA and
Chapter 151B, (2) [she] was nevertheless able to perform the
essential functions of [her] job, either with or without
reasonable accommodation, and (3) [Defendant] took an
adverse employment action against [her] because of, in whole
or in part, [her] protected disability."

Tobin, 433 F.3d at

104. Once this showing is made, it is Defendants' burden "to

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articulate a legitimate, non-discriminatory reason for its
employment decision and to produce credible evidence to show
that the reason advanced was the real reason."

Id. at 105.

Upon this showing, the burden moves back to Plaintiff to
"proffer evidence to establish that [Defendant]'s
non-discriminatory justification is mere pretext, cloaking
discriminatory animus."

Id.

Defendant contends that there is no evidence that
Plaintiff had a disability or that she was perceived by her
supervisors or co-workers as having one. Defendant further
argues that, even assuming Plaintiff did have a disability,
she cannot show that she suffered the adverse employment
action of being fired because of her disability. Defendant
maintains that Plaintiff's termination was made as part of a
restructuring of the Finance Department, and that it was
Shea, the CEO, who made the final decision, not Plaintiff's
direct supervisors.
Contrary to Defendant's submissions, the record is
sufficient to show that Plaintiff suffers from a disability
for the purposes of the ADA and Chapter 151B, defined as "a
physical or mental impairment that substantially limited one

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or more ... major life activities."

Benoit, 311 F.3d at

175. Plaintiff's condition, CRPS, causes her "severe and
chronic pain" so as to affect her walking and sleeping.
Furthermore, the record shows that Plaintiff exhibited signs
of disability early on in her employment. Shortly after
injuring her foot in or about September 2012, Plaintiff
began to use crutches and a walking air cast for six months
thereafter. On or about March 22, 2012, Plaintiff informed
Defendant's human resources department and her immediate
supervisor, Zambelli, that she was to undergo surgery to
insert a spinal cord stimulator and requested medical leave
for this. Plaintiff informed Defendant that she would not be
able to drive after the surgery.
Defendant's specific challenge to Plaintiff's case –
that she cannot prove a causal relation between her
disability and the adverse employment – is too close a call
to be made at summary judgment, particularly in light of the
Defendant's failure to warn Plaintiff that her job was in
danger and in light of the short time frame between her
return from FMLA leave and the termination of her
employment.

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The absence of any formal warnings or suggestions from
Defendant that Plaintiff’s work was below par or that her
job was in danger was compounded by Defendant's hostile
response to her request for extended second medical leave.
Plaintiff's supervisor, Zambelli, aggressively inquired as
to whether Plaintiff would be available to answer questions
that arose during her time away, a fact Defendant does not
dispute. According to Plaintiff, after her return from her
FMLA leave, her co-workers refused to speak to her. Finally,
Plaintiff was fired only two weeks after taking medical
leave. (Dkt. No. 60 at 1.)
In view of the sequence of events leading up to
Plaintiff's second period of FMLA leave, Plaintiff's
allegations of Defendant's hostility upon her return from
leave, and Defendant's virtually immediate decision to
terminate Plaintiff upon her return, there is sufficient
evidence from which a jury could reasonably conclude that
Plaintiff suffered an adverse employment action as a result
of her disability.
B.

Retaliation Under the FMLA
Analysis of Plaintiff's retaliation claim is

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substantially similar to the discrimination claim detailed
above. To establish a retaliation claim under the ADA,
Plaintiff must show that "(1) [she] engaged in a protected
activity; (2) [she] suffered an adverse employment action
after or contemporaneous with such activity; and (3) there
existed a causal link between the protected activity and the
adverse job action."

Benoit, 331 F.3d at 175.

Defendant argues, as above, that there is a lack of
evidence that Plaintiff had a disability or was perceived by
her co-workers as having one. Defendant also contends that
Plaintiff cannot show that she was fired in retaliation for
having taken FMLA leave.
Again, this argument conflicts with Plaintiff’s version
of the facts. Having been employed at the Defendant in a
full-time position for almost two years and needing to take
time off due to her serious medical condition, Plaintiff was
eligible to take medical leave under the FMLA. After
exercising her FMLA rights for the second time in a
relatively short time frame, Plaintiff's employment with
Defendant was terminated almost immediately. A jury could
find that Plaintiff also received hostile comments from her

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direct supervisor and from another highly placed member of
the company when she requested her FMLA medical leave, and
that she was treated hostilely by her co-workers upon her
return from leave.
The events leading up to Plaintiff's second FMLA leave
and Defendant's response when she returned, in particular
Defendant's suspiciously quick decision to terminate
Plaintiff after her return from leave, are sufficient
evidence from which a jury could reasonably conclude that a
causal link existed between the protected activity and the
adverse job action.

Benoit, 331 F.3d at 175. Defendant

essentially concedes this point, noting that "[e]vents that
occurred after the Plaintiff's return from leave could
arguably give rise to a claim for FMLA retaliation." (Dkt.
No. 20 at 13.)
For all these reasons, the motion for summary judgment
must be denied as to Plaintiff's claim under the ADA, FMLA,
and M.G.L. ch 151B for discrimination based on real or
perceived disability and for retaliation.
C.

Hostile Work Environment
Plaintiff has also pursued a claim for harassment under

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a hostile work environment theory. To succeed, a hostile
work environment claim requires, in addition to proof of
other elements, evidence that the discriminatory conduct was
"sufficiently severe or pervasive so as to alter the
conditions of employment and create an abusive work
environment." Murray v. Warren Pumps, LLC, 821 F.3d 77, 86
(1st Cir. 2016).
Plaintiff's harassment claims rest on comments and
conduct by Moriarty, Zambelli and Plaintiff's co-workers.
Plaintiff reports having felt "harassed and threatened"
by Moriarty's email of April 21, 2014, which stated, in
part, that "a well-planned absence would have included
following up on outstanding issues" and that Plaintiff would
have some "reconciliation work" to do upon her return from
medical leave. Plaintiff also alleges that Zambelli
instructed her that she had to be on call "24/7" during the
duration of her medical leave. (Dkt. No. 61 at 5.) Plaintiff
further claims that, upon her return from medical leave to
work on or about May 21, 2014, Zambelli and Plaintiff's
co-workers gave her "the silent treatment", thus
significantly interfering with Plaintiff's ability to

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perform her job functions.
This conduct, while perhaps hurtful, is insufficient to
establish that Plaintiff's work environment was "permeated
with ... intimidation, ridicule, and insult ...."
Quiles-Quiles v. Henderson, 439 F.3d 1, 7 (1st Cir. 2006).
Isolated incidents, such as Moriarty's email and Zambelli's
conduct, will not amount to discriminatory changes in the
terms and conditions of employment unless they are extremely
serious. Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). Even assuming that the allegedly hostile environment
faced by Plaintiff upon her return from medical leave
persisted until the date of her termination on June 2, 2014,
such treatment does not rise to the level of severe and
pervasive conduct required for a hostile work environment
claim.
D.

Defendant's Motion to Strike
In its Reply (Dkt. No. 64), Defendant asks the court to

strike Plaintiff's affidavit as a sham pursuant to F.C.R.P.
12(f). It is well-established that "a party cannot create a
genuine issue of fact sufficient to survive summary judgment
simply by contradicting his or her own previous sworn

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statement (by, say, filing a later affidavit that flatly
contradicts that party's earlier sworn deposition) without
explaining the contradiction or attempting to resolve the
disparity." Cleveland v. Policy Management Systems Corp.,
526 U.S. 795, 806 (1999).
While the affidavit may violate this rule, the court's
ruling has not in any way relied upon this new submission.
The court will therefore deny Defendant's motion to strike.
IV.

CONCLUSION

For the foregoing reasons, Defendant's motion for
summary judgment is hereby ALLOWED as to counts II and VIII
with regard to Plaintiff's claims of hostile work
environment. However, summary judgment is hereby DENIED as
to counts I, IV, VI, VII, and X. The clerk will set forth
the case for a final pre-trial conference.
It is So Ordered.

/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. DISTRICT JUDGE

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