United States District Court, D. Massachusetts
HELENE E. HAGENAH, Plaintiff
BERKSHIRE COUNTY ARC, INC., ET AL., Defendants
MEMORANDUM OF DECISION AND ORDER REGARDING
PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED
COMPLAINT (Dkt. No. 44)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
December 5, 2016, Plaintiff Helene E. Hagenah
("Plaintiff") filed an amended complaint against
Defendants Berkshire County ARC, Inc. ("BCARC"),
and BCARC officers and employees, Kenneth W. Singer, Maryann
T. Hyatt, Bernard C. Melski, Megan B. Anello, and Angela
Buchauer (collectively "Defendants"), arising from
Plaintiff's agreement with BCARC to provide foster care
services to two disabled adults and BCARC's termination
of Plaintiff's services (Dkt. No. 6). Plaintiff asserted
the following causes of action in her amended complaint:
interference and retaliation in violation of Titles III and V
of the Americans with Disabilities Act ("ADA");
discrimination and retaliation under Mass. Gen. Laws ch.
151B, §§ 4, 4(A), and 5 ("Chapter 151B");
breach of contract; breach of the implied covenant of good
faith and fair dealing; misrepresentation; violations of
Title VII of the Civil Rights Act of 1964; violations of the
Rehabilitation Act of 1973; and violations of the
Massachusetts Civil Rights Act ("MCRA"), Mass. Gen.
Laws ch. 12, § 11I (Dkt. No. 6).
before the court is Plaintiff's motion for leave to file
a second amended complaint (Dkt. No. 44). Plaintiff seeks to
amend the complaint by adding the following three claims:
"intracorporate conspiracy to deprive rights under Title
VII of the Civil Rights Act of 1964 and in deprivation of
Plaintiff's rights under the 14th Amendment to the U.S.
Constitution, pursuant to 42 U.S.C. § 1985(3);"
"intracorporate conspiracy to deprive rights under the
Anti-retaliation provisions of the . . . ADA and in
deprivation of Plaintiff's rights under the 14th
Amendment to the U.S. Constitution, pursuant to 42 U.S.C.
§ 1985(3);" and "BCARC-Defendants'
vicarious liability for civil conspiracy" (Dkt. No.
44-1). Defendants oppose Plaintiff's motion on three
grounds: (1) the motion to amend was filed late; (2) the
conspiracy amendments are futile; and (3) the amendments are
barred by the statute of limitations (Dkt. No. 46). Plaintiff
has responded to Defendants' opposition (Dkt. No. 49).
parties have consented to this court's jurisdiction (Dkt.
No. 26). See 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73. After hearing the parties' arguments on
November 15, 2017, the court DENIES Plaintiff's motion
for leave to file a second amended complaint for the reasons
set forth below.
Defendants oppose Plaintiff's motion to amend "on
the grounds including futility, the 'proposed amendment
"is gauged by reference to the liberal criteria of
Federal Rule of Civil Procedure 12(b)(6)."'"
Perry v. Rose, Civil Action No.10-10769-JGD, 2012 WL
3903475, at *1 (D. Mass. Sept. 6, 2012) (quoting
Transwitch Corp. v. Galazar Networks, Inc., 377
F.Supp.2d 284, 290 (D. Mass. 2005)). Under this standard,
"[t]he court must accept as true all well-pleaded facts
set forth in the proposed amended complaint, and give the
plaintiff the benefit of all reasonable inferences."
Id. (citing Transwitch Corp., 377 F.Supp.2d
at 294). See Cooperman v. Individual, Inc., 171 F.3d
43, 46 (1st Cir. 1999). Applying this standard to the instant
case, the relevant facts are as follows.
is a nonprofit agency that provides services to disabled
individuals (Dkt. Nos. 44-2 ¶ 39; 44-5; 44-8 at 3, 4).
At the time of the events that form the basis of the amended
complaint and the proposed second amended complaint, the
individual Defendants held the following positions with
BCARC: Kenneth W. Singer was President, CEO, and Executive
Director; Maryann T. Hyatt was Vice President of Community,
Day, and Clinical Services; Bernard C. Melski was Co-Director
of Residential Services; Megan B. Anello was an Adult Family
Care Case Manager and Family Advocate; and Angela Buchauer
was a registered nurse (Dkt. No. 44-1 ¶¶ 21-25).
15, 2014, BCARC approved Plaintiff to be an Adult Family Care
("AFC") program caregiver for two developmentally
and physically disabled adults ("participants"),
F.L. and L.W., who would reside in her home (Dkt. Nos. 44-2
¶¶ 5, 39, 42; 44-8 at 3, 4). BCARC administered the
AFC program for MassHealth, the state agency that paid
participating caregivers a per diem rate for services
rendered to eligible MassHealth members based on the level of
care they required (Dkt. No. 44-8 at 2). Because Level II
participants required more intensive care than Level I
participants, AFC providers received a higher per diem rate
for Level II participants (id.). Both adults who
resided with Plaintiff were designated Level I participants
(id. at 3, 4).
29, 2014, Plaintiff, F.L., L.W., and Defendant Anello
executed an Adult Foster Participant and Caregiver Agreement
("Contract # 1"), which stated the responsibilities
of Plaintiff, BCARC, and the participants (Dkt. No. 44-9 at
2-4). As the caregiver, Plaintiff's charges included, but
were not limited to: maintaining a safe residence that
complied with all eligibility criteria; providing twenty-four
hour supervision of the participants; supplying the
participants with a "clean attractive room, " fresh
linens at least once a week, three nutritionally balanced
meals daily, and snacks; supervising and assisting the
participants with activities of daily living; arranging or
providing the participants' transportation; and
supervising health-related activities, such as reminding the
participants to take their medication, refilling their
medication on time, and assisting with their transportation
to physicians' offices (id. at 3). BCARC's
responsibilities included: visiting the participants monthly
"to monitor health status, safety, and satisfaction with
the placement;" checking on Plaintiff's performance
of her responsibilities, ability to care for the
participants, and satisfaction with the placements; annually
assessing Plaintiff's home for "safety and comfort
standards;" and developing, implementing, and updating,
when necessary, a plan of care for each participant and
including Plaintiff in the process (id. at 2). Each
participant was responsible for, among other things, paying
Plaintiff his or her share of the cost of room and board at
the beginning of each month (id. at 3).
the amended complaint, the proposed second amended complaint
alleges various federal and state claims of discrimination
based on Plaintiff's gender and advocacy for F.L. and
L.W., plus contract-related claims. Mainly, Plaintiff alleges
that Defendants retaliated against her for exercising rights
protected by the ADA and Chapter 151B or for assisting the
participants in exercising their rights under the laws, and
for refusing to sign a second contract ("Contract #
2") in August 2014 (Dkt. Nos. 44-1 ¶¶ 28, 29;
44-2 ¶¶ 4, 12, 19, 43, 60). Plaintiff claims that
her advocacy to BCARC and the Massachusetts Department of
Developmental Services ("DDS") on behalf of F.L.
and L.W. included seeking "changes" or
"improvements" in F.L.'s and L.W.'s
employment, day rehabilitation, and activity programs and
additional services (Dkt. No. 44-2 ¶¶ 6, 7, 42, 43,
45, 47). She also sought behavioral counseling and treatment
for the participants and a
"Rogers" attorney for medication
determination (id. ¶¶ 46, 52, 57, 115). In
addition, Plaintiff recites a litany of ways in which she
assisted F.L. and L.W. in protecting and enforcing their
rights including: advocating for "reasonable
accommodations to [their] respective disabilities, "
"timely delivery" of appropriate services and care
and respect for their privacy; bringing acts of
discrimination and abuse to the attention of state and
federal agencies, including DDS, the Massachusetts Commission
Against Discrimination ("MCAD"), and the Equal
Employment Opportunity Commission ("EEOC");
assisting F.L. and L.W. in appealing determinations made in
their care plans and individual service plans; and affording
them an opportunity to consult with legal counsel
(id. ¶¶ 8, 44, 48, 50, 55, 56, 58, 60).
alleges that Defendants presented her with Contract # 2 on or
about August 5, 2014 in retaliation for her "proper,
" "effective, " and "steadfast"
advocacy on behalf of F.L. and L.W. (Dkt. Nos. 44-2
¶¶ 65, 66; 44-11). Plaintiff claims that Contract #
2 -- which significantly differed from Contract # 1 and which
she refused to sign -- eliminated her rights as well as those
of F.L. and L.W. by permitting home visits "with or
without notice, " releasing BCARC from liability for
specific losses, establishing her status as an independent
contractor, permitting BCARC to terminate the contract
"with or without cause, any time, in its sole
discretion, " and limiting commencement of any legal
action under the contract to either the Central Berkshire
District Court or the Berkshire Superior Court (Dkt. Nos.
44-2 ¶¶ 12, 13, 61, 67, 71; 44-11 at 4-5).
alleges that her refusal to sign Contract # 2 spurred
Defendants' further acts of retaliation, threats,
intimidation, and coercion (Dkt. No. 44-2 ¶12).
Specifically, Defendant Anello's August 11, 2014 e-mail
message indicated that BCARC "was unable to begin
issuing . . . checks" until Plaintiff signed Contract #
2 (Dkt. Nos. 44-2 ¶¶ 70, 72; 44-12 at 9). Plaintiff
alleges that, in fact, payments were withheld until her
attorney contacted Defendants regarding the "egregious,
rights violating terms" of Contract # 2 (Dkt. No. 44-2
¶ 62). Thereafter, Defendants purportedly delayed making
payments to Plaintiff, withheld F.L.'s and L.W.'s
stipends, which they used to pay Plaintiff for their room and
board, "intentionally" incorrectly classified
F.L.'s and L.W.'s disabilities as Level I resulting
in Plaintiff being underpaid, and made false reports to
MassHealth and DDS including allegations that Plaintiff
provided subpar care to F.L. and L.W. and that she failed to
pay the real estate taxes on her home (id.
¶¶ 11, 12, 25, 32, 33, 63, 72, 74). Plaintiff
further alleges that Defendants disqualified her home as an
AFC placement for L.W. based on the alleged danger posed by a
railing on a balcony and stairway, which was one-half inch
lower than the building code requirements and which
MassHealth and DDS previously had approved (id.
¶¶ 25, 31, 33).
maintains that Defendants' acts of retribution culminated
in them terminating F.L.'s and L.W.'s occupancy of
Plaintiff's home thereby stopping payments to Plaintiff
and ending her role as an AFC provider (id.
¶¶ 25, 33, 101-03). Defendants allegedly instigated
F.L.'s departure from Plaintiff's home on September
24, 2014 by telling him that he would not have to work or
attend a day program and could just "'hang
out'" and go fishing every day (Dkt. Nos. 44-2
¶¶ 5, 101, 102, 115; 44-21 at 5). Plaintiff claims
that these representations "encouraged and enabled"
F.L.'s disruptive and threatening behavior that resulted
in F.L. asking to move out "more than eight times"
in one night (id. ¶¶ 99, 101-03).
Plaintiff further alleges that after F.L. moved from her
home, Defendants ignored his requests to move back,
threatened to stop caring for him if he contacted Plaintiff
or his attorney, and "forced [him] to sign papers"
(id. ¶¶ 5, 97, 104, 111, 112, 115).
Friday, October 17, 2014, Defendant Hyatt notified Plaintiff
of a meeting scheduled for Monday, October 20, 2014 to
discuss Plaintiff's continued role as the AFC provider
for L.W. as well as the "appropriateness" of
Plaintiff's home as L.W.'s placement based on
MassHealth's determination that the height of a railing
failed to comply with its safety standards (Dkt. Nos. 44-2
¶¶ 9, 22, 35; 44-18 at 2-5). Plaintiff states that
she did not attend the meeting because she was denied
adequate notice of BCARC's and MassHealth's
allegations, the opportunity to be heard, and representation
by legal counsel (Dkt. No. 44-2 ¶¶ 19-24, 35).
Plaintiff alleges that the lack of sufficient notice
regarding the meeting further evinced Defendants'
deprivation of her rights and their "continuing policy
of retaliatory animus and discrimination" based upon her
advocacy for F.L. and L.W. (id. ¶ 19).
was removed from Plaintiff's home on October 23, 2014
purportedly against her will and pursuant to a court order
based on Plaintiff's alleged failure to comply with
MassHealth's AFC regulations (Dkt. Nos. 44-2 ¶¶
25, 33; 44-19 at 3). BCARC's ...