Opinion
No. 00-02000
July 25, 2003
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT
Defendants in this case, Communications and Power Industries, Inc., Russell Scahill, Michael Grabko, and Anna Lohnes ("CPI") seek summary judgment on all of plaintiff Elvira DiLuca's ("DiLuca") claims. DiLuca filed a suit for employment discrimination based on her handicap and her national origin under G. L. c. 151B, and for wrongful termination and intentional or negligent infliction of emotional distress. In its summary judgement motion, CPI argues that there is no question of material fact, and that DiLuca cannot succeed on her claims as a matter of law.
BACKGROUND
Viewing the facts and inferences therefrom in the light most favorable and liberally construed to DiLuca, the non-moving party, the summary judgement record is as follows.
CPI's microwave division, located in Beverly, MA, manufacturers advanced electronic equipment and components used in military, medical and satellite systems. Defendants Russell Scahill, Michael Grabko and Anna Lohnes have held various employment and management positions at CPI. The plaintiff, Elvira DiLuca, began working at CPI on May 15, 1978. She was employed as a technician constructing primarily cathode assemblies for radar systems. DiLuca is of Italian national origin. She was born in Italy in 1946, and moved to the United States when she was seventeen.
DiLuca was a productive employee at CPI for over fifteen years. She generally worked from 7:30 a.m. until 4:00 p.m., with regular coffee and lunch breaks. Her normal day included checking the work schedule, retrieving small parts that she needed, constructing cathodes at her workstation while both sitting and standing, passing completed items to other employees approximately ten feet away, and occasionally bringing completed items to other units. When assembling cathodes, she primarily sat at her station, as she needed to move her hands and arms frequently. She regularly received positive employment reviews, and, in particular, received the highest ratings for her work during 1996, the last review present in the record.
During her many years of employment, she was close personal friends with co-worker Anna Lohnes. This relationship began to deteriorate in mid-1995, at a time when DiLuca's health and work was fine. Lohnes began to develop friendships with other employees, ones with whom DiLuca was not friendly. This change began after a company reward trip to Europe attended by several employees, including Lohnes but not DiLuca. DiLuca alleges that over roughly an eighteen month period, Lohnes grew increasingly hostile, belligerent, distant, insulting, confrontational and cold to DiLuca. Lohnes continued to became more friendly with trip participants, including defendant Scahill. As these issues with Lohnes increased, DiLuca's nervousness, apprehension and stress increased. She became jittery, had trouble sleeping, and was in constant tension. Per her own account, DiLuca began having trouble operating the welding machine, as her legs, feet and toes ached. She began to look exhausted, and rubbed her legs and hands often. However, none of these deficits were reflected in her April, 1997 performance review, completed by Scahill, stating that she was then exceeding expected results.
By the fall of 1996, DiLuca reported Lohnes' now harassing activity to Scahill, her manufacturing coach at that time; he asked that they try to get along. According to DiLuca, the friendship had terminated by March, 1997. By then, DiLuca was anxious and depressed, and had pain in her legs, arms and hands. Plaintiff's December, 2002 Affidavit; Plaintiff's Response to Defendant's Statement of Material Facts.
DiLuca's deteriorating relationship with Lohnes, and failing work and health, described above, were the beginning of a downward spiral at work. From this point forward, additional events transpired which, in total, represent the discrimination alleged by DiLuca. During the spring of 1997, DiLuca's brother was going through a difficult divorce. DiLuca's soon-to-be ex-sister-in-law worked in her area. DiLuca alleges that the verbal harassment from other employees increased significantly during her brother's divorce. DiLuca asked Scahill to move her ex-sister-in-law to a new work area; this request resulted in no action. DiLuca then went to HR, and the move followed shortly thereafter.
Later in the spring of 1997, DiLuca requested that Lohnes' work area be moved, as it was immediately behind DiLuca. Lohnes' close proximity and continuing negative harassing actions created what DiLuca perceived to be a hostile work environment. By this point, DiLuca's pain was unbearable, she was extremely fatigued, depressed and anxious. By the summer of 1997, she was unable to keep up with friends on break-time walks, as she was in such pain that she was walking in an awkward way, resulting in others asking her what was wrong. While Lohnes did not perceive a problem with the proximate location of their workstations, management moved Lohnes to a new location in late summer, 1997. A new workspace was created approximately 35' away, at the other end of the department.
Sometime in mid-1997, DiLuca began to see doctors for her condition. In November 1997, an event occurred where DiLuca and Lohnes were uncooperative with work equipment. Scahill spoke with them about working cooperatively. DiLuca asserts that during this same time, Lohnes was telling other employees that DiLuca was crazy. DiLuca indicates she cried often at work at this point. She was not sleeping. She was in terrible pain and had no strength, and the stress and harassment at work was overwhelming. Yet, DiLuca also agreed to the material fact that she and Lohnes were getting along fine in April, 1998. Plaintiff's Response to Defendant's Statement of Facts, No. 48.
In an effort to diagnose her illness, DiLuca was visiting the doctor at least monthly by mid-1998. Early indicators pointed to osteoporosis. On occasion, doctor's offices called her at work. DiLuca alleges she had an informal conversation with Scahill about her illness after one doctor call, though she had yet to give notice of her illness to the company. DiLuca asserts she was having trouble with her work, in not being able to lift glass covers, unscrew knobs, or carry VMS cathodes. However, she never told management that her illness was affecting her work. Plaintiff's Response to Defendant's Material Facts, No. 56. There is no record of CPI management ever having any concern with DiLuca's work production. DiLuca also indicates that at about this time, Scahill instructed DiLuca to mark trash as "trasho."
DiLuca again had further trouble with her ex-sister-in-law, who made condescending remarks to DiLuca. She reported these remarks to Scahill, who suggested she discuss them with Human Resources. HR investigated the issue, and decided to move her ex-sister-in-law to another department. As a result of the staffing change, DiLuca was then promised new training, to be conducted by a co-worker, Gendron. However, the training was only conducted several months later after a new employee was hired and trained, and after DiLuca complained.
In the fall of 1998, Gendron and DiLuca had several verbal disagreements, where DiLuca felt Gendron was treating her rudely. Gendron spoke with DiLuca in the furnace room, with others watching. Gendron mimicked DiLuca, stating that DiLuca did not speak like an Italian and was not as smart as herself (Gendron). DiLuca then grabbed Gendron's arm, but Gendron pulled away. Scahill was present for this event, and instructed the women to go their separate ways. DiLuca reported this event directly to HR. HR brought the two woman and Scahill together, and discussed that they needed to get along and respect each other. Gendron admitted she had been mean because she was told that DiLuca had been speaking poorly of her. After that event, Gendron continued to be rude to DiLuca, and left notes for DiLuca rather than having to speak with her directly regarding work.
CPI received an anonymous letter in 1998 indicating there were inappropriate relationships, harassment, favoritism and tolerated lunch-time consumption of alcohol within DiLuca's department. The letter was directed at the questionable supervisory skills of Scahill. After HR meetings with all Scahill's employees and a department meeting, HR indicated that while they found no evidence of harassment or alcohol abuse, Scahill would be moved to another unit close by. DiLuca asserts that other employees laughed at her after this meeting, and essentially blamed her for the letter. On September 17, 1998, DiLuca received an anonymous note in the mail stating "everyone knows it was you and the red head." Plaintiff's Exhibit P.
DiLuca continued working with doctors in early 1999 on a medical diagnosis and treatment, and began taking some medication. A possible diagnosis of fibromyalgia surfaced. DiLuca shared this information with a few employees, and saw doctors more frequently. In August, 1999, DiLuca informed her new supervisor Grabko that Lohnes and others continued to make harassing comments, stating that they were all out to get her and that she wanted the harassment to stop. Grabko followed up with Lohnes, who claimed she was speaking to someone else when she made a particular remark. DiLuca agrees that Grabko never made any discriminatory comments. While work was slow, Grabko ensured DiLuca of her job security, and offered her a new work task, without realizing it was in Scahill's new area. Consequently, the move did not take place.
DiLuca's fibromyalgia was officially diagnosed by Dr. Heller, an arthritis specialist, in October, 1999, at which time DiLuca showed the doctor's letter to several employees and to her supervisor Grabko. Fibromyalgia, a physical impairment, is a chronic syndrome that causes pain and stiffness throughout the tissues that support and move the bones and joints. It is exasperated by stress. Dr. Barrett Affidavit, Plaintiff's Exhibit G. When later completing her MCAD filing, DiLuca reported that she was still able to perform the essential functions of her job at this point, around the time of her diagnosis. MCAD Complaint Attachment, Defendant Exhibit G. During the next few months, per DiLuca, the illness limited her ability to care for herself, and do manual tasks. She was tired, stiff and achy. In addition, her emotional condition limited her ability to think, concentrate and interact with others. Dr. Heller's November 9, 1999 report indicates DiLuca chose to pursue herbal medication, and not to pursue physiotherapy or medications for sleep or nonsteroidal drugs.
On February 2, 2000, DiLuca and Lohnes had a serious altercation, which ultimately resulted in DiLuca's going on leave. The two woman raised there voices, and exchanged obscenities. Visibly upset, DiLuca went straight to HR where she remained for three hours. During this time while very upset, DiLuca indicated she would like to kill and slap Lohnes. After an investigation, both women were sent home for the day without pay, with disciplinary action to follow. HR concluded that both women were at fault. The following day, February 3rd, DiLuca received a written warning, was put on eighteen month probation, and was informed that the company concluded she was not being harassed. DiLuca was told she would be fired immediately if she had another argument or swore at co-workers. DiLuca's threats against Lohnes were reported to the Beverly police. Lohnes was put on verbal warning for six months.
February 3rd or 4th, 2000 was the last day that DiLuca was present for work at CPI. DiLuca sought a medical leave of absence from CPI, effective February 7, 2000, on advice of her primary care physician Dr. Barrett. This leave was confirmed in writing by letter from HR back to DiLuca on February 8th. DiLuca was seen by her doctors several times over the following months. On April 20, 2000, DiLuca's psychiatrist, Dr. Goldberg, determined she was totally disabled due to depression. Further, on June 9, 2000, Dr. Goldberg completed an insurance disability form indicating DiLuca was still totally disabled due to depression, and was uncertain whether or not this was a permanent condition. He felt the condition was causally related to DiLuca's work. Then, eleven days later, on June 20, 2000, Dr. Barrett cleared DiLuca to return to work on July 5, 2000, with limited activity of not lifting more than 20 lbs., though factoring out her workplace stress. Barrett Affidavit, Plaintiff Exhibit G. DiLuca wrote to CPI on June 30, 2000 and informed them of her ability to return to work. However, she also stated that due to the harassment and failure to make reasonable accommodations for her, she would not be returning. Finally, on July 18, 2000, DiLuca told Dr. Barrett that she had informed CPI she would not return to her current position and had asked for a transfer. Given that there were no openings, she was not working. Barrett Medical Record, Plaintiff Exhibit J.
DiLuca filed an action with the Massachusetts Commission Against Discrimination (MCAD) on June 30, 2000. The MCAD Charge states DiLuca was discriminated against based on her handicap, indicated by the check in the handicap box. The box for national origin was not checked. Her attachment to the Charge indicated the severe emotional and verbal abuse she suffered by CPI employees was harassment, which eventually exacerbated her illness and brought about her depression. She also reported that CPI employee drinking at lunch on Fridays escalated the harassment on those days. Further, she alleged CPI did not intervene or stop the harassment, nor did they make accommodations for her illness. She states the discrimination and harassment extended from October, 1999 to February, 2000. The suit was filed in November, 2000.
DISCUSSION
The Court grants summary judgment where there are no genuine issues of material fact and where the moving party is entitled to summary judgment as a matter of law. Mass.R.Civ.P. 56(commonwealth); Cassesso v. Comm'r of Corr., 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and that the moving party is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrated the absence of a triable issue by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Kourouvacilis v. General Motors, Corp., 410 Mass. 706, 716 (1991); O'Sullivan v. Shaw, 431 Mass. 201, 203 (2000). "A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial." O'Sullivan, 431 Mass. at 203 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
1. National Origin Discrimination, G. L. c. 151B, § 4(1). To file suit under G. L. c. 151B for discrimination, an administrative charge must first be filed with the Massachusetts Commission Against Discrimination, thereby exhausting administrative remedies. G. L. c. 151B, § 5. Plaintiffs must appropriately identify their charge. 840 CMR 1.03. The purpose is to provide prompt notice to the employer, and to give opportunity for conciliation. Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). The scope of the ultimate law suit is limited to the allegations contained in the Charge. Id.
DiLuca's MCAD charge did not have the national origin box checked. Belonni v. Reservoir Nursing Center, 1 Mass. L. Rptr. 448, 1994 WL 879457 *4 (1994) (barring claim as appropriate box was not checked). Further, the attached MCAD complaint did not mention national origin. Silva v. Hit or Miss, 73 F. Supp.2d 39, 41-42 (D.Mass. 1999) (barring claim because charge was not discussed in the MCAD complaint, and the cause did not flow from it). DiLuca's opposition to this motion did not argue for the denial of summary judgment on this claim. Given that DiLuca did not meet the procedural requirements of c. 151B, and did not argue to save her national origin claims under Rule 56, they cannot stand.
Albeit the procedural problem, the Court finds no evidence of discrimination based on DiLuca's Italian ancestry.
2. Handicap Discrimination, G. L. c. 151B, § 4(16). To maintain a cause of action for handicap-based employment discrimination, the plaintiff must establish a prima facie case that includes proof that she is handicapped, is a qualified handicapped person, and has experienced an adverse employment action because of her handicap. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002). Massachusetts follows federal construction of the Americans with Disabilities Act in applying its own disability law. Wheatley v. American Tel. Tel. Co., 418 Mass. 394, 397 (1994). Compare, Labonte v. Hutchins Wheeler, 424 Mass. 813, 816 n. 5 (1997).
Relative to the third prong of the prima facie case, DiLuca claims she was subjected to a hostile work environment, which then resulted in a constructive discharge. In addition to the prima facie elements above, to establish a claim for hostile work environment, the plaintiff must also show that the objectionable "conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so." O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001); Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 412 (2001) (emphasizing the importance of the reasonable person standard). "Further, the offensive conduct must at a minimum be a recognizable form of disability discrimination." Ward v. Massachusetts Health Research Institute, 48 F. Supp.2d 72, 80-81 (D.Mass. 1999), overruled on other grounds, 209 F.3d 29 (2000).
The Court proceeds on the assumption that Massachusetts recognizes a claim for hostile work environment for handicap discrimination under 151B, § 4(16), though the Supreme Judicial Court has yet to confirm this interpretation. Ward v. Massachusetts Health Research Institute, 48 F. Supp.2d 72, 80 (D.Mass. 1999), overruled on other grounds, 209 F.3d 29 (2000).
The behavior of co-workers who are "unsociable and hard to get along with" does not, by itself, support a discrimination claim. Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 441 (1st Cir. 1997) (In the context of a hostile environment, sexual harassment claim). And, employers are under no duty to provide a stress free work environment. Pesterfield v. Tennessee Valley Authority, 941 F.2d 437, 442 (6th Cir. 1991). Nor does the law impose a general civility code for the workplace. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
DiLuca proffers roughly nine separate events of harassment spanning a five year period. Each of these events involves interpersonal conflict with another employee or supervisor; DiLuca provides no evidence that these events were anything more. There is no evidence that the comments pertained to or arose from an animus for her disabilities, whether it be fibromyalgia or depression. CPI has no responsibility to provide DiLuca with co-workers with whom she will have no interpersonal conflicts. Further, the record demonstrates that CPI reasonably responded to DiLuca's issues as they arose. See DeGrace v. Rumsfeld, 614 F.2d 796, 805 (1st Cir. 1980) (indicating employers who make good faith, feasible and reasonable efforts to combat discrimination will not be liable). They conducted investigations of conflicts that were brought to their attention, counseled employees after the conflicts, and moved other employees at least five times due to such conflicts with DiLuca. DiLuca's own admissions raise significant question, particularly relative to the events of February 2, 2000, regarding DiLuca's share of responsibility in causing these events.
The doctrine of continuing violation allows the court to anchor and validate claims based on earlier events which are technically outside the statute of limitations, providing the "alleged events are part of an ongoing pattern of discrimination," and at least one event is within the applicable limitations period. Cuddyer v. Stop Shop Supermarket Co., 434 Mass. 521, 532 (2001). The Court concedes DiLuca's claim of continuing violation, arguendo, as it is not determinative of the motion.
The following cases demonstrate other courts' assessment of discriminatory acts against individuals with depression. Rohan v. Networks Presentation LLC, 192 F. Supp.2d 434 (D.Md. 2002) (finding that plaintiff's single event of harassment survived dismissal, where her manager forced her to reveal to thirty cast members that she survived incest, was sexually abused by her father, suffered from depression, received treatment, and took medication, in order to avoid jeopardizing her employment); Ekstrom v. Cuyahoga County Comm. College, 150 Ohio App.3d 169, 181 (2002) (holding that plaintiff who suffered from depression and was terminated for poor performance and poor attitude at work, was not discriminated against due to her handicap, where she was able to perform her job duties following leave, wanted to transfer because she did not get along with her co-workers, and the employer was not obligated to accommodate a requested transfer based on the employee's personal desire to work in another area); Downey v. Charlevoix Count Bd. of County Rd. Comm'r, 227 Mich. App. 621, 629-31 (1998) (finding sufficient evidence to deny defendant's summary judgment motion, where plaintiff suffered from depression, and supervisor created hostile work environment by making regular, riding derogatory statements regarding plaintiff's depression and medication).
Viewing the facts in favor of DiLuca, as a matter of law, she has no reasonable expectation of proving an essential element of her c. 151B, § 4(16) claim, namely, that she suffered an adverse employment action by being subjected to a hostile work environment, based on recognizable forms of disability discrimination, that was objectively and subjectively offensive such that a reasonable person would find it hostile or abusive. Because the Court finds there is no reasonable expectation of proving discrimination or harassment, there can be no reasonable expectation of proving DiLuca's claim for constructive discharge. The Court finds there is also no basis to DiLuca's claim that she was discriminated against because CPI refused to provide her requested accommodation of stopping the harassment. 3. Coercion, G. L. c. 151B, § 4(4A). Section 4(4A) forbids anyone to "coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected" by chapter 151B, or to similarly coerce or interfere with another for "having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter." G. L. c. 151B, § 4(4A). DiLuca does no more than list this claim in her complaint. She has not articulated the basis of her argument, and, again, has not argued against CPI's summary judgment motion on this claim.
Constructive discharge is based on objective proof that the "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." GTE Products Corp. v. Stewart, 421 Mass. 22, 34 (1995).
Reasonable accommodations are the changes employers appropriately make to enable their handicapped employees to perform their job responsibilities. There is no obligation to make "substantial changes in the standards of the job." Dziamba v. Warner Stackpole LLP, 56 Mass. App. Ct. 397, 405 (2002). Neither is there a requirement to create a new position or wait indefinitely for the person to recover. Id. at 405-406.
DiLuca states that stopping the harassment is a reasonable accommodation which would enable her to do her job. However, because the Court finds that there was no harassment, there can be no such reasonable accommodation. Evans v. Federal Express Corp., 133 F.3d 137, 140-41 (1st Cir. 1998) (holding that an accommodation with an unlikely chance of success is not reasonable nor required).
4. Aide and Abet, G. L. c. 151B, § 4(5) . A claim for aiding and abetting another is premised on the existence of an underlying occurrence of discrimination, as a threshold to raising the question of another's individual liability for aiding and abetting. See Chapin v. Univ. of Mass. at Lowell, 977 F. Supp. 72 (D.Mass. 1997); Beaupre v. Cliff Smith Assoc., 50 Mass. App. Ct. 480, 494 (2000). Given that as a matter of law the Court finds there is no reasonable expectation of proving the underlying discriminatory act, there can be no claim under § 4(5).
5. Wrongful Termination in Violation of Public Policy. To succeed on a wrongful termination claim on any basis, one must be terminated by his or her employer, or suffer a constructive discharge. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 149 (1989); Hansen J.L. Hewwett Co., 53 Mass. App. Ct. 1114 (2002); Patriarca v. Center for Living and Working, Inc., 11 Mass. L. Rptr. 629, 2000 WL 1273371 (Civ. A. No. 990689) (Mass.Super.Ct., Fecteau, J., May 30, 2000). In this case, DiLuca argues she was justified in pursuing and being concerned about the employee lunch-time drinking on Fridays, based on public policy. She then asserts that her co-workers retaliated against her for raising this issue by harassing her. DiLuca, however, never articulates the connection between this alleged retaliation and a specific wrongful discharge, either in her complaint or in her opposition to summary judgment.
DiLuca invested significant effort arguing that there is a public policy exception under which her claim arises, but then never articulated the salient element of wrongful termination.
On one hand, if DiLuca infers this retaliatory harassment was part of the hostile work environment discussed earlier, the Court has already disposed of the claim. In the alternative, if this is a separate claim, it must fail because she never specifies the wrongful termination event. More importantly, there is no evidence of retaliation or termination. As discussed earlier, the summary judgment record reflects a series of interpersonal conflicts between co-workers, but not retaliation. DiLuca gave notice on June 30, 2000 that, though Dr. Barrett had cleared her to return to work, she would not be returning to her prior position. DiLuca resigned; she was not terminated.
The anonymous note indicating others knew that it was DiLuca who inferably sent the first anonymous letter to CPI about the lunchtime drinking, even if it could somehow be factually tied to an employee, does not suffice to establish a prima facie case of retaliation.
6. Infliction of Emotional Distress. DiLuca alleges that the harassment she suffered supports a claim of either intentional or negligent infliction of emotional distress. Tetrault v. Mahoney, Hawkes Goldings, 425 Mass. 456, 466 (1997); Sullivan v. Boston Gas Co., 414 Mass. 129, 132 (1993); Payton v. Abbott Labs, 386 Mass. 540, 555-57 (1982). Under both claims, the plaintiff must demonstrate a causal relationship between the defendant's actions and the plaintiff's harm. Tetrault, 425 Mass. at 466; Sullivan, 414 Mass. at 132. It must be shown that the defendant's actions caused the distress, such that the actions were a moving force in causing the harm, thus forming an affirmative link. Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 492-93 (2000); Woodley v. Town of Nantucket, 645 F. Supp. 1365, 1379 (1986).
The record in this case is clear that DiLuca was suffering emotional distress, and that much of her distress arose from her interactions at work. However, there is no evidence of a legal causal link between the two, such that DiLuca's stress was caused by the employees' actions, and not some other factor such as her own disposition. As a matter of law, there is insufficient evidence to support a prima facie case for either form of infliction of emotional distress. DiLuca has no reasonable expectation of proving the required element of causation for this claim.
In the alternative, CPI also argues that this claim is jurisdictionally barred by the Workers' Compensation Act. G. L. c. 152, § 24. In response, DiLuca argues that the employees' actions "were in no way within the scope of employment." Plaintiff's Opposition to Summary Judgement, at 29. Without holding on the issue, it is disingenuous of DiLuca to now argue that the actions of CPI and its employees were outside of the scope of employment, when the basis of c. 151B is employer liability. G. L. c. 151B, § 4(1) and (16).
CONCLUSION
In assessing the defendant's motion for summary judgment, the court has construed the record liberally in favor of the plaintiff. This review leads the court to conclude that she has no reasonable expectation of proving the essential elements of her claims. For the foregoing reasons, CPI's motion for summary judgment with respect to all of the plaintiff's claims is ALLOWED.
___________________________ Peter W. Agnes, Jr. Justice of the Superior Court
Date: July 25, 2003