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Bermudez v. Dielectrics, Inc.

Appeals Court of Massachusetts, Hampden

November 16, 2018

ILEANA BERMUDEZ
v.
DIELECTRICS, INC.

          Heard: Date September 13, 2018.

         Civil action commenced in the Superior Court Department on September 30, 2016.

         A 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.

          Erica E. Flores for the defendant.

          Present: Wolohojian, Lemire, & Englander, JJ.

          LEMIRE, J.

         The 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.

         Standard of review.

         Our 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).

         Background.

         Career 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 employee.

         In July, 2015, Bermudez filed a third-party action for negligence and respondeat superior against the defendant and Ramos.[1] 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 ...

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