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Hagenah v. Berkshire County Arc, Inc.

United States District Court, D. Massachusetts

February 15, 2018

HELENE E. HAGENAH, Plaintiff
v.
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

         I. Introduction

         On 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).

         Presently 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).

         The 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.

         II. Background[1]

         Because 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.

         BCARC 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).

         On May 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).

         On May 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).

         Like 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"[2] 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         On 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).

         L.W. 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 ...


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