Higgins v. Town of Concord
| Decision Date | 31 March 2017 |
| Docket Number | No. 16–CV–10641–DLC,16–CV–10641–DLC |
| Citation | 246 F.Supp.3d 502 |
| Parties | Pamela HIGGINS, Plaintiff, v. TOWN OF CONCORD, Kate Hodges and Christopher Whelan, in their individual capacities, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Joseph L. Sulman, Rebecca C.E. Tatem, Law Office of Joseph L. Sulman, Esq., Waltham, MA, David I. Brody, Sherin and Lodgen LLP, Boston, MA, for Plaintiff.
John J. Davis, Adam Simms, Pierce Davis & Perritano LLP, Boston, MA, for Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS TOWN OF CONCORD, KATE HODGES AND CHRISTOPHER WHELAN'S MOTION TO DISMISS (Dkt. No. 10)
The plaintiff, Pamela Higgins ("the plaintiff" or Higgins), worked for the town of Concord, Massachusetts ("Concord" or "the Town") for several years, reportedly without incident. She alleges that the Town and two of its employees, Kate Hodges (Hodges) and Christopher Whelan (Whelan), (collectively, "the defendants"), retaliated against her for taking leave under the Family and Medical Leave Act (FMLA) to care for her husband, by fabricating disciplinary issues and ultimately forcing her to resign. The defendants move to dismiss the amended complaint ("the complaint") for failure to state a claim; the plaintiff opposes the motion. (Dkt. Nos. 10, 13). For the reasons discussed below, the motion to dismiss is granted in part and denied in part.
The facts as taken from the complaint are as follows. The plaintiff began working part-time for the Concord Recreation department in 1981 and became a full-time employee in 1989. (Compl. ¶ 6). In 2000 she became Assistant Recreation Director. (Id.).
In February 2015 defendant Hodges became Assistant Town Manager. (Compl. ¶ 8).
On or about March 24, 2015, the plaintiff became Acting Recreation Director following the former director's retirement. (Compl. ¶ 9).
The plaintiff received positive performance evaluations at all times during her employment. (Compl. ¶ 7). In a June 2015 yearly evaluation, Hodges rated the plaintiff as a "top performer." (Compl. ¶ 10).
In July 2015 the plaintiff's husband was diagnosed with stage four lung cancer. (Compl. ¶ 11). She informed Hodges of her husband's diagnosis and noted that she would regularly need to attend medical appointments with her husband. (Compl. ¶ 11). Hodges informed Whelan of the diagnosis and the plaintiff's need to regularly attend appointments. (Compl. ¶ 11). Neither Hodges nor anyone in the Concord town government provided the plaintiff with FMLA paperwork or a notice of her FMLA rights at this time. (Compl. ¶ 12). The plaintiff attended numerous medical appointments with her husband from July 2015 until the end of her employment in February 2016. (Compl. ¶ 13).
Meanwhile, throughout the fall of 2015, the Town was searching for a full-time Recreation Director. (Compl. ¶ 14). On or about December 17, 2015, Hodges informed the plaintiff that she could apply for the position but that the Town was going to look externally to fill the full-time position. (Compl. ¶ 14).
In or about January 2016 the plaintiff for the first time received FMLA paperwork to complete. (Compl. ¶ 15). She completed the paperwork requesting intermittent leave and returned it to the Town's HR department. (Compl. ¶ 15). On the following day, Hodges and HR Director Amy Foley (Foley) invited the plaintiff to a meeting to interview her about an investigation into potential misconduct involving another employee in the Recreation Department. (Compl. ¶ 16). They asked the plaintiff questions and requested that she collect data about this employee. (Compl. ¶ 16).
Within a few days Hodges and Foley met with the plaintiff again and asked her if she had spoken to anyone about the investigation. (Compl. ¶ 17). The plaintiff had spoken to two employees briefly, including Jon Straggas (Straggas), the Acting Assistant Recreation Director. (Compl. ¶ 17). Hodges and Foley told the plaintiff that she could be fired for doing so. (Compl. ¶ 17). At this meeting or soon thereafter, Hodges told the plaintiff that Hodges could not appoint her to the full-time Recreation Director position because the plaintiff had spoken to co-workers about an internal investigation. (Compl. ¶ 18). Hodges suggested that the plaintiff give her co-workers an excuse to explain why she was out of consideration for the job, specifically that she had decided against taking the position due to her husband's medical condition. (Compl. ¶ 18). The plaintiff followed this suggestion even though it was false. (Compl. ¶ 20).
On January 19, 2016, Hodges announced at a staff meeting that the plaintiff was withdrawing from consideration for Recreation Director, and that Straggas was being appointed General Manager of the Beede Center. (Compl. ¶ 19). The plaintiff had previously been in charge of the Beede Center and this announcement was made without first having informed her. (Id.).
On or about January 21, 2016 Hodges approached the plaintiff as she was cleaning out her office at the Beede Center. (Compl. ¶ 21). Hodges told her that the Town was requiring her to sign a Last Chance Agreement ("LCA") as a condition of continued employment. (Id.).
The LCA specifies the following:
(Compl. ¶ 22).
The plaintiff signed the LCA that day but did not have the opportunity to consult with an attorney before doing so. (Compl. ¶ 23). In fact, Hodges told the plaintiff that she would be terminated if she did not sign the LCA, despite the fact that the plaintiff had not ever received any discipline before receiving the LCA, and had not received any formal discipline for speaking to co-workers about the internal investigation discussed above. (Compl. ¶¶ 23–24). The Town signed the LCA on January 25, 2016. (Compl. ¶ 25).
Subsequently, in two staff meetings near the end of January and the beginning of February 2016 at which the plaintiff was present, Whelan and/or Hodges posed some questions to the staff. (Compl. ¶ 27). The questions were intended for Straggas but the plaintiff, unaware of that fact, answered them, to Whelan's and Hodges's consternation. (Compl. ¶ 27). On February 19, 2016, Hodges and Foley met with the plaintiff and told her that she had violated the LCA by answering the questions directed to Straggas. (Compl. ¶ 28). The plaintiff was given a choice to decide by February 22nd whether to resign voluntarily or be terminated. (Compl. ¶ 28). The plaintiff received a letter later that day from Hodges stating that the plaintiff had been placed on administrative leave and would probably be terminated the following week. (Compl. ¶ 29). The letter did not provide any notice of a pre-termination hearing. (Compl. ¶ 30).
On February 23, 2016, and as a result of the foregoing, the plaintiff resigned, involuntarily. (Compl. ¶ 31). But for these events, the plaintiff had intended to work at least three more years. (Compl. ¶ 32).
Count One of the complaint alleges that the defendants treated the plaintiff unfairly and terminated her in retaliation for her taking leave to care for her husband, in violation of the FMLA, 29 U.S.C. § 2615(a)(1).
Count Two alleges that the defendants deprived the plaintiff of her procedural and/or substantive due process rights by terminating her without affording her a hearing.
Count Three alleges that the defendants breached a contract with the plaintiff by forcing her to sign the LCA and to resign.
The defendants argue that the complaint should be dismissed because the plaintiff waived her right to bring suit against them when she signed the LCA. The defendants argue that the complaint fails independently because it does not allege plausible facts to support any of the counts. Finally, the defendants argue that Hodges and Whelan are entitled to qualified immunity on Counts One and Two.
Courts reviewing a motion to dismiss under Rule 12(b) (6) must apply the notice pleading requirements of Rule 8(a) (2). Educadores Puertorriquenos en Accion v. Hernandez , 367 F.3d 61, 66–67 (1st Cir. 2004). Under Rule 8(a)(2), a complaint need only include a short and plain statement of the claim showing that the pleader is entitled to relief and giving the defendant fair notice of the grounds for the plaintiff's claim. Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Therefore, "a Court confronted with a Rule 12(b)(6) motion ‘may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ " Educadores Puertorriquenos en Accion at 66 citing Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
To show that one is entitled to relief, the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility...
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