McCue Corporation, No

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Commonwealth of Massachusetts Superior Court CIVIL ACTION ESSEX, SSAug 4, 2003
NO. ESCV2002-00127 (Mass. Cmmw. Aug. 4, 2003)

NO. ESCV2002-00127

August 4, 2003


Plaintiff, Jennifer Kuczun ("Kuczun") brought this action against defendants after her employment with McCue Corporation ("McCue") was terminated. Kuczun's four count complaint alleges that the defendants terminated and otherwise discriminated against her because of an alleged handicap (Counts I and IV). Kuczun also brought claims for intentional and negligent infliction of emotional distress (Counts II and III). This matter is now before the court on defendant's motion for summary judgment. For the following reasons, the defendant's motion is ALLOWED.


The following facts are either undisputed or considered in a light most favorable to the plaintiff. McCue hired Kuczun as a receptionist in 1996 and in 1998 she was given a position in McCue's marketing department. Kuczun's supervisors repeatedly documented her tardiness, absenteeism, immaturity, and lack of professionalism. Kuczun's supervisor in the marketing department, Perilli, was particularly unhappy with Kuczun's work performance. He believed she had a poor work ethic and lacked maturity. Perilli was considering terminating Kuczun in 1999, prior to his departure from the company.

Upon Perilli's departure in 1999, defendant Daniel Ballou ("Ballou") became the head of the marketing department. Kuczun and Ballou experienced immediate difficulty working together. On one occasion, Kuczun became particularly upset with Ballou because she believed he required her to set unrealistic performance goals and deadlines in her performance review. Kuczun became so upset that defendant Christina Sanchez ("Sanchez"), who was Human Resources Manager, had to be paged out of a meeting in order to calm Kuczun who was crying in front of new hires.

During her employment in the marketing department, Kuczun continuously failed to meet deadlines and accomplish goals. Additionally, Kuczun had difficulty working with many of the McCue employees and outside business contacts.

On May 14, 2000, Kuczun injured her neck and back in a motor vehicle accident. She sought treatment for her injuries on the following day and was diagnosed with a strain or sprain of her neck and back. The treating physician noted that the "range of motion in her neck was full", that there was "no acute distress" and that her "general mobility [was] minimally impaired." He further described her condition as "good" and placed no restrictions on Kuczun, but excused her from work for two or three days.

On May 16, 2000, Kuczun sought treatment from a chiropractor, who also diagnosed her with a strain or sprain and noticed her prognosis was "good." Kuczun returned to work on May 17, 2000.

Kuczun saw her primary care physician on May 22, 2000. He noticed that Kuczun had no overt injuries and that her x-rays were negative. He described Kuczun as having back and neck discomfort, but did not place restrictions or limitations on her activities.

Kuczun later complained to her chiropractor about pain and he excused her from work from May 14, 2000 through June 5, 2000. Kuczun, however, worked either part-time or full time from May 17 through May 25. She returned to work on June 5, 2000 and continued to work until her termination in September.

From June through September, Kuczun's physician and chiropractor placed no written restrictions or limitations on her. Kuczun, however, reported that she was instructed to avoid heavy lifting and requested assistance with moving boxes. Kuczun admits this accommodation was met. McCue further permitted Kuczun to leave work early for doctors' appointments and to lie down at work when she wanted to. McCue also purchased a back support for Kuczun and gel pads to ret her wrists on while working on her computer.

On September 21, 2000, Kuczun's employment was terminated. Although Kuczun claims she was terminated because of a back injury, McCue cited poor work performance and inability to meet goals and deadlines as reasons for Kuczun's termination.


This Court must consider the defendants' motion under the standard set forth in Mass.R.Civ.P. 56(c). Summary Judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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." See also, Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassasso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of demonstrating affirmatively that there is no issue of material fact on every relevant issue. Penderson v. Time, Inc., 404 Mass. 14, 17 (1989).

Where the party moving for summary judgment does not have the burden of proof at trial, that party's summary judgment burden may be met either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial Kourouvacilis, 410 Mass. at 716. "If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat [the motion]." Penderson v. Time, Inc., supra; Madsen v. Erwin, 395 Mass. 715, 719 (1985). In this case, not only have defendants established the absence of a triable issue, but Kuczun has also failed to respond with specific facts in order to defeat the defendants' motion.

1. Handicap Discrimination, G.L.c.151B, § 4(16). Counts I and IV of Kuczun's complaint allege that her termination was based upon handicap discrimination and, as such, was unlawful. To maintain a cause of action for handicap-based discrimination under § 4(16), Kuczun must establish a prima facie case that (1) she is, in fact, a "handicapped person" and a "qualified handicapped person" within the meaning of the law; (2) that she could perform the essential functions of her job, with or without reasonable accommodations, and; (3) that she experienced an adverse employment action as a result of a handicap. Russell v. Cooley Dickenson Hosp., Inc., 437 Mass. 443, 449 (2002). Kuczun had no reasonable expectation of proving these elements.

As a matter of law, Kuczun is not a "handicapped person" and thus cannot be regarded as a qualified handicapped person. In order to establish her status as a "handicapped person" Kuczun must establish that her back and/or neck injury "substantially limits one or more major life activities." G.L.c. 151B, § 1(16). Kuczun's injury does not constitute an impairment that would "substantially" limit a major life activity. At most, Kuczun suffered mild discomfort. She was able to work and not given any written restrictions or limitations by any of her treating physicians.

Moreover, Kuczun reported her condition had improved after her termination and that she experienced only intermittent discomfort. Kuczun's four month injury does not rise to the level of a handicap, as she did not suffer long term impairment under disability law.

Massachusetts closely mirrors the federal construction of the Americans with Disabilities Act ("ADA") in applying its own disability law. Labonte v. Hutchins and Wheeler, 424 Mass. 813, 816 n. 5 (1997). Applying this standard, Hallgren v. Integrated Financial Corp., 42 Mass. App. Ct. 686 (1997) held that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." Id. at 688. Further, a "temporary back injury of approximately eight months [is] not [a] handicap for the purposes of the Rehabilitation Act." Id. at 688, citing Paegle v. Department of the Interior, 813 F. Supp. 61, 64-65 (D.D.C. 1993), see also Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001) (employee who suffered five back injuries between 1987 and 1993, which resulted in protruding and degenerative discs, required him to miss approximately 8.5 months of work, and left him with various limitations upon his return to work, was not substantially limited in any major life activity due in part to the temporary nature of his injuries). Kuczun's injury clearly did not result in a legally recognized handicap as required to establish a prima facie case under G.L.c. 151B, § 4(16).

Additionally. Kuczun will be unable to establish that she was able to perform the essential functions of her employment, with or without reasonable accommodations. Kuczun received not only those accommodations which she requested, but also additional accommodations and assistance. Evidence was submitted that Kuczun was unable to perform the essential functions of her employment, not only after her injury, but prior to it as well. From the beginning of her employment through her termination, Kuczun failed to meet deadlines, accomplish goals, and work well with other employees. It was McCue's opinion that she exhibited poor work ethic and lacked professionalism.

Thus, even if Kuczun could establish a recognized handicap, she will be unable to prove that she was terminated due to her injury. It is clear, from the summary judgment record, that Kuczun's termination was based solely upon her poor work performance and that her injury had no bearing, at all, upon McCue's decision to terminate her employment.

Kuczun is unable to establish the essential elements to recover for handicap discrimination. Accordingly, summary judgment is appropriate on Counts I and IV.

2. Intentional and Negligent Infliction of Emotional Distress. Kuczun's claims against McCue for intentional and negligent infliction of emotional distress are barred by G.L.c.152, the Worker's Compensation Act. The Worker's Compensation Act provides the exclusive remedy for personal injuries arising out of the course of employment, and includes emotional distress claims. Doe v. Purity Supreme, Inc., 422 Mass. 563 (1996); Green v. Wyman-Gordon, Co., 422 Mass. 551 (1996). Therefore, Kuczun's claims against McCue are barred and must be dismissed.

Kuczun's claims against Ballou and Sanchez are also barred by the Worker's Compensation Act. "An employee injured in the course of his employment by the negligence of a fellow employee may not recover from that employee if he was also acting in the course of his employment." Saharceski v. Marcure, 373 Mass. 304, 306 (1997). And "a claim against a fellow worker for the commission of an intentional tort will be barred by the exclusivity clause of the Worker's Compensation Act, G.L.c. 152, § 24, if committed within the course of the worker's employment and in the furtherance of the employer's interests." Faruso v. Blakely, 40 Mass. App. Ct. 120, 123 (1996). See, O'Connell v. Chasdi, 400 Mass. 686, 690-691 (1987); Catalano v. First Essex Bank, 37 Mass. App. Ct. 377, 381-382 (1994).

Any conduct complained of by Kuczun arose out of and in the course of her employment and out of and in the course of Ballou's and Sanchez' employment. Therefore, Kuczun's claims against Ballou and Sanchez are also barred and must be dismissed. Accordingly, summary judgment is appropriate on Counts II and III.


For the foregoing reasons the defendants motion is ALLOWED.

________________________________ Hon. Peter W. Agnes, Jr. Justice of the Superior Court

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