Flagg v. Alimed, Inc.

• Decision Date: 19 July 2013
• Citation: 466 Mass. 23,992 N.E.2d 354
• Parties: Marc FLAGG v. ALIMED, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 23

992 N.E.2d 354

Marc FLAGG

v.ALIMED, INC.

Supreme Judicial Court of Massachusetts,

Norfolk.

Submitted Jan. 8, 2013.

Decided July 19, 2013.

Marc S. Alpert for the plaintiff.

James J. Rooney for the defendant.

The following submitted briefs for amici curiae:

John Pagliaro & Martin J. Newhouse, Boston, for New England Legal Foundation & another.

J. Lynn Milinazzo–Gaudet for Massachusetts Commission Against Discrimination.

Rebecca G. Pontikes, Jonathan J. Margolis, Boston, & Beth R. Myers for National Employment Lawyers Association, Massachusetts Chapter, & others.

Matthew Segal, Sarah Wunsch, Anne Josephson, Boston, & Richard S. Loftus for American Civil Liberties Union of Massachusetts & others.

Janet Steckel Lundberg, Boston, for Women's Bar Association of Massachusetts.

Martha Coakley, Attorney General, & Joshua D. Jacobson & Gabrielle Viator, Assistant Attorneys General, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

BOTSFORD, J.

The Commonwealth's antidiscrimination statute, G.L. c. 151B, § 4(16), bars employment discrimination on the basis of handicap. This case presents the question whether the statute bars an employer from discriminating against its employee based on the handicap of a person with whom the employee associates. We answer that, in the circumstances of this case, it does. ¹

Background. The plaintiff, Marc Flagg, appeals from the dismissal of his second amended complaint (complaint) ² against his former employer, the defendant, AliMed, Inc. (AliMed). The complaint contained claims of defamation and of employment discrimination in violation of G.L. c. 151B (c. 151B). ³

We recite the pertinent facts alleged in the complaint. By February, 2008, the plaintiff had worked for AliMed for approximately eighteen years, and had received good job performance reviews. As an employee, the plaintiff received a salary and benefits, including family medical insurance, and an implied term of his employment was that AliMed would not terminate him because a family member developed a serious medical condition that involved considerable medical expense. On December 7, 2007, the plaintiff's wife underwent surgery for removal of a brain tumor, and thereafter was receiving rehabilitative care. As a result, the plaintiff became responsible for caring for the couple's children, including the obligation to pick up his daughter from school—a task that required him to be absent from work from about 2:55 p.m. until about 3:20 p.m. on certain days. The plaintiff's manager at AliMed told him to take the time necessary to do what he had to do to care for his family. When the plaintiff left work to pick up his daughter on various days between December 27, 2007, and January 15, 2008,⁴ he did not “punch out”—either when he went to pick up his daughter or after he had returned to work and was leaving at the end of the day. His manager knew the plaintiff was not punching out, and did not say anything to him about this practice. On February 4, 2008, however, AliMed terminated the plaintiff's employment, proffering as its reason the fact that the plaintiff had failed to punch out on certain days when he left to pick up his daughter and therefore was being paid for hours that he had not actually worked. AliMed's proffered reason for the termination was false: the real reason the plaintiff was terminated was that his wife had a very serious and expensive medical condition that rendered her totally disabled, and for which AliMed, through its health plan, was financially responsible. The February 4 employment termination took place at a time when the plaintiff's wife was again a hospital inpatient because of a recurrence of the brain tumor, and the termination resulted in the immediate cancellation of the plaintiff's health insurance and an initial denial of unemployment benefits.⁵ As a consequence,the plaintiff had to deplete his retirement plan funds and all his savings and suffered mental anguish. In addition, AliMed's false reasons, and allegation that the plaintiff fraudulently was claiming that he had worked certain hours when he had not and thereby obtained money to which he was not entitled, “became known amongst fellow workers and the community at large,” likely leading people who learned of this allegation and who did not know him to conclude that the plaintiff “had engaged in serious deliberate misconduct” when in fact he had not done so.

AliMed moved to dismiss the plaintiff's complaint pursuant to Mass. R. Civ. P. 12(b)(6), as amended, 365 Mass. 754 (1974), and to strike portions of the complaint under Mass. R. Civ. P. 12(f), as amended, 365 Mass. 754 (1974). ⁶ After a hearing, a judge in the Superior Court allowed the motion to dismiss, ruling that (1) the claim of defamation was not pleaded adequately; and (2) the plaintiff's claim of employment discrimination did not state a claim on which relief could be granted: “the theory that [AliMed] fired plaintiff because his wife was handicapped is not recognized in the Commonwealth.” A judgment of dismissal entered on December 28, 2010, and the plaintiff timely filed an appeal in the Appeals Court. We transferred the appeal to this court on our own motion.⁷

Discussion. 1. Standard of review. In reviewing the correctness of the judge's decision allowing AliMed's motion to dismiss the plaintiff's complaint for failure to state a claim, see Mass. R. Civ. P. 12(b)(6), we “take as true ‘the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor.’ ” Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45, 809 N.E.2d 1017 (2004), citing Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407, 649 N.E.2d 1102 (1995). To survive a motion to dismiss, the facts contained in the complaint, and the reasonable inferences drawn therefrom, must “ ‘plausibly suggest [ ]’ ... an entitlement to relief” (citation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting Bell Atl. Corp.v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). We consider first the plaintiff's claim under G.L. c. 151B, and thereafter his defamation claim.

2. Violation of c. 151B. As the motion judge implicitly recognized, the plaintiff's claim is one of associational discrimination. The term “associational discrimination” refers to a claim that a plaintiff, although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates. See, e.g., Barrett v. Whirlpool Corp., 556 F.3d 502, 512 (6th Cir.2009), citing Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir.1999). In substance, the c. 151B count of the complaint alleges that AliMed, the plaintiff's employer, terminated his employment premised on discriminatory animus directed toward his handicapped wife, that is, its desire to be free from its obligation to pay for the wife's costly medical treatment. The plaintiff's argument is that this form of discrimination fits within the scope of c. 151B, § 4(16) (§ 4[16] ), because it causes a direct and specific injury to the employee and represents “a formidable barrier to the full participation of an individual in the workplace,” College–Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 162, 508 N.E.2d 587 (1987), which c. 151B, § 4, is intended to prevent. We agree.

As we next discuss, interpreting § 4(16) to encompass a claim of associational discrimination finds support in the language and purpose of that section and c. 151B more generally in the longstanding and consistent interpretation given to the statute by the Massachusetts Commission Against Discrimination (commission), and in the analogous provisions of Federal antidiscrimination statutes.

Section 4(16) provides in pertinent part that it shall be an unlawful practice,

“[f]or any employer, personally or through an agent, to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation,unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business” (emphasis added).

AliMed argues that the language of this section precludes the plaintiff from raising a claim of associational handicap discrimination because the handicapped person at issue is not the plaintiff—its employee—but the plaintiff's wife. AliMed reads the section too narrowly. “The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). See, e.g., Lopez v. Commonwealth, 463 Mass. 696, 707, 978 N.E.2d 67 (2012) (interpreting c. 151B, § 4[4A] ). Accordingly, although a statute's words are of prime importance in a court's effort to discern legislative intent, see, e.g., Lowery v. Klemm, 446 Mass. 572, 577, 845 N.E.2d 1124 (2006), the words must be evaluated in the context of the overarching purpose of the statute itself. We begin, therefore, with the objectives and purposes of c. 151B.

Chapter 151B was enacted in 1946 to provide remedies for employment discrimination, a practice viewed as harmful to “our democratic institutions” ⁸ and a “hideous evil” that needs to be “extirpated.” ⁹ The Legislature recognized that employment...