Breach of Contract Cases

Ellen L. Patriarca vs. Center for Living & Working, Inc., & others., Worcester. September 4, 2002. November 14, 2002. Present: Marshall, C.J., Greaney, Spina, Cowin, Sosman, & Cordy, JJ. Attorney at Law, Attorney-client relationship, Communication with represented party. Employment, Termination. Protective Order. This court vacated a protective order that had been issued by a Superior Court judge, on the basis of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), barring counsel for a discharged employee from any ex parte contact with former or future employees of the employer on matters concerning their former employment or the pending litigation unless that contact were made with leave of court or of opposing counsel, where the former employees in question were neither actually represented by the employer’s counsel nor the type of employee covered by rule 4.2, as construed in Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002). [135-141] Civil action commenced in the Superior Court Department on February 23, 1999. A motion for a protective order was heard by Francis R. Fecteau, J. After an interlocutory appeal was authorized in the Appeals Court by Charlotte A. Perretta, J., the Supreme Judicial Court granted an application for direct review. Denise A. Chicoine (.Edward S. Englander with her) for the plaintiff. Gary H. Goldberg for the defendants. The following submitted briefs for amici curiae: Thomas F Reilly, Attorney General, & Hilary Weinert Hershman, Laura Maslow-Armand, & Louisa M. Terrell, Assistant Attorneys General, for the Attorney General. John P. McLafferty & Shannon A. McAuliffe for Associated Industries of Massachusetts. Loretta M. Smith for New England Legal Foundation. Donald K. Stern, United States Attorney, Roberta Thomas Brown, Assistant United States Attorney, & Thomas Helper, of Baltimore, for the United States Attorney for the District of Massachusetts & another. Douglas K. Sheff, John J. St. Andre, Jodi M. Petrucelli, & Kimberly E. Winter for The Massachusetts Academy of Trial Attorneys. Dahlia C. Rudavsky, Ellen J. Messing, Nadine Cohen, & Jane K. Alper for National Employment Lawyers Association, Massachusetts Chapter, & others. Robert Bailey, executive director of the Center for Living & Working, Inc. (center), and individual members of the board of directors of the center. The claims against the individual board members were dismissed, and the correctness of that ruling is not before us. We acknowledge the amicus briefs filed by the Attorney General; National Employment Lawyers Association (Massachusetts chapter), Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association, and Disability Law Center; Associated Industries of Massachusetts; New England Legal Foundation; The Massachusetts Academy of Trial Attorneys; and the United States Attorney for the District of Massachusetts and the United States Department of Justice. Spina, J. A judge in the Superior Court issued a protective order on the basis of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), barring counsel for the plaintiff, Ellen L. Patriarca, from any ex parte contact with former or future employees of the defendant, the Center for Living & Working, Inc. (center), on matters concerning their former employment or the pending litigation unless that contact were made with leave of court or of opposing counsel. A single justice of the Appeals Court granted Patriarca’s petition for interlocutory review and authorized an appeal to a panel of the Appeals Court. We granted the plaintiff’s application for direct appellate review. Because the former employees in question are neither actually represented by the center nor the type of employee covered by rule 4.2, as construed in Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002) {Messing), the protective order must be vacated. We do not reach the broader question of the applicability of rule 4.2 to former employees because, based on the record as presently developed, the former employees in question would not be covered by the rule even if they were still employed by the center. See note 8, infra. Background. Patriarca filed suit against the center, its board of directors, and Robert Bailey, executive director of the center, alleging wrongful termination from her employment as a registered nurse supervising the center’s personal care attendant program. In the course of discovery, Patriarca stated in her answer to an interrogatory that she had contacted four former employees of the center and had “discussed events which had occurred while we were both employed at [the center].” The defendants filed a motion for a protective order seeking to bar Patriarca and her counsel from having ex parte contact with the center’s former employees on matters concerning their employment and the pending litigation. A judge in the Superior Court, who did not have the benefit of our decision in the Messing case, concluded that rule 4.2 may prohibit ex parte contact with former employees. He found that, in this case, the statements of former employees could be potentially admissible against the center, or that the former employees’ acts or omissions could be imputed to the center. He issued an order barring Patriarca’s counsel from “contacting any former employees of the defendant corporation on matters concerning their former employment and this litigation unless defense counsel is present or permission is granted from this [cjourt or from opposing counsel.” The defendants argue that rule 4.2 prevents ex parte contact with any former employee without first obtaining a ruling from the court in question or permission from the former employer’s counsel. They claim that this degree of oversight is necessary because former employees may be able to divulge confidential or privileged information, and that a judge should be the gatekeeper by deciding in the first instance that the ban should be enforced to the extent to which a former employee’s statements, made during the employment relationship and within the scope of employment, might be admissible in evidence in an action against the employer. Patriarca argues that a blanket no-contact rule would provide institutional defendants with the power to control any information in the possession of anyone who ever worked at that institution. See Messing, supra at 358 (“Prohibiting contact with all employees of a represented organization restricts informal contacts far more than is necessary to [protect attorney-client privilege, or prevent clients from making ill advised statements without the counsel of their attorney]”); Niesig v. Team I, 76 N.Y.2d 363 (1990) (blanket ban rejected because it would exact high price and be unnecessary to achieve objectives of rule). She suggests that it is the rare case where a former employee would be in a position to make a statement that could bind the former employer and urges the court to place the burden of showing that a former employee might be in a position to make such admissions on the former employer. In the interest of promoting the search for the truth and furthering informal, efficient, and inexpensive information gathering at the discovery stage of a proceeding, she asks the court to allow broad access to former employees by opposing counsel, “subject to appropriate conditions.” Discussion. A threshold question is whether a particular employee is actually represented by corporate counsel. An organization may not assert a preemptive and exclusive representation by the organization’s lawyer of all current (or former) employees as a means to invoke rule 4.2 and insulate them all from ex parte communication with the lawyers of potential adversary parties. See Messing, supra at 356-357. The American Bar Association Committee on Ethics and Professional Responsibility has stated that Model Rule 4.2, on which our rule 4.2 is based, “does not contemplate that a lawyer representing the entity can invoke the rule’s prohibition to cover all employees of the entity, by asserting a blanket representation of all of them.” ABA Formal Op. 95-396, § VI (1995). See Carter-Herman v. Philadelphia, 897 F. Supp. 899, 903 (E.D. Pa. 1995) (rejecting “the notion that every city employee is automatically a represented party simply by virtue of his or her employment without any initiative on the part of the employee to obtain legal help from the City”); Brown v. St. Joseph County, 148 F.R.D. 246, 250 (N.D. Ind. 1993) (“no attorney has the right to appear as counsel for another without the latter’s consent . . . and it follows that an attorney cannot properly hold himself out as representing a person who has not agreed to the representation” [citation omitted]). Thus, the center may not invoke rule 4.2 to claim that all current and former employees are represented, and therefore the protective order is overbroad. Any analysis must be employee specific. The center has made no factual showing that the former employees in question are actually represented by the center’s (or their own personal) counsel. We turn to the rule in the Messing case to determine whether the employees in question may be considered represented for purposes of rule 4.2. The purpose of rule 4.2 is to “protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney.” Messing, supra at 358. However, we recognized that prohibiting ex parte contact with all employees of a represented organization went beyond the purpose of the rale, which was not to “protect a corporate party from the revelation of prejudicial facts.” Id., quoting Dent v. Kaufman, 185 W.Va. 171, 175 (1991). We sought a balance between the need to discover relevant facts and the competing need to protect the attorney-client relationship. Id. at 358-359. We construed rule 4.2 (and comment [4] thereto) to prohibit an attorney from having ex parte contact only with certain employees of an organization, namely, those “who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the corporation to make decisions about the course of the litigation.” Id. at 357. As construed, the mle allows “ex parte interviews without prior counsel’s permission when an employee clearly falls outside of the rule’s scope.” Id. at 359. Patriarca was employed by the center as a registered nurse whose job responsibility was to manage the personal care attendant program, a program that provides persons who have permanent or chronic disabilities with assistance to allow them to live independently in their community instead of being institutionalized. See 130 Code Mass. Regs. §§ 422.416-422.423 (1999). Two of the former employees with whom she made contact had been occupational therapists. A third was an assistant community department manager-supervisor and skills trainer. These three had worked closely with Patriarca and Bailey at the center. The fourth had been a business manager at the center and had witnessed the events which led to Patriarca’s separation from the center. These four former employees of the center do not come within any category of employee covered by rule 4.2. See Messing, supra at 357. None of them is alleged to have committed the wrongful acts at issue in the litigation. There is no evidence, under their job descriptions or otherwise, that any of them had authority on behalf of the corporation to make decisions about the course of the litigation. The question whether any of them exercised managerial responsibility in the matter, however, is less obvious. We said in Messing that employees with managerial responsibility in the matter “include[] only those employees who have supervisory authority over the events at issue in the litigation.” Id. at 361. Patriarca alleges that Bailey pressured her to evaluate individuals who were not eligible for personal care services, to falsify documents to make it appear that certain individuals were eligible for personal care services, and finally to present false information to the Department of Medical Assistance by recommending more services for clients than was required. Her surviving claims against the center allege breach of contract and wrongful termination in violation of public policy. Thus, to find that the former employees in question exercised managerial responsibility in the matter, we must determine either that they were in a position to direct Bailey to conduct himself as alleged, or to cause the center to respond as alleged. The center makes no claim that the occupational therapists and the skills trainer had any such managerial responsibility. The fourth employee, described by the center as “Director of PCA/Fiscal Intermediary Services and former Business Manager,” was allegedly “a ‘management’ witness to the [plaintiff’s separation which ultimately led to this [c]omplaint,” and “was a central part of [the center’s] management team.” Being a “witness” to the plaintiff’s separation does not establish that the fourth employee was involved in supervising, planning, or directing the events and practices that led to this litigation. Based on the record before the motion judge, there is no basis to conclude that the fourth employee “exercise[d] managerial responsibility in the matter” (emphasis added). Id. at 357. Subject to the caveat just discussed, none of the four former employees in this case came within a protected category of employee identified by the Messing case while she was employed by the center. Thus, none would have been protected from ex parte contact while an active employee of the center. A change in status from current to former employee does not change the fact that each falls “outside of the rule’s scope.” Messing, supra at 359. They are not protected by rule 4.2 from ex parte contact by Patriarca’s counsel. In making any ex parte contact with these former employees, Patriarca’s counsel must, of course, be assiduous in meeting other ethical and professional standards found outside rule 4.2. The center argues that each of these four employees was subject to a written confidentiality agreement and that the kind of information that Patriarca’s counsel would seek during ex parte interviews pertains to the practices of the center and is of the type covered by those confidentiality agreements. The text of the agreements, however, shows only that they are designed to protect the consumers’ and employees’ medical and personal information, having nothing to do with the interests that rule 4.2 was designed to protect. The confidentiality of this information is sufficiently protected if the names of any individual patients are not disclosed. See Reproductive Servs., Inc. v. Walker, 439 U.S. 1307 (1978) (by deleting names of patients from medical records sought in discovery, patients’ privacy would be adequately protected); Williams v. Buffalo Gen. Hosp., 28 A.D.2d 777, 778 (N.Y. 1967) (claimant who wished to obtain medical records of patients on specific ward allowed to do so, without necessitating revelation of patients’ names). The question of the general applicability of rule 4.2 to former employees is one we need not address because, on the facts presented, the former employees in question would not have been protected, even while employed, from ex parte contact by rule 4.2. The majority of courts that have decided this issue have concluded that former employees, for the most part, do not fall within the constraints of rule 4.2. This is a question that invites input from the organized bar through the rule making process. The protective order issued by the Superior Court is vacated. The case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered. Rule 4.2 of Massachusetts Rules of Professional Conduct, 426 Mass. 1402 (1998), entitled, “Communication with person represented by counsel,” states: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” The protective order also stated that it was “applicable only to the plaintiffs counsel and not to the plaintiff herself [because] [r]ule 4.2 is inapplicable to parties.” See Mass. R. Prof. C. 4.2. The center argues that allowing the plaintiff herself to contact former employees could violate Mass. R. Prof. C. 8.4 (a), 426 Mass. 1429 (1998), and that the purpose of rule 4.2 would be undermined. See Mass. R. Prof. C. 8.4 (a) (“It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another”). Because the center did not seek interlocutory review of that portion of the order, it is not properly before us and we need not consider the question. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 43 n.5 (1977). However, we note that there is no claim that Patriarca’s counsel did anything prohibited by rule 8.4 (a). If the person is unrepresented, then counsel should be guided by Mass. R. Prof. C. 4.3, 426 Mass. 1404 (1998), “Dealing with unrepresented person,” which states: “(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding, (b) During the course of representation of a client, a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.” See Restatement (Third) of the Law Governing Lawyers § 103 comment e (2000). As set forth in comment [4] to rule 4.2, if the person is in fact represented by his or her own counsel, then it is that counsel’s permission that must be obtained prior to ex parte contact. DaRoza v. Arter, 416 Mass. 377, 381-382 (1993) (setting out circumstances in which implied attorney-client relationship can arise). At the time Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002), was decided, comment [4] to Mass. R. Prof. C. 4.2 stated: “In the case of an organization, this [rjule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having managerial responsibility on behalf of the organization with regard to the subject of the representation, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this [rjule. Compare [rjule 3.4(f).” After the Messing decision, effective June 5, 2002, comment [4] was amended by 437 Mass. 1303 (2002): “In the case of an organization, this [rjule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation. If an agent or employee of the organization i

John A. Dziamba vs. Warner & Stackpole LLP & others. No. 00-P-1870. Middlesex. July 17, 2002. - November 8, 2002. Present: Cypher, Kass, & Cowin, JJ. Rules of the Superior Court. Practice, Civil, Summary judgment. Anti-Discrimination Law, Termination of employment, Handicap, Age, Sex. Employment, Retaliation. Contract, Interference with contractual relations. A Superior Court judge, in reviewing materials submitted under Superior Court Rule 9A(b)(5) (1998) by a plaintiff responding to a defense motion for summary judgment, properly determined that the plaintiff failed to adhere to the requirements of that rule and properly took as admitted facts to which the plaintiff had not made a response that complied with the rule. [398-401] A Superior Court judge correctly allowed a defense motion for summary judgment on a complaint claiming that the termination of the plaintiff’s employment as a lawyer by the defendant law firm was the product of handicap, age, and gender discrimination, where the plaintiff failed to demonstrate that he was capable of performing the essential functions of the position involved, that file law firm failed to make a reasonable accommodation to his disability, or that his discharge was based on age or gender [404-407]; similarly, the judge properly granted summary judgment in favor of the defendant on the plaintiff’s claims of breach of contract, breach of the covenant of good faith and fair dealing, wrongful termination, and intentional and negligent infliction of emotional distress, all of which were based on, or subsumed by, the discrimination claims [407, 409]. On a complaint claiming that the termination of the plaintiff’s employment as a lawyer by the defendant law firm was the product of handicap, age, and gender discrimination, a Superior Court judge properly determined that the record lacked evidentiary support for a claim of retaliatory conduct by the employer [407], or for a claim that the employer tortiously interfered with advantageous business relations between the plaintiff and a client [407-409]. Civil action commenced in the Superior Court Department on January 23, 1997. The case was heard by Judith Fabricant, J., on a motion for summary judgment, and motions for postjudgment relief were heard by her. James C. Sturdevant, of California, for the plaintiff. Alan D. Rose for the defendants. Earned partners of Warner & Stackpole, and a successor firm, Kirkpatrick & Lockhart LLR Kass, J. On the basis of substantial evidentiary submissions, a judge of the Superior Court allowed a defense motion for summary judgment. That resulted in dismissal of John A. Dziam-ba’s complaint that the termination of his employment as a lawyer by Warner & Stackpole LLP (W&S), a law firm, was the product of handicap, gender, and age discrimination. The amended complaint also presented claims of tortious interference with prospective business advantage and unlawful retaliation against Dziamba because he asserted his rights. The amended complaint contained other counts, e.g., libel and breach of fiduciary duty, that Dziamba does not press on appeal. We affirm. 1. Judge’s comments and ruling on plaintiff’s submission under Superior Court Rule 9A(b)(5). We have the assistance of a careful, thoughtful, and detailed memorandum of decision from the Superior Court judge who considered the materials and arguments on the motion for summary judgment. She made comments and rulings concerning the plaintiff’s (as the party opposing summary judgment) statement pursuant to Superior Court Rule 9A(b)(5) (1998) that raise a threshold issue about the consequences of failure to comply with that rule. Rule 9A(b)(5) requires that a motion for summary judgment “be accompanied by a concise statement, in consecutive numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits and a statement of the legal elements, with citations to supporting law, of each claim upon which summary judgment is sought. . . . “Each opposition to [the motion] shall include a response, using the same paragraph numbers, to the moving party’s statement of facts as to which the moving party claims there is no genuine issue to be tried, in consecutive numbered paragraphs, a concise statement of any additional material facts as to which the opposing party contends there is a genuine issue to be tried, with page or paragraph references to supporting pleadings . . . .” Rule 9A(b)(5) is an “anti-ferreting” rule designed to assist a trial judge in the all-too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge. See, e.g., AM. Capen’s Co. v. American Trading & Prod. Corp., 202 F.3d 469, 471 n.2 (1st Cir. 2000). In accordance with the rule, the defendant, the party moving for summary judgment, filed an eighteen-page statement consisting of seventy-nine short numbered paragraphs, each setting forth as undisputed a single subsidiary fact or a bundle of closely related subsidiary facts, with citation to evidence in the record supporting that assertion. For example: “1. Plaintiff John A. Dziamba (‘Dziamba’) a litigation attorney, worked at W&S from July 1986 until July 7, 1995. (Affidavit of Henry T. Goldman (‘Goldman Afif.’], f 3.” The defendant added a six-page compilation of concise statements of principles of law, with citation of authority, as to each of the thirteen counts in the amended complaint. Dziamba’s responsive statement under rule 9A(b)(5) runs seventy-nine pages, the first sixty-nine of which deal with facts that the plaintiff purports to dispute. The motion judge observed that the plaintiff’s statement ignored the requirements of rule 9A(b)(5) and defeated its anti-ferreting purpose. The judge was put to the burden of ferreting through the plaintiff’s rule 9A(b)(5) statement to identify what facts asserted by the defendant were in fact controverted. For example, to the simple fact of defendant’s first statement, that Dziamba worked as a litigation attorney for W&S from July, 1986, to July 7, 1995, the plaintiff’s response was: “Disputed.” There follow three and one-half pages that set out what a successful, capable, imaginative, and productive lawyer Dziamba was at W&S. That was not an atypical response. That Dziamba was a litigation lawyer there for nine years was never controverted; i.e., it was not disputed. The very next statement by the moving party, consisting of five lines, was met with a response of eight and one-half pages which, in the end, did not controvert the facts stated by the moving party. The third paragraph of rule 9A(b)(5) provides: “For purposes of the motion for summary judgment, facts contained in a statement described in the first paragraph hereof shall be deemed to have been admitted unless controverted in the manner set forth in the second paragraph hereof.” Such was the failure of the plaintiff’s responsive statement to adhere to the requirements of rule 9A(b)(5), the motion judge ruled, that she took as admitted all seventy-nine paragraphs of W&S’s statements of fact save one: paragraph number thirty-five. Paragraph thirty-five stated that Dziamba worked at Davis, Malm & D’Agostine from July, 1995, until March, 1996, when he was terminated by that firm. Here the plaintiff’s response was crisp and on target. It said: “Dziamba was not terminated by Davis, Malm. . . . Moreover, the terms of plaintiff’s separation from any subsequent employer are irrelevant.” While possibly relevant, the circumstances of the plaintiff’s leave taking from Davis, Malm were certainly not material to the questions before the judge on summary judgment, as she noted. On the basis of our review of the record, there were other instances in which the plaintiff’s response placed assertions of fact in dispute, but those facts were not material ones. It would unreasonably lengthen this opinion were we to proceed paragraph by paragraph through the parties’ rule 9A(b)(5) statements to illustrate the plaintiff’s compliance or noncompliance with the rule. We think the judge fairly characterized the plaintiff’s response when she observed that factual assertions were buried deeply in argument and that the way factual asser-tians were woven into argument made it unnecessarily and unreasonably difficult to identify which facts were genuinely in dispute. The plaintiff challenges the rule-making authority of the Superior Court to require submissions other than those required by Mass.R.Civ.P. 56, 365 Mass. 824 (1974), and more particularly to take as admitted facts to which the plaintiff has not made a response that complies with the rule. Decisions based on analogous local anti-ferreting rules in United States District Courts support the action taken by the motion judge. Adoption of an anti-ferreting rule is an appropriate exercise by a trial court of case management discretion. It is a pragmatic and reasonable response to the propensity of lawyers to file literally mounds of affidavits, depositions, interrogatories, and depositions in support of, or in opposition to, summary judgment. Both formulation of such rules and administering them in a fashion so that they have bite find support in the cases. See Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 931-932 (1st Cir. 1983); Rivas v. Federacion de Asociaciones Pecuarias de P.R., 929 F.2d 814, 816 n.2 (1st Cir. 1991); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996); A.M. Capen’s Co. v. American Trading & Prod. Corp., 202 F.3d at 472; Ruiz Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000). The judge acted within her discretion in taking as admitted those facts asserted by the moving party (W&S) that were not disputed by the party opposing the motion for summary judgment (Dziamba), in accordance with the rule. Although the action that the judge took under rule 9A(b)(5) was fully warranted, she added suspenders to that belt by independently “review[ing] the evidentiary materials submitted by the plaintiff, and . . . considering], in the light most favorable to the plaintiff [i.e., the nonmoving party], those additional facts that [the court] deems material, and that are supported by admissible evidence . . . .” 2. Facts. We have also combed the record and now set forth the material facts that, without weighing the evidence, are not disputed. Dziamba was first admitted to the bar in Connecticut in 1969. He joined W&S in the status of “counsel” in July, 1986. At that time, lawyers at W&S were divided into four categories: associate, counsel, nonequity partner, and partner. Dziamba’s area of professional concentration was litigation. Effective January 1, 1990, Dziamba became a nonequity partner. This meant that W&S held him out to the world as a partner, although internally he was not required to maintain a capital account, could not attend partnership meetings except by invitation, did not share in the partnership’s profits and losses (a nonequity partner’s compensation was set by the firm’s executive committee), and did not have the benefit of the partnership agreement procedures involving the involuntary withdrawal of partners. On January 10, 1991, W&S’s executive director recommended to the firm’s executive committee that, to cut costs, they should discharge certain lawyers. Dziamba was among those identified as expendable. In November, 1991, Dziamba applied for full partnership status but, after meeting with the executive committee, withdrew his application. He did not receive a compensation increase for 1992, W&S’s executive committee having decided his performance did not warrant it. During this period, the administrative partner of W&S was Henry Goldman, and the administrator of the litigation department was Joseph Leghorn. Those two met with Dziamba on March 5, 1992, in Dziamba’s office. They informed him of the decision not to increase his compensation and of the executive committee’s general concerns about his progress at W&S. There was a perception, they told Dziamba, that he had not progressed well in originating clients and that other lawyers in the litigation department were reluctant to assign matters to him because they thought he was wont to spend more time on cases than could be billed. Goldman and Leghorn told Dziamba that he needed to market himself inside and outside of the firm. In six months, they informed him, the executive committee would review the situation. At that March 5 meeting, Dziamba said that he had not been feeling well and had not been sleeping well. From what Goldman and Leghorn had said to him, Dziamba felt as if he had been fired. After the meeting, Dziamba left the office. He was suffering from what in the weeks following was diagnosed as major recurrent depression. Treatment for that illness requires medication and, from time to time, change in the medication. Dziamba told Goldman about his illness in a telephone call on March 26, 1992, and in more detail when he returned to work on a part-time basis in April, 1992. When Goldman learned about Dziamba’s clinical problem he told him to take care of himself and to take the time needed to get better. The firm would see that his cases were covered. Until Dziamba’s call of March 26, 1992, partners at W&S had not known that Dziamba was suffering from an illness that was periodically disabling. The necessary altering and experimenting with his medications, from time to time, made Dziamba, as he described it to Goldman several years later in 1994, feel he “was in molasses.” After Dziamba came back to work in April, 1992, there were periodic meetings between Goldman and Dziamba at which Goldman said, among other things, that it was not merely a matter of hours — Dziamba should not work more than was medically appropriate — but that the underlying problem was still the perception that he lacked the ability to handle cases efficiently and to inspire the confidence of clients. In the spring of 1993, Dziamba again applied for equity partnership. The executive committee did not so recommend and took like negative action with two other candidates. In view of Dziamba’s gender discrimination claim, it bears mentioning that those other two lawyers not then elevated to equity partner status were women. Three other candidates were elected as full partners, of whom one was a woman working in the environmental law field. Each of the new equity partners had developed a strong constituency for his or her services. In February, 1994, the executive committee of W&S concluded that Dziamba was the least valuable of their commercial litigators, and Goldman gave Dziamba the bad news. He was to leave May 31, 1994. Dziamba sought the advice of counsel. The firm decided to postpone the departure date, but effective July 1, 1994, it cut Dziamba’s annual compensation to $66,000. On July 12, 1994, Dziamba filed a charge with the Massachusetts Commission Against Discrimination against W&S and its equity partners that alleged W&S had discriminated against him because of his handicap, his age, and his sex, and that the firm had retaliated against his request for a reasonable accommodation to his handicap by reducing his salary. On June 28, 1995, there was a special partnership meeting, at which Dziamba was permitted to make his case for continuing at W&S. The partners voted twenty-one to one against him. Dziamba left W&S in July, 1995. We shall mention other undisputed facts, when relevant, in connection with our discussion of Dziamba’s various claims. In reviewing the claims asserted by Dziamba, we view the facts contained in the summary judgment materials in the light most favorable to the nonmoving party, here, the plaintiff. Tar-danico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). 3. The discrimination claims, (a) Based on handicap. Dziamba’s primary claim is that W&S dismissed him because of a handicap he suffered, namely, major recurrent depression. See G. L. c. 151B, § 4(16), as appearing in St. 1983, c. 533, § 6. To maintain that claim, Dziamba must demonstrate that he is a “qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation.” Ibid. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449-450 (2002). Dziamba has failed to make that fundamental showing. Dziamba was a lawyer in W&S’s commercial litigation department. An essential function of a nonequity partner at W&S included handling litigation in a manner that was cost-efficient and that won the confidence of the client. As described in letters, memoranda, and depositions, the job of a senior litigator at W&S also included generating a market for his services through the origination of new clients (being a “finder”) or generating a market for his service internally with lawyers at W&S (being a “minder” and “binder” of clients of the firm). In neither aspect of those essential functions had Dziamba enjoyed success, as shown by internal manifestations of dissatisfaction with his performance in 1991, and the discussion of the firm’s concern about that performance with Dziamba starting with the meeting on March 5, 1992. The work of a lawyer is often highly demanding of physical and psychic energy. It requires responses to often simultaneous external pressures from courts, opposing counsel, and clients. There is no evidence that W&S held other lawyers in the firm to less demanding essential functions. All the same, Dziamba contends that the firm failed to make reasonable accommodation to his disability. The evidence is that the firm allowed him, indeed encouraged him, to work less than full time in hope that his condition would stabilize. On his own motion, Dziamba suggested lower quotas of billable hours per month: 100 hours per month for May through September, 1992; 135 hours per month for October through December, 1992; and 130 hours per month for January through March, 1993. There follow in the record a series of memoranda by Dziamba in 1993 and 1994 to the executive committee that report fatiguing effects from changes in medication and request reasonable accommodation. Dziamba’s billable hours in 1994 were 687. What reasonable accommodation W&S was to make, Dziam-ba’s memoranda do not say. To fulfill their obligation of a reasonable accommodation to a handicap, employers need not make substantial changes in the standards of a job. Beal v. Selectmen of Hingham, 419 Mass. 535, 542 (1995). Wynne v. Tufts Univ. Sch. of Medicine, 932 F.2d 19, 25 (1st Cir. 1991), on remand, 976 F.2d 791, 795 (1992), cert. denied, 507 U.S. 1030 (1993). So if, hypothetically, the norm of billable and collectible hours expected of a senior litigator in a law firm were 1800 per year, then a lawyer who could do no more than 1200 billable and collectible hours would not be performing the essential function of the position involved. There is some reference in the record to a request by Dziamba that he be appointed director of training for the firm. No such position existed at W&S. An employer is not required to create a new position as a reasonable accommodation to the handicapped employee. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454. Reidy v. Travelers Ins. Co., 928 F. Supp. 98, 109 (D. Mass. 1996), aff’d, 107 F.3d 1 (1st Cir.), cert. denied, 522 U.S. 809 (1997). Nor does reasonable accommodation require an employer to wait an indefinite period for the recovery of an employee who has a medical condition that bears on job performance. Russell v. Cooley Dickinson Hosp., Inc., supra at 455. Watkins v. J&S Oil Co., 164 F.3d 55, 61-62 (1st Cir. 1998). Dziamba attributes his productivity decline to partners at W&S shunning him after they learned he was suffering from depression. As the Superior Court judge remarked, that assertion runs into the awkward, und