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Chelsea D. SCOTT & another vs. ENCORE IMAGES, INC., & another.
Chelsea D. SCOTT & another [FN1] vs. ENCORE IMAGES, INC., & another. [FN2] No. 10-P-1222. March 7, 2011. - October 18, 2011. Anti-Discrimination Law, Employment, Handicap, Termination of employment. Handicapped Persons. Employment, Discrimination, Termination. 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. Present: McHugh, Smith, & Carhart, JJ. 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 [FN3] 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.

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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 torn 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,

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