Osborne-Trussell v. Children's Hosp. Corp.

• Decision Date: 25 August 2021
• Docket Number: SJC-12991
• Citation: 172 N.E.3d 737,488 Mass. 248
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Kehle OSBORNE-TRUSSELL v. The CHILDREN'S HOSPITAL CORPORATION.

488 Mass. 248

172 N.E.3d 737

Kehle OSBORNE-TRUSSELL

v.The CHILDREN'S HOSPITAL CORPORATION.¹

SJC-12991

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 4, 2021.

Decided August 25, 2021.

Michael L. Mason, Cambridge, for the plaintiff.

Richard J. Riley (Peter C. Kober also present), Boston, for the defendant.

Naomi R. Shatz, Boston, Rebecca Pontikes, & Naitasia Hensey, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.

Alyssa Z. Bloom, Nicole R.G. Paquin, & Andrea C. Kramer, Boston, for Women's Bar Association of Massachusetts, amicus curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

WENDLANDT, J.

This case presents our first opportunity to consider the elements needed to state a claim for relief pursuant to the nonretaliation and noninterference provisions of the Domestic Violence and Abuse Leave Act, G. L. c. 149, § 52E (DVLA). Enacted in 2014, see St. 2014, c. 260, § 10, the DVLA is designed to support victims of abuse and harassment by easing the additional burdens that often are visited upon them when they undertake to stop the abuse, pursue legal action against their abusers, and rebuild their lives. Thus, the DVLA prohibits an employer from taking adverse action against, or otherwise discriminating against, an employee who exercises rights under the DVLA, such as taking leave from work to attend doctors’ appointments or to go to court hearings involving the harassment or abuse. The DVLA also prohibits employers from interfering in an employee's exercise, or attempted exercise, of these statutorily protected rights. Employees, in turn, are required to provide employers with "appropriate advance notice" of the leave they may need. See G. L. c. 149, § 52E (d ).

The plaintiff filed a complaint in the Superior Court against the Children's Hospital Corporation (CHC), alleging that, in contravention of the DVLA, it terminated her employment after she disclosed to CHC that her abuser, who had been stalking, harassing, and threatening her, had violated the terms of a harassment prevention order (HPO), and that the plaintiff had reported the violation to the police. The complaint also alleged that CHC's termination of her employment contravened the Commonwealth's public policy to protect victims of abusive behavior and to encourage enforcement of protective orders. CHC's motion to dismiss was allowed. Because we conclude that the plaintiff's complaint stated a claim for which relief may be granted, the order dismissing the complaint must be reversed with respect to all counts in the complaint with the exception of the public policy claim, and the matter remanded to the Superior Court for further proceedings.²

Background. We summarize the factual allegations set forth in the complaint and in the undisputed documents incorporated by reference in the complaint. See Sudbury v. Massachusetts Bay Transp. Auth., 485 Mass. 774, 776 n.4, 152 N.E.3d 1101 (2020) ; Calixto v. Coughlin, 481 Mass. 157, 158, 113 N.E.3d 329 (2018) (in reviewing allowance of motion to dismiss, we accept as true all well-pleaded facts alleged in complaint).

The plaintiff is a registered nurse and the victim of "repeated stalking, threats, harassment, abuse, and overt threats." In December 2018, the plaintiff obtained an HPO against the abuser, pursuant to G. L. c. 258E.³ The HPO barred the abuser from "directly or indirectly contacting [the plaintiff], ordered [the abuser] to remain away from [the plaintiff's] home or place of work, and prohibited [the abuser] from making any social media postings that reference [the plaintiff]."⁴

In February 2019, the plaintiff applied for employment with CHC. CHC "aggressively" recruited her; it invited her to "a number of interviews," contacted her references, and ordered a background check. CHC tendered the plaintiff a formal job offer, which she accepted. On February 14, 2019, CHC sent the plaintiff a letter memorializing her acceptance of CHC's offer of employment. This letter began, "We are delighted that you have accepted our offer for the Staff Nurse I position in the Orthopedic/General Surgery Unit ... in Patient Services-Nursing." The letter stated that the plaintiff's position was full time, with salary and benefits, and that her "start date" was to be March 18, 2019.⁵ The letter also explained that the plaintiff's employment was "at will" and subject to termination at any time, and was contingent on the successful completion of reference, background, and licensure checks, a "pre-employment fitness for duty assessment," and a number of administrative tasks, as well as receiving a score of at least eighty-six percent on a "medication assessment test given as part of [her] new hire clinical orientation." CHC subsequently issued the plaintiff a photograph identification card identifying her as a CHC "staff nurse," provided her with a CHC employee identification number, and assigned her a training schedule.

On February 28, 2019, the plaintiff's abuser posted threats and false statements about the plaintiff on social media, in violation of the HPO. The post also "tagged"⁶ the social media profile "Children's Hospital," in an apparent attempt to bring the falsehoods to CHC's attention. The plaintiff reported the violation of the HPO to the Merrimac police department. Additionally, she informed CHC's human resources department about the HPO and her abuser's past abusive behavior. The plaintiff provided CHC with copies of the HPO and told CHC that "she was pursuing enforcement of the [HPO]." CHC requested additional information about the abuser, and CHC's human resources representative told the plaintiff that he "intended to speak with [the abuser] to hear her side of the story."

Less than two weeks later, and approximately one week before she was scheduled to begin orientation, CHC sent the plaintiff a termination letter stating that her "employment offer for the Staff Nurse position at Boston Children's Hospital has been rescinded effective March 12, 2019."⁷ The termination letter continued, "the work clearance process is not able to be initiated, so we are unable to complete the onboarding process at this time." In her complaint, the plaintiff alleged that CHC took this action "in order to avoid having to offer [the plaintiff] protections" of the DVLA.

The plaintiff filed a three-count complaint against CHC in the Superior Court, asserting that her termination violated the DVLA and public policy. The complaint alleged that CHC terminated and discriminated against the plaintiff in violation of the nonretaliation provision of the DVLA, which states:

"No employer shall discharge or in any other manner discriminate against an employee for exercising the employee's rights under this section."

G. L. c. 149, § 52E (i ). The complaint also asserted that CHC violated G. L. c. 149, § 52E (h ), the noninterference provision of the DVLA. Under that provision,

"[n]o employer shall coerce, interfere with, restrain or deny the exercise of, or any attempt to exercise, any rights provided under this section or to make leave requested or taken hereunder contingent upon whether or not the victim maintains contact with the alleged abuser."

Lastly, the complaint alleged that CHC's termination of the plaintiff's employment violated public policy.

In its motion to dismiss the complaint, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), CHC argued that because the plaintiff had never commenced her employment with CHC, the plaintiff was not an "employee" within the meaning of the DVLA and was not entitled to its protections. CHC also asserted that, even if the plaintiff had been an employee, her complaint failed to allege that she had provided CHC with notice that she was requesting leave under the DVLA; that such request was for any of the purposes set forth in G. L. c. 149, § 52E (b ) (ii) ; or that she intended to undertake any of the statutorily protected actions. In addition, CHC argued that the complaint did not state a valid claim for a violation of public policy.

Following a hearing at which the plaintiff was given the opportunity to amend her complaint, something she ultimately did not do, the judge allowed CHC's motion to dismiss. While the judge determined that the plaintiff was an "employee" within the meaning of the DVLA, he dismissed the claims for discrimination and for noninterference because the plaintiff had not alleged that she had sought leave from work "for any of the purposes set forth in [ G. L. c. 149, § 52E (b ) (ii) ], or that she actually did, or had had plans to do, any of the enumerated actions in that subsection." The judge also concluded that, given the broad coverage and the detailed provisions of the DVLA, there was "no need and no reason to recognize" the plaintiff's public policy claim under common law. The plaintiff appealed, and we transferred the case from the Appeals Court on our own motion.

Discussion. 1. Standard of review. "We review the allowance of a motion to dismiss de novo, accepting as true all well-pleaded facts alleged in the complaint." Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 614, 135 N.E.3d 711 (2019). We "draw all reasonable inferences in the plaintiff's favor, and determine whether the allegations ‘plausibly suggest’ that the plaintiff is entitled to relief on that legal claim" (citation omitted). Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 17, 111 N.E.3d 266 (2018). To survive a motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Sudbury, 485 Mass. at 779, 152 N.E.3d 1101, quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008). The facts alleged must "plausibly suggest[ ] (not merely [be] consistent with) an entitlement to relief" (quotation and...