WILLIAM SILVERSTEIN, Plaintiff
v.
MICROSYSTEMS SOFTWARE, INC.,
THE LEARNING COMPANY, INC.,
RICHARD GORGENS, DEBRA GORGENS, and LARRY MASON,
Defendants
STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED
William Silverstein, the plaintiff in this action, hereby submits that there is no genuine issue to be tried with respect to the following facts material to the counterclaim of defendants Microsystems Software, Inc. ("MSI") and The Learning Company ("TLC"):
Pursuant to Superior Court Rule 9A(b)(5), counterclaim-plaintiffs Microsystems Software, Inc. ("MSI") and The Learning Company, Inc. ("TLC") submit this opposition to Counterclaim-Defendant's "Statement of Material Facts as to Which there is No Genuine Issue to Be Tried." (1)
1. William Silverstein was employed by MSI from March 5, 1993 until late September 1996 as a software engineer. (1)
1. Undisputed.
2. MSI was a computer software company that sold several programs, including a local-area-networked calendar program called CaLANdar, software for handicapped computer users called HandiWare, and CyberPatrol, a program for blocking access to obscene or otherwise objectionable internet web sites. (2)
2. Undisputed.
3. MSI sold and advertised its programs in the national software market, including governmental entities, and publicized its consultations with politicians, including the President of the United States.
3. Undisputed.
4. Until the time of his discharge by MSI, the plaintiff was engaged in development work on version 4.0 of CaLANdar. (3)
4. Undisputed.
5. On May 17, 1995 the plaintiff was diagnosed with tendinitis. (4)
5. Undisputed.
6. On May 18, 1995 the plaintiff informed the defendant of that diagnosis and that it was a work-related injury. (5)
6. Undisputed.
7. From May 1995 until May 1996 the plaintiff treated with multiple medical practitioners and multiple forms of treatment while his medical condition worsened. (6)
7. Undisputed.
8. 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. (7)
8. Undisputed.
9. On May 10, 1996 the plaintiff was advised by his doctor that he had the following choices:
This information was relayed to MSI by the plaintiff, who told this to defendant Mason, and that he wanted to try acupuncture. (9)
9. Undisputed.
10. In June and July of 1996 the plaintiff received acupuncture treatment. (10)
10. Undisputed.
11. 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. (11)
11. Undisputed.
12. The plaintiff was placed under increased scrutiny at work after he reported his injury. (12)
12. Disputed. The materials Silverstein relies on do not support the proposition that he was placed under "increased scrutiny at work after he reported his injury." Instead, the evidence demonstrates that any scrutiny of Silverstein related to his penchant for tardiness and for spending too much time of personal business and personal telephone calls, resulting in significant loss of productivity. For example, in August, 1995 Silverstein was warned by Debra Gorgens, MSI's Vice President in charge of personnel, that he was spending too much time on personal business and personal telephone calls, resulting in a significant loss of productivity. See August 10, 1995 Memorandum, attached hereto as Exhibit A. Moreover, MSI had first expressed concerns about Silverstein's attendance and work ethic long before Silverstein's first report of medical problems in May, 1995. For example, no later than 1994, Silverstein had been warned about his habitual tardiness by Dick Gorgens, MSI's Chief Executive Officer. See Memorandum from D. Gorgens to Silverstein, attached hereto as Exhibit B.
13. The plaintiff was harassed by one or more of the MSI's managers after he reported his injury. (13)
13. Disputed. The materials Silverstein relies on do not support the proposition that he was "harassed by one of more of the MSI's [sic] managers after he reported his injury."
14. 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. (14)
14. Disputed. Silverstein characterizes the defendants' response to this allegation in ¶ 33 of his Amended Complaint as "Admitted." The actual response was: "Defendants admit that plaintiff asked for extra memory; and otherwise deny the allegations of paragraph 33." Plaintiff rejected MSI's offer to provide him with voice-recognition software so that he could reduce his need to use the keyboard. See Affidavit of Larry Mason, ¶ 5, attached hereto as Exhibit C ("Mason Aff.).
15. The plaintiff's requests for the use of these parts was denied. (15)
15.Disputed. See Mason Aff., ¶ 5.
16. At no time did MSI 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. (16)
16. Undisputed.
17. At no time did MSI dispute the validity of the plaintiff's medical documentation. (17)
17. Disputed. On August 12, 1996, Silverstein told Mason that he wanted to go to China for three weeks for acupuncture treatment, Mason Aff., ¶ 6, and on August 19, 1996, Silverstein provided Mason with a memorandum "officially notifying" MSI that he would be out of the office from September 19 to October 1, 1996 "to get treated for my tendonitis." See 8/19/96 Memorandum, attached as Exhibit D. In support of his request, Silverstein submitted two nearly identical notes, both dated August 9, 1996 and signed by Leonid Gordin, M.D., one of which indicated that Silverstein needed "to try three weeks of intense therapy while he is away from keyboard," and other which indicated that he needed to "try three weeks of intense therapy including acupuncture while he is away from work." See August 9, 1996 letters, attached as Exhibits E and F. On August 21, Mason spoke with Silverstein about the requested absence, and Mason memorialized that conversation in a memorandum, dated August 21, which Silverstein received and signed. See Exhibit G; Mason Aff., ¶ 7. Mason made clear in that memorandum that MSI needed "clear written documentation" stating that Silverstein needed the time off for medical reasons. Mason indicated that the original and amended August 9, 1996 physician notes did not state unequivocally that Silverstein needed to take time off from work and did not suggest a time frame for recommended treatment to commence. Mason's memorandum also provided: We need your technical expertise but as I also said to you it continues to be significantly difficult to get you focused and productive. Those difficulties (personal phone calls, sporadic work hours, wandering around, interpersonal clashes and unfocused/unfunctional [computer programming] code) are not new. . . .
As you know, and as we have discussed many times, we need you to complete the CaLANdar 4.0 release. Despite my dissatisfaction with the current situation I will recommend granting you a three week (unpaid) Personal Leave on condition that it occurs no earlier than three weeks after 4.0 is released (so that we have some time to react to any significant problems that occur during initial roll-out to customers). . . .
You will be subject to dismissal if you choose to take the unapproved time off rather than scheduling it as suggested above.
See Exhibit G. Prior to his termination, Silverstein submitted no medical documentation stating unequivocally the medical need for three-week trip to China in late September, 1996. (2).
18. MSI interfered with the plaintiff having an ergonomist hired by MSI's workers compensation insurer evaluate his workstation by canceling the plaintiff's appointment. (18)
18. Undisputed.
19. The appointment was rescheduled only after the plaintiff inquired directly of the insurer why no visit by the ergonomist had occurred. (19)
19. Undisputed.
20. MSI advertised that CaLANdar 4.0 would be released in the Summer of 1996. (20)
20. Undisputed.
21. On August 10, 1996 the plaintiff gave MSI a letter from his treating physician recommending that he take three weeks off for treatment. (21)
21. Disputed. See No. 17 above.
22. At no time did MSI produce any medical documentation that disputed the plaintiff's need for time off. (22)
22. Undisputed.
23. On August 19, 1996 the plaintiff informed MSI 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. (23)
23. Undisputed.
24. The plaintiff did not request that MSI pay for his travel to China or for his treatment. (24)
24. Undisputed.
25. The plaintiff did not request that he be paid his salary during the time he was asking he be allowed to take off. (25)
25. Undisputed.
26. On August 20, 1996, the announced CaLANdar 4.0 release date was September 3, 1996. (26)
26. Undisputed.
27. On August 20, 1996 the plaintiff's supervisor, defendant Larry 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. (27)
27. Disputed. See No. 17 above.
28. On or about August 20, 1996, the plaintiff informed MSI 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. (28)
28. Disputed. See No. 17 above.
29. 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." (29)
26. Undisputed.
30. By August of 1996, CaLANdar 4.0 had been substantially finished for several weeks, and was undergoing only minor revisions. (30)
30. Disputed. See Mason Aff., ¶ 8.
31. CaLANdar 4.0 was not released on September 3, 1996. (31)
31. Undisputed.
32. 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. (32)
32. Undisputed.
33. The schedule modification to spread the plaintiff's work across the weekends had been recommended in writing by the plaintiff's treating physician. (33)
33. Undisputed.
34. On September 16, 1996 MSI's workers compensation carrier had an independent medical examination (IME) performed on the plaintiff. (34)
34. Undisputed.
35. 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. (35)
35. Disputed. The IME's report, attached as Exhibit I, contains no conclusion that Silverstein's medical condition was caused by work.
36. On September 17, 1996 the plaintiff informed MSI, through defendant Mason, of the recommendations made by the IME doctor. (36)
36. Undisputed.
37. MSI, 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 Mason said MSI felt would be detrimental to the plaintiff's condition. (37)
37. Disputed. The log maintained by Mr. Mason, on which Silverstein relies, states: . . . Told him I wanted his keys because we have a weekend coming up and he has to date ignored my instructions not to take weekends off. He indicated the note he gave me Monday from his doctor said weekend were ok. I said we had never asked him to trade off full days vs weekends but instead let him get off keyboard . . ."
38. Mason has alternatively justified this action by stating that he did not wish to allow the plaintiff to work on weekends out of fear that the plaintiff would introduce errors into the program if not supervised by the original author of the program, Reed Lewis, who was MSI's chief software engineer.
38. Disputed. The factual assertion is entirely unsupported by record evidence.
39. Lewis, who is now TLC's principal software engineer, testified that the plaintiff had taken over the role of primary engineer on CaLANdar in 1995, as Lewis had shifted his attention to a newer project, CyberPatrol, (38) which was his primary focus in 1996. (39)
39. Undisputed.
40. Lewis testified that the plaintiff, who consulted with him about CaLANdar at times, was no more likely to introduce errors into the program than Lewis was himself, and that he had no criticism of the plaintiff in that regard. (40)
40. Undisputed.
41. Richard Gorgens, President of MSI, agreed at his deposition that Silverstein was a very good software engineer. (41)
41. Undisputed.
42. On September 24, 1996, on the eve of the plaintiff's departure for China, MSI, 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." (42)
42. Undisputed.
43. On September 24, 1996 the MSI defendants, through defendant Mason, asked the plaintiff how to contact him by electronic mail. (43)
43. Undisputed.
44. MSI did not tell the plaintiff before he left that he would be fired if he took his announced three-week leave for treatment. (44)
44. Disputed. See No. 17 above.
45. MSI's managers knew that the trip to and from China took approximately two days each way, having made the trip themselves previously. (45)
45. Undisputed.
46. On Thursday, September 26, 1996 at 5:32 pm Boston time, MSI, through defendant Mason, sent electronic mail to the plaintiff instructing him to return for work the next day--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. (46)
46. Undisputed.
47. 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. (47)
47. Undisputed.
48. On September 30, 1996 MSI, by defendant Mason, sent electronic mail to the plaintiff informing him that he had been fired. (48)
48. Undisputed.
49. On September 30, 1996, the program files for the previous version of CaLANdar, version 3.11, were archived and CaLANdar 4.0 was made available for downloading from MSI's internet site. (49)
49. Disputed. The materials Silverstein relies on do not support his assertion that CaLANdar 4.0 was released on September 30, 1996. In fact, the product was released in the middle of October, 1996. See Mason Aff., ¶ 8.
50. After the plaintiff left, no new features were added to the program, and little, if any further debugging was done or revisions made, before it shipped. (50)
50. Undisputed.
51. On October 25, 1996 the MSI defendants refused to allow the plaintiff to retrieve his property. (51)
51. Undisputed.
52. The MSI defendants, through defendant Debra Gorgens, refused to allow the plaintiff to return to work on December 18, 1996. (52)
51. Undisputed.
53. The plaintiff complained of MSI's treatment of him to the United States Department of Labor. (53)
53. Undisputed.
54. 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. (54)
54. Undisputed.
55. The plaintiff sought and received benefits under the Massachusetts Workers' Compensation law from MSI in a written settlement before the Massachusetts Department of Industrial Accidents ("DIA"). (55)
55. Undisputed.
56. 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. (56)
56. Undisputed.
57. The MSI defendants took possession of software written by the plaintiff. (57)
57. Disputed. The materials on which Silverstein relies do not support the assertion.
58. The MSI defendants took possession of software licensed to the plaintiff. (58)
58. Undisputed.
59. MSI refused to allow the plaintiff to exercise his remaining stock options on the basis that he had been fired. (59)
59. Undisputed.
60. MSI posted openings for technical support engineers, (60) a position for which the plaintiff was qualified due to his familiarity with the company's programs.
60. Undisputed.
61. The plaintiff applied to MSI for re-employment in December of 1996, and in February of 1997. (61)
61. Undisputed.
62. After the plaintiff was discharged by MSI, TLC acquired the stock of MSI in late 1997 and took control of MSI's business operations, moving MSI's employees and operations out of MSI and into TLC Multimedia over the course of 1998. (62)
62. Undisputed.
63. TLC is a software publisher larger than MSI, which, directly or through subsidiaries, markets many more lines of software than had MSI alone, also on a national basis, both directly to consumers and, in the case of CyberPatrol, also indirectly, by providing the use of CyberPatrol's filtering functions to America On Line.
63. Undisputed.
64. The refusal of MSI to allow the plaintiff to exercise his remaining stock before its acquisition by TLC options caused him economic harm when TLC acquired MSI through the purchase of all shares of MSI from MSI's stockholders. (63)
64. Undisputed.
65. The plaintiff applied to TLC for employment in April of 1998, after TLC had acquired MSI. (64)
65. Undisputed.
66. Defendant Debra Gorgens acknowledged receipt of the plaintiff's resume on behalf of MSI when he sought re-employment in 1997. (65)
66. Undisputed.
67. TLC acknowledged receipt of the plaintiff's application for employment in 1998.(66)
66. Undisputed.
68. The plaintiff was not interviewed or hired for any job for which he applied at MSI or TLC after his return from China. (67)
68. Undisputed.
69. 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. (68)
69. Undisputed.
70. On August 20, 1997 the plaintiff had surgery to correct a medical condition known as a supracondylar process, a congenital condition that made the plaintiff more susceptible to tendinitis from extended work at a computer keyboard. (69)
70. Undisputed.
71. Starting shortly after his return from China in the fall of 1996, the plaintiff began to post information on his site on the World Wide Web documenting his complaints against MSI. (70)
71. Undisputed.
72. In response to the plaintiff's discussing his complaints on his World Wide Web site, he received a demand from MSI's President, Richard Gorgens, in December of 1996 that he remove unspecified defamatory materials from his web site. The plaintiff sent an e-mail to Mr. Gorgens on January 4, 1997, asking what part of he was saying was untrue, to which he did not receive a response until he re-sent that e-mail on January 10, 1997, asking whether it had been received, to which Mr. Gorgens responded simply that he had received the e-mail. (71)
72. Undisputed.
73. No explanation of what was untrue or defamatory was included, and no further communication was received from MSI on the subject until after the plaintiff filed this lawsuit alleging discrimination and retaliation against him in September of 1998, although the parties had, in the intervening time, been in communication through counsel in litigating the plaintiff's Workers Compensation claim, his agency claim of handicap discrimination and retaliation as a condition precedent to this suit, and an unemployment compensation claim. (72)
73. Undisputed.
74. In September of 1998, the plaintiff filed his claims in the present lawsuit, which alleged that the defendants had discriminated and retaliated against him due to his handicap, his requests for accommodation, and for his exercise of rights, under the Workers Compensation law, the Massachusetts anti-discrimination law, chapter 151B, and the federal Family and Medical Leave Act, as well as claims for breach of contract, conversion of his property, intentional interference with advantageous relationship, and negligent or intentional infliction of emotional distress. (73)
74. Undisputed.
75. In response, defendants MSI and TLC, in addition to answering, filed a counterclaim for libel, alleging that the plaintiff's web site, which discussed his claims in his lawsuit, including a timeline that showed when events had occurred, including when TLC acquired MSI, had recklessly or with actual malice published false statements, to wit: (74)
75. The counterclaim speaks for itself."that he was harassed at work by MSI's management because of his alleged handicap; that MSI, "owned by the The Learning 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."
76. The plaintiff's statements were not made recklessly, with disregard to whether they were true, or with knowledge of their falsity, but were made in the reasonable belief, based on his own experiences, that they were true. (75)
76. Disputed. Silverstein first reported to MSI that he had a problem with his wrist in May of 1995. Immediately thereafter and continuing until his termination, MSI conferred with Silverstein about his reported medical condition, and provided a number of accommodations to enable him to continue to work at MSI. Indeed, shortly after Silverstein reported that he was experiencing wrist pain as a result of work on his computer keyboard, MSI provided him, at his request, an adaptive computer keyboard, which he hoped would reduce his reported pain. (3) Thereafter, MSI provided Silverstein with ergonomic seating. (4) In addition, MSI provided keyboard support from other MSI personnel and assigned Silverstein non-keyboard tasks, so that Silverstein could minimize his time at the keyboard. MSI also offered to provide a computer voice-input system, but Silverstein rejected that offer as unworkable. See Mason Aff., ¶¶ 3-5.
In addition to providing these physical adjustments to Silverstein's work environment, MSI accommodated Silverstein's reported condition by permitting numerous extended absences and leaves for medical treatment and physical therapy over a 15-month period. Just for the period from May 27, 1996 to September 17, 1996, the period immediately preceding the unauthorized absence that precipitated his termination, Silverstein missed no less than five full-days and six half-days for reasons attributed to treatment of his condition. (5) See Mason Aff., ¶ 4. See also No. 17 above.
77. The defendants have not suffered any harm from the plaintiff's statements. (76)
77. Disputed. MSI and TLC have suffered damage due to several false statements made in Silverstein's personal Internet Web Site, located at "www.sorehands.com" (the "Web Site"). The Web Site includes, inter alia, the following libelous statements, which move from right to left at the bottom of the user's screen in the form of a "ticker tape:"
See Affidavit of Michael L. Rosen, attached hereto as Exhibit J.
None of these statements are true, and all have caused harm to MSI's and TLC's reputations in the community. Indeed, Silverstein's electronic correspondence reflects that the opinions of a number of individuals about MSI and TLC were diminished after reading the libelous statements on the Web Site. See Exhibit K, Doc. 1011 ("It's about time someone speaks out about what these companies are really like, how they work you like dogs and when you are of no longer use to them, you are thrown out like an old piece of meat."); Doc. 1801 ("I think they retaliated for larger reasons. Yes; the accomodations [sic] were a factor; but they appear to be an integral part of the more egregious behaviors of retaliation on their part."); Doc. 1801 ("MSI is guilty of theft of software licenses; discrimination against disabled employees; and being just plain mean"); Doc. 1802 ("It's apparent that they did not want someone defective working for them; how would they give hiring preference?"); Doc. 1802 ("As long as that co. continues to profit from his misfortune; other companies will follow suit."); Doc. 1803 ("I definitely think you were screwed by MSI."); Doc. 1803 ("It's obvious that they lied from their answers and their documents."); Doc. 1782 ("Kik [sic] their ass!"); Doc. 1786 ("Bill, I owe you all sorts of responses -- and a call or two to Mattel and the Learning Company."). One respondent went so far as to communicate her negative opinions about MSI and TLC directly with TLC:
I am one of the people that Mr. Silverstein has contacted about the dreadful way you are treating him. Your actions and mind set border on the criminal. How dare you demand his papers! He is not a criminal. You are violating several of his . . . Constitutional Rights. . . I applaud Mr. Silverstein's stand against you, and decry you for yours. This man was injured at work, and is entitled to just compensation, which you have denied him to this intolerable point. Your conduct is reprehensible. I am supporting him as well as I am able, and ask that you do the honorable thing, and give him and all others that you have treated so shabbily -- the pay and benefits to which they are entitled.
Failing that, I pray that justice is done. Id., Doc. 1067-1068.
78. MSI, the chief target of the plaintiff's complaints on his web site, existed only as a paper entity after January of 1998, as its operations had been transferred to TLC Multimedia pursuant to its purchase by TLC. (77)
78. Undisputed.
79. CaLANdar was withdrawn from the market by TLC during the summer of 1999.(78)
79. Undisputed.
80. HandiWare was discontinued in 1997 or 1998. According to Reed Lewis, its author for MSI, it had been "fading away." (79)
80. Undisputed.
81. After several months of discovery, both paper and testimonial, the defendants served the plaintiff with an offer under Rule 68 to allow the plaintiff to take judgment in the case against the defendants for $125,000 plus such interest as the court would order on August 31, 1999. (80)
81. Undisputed.
82. On September 1, 1999 the plaintiff served and filed his acceptance of that offer together with the offer with this Court. (81)
82. Undisputed.
83. On September 13, 1999 this Court entered judgment in the case in favor of the plaintiff for $125,000 plus $14,547.95 in prejudgment interest. (82)
83. Undisputed.
84. On September 20, 1999, the defendants' counsel sent the plaintiff's counsel an offer of settlement of the counterclaim in exchange for his agreement to remove from his web site all statements in support of his claims in the lawsuit, and his agreement not to voluntarily speak about his employment with MSI beyond stating the dates of his employment there, and what his job and duties were there, punishable by a private fine of $50,000 per violation. (83)
84. Defendants/counterclaim-plaintiffs' counsel's communications regarding settlement of the counterclaim are inadmissible as a matter of law.
85. On September 22, 1999 the plaintiff moved for an emergency ruling of the Court that this counterclaim had been dismissed by that judgment, which the defendants successfully opposed. (84)
85. Undisputed.
Respectfully submitted,
WILLIAM SILVERSTEIN
By his attorney,
Philip R. Olenick
BBO No. 378605
101 Tremont Street -- Suite 801
Boston, Massachusetts 02108
(617) 357-5660