COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss.
SUPERIOR COURT CIVIL ACTION
NO. 98-4820

WILLIAM SILVERSTEIN, Plaintiff

v.

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

AMENDED COMPLAINT

Jury Trial Demanded

Pursuant to Massachusetts Rule of Civil Procedure 15(a), the plaintiff hereby amends his Complaint as a matter of course, prior to the service of a responsive pleading, as to read follows:

1. The plaintiff, William Silverstein, is a natural person who was born and raised a citizen of Massachusetts, and was a citizen of Massachusetts at the time of the termination of his employment described herein and during most of the events thereafter that are alleged herein.

2. The plaintiff is currently residing out of state, which was necessitated to find employment as a result of the actions of the defendants herein, including both his termination and their refusal to re-employ him here.

3. The plaintiff intends to resume his residence in Massachusetts if he can obtain suitable employment here.

4. On information and belief, defendant Microsystems Software, Inc ("MSI") is a Massachusetts Corporation, with a usual place of business at 600 Worcester Road, Framingham, Massachusetts.

5. The plaintiff was employed by MSI from March 5, 1993 until late September 1996 as a software engineer, doing computer programming.

6. On information and belief, defendant The Learning Company, Inc ("TLC") is a Delaware Corporation, with its usual place of business in Cambridge, Massachusetts.

7. On information and belief, since the plaintiff was discharged by MSI, TLC has acquired the stock of MSI and controls the operations of MSI.

8. On information and belief, the board of directors of MSI now consists of two members: Kevin O'Leary, the President of TLC, and Michael Perik, the Chairman and Chief Executive Officer of TLC, both of whom are based at One Athenaeum Street, Cambridge, Massachusetts.

9. On information and belief, the Clerk of MSI is Neal Winneg, based at One Athenaeum Street, Cambridge, Massachusetts, who is also the Clerk of TLC.

10. On information and belief, the Assistant Clerk of MSI is David McEvoy, also based at One Athenaeum Street, Cambridge, Massachusetts.

11. On information and belief, the Treasurer of MSI is Alan Forsey, also based at One Athenaeum Street, Cambridge, Massachusetts.

12. 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, MSI's President.

13. On information and belief, TLC presents MSI to the public as a division of TLC, not as a separate entity.

14. On information and belief, TLC has merged MSI's operations with its own and runs MSI as an integrated part of its business, under common management and control.

15. On information and belief, defendant Richard Gorgens is a natural person with his residence at  ********, Massachusetts, who was Chairman and Chief Executive Officer of MSI during and after the plaintiff's employment by MSI.

16. On information and belief, defendant Richard Gorgens currently holds the title of President of MSI.

17. On information and belief, defendant Debra Gorgens is a natural person with her residence at  ********, Massachusetts, and was Vice President and acting Director of Human Resources of MSI during and after the plaintiff's employment by MSI.

18. On information and belief, defendant Larry Mason is a natural person with his place of business at 600 Worcester Road, Framingham, Massachusetts, and was the plaintiff's direct supervisor, and held the title of Director of Engineering of MSI during and after the plaintiff's employment by MSI.

19. Defendants MSI, Richard Gorgens, Debra Gorgens, and Larry Mason are collectively referred to herein as the "MSI defendants."

20. On information and belief, at the time of the plaintiff's employment with MSI, it was a closely-held company, with direct supervision of MSI's daily operations by each of the individual (non-corporate) MSI defendants.

21. Until the time of his discharge by MSI, the plaintiff was engaged in development work on version 4.0 of MSI's local area networked calendar program, CaLANdar.

22. On May 17, 1995 the plaintiff was diagnosed with tendinitis.

23. On May 18, 1995 the plaintiff informed the defendant of that diagnosis and that it was a work-related injury.

24. From May 1995 until May 1996 the plaintiff treated with multiple medical practitioners and multiple forms of treatment while his medical condition worsened.

25. The plaintiff's condition worsened to the point that he suffered constant pain in his hands, wrists, and forearms, at times waking him up in pain during the night, and at times keeping him from getting to sleep at all.

26. On May 10, 1996 the plaintiff was instructed by his treating physician to take three to four weeks away from work for acupuncture treatment. This information was relayed to the MSI defendants by the plaintiff, who told this to defendant Mason.

27. In June and July of 1996 the plaintiff received acupuncture treatment.

28. The doctor performing this treatment instructed the plaintiff to remain off of the keyboard and in a low stress environment for at least 18 hours following each treatment.

29. The plaintiff was placed under increased scrutiny at work after he reported his injury.

30. The plaintiff was harassed by one or more of the MSI defendants after he reported his injury.

31. When the plaintiff followed the doctor's instructions regarding keyboarding he was given demeaning tasks.

32. The plaintiff was repeatedly ordered to ignore his doctor's instructions.

33. The plaintiff requested the use of unused memory upgrade parts in MSI's possession to enable him to use voice-recognition software at his workstation to reduce his need to use the keyboard.

34. The plaintiff's requests for the use of these parts was denied.

35. On information and belief, at no time did the MSI defendants have a medical evaluation done of the plaintiff that disputed the existence, seriousness, or work-related nature of the plaintiff's injury, or his need to take time off for treatment.

36. On information and belief, at no time did the MSI defendants dispute the validity of the plaintiff's medical documentation.

37. On information and belief, defendant Debra Gorgens, alone or together with one or more other of the MSI defendants, interfered with the plaintiff having an ergonomist hired by MSI's workers compensation insurer evaluate his workstation by cancelling the plaintiff's appointment.

38. The appointment was rescheduled only after the plaintiff inquired directly of the insurer why no visit by the ergonomist had occurred.

39. MSI advertised that CaLANdar 4.0 would be released in the Summer of 1996.

40. On August 10, 1996 the plaintiff gave the MSI defendants, through defendant Mason, a letter from his treating physician recommending that he take three weeks off for treatment.

41. On information and belief, at no time did the MSI defendants produce any medical documentation that disputed the plaintiff's need for time off.

42. On August 19, 1996 the plaintiff informed the MSI defendants, through defendant Mason, that he would be absent from September 11, 1996 until October 1, 1996 for medical treatment. The plaintiff later provided a copy of his scheduled airline flights to and from China, where he was going for acupuncture.

43. The plaintiff did not request that MSI pay for his travel to China or for his treatment.

44. The plaintiff did not request that he be paid his salary during the time he was asking he be allowed to take off.

45. On August 20, 1996, the announced CaLANdar 4.0 release date was September 3, 1996.

46. On August 20, 1996 defendant Mason complained about the time that the plaintiff was taking for medical treatment and told the plaintiff that he would not be permitted by MSI to take time off for medical treatment until three weeks had elapsed after the release of CaLANdar 4.0.

47. On information and belief, this was at the direction of defendant Richard Gorgens.

48. On or about August 20, 1996, the plaintiff informed the MSI defendants, through defendant Mason, that he would comply and delay his treatment until September 25, 1996. The plaintiff provided a revised itinerary of his airline flights, showing a travel time each way of more than one day.

49. On August 21, 1996, defendant Larry Mason informed the plaintiff, on behalf of the MSI defendants, that if he delayed his departure as requested, that defendant Richard Gorgens agreed that MSI would cover his insurance premiums for the period he was out.

50. Subsequent to the plaintiff's informing defendant Mason of his revised plans, delaying his time off for treatment from September 11, 1996 to September 25, 1996, defendant Mason stated that MSI was not committed to any particular release date for CaLANdar 4.0, but would release it "when the pain of not releasing it exceeds the pain of releasing it."

51. On information and belief, by August of 1996, CaLANdar 4.0 had been substantially finished for several weeks, and was undergoing only minor revisions.

52. A product manager for CaLANdar 4.0 subsequently informed the plaintiff that the product manager had to give people release dates for CaLANdar 4.0, "while trying to keep a straight face."

53. On information and belief, CaLANdar 4.0 was not released on September 3, 1996.

54. On September 9, 1996 the plaintiff requested an accommodation of schedule modification to allow him to spend less time at the keyboard each weekday, and make up the time by coming in on weekends.

55. The schedule modification to spread the plaintiff's work across the weekends had been recommended in writing by the plaintiff's treating physician.

56. On September 16, 1996 MSI's workers compensation carrier had an independent medical examination (IME) performed on the plaintiff.

57. The IME doctor found that the plaintiff's condition was work-related, and recommended that the plaintiff change his lifestyle to not work at a computer keyboard, or else learn to live in pain.

58. On September 17, 1996 the plaintiff informed the MSI defendants, through defendant Mason, of the recommendations made by the IME doctor.

59. The MSI defendants, through defendant Mason, then took the office keys that were in the possession of the plaintiff, advising the plaintiff that to allow him to retain office keys would constitute impliedly agreeing that he could work on weekends - which defendant Mason said the MSI defendants felt would be detrimental to the plaintiff's condition.

60. The plaintiff's medical condition was worsened by the delay in treatment demanded by the defendant.

61. The plaintiff spent additional monies for medical treatment due to the delay in treatment that the MSI defendants demanded.

62. On September 24, 1996, on the eve of the plaintiff's departure for China, the MSI defendants, through defendant Mason, requested that the plaintiff provide the passwords to software personally owned by the plaintiff, "in case we need to make changes while you are away."

63. On September 24, 1996 the MSI defendants, through defendant Mason, asked the plaintiff how to contact him by electronic mail.

64. The MSI defendants at no time prior to his departure informed the plaintiff that he would be fired if he took his announced three-week leave for treatment.

65. This constituted implied permission for him to take that leave in the same manner that not taking his keys away would have constituted implied permission for him to work on weekends.

66. On information and belief, on Thursday, September 26, 1996 at 5:32 pm Boston time (5:32 am China time) the MSI defendants, through defendant Mason, sent electronic mail to the plaintiff instructing him to return for work by Friday, September 27, 1996 and that if the plaintiff did not return to work by then, he would be considered to have abandoned his job.

67. The itinerary that the plaintiff had provided to the MSI defendants through defendant Mason showed that it would take longer than one day for the plaintiff to return from China, even if he had been able to arrange an immediate return trip.

68. The electronic mail sent on September 26, 1996 at 5:32 pm (Boston time) was received by the plaintiff in China approximately a half hour later, on September 27, 1996 at approximately 6:00 am (China time).

69. The plaintiff e-mailed defendant Mason in response, requesting that any action on the termination be deferred until the plaintiff returned from receiving medical treatment.

70. On September 30, 1996 the MSI defendants, by defendant Mason, sent electronic mail to the plaintiff informing him that he had been fired.

71. The decisions of the MSI defendants (1) not to tell the plaintiff that he would be fired if he took his announced three week leave for treatment, (2) to wait to send him an ultimatum to return until he was too far away to do so within the time demanded, and (3) to fire him when he did not comply, evidences an intent on the part of the MSI defendants to discriminate against the plaintiff on the basis of handicap and also evidences an intent on their part to discriminate and/or retaliate against him for his assertion of rights protected by state and federal statutes.

72. On information and belief, CaLANdar 4.0 was released on September 27, 1996.

73. On information and belief, when released, CaLANdar 4.0 did not work significantly better than the version that existed on September 3, 1996.

74. On information and belief, the MSI defendants delayed the release of CaLANdar 4.0 in part to give themselves justification for firing the plaintiff, by forcing him to take time off prior to three weeks after the product's release.

75. On October 25, 1996 the MSI defendants refused to allow the plaintiff to retrieve his property.

76. The MSI defendants, through defendant Debra Gorgens, refused to allow the plaintiff to return to work on December 18, 1996.

77. The plaintiff complained of MSI's treatment of him to the United States Department of Labor.

78. On information and belief, the investigator from the United States Department of Labor requested that MSI reinstate the plaintiff, which request was refused by MSI.

79. On information and belief, the United States Department of Labor chose not to pursue the matter beyond the initial investigatory stage upon learning that the plaintiff was represented by private counsel.

80. The plaintiff sought and received weekly benefits under the Massachusetts Workers' Compensation law from MSI in a written settlement before the Massachusetts Department of Industrial Accidents ("DIA").

81. The written settlement agreement before the DIA, while stating that it did not constitute a stipulation that the plaintiff's injury was work-related, did not dispute that the plaintiff was totally-disabled during the time he had taken off for treatment in September of 1996.

82. On information and belief, if the plaintiff had not taken the time off from work, he could have become permanently disabled.

83. The MSI defendants, through defendant Debra Gorgens, refused to allow the plaintiff to exercise his remaining stock options on the basis that he had been fired.

84. The refusal of MSI to allow the plaintiff to exercise his remaining stock options caused him economic harm when TLC acquired MSI through the purchase of all shares of MSI from MSI's stockholders.

85. The MSI defendants took possession of software written by the plaintiff.

86. The MSI defendants took possession of software licensed to the plaintiff.

87. MSI posted openings for technical support engineers, a position for which the plaintiff was qualified due to his familiarity with the company's programs.

88. The plaintiff applied to MSI for re-employment in December of 1996, and in February and April of 1997.

89. The plaintiff applied to TLC for employment in April of 1998, after TLC had acquired MSI.

90. Defendant Debra Gorgens acknowledged receipt of the plaintiff's resume on behalf of MSI when he sought re-employment in 1997.

91. The plaintiff was not interviewed or hired for any job for which he applied at MSI or TLC after his return from China.

92. The plaintiff's job was still advertised as being open by MSI in 1998 after he had been turned down for re-employment by MSI and for employment with TLC.

93. By their refusal to consider the plaintiff for employment after his return from China, the MSI defendants and TLC discriminated against the plaintiff on the basis of handicap.

94. By their refusal to consider the plaintiff for employment after his return from China, the MSI defendants and TLC discriminated and retaliated against the plaintiff for his exercise of statutory rights under Massachusetts and United States laws.

95. The actions of the MSI defendants constitute a continuous course of wrongful conduct, from their refusal of and interference with the plaintiff's efforts to obtain reasonable accommodations for his handicap through their discrimination and retaliation against him on account of that handicap and on account of his assertion of his legally-protected rights to accommodation and redress for the defendant's actions.

96. The plaintiff was not able to locate successor employment until May of 1997, which required relocating himself and his family to Texas from Massachusetts.

97. The plaintiff's successor employment is as a software engineer.

98. Relocating himself and his family to Texas resulted in reducing the plaintiff's family income even after he found re-employment, as his wife had to leave a secure job in Massachusetts for a less-secure, lower-paying job in Texas, and his own employment in Texas is not an on-going full-time position but a series of temporary positions, resulting in serious damage to his career.

99. On August 20, 1997 the plaintiff had surgery to correct a medical condition known as a supracondylar process.

100. The supracondylar process was a congenital condition that made the plaintiff more susceptible to tendinitis from extended work at a computer keyboard.

101. The plaintiff has sustained harm in the form of lost salary, lost benefits, lost stock options, job hunting expenses, expenses in relocating his family, lost earning capacity of his family, lost earning capacity through delay in his career path, additional expenses, physical pain, emotional distress, and otherwise, due to the actions of the defendants.

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.

103. The plaintiff sustained a work-related injury, within the eaning of chapter 152 of the General Laws.

104. The plaintiff would have been capable of performing the ssential functions of his job with reasonable accommodations, within the meaning of  75B of chapter 152 of the General Laws.

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.

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.

107. The plaintiff requested, as a reasonable accommodation, three weeks time off from work to obtain medical treatment for his handicap.

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.

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.

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.

111. The facts set forth state claims against all of the defendants under § 75B of chapter 152 of the General Laws.

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.

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

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.

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.

116. The facts set forth state claims against all of the defendants under § 75A of chapter 152 of the General Laws.

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.

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

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.

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.

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.

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.

123. The plaintiff requested, as a reasonable accommodation, three weeks time off from work to obtain medical treatment for his handicap.

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.

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.

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.

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.

128. More than 90 days have passed since the plaintiff brought his charge of handicap discrimination before the MCAD.

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.

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.

131. The MCAD has made no decision about the merits of the plaintiff's charge of handicap discrimination.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

150. This Court has jurisdiction to hear these claims under the provisions of § 2617 of Title 29 of the United States Code.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Prayers for Relief

WHEREFORE, the plaintiff prays that this Court advance this case in every way on the docket and grant a speedy trial and, as a result of said trial, he prays and demands that he be awarded his greatest total available recovery after determination of his rights to each of the following:

(1) With respect to his first claim for relief, his lost wages, with interest, an order for reinstatement or front pay, and his reasonable attorney's fees and costs for the protection of his rights, under § 75B of chapter 152.

(2) With respect to his second claim for relief, his lost wages, with interest, an order for reinstatement or front pay, and his reasonable attorney's fees and costs for the protection of his rights, under § 75A of chapter 152.

(3) With respect to his third claim for relief, compensatory damages, including, his lost wages, with interest, an order for reinstatement or front pay and compensation for all other harms suffered, as set forth under paragraph 101 above, plus punitive damages, and his reasonable attorney's fees and costs for the protection of his rights, under § 9 of chapter 151B.

(4) With respect to his fourth claim for relief, his lost wages, with interest, plus an additional amount equal to his lost wages with interest as liquidated damages, plus an order for reinstatement or re-employment or front pay, and his reasonable attorney's fees and costs for the protection of his rights, under § 2617 of Title 29 of the United States Code.

(5) With respect to his fifth, sixth, seventh and eighth claims for relief, his actual damages, with interest and costs, under common law; and

(6) Any and all other relief that the Court deems just and appropriate in this matter.

Jury Demand

The plaintiff demands a trial by jury on all issues herein which may be tried by right of jury and an advisory jury on all factual issues material to claims not triable by right by a jury, pursuant to Massachusetts Rule of Civil Procedure 39(c).

Respectfully submitted,

WILLIAM SILVERSTEIN
By his attorney,

Philip R. Olenick
BBO No. 378605
101 Tremont Street -- Suite 801
Boston, Massachusetts 02108
(617) 357-5660

October 2, 1998