United States District Court, D. Massachusetts
HELENE E. HAGENAH, Plaintiff
BERKSHIRE COUNTY ARC, INC., ET AL., Defendants
MEMORANDUM OF DECISION AND ORDER REGARDING
DEFENDANTS' PARTIAL MOTION TO DISMISS PLAINTIFF'S
AMENDED COMPLAINT AND MOTION TO STRIKE (DKT. NO. 55)
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")
(Count I); discrimination and retaliation under Mass. Gen.
Laws ch. 151B, §§ 4, 4(A), and 5 ("Chapter
151B") (Count II); breach of contract (Count III);
breach of the implied covenant of good faith and fair dealing
(Count IV); misrepresentation (Count V); violations of Title
VII of the Civil Rights Act of 1964 (Count VI); violations of
the Rehabilitation Act of 1973 (Count VII); and violations of
the Massachusetts Civil Rights Act ("MCRA"), Mass.
Gen. Laws ch. 12, § 11I (Count VIII) (Dkt. No. 6).
before the court is Defendants' partial motion to
dismiss, seeking dismissal under Fed.R.Civ.P. 12(b)(6) of
Counts V and VII and so much of Count VI as alleges the
individual Defendants' liability (Dkt. No. 55). In
addition, Defendants move to strike and to dismiss with
prejudice so much of Count I as alleges a violation of Title
III of the ADA (id.). Plaintiff claims that the
complaint does not allege individual liability under Count
VI, opposes Defendants' motion as to Counts V and VII,
and offers no disagreement with Defendants' motion to
strike and to dismiss with prejudice the portion of Count I
that alleges a violation of Title III of the ADA (Dkt. No.
parties have consented to this court's jurisdiction.
See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
After hearing the parties' arguments, the court ALLOWS
Defendants' motion to dismiss in part, DENIES it in part,
and ALLOWS Defendants' motion to strike for the reasons
set forth below.
this is a motion to dismiss, "the court accepts as true
the well-pleaded factual allegations contained in the
complaint, drawing reasonable inferences in the
Plaintiffs' favor." S. Commons Condo. Ass'n
v. City of Springfield, 967 F.Supp.2d 457, 460 (D. Mass.
2013), aff'd sub nom. S. Commons Condo. Ass'n v.
Charlie Arment Trucking, Inc., 775 F.3d 82 (1st Cir.
2014). 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. 6-1 ¶ 39; 6-4; 6-7 at 3,
At the time of the events that form the basis of the 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. 6
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. 6-1
¶¶ 5, 39, 42; 6-7 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. 6-7 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). Plaintiff alleges that they should
have been classified as Level II participants (Dkt. No. 6-1
¶¶ 33, 74).
29, 2014, Plaintiff, F.L., L.W., and Defendant Anello
executed Adult Foster Participant and Caregiver Agreements
(Contract # 1), which stated the responsibilities of
Plaintiff, BCARC, and the participants (Dkt. No. 6-8 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).
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, the Rehabilitation
Act, and Chapter 151B or for assisting the participants in
exercising their rights under the laws, and for refusing to
sign new caregiver contracts in August 2014 ("Contract #
2") (Dkt. Nos. 6 ¶¶ 28, 29, 89-91; 6-1
¶¶ 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. 6-1 ¶¶ 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. 6-1
¶¶ 65, 66; 6-10). Plaintiff claims that Contract #
2 -- which significantly differed from the 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. 6-1
¶¶ 12, 13, 61, 67, 71; 6-10 at 4-5).
alleges that her refusal to sign Contract # 2 spurred
Defendants' further acts of retaliation, threats,
intimidation, and coercion (Dkt. No. 6-1 ¶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. 6-1 ¶¶ 70, 72; 6-11 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. 6-1
¶ 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, continued to "intentionally" incorrectly
classify F.L. and L.W. as Level I participants 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. 6-1
¶¶ 5, 101, 102, 115; 6-20 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 (Dkt. No. 6-1 ¶¶ 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. 6-1
¶¶ 9, 22, 35; 6-17 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. 6-1 ¶¶ 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. 6-1 ¶¶
25, 33; 6-18 at 3). BCARC's ...