To injuryTo complaintHomeFeedback

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION
NO. 98-12219-RGS

WILLIAM SILVERSTEIN,  Plaintiff

v.

MICROSYSTEMS SOFTWARE, INC.,
THE LEARNING COMPANY, INC.,
RICHARD GORGENS,
DEBRA GORGENS, and
LARRY MASON,  Defendants


CORRECTED RESPONSIVE PLEADING AND COUNTERCLAIM OF DEFENDANTS ANSWER AND FIRST DEFENSE

The named defendants, Microsystems Software, Inc. ("MSI"), The Learning Company, Inc. ("TLC"), Richard Gorgens, Debra Gorgens and Larry Mason (collectively "Defendants"), hereby respond to the numbered paragraphs of plaintiff's Amended Complaint as follows:

1. Defendants are without knowledge or infori-nation sufficient to form a belief as to the allegations of paragraph 1.

2. Defendants are without knowledge as to plaintiff's current resident and otherwise denies the allegations of paragraph 2.

3. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 3.

4. Defendants admit that MSI is a Massachusetts corporation and otherwise deny the allegations of paragraph 4.

5. Defendants admit the allegations of paragraph 5.

6. Defendants admit the allegations of paragraph 6.

7. Defendants admit the allegations of paragraph 7.

8. Defendants admit the allegations of paragraph 8.

9. Defendants admit the allegations of paragraph 9.

10. Defendants admit the allegations of paragraph 10.

11. Defendants admit the allegations of paragraph 11.

12. Defendants admit that the only individual named in MSI's April, 1998 Annual Report to the Corporations Division of the Massachusetts Secretary of the Commonwealth who is not based at One Athenaeum Street, Cambridge, Massachusetts, is Richard Gorgens; and otherwise deny the allegations of paragraph 12.

13. Defendants deny the allegations of paragraph 13.

14. Defendants admit that TLC has merged MSI's operations with its own and operates MSI's business as an integrated part of its business, under common management and control; and otherwise deny the allegations of paragraph 14.

15. Defendants admit the allegations of paragraph 15.

16. Defendants deny the allegations of paragraph 16.

17. Defendants admit the allegations of paragraph 17.

18. Defendants admit the allegations of paragraph 18.

19. Defendants state that paragraph 19 contains no factual allegation to which a response is necessary.

20. Defendants admit that at the time of plaintiff's employment with MSI, MSI was a closely-held company; admit that Richard Gorgens, Debra Gorgens and Larry Mason supervised aspects of MSI's daily operations; and otherwise deny the allegations of paragraph 20.

21. Defendants admit that in the several months prior to his discharge by MSI, plaintiff was engaged in development work on version 4.0 of MSI's local area networked calendar program, CaLANdar; and otherwise deny the allegations of paragraph 21.

22. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 22.

23. Defendants admit that in May, 1995, plaintiff informed MSI of a problem with his wrist; and otherwise deny the allegations of paragraph 23.

24. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 24.

25. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 25.

26. Defendants are without knowledge as to the first sentence of paragraph 26; admit that plaintiff informed defendant Mason of a purported need to take three weeks from work in order to obtain treatment for his wrists; and otherwise deny the allegations of paragraph 26.

27. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 27.

28. Defendants are without knowledge or information sufficient to form a belief as to the allegations paragraph 28.

29. Defendants deny the allegations of paragraph 29.

30. Defendants deny the allegations of paragraph 30.

31. Defendants deny the allegations of paragraph 31.

32. Defendants deny the allegations of paragraph 32.

33. Defendants admit that plaintiff asked for extra memory; and otherwise deny the allegations of paragraph 33.

34. Defendants deny the allegations of paragraph 34.

35. Defendants admit that the MSI defendants did not "have a medical evaluation done of the plaintiff;" and otherwise deny the allegations of paragraph 35.

36. Defendants deny the allegations of paragraph 36.

37. Defendants deny the allegations of paragraph 37.

38. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 38.

39. Defendants admit that some of MSI's advertising materials indicated that CaLANdar 4.0 would be released in the Summer of 1996; and otherwise deny tile allegations of paragraph 39.

40. Defendants deny the allegations of paragraph 40.

41. Defendants admit that the MSI defendants did not independently produce any medical documentation disputing plaintiff's need for time off; and otherwise deny the allegations of paragraph 41.

42. Defendants deny the first sentence of paragraph 42; admit that plaintiff later provided a copy of scheduled airline flights to and from China; and otherwise are without knowledge or information sufficient to form a belief as to the allegations of paragraph 42.

43. Defendants admit the allegations of paragraph 43. 44. Defendants admit the allegations of paragraph 44.

45. Defendants admit that on August 20, 1996 certain of MSI's marketing materials indicated a CaLANdar 4.0 release date of September 3, 1996 and otherwise deny the allegations of paragraph 45.

46. Defendants admit that Larry Mason informed plaintiff that he would be permitted to take time off for an unpaid personal leave three weeks after the CaLANdar 4.0 release date; and otherwise deny the allegations of paragraph 46.

47. Defendants admit that Larry Mason informed plaintiff that lie would be permitted to take time off for an unpaid personal leave with the concurrence of Richard Gorgens; and otherwise deny the allegations of paragraph 47.

48. Defendants admit that in August, 1996 plaintiff infori-ned defendant Mason that his trip to China would commence on September 25, 1996; admit that plaintiff provided a revised travel itinerary; state that the revised itinerary speaks for itself; and otherwise deny the allegations of paragraph 48.

49. Defendants deny the allegations of paragraph 49.

50. Defendants admit that in early September, 1996 defendant Mason informed plaintiff that CaLANdar 4.0 did not have a specified release date; and otherwise deny the allegations of paragraph 50.

51. Defendants deny the allegations of paragraph 51.

52. Defendants are without knowledge or sufficient information to form a belief as to the allegations of paragraph 52.

53. Defendants admit the allegations of paragraph 53.

54. Defendants admit that on or about September 9, 1996 plaintiff provided a note from a physician stating that he should reduce his time at the keyboard per day by spreading it over weekends; and otherwise deny the allegations of paragraph 54.

55. Defendants admit the allegations of paragraph 55.

56. Defendants admit the allegations of paragraph 56.

57. Defendants state that the report of the IME doctor speaks for itself and otherwise deny the allegations of paragraph 57.

58. Defendants admit that plaintiff informed defendant Mason that he had spoken with the IME doctor; and otherwise deny the allegations of paragraph 58.

59. Defendants admit that defendant Mason obtained plaintiff's office keys; and otherwise deny the allegations of paragraph 59.

60. Defendants deny the allegations of paragraph 60.

61. Defendants are without knowledge or information sufficient to form a belief as to additional money spent by plaintiff; and otherwise deny the allegations of paragraph 61.

62, Defendants admit that defendant Mason requested that plaintiff provide software passwords in case they were needed while he was away; and otherwise deny the allegations of paragraph 62.

63. Defendants admit that prior to plaintiff's trip to China, defendant Mason asked how he could contact plaintiff via electronic mail; and otherwise deny the allegations of paragraph 63.

64. Defendants deny the allegations of paragraph 64.

65. Defendants deny the allegations of paragraph 65.

66. Defendants admit that on Thursday, September 26, 1996 at 5:32 pm. Boston time, defendant Mason sent an electronic mail message to plaintiff instructing him to return for work by Friday, September 27, 1996 and indicating that if plaintiff did not return to work by then, he would be considered to have abandoned his job; state that they are without knowledge or information sufficient to form a belief as to whether the electronic message was sent at 5:32 a.m. "China time"; and otherwise deny the allegations of paragraph 66.

67. Defendants deny the allegations of paragraph 67.

68. Defendants admit the allegations of paragraph 68, except to state that they are without knowledge as to whether the electronic mail message was received at approximately 6: 00 a.m. "China time."

69. Defendants admit that plaintiff sent e-mail to defendant Mason suggesting that the termination be deferred until he returned; and otherwise deny the allegations of paragraph 69.

70. Defendants admit that MSI, through defendant Mason, sent an electronic mail message to plaintiff informing him of his termination on September 30. 1996; and otherwise deny the allegations of paragraph 70.

71. Defendants deny the allegations of paragraph 71.

72. Defendants deny the allegations of paragraph 72.

73. Defendants deny the allegations of paragraph 73.

74. Defendants deny the allegations of paragraph 74.

75. Defendants deny the allegations of paragraph 75.

76. Defendants admit that MSI, through defendant Debra Gorgens, refused plaintiff's request to return to work in December, 1996; and otherwise deny the allegations of paragraph 76.

77. Defendants admit the allegations of paragraph 77. 78. Defendants admit the allegations of paragraph 78.

79. Defendants admit that the United States Department of Labor chose not to pursue the matter beyond the initial investigatory stage; and otherwise are without knowledge or information sufficient to form a belief as to the allegations of paragraph 79.

80. Defendants adi-nit that plaintiff Sought weekly benefits Lliidei- the Massachusetts Workers' Compensation Law from MSI and that the parties Llitiiiiately entered into a written settlement of plaintiff's claim approved by the Massachusetts Department of Industrial Accidents; and otherwise deny the allegations of paragraph 80.

81. Defendants state that the written settlement speaks for itself; and otherwise deny the allegations of paragraph 81.

82. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 82.

83. Defendants deny the allegations of paragraph 83.

84. Defendants deny the allegations of paragraph 84.

85. Defendants admit that MSI retained possession of software written by plaintiff; and otherwise deny the allegations of paragraph 85.

86. Defendants deny the allegations of paragraph 86.

87. Defendants admit that MSI has in the past posted openings for technical support engineers; and otherwise deny the allegations of paragraph 87.

88. Defendants admit that plaintiff sought re-employment with MSI in December of 1996 and once in 1997; and otherwise deny the allegations of paragraph 88.

89. Defendants deny the allegations of paragraph 89.

90. Defendants admit the allegations of paragraph 90.

9l. Defendants admit the allegations of paragraph 91.

92. Defendants deny the allegations of paragraph 92.

93. Defendants deny the allegations of paragraph 93.

94. Defendants deny the allegations of paragraph 94.

95. Defendants deny the allegations of paragraph 95.

96. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 96.

97. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 97.

98. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 98.

99. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 99.

100. Defendants are without knowledge or information sufficient to form a belief as to the allegations of paragraph 100.

101. Defendants deny the allegations of paragraph 101.

102. Defendants incorporate herein their responses to paragraphs I through 101.

103. Defendants deny the allegations of paragraph 103.

104. Defendants deny the allegations of paragraph 104.

105. Defendants admit that plaintiff requested periodic breaks from keyboarding during the workday, days off for medical treatment, ergonomic consultation and modification to his workstation, and re-arrangement of his work schedule; and otherwise deny the allegations of paragraph 105.

106. Defendants deny the allegations of paragraph 106.

107. Defendants admit that plaintiff requested three weeks time off from work to obtain treatment for his purported medical condition; and otherwise deny the allegations of paragraph 107.

108. Defendants deny the allegations of paragraph 108.

109. Defendants deny the allegations of paragraph 109.

110. Defendants deny the allegations of paragraph 110.

111. Defendants state that paragraph 111 contains legal argument to which no response is required and otherwise deny the allegations of paragraph 111.

112. Defendants incorporate herein their responses to paragraphs 1 through 111.

113. Defendants deny the allegations of paragraph 113.

114. Defendants admit that plaintiff sought re-employment with MSI; and otherwise deny the allegations of paragraph 114.

115. Defendants deny the allegations of paragraph 115.

116. Defendants state that paragraph 116 contains legal argument to which no response is required; and otherwise deny the allegations of paragraph 116.

117. Defendants incorporate herein their responses to paragraphs I through 116.

118. Defendants deny the allegations of paragraph 118.

119. Defendants deny the allegations of paragraph 119. 120. Defendants deny the allegations of paragraph 120.

121. Defendants admit that plaintiff requested periodic breaks from keyboarding during the workday, days off for medical treatment, ergonomic consultation and modification to his workstation, and re-arrangement of his work schedule; and otherwise deny the allegations of paragraph 121.

122. Defendants deny the allegations of paragraph 122.

123. Defendants admit that plaintiff requested three weeks time off from work to obtain treatment for his medical purported medical condition; and otherwise deny the allegations of paragraph 123.

124. Defendants deny the allegations of paragraph 124.

125. Defendants deny the allegations of paragraph 125.

126. Defendants state that paragraph 111 contains legal arguments to which no response is required; and otherwise deny the allegations of paragraph 126.

127. Defendants admit that plaintiff brought a charge of handicap discrimination before the Massachusetts Commission Against Discrimination against MSI and Debra Gorgens within 180 days of his discharge; and otherwise deny the allegations of paragraph 127.

128. Defendants admit the allegations of paragraph 128. 129. Defendants deny the allegations of paragraph 129. 130. Defendants deny the allegations of paragraph 130.

131. Defendants admit the allegations of paragraph 131.

132. Defendants state that paragraph 132 contains no factual allegations to which a response is required.

133. Defendants incorporate herein their responses to paragraphs I through 132.

134. Defendants admit that MSI has been engaged in commerce or in an industry or activity affecting commerce since 1995; and otherwise state that paragraph 134 contains legal allegations to which no response is required.

135. Defendants deny that during calendar year 1995, MSI had 50 or more employees for each working day during 20 or more calendar work weeks; and otherwise state that paragraph 135 contains legal allegations to which no response is required. .

136. Defendants deny that during calendar year 1996, MSI had 50 or more employees for each working day during 20 or more calendar work weeks; and otherwise state that paragraph 136 contains legal allegations to which no response is required.

137. Defendants deny that during calendar year 1996, MSI employed at least 50 employees within 75 miles of the worksite at which it employed plaintiff; and otherwise state that paragraph 137 contains legal allegations to which no response is required.

138. Defendants admit that during calendar year 1997, MSI had 50 or more employees for each working day during 20 or more calendar work weeks; and otherwise state that paragraph 138 contains legal allegations to which no response is required.

139. Defendants admit that during calendar year 1997, MSI employed at least 50 employees within 75 miles of the worksite at which it had previously employed the plaintiff; and otherwise state that paragraph 139 contains legal allegations to which no response is required.

140. Defendants admit that defendants Richard Gorgens, Debra Gorgens and Larry Mason were, during calendar years 1996 and 1997, persons who acted in the interest of MSI to MSI's employees; and otherwise state that paragraph 140 contains legal allegations to which no response is required.

141. Defendants admit that defendant TLC has been engaged in commerce or in an industry or activity affecting commerce since 1996; and otherwise state that paragraph 141 contains legal allegations to which no response is required.

142. Defendants admit that during calendar year 1996, defendant TLC had 50 or more employees for each working day during 20 or more calendar workweeks; and otherwise state that paragraph, 142 contains legal allegations to which no response is required.

143. Defendants admit that during calendar year 1997, defendant TLC had 50 or more employees for each working day during 20 or more calendar workweeks; and otherwise state that paragraph 143 contains legal allegations to which no response is required.

144. Defendants admit that during calendar year 1998, defendant TLC had 50 or more employees for each working day during 20 or more calendar workweeks; and otherwise

state that paragraph 144 contains legal allegations to which no response is required.

145. Defendants state that paragraph 145 contains legal allegations to which no response is required.

146. Defendants admit that by the time he notified MSI of his purported need for three weeks leave for medical treatment in 1996, plaintiff had been employed by MSI for at least 12 months, during which time he had been employed for at least 1,250 hours of service with MSI; and otherwise state that paragraph 146 contains legal allegations to which no response is required.

147. Defendants deny the allegations of paragraph 147.

148. Defendants state that paragraph 148 contains legal allegations to which no response is required; and otherwise deny the allegations of paragraph 148.

149. Defendants state that paragraph 149 contains legal allegations to which no response is required; and otherwise deny the allegations of paragraph 149.

150. Defendants state that paragraph 150 contains jurisdictional allegations to which no response is required; and otherwise deny the allegations of paragraph 150.

151. Defendants state that paragraph 151 contains legal and procedural allegations to which no response is required; and otherwise deny the allegations of paragraph 151.

152. Defendants state that paragraph 152 contains legal and procedural allegations to which no response is required; and otherwise deny the allegations of paragraph 152.

153. Defendants state that paragraph 153 contains legal and jurisdictional allegations to which no response is required.

154. Defendants state that paragraph 154 contains legal and jurisdictional allegations to which no response is required.

155. Defendants incorporate herein their responses to paragraphs I through 154.

156. Defendants deny the allegations of paragraph 156.

157. Defendants incorporate herein their responses to paragraphs 1 through 156.

158. Defendants deny the allegations of paragraph 158.

159. Defendants incorporate herein their responses to paragraphs 1 through 158.

160. Defendants deny the allegations of paragraph 160.

161. Defendants incorporate herein their responses to paragraphs 1 through 160.

162. TLC denies the allegations of paragraph 162.

SECOND DEFENSE

The Amended Complaint fails to state a claim upon which relief may be granted.

THIRD DEFENSE

Plaintiff was employed at-will and therefore was terminable at-will.

FOURTH DEFENSE

Plaintiff failed to satisfy the administrative prerequisites to bringing some or all of his claims.

FIFTH DEFENSE

Count III is barred as to Richard Gorgens and Larry Mason, as plaintiff failed to file a charge of discrimination against them at the Massachusetts Commission Against Discrimination.

SIXTH DEFENSE

Counts I and III are barred, as plaintiff was not a qualified handicapped person under M.G.L. c. 152, 75B and M.G.L. c. 151B.

SEVENTH DEFENSE

Plaintiff did not, at times pertinent, suffer from a "serious health condition" as that term is defined under the Family and Medical Leave Act ("FMLA").

EIGHTH DEFENSE

MSI was not, at times pertinent, an employer under the Family and Medical Leave Act.

NINTH DEFENSE

Counts 1, 11, III and IV against Richard Gorgens, Debra Gorgens and Larry Mason are barred, as individual liability does not attach under M.G.L. c. 152, 75A and 75B, M. G. L. c. 15 1 B and the FMLA.

TENTH DEFENSE

Plaintiff has failed to mitigate his damages.

ELEVENTH DEFENSE

Count V is barred because the conduct of Richard Gorgens, Debra Gorgens and Larry Mason was privileged.

TWELFTH DEFENSE

Count VIII is barred by the Massachusetts Workers' Compensation Law.

WHEREFORE, defendants request that the Amended Complaint be dismissed and that the Court award them costs and attorneys' fees.


To combined counterclaim and answersTo answers as filed

COUNTERCLAIM

Count I - Libel

1 Counter-plaintiff Microsystems Software, Inc. ("MSI") is a Massachusetts corporation with a place of business in Cambridge, Massachusetts.

2. Counter-plaintiff The Learning Company, Inc. ("TLC") is a Delaware corporation, with its usual place of business in Cambridge, Massachusetts.

3. Counter-defendant William Silverstein ("Silverstein") is a natural person who, on information and belief, currently resides in and is a citizen of Texas.

4. Silverstein was employed by MSI from March, 1993 until September, 1996 as a software engineer.

5. Silverstein was terminated from his employment by MSI for taking an unauthorized leave of absence.

6. TLC acquired the assets of MSI in 1997.

7. Following his termination by MSI and continuing to the present, Silverstein has maintained an Internet website, previously entitled "Bill Silverstein's Home Page" and now entitled "Sorehands.com." Upon information and belief, Silverstein exclusively decides and controls the content of his website.

8. Via his website, Silverstein has made and published a number of false statements about MSI and TLC, including inter alia, that he was harassed at work by MSI's management because of his alleged handicap; that MSI, "owned by the The Leaming Company," fired him because of his alleged medical condition; that MSI is using software which belongs to Silverstein; that MSI violated and refuses to comply with the Family and Medical Leave Act, the Americans With Disabilities Act, M.G.L. c.151B and other laws, that Microsystems "fires an employee who goes to the hospital for medical treatment," and that Microsystems refuses to accommodate injured employees.

9. Through the published statements about them contained in Silverstein's website, MSI and TLC have been exposed to public hatred, ridicule or contempt in a considerable and respectable class in the community. These statements have been made and published recklessly or with actual malice

10. By these statements, plaintiff has caused and continues to cause MSI and TLC damages.

WHEREFORE, counter-plaintiffs MSI and TLC pray that this Court:

A. Find in favor of the counter-plaintiffs, MSI and TLC;

B. Award damages to MSI and TLC; and

C. Award such further relief as the Court deems just and proper.

 

MICROSYSTEMS SOFTWARE, INC.,
THE LEARNING COMPANY, INC.,
RICHARD GORGENS,
DEBRA GORGENS,
and LARRY MASON,

By their attorneys,

Michael L. Rosen, BBO#559954
Tracey E. Spruce, BBO# 638124
Foley, Hoag & Eliot LLP
Dated: December 8,1998