United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT KINDERCARE
EDUCATION LLC'S MOTION TO DISMISS (Dkt. No. 5)
L. CABELL, U.S.M.J.
KinderCare Education LLC (KinderCare) terminated longtime
employee plaintiff Gina Kun in 2015 over her handling of two
separate workplace matters. Kun contends in a two-count
complaint that her termination violated Massachusetts public
policy. (Dkt. No. 1). The defendant moves to dismiss the
complaint for failure to state a claim; the plaintiff opposes
the motion. (Dkt. Nos. 5, 8). For the reasons explained
below, the motion to dismiss is ALLOWED IN PART and DENIED IN
the allegations in the complaint as true for purposes of the
motion to dismiss, the plaintiff began working for KinderCare
in 1991. (Compl. ¶ 3). As of January 2000, and at all
relevant times thereafter, she held the title of Director.
(Compl. ¶ 4). KinderCare ultimately fired the plaintiff
over her handling of two separate matters, one occurring in
2013 and the other around 2015. (Compl. ¶ 6-13).
the 2013 incident, one of Kun's duties was to perform
annual background checks on KinderCare employees. (Compl.
¶ 5). In or around November 2013, she initiated a
background check on an employee by making an inquiry with the
Massachusetts Department of Early Education and Care (EEC).
(Compl. ¶ 6). The EEC responded that the Massachusetts
Department of Children and Families (DCF) had reported a
finding of physical abuse against the employee. (Compl.
¶ 7). State law requires that an employee receive an
“additional review” where such a finding has been
December 6, 2013, the plaintiff notified the EEC in writing
(as required) that the employee wished to undergo the
additional review process. (Compl. ¶ 8). The plaintiff
then conducted the additional review with the employee,
pursuant to 606 CMR 14.00. (Compl. ¶ 9). After
conducting the review, the plaintiff decided to keep the
the 2015 incident, the plaintiff in or about December 2014
learned of an allegation that a child had been left
unattended in the KinderCare facility for a brief period of
time. (Compl. ¶ 10). The plaintiff promptly investigated
the matter and determined that the circumstances did not rise
to a level that would otherwise require her to report the
matter to DCF pursuant to Massachusetts General Laws (M.G.L.)
chapter 119, section 51A.(Compl. ¶ 10-11).
subsequently learned of these two incidents in January 2015,
in the course of conducting an internal audit. (Compl. ¶
12). On February 24, 2015, KinderCare terminated the
plaintiff based on her handling of each incident. KinderCare
determined that the plaintiff had failed to follow corporate
policies and expectations regarding background checks of
existing employees in connection with the 2013 incident, and
had neglected to follow reporting and/or investigative
procedures relative to incidents of alleged abuse and/or
neglect occurring at the school in connection with the 2015
incident. (Compl. ¶ 13).
failed to ever provide any training or education to the
plaintiff relative to handling matters like these. (Compl.
¶ 14-15). Similarly, the plaintiff was unaware of the
existence of any corporate policies bearing on how KinderCare
employees should handle matters like these. (Compl. ¶
complaint asserts two common law claims for wrongful
termination, arising from the 2013 and 2015 incidents,
respectively, but it could be clearer in articulating the
specific reason why the plaintiff contends she was fired.
Count One, the narrative paragraphs preceding the actual
count assert that KinderCare terminated Kun because she
failed to follow corporate policies and expectations that she
did not know of, and which may not have even existed. (Compl.
¶¶ 13-17). However, Count One itself alleges that
Kun was terminated in retaliation for acting in “full
compliance” with state law. (Compl. ¶¶
same is true regarding Count Two; the narrative paragraphs
assert that Kun was fired for failing to follow corporate
policies but Count Two itself alleges that she was terminated
for acting in “full compliance” with state law.
(Compl. ¶¶ 13-17, 23-24). Count Two also appears to
allege that KinderCare fired the plaintiff because it
“falsely concluded that she had not investigated the
allegation” of a child having been left unattended.
(Compl. ¶ 23). Giving the plaintiff the benefit of the
ambiguity, the Court will read both counts as alleging
wrongful termination based on (1) the plaintiff's
purported failure to comply with internal rules and
regulations, and (2) retaliation against the plaintiff for
having correctly followed Massachusetts law in her handling