SAYLOR, District Judge.
This is an employment dispute arising out of an allegedly wrongful termination. Plaintiff Sandra Chacon alleges that defendants violated both the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2611 et seq., and Massachusetts employment-discrimination law by terminating her from her position as a patient account representative at Brigham and Women's Hospital ("BWH"). Specifically, Chacon alleges
Defendants have moved to dismiss the complaint for failure to state a claim. For the following reasons, the motion will be granted in part and denied in part.
The following facts are taken from the complaint unless otherwise stated.
Sandra Chacon was hired by BWH on May 2, 2011, as a patient account representative in the medicine/patient services department. (Compl. at ¶ 8). The position involved extensive telephone interaction with patients. (Id.).
Defendant Rose Johnson was Chacon's immediate supervisor. (Id. at ¶ 9). Johnson is responsible for "ensuring employee performance" in the department. (Id. at ¶ 14). Chacon also reported to Karl Scottron, the department head. (Id. at ¶ 9).
In February 2012, Chacon started to receive e-mails from Johnson criticizing her for not meeting her quota of answered telephone calls. (Id.). She apparently received a verbal warning. (Id. ¶ 19). Chacon requested and was granted a meeting with Johnson and Scottron to discuss the criticisms. (Id. at ¶ 10). According to the complaint, at the meeting Scottron acknowledged that there was an ongoing problem with the computer system that tracked employee telephone activity and suggested that Ms. Johnson contact the information technology department within the hospital. (Id.). Again according to the complaint, the IT department confirmed the problem and Ms. Johnson acknowledged it. (Id.).
At Chacon's request, she again met with Johnson and Scottron in the spring of 2012. (Id. at ¶ 11). Chacon requested the meeting to address Johnson's continued criticisms of her performance. (Id.). During the meeting, Johnson allegedly accused plaintiff of using her cell phone during work hours. Scottron allegedly asked Johnson if she had witnessed Chacon using her cell phone, and Johnson responded that she had not. (Id.).
According to the complaint, at that same meeting, Chacon told Johnson that several employees regularly spent time at work socializing, using the Internet, and making personal telephone calls while patients waited on hold. (Id. at ¶ 12). She further informed her that patients frequently called back upset that they had been placed on hold without receiving assistance. (Id.). She also allegedly reported that Johnson knowingly allowed certain employees to misrepresent their arrival time on the daily sign-in sheet and that she knowingly allowed several employees to "steal time" by leaving the office through the back door during work hours. (Id. at ¶ 13). According to the complaint, in response to those allegations, Johnson became "visibly angry" and stated, "You don't know whether I gave them permission to leave. You don't need to know. They ask permission of me, not you." (Id. at ¶ 14).
According to the complaint, in April 2012, Johnson "accused plaintiff of not calling in and not showing up for work," even though Chacon had sent an e-mail stating that she would be absent for medical reasons. (Id. at ¶ 16). Johnson apparently gave Chacon a warning for missing work
On June 8, 2012, Johnson issued Chacon a written warning for "failure to meet standard performance requirements such as answering patient telephone calls on the schedule days as assigned." (Id. at ¶ 17). The written warning included an indication that Chacon had been verbally warned in June 2011. (Id. at ¶ 18).
On August 23, 2012, Chacon received a performance appraisal that rated her as "minimally effective in all areas." (Id. at ¶ 20).
In September 2012, Chacon received a written warning (apparently from Johnson) for allegedly not working on certain accounts. (Id. at ¶ 21). According to the complaint, Scottron asked Johnson if she could prove that allegation, and Johnson responded that she could not. After Chacon showed Johnson that the accounts listed in the written warning did not appear on her computer, the warning was removed from her personnel file at Scottron's direction. (Id.). Johnson then allegedly cited Chacon for having demonstrated a deficiency in "different areas." (Id. at ¶ 22). Chacon requested a copy of the September 2012 warning, but Johnson allegedly told her that it had been destroyed. (Id.).
At an unspecified time, Chacon reported her issues to Michelle Boucher, the human resources manager. (Id. at ¶ 23). According to the complaint, Chacon provided Boucher with a doctor's note stating that she suffered from a medical condition that had been exacerbated by the work environment and requesting a transfer as a result. (Id.). Boucher refused the request for a transfer, telling Chacon that she could not be transferred within six months of receiving a warning. (Id. at ¶ 24). She also told Chacon that she could not be transferred simply because she did not get along with her supervisor. (Id.).
In September 2012, the hospital implemented a new system under which employees were required to sign in and out of their computers. (Id. at ¶ 25). According to the complaint, at some point thereafter, Johnson accused Chacon of failing to sign in or out as required. (Id.). Chacon produced a computer printout showing that she was indeed signing in and out, but Johnson allegedly forced her to sign a form stating that she was not. (Id.). Chacon attached the computer printout to the form. (Id.). She also asked Johnson to check with the IT department to see if there was a problem with the system of signing in and out. (Id. at ¶ 26). The department allegedly sent out an e-mail two days later confirming that there was a problem with the system, but Johnson never retracted her warning. (Id.).
The day after that incident, Johnson and Scottron asked Chacon to meet with them in a private office. (Id. at ¶ 29). They allegedly directed her to move her belongings to a cubicle used for storage across from the bathroom and the janitor's closet. (Id.). When Chacon inquired as to why she was being moved, Johnson allegedly responded, "just move." (Id.).
According to the complaint, in late March 2013, shortly before Chacon was scheduled to leave for the day, Johnson assigned her approximately 100 accounts and told her that she should be working on them. (Id. at ¶ 30). Chacon told Johnson by e-mail that she did not possess the "security clearance" required to work on those accounts. (Id. at ¶ 31). Johnson allegedly replied that Chacon was still required to work on the accounts and then sent an e-mail to all managers stating that Chacon had failed to handle the accounts as she was supposed to prior to closing at the end of the month. (Id.). According to the complaint, another manager confirmed that Chacon did not have the "codes" to work on the accounts in question. (Id.).
Also in late March 2013, Johnson allegedly accused Chacon of mistreating a patient. (Id. at ¶ 32). According to the complaint, this accusation caused Chacon to suffer an anxiety attack and subsequently to seek medical treatment. (Id.).
On March 29, 2013, Chacon e-mailed Johnson to request leave under the Family Medical Leave Act due to stress and anxiety. (Id. at ¶ 33). She also sent a form to the medical leave department. (Id.). On April 1, 2013, Chacon sent a medical certification for FMLA leave to the benefits department. (Id. at ¶ 34).
On April 5, 2013, Chacon was terminated. (Id. at ¶ 35).
Plaintiff filed this action on August 5, 2014. The complaint contends that defendants (1) interfered with the exercise of her FMLA rights (Count 1) and (2) retaliated against her for exercising those rights (Count 2). It further contends that defendant BWH is liable under Massachusetts law for wrongfully terminating her in violation of public policy (Count 3) and that defendant Johnson is liable under Massachusetts law for intentionally interfering with her advantageous business relations (Count 4).
On a motion to dismiss, the Court "must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999)). To survive a
The Family and Medical Leave Act protects employees who attempt to exercise their right to take reasonable medical leave. Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir.1998). Plaintiff claims two separate violations of the FMLA on the part of both defendants: an "interference" claim and a "retaliation" claim. Both claims fall under 29 U.S.C. § 2615(a), which makes it unlawful for any employer to "interfere with, restrain, or deny the exercise of the attempt to exercise, any right provided under [the FMLA]." Although the language of the statute is not explicit with respect to retaliation, employers are "prohibited from discriminating against employees ... who have used FMLA leave." Hodgens, 144 F.3d at 160 n. 4 (quoting 29 C.F.R. § 825.220(c)).
In order to make out a prima facie case for FMLA interference, plaintiff must show that (1) she was eligible for the FMLA's protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave her employer notice of her intention to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.
Here, plaintiff's two claims arise out of a single set of facts. Count 1 alleges that defendants interfered with her FMLA rights "by dismissing her from [their] employ for having exercised her rights under the statute," and Count 2 alleges that "[b]y dismissing the plaintiff from their employ the defendants retaliated against her for exercising her rights under the FMLA." (Compl. at 41, 54). In other words, her termination is the adverse action that plaintiff contends constituted both interference with and retaliation against the exercise of her FMLA rights.
For that reason, defendants contend that plaintiff's interference claim is "simply a repackaging" of her retaliation claim and that the two claims should be analyzed as one. More specifically, defendants contend that plaintiff should not be allowed to circumvent the "retaliatory motive" requirement for retaliation claims by alleging that her termination constituted interference as well as retaliation. They conclude that arguing that an "adverse employment action was imposed on [an employee] because [she] was taking leave... is, inherently, a retaliation argument." See Dressler v. Cmty. Serv. Commc'ns, Inc., 275 F.Supp.2d 17, 24 (D.Me.2003).
Defendants are correct. Plaintiff's claim could be labeled "interference," but only because interference is a broad term that is sometimes loosely used to encompass retaliation claims. See Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir.2005) ("The term `interference' may, depending on the facts, cover both retaliation claims and non-retaliation claims.") "Whether a claim is characterized as interference or not, its elements actually differ depending on whether the plaintiff is, at bottom, claiming that the employer denied his or her substantive rights under the FMLA or that the employer retaliated against him or her for having exercised or attempted to exercise those rights." Id. at 331-32.
In other words, an employer who simply blocks an employee from taking leave to which she is entitled has committed non-retaliatory interference with the substantive rights afforded by the FMLA. But an employer who terminates an employee for exercising or attempting to exercise her FMLA rights has committed a retaliatory act of interference that must be evaluated under the retaliation framework.
Under the framework for analyzing retaliation claims, the question is whether plaintiff has plausibly alleged a causal connection between her protected conduct and her termination. That is, in order to survive dismissal, the complaint must have plausibly alleged that defendants used plaintiff's request for FMLA leave "as a negative factor in deciding to ... fire" her. Carrero-Ojeda, 755 F.3d at 719.
The strongest fact in plaintiff's favor is timing: taking her version of events to be true, as is required in analyzing a motion to dismiss, she was terminated just one week after requesting FMLA leave.
Therefore, on the allegations presented in the complaint, any inference of causation must be drawn from indirect evidence. See Colburn, 429 F.3d at 335-36. On that score, the complaint offers: (1) the allegation that defendant Johnson "falsely accused plaintiff of not calling in and not showing up for work" in April 2012, even though plaintiff had allegedly sent her an e-mail explaining that she would be absent for medical reasons (an accusation Johnson apparently retracted after receiving verification from plaintiff's doctor); (2) the allegation that Boucher refused to grant plaintiff's transfer request after plaintiff provided her with a doctor's note stating that she suffered from a medical condition that had been "exacerbated by the work environment"; and (3) the allegation that plaintiff was "denied time off during working hours to see her therapist." (Compl. at ¶¶ 16, 23-24, 27).
Each of those allegations, standing alone, does little to establish that defendants bore animus toward employees who exercised their rights under the FMLA. First, Johnson apparently retracted her warning upon receiving verification that plaintiff actually had a medical appointment. That would seem to vitiate any inference that she intended to punish plaintiff for seeking medical attention, and instead would seem to support the alternative inference that she simply doubted plaintiff's self-report of a medical absence.
That leaves the alleged denial of plaintiff's requests for time off to see a therapist. An employee might be entitled to count a trip to the therapist as FMLA leave, or might not be; the result depends on a number of factors, including whether the employee provided sufficient notice. It is unclear from the complaint whether that alleged denial bore any relationship to plaintiff's rights under the FMLA.
In short, the complaint alleges a relatively weak case for FMLA retaliation.
In Massachusetts, "[t]he general rule is that an employment-at-will contract can be terminated at any time for any reason or for no reason at all." Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 394, 630 N.E.2d 586 (1994). For that reason, "an at-will employee has a cause of action for wrongful termination only if the termination violates a clearly established public policy." King v. Driscoll, 418 Mass. 576, 582, 638 N.E.2d 488 (1994). The Massachusetts Supreme Judicial Court "consistently has interpreted the public policy exception narrowly, reasoning that to do otherwise would `convert the general rule ... into a rule that requires just cause to terminate an at-will employee.'" Id. (quoting Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150, 533 N.E.2d 1368 (1989)). More specifically, the court has held that "the internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception." Id. at 583, 638 N.E.2d 488; see also Mello v. Stop & Shop Cos., Inc., 402 Mass. 555, 560-61, 524 N.E.2d 105 (1988) (holding that "[n]o well defined public policy principle would have been violated" had plaintiff been discharged for complaining about "alleged wrongs" committed by the defendant employer so long as they "concern[ed] internal matters").
Here, plaintiff alleges that she was "terminated in violation of a clearly established public policy; that is, for exposing that employees were stealing time from BWH with management's knowledge and consent." (Compl. ¶ 60). She appears to be referring to the allegation that she informed Scottron, in the spring of 2012, that "several employees in the department were stealing time by leaving the office through the back door during work hours and that Ms. Johnson was aware of it" and that "Johnson allowed certain employees to sign in early when they were really coming in late." (Id. ¶ 13).
The complaints plaintiff allegedly lodged with Scottron about Johnson's supervisory practices appear to relate to the internal functioning of the hospital. If Johnson truly was allowing employees to fabricate their hours, then she was presumably violating an internal timekeeping policy and defendant was paying wages to employees for hours they did not work. Those consequences affect defendant's internal administration and revenue; they do not (at least as alleged) implicate any broader public policy.
Plaintiff acknowledges that the public-policy exception does not generally extend to a termination induced by an employee's complaining about the employer's internal procedures, but contends that the exception may apply where the alleged wrongdoing "has a significant impact on the general public." (Pl. Opp. at 17). She contends that Johnson's alleged practice of allowing her subordinates to collect pay for unworked hours allowed employees to, in effect, "steal" hospital resources. She equates that practice to "criminal fraud" and contends that it "ultimately impacts
Even accepting plaintiff's factual allegations as accurate, that is not enough. Where alleged wrongdoing has only a "remote effect on the public," and an employee objects to it "in the context of a conflict over internal policy matters," that is not sufficient to trigger the publicpolicy exception. See King, 418 Mass. at 584, 638 N.E.2d 488 (holding that an employee's termination for participating in a shareholder derivative suit was not wrongful under the public-policy exception). Although the public might benefit from an employee's raising concerns over irregular and dishonest time-keeping, the public policy exception does not extend to every situation in which an employee has performed "appropriate, socially desirable duties." See Smith-Pfeffer, 404 Mass. at 150, 533 N.E.2d 1368 (upholding the termination of an employee who had expressed disagreement with a superior's management of the defendant school).
Accordingly, Count 3 will be dismissed.
Count 4 alleges intentional interference with advantageous relations against defendant Johnson. "In an action for intentional interference with advantageous relations, an employee must prove that (1) she had an advantageous employment relationship with her employer; (2) the defendant knowingly induced the employer to break that relationship; (3) the defendant's interference, in addition to being intentional, was improper in motive or means; and (4) the employee was harmed by the defendant's actions." Weber v. Community Teamwork, Inc., 434 Mass. 761, 781, 752 N.E.2d 700 (2001). Although an employee may not sue her employer for interfering with its own business relations, Harrison v. NetCentric Corp., 433 Mass. 465, 476 n. 12, 744 N.E.2d 622 (2001), "a supervisor may be personally liable if [s]he tortiously interferes with a subordinate's employment relationship." Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 76 (1st Cir.2001) (citing Steranko v. Inforex, Inc., 5 Mass.App.Ct. 253, 273, 362 N.E.2d 222 (1977)). However, in bringing a claim against a supervisor, "the plaintiff is required to show, as to `improper motive or means,' that the `controlling factor' in the alleged interference was `actual' malice; `implied' malice is not sufficient." Weber, 434 Mass. at 781, 752 N.E.2d 700 (citing Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663-64, 429 N.E.2d 21 (1981)); see Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476, 589 N.E.2d 1241 (1992) (a supervisor will not be held liable for terminating her subordinate "unless [s]he did so `malevolently,' i.e., for a spiteful, malignant purpose, unrelated to the legitimate corporate interest.").
"Proof of actual malice requires more than a showing of mere hostility." Zimmerman, 262 F.3d at 76 (citing King v. Driscoll, 418 Mass. at 587, 638 N.E.2d 488). If a supervisor simply dislikes an employee, or believes she was a poor employee, that is not enough. Holding a supervisor liable under those circumstances would violate the principle that a supervisor's "freedom of action directed toward corporate purposes should not be curtailed by fear of personal liability." Gram, 384 Mass. at 663-64, 429 N.E.2d 21.
The complaint alleges that defendant Johnson "wrongfully procured the termination of the plaintiff's employment relationship with BWH" and that she did so "because plaintiff exercised her rights under the FMLA and because she reported that Ms. Johnson allowed employees to
One of the essential elements of a FMLA retaliation claim is retaliatory motive — that is, whether defendants (including Johnson) brought about plaintiff's termination in retaliation for her exercise of her FMLA rights. A termination based on such a retaliatory motive would constitute a form of unlawful discrimination, and an act of unlawful discrimination can support an inference of actual malice. See Weber, 434 Mass. at 782, 752 N.E.2d 700. Accordingly, the facts supporting plaintiff's FMLA claim may likewise support the tortious interference claim as well. See Zimmerman, 262 F.3d at 77 ("[T]he elements underlying a claim for unlawful retaliation may be used to show malice when a tortious interference claim is brought against a supervisor in a loss-of-employment case.").
The complaint also contains other allegations, apparently unrelated to the FMLA claims, that could arguably support an inference of actual malice on the part of Johnson. As noted, plaintiff allegedly reported that Johnson had knowingly allowed other employees to commit misconduct. The complaint alleges that thereafter, on one occasion, "Johnson came to plaintiff's desk while she was on the phone with a patient." Plaintiff motioned to Ms. Johnson to wait one moment. Ms. Johnson replied, in front of witnesses, "`I'm tired of your f___ing shit,'" an incident that led plaintiff's co-workers to ask her why Johnson "hated her so much." (Compl. ¶ 28). After that incident, according to the complaint, Johnson and Scottron ordered plaintiff to move her belongings to "a cubicle used for storage in an undesirable location across from the bathroom and the janitor's closet." (Id. ¶ 29). Finally, the complaint alleges that, in late March 2013, Johnson chose the end of a work day to assign plaintiff 100 new accounts that she was not authorized to view; when plaintiff attempted to inform her that she did not have the required access to work on the accounts, Johnson allegedly sent an e-mail to all managers criticizing her for not completing the work. (Id. ¶¶ 30-31).
Again, mere hostility by a supervisor toward an employee is not enough to make out a claim of tortious interference. Here, however, the complaint appears to allege that Johnson maliciously terminated plaintiff to cover up her own misdeeds, and for no legitimate corporate interest. Whether plaintiff can adduce evidence of that alleged malice and motive remains to be seen. Under the circumstances, however, the allegations in the complaint are sufficient to survive a motion to dismiss.
Accordingly, Count 4 will not be dismissed.
For the foregoing reasons, the motion to dismiss is GRANTED as to Counts 1 and 3 and otherwise DENIED.
