Rock v. Lifeline Sys. Co.

• Decision Date: 23 October 2015
• Docket Number: CIVIL ACTION NO. 13-11833-MBB
• Parties: DENISE ROCK, Plaintiff, v. LIFELINE SYSTEMS COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

DENISE ROCK, Plaintiff, v. LIFELINE SYSTEMS COMPANY, Defendant.

CIVIL ACTION NO. 13-11833-MBB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

October 23, 2015

MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

(DOCKET ENTRY # 54)

BOWLER, U.S.M.J.

Pending before this court is a motion for summary judgment (Docket Entry # 54) filed by defendant Lifeline Systems Company ("Lifeline"). Plaintiff Denise Rock ("Rock") opposes the motion. (Docket Entry # 66). After conducting a hearing on July 29, 2015, this court took the motion (Docket Entry # 54) under advisement.

PROCEDURAL HISTORY

The amended complaint alleges that Lifeline engaged in gender and age discrimination, wrongful termination of employment and retaliation in violation of state and federal law. (Docket Entry # 4). It sets out the following causes of action: (1) violation of Massachusetts General Laws chapter151B ("chapter 151B") for discrimination on the basis of gender (Count I); (2) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), for discrimination on the basis of gender (Count II); (3) violation of chapter 151B for discrimination on the basis of age (Count III); (4) violation of Title VII and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., for discrimination on the basis of age (Count IV); (5) violation of public policy under Massachusetts common law for wrongful termination of employment (Count V); (6) violation of the whistleblowing protections of the Sarbanes-Oxley Act ("SOX"), 18 U.S.C. § 1514A ("section 1514A") (Count VI); (7) violation of chapter 151B for retaliation (Count VII); (8) violation of Title VII for retaliation (Count VIII); and (9) violation of the whistleblowing protections of the Consumer Product Safety Improvement Act ("CPSIA"), 15 U.S.C. § 2087 ("section 2087") (Count IX).¹ (Docket Entry # 4).

On April 26, 2012, Rock filed a charge of discrimination with the Massachusetts Commission Against Discrimination ("MCAD") and the U.S. Equal Employment Opportunity Commission ("EEOC") against Lifeline alleging discrimination on the basis of age and sex. (Docket Entry # 4, ¶ 29). Lifeline receivedthe charge around the first week of May 2012. (Docket Entry # 4, ¶ 29). On May 7, 2012, Rock filed a charge with the U.S Department of Labor ("DOL") alleging a violation of the whistleblower protections of SOX. (Docket Entry # 4, ¶ 4). Rock "later added . . . a charge of violation of the whistleblower provisions of [CPSIA]." (Docket Entry # 4, ¶ 4).

On June 14, 2012, Lifeline terminated Rock's employment. (Docket Entry # 4, ¶ 29). On December 14, 2012, Rock filed a second charge of discrimination with the MCAD and the EEOC alleging discrimination on the basis of age, sex and retaliation. (Docket Entry # 4, ¶ 4). On March 22, 2013, Rock requested to withdraw the charges of wrongful termination with the DOL because no determination on the claims had been made within 180 days of filing her claims. (Docket Entry # 4, ¶ 5). On May 9, 2013, the EEOC issued a right to sue letter. (Docket Entry # 4, ¶ 5).

Lifeline filed a partial motion to dismiss counts I, II, V and IX. (Docket Entry # 8). This court allowed the motion only to the extent of dismissing Count V. (Docket Entry # 18). Lifeline moves for summary judgment on the remaining counts. (Docket Entry # 54). Rock opposes the motion and contends that genuine issues of material fact preclude summary judgment. (Docket Entry # 66).

STANDARD OF REVIEW

Summary judgment is designed "'to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Dávila v. Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1^st Cir. 2007) (citations omitted). Summary judgment shall be granted if the moving party establishes that "there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party." American Steel Erectors, Inc. v. Local Union No. 7, International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1^st Cir. 2008). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Id.

Facts are viewed in favor of the non-movant, in this case, Rock. See Noonan v. Staples, Inc., 556 F.3d 20, 23 (1^st Cir. 2009). When "the nonmovant has the burden of proof and the evidence on one or more of the critical issues in the case is not significantly probative, summary judgment may be granted." Dávila v. Corporación De Puerto Rico La Difusión Pública, 498 F.3d at 12 (internal quotation marks, citation and ellipses omitted). When the moving party, in this case Lifeline, has made an initial showing that no genuine issue of material fact exists, the nonmovant, Rock, must "produce specific facts, insuitable evidentiary form, to establish the presence of a trialworthy issue." Clifford v. Barnhart, 449 F.3d 276, 280 (1^st Cir. 2006) (internal quotation marks and citation omitted). "[A] conglomeration of 'conclusory allegations, improbably inferences, and unsupported speculation is insufficient to discharge the nonmovant's burden." DePoutot v. Raffaelly, 424 F.3d 112, 117 (1^st Cir. 2005) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1^st Cir. 1990).

In accordance with LR 56.1, the moving party must submit a "concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried." The party opposing the motion must include a statement of material facts to which it asserts "there exists a genuine issue to be tried." LR 56.1. Unless the nonmovant controverts the statements made by the moving party, the facts "will be deemed for purposes of the motion to be admitted" and comprise part of the summary judgment record. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1^st Cir. 2003). In reviewing a motion for summary judgment, a court may examine "all of the record materials on file including the pleadings, depositions, and affidavits." Ahmed v. Johnson, 752 F.3d 490, 495 (1^st Cir. 2014); see Fed.R.Civ.P. 56(c)(3). Plaintiff's affidavit submitted to the MCAD and filed as part of the summary judgment record is therefore appropriately considered. Fed.R.Civ.P.56(c)(3); see, e.g., Huckabay v. Moore, 142 F.3d 233, 240 (5^th Cir. 1998).

FACTUAL BACKGROUND

Up until her termination, Rock was employed at Lifeline for 12 years as a sales person or, to use the formal title, an "'account representative.'" (Docket Entry # 68-2, p. 3). Lifeline, "also known as Philips Lifeline or Philips," is a subsidiary company of Royal Philips Electronics ("Royal").² (Docket Entry # 68-2, p. 3). Rock initially worked at Lifeline Systems, Inc. beginning in 2000. (Docket Entry # 68-2, p. 3). Thereafter, she also worked at Philips Lifeline, which subsequently changed its name to Lifeline Systems, Inc., i.e., Lifeline. (Docket Entry # 68-2, p. 3).

Royal acquired Lifeline in 2006 and Health Watch Holdings, Inc. ("Health Watch") in 2007. (Docket Entry # 68-4, p. 3) (Docket Entry # 56-1, pp. 6-7). Lifeline and Health Watch have, at various times, "manufactured and sold devices" that can provide "medical alert warnings from a customer's residence to a central location from which assistance could be provided." (Docket Entry # 4, ¶ 12, 2^nd sent.) (Docket Entry # 19 ¶ 12, 1^stsent.). Certain devices have a button which, when pushed, transmits a signal to a local transmitter, which, in turn, transmits "a signal to a trained response associate." (Docket Entry # 4, ¶ 12, 3^rd sent.) (Docket Entry # 19, ¶ 12, 1^st sent.).

Rock was born in 1957 and was one of the oldest salespeople in her department. (Docket Entry # 68-2, pp. 3-7). Throughout her employment, Rock was "consistently in the top 4 or 5 performers in [her] department in terms of sales and revenue results." (Docket Entry # 68-2, p. 3).

Despite occasional changes in title, Rock essentially held the same position with almost the same responsibilities until the end of her employment at Lifeline in June 2012. (Docket Entry # 56-1, p. 9). Some of these responsibilities included convincing the account holders assigned to her to purchase new equipment and identifying new referral sources in order to increase revenue. (Docket Entry # 56-1, pp. 15-17). Rock was responsible for achieving daily and monthly sales call averages, maintaining appropriately frequent contact with key customer personnel and forecasting potential sales referrals in her territory. (Docket Entry # 56-1, p. 27).

After Health Watch was acquired, Rock was partnered with a Health Watch Transition Specialist, Marianne Christman ("Christman"). (Docket Entry # 68-1, p. 4). Rock claimsChristman told her that there was a faulty design in the Health Watch Equipment that caused the units to catch fire. According to Rock, Christman said that one of her Health Watch subscribers had died in a fire.³ (Docket Entry # 68-1, p. 4). In total, six of Christman's subscribers had died in fires. (Docket Entry # 68-1, p. 4). She informed Rock that she reported the matter to Health Watch on many occasions but it was seemingly ignored.⁴ (Docket Entry # 68-1, p. 5). Christman denies that this conversation ever happened between her and Rock. (Docket Entry # 56-1, p. 84).

On September 25, 2007, Rock sent an email to a Lifeline attorney, Paul Laurino, Esq. ("Attorney Laurino"), a member of the Health Watch Transition Team. The email reported the conversation Rock had with Christman regarding the fires. (Docket Entry # 68-1, p. 5). Rock forwarded the email to, Kenneth Reinhard, Esq. ("Attorney Reinhard"), another Lifeline attorney. Rock also spoke with Gerald Whitcomb, Esq. ("Attorney Whitcomb"), a Lifeline attorney about the matter. (Docket Entry # 68-1, p. 5).

On November 14, 2007, Terry Sweeney, Sr., the...