Count I

Workers Compensation - Discrimination and Retaliation

Massachusetts General Laws Chapter 152,  75B

102. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.
102. Defendants incorporate herein their responses to paragraphs 1 through 101.

103. The plaintiff sustained a work-related injury, within the meaning of chapter 152 of the General Laws.
103. Defendants deny the allegations of paragraph 103.
MSI already admitted that Silverstein received a settlement under MGL c.152.

104. The plaintiff would have been capable of performing the essential functions of his job with reasonable accommodations, within the meaning of  75B of chapter 152 of the General Laws.
104. Defendants deny the allegations of paragraph 104.
Here MSI is denies that Silverstein could do his job. MSI demands that Silverstein be in the office, even though MSI agrees that Silverstein was unable to work.

105. The plaintiff requested various reasonable accommodations for his handicap from the MSI defendants, including periodic breaks from keyboarding during the work day, days off for medical treatment, ergonomic consultation and modification to his workstation, and re-arrangement of his work schedule.
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. In response to those requested accommodations, the MSI defendants subjected the plaintiff to increased scrutiny, harassment, and direct interference with the plaintiff's efforts to improve his ability to do his job while maintaining his health.
106. Defendants deny the allegations of paragraph 106.

107. The plaintiff requested, as a reasonable accommodation, three weeks time off from work to obtain medical treatment for his handicap.
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.
It's been well decide in the courts that a small amount of time off of work for recovery or treatment is a reasonable accomodation.

108. On information and belief, the MSI defendants' discharge of the plaintiff was motivated by his assertion of his rights to reasonable accommodation, which are protected under  75B of chapter 152 as well as under other statutes.
108. Defendants deny the allegations of paragraph 108.

109. On information and belief, the MSI defendants' refusal to re-employ the plaintiff was motivated by his assertion of his legal rights to reasonable accommodation, which are protected under  75B of chapter 152 as well as under other statutes.
108. Defendants deny the allegations of paragraph 108.

110. On information and belief, TLC's refusal to directly employ or have MSI re-employ the plaintiff was motivated by his assertion of his legal rights to reasonable accommodation against MSI, which are protected under  75B of chapter 152 as well as under other statutes.
110. Defendants deny the allegations of paragraph 110.

111. The facts set forth state claims against all of the defendants under  75B of chapter 152 of the General Laws.
111. Defendants state that paragraph 111 contains legal argument to which no response is required and otherwise deny the allegations of paragraph 111.

Count II

Workers Compensation - Denial of Preference in Hiring

Massachusetts General Laws Chapter 152,  75A

112. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.
112. Defendants incorporate herein their responses to paragraphs 1 through 111.

113. The plaintiff lost his job with MSI as a result of an injury compensable by MSI under chapter 152 of the General Laws.
113. Defendants deny the allegations of paragraph 113.

114. The plaintiff sought re-employment with MSI after obtaining medical treatment that rendered him able to perform the essential functions of his job or another available job with reasonable accommodations, within the meaning of  75B of chapter 152 of the General Laws.
114. Defendants admit that plaintiff sought re-employment with MSI; and otherwise deny the allegations of paragraph 114.
MSI still denies that Silverstein could not do any job after receiving medical treatment.

115. The MSI defendants and TLC, when it controlled MSI's hiring, denied the plaintiff preference in hiring, to which he was entitled under  75A of chapter 152 of the General Laws.
115. Defendants deny the allegations of paragraph 115.

116. The facts set forth state claims against all of the defendants under  75A of chapter 152 of the General Laws.
116. Defendants state that paragraph 116 contains legal argument to which no response is required; and otherwise deny the allegations of paragraph 116.

Count III

Handicap Discrimination and Retaliation

Massachusetts General Laws Chapter 151B

117. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.
117. Defendants incorporate herein their responses to paragraphs 1 through 116.

118. The plaintiff suffered from a handicap, within the meaning of chapter 151B of the General Laws.
118. Defendants deny the allegations of paragraph 118.

119. The plaintiff was regarded by the MSI defendants and TLC as suffering from a handicap, within the meaning of chapter 151B of the General Laws.
119. Defendants deny the allegations of paragraph 119.

120. The plaintiff was a qualified handicapped person capable of performing the essential functions of his job with reasonable accommodation, within the meaning of  4 of chapter 151B of the General Laws.
120. Defendants deny the allegations of paragraph 120.
Again, MSI denies that Silverstein could do his job.

121. The plaintiff requested various reasonable accommodations for his handicap from the MSI defendants, including periodic breaks from keyboarding during the work day, days off for medical treatment, ergonomic consultation and modification to his workstation, and re-arrangement of his work schedule.
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. In response to those requested accommodations, the MSI defendants subjected the plaintiff to increased scrutiny, harassment, and direct interference with the plaintiff's efforts to improve his ability to do his job while maintaining his health.
122. Defendants deny the allegations of paragraph 122.

123. The plaintiff requested, as a reasonable accommodation, three weeks time off from work to obtain medical treatment for his handicap.
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. On information and belief, the MSI defendants discharged the plaintiff on the basis of handicap and because of his assertion of his rights to reasonable accommodation, which are protected under  4 of chapter 151B as well as under other statutes.
124. Defendants deny the allegations of paragraph 124.

125. On information and belief, the MSI defendants refused to re-employ the plaintiff on the basis of handicap and because of his assertion of his rights to reasonable accommodation, which are protected under  4 of chapter 151B as well as under other statutes.
125. Defendants deny the allegations of paragraph 125.

126. The facts set forth set forth claims against all of the MSI defendants (and, to the extent that TLC and MSI may be treated as a single entity, TLC) under  4 and  9 of chapter 151B of the General Laws for handicap discrimination.
126. Defendants state that paragraph 111 contains legal arguments to which no response is required; and otherwise deny the allegations of paragraph 126.

127. The plaintiff brought a charge of handicap discrimination before the Massachusetts Commission Against Discrimination ("MCAD") against all of the MSI defendants other than Richard Gorgens within the 180 days of his discharge by the MSI defendants.
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. More than 90 days have passed since the plaintiff brought his charge of handicap discrimination before the MCAD.
128. Defendants admit the allegations of paragraph 128.

129. Subsequent to the filing of his charge of handicap discrimination before the MCAD, all of the defendants once again refused to re-employ the plaintiff.
129. Defendants deny the allegations of paragraph 129.

130. The defendants refused to re-employ the plaintiff on the basis of handicap and because of his assertion of his rights to reasonable accommodation, which are protected under  4 of chapter 151B as well as under other statutes.
130. Defendants deny the allegations of paragraph 130.

131. The MCAD has made no decision about the merits of the plaintiff's charge of handicap discrimination.
131. Defendants admit the allegations of paragraph 131.
That's not true anymore, their investators issued an opinion.

132. The plaintiff hereby, pursuant to  9 of chapter 151B, removes his charge of handicap discrimination from the MCAD by complaining of those violations in this action against all of the defendants except Richard Gorgens.
132. Defendants state that paragraph 132 contains no factual allegations to which a response is required.

Count IV

Family and Medical Leave Act - 29 U.S.C.  2601 et seq.

133. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.
133. Defendants incorporate herein their responses to paragraphs 1 through 132.

134. On information and belief, defendant MSI has been engaged in commerce or in an industry or activity affecting commence since 1995, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, during calendar year 1995, defendant MSI had 50 or more employees for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, during calendar year 1996, defendant MSI had 50 or more employees for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.
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.
Again, MSI Lies! MSI already admitted that during calendar year 1996, that MSI had 50 or more employees for each working day during 20 or more calendar workweeks when MSI fired Silverstein.

137. On information and belief, during calendar year 1996, MSI employed at least 50 employees within 75 miles of the worksite at which it employed the plaintiff, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, during calendar year 1997, defendant MSI had 50 or more employees for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, during calendar year 1997, MSI employed at least 50 employees within 75 miles of the worksite at which it had previously employed the plaintiff, within the meaning of 2611 of Title 29 of the United States Code.
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 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, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, defendant TLC has been engaged in commerce or in an industry or activity affecting commence since 1996, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, during calendar year 1996, defendant TLC had 50 or more employees for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, during calendar year 1997, defendant TLC had 50 or more employees for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, during calendar year 1998, defendant TLC had 50 or more employees for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.
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. On information and belief, defendant TLC is a successor in interest to defendant MSI, within the meaning of 2611 of Title 29 of the United States Code.
145. Defendants state that paragraph 145 contains legal allegations to which no response is required.

146. The plaintiff had, by the time he notified MSI of his need for three weeks' leave for medical treatment in 1996, 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, within the meaning of 2611 of Title 29 of the United States Code.
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. The plaintiff was given no notice by any of the MSI defendants of the rights of employees under the federal Family and Medical Leave Act (FMLA),  2601 et seq. of Title 29 of the United States Code, nor of any procedures he would be required to comply with to avail himself of those rights.
147. Defendants deny the allegations of paragraph 147.
MSI's attorney already admitted to the department of Labor that MSI never mentioned the FMLA to Silverstein.

148. The facts alleged set forth a claim under  2617 of Title 29 of the United States Code for intentional violation of  2615(a) and (b) of Title 29 of the United States Code by the MSI defendants - and TLC, as MSI's successor in interest as well as to the extent that MSI and TLC are treated as now being a single entity - for:
  (a) interfering with, restraining, and/or denying the plaintiff's exercise of his right to medical leave,
  (b) by discharging the plaintiff for exercising his right to medical leave, and
  (c) discriminating against the plaintiff in denying his requests for reemployment due to his having:
      (i) exercised his right to medical leave under the FMLA; and
      (ii) complained of MSI's actions to the United States Department of Labor.
148. Defendants state that paragraph 148 contains legal allegations to which no response is required; and otherwise deny the allegations of paragraph 148.

149. The facts alleged set forth a claim under  2617 of Title 29 of the United States Code for intentional violation of  2615(b) of Title 29 of the United States Code by TLC for discriminating against the plaintiff in denying his direct requests for employment with TLC due to his having:
  (a) exercised his right to medical leave under the FMLA and
  (b) complained of MSI's actions to the United States Department of Labor.
149. Defendants state that paragraph 149 contains legal allegations to which no response is required; and otherwise deny the allegations of paragraph 149.

150. This Court has jurisdiction to hear these claims under the provisions of  2617 of Title 29 of the United States Code.
150. Defendants state that paragraph 150 contains jurisdictional allegations to which no response is required; and otherwise deny the allegations of paragraph 150.

151. This count embodies the same cause of action as counts I, II and III of this Complaint, as they arise out of a common nucleus of operative fact and are designed to provide redress for the same wrongful actions, although Count III comprehends a larger number of wrongful actions than do this Count and Counts I and II, due to the greater scope of prohibited acts under MGL ch. 151B than MGL ch. 152 and the FMLA.
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.
The defendants had already stipulated to this in their removal. This has also been decided in the order to remand.

152. Counts V through VIII also arise out of the series of related events as this Count and Counts I, II and III, and are thus part of the same cause of action as well.
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. Counts I and II of this Complaint, arising under Massachusetts' Workers Compensation statute, chapter 152, are not removable to federal court under the express terms of  1445(c) of Title 28 of the United States Code.
153. Defendants state that paragraph 153 contains legal and jurisdictional allegations to which no response is required.

154. As this Count embodies the same cause of action as the non-removable Counts, this case may not be removed to federal court with those Counts, and it may not be removed separately from those Counts as they constitute a single cause of action with this Count that may not be split between different courts without the consent of all parties, consent to which is hereby withheld.
154. Defendants state that paragraph 154 contains legal and jurisdictional allegations to which no response is required.

Count V

Intentional Interference With Advantageous Relationships

155. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.
155. Defendants incorporate herein their responses to paragraphs 1 through 155.

156. The facts set forth above state a claim of unprivileged intentional interference by defendants Richard Gorgens, Debra Gorgens, and Larry Mason with the plaintiff's employment with defendant MSI and his potential re-employment by defendants MSI and TLC, and, to the extent that MSI and TLC are not treated as a single entity, by defendant MSI for unprivileged intentional interference with the plaintiff's potential employment with defendant TLC.
156. Defendants deny the allegations of paragraph 156.

Count VI

Conversion

157. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.
157. Defendants incorporate herein their responses to paragraphs 1 through 157.

158. The facts set forth above state a claim against MSI - and to the extent that MSI and TLC are treated as a single entity, TLC as well - for conversion of the plaintiff's personal property.
158. Defendants deny the allegations of paragraph 158.

Count VII

Breach of Contract

159. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.
159. Defendants incorporate herein their responses to paragraphs 1 through 159.

160. The facts set forth above state a claim against MSI - and to the extent that MSI and TLC are treated as a single entity, TLC as well - for breach of contract.
160. Defendants deny the allegations of paragraph 160.

Count VIII

Negligent or Intentional Infliction of Emotional Distress

161. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.
161. Defendants incorporate herein their responses to paragraphs 1 through 160.

162. To the extent that TLC and MSI are not regarded as a single entity, the actions of TLC set forth above state a claim for negligent or intentional infliction of emotional distress upon the plaintiff by its refusal to consider him for open positions due to his having exercised rights against MSI that were protected by state and federal laws.
162. Defendants deny the allegations of paragraph 162.