United States District Court, D. Massachusetts
Talwani, United States District Judge
28, 2016, Defendants moved for partial dismissal of Plaintiff
s amended complaint. [#51]. This court referred the motion to
the Magistrate Judge [#58], who filed her Report and
Recommendation on January 25, 2017. [#77]. Objections
were due on February 8, 2017-14 days after the report was
docketed. Fed.R.Civ.P. 72(b)(2). Having received no
objection, and after considering the report and finding its
reasons to be sound, the court hereby ACCEPTS AND ADOPTS the
Magistrate Judge's Report and Recommendation
[#77]. Accordingly, Defendants' Motion to
Dismiss [#51] is ALLOWED IN PART and DENIED IN PART as
set forth in the Magistrate Judge's report [#77].
AND RECOMMENDATION RE: DEFENDANTS DANA-FARBER CANCER
INSTITUTE, INC., MELISSA CHAMMAS, AND LINDA SWEENEY'S
PARTIAL MOTION TO DISMISS (DOCKET ENTRY # 51)
MARIANNE B. BOWLER, United States Magistrate Judge
before this court is a partial motion to dismiss filed by
defendants Dana-Farber Cancer Institute, Inc.
(“Dana-Farber”), Melissa Chammas
(“Chammas”) and Linda Sweeney
“defendants”) under Fed.R.Civ.P. 12(b)(1)
(“Rule 12(b)(1)”) and Fed.R.Civ.P. 12(b)(6)
(“Rule 12(b)(6)”). (Docket Entry # 51). Plaintiff
Suada Mehic (“plaintiff”) opposes the motion.
(Docket Entry # 56). After conducting a hearing, this court
took the motion (Docket Entry # 51) under advisement.
2014, plaintiff filed a charge with the Equal Employment
Opportunity Commission (“EEOC”). (Docket Entry #
52- 1). “Pursuant to a ‘work-sharing'
agreement between the EEOC and” the Massachusetts
Commission Against Discrimination (“MCAD”),
“‘a charge filed with the EEOC is automatically
referred to MCAD, the state agency.'” Williams
v. City of Brockton, 59 F.Supp.3d 228, 245 (D.Mass.
2014) (quoting Leung v. Citizens Bank, 2014 WL
1343271, at *3 (D.Mass. Apr. 2, 2014)). The EEOC charge,
signed by plaintiff, also stated that she “want[ed]
this charge filed with both the EEOC and the State or local
agency, ” i.e., the MCAD. The charge alleged that she
was the victim of discrimination based on “national
origin, (Bosnia) and [her] age (57) and in retaliation for
protesting the harassment, ” which she depicts as being
falsely accused of stealing and insubordination. (Docket
Entry # 52-1). Plaintiff signed the charge under penalty of
perjury and, as defendants, named only her employer,
Dana-Farber. The body of the charge alleges that Chammas
harassed plaintiff and that plaintiff's performance was
“never a problem until Ms. Chammas was hired.”
(Docket Entry # 52-1). It also states that plaintiff is older
than both Chammas and Sweeney.
20, 2016, plaintiff filed a motion to amend the complaint in
this action. (Docket Entry # 38). The attached, proposed
amended complaint named Sweeney, Chammas and Dana-Farber and
did not include a retaliation claim under the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq.
(“Title VII”). Defendants opposed the amendment
on a number of grounds. On June 7, 2016, the district judge
allowed the motion to amend and noted that, “Before
filing, Plaintiff may omit from her proposed amended
complaint any causes of action (in their entirety or as to
particular Defendants) that Plaintiff no longer seeks to
assert after careful review of Defendants' opposition to
the motion to amend.” (Docket Entry # 44).
27, 2016, plaintiff filed the first amended complaint
(“the amended complaint”) against defendants.
(Docket Entry # 45). The amended complaint sets out the
following claims: (1) breach of implied covenant of good
faith and fair dealing against Dana-Farber (Count I); (2)
unjust enrichment against Dana-Farber (Count II); (3)
tortious interference with contractual relations against
Chammas and Sweeney (Count III); (4) intentional infliction
of emotional distress against Chammas and Sweeney (Count IV);
(5) libel and slander against Chammas and Sweeney (Count V);
(6) negligent supervision against Dana-Farber (Count VI); (7)
an age discrimination claim under 29 U.S.C. §§ 621,
et seq. against Dana-Farber (Count VII); (8) an age
discrimination claim under Massachusetts General Laws chapter
151B (“chapter 151B”) against defendants (Count
VIII); (9) discrimination based upon national origin under
Title VII of the Civil Rights Act of 1964 against Dana-Farber
(Count IX); (10) a retaliation claim against Chammas and
Sweeney under Title VII (Count X); (11) a violation of the
Massachusetts Wage Act under Massachusetts General Laws
chapter 149, section 148 (“section 148” or
“MWA”), against defendants (Count XI); (12) a
violation of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601 et seq.,
against defendants (Count XII); and (13) a violation of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 1210 et seq., against Dana-Farber (Count
XIII).(Docket Entry # 45).
move to dismiss counts IV and VI for lack of subject-matter
jurisdiction under Rule 12(b)(1). They also seek to dismiss
counts I, VIII (as to Chammas and Sweeney only), X, XI and
XIII for failure to state a claim under Rule 12(b)(6).
standard of review for a Rule 12(b)(6) motion is well
established. To survive a Rule 12(b)(6) motion to dismiss,
the complaint must include factual allegations that when
taken as true demonstrate a plausible claim to relief even if
actual proof of the facts is improbable. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-58 (2007). Thus, while
“not equivalent to a probability requirement, the
plausibility standard asks for more than a sheer possibility
that a defendant has acted unlawfully.” Boroian v.
Mueller, 616 F.3d 60, 65 (1st Cir. 2010)
(internal quotation marks and citations omitted).
“Where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint . . . has not shown-that the pleader is entitled to
relief.” Feliciano-Hernández v.
Pereira-Castillo, 663 F.3d 527, 533 (1st Cir.
2011) (brackets, internal quotation marks and citations
omitted). Discarding legal conclusions and taking the facts
in the governing complaint as “true and read in a
plaintiff's favor” even if seemingly incredible,
the complaint “must state a plausible, not a merely
conceivable, case for relief.”
Sepúlveda-Villarini v. Dep't of Educ. of
P.R., 628 F.3d 25, 29-30 (1st Cir. 2010).
evaluating a Rule 12(b)(6) motion, the court may consider a
limited category of documents outside the complaint without
converting the motion into one for summary judgment. Such
documents include public records and documents sufficiently
referred to in the complaint. See Butler v. Balolia,
736 F.3d 609, 611 (1st Cir. 2013) (supplementing
facts in complaint “by examining ‘documents
incorporated by reference into the complaint, matters of
public record, and facts susceptible to judicial
notice'”); Freeman v. Town of Hudson, 714
F.3d 29, 36 (1st Cir. 2013) (court may consider
“‘official public records; documents central to
plaintiffs' claim; and documents sufficiently referred to
in the complaint'”) (ellipses and internal brackets
omitted); Giragosian v. Ryan, 547 F.3d 59, 65-66
(1st Cir. 2008). It is also appropriate to
consider “‘documents the authenticity of which
are not disputed by the parties.'” Gargano v.
Liberty Int'l Underwriters, Inc., 572 F.3d 45, 47
n.1 (1st Cir. 2009) (quoting Watterson v.
Page, 987 F.2d 1, 3-4 (1st Cir. 1993)). Here,
defendants filed Dana-Farber's Sick Leave Policy in
support of the Rule 12(b)(6) motion. (Docket Entry # 52-2).
Neither party disputes the document's authenticity.
Indeed, plaintiff relies on Dana-Farber's Sick Leave
Policy in her brief. (Docket Entry # 56, pp. 9-10). The
amended complaint also asserts plaintiff was entitled to
accrue sick leave and that Dana-Farber refused to pay her
accrued sick leave upon her termination. Because the
authenticity of the document is not disputed, the policy may
also filed the EEOC complaint to support a Rule 12(b)(6)
dismissal. (Docket Entry # 52-1). The amended complaint
references the discrimination charges filed with the EEOC.
(Docket Entry # 45, ¶ 133). The charge is therefore
sufficiently referred to in the amended complaint and neither
party disputes the document's authenticity. Accordingly,
the EEOC charge, cross-filed with the MCAD, is part of the
Rule 12(b)(6) record.
respect to the Rule 12(b)(1) motion, this court “must
credit plaintiff's well-pled factual allegations and draw
all reasonable inferences in plaintiff's favor.”
Merlonghi v. United States, 620 F.3d 50, 54
(1st Cir. 2010) (citing Valentin v. Hospital
Bella Vista, 254 F.3d 358, 363 (1st Cir.
2001)); Sánchez ex rel. D.R.-S. v. United
States, 671 F.3d 86, 92 (1stCir. 2012)
(“‘credit[ing] the plaintiff's well-pled
factual allegations and draw[ing] all reasonable inferences
in the plaintiff's favor'” under Rule 12(b)(1))
(internal citation omitted)). “The district court may
also ‘consider whatever evidence has been submitted,
such as the depositions and exhibits submitted.'”
Merlonghi v. United States, 620 F.3d at 54 (quoting
Aversa v. United States, 99 F.3d 1200, 1210
(1st Cir. 1996)). Accordingly, plaintiff's
affidavit (Docket Entry # 56-1), although not considered and
stricken with respect to the Rule 12(b)(6) record, is
properly considered and part of the Rule 12(b)(1) record.
Although it is also appropriate to include both the
Dana-Farber Sick Leave Policy (Docket Entry # 52-2) and the
EEOC complaint (Docket Entry # 52-1), neither document is
relevant to the Rule 12(b)(1) argument defendants raise.
“‘Federal courts are courts of limited
jurisdiction'” and “[t]he existence of
subject-matter jurisdiction [is therefore] ‘never
presumed.'” Fafel v. Dipaola, 399 F.3d
403, 410 (1st Cir. 2005) (internal citations
omitted). When a defendant challenges subject-matter
jurisdiction, the plaintiff bears the burden of proving
jurisdiction. Johansen v. United States, 506 F.3d
65, 68 (1stCir. 2007). Dismissal is only
appropriate when the facts alleged in the complaint, taken as
true, do not support a finding of federal subject-matter
jurisdiction. Fothergill v. United States, 566 F.3d
248, 251 (1st Cir. 2009).
August 2003, Dana-Farber hired plaintiff as a cashier.
(Docket Entry # 45, ¶ 6). Plaintiff, who was 58 years
old as of June 27, 2016, worked standard hours of 9:00 a.m.
to 5:00 p.m. and was paid on an hourly basis. (Docket Entry #
45, ¶¶ 7, 9). As a cashier for Dana-Farber,
plaintiff's responsibilities included running the
cashier's booth in the hospital lobby, performing various
general accounting tasks and working with hospital staff and
patients. (Docket Entry # 45, ¶ 12).
plaintiff first began her employment, Sweeney and Tara
Hershberger (“Hershberger”), who was a close
friend of Sweeney, trained plaintiff. (Docket Entry # 45,
¶ 17). Shortly thereafter, plaintiff discovered that
Hershberger was stealing money from Dana-Farber by taking
cash for T passes rather than depositing the money into the
bank. (Docket Entry # 45, ¶ 19). Soon after plaintiff
was hired in August 2003, she reported Hershberger's
actions to her supervisors and Hershberger's employment
was terminated shortly thereafter. (Docket Entry # 45,
¶¶ 19, 20).
Hershberger's termination, Sweeney began continuously
reporting plaintiff as non-collaborative to management and
unable to complete her work in a timely manner. (Docket Entry
# 45, ¶¶ 23-24). Plaintiff informed Chammas that
Sweeney would purposely “not complete tasks during
Plaintiff's coverage, ” but Sweeney's behavior
was never investigated. (Docket Entry # 45, ¶¶
24-25). At an undetermined time, Sweeney accused plaintiff of
stealing money from a patient, who indicated “it was
their problem.” (Docket Entry # 36, ¶ 22).
her employment, plaintiff was assigned numerous direct
managers and supervisors, many of whom were only in their
positions for a few years. (Docket Entry # 45, ¶ 27).
Plaintiff's managers and supervisors typically
communicated with plaintiff via email or telephone and solely
on an as-needed basis. (Docket Entry # 45, ¶ 28).
“With each new supervisor, Plaintiff's tasks and
responsibilities increased and became more complex in
nature.” (Docket Entry # 45, ¶ 29). During each
review cycle, plaintiff received a standard salary increase
that corresponded to the original scope of her role as a
cashier. (Docket Entry # 45, ¶ 35). During her tenure as
a cashier, “she received letters of appreciation from
senior management, hospital staff, and patients.”
(Docket Entry # 45, ¶ 13).
various times, plaintiff wished to apply to a number of more
senior roles within the Finance Department, but was told by
Chammas and Joe Barrberio (“Barrberio”) that
there was no need for her to formally apply for more senior
roles. (Docket Entry # 45 ¶ 34). At each review cycle,
defendants informed plaintiff that her “position
revaluation” was under review with Finance Management
and Human Resources. (Docket Entry # 45, ¶ 36).
Additionally, plaintiff was told that her salary would be
appropriately adjusted to reflect her increased
responsibilities once the paperwork was complete. (Docket
Entry # 45, ¶ 39). In early 2010, Chammas and Barrberio
promised plaintiff a promotion and salary increase. (Docket
Entry # 45, ¶ 55). It was not until in or about June
2012 that plaintiff received an increase in pay. (Docket
Entry # 45, ¶ 60).
or about late 2011, ” Sweeney was assigned to supervise
plaintiff's work. (Docket Entry # 45, ¶ 69).
Plaintiff also reported to Chammas, who was in charge of
conducting plaintiff's reviews. (Docket Entry # 45,
in 2005, plaintiff was required to arrive 15 minutes early
each day to ensure that the cashier booth would open at
exactly 9:00 a.m. (Docket Entry # 45, ¶ 42). Plaintiff
was informed to record her additional time as overtime and
was paid for such overtime. (Docket Entry # 45, ¶¶
43-44). As an hourly employee, plaintiff's timesheets
“were approved weekly by the Finance Management.”
(Docket Entry # 45, ¶ 45). In February of 2012,
plaintiff's manager, George Peddle
(“Peddle”), requested a meeting with plaintiff to
discuss matters reported to him by Chammas. (Docket Entry #
45, ¶ 46). During the meeting, Peddle informed plaintiff
that Chammas demanded that plaintiff stop working overtime
hours immediately. (Docket Entry # 45, ¶ 48).
Additionally, plaintiff was accused of working unauthorized
overtime and getting paid for it. (Docket Entry # 45, ¶
48). Peddle informed plaintiff that she would be disciplined
by Chammas for her actions. (Docket Entry # 45, ¶ 50).
Plaintiff refused to accept any charges against her at the
meeting with Peddle. (Docket Entry # 45, ¶ 54). When
plaintiff inquired about the paperwork for her promotion and
salary increase, Peddle stated that “the Human
Resources Department had lost” it. (Docket Entry # 45,
stopped working overtime immediately following her meeting
with Peddle in February 2012. (Docket Entry # 45, ¶ 56).
Peddle was later terminated for unknown reasons. In 2012,
after Sweeney was assigned as plaintiff's direct
supervisor, plaintiff began seeing a psychologist due to
stress at work. (Docket Entry # 45, ¶¶ 68-69, 128).
around May 2013, Sweeney and Chammas started giving plaintiff
verbal warnings about her poor job performance. The warnings
began after “they discovered that [p]laintiff had
complained” about the false accusations to “the
Partners Employees Assistance Program.” (Docket Entry #
45, ¶ 65). In November 2013, plaintiff's replacement
during her lunch hour was eliminated per the instructions of
Sweeney and Chammas. (Docket Entry # 45, ¶ 63).
Plaintiff also received constant telephone calls from Sweeney
and Chammas during the busy cashier booth hours informing
plaintiff of her wrongdoings. (Docket Entry # 45, ¶ 71).
At various times, plaintiff would attempt to provide an email
summary of the telephone calls intending to demonstrate a
lack of wrongdoing on her part. (Docket Entry # 45, ¶
late 2013, Human Resources representatives were invited to
[p]laintiff's reviews, which” at this time
“became a weekly occurrence, without any prior
indication to Plaintiff.” (Docket Entry # 45, ¶
75). During reviews, Chammas and Sweeney described plaintiff
as a problem and a distraction to the department. (Docket
Entry # 45, ¶ 77). Sweeney often provided coverage for
plaintiff during her lunch hour. (Docket Entry # 45, ¶
83). Hospital staff complained about poor service at the
cashier booth, which prompted plaintiff to obtain letters
from specific customers positively stating that she was not
at the cashier booth during these times. (Docket Entry # 45,
¶ 84). Prior to this time, plaintiff had never had an
incident in which patients or hospital staff members
complained about her performance as a cashier. (Docket Entry
# 45, ¶ 81).
issued both verbal and written warnings and a final written
warning to plaintiff stating that plaintiff's performance
was not improving. (Docket Entry # 45, ¶ 89). In October
2013, shortly after the final written warning, plaintiff was
invited to a meeting. During the meeting, she was warned that
she was not acting as “a team worker” and that
this was her final warning before termination. (Docket Entry
# 45, ¶ 90). The final warning also stated that
plaintiff refused to go to the bank, which was an important
aspect of plaintiff's job as cashier. (Docket Entry # 45,
¶ 91). Plaintiff never signed any documents ...