Kenn v. Eascare, LLC

Decision Date01 September 2020
Docket NumberCivil Action No. 20-cv-10070-ADB
Citation483 F.Supp.3d 26
Parties Nicole KENN, Plaintiff, v. EASCARE, LLC, Mark E. Brewster, and Joseph Hughes, Defendants.
CourtU.S. District Court — District of Massachusetts

Raven Moeslinger, Law Office of Nicholas F. Ortiz, P.C., Boston, MA, for Plaintiff.

Paul G. King, Sarah C. Spatafore, Murphy, Hesse, Toomey & Lehane, LLP, Quincy, MA, for Defendants.



On December 5, 2019, Nicole Kenn ("Plaintiff") filed suit against her previous employer, Eascare, LLC, ("Eascare"), an Eascare manager, Mark E. Brewster, ("Brewster"), and her supervisor, Joseph Hughes, ("Hughes," and collectively, "Defendants"). [ECF No. 1-1 at 1–15 ("Compl.")]. Plaintiff alleges that Defendants Eascare and Brewster violated Massachusetts’ wage laws under Mass. Gen. Laws ch. 149, §§ 148, 150, (Count I), [id. ¶¶ 72–75], and that Eascare and Hughes discriminated and retaliated against her on the basis of sex in violation of Mass. Gen. Laws ch. 151B, § 4, (Count II), [id. ¶¶ 76–83]. Additionally, Plaintiff seeks to bring a class action against Eascare, alleging that Eascare violated two sections of the Fair Credit Reporting Act, ("FCRA"), by running a background check on Plaintiff and others during the hiring process, (Counts III and IV). [Id. ¶¶ 84–92].

Currently before the Court is Eascare's motion to dismiss Counts III and IV for failure to state a claim, [ECF No. 6], and Plaintiff's motion to remand Counts I and II to state court, [ECF No. 7]. For the reasons set forth below, both Eascare's motion to dismiss, [ECF No. 6], and Plaintiff's motion to remand, [ECF No. 7], are GRANTED.

A. Factual Background

For purposes of this motion, the relevant facts are drawn from the complaint, [Compl.], and viewed in the light most favorable to the plaintiff. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014) (internal citations omitted).

Eascare is a Massachusetts company that provides ambulance services. [Compl. ¶¶ 8, 18]. In January 2018, Plaintiff applied for a position as an emergency medical technician (EMT) at Eascare. [Id. ¶ 20]. As part of the application process, Plaintiff signed a disclosure form and authorization for Eascare to perform a background check on Plaintiff. [Id. ¶¶ 21–22]. The disclosure form provided that Eascare could utilize PT Research, Inc. ("PT Research") to prepare a consumer report or investigative report under the FCRA and that the "information received [could] include, but [wa]s not limited to, academic, residential, achievement, job performance, attendance, litigation, personal history, credit reports, driving history, and criminal history records consistent with federal and state law." [ECF No. 6 at 38].1 The second page of the form included a liability waiver that "release[d] and forever discharge[d] [Eascare], PT Research, and any persona/entity from which they obtained information from any liability resulting from providing such information." [ECF No. 6 at 39]. Plaintiff executed the forms and was hired by Eascare. [Compl. ¶ 34].

In August 2018, Plaintiff became aware that coworkers were making sexually offensive comments about her in the workplace, [id. ¶ 39], including comments about her health and personal life, [id. ¶ 40]. Plaintiff alleges that the sexually offensive statements hampered her performance at work and caused her emotional distress and humiliation. [Id. ¶ 42]. On August 28, 2018, Plaintiff filed a complaint with Eascare regarding these statements. [Id. ¶ 43]. Plaintiff's supervisor, Defendant Hughes, investigated the complaint and Plaintiff's coworkers confirmed the sexually offensive statements. [Id. ¶ 44]. Plaintiff alleges that Eascare and Hughes took no further action to resolve the complaint, however, and instead retaliated against her and "engag[ed] in a pervasive scheme of adverse employment actions." [Id. ¶ 45]. This scheme allegedly included unilaterally cutting her pay, [id. ¶ 59], refusing to accept or deny Plaintiff's requests for days off and subsequently penalizing Plaintiff for taking a requested day off, [id. ¶ 46], allowing less-senior employees to select their new work schedules before Plaintiff after saying that employees could pick based on seniority, effectively cutting Plaintiff's hours, [id. ¶¶ 48–49], and threatening to fire Plaintiff, [id. ¶ 50]. Human resources suggested that Plaintiff transfer to another Eascare location. [Id. ¶ 51]. Upon learning that Hughes was the supervisor at the location to which she would have been transferred, however, Plaintiff resigned from her position on approximately October 24, 2018. [Id. ¶¶ 54–55].

Thereafter, Plaintiff filed a complaint with the Massachusetts Commission Against Discrimination. See [Compl. ¶ 16]. On June 4, 2019, Plaintiff filed a request to withdraw her complaint with the Commission in order to file a complaint in civil court, [id. at 17], and on August 12, 2019 Plaintiff received notification that her request had been accepted, [id. at 17].

B. Procedural Background

Plaintiff commenced this action in Norfolk Superior Court on December 5, 2019. [ECF No. 1]. Defendants subsequently removed to federal court, [id. ], and moved to dismiss Counts III and IV under Federal Rule of Civil Procedure 12(b)(6), [ECF No. 6]. Plaintiff opposed, [ECF No. 15], and on January 27, 2020, moved to remand Count I and II of the Complaint, [ECF No. 7], which Defendants opposed, [ECF No. 13].


In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019) (internal citations omitted). "[D]etailed factual allegations" are not required, but the complaint must set forth "more than labels and conclusions," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and must contain "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory," Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005) ). The alleged facts must be sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

"To cross the plausibility threshold a claim does not need to be probable, but it must give rise to more than a mere possibility of liability." Grajales v. P.R. Ports Auth., 682 F.3d 40, 44–45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "A determination of plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ " Id. at 44 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ). "[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible ...." Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011) ). "The plausibility standard invites a two-step pavane." A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing Grajales, 682 F.3d at 45 ). First, the Court "must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012) ). Secondly, the Court "must determine whether the remaining factual content allows a ‘reasonable inference that the defendant is liable for the misconduct alleged.’ " Id. (quoting Morales-Cruz, 676 F.3d at 224 ).

A. Fair Credit Reporting Act

Plaintiff alleges that Eascare violated the FCRA both by including a liability waiver and other extraneous language on the stand-alone disclosure form and by subsequently running a background check without proper authorization. [Compl.]. Eascare argues that Plaintiff lacks standing to bring a claim because she has failed to allege that any FCRA violations caused her to suffer a sufficiently concrete or particularized injury. [ECF No. 6 at 13]. Plaintiff responds that the violation of the FCRA is sufficient to constitute an injury because her privacy was invaded. [ECF No. 15].

"[N]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Dantzler, Inc. v. Empresas Berrios Inventory & Operations, Inc., 958 F.3d 38, 46 (1st Cir. 2020) (quoting Massachusetts v. U.S. Dep't of Health & Human Servs., 923 F.3d 209, 221 (1st Cir. 2019) ). "Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood." Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). "To satisfy the ‘irreducible constitutional minimum’ of Article III standing, ... the plaintiff bears the burden of establishing that he has (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’ " Yershov v. Gannet Satellite Info. Network, Inc., 204 F. Supp. 3d 353, 358 (D. Mass. 2016) (first quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; and then quoting Spokeo, 136 S. Ct. at 1547 ).

Defendants argue that Plaintiff has not satisfied the injury-in-fact requirement. [ECF No. 6 at 8]. "An injury-in-fact is the invasion...

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    ...efficiency, the Court therefore remands the case to state court for consideration of the state-law claims.” Kenn v. Eascare, LLC, 483 F.Supp.3d 26, 36 (D. Mass. 2020); see Rojas-Velàzquez v. Figueroa-Sancha, 676 F.3d 206, 213 (1st Cir. 2012) (“Because the only federal claims in this suit we......
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    • October 11, 2022 a broader, rather than a narrower, interpretation of what constitutes an injury-in-fact under the FCRA. In Kenn v. Eascare, LLC, 483 F.Supp.3d 26, 31 (D. Mass. 2020) a plaintiff claimed that she had faced a background check without proper authorization because the disclosure notice attac......
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