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Coon-Retelle v. Verizon New England Inc.

United States District Court, D. Massachusetts

March 17, 2017



          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff Shari L. Coon-Retelle (“Coon-Retelle”) has filed this lawsuit against Defendants Verizon New England Inc. (“Verizon”), W. Robert Mudge (“Mudge”) and Matthew D. Ellis (“Ellis”) (collectively, “Defendants”) alleging violations for nonpayment of wages under Mass. Gen. L. c. 149 § 148, misclassification as an independent contractor under Mass. Gen. L. c. 149, § 148B, and failure to provide overtime compensation pursuant to Mass. Gen. L. c. 151, §§ 1A, 1B. D. 1-4 ¶¶ 62-80, 102-115, 128-134. Verizon removed this case to this Court, D. 1, and Coon-Retelle now has moved to remand this matter to the Suffolk Superior Court. D. 18. Verizon has moved to dismiss Counts I and VII of Coon-Retelle's first amended complaint. D. 23. Mudge and Ellis have moved to dismiss Counts II, III, VIII and IX of Coon-Retelle's first amended complaint. D. 38. For the reasons stated below, the Court GRANTS Coon-Retelle's motion, D.18, REMANDS this matter to state court and, in light of remand, does not reach the motions to dismiss, D. 23; D. 38.

         II. Standard of Review

         A. Motion for Remand

         Pursuant to 28 U.S.C. § 1441(a), a defendant can remove a civil action presenting a claim or right “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Upon the filing of a motion to remand, the Court must assess whether it “would have had original jurisdiction of the case had it been filed in [this] court.” BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., IAMAW Dist. Lodge 4, 132 F.3d 824, 832 (1st Cir. 1997) (quoting Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702 (1972)) (internal quotation mark omitted). Generally, a plaintiff is the master of his claims and has “the prerogative to rely on state law alone although both federal and state law may provide a cause of action.” Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). “When a plaintiff files an action in state court and the defendant responds by invoking federal jurisdiction through removal, the defendant has the burden of establishing that removal to the district court is proper.” Barbosa v. Wells Fargo Bank, N.A., No. 12-cv-12236-DJC, 2013 WL 4056180, at *3 (D. Mass. Aug. 13, 2013) (citing Danca, 185 F.3d at 4). To meet his burden of persuasion, BIW Deceived, 132 F.3d at 831, a defendant “must . . . make a ‘colorable' showing that a basis for federal jurisdiction exists.” Danca, 185 F.3d at 4 (quoting BIW Deceived, 132 F.3d at 832). “Generally, [d]oubts about the propriety of removing an action should be resolved in favor of remand.” Miara v. First Allmerica Fin. Life Ins. Co., 379 F.Supp.2d 20, 26 (D. Mass. 2005) (citation omitted).

         B. Motion to Dismiss Pursuant to Rule 12(b)(6)

         The Court will grant a Rule 12(b)(6) motion to dismiss if the complaint fails to plead sufficient facts to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court is obligated to “assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). The Court, however, must distinguish “the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).” Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). “In determining whether a [pleading] crosses the plausibility threshold, ‘the reviewing court [must] draw on its judicial experience and common sense.'” García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013).

         III. Factual Background

         The following summary is based upon the factual allegations in Coon-Retelle's first amended complaint, D. 1-4.

         Coon-Retelle is an American Sign Language interpreter who worked in the Verizon Center for Customers with Disabilities (“VCCD”) at which Verizon provides communication options for people who are deaf or have other physical or cognitive impairments. Id. ¶¶ 1, 19, 23. From 1990 through August 2005, Coon-Retelle worked for the VCCD as a freelance sign language interpreter. Id. ¶ 25. From August 2005 through January 2015, however, Coon-Retelle worked for the VCCD on a consistent and regular basis based upon a schedule that she created with her supervisor, Thomas Boudrow (“Boudrow”). Id. ¶¶ 21-22, 26-29.

         In this capacity, Coon-Retelle worked exclusively for Verizon. Id. ¶¶ 30, 42. Boudrow directed and supervised Coon-Retelle, providing her work assignments and controlling what work she performed and which meetings required her attendance. Id. ¶¶ 36-38. In addition, Verizon required her to work the days and hours that were prescribed and agreed upon, provided her with a work space that was for her sole and exclusive use, granted her access to use the company facilities, supplies and equipment, mandated that she wear Verizon-issued attire that bore the Verizon name and logo when she attended outreach exhibits and programs, provided her with a Verizon-issued nametag and security badge and displayed an image of Coon-Retelle on its website for marketing reasons. Id. ¶¶ 41, 43-45, 48, 50. Coon-Retelle was also required to prepare and submit timesheets to Verizon as well as follow all of the company rules and policies. Id. ¶¶ 46-47.

         Coon-Retelle alleges that, at all times during which she provided sign language interpretation services to Verizon, she was misclassified as an independent contractor. Id. ¶¶ 31, 54. Namely, Coon-Retelle did not have freedom of control and direction in connection with the services she performed for Verizon, did not perform her services outside of Verizon's normal course of business and she did not engage in an independently established trade or business of the same nature as the services rendered for Verizon. Id. ¶¶ 59-61. Due to this misclassification, Coon-Retelle alleges that she did not receive the benefits to which Verizon employees are entitled such as the payment of bonuses, participation in the 401K profit sharing plan, health insurance, dental insurance, prescription drug coverage, group term life insurance, short and long-term disability insurance, paid vacations and holidays and overtime compensation. Id. ¶ 55. Likewise, this misclassification caused Coon-Retelle to pay for all taxes herself including federal, state, Social Security and Medicare taxes and additional self-employment taxes. Id. ¶¶ 56-57.

         IV. Procedural History

         On June 29, 2016, Coon-Retelle instituted this action against Verizon, Verizon Chief Executive Officer and Director Mudge and Verizon Treasurer Ellis, which Coon-Retelle later amended on July 22, 2016. D. 1-3; D. 1-4. Verizon then removed this action to this Court. D. 1. Coon-Retelle has now moved to remand this case to Suffolk Superior Court. D. 18. Verizon, Mudge and Ellis have moved to dismiss Counts I-III, VII-VIII and IX. D. 23; D. 38. The Court heard the parties on the pending motions and took these matters under advisement. D. 42.

         V. Subject ...

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