United States District Court, D. Massachusetts
Date April 28, 2017
A. O'Toole, Jr. United States District Judge
ADOPTING REPORT AND RECOMMENDATION
magistrate judge to whom this matter was referred has filed a
report and recommendation (“R & R”) with
respect to the defendants' Motion to Dismiss Counts II
(as to Defendants Hendler and Fitzpatrick), III, IV, and V of
the Plaintiff's Amended Complaint (dkt. no. 21). No
objections to the R & R were timely filed.
carefully reviewing the pleadings, the parties' motion
papers, and the R & R, I ADOPT the recommendation of the
magistrate judge. The defendants' Motion to Dismiss is
GRANTED in part and DENIED in part. Count II is dismissed as
to Fitzpatrick and Count IV and V are dismissed in their
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS (#21).
Page Kelley United States Magistrate Judge
Amy Drachman, proceeding pro se,  filed this action
against her former employer Boston Scientific Corporation
(BSC) and its executive employees Ann Fitzpatrick, Elizabeth
S. Hendler, and Jean F. Lance (the individual defendants)
alleging violations of the Family Medical Leave Act (FMLA),
Count I, the Massachusetts Wage Act (MWA), Count II, the
Americans with Disabilities Act (ADA), Count III, as well as
common law claims for breach of contract and the covenant of
good faith and fair dealing, Counts IV and V respectively.
(#20.) Defendants filed a motion to dismiss Count II (against
defendants Hendler and Fitzpatrick) and Counts III, IV, and V
in their entirety (#21); plaintiff responded in opposition
(#24). At this juncture the motion to dismiss stands ready
facts as set forth in the amended complaint (#20) are as
follows. On September 1, 2010, plaintiff started working at
BSC as director of employment policy and compliance in the
global compliance department. (#20 ¶ 11.) She was
terminated on March 14, 2014. Id.
has a serious medical condition, a dissected descending aorta
with a thoracic aneurysm, which is considered a physical
impairment that substantially limits a major life activity
under the ADA. Id. ¶ 12. Plaintiff's
condition entitles her to leave under the FMLA. Id.
On March 20, 2013, plaintiff took leave under the FMLA which
BSC approved and certified. Id. ¶ 13. In the
twelve months leading up to her leave of absence, plaintiff
worked more than 1, 250 hours and reported to defendant
Lance, BSC's chief compliance officer. Id.
¶¶ 14, 15. Plaintiff's job, which required that
she have a juris doctorate degree, included interpreting and
enforcing BSC's employment policies for all employees in
the United States, ensuring compliance with federal and state
employment laws and regulations, and serving as the equal
employment opportunity officer responsible for BSC's
affirmative action program. Id. ¶ 16.
Plaintiff's duties also included overseeing BSC's
global privacy program, managing the director of privacy, a
privacy specialist, and an administrative assistant in the
global compliance department, as well as serving as one of
the directors on Lance's leadership team of the global
compliance department. Id. ¶ 17.
25, 2013, while on FMLA leave, plaintiff received a telephone
call from Lance informing plaintiff that her position was
being transferred, effective upon her return, to the
employment law group within the legal department.
Id. ¶ 18. As part of this transfer, plaintiff
would be reporting to defendant Hendler, the vice president
of employment law and manager of BSC's employment law
function. Id. Lance explained that in
plaintiff's new position she would no longer have any
employees reporting to her. Id. ¶ 19. In
addition, plaintiff would no longer have managerial
responsibility for the global privacy program, nor would she
have a leadership role in the legal department. Id.
August 2013, after receiving approval from her cardiologist
to return to work part time, plaintiff returned to BSC in her
demoted position in the legal department reporting
to Hendler. Id. ¶ 21. Plaintiff worked in her
new role subject to medically-imposed restrictions, which
limited her work to four to five hours per day. Id.
¶ 23. Prior to her leave of absence and after her
return, plaintiff received multiple calls from BSC's
human resources professionals (plaintiff's internal
clients) who were concerned that Lance intended to transfer
or terminate improperly other employees in the global
compliance department who were then on FMLA leave.
Id. ¶ 24.
five months after returning from FMLA leave, plaintiff
received a letter from BSC (#20-1 at 1) stating that her
health insurance, which was an employee benefit that she and
her sons received, was to be cancelled for the reason of
“Other” retroactive to September 16, 2013, more
than four months prior. Id. ¶ 27; (#20-1 at 1.)
Plaintiff alleges that the cancellation of her insurance was
improper as she had paid the necessary premiums and worked
the minimum number of hours. In addition, the timing of the
notice failed to comport with the 45-day pre-cancellation
notice requirement set forth in the Consolidated Omnibus
Budget Reconciliation Act of 1986 (COBRA). (#20 ¶¶
28-30.) Plaintiff notified BSC's human resources benefits
manager about the impropriety of the cancellation of her
family's health insurance. Id. ¶ 32. After
several conversations initiated by plaintiff, BSC's human
resources benefits manager conceded that the notice and
retroactive cancellation of plaintiff's health insurance
was improper and invalid. Id. ¶ 34.
weeks after receiving the notice of cancellation of her
health insurance and five months into her post-leave
employment, on January 29, 2014, plaintiff received a letter
from Hendler (#20-1 at 2), her manager, in which Hendler
informed plaintiff that she was to be terminated because BSC
could no longer accommodate her part-time work restriction.
Id. ¶ 35; (#20-1 at 2.) The letter stated that
plaintiff could retain her position until a replacement was
hired. (#20 ¶ 37; #20-1 at 2.)
March 7, 2014, plaintiff received her 2013 annual performance
bonus from BSC. (#20 ¶ 39.) The bonus was evidence that
she had satisfied her performance bonus requirements for
2013. Id. Plaintiff received full bonus credit for
the period during which she was entirely absent from work as
a result of her FMLA leave. Id. ¶ 40. With
respect to her post-leave part-time work, BSC prorated
plaintiff's bonus to reflect the decrease in hours
worked. Id. ¶ 41. This resulted in an
approximately $6, 000.00 decrease in plaintiff's bonus
for 2013. Id. Plaintiff asserts that she was
entitled to a bonus reflecting a full-time schedule and that
BSC's actions violated its annual bonus plan (#20-1 at
3-15). Id. ¶ 42. Shortly after receiving her
allegedly undersized bonus, plaintiff questioned Hendler, who
was the leader of the employment law group, about the matter.
Id. ¶ 43. Hendler told plaintiff that she would
look into the matter, but BSC never paid plaintiff the
additional $6, 000.00. Id. ¶ 44.
one week before she was terminated, around March 7, 2014,
plaintiff met with Hendler for an exit interview. Hendler
confirmed that plaintiff had accrued 22 days of vacation time
that would be paid out upon termination, per BSC policy.
Id. ¶ 45. BSC policy, in compliance with the
MWA, mandates that involuntarily terminated Massachusetts
employees be paid their final paycheck and any vacation pay
on their last day of work. Id. ¶ 46. Each of
the individual defendants was allegedly responsible for
compliance with BSC policies and the MWA with respect to
final paychecks and vacation pay. Id. ¶ 47.
last day of work, March 14, 2014, plaintiff contacted
Fitzpatrick, human resources director and business partner to
the legal department, and asked about her final paycheck and
vacation pay. Id. ¶ 48. Fitzpatrick assured
plaintiff that she would receive her final paycheck and
accrued vacation pay, but said that she would not be
receiving them on her last day. Id. ¶ 49.
Instead, Fitzpatrick explained, plaintiff would receive these
payments on BSC's next regular payday (seven days later),
despite the involuntary nature of plaintiff's
termination. Id. When questioned by plaintiff as to
why the payments would not be made on the date of
termination, Fitzpatrick stated, via email (#20-1 at 16-17),
that there was work to be done to ensure that plaintiff's
life insurance and COBRA were calculated properly.
Id. ¶ 50; (#20-1 at 16-17.) Plaintiff asserts
that the individual defendants had ample notice of her
upcoming termination based on the fact that plaintiff
received notice of her termination a full two months earlier,
and thus did not need this time to calculate her benefits.
(#20 ¶ 51.)
days after plaintiff's termination, BSC issued her final
paycheck and accrued vacation payout. Id. ¶ 54.
She asserts that the amount she received was a fraction of
what she was owed both for wages and vacation
Id. ¶ 55. Around March 19, 2014, plaintiff
contacted BSC's payroll department regarding the
erroneous payment, and payroll advised her not to cash the
checks that had been issued as new checks would be issued in
an effort to correct the errors. Id. ¶ 56. On
March 22, 2014, plaintiff received a new final paycheck and
vacation payout. Id. ¶ 57. The final paycheck
reflected the correct amount, but the vacation payout, in the
gross amount of $10, 887.47, was still deficient because it
did not reflect all of the vacation time Hendler and
Fitzpatrick had assured plaintiff would be included in her
final payout. Id. Plaintiff again contacted payroll
to inquire about the missing vacation pay. Id.
¶ 58. Payroll informed plaintiff that her balance of 22
vacation days had been significantly reduced after she
departed.Id. ¶ 59. The vacation days
in question had been accrued prior to plaintiff's FMLA
leave, when she was working a full-time schedule.
Id. ¶ 61. Defendants refuse to compensate her
for the lost days or the remainder of her 2013 bonus.
Id. ¶¶ 62, 63.
alleges that in addition to the issues with her final
paycheck and deficient vacation payout, she was also denied
severance benefits that BSC customarily pays to involuntarily
terminated employees, absent gross misconduct. Id.
¶ 64. BSC maintains several official Employee Retirement
Income Security Act (ERISA) severance plans as well as an
unofficial severance plan through which BSC offers
involuntarily terminated former employees essentially the
same benefits they would have received under one of the ERISA
plans, had the ERISA guidelines been applicable. Id.
¶¶ 65-68. BSC allegedly provides these unofficial
severance benefits to former employees in an effort to ease
their transition out of the company. Id.