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Mehic v. Dana-Farber Cancer Institute, Inc.

United States District Court, D. Massachusetts

February 16, 2017

SUADA MEHIC, Plaintiff,


          Indira Talwani, United States District Judge

         On July 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].

         IT IS SO ORDERED.


          MARIANNE B. BOWLER, United States Magistrate Judge

         Pending 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 (“Sweeney”) (collectively “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.


         In July 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)[1] 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.

         On May 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).

         On June 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).[2](Docket Entry # 45).

         Defendants 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).


         The 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).

         In 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 be considered.

         Defendants 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.

         With 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.

         Finally, “‘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).


         In 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).

         When 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).

         Following 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).

         During 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).

         At 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).

         “[I]n 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, ¶ 70).

         Meanwhile, 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, ¶ 55).

         Plaintiff 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).

         In or around May 2013, Sweeney and Chammas started giving plaintiff verbal warnings about her poor job performance.[3] 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, ¶ 72).

         “In 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).

         Chammas 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 ...

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