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Driscoll v. Simsbury Associates, Inc.

United States District Court, D. Massachusetts

May 9, 2018




         On 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.

         I. BACKGROUND

         The 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.

         As a 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.

         Prior 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.


         In 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)).

         Although 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).


         Plaintiff 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. 1-1].

         A. Count One: Intentional/Negligent Infliction of Emotional Distress

         Defendant 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 the employer.

         The 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 ...

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