United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER
ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE
Andrew Jay, formerly an at-will employee of defendants,
alleges wrongful constructive discharge in retaliation for
his internal report of extortion. Defendants move to dismiss
his single-count complaint.
following well-pleaded facts are recited as alleged in the
complaint. I accept them as true for the purposes of
resolving this motion. See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 5 (1st Cir. 2011).
a Massachusetts resident, worked for 14 years in various
capacities for defendant Siemens Financial Services, Inc.
(“SFS”), a German healthcare company doing
business in Massachusetts, and related entities. In his most
recent role, plaintiff worked as Managing Partner/Vice
President of Siemens Medical Solutions USA, Inc. (referred to
in the complaint and hereafter as
“Healthineers”). His responsibilities included
managing healthcare venture investment efforts and
supervising the Boston office of SFS. He received positive
performance reviews throughout his tenure with
SFS/Healthineers and oversaw positive financial returns.
spring of 2017, Thomas Miller of GreyBird Investments pitched
SFS/Healthineers to invest in a British biotechnology company
called Base4. Miller told SFS/Healthineers that he was
working to raise $30-50 million in venture capital for Base4.
As part of that effort, Miller had submitted a term sheet to
Base4 affording him financial incentives if he could secure a
syndicate of investors. A former Siemens Healthcare
executive, Miller by this time had a consulting contract with
Siemens to deliver business proposals and investment
opportunities. That contract was arranged by David Stein, SFS
Head of Strategy, and Bernd Montag, CEO of Siemens
Healthcare. Stein and his deputy, Mary Amor, “openly
supported” investing in Base4 through GreyBird. Compl.
previously considered and rejected this investment as
premature after a site visit in the summer of 2016,
plaintiff's team revisited the possibility in light of
executive support for it. After another visit to Base4,
however, plaintiff and his colleagues “remained
unimpressed.” Compl. ¶ 21. In June or July of
2017, plaintiff received a phone call from Cameron Frayling,
the CEO of Base4. According to Frayling, Miller had told him
that Siemens Healthcare would invest or not at Miller's
instruction, and that Frayling “should sign the
proposed term sheet with GreyBird if he wanted to see any
funding from Siemens Healthcare.” Compl. ¶ 22.
discussed this call with several colleagues and determined,
“based on their advice, standing SFS policy and his own
conscience” to report the matter to the company's
compliance department. He spoke with Barbara Greenberg on the
Siemens Compliance hotline, informing her “of the Base4
situation” and expressing concern “about personal
and professional implications from his report.” Compl.
subsequently reported no compliance problem because a
Healthineers attorney had informed her that Miller had no
contractual relationship with Healthineers. When plaintiff
informed her that Miller was in fact under contract as a
consultant, a “surprised” Greenberg asked that he
provide a copy of the contract.Compl. ¶ 25. Plaintiff
received no further communication from the compliance
department, but learned that Miller's contract
“would not be renewed despite Healthineers'
satisfaction with the value it was receiving.” Compl.
¶ 27. Despite plaintiff's “best efforts to
remove it from consideration, ” the Base4 investment
remained in play for weeks after his report, with Stein's
Stein and Montag, “in their capacities as SFS Head of
Strategy and CEO of Siemens Healthcare, acted in concert to
concoct a pretextual reason to demote Plaintiff, remove many
of his job duties, and replace him with an outside hire, all
in retaliation for Plaintiff's Compliance report.”
Compl. ¶ 30. Pursuant to that scheme, plaintiff was
demoted in September 2017 from Vice President reporting
directly to the SFS CEO, to Director reporting to Stein's
deputy Amor, a Hiring Manager. Amor informed him in a meeting
on October 2, 2017, that Stein and Montag had decided several
weeks prior that a substantial portion of plaintiff's job
responsibilities would be transferred to a new hire acting as
his direct superior. At a second meeting three days later,
Amor and a human resources employee repeated this
information. They emphasized that Stein and Montag had made
the decision back in August, adding this time that “the
reason for the demotion was his presentation style in
Investment Committee Meetings.” Compl. ¶ 37.
Plaintiff had never previously been informed of a problem
with his presentation style, and in the three Investment
Committee Meetings he attended with Montag, the two topics he
presented advanced successfully.
plaintiff informed Human Resources on October 13, 2017 that
he believed his demotion to be “in retaliation for his
Compliance report regarding Miller's extortion of
Base4's CEO.” Compl. ¶ 41. On October 25,
2017, Stein confirmed his and Montag's intention to
demote plaintiff, again citing his presentation style. By
letter dated October 31, 2017, Siemens informed plaintiff it
had found no connection between his compliance report and
demotion, and gave him until November 6, 2017 to accept the
demotion or resign. By refusing to accept the demotion,
plaintiff was constructively discharged on November 6, 2017.
December 27, 2017, he brought this one-count complaint
alleging wrongful discharge in Suffolk Superior Court.
Defendants thereafter removed to this court based on
diversity jurisdiction and now move to dismiss.
Standard of Review
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to 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)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. For purposes
of a motion to dismiss, the court accepts all well-pleaded
factual allegations as ...