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Drachman v. Boston Scientific Corp.

United States District Court, D. Massachusetts

November 23, 2016

AMY DRACHMAN, Plaintiff,

          Order Date April 28, 2017

          George A. O'Toole, Jr. United States District Judge


         The 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.

         After 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 entirety.

         It is SO ORDERED.


          M. Page Kelley United States Magistrate Judge

         I. Introduction.

         Plaintiff Amy Drachman, proceeding pro se, [1] 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 for decision.

         II. The Facts.

         The 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.

         Plaintiff 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.

         On July 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.

         In August 2013, after receiving approval from her cardiologist to return to work part time, plaintiff returned to BSC in her demoted[2] 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.

         Approximately 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.

         Two 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.)

         On 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.

         Approximately 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.

         On her 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.)

         Five 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 pay.[3] 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.[4]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.

         Plaintiff 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. ΒΆΒΆ ...

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