Mehic v. Dana-Farber Cancer Inst., Inc.

• Decision Date: 25 January 2017
• Docket Number: CIVIL ACTION NO. 15-12934-IT
• Parties: SUADA MEHIC, Plaintiff, v. DANA-FARBER CANCER INSTITUTE, INC., MELISSA CHAMMAS and LINDA SWEENEY, Defendants.
• Court: U.S. District Court — District of Massachusetts

SUADA MEHIC, Plaintiff, v. DANA-FARBER CANCER INSTITUTE, INC.,MELISSA CHAMMAS and LINDA SWEENEY, Defendants.

CIVIL ACTION NO. 15-12934-IT

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

January 25, 2017

ORDER

TALWANI, D.J.

On July 28, 2016, Defendants moved for partial dismissal of Plaintiff's amended complaint. [#51]. This court referred the motion to the Magistrate Judge [#58], who filed her Report and Recommendation on January 25, 2017. [#77]. Objections were due on February 8, 2017—14 days after the report was docketed. Fed. R. Civ. P. 72(b)(2). Having received no objection, and after considering the report and finding its reasons to be sound, the court hereby ACCEPTS AND ADOPTS the Magistrate Judge's Report and Recommendation [#77]. Accordingly, Defendants' Motion to Dismiss [#51] is ALLOWED IN PART and DENIED IN PART as set forth in the Magistrate Judge's report [#77].

IT IS SO ORDERED.

/s/ Indira Talwani

United States District Judge

REPORT AND RECOMMENDATION RE: DEFENDANTS DANA-FARBER CANCER INSTITUTE, INC., MELISSA CHAMMAS, AND LINDA SWEENEY'S PARTIAL MOTION TO DISMISS (DOCKET ENTRY # 51)

BOWLER, U.S.M.J.

Pending before this court is a partial motion to dismiss filed by defendants Dana-Farber Cancer Institute, Inc. ("Dana-Farber"), Melissa Chammas ("Chammas") and Linda Sweeney ("Sweeney") (collectively "defendants") under Fed.R.Civ.P. 12(b)(1) ("Rule 12(b)(1)") and Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"). (Docket Entry # 51). Plaintiff Suada Mehic ("plaintiff") opposes the motion. (Docket Entry # 56). After conducting a hearing, this court took the motion (Docket Entry # 51) under advisement.

PROCEDURAL BACKGROUND

In July 2014, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"). (Docket Entry # 52-1). "Pursuant to a 'work-sharing' agreement between the EEOC and" the Massachusetts Commission Against Discrimination ("MCAD"), "'a charge filed with the EEOC is automatically referred to MCAD, the state agency.'" Williams v. City of Brockton, 59 F.Supp.3d 228, 245 (D.Mass. 2014) (quoting Leung v. Citizens Bank, 2014 WL 1343271, at *3 (D.Mass. Apr. 2, 2014)). The EEOC charge, signed by plaintiff, also stated that she "want[ed] this charge filed with both the EEOC and the State or local agency," i.e., the MCAD. The charge alleged that she was the victim of discrimination based on "national origin, (Bosnia) and [her] age (57)¹ and in retaliation for protesting the harassment," which she depicts as being falsely accused of stealing and insubordination. (Docket Entry # 52-1). Plaintiff signed the charge under penalty of perjury and, as defendants, named only her employer, Dana-Farber. The body of the charge alleges that Chammas harassed plaintiff and that plaintiff's performance was "never a problem until Ms. Chammas was hired." (Docket Entry # 52-1). It also states that plaintiff is older than both Chammas and Sweeney.

On May 20, 2016, plaintiff filed a motion to amend the complaint in this action. (Docket Entry # 38). The attached,proposed amended complaint named Sweeney, Chammas and Dana-Farber and did not include a retaliation claim under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Defendants opposed the amendment on a number of grounds. On June 7, 2016, the district judge allowed the motion to amend and noted that, "Before filing, Plaintiff may omit from her proposed amended complaint any causes of action (in their entirety or as to particular Defendants) that Plaintiff no longer seeks to assert after careful review of Defendants' opposition to the motion to amend." (Docket Entry # 44).

On June 27, 2016, plaintiff filed the first amended complaint ("the amended complaint") against defendants. (Docket Entry # 45). The amended complaint sets out the following claims: (1) breach of implied covenant of good faith and fair dealing against Dana-Farber (Count I); (2) unjust enrichment against Dana-Farber (Count II); (3) tortious interference with contractual relations against Chammas and Sweeney (Count III); (4) intentional infliction of emotional distress against Chammas and Sweeney (Count IV); (5) libel and slander against Chammas and Sweeney (Count V); (6) negligent supervision against Dana-Farber (Count VI); (7) an age discrimination claim under 29 U.S.C. §§ 621, et seq. against Dana-Farber (Count VII); (8) an age discrimination claim under Massachusetts General Laws chapter 151B ("chapter 151B") against defendants (Count VIII);(9) discrimination based upon national origin under Title VII of the Civil Rights Act of 1964 against Dana-Farber (Count IX); (10) a retaliation claim against Chammas and Sweeney under Title VII (Count X); (11) a violation of the Massachusetts Wage Act under Massachusetts General Laws chapter 149, section 148 ("section 148" or "MWA"), against defendants (Count XI); (12) a violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., against defendants (Count XII); and (13) a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 1210 et seq., against Dana-Farber (Count XIII).² (Docket Entry # 45).

Defendants move to dismiss counts IV and VI for lack of subject-matter jurisdiction under Rule 12(b)(1). They also seek to dismiss counts I, VIII (as to Chammas and Sweeney only), X, XI and XIII for failure to state a claim under Rule 12(b)(6).

STANDARDS OF REVIEW

The standard of review for a Rule 12(b)(6) motion is well established. To survive a Rule 12(b)(6) motion to dismiss, the complaint must include factual allegations that when taken as true demonstrate a plausible claim to relief even if actual proof of the facts is improbable. Bell Atl. Corp. v. Twombly,550 U.S. 544, 555-58 (2007). Thus, while "not equivalent to a probability requirement, the plausibility standard asks for more than a sheer possibility that a defendant has acted unlawfully." Boroian v. Mueller, 616 F.3d 60, 65 (1^st Cir. 2010) (internal quotation marks and citations omitted). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not shown-that the pleader is entitled to relief." Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1^st Cir. 2011) (brackets, internal quotation marks and citations omitted). Discarding legal conclusions and taking the facts in the governing complaint as "true and read in a plaintiff's favor" even if seemingly incredible, the complaint "must state a plausible, not a merely conceivable, case for relief." Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29-30 (1^st Cir. 2010).

In evaluating a Rule 12(b)(6) motion, the court may consider a limited category of documents outside the complaint without converting the motion into one for summary judgment. Such documents include public records and documents sufficiently referred to in the complaint. See Butler v. Balolia, 736 F.3d 609, 611 (1^st Cir. 2013) (supplementing facts in complaint "by examining 'documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice'"); Freeman v. Town of Hudson, 714 F.3d 29, 36(1^st Cir. 2013) (court may consider "'official public records; documents central to plaintiffs' claim; and documents sufficiently referred to in the complaint'") (ellipses and internal brackets omitted); Giragosian v. Ryan, 547 F.3d 59, 65-66 (1^st Cir. 2008). It is also appropriate to consider "'documents the authenticity of which are not disputed by the parties.'" Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 47 n.1 (1^st Cir. 2009) (quoting Watterson v. Page, 987 F.2d 1, 3-4 (1^st Cir. 1993)). Here, defendants filed Dana-Farber's Sick Leave Policy in support of the Rule 12(b)(6) motion. (Docket Entry # 52-2). Neither party disputes the document's authenticity. Indeed, plaintiff relies on Dana-Farber's Sick Leave Policy in her brief. (Docket Entry # 56, pp. 9-10). The amended complaint also asserts plaintiff was entitled to accrue sick leave and that Dana-Farber refused to pay her accrued sick leave upon her termination. Because the authenticity of the document is not disputed, the policy may be considered.

Defendants also filed the EEOC complaint to support a Rule 12(b)(6) dismissal. (Docket Entry # 52-1). The amended complaint references the discrimination charges filed with the EEOC. (Docket Entry # 45, ¶ 133). The charge is therefore sufficiently referred to in the amended complaint and neither party disputes the document's authenticity. Accordingly, theEEOC charge, cross-filed with the MCAD, is part of the Rule 12(b)(6) record.

With respect to the Rule 12(b)(1) motion, this court "must credit plaintiff's well-pled factual allegations and draw all reasonable inferences in plaintiff's favor." Merlonghi v. United States, 620 F.3d 50, 54 (1^st Cir. 2010) (citing Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1^st Cir. 2001)); Sánchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 92 (1^st Cir. 2012) ("'credit[ing] the plaintiff's well-pled factual allegations and draw[ing] all reasonable inferences in the plaintiff's favor'" under Rule 12(b)(1)) (internal citation omitted)). "The district court may also 'consider whatever evidence has been submitted, such as the depositions and exhibits submitted.'" Merlonghi v. United States, 620 F.3d at 54 (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1^st Cir. 1996)). Accordingly, plaintiff's affidavit (Docket Entry # 56-1), although not considered and stricken with respect to the Rule 12(b)(6) record, is properly considered and part of the Rule 12(b)(1) record. Although it is also appropriate to include both the Dana-Farber Sick Leave Policy (Docket Entry # 52-2) and the EEOC complaint (Docket Entry # 52-1), neither document is relevant to the Rule 12(b)(1) argument defendants raise.

Finally, "'Federal courts are courts of limited jurisdiction'" and "[t]he existence of subject-matter jurisdiction [is therefore] 'never presumed.'"...