Heard: Date September 13, 2018.
action commenced in the Superior Court Department on
September 30, 2016.
motion to dismiss was heard by Michael K. Callan,
J., and a motion for reconsideration was considered by him; a
motion to dismiss was heard by Mark D. Mason, J.,
and the entry of judgment was ordered by him.
Timothy J. Ryan for the plaintiff.
E. Flores for the defendant.
Present: Wolohojian, Lemire, & Englander, JJ.
plaintiff, Ileana Bermudez, appeals from the judgment
dismissing her amended complaint for retaliatory termination
in violation of G. L. c. 152, § 75B (2). Bermudez
contends that the dismissal is erroneous because, contrary to
the motion judge's finding, her third-party negligence
claim is a right afforded by G. L. c. 152, § 15. We
vacate the judgment.
review of the appeal of a motion to dismiss is de novo,
"accepting the facts alleged in the complaint as true
and drawing all reasonable inferences in the plaintiff's
favor." Edwards v. Commonwealth, 477
Mass. 254, 260 (2017). To survive a motion to dismiss, a
plaintiff must present factual allegations that rise above
speculation and plausibly suggest an entitlement to relief.
See Iannacchino v. Ford Motor Co., 451
Mass. 623, 636 (2008). See also Flagg v. AliMed,
Inc., 466 Mass. 23, 26 (2013).
Group Staffing Services, Inc. (Career Group), a temporary
employment agency, hired Bermudez and placed her at the
Chicopee manufacturing facility of the defendant,
Dielectrics. On July 26, 2013, while working in this
capacity, Bermudez was injured when one of the
defendant's employees (Kevin Ramos) negligently operated
a forklift, causing several large metal sheets to fall on
Bermudez's right foot. As a result, Bermudez suffered a
fracture to her right foot and could not work for
approximately eight weeks. Bermudez filed a workers'
compensation claim naming Career Group as her employer, and
collected benefits from Career Group's insurer for her
medical bills and lost wages. Bermudez was able to return to
work at the defendant's facility in September, 2013. In
December, 2013, the defendant hired Bermudez as a full-time
July, 2015, Bermudez filed a third-party action for
negligence and respondeat superior against the defendant and
Ramos. In response, in a notice dated September
22, 2015, the defendant terminated Bermudez, stating:
"It is important to Dielectrics that when we promote an
employee to a supervisory position the employee has a belief
in the [c]ompany and behave[s] with the [c]ompany's best
interests at heart. Our supervisors need to support
Dielectrics in that way so that we can ...