No. 94-4858Commonwealth of Massachusetts Superior Court CIVIL ACTION MIDDLESEX, ss.
August 14, 1997
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
BRASSARD, JUSTICE.
Plaintiff, Elizabeth A. Milligan (“Milligan”) brings this complaint for handicap discrimination, sex discrimination, and intentional infliction of emotional distress on the part of her employer, Arkwright Mutual Insurance Company (“Arkwright”), and her supervisor, Norman S. Parks (“Parks”). Defendants now move for summary judgment on all counts of plaintiff’s complaint. For the following reasons, defendants’ motion is ALLOWED in part and DENIED in part.[2]
BACKGROUND
Milligan began to work for Arkwright on or around June 29, 1987. On August 20, 1991, Milligan was told by her supervisor, Parks, that she was required to find a different position in the company or be terminated. Milligan alleges that she looked for another position within the company. There is a dispute among the parties as to the date Milligan was separated from her employment. On April 2, 1992, Milligan filed a Charge of Discrimination with the MCAD.
DISCUSSION
I. Claims under Mass. Const. amend. art. 114: Counts II and V of plaintiff’s complaint allege disability discrimination in violation of Amendment Article 114 of the Massachusetts Constitution. A complete and exclusive remedy for such discrimination is found, however, in Mass. Gen. Laws chapter 151B. See Guzman v. Lowinger, 422 Mass. 570, 571-72 (1996); Tate v. Dept. of Mental Health, 419 Mass. 356, 365 (1995). Summary judgment for defendants will therefore enter on counts II and V of plaintiff’s complaint.
II. Statute of Limitations: Defendants argue that they are entitled to summary judgment on Counts I, III, IV, and VII of plaintiff’s complaint. Defendants allege that plaintiff knew or should have known that she had been subject to the alleged discrimination as of August 20, 1991, and that she failed to file a claim with the MCAD within six months of that date, as required by G.L.c. 151B, § 5.
After a careful review of the summary judgment record, this court has determined that there is a factual dispute as to when Milligan knew or should have known of the discrimination against her. While defendants claim that Milligan knew or should have known that she was terminated upon receipt of the memorandum sent to her on August 20, 1991, Milligan’s response memorandum of August 23 indicates that Milligan believed that she was still being considered for other positions within the company. Moreover, Milligan testified at deposition, in regard to the August 20 memorandum: “I didn’t realize it was a termination letter. I thought it was a recommendation that I relocate to another job, and if I did not relocate, then I would be fired.” A genuine issue of material fact as to when a plaintiff knew or should have known of discriminatory treatment precludes a grant of summary judgment. Wheatley v. American Telephone Telegraph Co., 418 Mass. 394, 399 (1994). This court must then determine not if the evidence suggests that Milligan knew that she was discriminated against in August, but rather whether the evidence is unequivocal, so that no reasonable jury could find that Milligan’s discovery of the discrimination occurred on a date within the statute of limitations period. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252(1986) (in deciding a motion for summary judgment, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for plaintiff on the evidence presented”). The record before the court presents a genuine issue of material fact as to the date plaintiff’s cause of action accrued, and therefore summary judgment is inappropriate on these counts of the complaint.
III. Intentional Infliction of Emotional Distress Claim: Defendants argue that even if the court were to assume that Parks committed all of the acts complained of in the claim for intentional infliction of emotional distress, these acts fail to make out a valid claim. Defendants argue that Parks’ acts were at worst tasteless, and that the type of harm suffered by plaintiff was not the type that no reasonable person could be expected to endure. In light of the claim that Parks knew that Milligan was suffering from cancer and was sensitive about the manner in which her symptoms and the side effects of her treatment manifested themselves, this court cannot rule as a matter of law that Parks’ subsequent alleged taunting of plaintiff did not constitute intentional infliction of emotional distress. The questions of whether Parks intended to inflict emotional distress, whether his conduct was “extreme or outrageous” and whether a reasonable person would have suffered emotional distress as a result of the conduct are therefore to be left to the determination of a factfinder at trial.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendants’ motion for summary judgment be ALLOWED as to counts II and V of plaintiff’s complaint, and that defendants’ motion is otherwise DENIED.
Raymond J. Brassard Justice of the Superior Court
DATED: August, 1997