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DeBarros v. Areas USA Boston, LLC

United States District Court, D. Massachusetts

April 20, 2018



          F. Dennis Saylor IV United States District Judge.

         This is 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.

         DeBarros 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.

         I. Background

         A. Factual Background

         The facts are set forth as described in the complaint.

         Elson 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. ¶ 11).[1]

         Areas 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).

         In 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. ¶ 14).

         On May 11, 2012, the restaurant manager, Dave Scholman, requested that DeBarros work the next day. (Id. ¶ 18).[2] 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).[3]The complaint alleges that DeBarros provided Dr. Ghosh's letter to Frank on May 23, 2012. (Id. ¶ 20).

         A 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. ¶¶ 23-24).

         According 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. ¶ 31).[4]

         According 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. ¶ 34).

         Four 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).

         On 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).[5]

         According 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 termination. (Id.).

         On 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. ΒΆ 43). The complaint further alleges that Frank falsely stated that DeBarros had temper issues; for example, ...

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