Mason v. Mass. Dep't of Envtl. Prot.

• Decision Date: 29 March 2011
• Docket Number: Civil Action No. 09–12078–JLT.
• Citation: 774 F.Supp.2d 349
• Parties: Thomas MASON, Plaintiff,v.MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

774 F.Supp.2d 349

Thomas MASON, Plaintiff,

v.MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., Defendants.

Civil Action No. 09–12078–JLT.

United States District Court, D. Massachusetts.

March 29, 2011.

Jeffrey R. Mazer, Law Offices of Jeffrey R. Mazer, Lynnfield, MA, for Plaintiff.Anne L. Sterman, Charles M. Wyzanski, Office of the Attorney General, Boston, MA, for Defendants.

MEMORANDUM

TAURO, District Judge.I. Introduction

This action arises out of Thomas Mason's employment at the Massachusetts Department of Environmental Protection (the “DEP”). Mason (“Plaintiff”) has brought a suit against the DEP and various individuals who are or were employed by the DEP (“the Individual Defendants”). Plaintiff's Complaint alleges, among other counts, that the DEP and the Individual Defendants violated the Family and Medical Leave Act of 1993 (“FMLA”).¹ Presently at issue is the Individual Defendants' Motion to Dismiss [# 4] and the DEP's Motion to Dismiss [# 8]. For the following reasons, the DEP's Motion is ALLOWED and the Individual Defendants' Motion is ALLOWED IN PART and DENIED IN PART.

II. Background ²A. Factual Background

From November 5, 1995 to January 31, 2008, Plaintiff was an employee of the DEP.³ While employed at the DEP, Plaintiff suffered from asthma, hearing problems, diverticulitis, stress/hypertension, and anxiety. ⁴ These conditions interfere with Plaintiff's major life functions of sleeping, concentrating, interacting with others, learning, and working.⁵ Additionally, Plaintiff was diagnosed with chronic depression in 2003 and with “high blood pressure/hypertension” in 2005. ⁶

In the summer of 2007, the DEP increased Plaintiff's workload, responsibilities, and duties, thereby exacerbating Plaintiff's condition. ⁷ Around August of 2007, Plaintiff informed Defendant d'Hedouville and “DEP Management” of his specific medical impairments, that the increased responsibility at work was exacerbating his condition, and that his impairment was interfering with his ability to work.⁸ Plaintiff sought treatment for these conditions in September and October of 2007.⁹ In particular, he was hospitalized on October 3, 2007 and October 6, 2007.¹⁰ The DEP knew or should have known about Plaintiff's hospitalization.¹¹ Plaintiff used his accrued sick and vacation time when absent from work. ¹² Despite Plaintiff's hospitalization and reporting of his medical impairments, Defendant d'Hedouville did not inform Plaintiff of his rights under the FMLA.¹³ The DEP allegedly subjected Plaintiff to additional adverse employment actions, such as issuing Plaintiff a written warning on November 16, 2007 allegedly because of Plaintiff's impairments.¹⁴

On November 17, 2007, the DEP convened a meeting about Plaintiff's work performance, at which Plaintiff alleges that he was denied his Weingarten rights.¹⁵ On November 28, 2007, based upon information gathered at the November 17 meeting, the DEP suspended Plaintiff for five business days for lack of veracity, poor work performance, and insubordination.¹⁶ While serving his suspension, on November 29, 2007, Plaintiff submitted a medical note from a nurse practitioner indicating that Plaintiff had been diagnosed with high blood pressure, dehydration, diarrhea, and significant weight loss.¹⁷ On December 2, 2007, Plaintiff requested information regarding his FMLA rights from Defendant d'Hedouville and he forwarded the request to Defendants Massimo and Stolfa.¹⁸ The DEP, in particular Defendant Massimo, denied Plaintiff leave under the FMLA.¹⁹

On December 5, 2007, Plaintiff submitted a letter to Defendant Massimo. ²⁰ The letter included a medical note informing the DEP that Plaintiff needed to take a leave of absence to treat his disabilities rather than return from his suspension.²¹ Plaintiff also provided, on December 6, 2007, a “Certification of Health Care Provider” (“Certification”) executed by his Nurse Practitioner “Smith” (“NP Smith”), mentioning Plaintiff's inability to work “relative to” Plaintiff's “serious health condition.” ²² On December 11, 2007, Defendant Massimo requested details about Plaintiff's ailment and noted that the Certification was not signed by a medical doctor. ²³ On December 12, 2007, NP Smith notified the DEP that Plaintiff was diagnosed with high blood pressure, gastroenteritis, and sleep deprivation.²⁴ NP Smith also later notified the DEP that the stress level caused by the denial of FMLA leave would worsen Plaintiff's condition. ²⁵ After multiple communications regarding the documentation for Plaintiff's requested leave, the DEP denied Plaintiff's request on December 23, 2007, because his request was not signed by a medical doctor, it failed to discuss the nature of Plaintiff's medical condition, and it failed to include the reasons why the medical leave was necessary.²⁶

The DEP arranged an appointment for Plaintiff to obtain a second medical opinion with Dr. Morris,²⁷ at which the doctor stated to Plaintiff, “I understand that you have been disciplined twice.” ²⁸ At the appointment, Plaintiff refused to sign a medical release.²⁹ Despite this fact, Dr. Morris provided his medical notes to the DEP.³⁰ On January 23, 2008, the DEP conducted a Pre–Termination hearing, at which Defendant Massimo was the Hearing Officer.³¹ In response to Plaintiff's complaint of Defendant Massimo's bias (given his involvement in Plaintiff's FMLA denial), “upper level management” at the DEP refused to provide Plaintiff with an appeal.³²

On January 31, 2008, despite the Certification executed by NP Smith and that Plaintiff's impairments met the criteria for “serious health condition[s]” under the FMLA, Plaintiff was terminated based (at least partly) on Dr. Morris's second medical opinion.³³ B. Procedural Background

Plaintiff filed a Complaint on December 4, 2009, naming the DEP along with the Individual Defendants.³⁴ The Complaint contained seven counts: (I) violation of Plaintiff's FMLA rights (namely, a violation of the personal medical leave provision by denying Plaintiff leave for a “serious health condition”); (II) intentional infliction of emotional distress; (III) negligent infliction of emotional distress; (IV) interference with advantageous business relations (only as to the Individual Defendants); (V) retaliation and inference with protected rights; (VI) invasion of privacy under Massachusetts General Laws, chapter 214, section 1B (only as to the DEP and Defendant Massimo); and (VII) conversion (only as to the DEP). ³⁵ Plaintiff sought punitive damages.³⁶

The Individual Defendants and the DEP have filed separate Motions to Dismiss.

III. Discussion

To survive a Rule 12(b)(6) motion to dismiss, a complaint must include factual allegations that, if taken as true, demonstrate a plausible claim for relief. ³⁷ This court addresses the DEP's Motion to Dismiss and the Individual Defendant's Motion to Dismiss, in that order.

A. The DEP's Motion to Dismiss ³⁸

1. Count I Is Barred Against the DEP by the Eleventh Amendment

The Eleventh Amendment prevents private individuals from suing non-consenting states in federal court.³⁹ This immunity also applies to “arms” of the state.⁴⁰ Although Congress has the power to abrogate that Eleventh Amendment immunity, such power may only be validly exercised if Congress both (a) “ ‘unequivocally intends to do so’ ” and (b) “ ‘act(s) pursuant to a valid grant of constitutional authority,’ ” such as the authority granted by Section 5 of the Fourteen Amendment.⁴¹

The FMLA entitles eligible employees to a certain amount of unpaid leave per year in four clearly specified situations: (1) the birth of a child; (2) the adoption of a child or placement of a foster child; (3) the need to care for a parent, child or spouse with a serious health condition (the “family-care” leave provision); and (4) the inability to work due to the employee's own serious health condition (the “self-care” or “personal medical” leave provision). ⁴² Only the personal medical leave provision is at issue here.⁴³

The First Circuit held, in Laro v. New Hampshire,⁴⁴ that “the personal medical leave provision of the FMLA does not exhibit a sufficient congruence to the prevention of unconstitutional state discrimination to validly abrogate the states' Eleventh Amendment immunity.” ⁴⁵ As a result, no private action for monetary damages may lie against state employers for violation of the personal medical leave provision of the FMLA.

Two years after Laro, the Supreme Court held that Congress validly abrogated sovereign immunity such that state employees may maintain claims in federal court for their employers' failure to comply with the family-care provision of the FMLA.⁴⁶ The Court, however, did not address whether sovereign immunity is similarly abrogated for claims of a violation of the personal medical leave provision.⁴⁷ The prevailing law in the First Circuit, therefore, is that the Commonwealth retains Eleventh Amendment immunity from claims under the personal medical leave provision of the FMLA. ⁴⁸

Because (1) the DEP is an agency of the Commonwealth ⁴⁹ and (2) Plaintiff's FMLA claim against the DEP is based solely upon Plaintiff's exercise of the personal medical leave provision, Count I is barred as against the DEP.

2. Count V Against the DEP, Alleging Retaliation, Fails to State a Claim

In Count V, Plaintiff alleges “retaliation and interference with protected rights.” ⁵⁰ Construing the language of Count V in the light most favorable to Plaintiff, he appears to raise two potential bases for his allegation of retaliation: (a) the exercise of his Weingarten rights and (b) the exercise of his FMLA rights.⁵¹ Neither is a sufficient basis to allow Plaintiff's claim to survive.

Under the National Labor Relations Act (“NLRA”), an employee under a union contract whose employer is subject to the NLRA has Weingarten rights: the employee is entitled to union representation at any meeting at which the employee reasonably believes that he or she will be...