Orell v. Umass Memorial Medical Center, Inc.

Decision Date29 April 2002
Docket NumberNo. Civ.A. 00-40227-NMG.,Civ.A. 00-40227-NMG.
Citation203 F.Supp.2d 52
PartiesPatricia ORELL, Plaintiff, v. UMASS MEMORIAL MEDICAL CENTER, INC., Implementation Specialists for Health Care, Inc., Myles Walsh, Karen Herron, Paul Corbett and Jeff Scott, individually, Defendants.
CourtU.S. District Court — District of Massachusetts

David E. Ashworth, Worcester, MA, for Plaintiff.

Richard C. Van Nostrand, Mirick, O'Connell, DeMallie & Lougee, Worcester, MA, Brian E. Whiteley, Scibelli & Whiteley, Anthony A. Scibelli, Scibelli and Whiteley, LLP, Boston, MA, for Defendants.


GORTON, District Judge.

This case arises out of the termination of the employment of Plaintiff, Patricia Orell ("Orell"). Solely for purposes of the motion to dismiss, the facts are stated as alleged by the plaintiff.

Orell was employed by UMass Memorial Medical Center ("UMMC") from approximately June, 1971 until December 30, 1997 and worked in UMMC's Copy Center Department. During that entire period, she performed her job satisfactorily.

Orell is a qualified handicapped person within the meaning of M.G.L.c. 151B §§ 1(16) & (17) and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), because she has a medical history of physical impairment. Plaintiff does not specifically describe the handicap from which she suffers but defendants do not dispute that she is handicapped or that she was able to perform the essential functions of her job with accommodation.

Orell notified UMMC of her handicap and UMMC modified her schedule to permit flex time to enable her to attend necessary medical treatment and to avoid the aggravation of her disability caused by working too many consecutive hours. Plaintiff's supervisors, defendants Miles Walsh ("Walsh") and Karen Herron ("Herron"), failed, however, to address her serious concerns about reasonable accommodation after numerous requests.

On August 18, 1997, defendant Paul Corbett ("Corbett"), an employee of defendant Implementation Specialists for Healthcare, Inc. ("ISH"), a consulting firm, began serving as Interim Director to oversee the Materials Management Department of UMMC.

On December 30, 1997, plaintiff was terminated from her employment and, on that same day, defendant Corbett gave her a written explanation of the reasons for her termination. According to defendant, Orell was terminated because of an email message written by her on December 10, 1997 in which she allegedly made false accusations and maligned the characters of Walsh and Jeff Scott, another UMMC employee and defendant in this case.

Orell's relationship with Walsh, Herron and another employee, Catherine Racicot ("Racicot") was acrimonious. Racicot is the secretary of the orthopedic physician of plaintiff's son and, in 1994, Racicot had an affair with Orell's husband. Orell made a claim in September, 1994 that Racicot submitted an inaccurate report with respect to her son's medical condition. In response to that claim, Racicot filed a grievance against plaintiff for harassment.

On December 16, 1997, Walsh filed a grievance complaint against Orell for statements contained in the December 10 email message. Walsh conducted the investigation of his own grievance and participated in the decision to terminate plaintiff's employment. The defendants determined that the allegations in Orell's email message were untrue and that termination was warranted but they waited 20 days before implementing the termination. Plaintiff was denied access to documents which would have established the truth of the allegations contained in her email.

During her employment, plaintiff brought certain legal, ethical and medical issues to the attention of her supervisors and the UMMC Administration, including the falsification of time cards, disparate treatment, denial of promotion, refusal to accommodate her disability and hostile working environment.

In September, 1997, she alerted Walsh to certain false time cards and was, as a result, berated, criticized and scrutinized. In that same month, plaintiff's work schedule was increased to six consecutive hours and she was refused time off for physical therapy.

Orell was denied a promotion in the Copy Center even though she had worked there for 26 years. Defendant Herron suggested that maybe she was getting too old for the job after Orell initiated a discussion concerning reasonable accommodation. The position of Manager of the Copy Center was assigned to a 35-year-old woman who was less qualified for the job.

Plaintiff filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD") in June, 1997. UMMC's motion to dismiss the complaint was denied but after plaintiff was allowed to amend it, she elected to dismiss that complaint and pursue a private action.

On December 29, 2000, Orell filed a complaint in this Court alleging, among other things, 1) handicap discrimination in violation of the ADA, 42 U.S.C. § 12101 et seq. and M.G.L.c. 151B § 4 for failure to accommodate her disability and for termination of her employment on the basis of a disability, 2) age discrimination in violation of M.G.L. c. 151B, 42 U.S.C. § 2000e ("Title VII") and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), 3) infringement of her right to free speech in violation of the First Amendment to the United States Constitution and Article 16 of the Massachusetts Constitution, 4) retaliation, 5) wrongful discharge, 6) breach of contract, 7) breach of the covenant of good faith and fair dealing, 8) intentional interference with contractual relations, 9) intentional infliction of emotional distress, 10) defamation, 11) violation of the federal and state "whistleblower" statutes, 31 U.S.C. § 3730(h) and M.G.L.c. 149 § 185, and 12) hostile environment discrimination in violation of 42 U.S.C. § 2000e.

Pending before the Court is the motion of defendants, ISH and Paul Corbett ("these defendants"), to dismiss.

I. Standard for Motion to Dismiss

A motion to dismiss for failure to state a claim may be granted only if it appears, beyond doubt, that the plaintiffs can prove no facts in support of their claim that entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court must accept all factual averments in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). The Court is required to look only to the allegations of the complaint and if under any theory they are sufficient to state a cause of action, a motion to dismiss the complaint must be denied. Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987).

II. Preliminary Issues
A. Facially Defective Claims

Before addressing these defendants' arguments on the merits, it is necessary to address certain of plaintiff's claims that are facially defective with respect to all defendants. In both Counts II and III, plaintiff alleges that defendants discriminated against her by terminating her employment on the basis of her disability. The only difference between the two claims is that plaintiff brings Count II under Title VII and Count III under the ADA, 42 U.S.C. § 12101 et seq.

The express language of Title VII forbids

an employer ... to fail to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1). Because Title VII applies only to discrimination on the basis of race, color, religion, sex or national origin, Count II of plaintiff's complaint fails to state a claim upon which relief can be granted and will, accordingly, be dismissed as to all defendants. See Clorox Company v. Proctor & Gamble Commercial Co., 228 F.3d 24, 30 (1st Cir.2000) (court may dismiss an action sua sponte and without notice where claim's defects cannot be cured by amendment).

Similarly, plaintiff alleges in Count VI and VII that defendants treated her disparately and discharged her based on her age. She brings Count VI under Title VII and Count VII under the ADEA, 42 U.S.C. § 621 et seq. Because Title VII does not apply to discrimination on the basis of age, Count VI will be dismissed against all defendants.

Finally, in Count XVIII, entitled "Hostile Environment", which contains a hodgepodge of claims, plaintiff alleges that defendants violated Title VII by taking adverse employment action against her in retaliation for her exercise of free speech and by subjecting her to a hostile work environment and failing to accommodate her disability.

In order to state a claim for harassment amounting to the creation of a hostile work environment under Title VII, plaintiff must allege that such harassment was based on her race, color, sex, national origin or religion. Nowhere in her complaint, does plaintiff allege that she was subject to harassment based on anything other than her age or disability. Because Title VII does not apply to discrimination based on age or disability, plaintiff fails to state claim for hostile environment harassment under that statute.

In order to state a claim for retaliation under Title VII, plaintiff must show that 1) as an employee she was engaged in an activity protected by that statute and 2) there was a causal link between the protected activity and the adverse employment action. Hoeppner v. Crotched Mountain Rehabilitation Center, Inc., 31 F.3d 9, 14 (1st Cir.1994). Because plaintiff fails to allege that she was retaliated against because she opposed practices prohibited under Title VII, i.e., discrimination on the basis of race, color, religion, sex, or national origin, Count XVIII alleging retaliation in violation of Title VII will be dismissed...

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