United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
Dennis Saylor IV United States District Judge.
an action arising from an employment dispute. In 2013,
plaintiff Elson DeBarros was terminated from his position as
a cook in a restaurant owned and operated by Areas USA
Boston, LLC (“Areas USA Boston”). In another
action pending before this Court, DeBarros brought claims for
disability discrimination and retaliation under the Americans
with Disabilities Act against Areas USA Boston and his former
supervisor, Michael Frank. After mediation, the parties
reached a settlement. However, DeBarros refused to comply
with the settlement agreement, and the Court dismissed that
action on April 20, 2018.
has brought a separate suit in state court against Areas USA
Boston and Frank, along with several new defendants,
including the parent company, Areas USA, Inc. (“Areas
USA”); Sergio Rodriguez, the company CEO; and Margarita
Nunez, a company human resources officer. Defendants have
removed that action to this Court. The new complaint restates
the retaliation claim and asserts new state-law claims for
defamation and libel. Defendants have moved to dismiss the
complaint for lack of personal jurisdiction and failure to
state a claim upon which relief can be granted. For the
reasons stated below, the motion will be granted in part and
denied in part.
facts are set forth as described in the complaint.
DeBarros is a resident of Rhode Island. (Compl. ¶ 1). On
June 2, 2011, he interviewed for a position at Vinea
Restaurant at Logan Airport in Boston, Massachusetts.
(Id. ¶ 10). According to the complaint, he
spoke with the then-General Manager of the restaurant, Steve
Barnett, and told him that he had suffered back injuries in
November 2007 that required ongoing medical treatment.
(Id. ¶¶ 9-10). Barnett nevertheless hired
him as a full-time employee. (Id. ¶
USA is a national food, beverage, and retail services
provider that is incorporated in Florida and headquartered in
Miami. (Id. ¶ 7). Areas USA Boston is a wholly
owned subsidiary of Areas USA that owns and operates the
Vinea Restaurant at the airport. (Id. ¶ 6).
March 2012, Michael Frank became the new General Manager at
Vinea Restaurant. (Id. ¶ 12). The complaint
alleges that the following month, DeBarros was informed by
his physician that he would require physical therapy twice a
week for some time and that he should refrain from lifting
and carrying heavy items. (Id. ¶ 13). His
physician, Dr. Anthony Lee of the New England Baptist
Hospital Spine Center, wrote a letter addressed to restaurant
management stating these restrictions. (Id.). The
letter was provided to Frank on May 2, 2012. (Id.
11, 2012, the restaurant manager, Dave Scholman, requested
that DeBarros work the next day. (Id. ¶
According to the complaint, however, DeBarros had physical
therapy scheduled that day, and declined. (Id.
¶ 19). Frank stated that Dr. Lee's letter did not
provide the scheduled dates and times for DeBarros's
physical therapy, and requested proof. (Id.).
DeBarros received a letter from his primary-care physician,
Dr. Nivedita Ghosh, stating that he was scheduled for
physical therapy on Tuesdays and Saturdays for at least 12
weeks. (Id. ¶ 19).The complaint alleges that
DeBarros provided Dr. Ghosh's letter to Frank on May 23,
2012. (Id. ¶ 20).
meeting was then convened to discuss DeBarros's medical
condition. (Id.). According to the complaint, during
the meeting, Frank stated that DeBarros would no longer have
to work Saturdays, but that he would be demoted to dishwasher
due to his back problems. (Id. ¶ 21). DeBarros
objected, and Frank agreed to refrain from demoting him.
(Id.). However, the following week, DeBarros's
hours were reduced and Frank hired a new cook. (Id.
¶ 22). The complaint alleges that Frank engaged in
“hostile and derogatory” conduct towards DeBarros
and subjected him to “routine verbal harassment
regarding [his] injuries.” (Id. ¶¶
to the complaint, on December 26, 2012, DeBarros was denied
permission from his supervisor, “Jessica Doe, ”
to discard expired food. (Id. ¶ 25). This
caused DeBarros to report the restaurant to health
inspectors, who came and cited the restaurant for four
“foodborne illness factors and intervention
violations” and “seven non-critical
violations.” (Id. ¶ 26). The complaint
alleges that in retaliation, Frank verbally berated DeBarros
and forced him to use a degreaser to which he was allergic.
(Id. ¶¶ 27-28). The degreaser allegedly
caused a severe allergic reaction that required him to take
three days off work in early January 2013, and Dr. Ghosh
wrote a note stating that DeBarros could return to work on
January 8. (Id. ¶¶ 29-30). That day,
supervisor Soraya Sheehan allegedly refused to let him return
to the restaurant's premises. (Id. ¶
to the complaint, on January 11, 2013, DeBarros again
attempted to return to the restaurant. (Id. ¶
33). He provided another note from Dr. Ghosh stating that he
was cleared to return to work. (Id.). Sheehan stated
that the note lacked specifics about work restrictions and
refused to authorize his return to work. (Id. ¶
days later, on January 15, 2013, DeBarros filed a complaint
with the Massachusetts Commission Against Discrimination
(“MCAD”) alleging discrimination on the basis of
disability. (Id. ¶ 35).
January 18, 2013, DeBarros contacted the human resources
department of Areas USA to ask how to file a worker's
compensation claim concerning his injuries from the allergic
reaction. (Id. ¶ 36). According to the
complaint, a representative stated that the company did not
have any report of an injury on file. (Id.). The
following week, human resources officer Margarita Nunez
stated that she could not provide information regarding
DeBarros's work status until she could speak with Frank.
(Id. ¶ 37).
to the complaint, on February 5, 2013, Nunez told DeBarros
that he needed to provide a more specific note from a
physician clearing his return to work. (Id. ¶
38). He obtained a third note from Dr. Ghosh, and provided
the note to human resources. (Id.). However, on
March 11, 2013, he was informed by Nunez that he had been
terminated. (Id. ¶ 39). The next day, he
received a text message from Frank directing him to turn in
his security badge. (Id. ¶ 40). The complaint
alleges that Frank refused to discuss the reason for his
April 8, 2013, DeBarros filed another complaint with MCAD,
alleging retaliation in violation of Massachusetts state law
and the Civil Rights Act of 1964. (Id. ¶ 42).
Areas USA Boston filed a MCAD position statement in June 2013
representing that on January 8, 2013, DeBarros had
“created a threatening environment by shoving chairs
and banging them on the ground.” (Id. ¶
43). The complaint further alleges that Frank falsely stated
that DeBarros had temper issues; for example, ...