Discrimination Cases

Global NAPs, Inc. vs. Martha Awiszus & others. Suffolk. April 6, 2010. August 9, 2010. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Attorney at Law, Malpractice, Negligence. Negligence, Attorney at law. Contract, Attorney, Performance and breach. Anti-Discrimination Law, Maternity leave. In a civil action in which the plaintiff corporation sought to recover damages from its former attorneys and their law firms (defendants) arising from their representation of the plaintiff in litigation involving a claim of violation of the Massachusetts Maternity Leave Act, the judge erred in denying the plaintiff’s motion for partial summary judgment on its claims of negligence and breach of contract, and in granting summary judgment in favor of the defendants, where, because the jury verdict in the underlying litigation, which was against the plaintiff, would have been overturned on appeal had the defendants filed an appeal in a timely manner, the defendants, as a matter of law, committed a breach of their duty of care toward the plaintiff by failing to file the appeal in a timely manner and not demonstrating excusable neglect for the untimely filing, thereby obligating the plaintiff to pay substantial damages. [493-503] Botsford, J., concurring in part and dissenting in part, with whom Gants, I., joined, and with whom Marshall, C.J., joined in part. Civil action commenced in the Superior Court Department on March 26, 2008. The case was heard by Raymond J. Brassard, I., on motions for summary judgment, and entry of separate and final judgment was ordered by him. The Supreme Judicial Court granted an application for direct appellate review. John J. Barter (Evan M. Fray-Witzer with him) for the plaintiff. Andrew J. Goodman, of New York (James Freeman, of New York, & David J. Kerman with him) for Jackson Lewis, LLP, & another. Katherine H. Marques for Martha Awiszus & others. The following submitted briefs for amici curiae: Beverly I. Ward for Massachusetts Commission Against Discrimination. Ben Robbins & Martin J. Newhouse for New England Legal Foundation & another. Nina Joan Kimball for Massachusetts Employment Lawyers Association & others. Winokur, Serkey & Rosenberg, P.C. (Winokur); Winokur, Winokur, Serkey & Serkey, P.C.; Winokur, Winokur, Serkey & Rosenberg, P.C.; Jackson Lewis, LLP; and David Kerman. Spina, J. In the present action, Global NAPs, Inc. (Global), a telecommunications company, seeks to recover damages from its former attorneys, Martha Awiszus and David Kerman, and their respective law firms, Winokur, Serkey & Rosenberg, P.C. (Winokur), and Jackson Lewis, LLP (Jackson Lewis) (collectively, the defendants), for negligence, breach of contract, and loss of chance. The claims set forth in Global’s three-count complaint arose from the defendants’ failure to file a timely appeal from a jury verdict in excess of $1 million against Global in an underlying employment discrimination case (the Stephens litigation). The defendants asserted counterclaims against Global for breach of contract and quantum meruit, and they asserted cross claims against each other for indemnification and contribution. Global then filed a motion for partial summary judgment, and the defendants filed a cross motion for summary judgment. On April 1, 2009, a judge in the Superior Court allowed the defendants’ motion and dismissed Global’s complaint. In response to the defendants’ subsequent motion for relief from judgment pursuant to Mass. R. Civ. P. 60, 365 Mass. 828 (1974), pertaining to the defendants’ asserted counterclaims, the judge allowed the motion, vacated the April 1, 2009, judgment, and directed entry of a separate and final judgment on May 7, 2009, pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), dismissing Global’s complaint and preserving the defendants’ counterclaims. Global appealed, and we granted its application for direct appellate review. We now reverse and remand for further proceedings in accordance with this opinion. 1. Background. The procedural history of the Stephens litigation is extensive, particularly with respect to the postjudgment period. For simplicity’s sake, we relate only so much as necessary to understand the specific issues raised. Beginning in May, 1999, Global employed Sandy Stephens as a housekeeper for its president, Frank Tiberius Gangi. Late that same year, Stephens informed Gangi that she was pregnant. Around June 30, 2000, Stephens told Gangi and her supervisor, Janet Lima, that her last day of work before maternity leave would be July 14, 2000. According to Stephens, Lima told her that if she gave birth by cesarean section, then she could extend her leave until October 2, 2000. Lima also told Stephens that her maternity leave would be unpaid. Stephens gave birth on August 2, 2000, by cesarean section, and she so informed Lima. In anticipation of her return to work, Stephens called Lima on September 27, 2000, and learned that she had been fired from her job. Stephens commenced an action in the Superior Court against Global and Gangi, alleging that they had violated the Massachusetts Maternity Leave Act (MMLA), G. L. c. 149, § 105D, by terminating her from employment while she was on maternity leave. Martha Awiszus of Winokur represented Global and Gangi in the Stephens litigation. The case proceeded to trial on July 19, 2004. At the close of Stephens’s case, and again at the conclusion of all of the evidence, Global and Gangi moved for a directed verdict, arguing that Stephens was not entitled to the protections afforded by the MMLA because her maternity leave had exceeded eight weeks. The motions were denied. On July 23, 2004, a jury returned special verdicts against Global for compensatory damages in the amount of $1,366,165 and punitive damages in the amount of $1 million, and against Gangi, for aiding and abetting Global, in the amount of $136,000. Global and Gangi advised Awiszus that they wanted to appeal from the jury verdicts. Global and Gangi filed a timely motion for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, for a new trial or remittitur. According to Awiszus, shortly after filing that motion, she received a telephone call from Global’s general counsel informing her that Global had hired appellate counsel, Kerman of Jackson Lewis, and that she was to assist him in any way that Kerman requested. In a detailed memorandum of decision and order dated February 17, 2005, the judge in the Stephens case denied the motion for judgment n.o.v., with the exception of the claim brought against Gangi for aiding and abetting Global, which was allowed. The judge also denied the motion for a new trial as to liability but allowed the motion as to the issue of damages unless Stephens accepted a remittitur within thirty days. On March 11, 2005, Stephens filed a notice of acceptance of remittitur of compensatory damages in the amount of $1,012,305.12, and of zero punitive damages. Global then filed a motion for partial reconsideration of the court’s order with respect to the determination of Stephens’s damages for front pay and emotional distress, which the judge denied on April 6, 2005. On April 19, 2005, Global and Gangi filed a notice of appeal. They also filed a motion for an extension of time, pursuant to Mass. R. A. R 4 (c), as appearing in 378 Mass. 928 (1979), “to the extent such motion [was] deemed necessary.” Stephens filed a motion to strike the appeal as untimely. In a memorandum of decision and order dated July 28, 2005, the judge determined that the notice of appeal was untimely, denied the motion to extend the filing deadline, and stated that Global and Gangi had not demonstrated excusable neglect for the late filing in light of well-known case law holding that the filing of a motion for reconsideration does not toll the time period for filing a notice of appeal. See Curly Customs, Inc. v. Pioneer Fin., 62 Mass. App. Ct. 92, 96-97 (2004); Selby Assocs. v. Boston Redevelopment Auth., 27 Mass. App. Ct. 1188, 1189-1190 (1989). The judge allowed Stephens’s motion to strike the appeal. On October 25, 2005, a corrected judgment in the amount of $1,322,071.78 entered for Stephens pursuant to Mass. R. Civ. R 58 (a), as amended, 371 Mass. 908 (1977). Global filed timely notices of appeal from the judge’s July 28, 2005, order denying its motion for an extension of time pursuant to Mass. R. A. P. 4 (c), and from the October 25, 2005, corrected judgment. The Appeals Court dismissed Global’s appeal from the judgment in Stephens’s favor on the ground that it was untimely, but considered arguments pertaining to certain damages issues that had been raised in postjudgment motions, and remanded the case for recomputation of the front pay award to reflect present value and for correction of the remittitur amount. See Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 680-687 (2007). This court denied Global’s application for further appellate review. See Stephens v. Global NAPS, 450 Mass. 1106 (2007). After remand, a revised judgment entered in the Superior Court on June 6, 2008, against Global and in favor of Stephens, and on September 15, 2008, execution on the judgment issued in the amount of $1,157,839.91. 2. Substantive merits of the Stephens litigation. The basis of Global’s professional negligence action against the defendants is Global’s contention that it would have prevailed in the Stephens litigation if the defendants had filed Global’s appeal in a timely manner. Accordingly, we begin by considering the merits of that appeal. Global argues that Stephens was not entitled to the protections afforded by the MMLA because she was absent from work for longer than eight weeks. We agree. The MMLA provides that a female employee who has completed her employer’s initial probationary period or, if there is no such probationary period, has been employed full time by the same employer for at least three consecutive months, and “who is absent from such employment for a period not exceeding eight weeks for the purpose of giving birth . . . , and who shall give at least two weeks’ notice to her employer of her anticipated date of departure and intention to return, shall be restored to her previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave” (emphasis added). G. L. c. 149, § 105D. Such eight-week period, statutorily referred to as “maternity leave,” may be with or without pay at the discretion of the employer. Id. The MMLA further provides that nothing in § 105D “shall be construed to affect any bargaining agreement or company policy which provides for greater or additional benefits than those required under this section.” Id. The Massachusetts Commission Against Discrimination (MCAD) is responsible for enforcing the MMLA because the Legislature has determined that it shall be an “unlawful practice” for an employer “to refuse to restore certain female employees to employment following their absence by reason of a maternity leave taken in accordance with [G. L. c. 149, § 105D,] or to otherwise fail to comply with the provisions of said section” (emphasis added). G. L. c. 151B, § 4 (11A). See G. L. c. 151B, § 3 (6) (conferring authority on MCAD to “receive, investigate and pass upon complaints of unlawful practices”). Pursuant to G. L. c. 151B, § 3 (5), the Legislature has empowered MCAD to promulgate rules and regulations to carry out the provisions of c. 15IB, including enforcement of the MMLA. See Solomon v. School Comm. of Boston, 395 Mass. 12, 16 (1985). In accordance with this statutory grant of authority, MCAD has promulgated regulations relating to maternity leave that essentially mirror the language of G. L. c. 149, § 105D. See 804 Code Mass. Regs. § 3.01(8) (1995). See also 804 Code Mass. Regs. § 8.01 (1993). In addition, pursuant to G. L. c. 151B, § 2, MCAD has issued guidelines, dated April 12, 2000, “to provide guidance to practitioners, employers, individuals and MCAD staff about how to interpret, apply and enforce” the MMLA. See Massachusetts Commission Against Discrimination: Guidelines on the Massachusetts Maternity Leave Act (2000) (MCAD Guidelines). As relevant to the Stephens litigation, § V of the MCAD Guidelines, entitled “Job Restoration After Leave,” provides, in pertinent part: “Nothing in the MMLA shall be construed to affect any bargaining agreement, employment agreement or company policy providing benefits that are greater than, or in addition to, those required under [G. L. c. 149, § 105D]. An employer may grant a longer maternity leave than required under the MMLA. If the employer does not intend for full MMLA rights to apply to the period beyond eight weeks, however, it must clearly so inform the employee in writing prior to the commencement of the leave” (emphasis added). In her amended complaint, Stephens asserted only one claim against Global. She alleged that Global never informed her, “either verbally or in writing, that she would not be restored to her previous or similar position at the end of her maternity leave if her leave extended beyond eight weeks, as required by the MMLA and regulations thereunder.” Consequently, Stephens continued, Global violated the MMLA and discriminated against her on the basis of her maternal status in violation of G. L. c. 149, § 105D. Our primary duty in interpreting a statute is “to effectuate the intent of the Legislature in enacting it.” International Org. of Masters v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984). It is a familiar canon of statutory construction that “statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.” Sullivan v. Brookline, 435 Mass. 353, 360 (2001). It is not the province of courts to add words to a statute that the Legislature did not choose to put there in the first instance. See General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999). Where, as here, the language of a statute is clear and unambiguous, it is conclusive as to the intent of the Legislature. See Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 285 (1996); Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 & n.3 (1986). Furthermore, a properly promulgated regulation has the force of law and must be given the same deference accorded to a statute. See Solomon v. School Comm. of Boston, supra, quoting Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 723, cert, denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983); Massachusetts State Pharm. Ass’n v. Rate Setting Comm’n, 387 Mass. 122, 127 (1982). Guidelines issued by an administrative agency, on the other hand, do not have the same status as regulations adopted pursuant to the Administrative Procedure Act, G. L. c. 30A, § 1 (5). As pertinent to the present matter, the MCAD Guidelines represent MCAD’s interpretation of G. L. c. 151B, and although they are entitled to substantial deference, they do not carry the force of law. See Dahill v. Police Dep’t of Boston, 434 Mass. 233, 239 (2001), and cases cited. See also Leach v. Commissioner of the Mass. Rehabilitation Comm’n, 63 Mass. App. Ct. 563, 567 (2005) (guidelines promulgated by MCAD are persuasive, but not binding, interpretive assistance concerning employer’s obligations to employees). The language of the MMLA is clear and unambiguous. Female employees who satisfy certain preliminary conditions (not challenged here) are afforded rights under the MMLA when they are absent from employment “for a period not exceeding eight weeks for the purpose of giving birth” (emphasis added). G. L. c. 149, § 105D. Once a female employee is absent from employment for more than eight weeks, she is no longer within the purview of the MMLA and, consequently, is not afforded the protections conferred by the statute. Contrary to the allegations set forth in Stephens’s amended complaint, neither the MMLA nor the regulations promulgated thereunder require an employer to notify an employee whether MMLA rights will apply to the period beyond eight weeks if the employee is allowed to extend her maternity leave. A female employee is only entitled to MMLA rights when she is absent from employment for no more than eight weeks. To the extent that the MCAD Guidelines suggest that a female employee may be entitled to MMLA rights beyond the eight-week period, the MCAD Guidelines are inconsistent with G. L. c. 149, § 105D. See Telles v. Commissioner of Ins., 410 Mass. 560, 564-565 (1991) (agency has no authority to promulgate rules and regulations that conflict with or exceed authority conferred by statute). Even absent such inconsistency, the MCAD Guidelines do not have the force of law and, therefore, cannot be the source of a remedy for Stephens’s termination from employment. An employee who is permitted to extend her maternity leave past eight weeks may have other rights that protect her from unlawful termination, but they are not statutory rights under G. L. c. 149, § 105D. There is a recognition in both the MMLA and the regulations promulgated thereunder that an employer, for a variety of reasons, may allow a female employee to be absent from work for more than eight weeks when giving birth to or adopting a child. See G. L. c. 149, § 105D; 804 Code Mass. Regs. § 3.01(8)(f) (1995). Typically, such additional benefits arise in the context of a bargaining agreement or company policy or, as alleged here, an oral representation from employer to employee. See id. These additional benefits are separate from the protections afforded under the MMLA. See id. Where an employer provides such additional benefits to a female employee and subsequently takes an adverse employment action, the employee’s recourse is the initiation of a common-law action for breach of contract, breach of oral representations, detrimental reliance, or the like. Here, Stephens did not raise any of these claims in her amended complaint. The only claim against Global was for a violation of G. L. c. 149, § 105D. Because we have concluded that Stephens was not entitled to the protections afforded by the MMLA, given that she was absent from employment for more than eight weeks, the jury verdict in her favor would have been overturned on appeal had the appeal been filed in a timely manner., 3. Professional negligence of defendants. Returning to the case presently before us, Global points out that the defendants were all counsel of record at the time the notice of appeal in the Stephens litigation should have been filed on or before April 10, 2005. Global contends that the defendants owed to it a duty of care, that they committed a breach of this duty by failing to file the appeal in a timely manner, that they did not demonstrate excusable neglect for the untimely filing, and that, as a result, Global was obligated to pay substantial damages to Stephens. Global therefore argues that its motion for partial summary judgment, see note 3, supra, should have been allowed because the defendants’ professional negligence was established as a matter of law. We agree. “An attorney owes his client an obligation to exercise a reasonable degree of care and skill in the performance of his legal duties.” Pongonis v. Saab, 396 Mass. 1005, 1005 (1985). “To prevail on a claim of negligence by an attorney, a client must demonstrate that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained . . . ; that the client has incurred a loss; and that the attorney’s negligence is the proximate cause of the loss . . .” (citations omitted). Colucci v. Rosen, Goldberg, Slavet, Leven-son & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987). See McLellan v. Fuller, 226 Mass. 374, 377-378 (1917). Expert testimony is generally n

BRIGHTWELL v FIFTH THIRD BANK OF MICHIGAN CHAMPION v FIFTH THIRD BANK OF MICHIGAN Docket Nos. 138920 and 138921. Argued January 12,2010 (Calendar No. 5). Decided July 30, 2010. Brandon Brightwell brought an action in the Wayne Circuit Court against Fifth Third Bank of Michigan, alleging that it had terminated his employment in violation of the Civil Rights Act (CRA), MCL 37.2101 et seq. Brightwell worked in Wayne County. Citing MCL 37.2801, the CRA venue statute, defendant moved for a change of venue to Oakland County, where defendant made the decision to terminate Brightwell’s employment. The court, Prentis Edwards, J., denied the motion, and defendant sought leave to appeal. Sharon Champion brought an action in the Wayne Circuit Court against Fifth Third Bank of Michigan, alleging that it had terminated her employment in violation of the CRA. Champion worked in Wayne County. Again citing MCL 37.2801, defendant moved for a change of venue to Oakland County, where it had made the decision to terminate Champion’s employment. The court, Warfield Moore, Jr., J., denied the motion, and defendant sought leave to appeal. The Court of Appeals granted defendant’s applications and consolidated the appeals. In three separate unpublished opinions, issued April 9, 2009 (Docket Nos. 280820 and 281005), the Court of Appeals, Bandstra, J. (Talbot, PJ., concurring and Gleicher, J., dissenting), reversed, concluding that venue was proper only in Oakland County, where defendant made the decisions to terminate plaintiffs’ employment. In reaching this conclusion, the lead opinion and the concurrence relied on Barnes v Int’l Business Machines Corp, 212 Mich App 223 (1995). The Supreme Court granted plaintiffs’ applications for leave to appeal. 485 Mich 902 (2009). In an opinion by Chief Justice Kelly, joined by Justices Cavanagh, Markman, and Hathaway, the Supreme Court held-. For purposes of venue under MCL 37.2801(2), a violation of the CRA in the employment context occurs when the discriminatory decision is made and the adverse employment actions are implemented. The CRA violation in a case alleging discharge from employment is the severance of the employment relationship. The decisions and actions constituting that violation are implemented when the employee is no longer entitled to enter the workplace and perform the responsibilities of employment. 1. MCL 37.2801(2) provides that a plaintiff alleging a violation of the CRA may bring the action in the circuit court of the county where the alleged violation occurred or the county where the defendant resides or has its principal place of business. 2. Plaintiffs alleged violations of MCL 37.2202(1), which in part prohibits employers from taking various adverse employment actions because of the employee’s religion, race, color, national origin, age, sex, height, weight, or marital status. A violation of that statute, therefore, is equally dependent on an adverse employment action (in these cases the act of discharging from employment) and an improper motive for taking that action (a decision to discriminate because of a protected status). Thus, a violation of the CRA occurs when the discriminatory decision is made and adverse employment actions are implemented. Barnes is overruled to the extent that it held otherwise. 3. The adverse employment actions in these cases occurred where plaintiffs’ places of employment were located. Plaintiffs worked in Wayne County, and defendant’s allegedly unlawful actions in severing their employment relationships precluded plaintiffs from continuing to do so. Each plaintiffs employment relationship with defendant was based and severed in Wayne Couniy. Thus, the CRA violations occurred in Wayne County and venue was proper there. The Court of Appeals erred by concluding that the trial courts should have granted defendant’s motions for a change of venue. Reversed and remanded for further proceedings on plaintiffs’ claims. Justice Young, joined by Justice Corrigan, concurring in part and dissenting in part, agreed with the majority that venue is proper under the CRA in the places where the allegedly discriminatory decision was made and implemented, but dissented from the majority’s analysis regarding when the implementation occurs. A CRA violation occurs with the convergence of a prohibited act and a discriminatory intent, and a violation only occurs when an improper discriminatory intent is actually communicated within the context of the adverse employment action. Once an adverse employment action is actually communicated, a CRA violation has occurred and the plaintiffs claim becomes actionable, making venue proper only in those place(s) where the violation (the convergence of the act and the intent) occurred. The communication of the discriminatory decision does not cause some future CRA violation, one that only occurs when the employee is actually prevented from returning to work or performing that work. The time when a person is fired is inextricably linked to the places where the person is fired, given that the locations at the time the discharge occurs establish venue in those places. Further, the place where an employee physically works does not automatically establish an independently proper venue when a CRA violation does not occur there. Justice Weaver, dissenting, would not have granted leave to appeal in this case because she was not persuaded that the Court of Appeals erred and because there was no material injustice. Civil Rights — Employment Discrimination — Venue—Adverse Employment Actions. A plaintiff may bring an action alleging a violation of the Civil Rights Act in the circuit court of the county where the alleged violation occurred; a violation in the employment context occurs when the discriminatory decision is made and the adverse employment actions are implemented; the violation of the act in a case alleging discharge from employment is the severance of the employment relationship, and the decisions and actions constituting that violation are implemented, and thus occur, when the employee is no longer entitled to enter the workplace and perform the responsibilities of employment (MCL 37.2202[1], 37.2801[2]). Thomas E. Marshall, EC. (by Thomas E. Marshall), for Brandon Brightwell and Sharon Champion. Butzel Long (by Daniel B. Tukel and Michael E Smith) for Fifth Third Bank of Michigan. Amici Curiae: EardleyLaw Offices, EC. (by Eugenie B. Eardley), for the Michigan Association for Justice. Warner Norcross & Judd LLP (by Matthew T. Nelson, Gregory M. Kilby, and Amanda M. Fielder) for Michigan Trial Defense Counsel, Inc. KELLY, C.J. In these consolidated cases, we must determine the proper interpretation of the venue statute in the Civil Rights Act (CRA). Specifically, we are asked to decide whether venue was proper in Wayne County under MCL 37.2801(2). Plaintiffs filed their suits in Wayne County, alleging that defendant terminated their employment in violation of the CRA. The Court of Appeals, relying on its decision in Barnes v Int’l Business Machines Corp, concluded that venue was proper only in Oakland County, where defendant made the decisions to terminate plaintiffs’ employment. Consequently, the Court of Appeals reversed the trial courts’ orders denying defendant’s motions to change venue to Oakland County. We disagree with the Barnes decision and overrule it. In the cases before us, part of the alleged discrimination occurred in Wayne County, where plaintiffs worked and where the allegedly discriminatory actions were implemented. Therefore, we reverse the judgment of the Court of Appeals and remand these cases to the Wayne Circuit Court for further proceedings on plaintiffs’ claims. FACTS AND PROCEDURAL HISTORY Plaintiffs are African-Americans formerly employed by defendant. They worked for defendant at banking centers in Wayne County. On or around May 17, 2007, defendant terminated their employment for alleged misconduct. Plaintiff Sharon Champion learned of her dismissal through a telephone call from defendant’s office in Oakland County to her home in Wayne County. The parties dispute where plaintiff Brandon Brightwell received notice of his dismissal. Plaintiffs filed separate lawsuits in Wayne County, each alleging that defendant had terminated their employment for reasons of racial discrimination in violation of the CRA. Defendant moved in both lawsuits to change venue to Oakland County. It supported the motions with an affidavit from Michael Andrzejewski, an employee relations consultant who worked in defendant’s Southfield regional office in Oakland County. Andrzejewksi averred in his affidavit that he was personally involved in the final decisions to terminate plaintiffs’ employment and that those decisions were made in the Southfield regional office. Defendant claimed that because it made the decisions in Oakland County, venue was proper only there. Both trial courts declined to change venue. Defendant sought interlocutory appeals in both cases. The Court of Appeals granted both applications for leave to appeal, consolidated the appeals, and reversed the trial courts’ rulings in a divided decision. Relying on Barnes, the lead opinion concluded that “the appropriate venue for a CRA cause of action. .. depends on where the defendant’s violation occurred, not where the plaintiff was injured.” It noted that “[t]his Court has held that the alleged violation of the CRA is the action which gives rise to liability under the act, i.e., the corporate decision affecting the plaintiffs employment.” The Court of Appeals concurrence agreed that “venue is appropriate where the CRA was violated through the use of improper characteristics in making an employment decision.” It criticized the dissenting opinion’s discussion of the statutory tort venue provision, MCL 600.1629, as interpreted in our decision in Dimmitt & Owens Fin, Inc v Deloitte & Touche (ISC), LLC. The Court of Appeals dissent argued that the employment decisions constituted only a “potential violation” of the CRA and that it was the actual discharges that constituted the adverse employment actions. The dissent would have held that venue was proper in Wayne County. Plaintiffs sought review in this Court, and we granted their applications for leave to appeal. ANALYSIS An appellate court uses the clearly erroneous standard to review a trial court’s ruling on a motion to change venue. Statutory interpretation involves questions of law that are reviewed de novo. The relevant statutory provision, MCL 37.2801, provides in part: (1) A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. (2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business. As always, our analysis begins with the language of the statute. The primary goal of statutory interpretation is to give effect to the intent of the Legislature as expressed in the statute. These cases involve only the first clause of subsection (2), which makes venue proper “in the circuit court for the county where the alleged violation occurred.” In Barnes, the Court of Appeals held, without citation or analysis, that the “violations alleged are adverse employment decisions” and that “the place of corporate decision making is an appropriate venue.” Judge WHITE concurred separately, opining that “[discrimination also ‘occurs’ in the county where the decision is implemented and the discrimination is inflicted.” She rejected the majority’s implication that “venue of a civil rights action is proper only in the county where the discriminatory decision is made.” The question of where venue properly lies for a lawsuit brought under the CRA turns on the meaning of the phrase “where the alleged violation occurred” found in MCL 37.2801(2). “Violation” is defined in part as “1. the act of violating or the state of being violated. 2. a breach or infringement, as of a law or promise.” Plaintiffs alleged that defendant violated MCL 37.2202(1), which provides in part: An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. A “violation” of MCL 37.2202, therefore, is equally dependent on an adverse employment action (in these cases the act of “discharging]”) and an improper motive for taking that action (a decision to discriminate “because of” a protected status). We believe it logically follows that a violation of the CRA “occur[s]” when the discriminatory decision is made and adverse employment actions are implemented. Thus, we agree with Judge White’s concurrence in Barnes, which is also consistent with other courts’ interpretations of similar venue provisions. The majority in Barnes erred by restricting what constitutes a violation of the CRA to “adverse employment decisions.” Relying heavily on Barnes, the Court of Appeals lead and concurring opinions here reached the same erroneous conclusion. We overrule Barnes because it restricted the analysis of a violation of the CRA to the adverse employment decision. Barnes is inconsistent with MCL 37.2202(l)(a) and the meaning of “violation” and “occurred” in MCL 37.2801. However, this determination does not fully resolve the issue before us. A remaining question is: What specific actions constitute the unlawful discharge that establishes the CRA violation? Venue in these cases was clearly proper in Oakland County because it is undisputed that defendant resides in Oakland County. However, plaintiffs filed suit in Wayne County. The Court of Appeals determined that the trial courts erred by denying defendant’s motions to change venue to Oakland County because venue did not properly lie in Wayne County. Therefore, we must determine whether a CRA violation occurred in Wayne County that would provide a basis for venue in that location as well. Defendant asserts that, even if Barnes is overruled, venue is proper only in Oakland County because that is where defendant completed several actions necessary to effectuate each plaintiffs discharge. For example, it removed plaintiffs from its payroll system at its Oakland County office. Plaintiffs counter that the only action that was relevant was the communication of the discharge decisions to them. We reject both parties’ arguments. It would be arbitrary to consider any of the suggested actions entirely dispositive of where the CRA violation occurred. Discrimination claims often involve numerous actions concerning employers’ practices. Moreover, often it is unclear where the actions occurred that the parties claim are dispositive. Indeed, these cases provide a good illustration of the problem. If the location where the employment decision was communicated to a plaintiff is solely dispositive, a court must still determine where that decision was “communicated.” Finally, under this approach, defendants could unilaterally control venue by completing administrative tasks related to terminating a plaintiffs employment in their choice of locales. Or they could order an employee to report to a location in the venue they desire and fire the employee there. We believe these are not results that the Legislature intended in enacting the CRA. We conclude that the adverse employment actions in these cases occurred where plaintiffs’ place of employment was located. That is where most relevant actions involving the employer-employee relationship occur. Moreover, it is the severing of the employment relationship that is the truly adverse employment action. This action happens when the employee is no longer entitled to enter his or her place of work and perform the responsibilities of employment. As Judge WHITE observed, it is also at this point that the allegedly unlawful discharge is fully “implemented and the discrimination is inflicted.” Applying that logic to these cases, we note that plaintiffs worked in Wayne County. Because defendant’s allegedly unlawful actions precluded plaintiffs from continuing to do so, the CRA violations occurred in Wayne County. The concurrence/dissent erroneously limits the occurrence of a violation solely to the place where a discriminatory decision is communicated to an employee. In doing so, it attaches too much significance to where the disclosure of the allegedly discriminatory discharge occurs. Indeed, the essence of the concurrence/dissent’s conclusion is found in its statement that “it can only be the actual communication, which itself implements a discriminatory decision, that amounts to the actual ‘discharge’ ... ,” Our reaction to this assertion is to ask: Why is this inherently so? The concurrence/dissent offers no persuasive analysis to support its conclusion that the CRA violation must occur where the discharge is communicated. The right being violated under the CRA is not the right to be free from communication of adverse employment actions. Rather, it is the right to be free from actions that actually separate the employee from gainful employment for discriminatory reasons. The justices joining the concurrence/dissent convey an incorrect interpretation of this opinion when they write “that scarcely one in a thousand people would believe that a person is not ‘discharged’ from employment at the moment an employer says to the employee: ‘You’re fired.’ ” In a world where snappy soundbites often distort the facts, this statement fits well and has face appeal. In truth, we justices do not disagree that “You’re fired” means “You are discharged from your employment.” Rather, this case addresses a quite different question, which is: If you are fired, in what location are you entitled to bring suit? It is true that the actus reus and the mens rea of a CRA violation converge when a defendant communicates a discriminatory decision to an employee. But while that convergence causes the CRA violation, it does not settle the issue of what constitutes discharging the employee: the communication of the discriminatory decision or removing the employee’s right to work at his or her place of employment. Decisions from other jurisdictions involving similar statutes have generally taken a more nuanced approach in evaluating where an employment discrimination violation occurs. Other jurisdictions have consistently analyzed similar statutory language as including “ ‘the place where the decisions and actions concerning the employment practices occurred.’ ” We believe that it is the severance of the employment relationship that constitutes the actual discharge, not the mere communication of an adverse employment decision. The concurrence/dissent’s definition of “discharge” provides greater support for our interpretation. To “relieve of obligation,” “deprive of. . . employment,” or “dismiss from service” involves many decisions and actions. One is the communication of the dismissal to the employee, which the concurrence/dissent concludes is the basis for a CRA violation. However, it is not the communication of the discharge that violates the CRA, it is the actual discharge of the employee from his or her employment. This act occurs where the employee works because the employer has discharged the employee by removing his or her ability to work in that location. The concurrence/dissent’s determination of when a CRA violation occurs leads it to assert that the doctrine of expressio unius est exclusio alterius undermines our conclusion. However, this argument is premised on the concurrence/dissent’s erroneous construction of the term “discharge” and of the language “where the alleged violation occurred” in MCL 37.2801(2). S

Angel Mercado vs. Manny’s T.V. and Appliance, Inc. No. 09-P-520. Hampden. April 7, 2010. June 28, 2010. Present: Mills, Smith, & Trainor, JJ. Practice, Civil, Directed verdict. Public Policy. Employment, Termination, Retaliation. Contract, Employment. Anti-Discrimination Law, Handicap. Family and Medical Leave Act. Words, “Handicap.” At the trial of a civil action brought by a plaintiff alleging that his former employer (defendant) had wrongfully discharged him in violation of public policy, the judge erred in granting a directed verdict in favor of the defendant, where a fact finder could conclude that the work performed by the plaintiff at the defendant’s direction (i.e., installing appliances without an electrical or plumbing license) was a violation of public policy and that the defendant terminated the plaintiff’s employment because the plaintiff did not want to continue violating that policy. [139-141] A plaintiff alleging employment discrimination on the basis of handicap in violation of G. L. c. 151B, as well as violations of the Family and Medical Leave Act (act), failed to demonstrate that his knee injury constituted a “handicap” within the meaning of G. L. c. 151B [142] or a “serious health condition” within the meaning of the act [143-144], A former employee could not maintain a claim of retaliatory termination of employment based on the filing of a worker’s compensation claim, in violation of G. L. c. 152, § 75B(2), where the employee had taken no action under the worker’s compensation act until after the termination of his employment. [144] The plaintiff in a civil action alleging, inter alia, employment discrimination on the basis of handicap failed to demonstrate that the trial judge’s exclusion from evidence of an employee handbook, even if error, was prejudicial to his case. [144] Civil action commenced in the Superior Court Department on March 27, 2006. The case was tried before Constance M. Sweeney, I. Michael O. Shea for the plaintiff. John B. Stewart (F. Michael Joseph with him) for the defendant. Smith, J. After the termination of his employment by the defendant, Manny’s T.V. and Appliance, Inc. (Manny’s), the plaintiff, Angel Mercado, filed a complaint in Superior Court alleging, inter alia, (1) discriminatory and retaliatory termination based on his handicap in violation of G. L. c. 151B; (2) retaliatory termination based on the filing of a worker’s compensation claim in violation of G. L. c. 152, § 75B(2); and (3) violations of the Family and Medical Leave Act (FMLA). An amended complaint further alleged that Mercado was wrongfully terminated in violation of public policy. Following the presentation of Mercado’s case to a jury, Manny’s moved for a directed verdict as to each of the enumerated claims. The judge granted the motion. On appeal, Mercado claims that the judge committed error in allowing Manny’s motion for a directed verdict on Mercado’s claims. He also claims that the judge improperly excluded an employee handbook from evidence. Background. We recite the relevant facts in the light most favorable to the plaintiff. Bonin v. Chestnut Hill Towers Realty Corp., 392 Mass. 58, 59 (1984). Between October, 2000, and June 21, 2004, Mercado worked for Manny’s, first as a driver and then as an appliance installer. He trained for his job by observing another installer for two weeks. During his time at Manny’s, Mercado installed thousands of appliances, including dishwashers, stoves, garbage disposals, and cook tops. The installation work routinely involved cutting and fitting gas pipes, cutting and fitting drain pipes, and running and installing electrical wire. Such work can only be performed legally by a licensed electrician, see G. L. c. 141, § 1A, or a licensed plumber, G. L. c. 142, § 3. Mercado was neither a licensed electrician nor a licensed plumber, nor was he informed as to any provisions of the electrical or plumbing codes. His coworker also was not licensed in those trades. Mercado’s supervisor, nevertheless, described Mercado as an “awesome” installer. In late May, 2004, Bernard Sears, the town of Wilbraham’s plumbing inspector, discovered Mercado and his coworker installing a dishwasher in a residence in Wilbraham without a plumber’s license and a permit, and ordered them off the job. After hearing about what had happened, Manny’s service manager told Mercado to stop collecting permits in Wilbraham and to avoid the inspector’s truck when he saw it. When Mercado later questioned his supervisor and Manny’s general manager, Eric Kosciusko, about whether the installations were legal, Kosciusko acknowledged that he was told that the installations were illegal, and repeated that Mercado should avoid the inspector’s truck. Mercado then commented that if the installations were not legal, he “[didn’t] feel like [he] should be doing [them] anymore.” Kosciusko, angered by Mercado’s comments, turned away and continued what he was doing. After the conversation, however, Mercado continued to install appliances in Wilbraham for a short time. To his knowledge, Manny’s never obtained permits for this work. Shortly thereafter, on June 16, 2004, a Wednesday, Mercado injured his knee while lifting a dishwasher at work. He immediately sought treatment at the Riverbend Medical Group in Springfield, and obtained a note from a physician’s assistant indicating that he should not work until the following Monday. That same day Mercado also reported his injury to one of his managers, Oscar Alicea, who told him to bring in a doctor’s note if he was going to be out of work. When Mercado called Alicea later to tell him that he needed to be out of work for two days, Alicea responded: “What do you mean you can’t come in? There is only two installers, just come in. . . . Bring in the note, and we’ll talk about it later.” When Mercado arrived at work the next day (Thursday), Alicea was not present. Another manager accepted the note, instructed Mercado to get in his truck, and informed Mercado that Alicea would contact him. Mercado, who was paid by the installation, worked a regular day. Toward the end of the day, Alicea told Mercado that only two or three installations were scheduled for Friday, and that Mercado should have his partner “do the big lifting.” Mercado did not express objections to Alicea’s instructions or to working. On Monday, June 21, 2004, Manny’s fired Mercado. At the time, no reason was given for his termination, but Mercado later learned that the purported reason was that he had called Kosciusko a “f***ing asshole gay,” an accusation Mercado denied. There was no evidence of any further communications between Mercado and Manny’s regarding a possible return to work. After his employment at Manny’s ended, Mercado continued to receive medical treatment for his knee injury. Magnetic resonance imaging revealed that his anterior cruciate ligament was tom, and Mercado underwent two surgeries to correct his injury. On a subsequent date not in evidence, Mercado also filed a worker’s compensation claim relating to the knee injury. In addition to having his medical bills covered, Mercado received a weekly payment for full disability for one to one and one-half years, partial disability for another year, and finally a lump-sum payment. After Mercado presented his case to the jury, Manny’s moved for a directed verdict on all remaining counts of the complaint. After hearing argument, the judge allowed the motion on the ground that Mercado provided insufficient medical evidence that he was handicapped for the purposes of G. L. c. 151B. On the worker’s compensation and FMLA claims, the judge likewise ruled on the ground of insufficient medical proof. The judge also determined that a directed verdict was warranted on the public policy count because, contrary to the allegations in his complaint, “[tjhere is an absence of showing that [Mercado] was required to continue to violate the law” by performing illegal appliance installations. Further facts will be set forth as necessary. Discussion. “In reviewing a mling on a directed verdict or a judgment notwithstanding the verdict, the question before us is the same: that is, ‘whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’ ” Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). Additionally, “[w]e do not weigh the evidence or consider the credibility of witnesses,” and we ignore evidence that contradicts the testimony of the nonmoving party. Doe v. Senechal, supra, quoting from Conway v. Smerling, 37 Mass. App. Ct. 1, 3 (1994). 1. Wrongful discharge in violation of public policy. Mercado argues that a directed verdict was inappropriate because a fact finder could conclude that the work performed by him at the direction of Manny’s was a violation of public policy and Manny’s terminated him because he did not want to continue violating that public policy. We agree. “It is well established that Massachusetts law does not protect at-will employees who claim to be fired for their complaints about internal company policies or the violation of company rules, even though the employees’ actions may be considered appropriate and ‘socially desirable.’ ” Falcon v. Leger, 62 Mass. App. Ct. 352, 362 (2004), quoting from Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150-151 (1989). See Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474-475 (1992). Nevertheless, “[i]n exceptional cases, for reasons of public policy, an at-will employee may maintain a cause of action and find redress where the termination results from the employee’s assertion of some legally guaranteed right, or refusal to engage in illegal or harmful conduct.” Parker v. North Brookfield, 68 Mass. App. Ct. 235, 240 (2007). “In such instances, we look essentially to the substance of the complaint rather than to whom it is presented.” Falcon, supra at 364. The public policy exception is interpreted narrowly to prevent “conver[sion of] the general rule . . . into a rule that requires just cause to terminate an at-will employee.” King v. Driscoll, 418 Mass. 576, 582 (1994), quoting from Smith-Pfeffer, supra at 150. We begin by determining, as a matter of law, whether the appliance installations were in violation of “a well-defined, important public policy.” Mello, supra at 561 n.7. There can be no question that the intent of the electrical and plumbing code is to protect public health, safety, and welfare. See generally Falcon, supra at 360 (electrical code); Barriere v. Depatie, 219 Mass. 33, 36 (1914) (licensing requirements for plumbers). Li-censure requirements form a critical part of those codes and guarantee that licensed electricians and plumbers have a minimum level of experience in the field. See 248 Code Mass. Regs. § 11.02; Leduc v. Commonwealth, 421 Mass. 433, 435 (1995), cert. denied, 519 U.S. 827 (1996) (“The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications”), citing Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 527-528 (1979). The importance of licensed electricians and qualified plumbers is underscored here by Mercado’s testimony that during an installation of a gas stove, he caused a gas leak, requiring the daughter of a customer to seek medical care. According to Mercado, this was only one of multiple incidents of gas leaks following appliance installations that he performed. The evidence demonstrates that Manny’s was aware that at least some of its appliance installations were illegal and in violation of public policy. Mercado and his coworker collected permits and engaged in serious plumbing and electrical work in performing their jobs at Manny’s, despite the fact that neither one of them had an electrical or plumbing license. Sears, the plumbing inspector, confirmed that Mercado’s installations were against the law. According to Sears, the Massachusetts Plumbing Code, 248 Code Mass. Regs. §§ 2.04 et seq., governs the types of installations Mercado performed, and requires that they be performed by a licensed plumber with a permit, “[t]o protect the safety and health of the public.” Wilbraham’s building inspector, Lance Trevallion, further testified that he informed Manny’s, after the inspection incident, that “a permit was required for such work, and a licensed plumber needed to take the permit out.” An inference could be drawn that Kosciusko received that information when he told Mercado that “they are . . . saying that what Manny’s is doing there is illegal.” The instruction to Mercado that he avoid the Wilbraham plumbing inspector also supports the conclusion that Manny’s was aware that the installations were illegal. No permits were issued for the installations that occurred in Wilbraham after Trevallion’s discussion with Manny’s. We conclude that the circumstances of this case are akin to those in cases in which courts have found a violation of public policy within the narrow strictures of the exception to the rule of at-will employment. Compare Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (hospital employee responsible for enforcing State fire safety regulations governing patient care, who performed her job accordingly and was fired, stated claim for wrongful termination); Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (summary judgment properly denied where factual dispute remained whether employee was discharged in retaliation for his cooperation with a law enforcement investigation); Falcon, supra at 363-365 (employee wrongfully terminated after he refused to lie to inspector about existence of electrical code violations). The violation here is also distinct from internal policy matters, which do not warrant recovery by an at-will employee. Contrast Mello v. Stop & Shop Cos., supra at 560-561 (report of false damage claims was internal company matter); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 150-151 (opposition to internal restructuring of a State school); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. at 474-475 (nurse’s report to a private professional organization about perceived managerial inadequacies at hospital was internal matter); Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994) (complaints regarding company’s trade practices, which employee claimed violated G. L. c. 93A, were internal matter). Lastly, whether there was sufficient evidence that Mercado adequately refused to engage in further illegal activity such that it was a factor in his termination is a factual question for the jury. Mercado presented evidence that he told Kosciusko that he did not want to continue performing illegal installations, was ordered to continue illegally installing appliances, and was fired a few weeks after his complaint. Mercado disputes Manny’s stated reason for firing him, but as previously noted on a motion for a directed verdict, we must ignore evidence that contradicts the testimony of the nonmoving party, here Mercado. The evidence presented on Mercado’s public policy claim is sufficient to withstand a motion for a directed verdict. 2. Discrimination claims. Mercado next claims that he was the subject of handicap discrimination and retaliatory termination in violation of G. L. c. 151B; G. L. c. 152, § 75B(2); and the FMLA. Each claim is based upon Manny’s “denial” of Mercado’s request for a two-day leave. To prevail on his handicap discrimination claim under G. L. c. 151B, § 4(16), Mercado must demonstrate that he has a qualifying handicap under the statute. Pursuant to G. L. c. 15IB, § 1(17), an employee has a “handicap” if he or she (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded by the employer as having such an impairment. See New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 (2003). More than a mere medical diagnosis of an impairment is required to show a handicap covered by the statute; an employee must show, by reference to his own experience, that the extent of the limitation caused by his impairment is substantial. Ibid. In this case, Mercado claims handicap status under the first prong of the statute. We conclude that he has failed to demonstrate that he suffered from a handicap during his employment at Manny’s. In order to be considered substantially limited in the major life activity of working, the employee must be able to show that his impairment prevented or restricted him from performing a class of jobs or broad range of jobs in various classes. See New Bedford, supra at 464; Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 637-641 (2004); Dube v. Middlesex Corp., 59 Mass. App. Ct. 734, 737 (2003). Here, Mercado testified that his knee injury affected his ability to lift and his mobility. He also testified, however, that he worked the two days following his injury as normal, with no objection. The fact that Mercado worked at his job as usual, despite his injury, severely undercuts his claim that he was handicapped at that time. Because Mercado failed to offer any evidence that he was unable to do his job, or that Manny’s perceived him as being unable to do so, the judge properly entered a directed verdict on Mercado’s G. L. c. 151B handicap discrimination claim., Mercado’s claim under the FMLA fails for the same reason. The FMLA provides that an eligible employee shall be entitled to a total of twelve weeks of leave during any twelve-month period because of a serious health condition that inhibits the employee from working. See 29 U.S.C. § 2612(a)(1)(D). In order for his injury to be considered a serious health condition, the employee must receive in-patient care or continuing treatment from a health care provider, as those terms are defined in the regulations. 29 U.S.C. § 2611(11). 29 C.F.R. § 825.113-115. As is relevant here, continuing treatment by a health care provider requires a period of incapacity that lasts more than three consecutive calendar days and involves medical treatment. 29 C.F.R. § 825.115(a). See Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-160 (1st Cir. 1998); Wheeler v. Pioneer Developmental Servs., 349 F. Supp. 2d 158, 165 (D. Mass. 2004). Thus, Mercado has no cause of action under the FMLA unless there is evidence from which a reasonable jury could find that he was incapacitated for more than three consecutive days. Mercado testified he worked the Thursday and Friday following his injury, despite the note he received from a physician’s assistant stating that he should refrain from working until Monday, June 21. Based on that testimony, as a matter of law, Mercado failed to prove that he was inhibited from working as required by the FMLA. See Peterson v. Exide Corp., 123 F. Supp. 2d 1265, 1271 (D. Kan. 2000) (finding employer was not bound by medical evidence when plaintiff’s own behavior indicated he did not have a serious health condition). Moving to Mercado’s G. L. c. 152, § 75B(2), claim, under that statute an employer shall not discharge an employee for exercising any right under the worker’s compensation act. Mercado, however, took no action under the act until after he had been terminated. Other than the timing of the termination, Mercado offers no evidence of a connection between his worker’s compensation claim and his discharge. Given that his claim was filed after his discharge, without further proof, we fail to see how Mercado’s discharge could possibly be related to any exercise of his rights under the

Douglas Godfrey vs. Globe Newspaper Company, Inc. Suffolk. February 11, 2010. June 16, 2010. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Termination of employment, Handicap. Employment, Discrimination, Termination. Handicapped Persons. Practice, Civil, Summary judgment. Words, “Qualified handicapped person,” “Essential functions.” Discussion of the standard of review applicable to a grant of summary judgment in an action alleging discrimination in employment. [118-119] Discussion of the elements necessary to establish a prima facie case of discrimination in employment on the basis of handicap [119-120]. In a civil action alleging discrimination in employment on the basis of handicap, the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff did not establish that he was a qualified handicapped person within the meaning of G. L. c. 151B, § 1 (16), in that there was no material dispute (based on the plaintiff’s concession in his response to the defendant’s statement of undisputed facts) that the plaintiff could not perform an essential function of his job [120-121]; further, there was no material question of disputed fact whether a reasonable accommodation was possible, in that, with regard to the plaintiff’s initial request for an accommodation of a reduced schedule, he received the accommodation he sought, even without demonstrating that he was a qualified handicapped person or that the accommodation requested was reasonable [122-123], and in that an accommodation that the plaintiff sought after he had been terminated from his position was not reasonable, given that it would necessitate the creation of a position that did not require essential functions that the plaintiff could not perform or an assignment to a new position altogether [123-125]. In a civil action alleging discrimination in employment on the basis of handicap, the judge properly granted summary judgment in favor of the defendant employer on a claim that the employer violated G. L. c. 151B, § 4 (16), by failing to offer the plaintiff placement in a light-duty position, where the plaintiff did not establish that the employer had a policy of placing injured employees in light-duty positions on return from workers’ compensation leave. [125-126] In a civil action in which the plaintiff claimed that the reason offered for the termination of his employment was a pretext for discrimination on the ground of his disability, in violation of the workers’ compensation act, G. L. c. 152, § 75B, the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff could not establish that he was a qualified handicapped person within the meaning of the statute. [126-127] Civil action commenced in the Superior Court Department on January 28, 2005. The case was heard by Paul E. Troy, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Mark W. Batten for the defendant. Paul H. Merry (Andrea L. Haas with him) for the plaintiff. Cowin, J. The plaintiff was disabled as a result of injuries sustained during the course of his employment. He contends that he is a qualified handicapped person under G. L. c. 151B, § 1 (16), and that, in violation of G. L. c. 151B, § 4 (16), his employer refused to offer him a reasonable accommodation to enable him to continue to work as an assistant press foreman after his injury. In addition, the plaintiff claims that, shortly after he requested such accommodation, his employment was terminated and the reasons offered for his discharge were a pretext for unlawful discrimination under G. L. c. 15IB. He contends also that his employer contravened provisions of the workers’ compensation act by discriminating against him because of his disability, in violation of G. L. c. 152, § 75B. Following the dismissal of his complaint by the Massachusetts Commission Against Discrimination, the plaintiff filed a complaint in the Superior Court. See G. L. c. 151B, §§ 5, 9; Everett v. 357 Corp., 453 Mass. 585, 599-600 (2009). Summary judgment in favor of the defendant was granted on all counts. Background. We summarize the facts derived from the summary judgment record, relying primarily on the parties’ statements of undisputed facts, see Rule 9A(b)(5) of the Rules of the Superior Court (2004), and reserving certain facts for later discussion in "conjunction with specific issues. The facts are undisputed except as noted. The plaintiff, Douglas Godfrey, worked for the defendant, Globe Newspaper Company, Inc. (Globe), for over twenty years. He started in 1977 as a substitute newspaper handler, later worked as a press operator (pressman), and became an assistant press foreman in 1997. The position of pressman consisted of loading and operating the presses to produce the printed newspapers and involved frequent climbing on the machinery. While the assistant press foreman position involved supervision of a “crew” of pressmen, it also required climbing on the presses to ensure that the paper was loaded properly and to resolve production problems. In January, 2002, the plaintiff slipped on oil while working on the printing floor and was seriously injured. He was placed on extended medical leave and was out of work for most of the following one and one-half years. While on leave, the plaintiff underwent multiple surgeries on his shoulder and knee, the last one in March, 2003. Throughout this period, pursuant to its policy for supervisory employees injured on the job, the Globe continued to pay the plaintiff his full salary. In turn, the Globe required that the plaintiff remit to the Globe all workers’ compensation payments that he received that related to the injury. Although still in pain, the plaintiff returned to work on June 3, 2003. He asserts that he brought with him a letter from his physician stating that he was unable to work for more than five hours at a time and that his work schedule should be limited to five hours per day.® The plaintiff claims that he showed this letter to Frank Volpe, the general foreman, who derided the plaintiff and took no action on the plaintiff’s request. The plaintiff states further that another assistant press foreman, James Alexander, took the letter from the plaintiff, tore it up while Volpe watched, and said that if the plaintiff was unable to work a full shift, he should not have come back to work. The plaintiff continued working until July 21, 2003, but suffered severe pain and had to leave early or not report to work a minimum of several days each week. At his deposition, the plaintiff was unable to recall how frequently he left work early, but stated that he believed he had not worked even three days per week for the entire seven-week period. He did not recall any occasion on which his request to leave early was denied. His condition continued to deteriorate, and on July 21,2003, he took another leave due to workplace injury pursuant to the terms of the workers’ compensation act. On August 11, 2003, while on leave, the plaintiff was asked to come to work and meet with Globe managers concerning the remittance of workers’ compensation checks that the plaintiff had not signed over to the Globe. On August 13, 2003, the plaintiff was examined by a physician employed by the Globe’s workers’ compensation insurer. The physician’s report, dated August 14, 2003, states that the plaintiff was unable to work at all at that time. On August 20, 2003, the plaintiff was informed by letter that his employment was terminated because of his failure to return the workers’ compensation payments. After his termination, the plaintiff underwent additional surgeries on both of his knees during 2004. A letter from a workers’ compensation physician in November, 2004, stated that, if his condition continued to improve, the plaintiff might be able to return to work as a full-time pressman. In December, 2004, more than fifteen months after the termination, and without acknowledging that his employment had been terminated, the plaintiff sent a letter to the Globe seeking an “accommodation to permit [his] return” to work. The letter asserted that the plaintiff believed light-duty positions existed that would not require him to stand or climb on the presses. The Globe declined to offer the plaintiff the sedentary position he sought (or, indeed, any position). In January, 2005, after his complaint before the Massachusetts Commission Against Discrimination was dismissed for lack of probable cause, the plaintiff filed a complaint in the Superior Court alleging unlawful discrimination in employment under G. L. c. 15IB (count I); failure to give preference in hiring under the terms of the workers’ compensation act, G. L. c. 152, § 75A (count II); unlawful discrimination because of the filing of the workers’ compensation claim, G. L. c. 152, § 75B (count HI); defamation (count IV); wrongful termination in violation of public policy based on complaints to the Occupational Safety and Health Administration concerning workplace safety conditions at the Globe (count V); and invasion of privacy (count VE).’ A judge in the Superior Court granted the Globe’s motion for summary judgment on all claims. The plaintiff appealed from the ensuing final judgment as to count I (discrimination due to disability), count II (failure to give preference in hiring), and count HI (discrimination for exercising rights under the workers’ compensation act). The Appeals Court affirmed the motion judge’s decision on the preferential hiring claim, but vacated the judge’s decision on the two unlawful discrimination claims. See Godfrey v. Boston Globe Newspaper, Inc., 73 Mass. App. Ct. 1123 (2009). We allowed the defendant’s petition for further appellate review with respect to the plaintiff’s claims on counts I and III, and we affirm the judge’s decision on both counts. Discussion. The plaintiff argues that, when he returned to work in June, 2003, he was denied the reasonable accommodation he sought to enable him to perform his duties as an assistant press foreman, in violation of G. L. c. 151B, § 4; that, because no reasonable accommodation was offered, he was forced to take a second workers’ compensation leave; and that, shortly after he exercised his rights under the workers’ compensation act at the end of July, 2003, and without engaging in any discussion of possible reasonable accommodations, the Globe terminated his employment, in violation of both G. L. c. 151B, § 4, and G. L. c. 152, § 75B. The plaintiff contends that the reason offered by the Globe for the termination was a pretext for unlawful discrimination because of his physical disability and his exercise of rights under the workers’ compensation act. Asserting that there are genuine issues of material fact concerning whether he is a “qualified handicapped person” under the terms of both statutes, the plaintiff contends that the judge erred in granting the Globe’s motion for summary judgment on both the G. L. c. 151B, § 4, and G. L. c. 152, § 75B, claims. The Globe contends that there is no material dispute of fact and that the judge determined correctly that the plaintiff is not a “qualified handicapped person” pursuant to G. L. c. 151B, § 4, and G. L. c. 152, § 75B. The Globe maintains also that, because the plaintiff is not entitled to protection under either statute, it is not necessary to determine whether the reason for the termination of employment was a pretext. The Globe asserts also that it terminated the plaintiff’s employment not because of his disability or his exercise of rights under the workers’ compensation act, but because he failed to remit to the Globe more than one year’s worth of workers’ compensation checks. 1. Standard of review. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002). In deciding a motion for summary judgment, the motion judge must consider all factual allegations, and draw all reasonable inferences therefrom, in favor of the nonmoving party. See Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 242-243 (2007). We review the material evidence in the light most favorable to the nonmoving party. See Correia v. Fagan, 452 Mass. 120,130 (2008). Summary judgment is generally disfavored in cases involving employment discrimination because the question of intent requires a credibility determination. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-440 (1995). Nonetheless, summary judgment on an employment discrimination claim may at times be appropriate. See Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 705 (1992); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 438 (1989). 2. Discrimination in employment on the basis of disability. Pursuant to G. L. c. 15IB, § 4 (16), it is unlawful for an employer “to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” A “qualified handicapped person” is one who is “capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with a reasonable accommodation to his handicap.” See G. L. c. 151B, § 1 (16). A “qualified handicapped person” is entitled to a “reasonable accommodation” that will enable him to perform the essential functions of his job, so long as the accommodation does not place an undue burden or hardship on the employer. See G. L. c. 151B, § 4 (16); Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383, 386 n.3 (1993). The employee bears the initial burden of producing some evidence that an accommodation that would allow him or her to perform the essential functions of the position would be possible, and therefore that he or she is a “qualified handicapped person.” See id. at 386 n.3. Once an employee “make[s] at least a facial showing that reasonable accommodation is possible,” the burden of proof (of both production and persuasion) shifts to the employer to establish that a suggested accommodation would impose an undue hardship. See id. If the accommodation proposed by the employee appears unduly onerous, the employer has an obligation to work with the employee to determine whether another accommodation is possible. See Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 603-604 & n.19 (2004). To establish a prima facie case of employment discrimination on the basis of handicap under G. L. c. 15IB, § 4 (16), the plaintiff must show that he is “handicapped” within the meaning of the statute; that he is a “qualified handicapped person” capable of performing the essential functions of his job either without accommodation or with a reasonable accommodation; and that he was subject to an adverse employment action because of his handicap. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002). Since the parties do not dispute that the plaintiff is “handicapped” within the meaning of the statute, we turn to whether he is a “qualified handicapped person.” a. Essential job function. The plaintiff contends that there is a material dispute of fact whether climbing on the newspaper presses (a task that he admits he was incapable of performing in the summer of 2003) is an “essential function” of his position as an assistant press foreman. The plaintiff argues that, although climbing on the presses is an essential job function for a press operator, most of the duties of an assistant press foreman involve supervision of the press “crew” and troubleshooting rather than physically adjusting the presses. This argument is unavailing. Based on the plaintiff’s own statement during the summary judgment proceedings, there is no factual dispute concerning an assistant press foreman’s essential job functions. The Globe asserted in its statement of undisputed material facts, filed with its motion for summary judgment, see Rule 9A(b)(5) of the Rules of the Superior Court, that “[c]limb-ing on the presses is an essential function of the job, both for a journeyman pressman and for the assistant foreman position that [the plaintiff] held.” In his response to that statement, the plaintiff replied that that fact was “[u]ndisputed.” The plaintiff is correct that whether a particular job duty is an “essential job function” is “intensely fact-based,” requiring “individualized inquiry and . . . appropriate findings of fact.” See Cargill v. Harvard Univ., supra at 587-588, quoting Cox v. New England Tel. & Tel. Co., supra at 383-384. The plaintiff is also correct that evidence in the record disputes whether climbing on the presses was an essential function of an assistant press foreman. However, this evidence cannot overcome the plaintiff’s concession in his response to the statement of undisputed facts and thus does not create a material dispute of fact. See Mass. R. Civ. R 56 (c), as amended, 436 Mass. 1404 (2002); Curly Customs, Inc. v. Bank of Boston, N.A., 49 Mass. App. Ct. 197, 199 n.2 (2000). If the statement of undisputed facts is to have any meaning, the motion judge must be able to rely on it. See Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34, 46 n.18 (2005), quoting Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399 (2002) (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,’ who must then determine whether the record contains any material facts in dispute”). b. Reasonable accommodation. The plaintiff maintains that, even if climbing is an essential function, there is a material question of disputed fact whether a reasonable accommodation was possible. He argues that the Globe failed to consider two accommodations he sought, either assignment to a shorter work day or placement in a light-duty position. He asserts further that, on those occasions when climbing was necessary, he need not have climbed the presses but rather could have instructed another employee regarding the needed adjustments. He states that a determination whether such accommodations would have been unduly burdensome to the Globe requires a trial. (i) Initial request for accommodation. We consider first the question of reasonable accommodation from the time the plaintiff initially requested one on June 3, 2003, until he went on leave at the end of July, 2003. According to his doctor, at that point the plaintiff was capable of working for five hours per day. The plaintiff testified that he sought an accommodation of a reduced schedule. See Russell v. Cooley Dickinson Hosp., Inc., supra at 457, quoting Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert, denied, 519 U.S. 1029 (1996) (employee has initial burden to request reasonable accommodation in order to be able to perform his existing position). The plaintiff testified further that this request was effectively denied when the press room supervisor stood by as an assistant press foreman ripped up the doctor’s letter and told the plaintiff that if he could not work full time, he should not have returned to work. The plaintiff continued to work less than three shifts per week for the next seven weeks; he admits that he never worked a full week during that period. In addition, the plaintiff left work early on numer