Miller misperceives the adequacy of the evidence in the record and fails to show that O'Donnell has no reasonable expectation of proving an essential element of his case at trial. Flesner, supra at 809. Miller purchased the videotape equipment and tried it out at the Whiting Street location. O'Donnell found and observed a videotape which enabled him to search for and find concealed videotape equipment in the bathroom. On these facts, a jury could reasonably infer that Miller secretly videotaped or monitored O'Donnell using the bathroom, and thereby violated O'Donnell's privacy rights.
Summary judgment is therefore inappropriate.
Next, Miller argues that even if he did observe O'Donnell using the bathroom, the interference with O'Donnell's privacy was not substantial or serious because Miller and O'Donnell had simultaneously used bathroom facilities together in the past. The Supreme Judicial Court has made it clear that a plaintiff must show that the interference with privacy was unreasonable and either substantial or serious. In the present case, whether Miller's observation of O'Donnell using the bathroom was substantial or serious interference with O'Donnell's privacy is a question for the trier of fact, and summary judgment is not appropriate. Next, Miller asserts that O'Donnell's claim for emotional distress damages based on a violation of G.L.c. 1B is barred by the exclusivity provision of the workers' compensation act, G.L.c.