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Perez v. Brockton Neighborhood Health Center, Inc.

United States District Court, D. Massachusetts

January 9, 2019

ZOILA PEREZ, Plaintiff,



         Pending before this court are two motions to remand this action to Massachusetts Superior Court (Essex County) (“state court”). (Docket Entry ## 11, 33). After plaintiff Zoila Perez (“plaintiff”) filed the first motion, she filed a motion to amend the complaint to eliminate the only federal claim (Docket Entry # 30) as well as a motion to dismiss the federal claim (Docket Entry # 35). Defendants Brockton Neighborhood Health Center, Inc. (“BNHC”) and Linda Gabruk (“Gabruk”), who timely removed this action from state court based on federal question jurisdiction, see 28 U.S.C. §§ 1331, 1441(c), 1446(b), oppose the foregoing motions. (Docket Entry ## 12, 38).


         On December 21, 2017, plaintiff, an Hispanic female, filed this constructive termination, workplace discrimination, and retaliation action against her former employer, BNHC, and Gabruk, BNHC's chief executive officer, in state court. The original complaint sets out 11 causes of action. Count XI presents the only federal claim, namely, a retaliation claim under the Family Medical Leave Act, 29 U.S.C. §§ 2601-2654 (“FMLA”).

         Defendants removed this action to federal court in February 2018. On March 12, 2018, plaintiff filed the first motion to remand on the basis that the FMLA claim “is intertwined with the predominant state law claims” and therefore “mandates remand to state court.” (Docket Entry # 16). The motion did not include a certification that plaintiff's counsel conferred with opposing counsel before filing the motion. See LR. 7.1(a)(2). Defendants oppose the motion to remand and, based on the alleged non-compliance with LR. 7.1, request sanctions in the form of “reasonable costs and attorney's fees incurred in opposing Plaintiff's baseless motion.” (Docket Entry # 12). Defendants argue that removal was proper because the face of the original complaint presents a federal question in light of the FMLA claim in Count XI. (Docket Entry # 12). On April 26, 2018, this court held a hearing and took the first motion to remand (Docket Entry # 11) under advisement.

         On May 9, 2018, plaintiff filed the motion for leave to amend the complaint to eliminate the FMLA claim. (Docket Entry # 30). On the same day, she separately filed the motion to dismiss the FMLA claim and the second motion to remand the case back to state court. (Docket Entry ## 33, 35). In seeking a remand, plaintiff contends that even assuming supplemental jurisdiction exists over the state-law claims, this court should exercise its discretion to remand the case to state court in the interest of efficiency and comity. (Docket Entry # 33).


         The facts are relatively straight forward. Plaintiff began her employment at BNHC in January 2013 as a limited licensed dentist. (Docket Entry # 1-4, ¶ 13). The FMLA claim involves plaintiff's November 2014 request for vacation time to take care of her sick mother in the Dominican Republic. (Docket Entry # 1-4, ¶¶ 23, 24, 30). Gabruk insisted that plaintiff “charge[] that time to FMLA” time even though BNHC and Gabruk (“defendants”) previously “allowed several of its employees to utilize their vacation time to take care of an ailing family member.” (Docket Entry # 1-4, ¶ 25). Defendants then used plaintiff's FMLA leave as an “adverse factor” in a March 2015 performance evaluation and “as a reason to deny her annual raise.” (Docket Entry # 1-4, ¶¶ 26, 167). They also retaliated against “[p]laintiff for exercising her rights under the [FMLA].” (Docket Entry # 1-4, ¶ 168).

         That said, other events in the complaint overshadow the foregoing basis for the FMLA claim. Before plaintiff left for the Dominican Republic to take care of her mother in December 2014, she applied to the Commonwealth of Massachusetts Board of Registration in Dentistry for a re-certification of her license. She did not, however, submit a re-credentialing application to BNHC in time for BNHC's board of directors to vote on the application at a December 27, 2014 meeting. (Docket Entry # 1-4, ¶¶ 27, 30-34). As a result, Gabruk refused to allow plaintiff to return to work from January 8 to February 2, 2015 on the basis that BNHC does not allow BNHC providers to work with expired BNHC credentials. (Docket Entry # 1-4, ¶¶ 40-41). BNHC nevertheless allowed other providers to work with expired credentials, according to the complaint. (Docket Entry # 1-4, ¶¶ 42-47, 54, 55).

         Plaintiff's first performance review in January 2014 “showed that [she] exceeded expectations in several areas.” (Docket Entry # 1-4, ¶ 21). Her second performance evaluation on March 3, 2015 showed a negative trend with an “unsatisfactory” attendance record, [2] “unsatisfactory” organization skills, and “adequate” ratings in all other categories. (Docket Entry # 1-4, Ex. 1). During a March 3, 2015 performance evaluation meeting, Gabruk purportedly unfairly criticized plaintiff for the poor quality of her work and lack of productivity. (Docket Entry # 1-4, ¶¶ 57-65). Thereafter, Gabruk gave plaintiff a verbal warning for unprofessional conduct and made a “string of other false accusations.” (Docket Entry # 1-4, ¶¶ 73-75).

         After an April 2015 meeting with Gabruk as well as plaintiff's Direct Supervisor, plaintiff complained to BNHC's Human Resources Director about alleged “unequal and disparate treatment . . ., the hostile work environment . . . and Gabruk's racial bias.”[3] (Docket Entry # 1-4, ¶¶ 70, 76). In late April 2015, plaintiff filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”). Thereafter, defendants engaged in “several acts of retaliation and further discrimination” which had little, if anything, to do with the prior FMLA leave. (Docket Entry # 1-4, ¶¶ 86, 96-105). These include a demotion from dentist to hygienist, [4] a schedule change, taking away one of plaintiff's “two operatories, ” and additional false accusations disparaging plaintiff's work. (Docket Entry # 1-4, ¶¶ 97-99, 102-105). The alleged hostile work environment, retaliation, and discrimination purportedly led to plaintiff's resignation in the fall of 2015. (Docket Entry # 1-4, ¶¶ 112, 114).

         The complaint includes ten causes of action or claims under state law. Counts I, VI, VII, and X allege race, color, and ethnicity discrimination in violation of Massachusetts General Laws chapter 151B, sections 4(1), 4(4A), and 4(5). State common law claims consist of negligent and intentional infliction of emotional distress, wrongful termination, and breach of the covenant of good faith and fair dealing in counts III, IV, V, VIII, and IX. Count II raises a workplace retaliation claim under Massachusetts General Laws chapter 149 (“chapter 149”), section 185, and presents the most analogous state-law claim to the FMLA retaliation claim. (Docket Entry # 1-4). Except for the final paragraphs setting out the FMLA claim (Docket Entry # 1-4, ¶¶ 165-169), the proposed amended complaint tracks the language of the original complaint and includes the same state- law causes of action in ten separate counts (Docket Entry # 32).


         A. The ...

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