Hostile Work Environment Cases

Maria Lahbibi Ryan vs. Holie Donut, Inc. No. 11-P-1403. Suffolk. March 8, 2012. - October 15, 2012. Present: Katzmann, Sikora, & Agnes, JJ. Practice, Civil, Motion to dismiss. Employment, Retaliation, Sexual harassment, Termination. Anti-Discrimination Law, Sex, Termination of employment. Administrative Law, Exhaustion of remedies. Massachusetts Commission Against Discrimination. Superior Court, Jurisdiction. In a civil action brought by a plaintiff against her employer alleging common-law wrongful termination in violation of a public policy supporting the report of unlawful conduct to law enforcement authorities (here, that she had been sexually assaulted on multiple occasions by a customer of her employer who was an on-duty police officer), the Superior Court judge properly granted the employer’s motion to dismiss, where the claim alleged, in substance, retaliation for the plaintiff’s opposition to her employer’s tolerance of a sexually hostile work environment, within the operation of G. L. c. 151B, § 4(16A), and therefore fell within the statutory jurisdiction of the Massachusetts Commission Against Discrimination, to which the plaintiff had failed to submit an administrative complaint within 300 days of her termination, as required by G. L. c. 151B, § 5. [635-641] Civil action commenced in the Superior Court Department on September 2, 2010. A motion to dismiss was heard by Geraldine S. Hines, J. Michael A. West for the plaintiff. Nancy A. Serventi for the defendant. Sikora, J. By a single-count complaint for damages, Maria Lahbibi Ryan alleged that the defendant, Holie Donut, Inc. (Ho-lie Donut), had fired her because she had complained to Holie Donut and to law enforcement authorities about a pattern of sexual harassment committed at her workplace by a local police officer. She claimed that the retaliatory discharge violated public policy supporting the report of unlawful conduct to authorities and constituted tortious wrongful termination. She appeals from a judgment of dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). A judge of the Superior Court concluded that, in substance, Ryan’s complaint alleged a claim of employer retaliation for her opposition to Holie Donut’s tolerance of a sexually hostile work environment, as prohibited by the antidiscrimination statute, G. L. c. 151B, § 4(4) (forbidding retaliation) and 4(16A) (forbidding sexually hostile work environment). The judge reasoned that the genuine character of the claim had required submission of an administrative complaint to the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the alleged misconduct as a statutory prerequisite for pursuit of any subsequent remedies, and that omission of the mandatory administrative complaint compelled dismissal of Ryan’s common-law action. For the following reasons, we affirm the judgment of dismissal. Background. Because we are reviewing a dismissal pursuant to Mass.R.Civ.R 12(b)(6), we credit hypothetically the allegations of the complaint. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 415 (1988). In 2003, Ryan began employment with Holie Donut, the holder of a Dunkin’ Donuts franchise shop in the city of Chelsea. During the course of her work at the shop, Chelsea police Officer Michael Morabito became a regular customer. The shop was located at 478 Broadway; Officer Mora-bito’s station house was located at 500 Broadway. When he patronized the store, Morabito was in uniform and on duty. According to the complaint, in 2006 Morabito began a course of conduct in which he (1) made sexually suggestive comments to Ryan, (2) made them in the presence of customers and other employees, (3) made sexual propositions to her, (4) made “sexually intimidating” comments to her, and (5) on one or more occasions “touch[ed] and sexually assaulted] ” her. The management and ownership of Holie Donut were aware of this behavior. Nonetheless, they did not report his conduct to any authorities and did not bar or limit his access to the shop. In early September of 2007, Ryan informed Holie Donut that she intended to report Morabito’s conduct to law enforcement authorities. The management discouraged that course and indicated that any “legal steps” would create “problems” for Holie Donut and Ryan. Also during the first half of that month, Morabito and at least one other police officer discouraged Ryan from taking any action. Ryan nevertheless “initiated steps to report the conduct” and “steps to protect herself” (unspecified in the complaint). Holie Donut then discharged her. Ryan brought the present common-law action for wrongful termination on September 2, 2010, almost three years later. Ho-lie Donut moved successfully for dismissal upon the ground that Ryan had failed to submit a prerequisite timely administrative complaint. This appeal ensued. Analysis. 1. Standard of review. Review of the allowance of a rule 12(b)(6) motion proceeds de nova. See Harhen v. Brown, 431 Mass. 838, 845 (2000); Housman v. LBM Financial, LLC, 80 Mass. App. Ct. 213, 216 (2011). To assess the legal sufficiency of the complaint, we take as true all factual allegations and any reasonable inferences from those allegations. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011); Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). The factual allegations, as a matter of both plausibility and law, must support an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Finally, the presence of allegations or information constituting a conclusive affirmative defense can spell the demise of a complaint. See, e.g., Bagley v. Moxley, 407 Mass. 633, 637-638 (1990) (application of issue preclusion); Daniel v. Contributory Retirement Appeal Bd., 418 Mass. 721, 722 (1994) (failure to exhaust administrative remedies); Babco Indus., Inc. v. New England Merchants Natl. Bank, 6 Mass. App. Ct. 929, 929 (1978) (applicability of statute of limitations). 2. Common-law claim of wrongful termination. Ryan characterizes her cause of action not as a specific allegation of discrimination, but rather as a generic claim of wrongful discharge beyond the coverage of the antidiscrimination provisions of G. L. c. 151B, § 4(4) and 4(16A). She describes Holie Donut’s dismissal of her as “retaliation for reporting a crime to law enforcement authorities, consisting of an assault to her person, perpetrated by an on-duty, uniformed and armed police officer while in an ‘off limits to the public’ area at the plaintiff’s place of employment.” To the same effect, she argues that “[germinating an employee for reporting a crime is not a practice that is expressly forbidden by any section of [G. L.] c. 151B. Such a termination is a common law tort, without a remedy articulated in [c.] 151B.” That view would place her dismissal within the tort of wrongful termination of an at-will employee. Even if “the employer does not gain a financial advantage, an at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.” DeRose v. Putnam Mgmt. Co., 398 Mass. 205, 210 (1986) (recognizing claim under Massachusetts common law). The public policy must be well defined, important, and preferably embodied in a textual law source. See Mello v. Stop & Shop Cos., 402 Mass. 555, 561 n.7 (1988); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472-476 (1992). A public policy violation arises, at the least, from a termination punishing an employee’s assertion of a legally guaranteed right, compliance with a legal requirement, or refusal to commit prohibited conduct. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). See also Hobson v. McLean Hosp. Corp., 402 Mass. at 416-417 (allegations of discharge for enforcing municipal and State law standards of patient supervision constitute claim); Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (wrongful termination can arise from circumstances in which company discharges employee for cooperation with customs officers’ investigation of employer even though employee had no legal duty to cooperate); Shea v. Emmanuel College, 425 Mass. 761, 762-763 (1997) (discharge of employee for reporting criminal wrongdoing within organization to superiors within organization would constitute actionable violation of public policy). In short, Ryan insists that the thrust of her complaint is not her discharge for reporting an experience of discriminatory sexual harassment in the workplace, but instead her discharge for reporting criminal activity (assaultive touching on one or more occasions) by an on-duty police officer to law enforcement officials; and that such a distinctive allegation falls outside the operation of G. L. c. 151B. We respect the contention that disclosure of misconduct, especially by on-duty law enforcement officers, serves a public purpose. However, two considerations defeat that argument in this instance: a realistic assessment of the complaint and the full reach of c. 15IB. 3. Allegations of the complaint. A full and balanced view of the complaint reveals a story of sexual harassment. The alleged events extended in a pattern for a year or more. They were predominantly verbal and open. “[0]ne or more” acts consisted of “touching and sexually assaulting” Ryan. The complaint does not elaborate upon the details of any physical contact or relate any contemporaneous report of it to law enforcement. It does state that at least one other police officer witnessed or knew about the misconduct, and that Holie Donut management witnessed or knew of the train of events. In full perspective, the assault by offensive touching would constitute the gravest element of a larger pattern of actionable sexual harassment. 4. Exclusivity of the remedies ofG. L. c. 151B. Section 4(16A) of G. L. c. 151B, inserted by St. 1986, c. 588, § 3, prohibits “an employer, personally or through its agents, to sexually harass any employee.” At least since 2002, the MCAD, in its Sexual Harassment in the Workplace Guidelines § III(C) (2002), has advised that “[a]n employer may ... be liable for the sexual harassment of its employees by certain non-employees, such as customers . . . when the employer knew or should have known about the conduct and failed to take prompt, effective and reasonable remedial action. . . . The greater the employer’s ability to control the non-employee’s conduct, the more likely it will be found liable for that person’s unlawful harassment.” In Modern Continental/Obayashi v. Massachusetts Commn. Against Discrimination, 445 Mass. 96, 105 (2005), the court expressly adopted that standard: “An employer who passively tolerates the creation of a hostile working environment implicitly ratifies the perpetrator’s misconduct and thereby encourages the perpetrator to persist in such misconduct. . . . Moreover acquiescence on the part of the employer effectively communicates to the victim of harassment that her employer does not care about the hostile environment in which she must work .... [A]n employer who is not part of the solution inevitably becomes part of the problem.” See Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 603-608 (2006) (public employer’s tolerance of employees’ homophobic abuse of coworker creates actionable hostile work environment). If an employer’s inaction in the face of sexual harassment and assault of an employee by a customer falls within the operation of § 4(16A), then all the more so would the employer’s attempt to suppress the employee’s efforts for a remedy. Under this standard, the allegations of Ryan’s complaint fall within the operation of § 4(16A). Section 5 of G. L. c. 15 IB authorizes complaints to the MCAD for remedies of compensatory damages, civil fines, and restraining orders. The complainant must file within 300 days of the alleged act of discrimination. Ibid. Section 9 of c. 15IB, as amended by St. 2002, c. 223, § 2, provides that the administrative proceeding “shall, while pending, be exclusive.” That section provides also that a claimant “may, at the expiration of ninety days after the filing of a complaint with the [MCAD], or sooner if a commissioner assents in writing,” bring a civil action for damages and injunctive relief in the appropriate Superior, Probate and Family, or Housing Court, and incur dismissal of the administrative complaint. In other words, the statute suspends, but does not extinguish, a claimant’s other causes of action. Decisions examining the relationship of the G. L. c. 15IB administrative complaint to common-law claims and other statutory causes of action involving discrimination have stated that commencement of a timely administrative complaint must precede any such common-law claim created after enactment of the statutory remedies now appearing in §§ 5 and 9. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994); Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985) (specifically observing that statutory rights and remedies predated recognition of common-law tort of wrongful discharge in Massachusetts). Occasional language has described the exclusivity and required exhaustion of the c. 15 IB administrative complaint process more categorically. See Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 430 (1987) (“In the absence of a timely complaint to the MCAD, there may be no resort to the courts”); Cherella v. Phoenix Technologies, Ltd., 32 Mass. App. Ct. 919, 919 (1992) (“Resort to the courts is not available for a complaint of discrimination within the jurisdiction of the MCAD unless the person claiming to have been the object of unlawful discrimination first makes a timely complaint to that agency”). Multiple reasons favor a required first resort to the administrative system afforded by G. L. c. 15IB. It furnishes a comprehensive remedial process designed to resolve claims of discrimination with fairness and efficiency for both the complainant and the respondent. Its administrative attributes include a reasonably prompt time limit (300 days) promoting notice to the respondent and the preservation of evidence by all parties, a neutral investigation and probable cause determination, and conciliation services, pursuant to § 5; compensatory damages, civil fines, restraining orders, and the award of reasonable attorney’s fees to deserving claimants, pursuant to § 9; and the cumulative institutional judgment of a specialized agency accustomed to distinguishing meritorious from unmeritorious grievances. See Charland v. Muzi Motors, Inc., supra at 583; Melley v. Gillette Corp., supra at 512-513; Windross v. Village Automotive Group, Inc., 71 Mass. App. Ct. 861, 863-864 (2008) (purpose of mandatory submission to MCAD process “is twofold: [1] to provide the MCAD with an opportunity to investigate and conciliate the claim of discrimination; and [2] to provide notice to the defendant of potential liability”). Those benefits of a calibrated legislative scheme offer distinct advantages against traditional litigation in trial courts of general jurisdiction upon multiple variant theories of statutory and common-law wrongdoing. Therefore, as a jurisdictional prerequisite, the complaint must pass first through the MCAD portal for the potential advantages of timeliness, efficiency, expertise, and negotiation. The statute maintains access to judicial review in the Superior Court under the standards of the Administrative Procedure Act, G. L. c. 30A, § 14(7), and, as noted, the option of withdrawal from the administrative process after ninety days for direct access to the courts. 5. Present circumstances. The allegations of Ryan’s complaint charge Holie Donut management not only with tolerance of a customer’s continuing sexual harassment of its employee, but also with deterrence of her efforts to seek help, and finally with retaliatory discharge of her for those eventual efforts. We acknowledge the peculiar circumstance alleged in this case: that the perpetrating customer was a member of the local police force often in the company of a second officer, and that one or more members of the police department may have inhibited management’s willingness to assist its employee. However, that circumstance would not relieve management of the duty to do so. A retail shop in the shadow of a police station does not possess an exemption from the duty of a reasonable effort to safeguard the security and dignity of its employees from sexual harassment by a police officer. As discussed at oral argument, an abuse of official authority would more properly intensify the employer’s duty to act. Because Ryan’s grievance fell within the statutory jurisdictian of the MCAD, she should have submitted an administrative complaint to the agency within 300 days of her retaliatory discharge, and not commenced a common-law action in the Superior Court almost three years later. She was not entitled to bypass the mandatory and preferred procedure. The omission creates a conclusive affirmative defense requiring dismissal. Judgment affirmed. The complaint does not identify the “authorities" to whom Ryan reported or complained. Other documents in the appellate record recite, without objection by either party, (1) that the Chelsea police department conducted an internal investigation, “sustained” Ryan’s complaint, and imposed unspecified discipline upon Officer Morabito; and (2) that Ryan received compensation of $8,121.62 for lost wages under the terms of the statute providing compensation to victims of violent crimes, G. L. c. 258C, administered by the Attorney General. The court surveyed comparable Federal case law and prescribed as a standard of liability the test whether the employer reasonably knew of the harassment and whether it made reasonable efforts to remedy it, whether completely successful or not. Modern Continental/Obayashi v. Massachusetts Comm. Against Discrimination, 445 Mass. at 108-109. In that instance, employees of a subcontractor harassed a female carpenter employed by Modem Continental/Obayashi, the construction general contractor. Modern Continental took reasonable steps, but not completely effective ones, to end the harassment. The court found its efforts reasonable and reversed the administrative decision of the MCAD imposing liability. Id. at 118. The same clause of § 9 adds that “the final determination on the merits shall exclude any other civil action, based on the same grievance of the individual concerned.” In 1965, the Legislature first broadly prohibited “discrimination in employment because of sex” by addition of “sex” as a forbidden basis for disparate “conditions ... of employment.” St. 1965, c. 379, § 4. The formal recognition of tortious wrongful discharge occurred in DeRose v. Putnam Mgmt. Co., 398 Mass. at 210, in 1986. As the court observed in Melley v. Gillette, 19 Mass. App. Ct. at 512, these features resemble the benefits attributed to the exhaustion of administrative remedies and promoted by the legislative requirement of a ninety-day interval at the agency. This category of customer would not fit comfortably within the employer’s range of “control,” but it would demand the employer’s reasonable effort to protect its worker and to fulfil the law. “Few institutions depend as heavily on integrity and credibility for the effective performance of their duties as do police departments.” Local 346, Intl. Bd. of Police Officers v. Labor Relations Commn., 391 Mass. 429, 439 (1984). As recounted above, see note 1, supra, the record indicates that the department investigated and sustained Ryan’s complaint and imposed discipline. The motion judge properly relied upon Melley v. Gillette Corp., 19 Mass. App. Ct. at 512-513, another instance in which a plaintiff omitted the administrative process and filed an action for wrongful discharge in the Su

Chelsea D. Scott & another vs. Encore Images, Inc., & another. No. 10-P-1222. Essex. March 7, 2011. - October 18, 2011. Present: McHugh, Smith, & Carhart, JJ. Anti-Discrimination Law, Employment, Handicap, Termination of employment. Handicapped Persons. Employment, Discrimination, Termination. In a civil action claiming discrimination in employment on the basis of handicap, the judge did not err in granting summary judgment in favor of the defendant employer, where the plaintiff failed to demonstrate that he was a qualified handicapped person when he was terminated, in that, three months prior to the time the plaintiff claimed he would have been able to return to work, he accepted a lump-sum workers’ compensation settlement, which created a statutory presumption that he was unable to work, even with reasonable accommodation, for thirty months, and the record contained no rebuttal of that presumption; further, given that the record was clear that, at the time of the termination of his employment, the plaintiff was not capable of performing any of the essential requirements of his job, the employer was not required to give him another job or to give him an indefinite leave of absence. [665-668] In a civil action claiming that the defendant employer harassed and terminated the plaintiff wife because of her husband’s disability and in retaliation for confronting the employer about the harassment, even assuming that the wife had “associational” standing to pursue those claims, the judge properly granted summary judgment in favor of the employer, where the record did not support the wife’s claim that the employer’s actions created a hostile work environment, and where the wife had no reasonable expectation of proving that her termination constituted retaliation as a result of her husband’s protected activity. [668-670] Civil action commenced in the Superior Court Department on November 17, 2008. The case was heard by Mitchell H. Kaplan, J., on a motion for summary judgment. Sol J. Cohen for the plaintiffs. Joseph F. Hardcastle for the defendants. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. Tina Brelin-Penney. Laurel Mervis. McHugh, J. Chelsea D. Scott and Tina Brelin-Penney, husband and wife, appeal from a Superior Court judgment dismissing employment discrimination claims they brought against their former employer, Encore Images, Inc. (Encore), and Laurel Mervis. The claims stem from an injury Scott suffered while he was employed by Encore as a warehouse coordinator. The injury resulted in a disability, a workers’ compensation proceeding and, they claim, their discharge. Both plaintiffs filed claims with the Massachusetts Commission Against Discrimination (MCAD) asserting that they had been terminated in violation of G. L. c. 151B. Later, they filed claims in Superior Court where, after completion of customary preliminaries, Encore moved for summary judgment. A judge of that court allowed the motion in a comprehensive and thoughtful memorandum. Judgment of dismissal soon entered, and this appeal followed. We affirm. Background. It appears that Encore is a small manufacturer of toner ink cartridges for printers and facsimile machines, and provides in-house servicing and repairs for its customers. The company, which employs approximately fourteen people, is owned and operated by Paul and Laurel Mervis. Encore employed Scott as its warehouse coordinator. The position was described as involving “constant lifting of items of varying weights and sizes anywhere from a few ounces up to approx [fifty pounds]. The majority of job time is spent with the up and down, off and on part of a ‘warehouse coordinator’ position.” Scott’s other responsibilities included maintaining and managing the warehouse, shipping and receiving functions such as packaging and shipping orders to customers, and assisting clients and technicians with loading and unloading their cars. Scott worked in the warehouse, and Brelin-Penney worked as Encore’s bookkeeper. On September 11, 2006, Scott fell from a ladder in Encore’s warehouse and injured his left shoulder. Three days later, a representative from Quadrant Health Strategies, to which Scott had gone for medical care, wrote that Scott could “resume work with limits,” which included prohibitions on repetitive motion of his left arm, on reaching above his shoulders or below his knees, and on lifting, pushing, or pulling more than ten pounds. On September 27, 2006, Dr. Freedman of Quadrant Health Strategies changed those limits to prohibit Scott from pushing, pulling, or lifting anything over five pounds. As a result of the September 27 report, Encore hired an ergonomist to “job shadow” Scott in an effort to find techniques that would allow him to do his job despite the injury and the limitations the doctor imposed. The effort failed. By November 7, 2006, Scott’s prognosis worsened when Dr. Fehnel, an orthopedic surgeon, reported he needed surgery for a tom cartilage in his left rotator cuff. As a result, Dr. Fehnel stated that Scott was prohibited from any lifting and should do “desk work only.” A day later, Scott informed Laurel Mervis that because he needed surgery, he would not be able to return to work. He did not provide her with an anticipated return date and, in fact, never worked at Encore again. Scott had shoulder surgery on December 11, 2006. Postoperative orders prohibited him from using his left arm and required that he keep it in a sling for four weeks. The four weeks passed, but a January 17, 2007, medical report revealed that he continued to experience “quite a bit of pain” and that for at least six more weeks he was to lift nothing heavier than a cup of coffee. In that report, Dr. Fehnel observed that he “[would] not have [Scott] return to any warehouse lifting or anything, until he is at least 3, if not 4 months, from the time of his surgery.” Moreover, Dr. Fehnel stated that Scott would “remain out of work until [he] reassess [ed] him in mid to end February to assess his progress with therapy and potential modified work capacity in the future.” Notwithstanding a variety of different approaches to treatment, Scott’s condition did not improve over the ensuing months. Indeed, on April 26, 2007, Dr. Fehnel reported that Scott was experiencing so much pain that he required emergency room treatment. That report, the last one the record contains, also suggested for the first time that Scott’s disability might be permanent. On June 6, 2007, Scott reached a $45,000 lump-sum settlement with Encore’s workers’ compensation insurer for future weekly workers’ compensation benefits. The settlement was based on an average weekly wage of approximately $700. The Department of Industrial Accidents approved the settlement on July 2, 2007. See G. L. c. 152, § 48. A provisional worker, whom Encore had hired in January to fill Scott’s position until he returned, continued to work at Encore until August 7, 2007, and was subsequently replaced with a permanent employee. By mid-October, Scott’s health had improved to the point that he was ready to return to work, though by then he was involved in this litigation and did not inform Encore of his recovery. Instead, he enrolled in a six-week truck driver training program. He successfully completed the program and found employment as a tractor-trailer truck driver within a month thereafter. As for Brelin-Penney, she claims she and Laurel Mervis enjoyed a friendly relationship before Scott’s injury. Beginning in early 2007, she claims, Mervis began to harass her. The harassment consisted of asking her questions on more than five occasions between January and May about Scott’s progress and his anticipated return to work. Brelin-Penney characterizes Mervis’s tone as accusatory during these conversations, and claims that Mervis would pull Brelin-Penney’s employee file and make notes in it while they spoke. Brelin-Penney consistently told Mervis that Scott would return when his doctors cleared him to do so. The rift between Brelin-Penney and Mervis came to a head on May 17, 2007. On that date, Mervis had been speaking with a man named A1 Rizzo, who worked with Brelin-Penney’s son, Isaiah, in a nearby warehouse where Mervis had helped him get a job. During the conversation, Mervis mentioned that Isaiah was planning to return to college the following month, something Rizzo apparently did not know. She then mentioned the conversation to Brelin-Penney, asking her why Isaiah had not divulged his plans to his employer. That question outraged Brelin-Penney, who accused Mervis of trying to meddle in her family life and trying to get Isaiah fired. The exchange escalated until BrelinPenney, voice raised in anger, told Mervis that Isaiah thought she was “the rudest fucking person he’s ever met,” and left the office for home, loudly slamming the door behind her. Mervis, who has multiple sclerosis and whose physicians had advised her to avoid stressful situations, was extremely upset by the incident. Through a relative who acted as Encore’s lawyer, she informed Brelin-Penney that evening that she was not to return to work at Encore again. A letter from Encore informing Brelin-Penney that she had been terminated soon followed. Discussion. We review the allowance of a motion for summary judgment de novo, see Miller v. Cotter, 448 Mass. 671, 676 (2007), seeking to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). a. Scott’s claim. To make out a prima facie case of employment discrimination based on a disability, Scott must show that he was a “qualified handicapped person” and that he was terminated from his job at Encore because of his handicap. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002). For purposes of summary judgment, Encore concedes that Scott was employed by Encore, that his shoulder injury amounted to a handicap as defined by G. L. c. 15IB, § 1(17), and that he was terminated from his position because of his handicap.* ** Accordingly, the only disputed issue is whether Scott was a “qualified handicapped person” when he was terminated. General Laws c. 151B, § 1(16), as inserted by St. 1983, c. 533, § 2, defines a “qualified handicapped person” as “a handicapped person 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 reasonable accommodation to his handicap.” For two reasons, Scott did not meet that definition. First, on July 2, 2007, three months before Scott now claims that he would have been able to return to work, he accepted a $45,000 lump-sum workers’ compensation settlement. Acceptance of the settlement triggered the provisions of G. L. c. 152, § 48(4), as appearing in St. 1991, c. 398, § 75, which in material part state that: “the acceptance of any amount in return for the right to claim future weekly benefits shall create a presumption that the employee is physically incapable of returning to work with the employer where the alleged injury occurred. Such presumption shall continue for a period of one month for each fifteen hundred dollar amount included in the settlement for future weekly benefits. No re-employment rights shall inure to such employee under this chapter during any period of presumption of incapacity as herein provided.” Under the terms of the statute, then, Scott’s acceptance of the settlement created a presumption that he was unable to work, even with reasonable accommodation, for thirty months, or until January, 2010. See Safford vs. Wyman Gordon Co., U.S. Dist. Ct., No. 96-40185-NMG, slip op. at 6 (D. Mass Nov. 10, 1997). Although § 48(4) creates a presumption, the presumption is rebuttable. Here, though, the record contains no rebuttal. Indeed, Scott has not discussed, or even cited, the statute, and the record is devoid of any evidence that Scott ever received medical clearance to resume work as a warehouse coordinator. Instead, he underwent retraining and found another line of work. Even if one puts § 48(4) entirely to one side, Scott faces a second insurmountable problem. The record will not support his claim to be a qualified handicapped person, i.e., a person who could, with reasonable accommodation, perform the essential functions of his job. By April 26, 2007, almost eight months after the accident, the record is clear that he was not capable of performing any of the essential requirements of the job. Nevertheless, Encore had installed a placeholder and had kept the job open pending Scott’s recovery. At that point, only two accommodations were possible. One would have been to provide Scott with a different job. But the record contains no evidence that Encore had another job to give Scott and, even if it did, it was not required to do so. See, e.g., Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454; Tompson v. Department of Mental Health, 76 Mass. App. Ct. 586, 596 (2010). The other would have been to give him an indefinite leave of absence, another step Encore was not required to take. Russell, supra at 455-457. On this record, therefore, Scott was not a “qualified handicapped person” and Encore did not impermissibly discriminate against him when it discharged him from his employment. Consequently, the judge properly allowed Encore’s motion for summary judgment dismissing his claim. b. Brelin-Penney’s claim. Brelin-Penney claims that Encore harassed and terminated her because of Scott’s disability and in retaliation for confronting Laurel Mervis about the harassment. She does not claim that she, herself, is disabled or that she was terminated because of her own disability, but claims “associational standing” to pursue the claims just described. Encore resists Brelin-Penney’s claim by asserting that G. L. c. 15IB provides no basis for an “associational” claim like the one she proffers. It acknowledges that the MCAD, in three opinions issued over the past thirty years, has allowed such claims to proceed but states that, in doing so, the MCAD exceeded its authority. The language of the statute does not embrace such claims, Encore asserts, and it points to Macauley v. Massachusetts Commn. Against Discrimination, 379 Mass. 279, 280 (1979), for the proposition that the MCAD has no power to stretch the statute so as to encompass claims the Legislature did not include. This is a case of first impression for this court, but this is not the record on which to decide it, for even if Brelin-Penney has associational standing, her claim fails. To make out a prima facie case for retaliation based on Scott’s disability, BrelinPenney has the burden to show that Scott engaged in a protected activity, here the filing of a workers’ compensation claim; that Encore was aware of the protected activity; that Encore engaged in an adverse employment action against Brelin-Penney; and that but for Scott’s actions, Encore would not have taken the adverse action. See MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (1996); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997); Mole v. University of Mass., 442 Mass. 582, 591-592 (2004). Encore does not contest that it knew that Scott filed a workers’ compensation claim, nor does it contest that the filing of the claim is protected activity. Accordingly, the only disputed issues are whether Brelin-Penney suffered any adverse employment action and, if so, whether the adverse action constituted retaliation as a result of Scott’s protected activity. Brelin-Penney claims that Encore’s adverse action consisted of two elements: Laurel Mervis’s harassment, which created a hostile work environment, and Brelin-Penney’s termination. A hostile work environment however, may only serve as the basis for a retaliation charge if it is “objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. Boca Raton, 524 U.S. 775, 787 (1998). In considering the totality of the circumstances, including the severity, frequency, and threatening nature of the alleged harassment and whether it interfered with Brelin-Penney’s work performance, id. at 787-788, this record does not support Brelin-Penney’s claim that Mervis’s actions created a hostile work environment. Brelin-Penney’s harassment claim arises out of the more than five instances between January and May, 2007, on which Mervis asked her questions in an accusatory tone about Scott’s progress and his anticipated return to work, often making notes in her employment file as they spoke. These interchanges cannot be characterized as “severe or pervasive harassment that materially altered the conditions of [Brelin-Penney’s] employment.” Noviello v. Boston, 398 F.3d 76, 92 (1st Cir. 2005). BrelinPenney testified that at no time did Mervis threaten her or her job. In addition, there are no allegations that Brelin-Penney’s work performance was hampered during this period. In December, 2006, she received an “above average” performance review from Mervis which was accompanied with a salary increase. Moreover, through the spring of 2007, well after Scott’s workers’ compensation claim had been filed, Mervis, consistent with her friendly relationship with Brelin-Penney, continued giving her gifts and financial assistance. As for Brelin-Penney’s discharge, though it is undisputed that termination from employment is an adverse employment action, this claim fails as well because she has no reasonable expectation of proving causation, an essential element of a viable retaliation claim. Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 705 (1992). In rebuttal to Brelin-Penney’s claim that she was fired because of Scott’s actions, Encore presented evidence that Brelin-Penney was fired because of the way she conducted herself and the language she used during the argument she had with Mervis about Mervis’s conversation with A1 Rizzo. Upon Encore’s submission of a reason for her lawful termination, the burden shifted back to Brelin-Penney to show that Encore’s reasons were pretextual. Mole, 442 Mass. at 591-592. However, Brelin-Penney does not deny her part in the argument, does not deny Mervis’s pre-existing condition, and does not deny the impact Brelin-Penney’s conduct had on Mervis. Her claim fails as a matter of law. Judgment affirmed. No claim is made that they failed to exhaust their administrative remedies before filing their complaint in Supei Court. This is a generous reading of the record, which contains no medical evidence that Scott was ever capable of returning to his warehouse coordinator position. Indeed, Brelin-Penney testified in her deposition that she did not know if Scott’s physicians had ever cleared him for return to work at Encore. In his deposition, Scott twice said he “guessed” he was able to return to work at Encore in the fall of 2007. That is all the record contains regarding his ability to return. In her brief, Brelin-Penney also asserts that, at some point, Mervis told two other Encore employees, in essence, that Scott was only remaining out of work so that he could get a “huge” workers’ compensation settlement. BrelinPenney’s deposition testimony is hearsay to which Encore objects here, and to which it objected in the Superior Court. The motion judge did not mention the statements in his comprehensive recitation of the facts, thus impliedly sustaining the objection. We likewise ignore these hearsay statements. See Madsen v. Erwin, 395 Mass. 715, 721 (1985); Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 338 (2003). Brelin-Penney and Scott claim that during Brelin-Penney’s May 17