Britton v. Athenahealth, Inc., 13-P-1544

• Decision Date: 11 August 2015
• Docket Number: 13-P-1544
• Parties: RANDY BRITTON & another v. ATHENAHEALTH, INC., & others.
• Court: Appeals Court of Massachusetts

RANDY BRITTON & another¹ v. ATHENAHEALTH, INC., & others.²

13-P-1544

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

August 11, 2015

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This action arose out of the termination of Carolyn Britton, the former director of practice management of Caritas Christi Physician Network, Inc. (CCPN). Proceeding pro se, Carolyn and her husband Randy Britton (collectively, plaintiffs) filed a twenty-three-page complaint in Superior Court containing five counts against twelve defendants.³ Ruling on cross motions, a judge denied the plaintiffs' motion "to strike the defendants' untimely motions to dismiss and for entry of default judgment,"and allowed the defendants' motions to dismiss.⁴ On appeal, the plaintiffs challenge the order allowing the defendants' joint motion for a protective order, the rulings on the cross motions, the judgment of dismissal, and the order denying their motion to alter or amend the judgment. We affirm.⁵

1. Defendants' joint motion for protective order. The crux of the plaintiffs' argument is that the "simultaneous" recusal of the motion judge who granted the protective order rendered the order void. That claim of error is premised upon at least one mistake of fact. First, so far as appears from the trial court docket, the motion judge who issued the protective order was not the same judge who recused himself on January 30, 2013. Even if, as the plaintiffs claim, the same motion judge issued both orders, the order allowing the motion for aprotective order on January 28, 2013, preceded the recusal. Thus, no "simultaneous" orders were issued that possibly could have rendered the protective order void. On the merits, the plaintiffs have failed to establish an abuse of discretion in the grant of a protective order staying discovery. See Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 196 n.10 (2005).

2. Plaintiffs' cross motion to strike and for entry of default judgment. We have assumed for the sake of argument that service of the defendants' separate motions to dismiss both were untimely. Given the multiple unopposed extensions of time granted to the plaintiffs to complete service and to file their opposition to the motions to dismiss, the question about the effective dates of service, the defendants' appearances and defense of this action, their meritorious defenses, the plaintiffs' failure to clearly deny the defendants' requests for brief extensions of time to respond to the complaint, the absence of any wilful and deliberate failure to respond to process, and the lack of prejudice to the plaintiffs, we discern no abuse of discretion in the denial of the plaintiffs' motion. See Mass.R.Civ.P. 12(a)(1), 365 Mass. 754 (1974); Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974); Riley v. Davison Constr. Co., 381 Mass. 432, 441-442 (1980); Croteau v. Swansea Lounge, Inc., 402 Mass. 419, 422-423 (1988).

Where defendant Steward Health Care System, LLC (SHCS), had retained counsel in its defense and had authorized service on its behalf, the clerical errors in the Steward defendants' motion to dismiss and related pleadings (misnaming SHCS as "Steward Health Care LLC") did not require the entry of a default judgment. See Hennessey v. The Stop & Shop Supermarket Co., 65 Mass. App. Ct. 88, 90-93 (2005).

3. Motions to dismiss. a. Standard of review. Our review of the order allowing the motions to dismiss for failure to state a claim is de novo.⁶ See Polay v. McMahon, 468 Mass. 379, 382 (2014). While we accept as true the factual allegations of the complaint, the same consideration is not given to "legal conclusions cast in the form of factual allegations." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The task here is "to examine each of the plaintiffs'theories, considering 'whether the factual allegations in the complaint are sufficient, as a matter of law, to state a recognized cause of action or claim, and whether such allegations plausibly suggest an entitlement to relief.'" Kelley v. Cambridge Historical Commn., 84 Mass. App. Ct. 166, 173 (2013), quoting from Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 374 (2012).

b. Count I (wrongful termination). The only possible wrongful termination claims suggested by the complaint were predicated, in substance, on the public policy against discrimination. These claims fell squarely within the exclusive jurisdiction of the Massachusetts Commission Against Discrimination (MCAD). See Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 638-639 (2012). The plaintiffs alleged in their complaint that prior to its filing, Ms. Britton filed an administrative complaint charging the defendants with violations of G. L. c. 151B and Title VII of the Civil Rights Act of 1964, that MCAD "was still addressing" those claims, that Ms. Britton had not yet exhausted her administrative remedies, and that the complaint "should not be read . . . as including those claims."⁷In fact, Ms. Britton could have asserted her discrimination claims on June 30, 2012, when the plaintiffs filed their Superior Court complaint. See Britton vs. Athenahealth, Inc., U.S. Dist. Ct., No. 13-11826, slip op. at 2 (D. Mass. Apr. 28, 2014); Thurdin v. SEI Boston, LLC, 452 Mass. 436, 441-442 (2008). Given the express choice not to do so, the claims were properly dismissed.⁸

Even assuming that discrimination claims under 42 U.S.C. § 1981 do not require exhaustion, the complaint lacked sufficient allegations to state a claim for relief under this statute.

c. Count II (intentional infliction of emotional distress). These claims were properly dismissed as either barred by the exclusivity provision of the workers' compensation act, G. L. c. 152, § 24, or lacking supportive allegations of conduct that would meet the extreme and outrageous element of the claim. See Polay v. McMahon, 468 Mass. at 385-388, and cases cited. d. Count III (breach of contract). Ms. Britton's employment at CCPN was at will, terminable by her or her employer "without notice, for almost any reason or for no reason at all." Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). Claiming greater protections under a theory of implied contract, the plaintiffs alleged that "[t]hrough the employment handbook and employer policies, Carolyn was entitled to progressive discipline before she would be terminated[;] Carolyn was also entitled to grieve her termination and the hostile work environment caused by the illicit Greg [Mertz] and Cindy [Moran] sexual affair, but Carolyn was not permitted either contractual benefit[; and] Carolyn reasonably believed that the employment handbook and employer policies would be followed and enforced, so a valid enforceable contract was formed, which the defendants breached."

The plaintiffs failed to state a claim for breach of contract. Under notice pleading rules, the defendants were entitled to a short and plain statement of the claims against them. See Mass.R.Civ.P. 8(a)(1), 365 Mass. 749 (1974). Here, the plaintiffs did not identify which employer policies were in issue.⁹ The plaintiffs did not specify against which defendantsthey were stating contract claims. There is no allegation that the plaintiffs suffered damages as a result of these breaches, a necessary element of the claim. See Singarella v. Boston, 342 Mass. 385, 387 (1961). While factual detail is unnecessary at this stage of the proceedings, defendants are entitled to at least enough information to frame a responsive pleading. The plaintiffs also failed to allege any facts pertaining to the preparation and the distribution of these policies to support their conclusory assertions. See O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 694 (1996). More than mere recitation of the elements of a claim are required to withstand a rule 12(b)(6) motion. See Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 174 (2014).

Even if the terms of these employer policies formed the basis of an implied employment contract, on the facts alleged, the plaintiffs cannot show that any contract right was breached. The SOPDA policy language (see note 9, supra) does not contain any promise of progressive discipline upon which Ms. Britton could have justifiably relied.¹⁰ See Weber v. CommunityTeamwork, Inc., 434 Mass. 761, 780 (2001); O'Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 905-906 (1993). By its terms, the grievance procedure policy was inapplicable to former employees.¹¹

e. Count IV (civil conspiracy). The allegations of the complaint were insufficient to state a claim for civil conspiracy "for defamation and for intentional interference with advantageous contractual relations." See Spenlinhauer v. Spencer Press, Inc., 81 Mass. App. Ct. 56, 70 (2011). Where, as here, on the facts alleged, no underlying tort liability lies, the conspiracy claim necessarily failed as well. See Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011).

The only fact-specific statements that potentially supported a defamation claim unambiguously constituted nonactionable opinion. See Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 308-313, cert. denied, 459 U.S. 1037 (1982); Driscollv. Board of Trustees of Milton Academy, 70 Mass. App. Ct. 285, 296-299 (2007).

Turning to the interference claim, the second...