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Hagenah v. Community Enterprises, Inc.

United States District Court, D. Massachusetts

March 23, 2016

HELENE E. HAGENAH, Plaintiff,
v.
COMMUNITY ENTERPRISES, INC., et al., Defendants.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT, MOTION TO STRIKE, AND ALTERNATIVE MOTION FOR MORE DEFINITIVE STATEMENT (Dkt. No. 19)

KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

I. Introduction

On March 4, 2015, plaintiff Helene E. Hagenah (“Plaintiff”) filed a complaint against defendants Community Enterprises, Inc. (“Community Enterprises”), Victoria Fisher, and Lisa Kenney (collectively, “Defendants”) arising out of her agreement with Community Enterprises to provide adult care services and housing for two participants in Community Enterprises’ adult care program for disabled individuals. In her amended complaint (the “Complaint”), Plaintiff asserted the following causes of action: in Count I, discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); in Count II, retaliation and interference in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12203(a) and (b) (“the ADA”); in Count III, retaliation in violation of the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. § 15001 et seq. (the “DD Act”); in Count IV, retaliation and interference under sections (4)(4), 4(4A), and 4(5) of Chapter 151B of the Massachusetts General Laws (“Chapter 151B”); in Count V, breach of contract; in Count VI, interference, independent employment; and in Count VII, misrepresentation (Dkt. No. 5).[1]

Before the court is Defendants’ motion to dismiss, seeking dismissal in whole or in part of each of the counts in the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Civil Rules”). Defendants have further moved, pursuant to Rule 12(f) of the Civil Rules, to strike Plaintiff’s request for civil penalties against Defendants, and, if Count VII is not dismissed, for a more definite statement pursuant to Civil Rule 12(e) (Dkt. Nos. 19; 23). Plaintiff has agreed to dismissal of Count VI with prejudice and to dismissal of Count VII without prejudice, and otherwise opposes the motion (Dkt. Nos. 30; 36-1).

The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. For the reasons set forth below, the court grants Defendants’ motion in part and denies it in part.

II. Summary of factual

In 2013, Plaintiff began providing housing and caretaking services for two developmentally and physically disabled adults participating in Community Enterprises’ adult care program (Dkt. No. 5 at ¶ 8). Before Plaintiff began providing these services, Plaintiff, Community Enterprises, and each adult participant signed a Letter of Agreement, dated respectively April 24 and June 24, 2013, setting forth the responsibilities of the caregiver, the participant, and Community Enterprises (Dkt. No. 5 at ¶¶ 21-24; Dkt. No. 23-1; Dkt. No. 23-2).[2]Separately executed Payment Agreements were attached to each of the Letters of Agreement (Dkt. No. 23-1 at 5; Dkt. No. 23-2 at 6).[3] As the caregiver, Plaintiff’s responsibilities included, but were by no means limited to, ensuring that the participants were full members of the household; providing clean and attractive living quarters; doing the participants’ laundry; providing three nutritionally balanced meals daily, as well as snacks; and ensuring that the residence was properly maintained so that it remained in compliance with all eligibility criteria (Dkt. Nos. 23-1; 23-2). Community Enterprises was required to, among other things, maintain and continue to develop new liaisons with social and health agencies for the purpose of identifying local resources that could be used by the participants; ensure coordination of health-related services as needed; provide orientation sessions for the caregiver, and provide the caregiver with specialized teaching sessions focusing on the identified needs of the participants (Dkt. No. 23-1; Dkt. No. 23-2).

According to the Payment Agreements, both participants living with Plaintiff agreed to pay monthly room and board to Plaintiff (Dkt. No. 23-1 at 5; Dkt. No. 23-2 at 6). Community Enterprises determined the amount the participants paid for room and board (Dkt. No. 23-1 at 3; Dkt. No. 23-2 at 3). Plaintiff also received a monthly stipend from Community Enterprises at a set daily rate (Dkt. No. 23-1 at 5; Dkt. No. 23-2 at 6). The Payment Agreements provided that the stipend was contingent on the participant maintaining active status with MassHealth; if the participant’s MassHealth eligibility ended for any reason, even temporarily, Community Enterprises would not pay the stipend until the participant was reinstated on MassHealth (Dkt. No. 23-1 at 5; Dkt. No. 23-2 at 6).

In summary, the Complaint alleges that Defendants violated many of the participants’ civil rights and that Plaintiff objected to these alleged violations (Dkt. No. 5 at ¶¶ 30-33). Plaintiff alleges that she assisted the participants in exercising their rights to report employment problems and to oppose discriminatory conduct and abuse (id. at ¶¶ 30-32), and assisted one of the participants in filing a formal charge of discrimination (id. at ¶ 31).[4] Plaintiff further claims that Defendants retaliated against her for advocating for the participants and because she raised claims of discrimination and related claims on her own behalf (id. at ¶ 33).

Defendant Lisa Kenney (“Kenney”) is the Program Manager and Human Rights Officer of Community Enterprises (id. at ¶ 10). As the Human Rights Officer, Kenney provided the participants living with Plaintiff with documents explaining their “human rights, employment rights, community participation rights, self-determination rights, and some of their Constitutional rights” (id. at ¶ 25). Kenney also provided them with a handout titled “Ten Performance Standards for Staff” and another handout describing the human rights complaint process (id. at ¶¶ 27-28). Plaintiff alleges that Kenney violated rights of the participants set forth in these documents (id. at ¶¶ 30-33) and identifies particular incidents of alleged misconduct by Kenney (e.g., Dkt. No. 5-1 at ¶¶ 60-66). Plaintiff alleges that the participants reported to her that Kenney would become angry and yell at them and coerced them into making statements they did not want to make (e.g., id. at ¶¶ 88, 94, 99, 103). Plaintiff also alleges that during a September 12, 2013 meeting, where one of the participants (the subject of the meeting) and Plaintiff’s attorney was present, Kenney became visibly angry and “exclaimed ‘We pay for this place, ’” in regard to Plaintiff’s home, and allegedly made other “aggressive” statements, including that the attorney would “ruin” everything (id. at ¶¶ 65-66). Plaintiff believed by this point that Community Enterprises was retaliating against her for “standing up for the rights of the two disabled individuals” for whom she provided home care and supervision (id. at ¶ 69).

Defendant Victoria Fisher (“Fisher”) is the director of the Community Enterprises Pittsfield office (Dkt. No. 5 at ¶ 9). According to Plaintiff, after Plaintiff’s September 12, 2013 meeting with Kenney, Fisher asked Plaintiff to meet with her without her attorney present (Dkt. No. 5-1 at ¶ 71). Plaintiff responded by email to Fisher, expressing her many concerns about the adult care program, advocating on behalf of the participants living with her, and stating that she intended to send a copy of her email to the Massachusetts Disabled Persons Protection Commission (id. at ¶¶ 72, 77, 81, 85-86). Subsequent to sending her email to the Commission, Plaintiff became concerned about the way the two participants were being treated, particularly by Kenney, and that she, Plaintiff, was being shut out of decision-making processes regarding the participants, including meetings and appointments that the participants requested she attend (id. at ¶¶ 88-106). On October 7, 2013, Plaintiff’s attorney sent a letter to Fisher setting forth potential claims on behalf of one of the participants (id. at ¶ 107). Two days later, Plaintiff received a letter from Fisher requesting that she come to an October 10, 2013 meeting without her attorney (id. at ¶¶ 108-110). The letter stated that if Plaintiff did not attend the meeting, Fisher would terminate the agreement between Community Enterprises and Plaintiff (id. at ¶ 111). Plaintiff asked for more information prior to the meeting, which she ultimately did not attend (id. at ¶¶ 114-118). On October 22, 2013, Fisher wrote a letter to Plaintiff and enclosed her final check from Community Enterprises (id. at ¶ 119).

III. Standard of Review

Motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“the Civil Rules”) test the sufficiency of the pleadings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must “‘state a claim [for] relief that is plausible on its face, ’ accepting the plaintiff’s factual allegations and drawing all reasonable inferences in the plaintiff’s favor.” Maloy v. Ballori-Lage, 744 F.3d 250, 252 (1st Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint need not contain detailed factual allegations, but it must recite facts sufficient to at least “raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp., 550 U.S. at 555. When deciding a motion to dismiss, the First Circuit has “emphasize[d] that the complaint must be read as a whole, ” and that circumstantial evidence may be sufficient to surpass the plausibility threshold. Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013). At a minimum, however, a complaint must include sufficient factual matter that, when accepted as true, would allow the court to draw “the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). In conducting this analysis, the court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999).

IV. Discussion

A. Dismissal of Count I; Count II as to Fisher and Kenney; Count III; Count V as to Fisher and Kenney; and Count VI

At the September 16, 2015 hearing on the instant motion, the court orally dismissed with prejudice Count I as to all Defendants; Count II as to defendants Kenney and Fisher; Count III as to all Defendants; and Count V as to defendants Fisher and Kenney. Plaintiff does not oppose dismissal of Count VI as to all Defendants. The reasons for dismissal of these claims, most of which were previously stated in court, are set forth below.

1. Count I

With respect to Count I, Fisher and Kenney are sued for their actions as Community Enterprises employees. Plaintiff’s Title VII claims against Fisher and Kenney cannot go forward because it is well-settled that there is no individual liability for employees under Title VII. See Fantini v. Salem State Coll., 557 F.3d 22, 31 (1st Cir. 2009); Bolduc v. Town of Webster, 629 F.Supp.2d 132, 152 (D. Mass. 2009); Horney v. Westfield Gage Co., 95 F.Supp.2d 29, 33 (D. Mass. 2000); see also 42 U.S.C. § 2000e-3 (it shall be an unlawful practice for an employer to discriminate against any of his employees or applicants for employment for opposing any employment practice made unlawful under Title VII). Plaintiff’s claims under Title VII must be dismissed as to all Defendants for the additional reason that Title VII prohibits workplace discrimination “on the basis of race, color, religion, sex or national origin . . . [and] employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for [such] unlawful workplace discrimination.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2522, 2525 (2013) (citing 42 U.S.C. §§ 2000e-2(a); 2000e-3(a)). The Complaint is devoid of any allegation that Plaintiff was discriminated against on the basis of race, color, religion, sex or national origin, or that she was retaliated against for opposing unlawful workplace discrimination on any of those bases. For the foregoing reasons, Count I is dismissed with prejudice as to all Defendants.

2. Count II as to Kenney and Fisher

The ADA contains four sub-parts. Title I addresses discrimination on the basis of disability by an “employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. §§ 12111(2), 12112. Title II prohibits disability discrimination in the services, programs, or activities of a “public entity.” See 42 U.S.C. § 12131(1). Title III addresses discrimination on the basis of disability by places of public accommodation. See 42 U.S.C. § 12181(7). Although it is settled in this circuit that there is no individual liability under Title I of the ADA, see Roman-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 45 (1st Cir. 2011), it remains an open question whether an individual may be liable for retaliation under 42 U.S.C. §§ 12203(a) of the ADA, which provides, in relevant part, that “[n]o person shall discriminate against any individual because such individual has opposed an act or practice made unlawful by this chapter . . . or participated in any manner in an investigation, proceeding or hearing under this chapter.”[5] (Emphasis supplied.) Acknowledging the broad language in § 12203(a), “[c]ourts that have addressed individual liability for retaliation claims under the ADA have reached different conclusions depending on what rights under the ADA are involved in the claim.” Datto v. Harris, 664 F.Supp.2d 472, 488 (E.D. Pa. 2009). Here, although Plaintiff makes passing reference in her Complaint to Titles II and III of the ADA (Dkt. No. 5 at ¶¶ 52, 60), she does not allege that Community Enterprises is a public entity or a place of public accommodation. She does, however, allege in her description of the parties that Community Enterprises is an entity covered by Title I of the ADA, i.e., an employer (Dkt. No. 5, ¶¶ 11-12), and she argues in her opposition to Defendants’ motion to dismiss that she was an employee of, rather than an independent contractor with, Community Enterprises (Dkt. No. 36-1). For these reasons, and because it is the most plausible reading of the Complaint as a whole, see Garcia-Catalan, 734 F.3d at 103, the court interprets the Complaint as asserting claims under 42 U.S.C. § 12203(a) against Community Enterprises in the capacity of an employer.

Title I of the ADA contains its own enforcement provision, § 12117, “which incorporates the remedies of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-4 to -9.” Datto, 644 F.Supp.2d at 486. Title VII has long been held not to impose individual liability. See, e.g., Fantini, 557 F.3d at 31. “Courts addressing whether individual liability may be imposed under the ADA for retaliation claims involving employment have often not distinguished between . . . claims under Title I of the ADA and retaliation claims under [42 U.S.C.] § 12203. Such cases have held . . . that individual liability is not available under either type of claim, ” without reference to the use of the term “person” in § 12203(a). Datto, 664 F.Supp.2d at 488-89 (citing Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999); McInerney v. Moyer Lumber and Hardware, Inc., 244 F.Supp.2d 393, 397-98 (E.D. Pa. 2002)).

Other courts, however, have analyzed the language in § 12203(a) in light of the remedial provisions set forth in subsection (c) of § 12203, which incorporates by reference as to employment related claims the remedies set forth in Title I of ADA. See 42 U.S.C. §§ 12117, 12203(c). Section 12117 incorporates the remedies available under Title VII. These courts have held that “individual liability is precluded under § 12203 where [as here] the act or practice opposed by the plaintiff is made unlawful by Subchapter I of the ADA.” Albra v. Advan Inc., 490 F.3d 826, 834 (11th Cir. 2007). “Because Title VII has been consistently held not to provide a remedy against individual defendants, [the Albra court and others] reason that, by incorporating Title VII remedies in claims involving employment, the retaliation provision of the ADA has been similarly limited.” Datto, 664 F.Supp.2d at 489 (citing Albra, 490 F.3d at 832-33; Stern v. Cal State Archives, 982 F.Supp. 690, 694 (E.D. Cal. 1997)); see also Van Hulle v. Pac. Telesis Corp., 124 F.Supp.2d 642, 645-646 (N.D. Cal. 2000) (what remedies, if any, a plaintiff is entitled to depends on whether the alleged retaliation occurred with respect to employment, public services, or public accommodation).

The cases cited by Plaintiff are not to the contrary. Those cases establish either that an employer can be liable for a retaliatory act that is not directly related to employment, see, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63-64 (2006) (the materially adverse action that must be shown need not be tied directly to terms and conditions of employment); Gore v. Trustees of Deerfield Acad., 385 F.Supp.2d 65, 71-73 (D. Mass. 2005) (anti-retaliation provisions of Title VII and ADA may cover employer’s actions that are not directly related to terms and conditions of employment), or that an employee is protected by the ADA against retaliation for being perceived as having assisted a fellow employee to assert the right to be free from disability discrimination. See Fogelman v. Mercy Hosp., Inc., 283 F.3d 561, 564-565 (3d Cir. 2002). None of these cases stands for the proposition that the ADA provides for individual liability for retaliatory action. Plaintiff’s reliance on the Datto case is also misplaced. As is set forth above, Datto distinguished between § 12203 retaliation claims where the underlying claim is related to employment from those asserted against public entities or public accommodations. See Datto, 664 F.Supp.2d at 488-92. The Datto court, faced only with ...


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