United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
August 23, 2017, Plaintiff Margaret Driscoll filed the
instant complaint against her former employer, Defendant
Simsbury Associates, Inc., asserting claims arising from the
allegedly unlawful conditions of her employment. [ECF No.
1-1]. Plaintiff originally filed her case in state court, but
Defendant removed the case to this Court on December 4, 2017
based on the Court's federal question jurisdiction over
Plaintiff's claim for a violation of the federal False
Claims Act, 31 U.S.C. § 3730. [ECF No. 1]. Now pending
before the Court is Defendant's motion to dismiss for
failure to state a claim. [ECF No. 5]. For the reasons set
forth below, the complaint is dismissed.
following facts are taken from the complaint [ECF No. 1-1],
accepting the well-pleaded allegations as true and drawing
all reasonable inferences in favor of Plaintiff. See U.S.
ex rel. Booker v. Pfizer, Inc., 9 F.Supp.3d 34, 41 (D.
Mass. 2014). Plaintiff was employed by Defendant as Executive
Director of its Longwood facility, which provides living
accommodations to elderly individuals. Compl. ¶ 3. When
Plaintiff began working for Defendant, she suspected that
certain “unsavory” employees of Defendant
belonged to “pernicious gangs.” Id.
¶¶ 4-5. Plaintiff observed “signs of
decadence” in and around Defendant's facilities,
such as alcoholic beverages, drug transactions, and
“detritus.” Id. ¶ 4. Plaintiff
“reacted to the aforementioned problems with
disgust” because Defendant's facility “was
advertised as a very high class, clean and respectable home
for the aged and derived its reputation [from] being close to
the New England Baptist Hospital.” Id. ¶
6. Therefore, Plaintiff contacted the Boston Police
Department, “fired the aberrant employees who had
[gang] connections, ” and “took steps to
‘cleanup' the negative situations she found”
at Defendant's facility. Id. ¶ 8.
result of Plaintiff's meritorious service and demeanor,
she received steady accolades, positive reviews, and a $10,
000 bonus. See id. ¶¶ 9-11.
Plaintiff's “very positive” relationship with
Defendant “came to a halt, ” however, when
Defendant discovered that Plaintiff “sided” with
a fellow employee, Gailanne Cummings, who had filed a
complaint of employment discrimination and retaliation with
the Massachusetts Commission Against Discrimination
(“MCAD”). Id. ¶ 12. From that time
forward, Plaintiff was “constantly barraged with
disparaging remarks and innuendos, and even threats of
physical abuse.” Id. ¶ 13. For example,
“one or more persons” told Plaintiff that
“she was going to be held accountable because of
Gailanne Cummings.” Id. ¶ 12.
“Senior persons” at Defendant's facilities
screamed and yelled at Plaintiff, and “broadcast[ed]
slanderous remarks and lies about her to her fellow
employees.” Id. As a result, Plaintiff became
so nervous and upset that she consulted with physicians at
Massachusetts General Hospital, who “documented the
negative effect of the stressors that [Defendant] inflicted
upon her, including . . . Post-Traumatic Stress.”
Id. ¶ 14.
to Plaintiff's termination, she was instructed
“over 100 times” to put into her records
“for billing purposes to Medicare and state
reimbursement authorities” that she and her
subordinates provided “full care” in cases where
they had actually only provided 30 minutes of care. Compl.
¶ 15. As a result of these instructions and the other
“stressors” that Defendant put upon her,
Plaintiff did not receive credit for vacation time and other
personal time off. Id. ¶ 16. Further, the
“constant stressors, threats and other activities of
[Defendant] caused Plaintiff to require medical intervention
and take paid medical leave.” Id. ¶ 17.
Plaintiff “reported to persons in authority, ”
including “IT person in charge” Suzanne Kevinge,
that the “traumatic episodes caused by Defendant caused
Plaintiff illness.” Id. ¶ 18. Plaintiff
asserts that she was therefore entitled to time off for
“[e]mployer-caused disability” without charging
it to her accumulated vacation time. Id.
STANDARD OF REVIEW
adjudicating a motion to dismiss, the Court “accept[s]
as true all well-pleaded facts in the complaint and draws all
reasonable inferences therefrom in the pleader's
favor.” A.G. ex rel. Maddox v. Elsevier, Inc.,
732 F.3d 77, 80 (1st Cir. 2013) (quoting Santiago v.
Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011)). A
complaint will survive dismissal if it “contain[s]
sufficient factual matter, accepted as true, to state a claim
for relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
this standard of review is “highly deferential, ”
the Court need not accept every conclusory or generalized
allegation made by a complaint. Jepson v. HSBC Bank
USA, No. 12-cv-12179-LTS, 2013 WL 639184, at *2 (D.
Mass. Feb. 20, 2013) (quoting United States v. AVX
Corp., 962 F.2d 108, 115 (1st Cir. 1992)),
aff'd, No. 13-1364 (1st Cir. June 23, 2014). The
Court must “separate the complaint's factual
allegations (which must be accepted as true) from conclusory
legal allegations (which need not be credited), ” and
then “determine whether the remaining factual content
allows a ‘reasonable inference that the defendant is
liable for the misconduct alleged.'”
Maddox, 732 F.3d at 80 (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). A
“plausible” claim is one which raises “more
than the sheer possibility” that the defendant is
liable, Iqbal, 556 U.S. at 678, so a claim which
fails to “raise a right to relief above the speculative
level” must be dismissed. Twombly, 550 U.S. at
555; accord Grajales v. P.R. Ports Auth., 682 F.3d
40, 44-45 (1st Cir. 2012).
asserts the following six causes of action against Defendant:
(1) “intentional and/or negligent infliction of
emotional distress;” (2) “qui tam due to
violations of federal and state law;” (3) breach of
contract; (4) fraud; (5) “wage and hour claims;”
and (6) a violation of Mass. Gen. Laws ch. 93A. [ECF No.
Count One: Intentional/Negligent Infliction of Emotional
contends that Plaintiff's claims for intentional and/or
negligent infliction of emotional distress are barred by the
exclusivity clause of the Massachusetts Workers'
Compensation Act (“MWCA”), Mass. Gen. Laws ch.
152, § 24. In her opposition, Plaintiff argues that the
conduct alleged in the complaint was not within the scope of
employment, and therefore not barred by the MWCA, because (1)
intentional torts which do not further the interests of the
employer are not within the scope of employment, and (2)
instructing an employee to commit an illegal act (here,
misstating the hours of care on “records for billing
purposes to Medicare and state reimbursement
authorities”) cannot possibly further the interests of
MWCA bars tort claims by employees against employers where
the employee has failed to expressly reserve his or her
rights, and “was designed to replace tort actions by
providing a uniform, statutory remedy for injured workers, in
contrast to a piecemeal tort-based system.” Awuah
v. Coverall N. Am., Inc., 952 N.E.2d 890, 898 (Mass.
2011) (internal quotations and citations omitted);
see Mass. Gen. Laws ch. 152, § 24. The MWCA
exclusivity provision is “construe[d] broadly, ”
and bars common law claims for any emotional injury which
“aris[es] out of and in the course of
employment.” Doe v. Purity Supreme, Inc., 664
N.E.2d 815, 818 (Mass. 1996); see also Tennaro v. Ryder
Sys., Inc., 832 F.Supp. 494, 500-01 (D. Mass. 1993)
(discussing circumstances in which emotional distress claims
are and are not barred by MWCA). “An injury arises out
of the employment if it arises out of the nature, conditions,
obligations or incidents of the employment; in other words,
out of the employment looked at in any of its aspects.”
Doe, 664 N.E.2d at 818. Even where tortious conduct
was motivated mostly by personal interests, such conduct
falls within the scope of ...