United States District Court, D. Massachusetts
SHARI L. COON-RETELLE, Plaintiff,
VERIZON NEW ENGLAND INC., W.ROBERT MUDGE and MATTHEW D. ELLIS, Defendants.
MEMORANDUM AND ORDER
J. Casper United States District Judge.
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
“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.
Standard of Review
Motion for Remand
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).
Motion to Dismiss Pursuant to Rule 12(b)(6)
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).
following summary is based upon the factual allegations in
Coon-Retelle's first amended complaint, D. 1-4.
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.
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.
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.
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.