MEMORANDUM AND ORDER ON DEFENDANTS TOWN OF CONCORD, KATE HODGES AND CHRISTOPHER WHELAN’S MOTION TO DISMISS (Dkt. No. 10)
The plaintiff, Pamela Higgins (“the plaintiff’ or Higgins), worked for the town of Concord, Massachusetts (“Concord” or “the Town”) for several years, reportedly without incident. She alleges that the Town and two of its employees, Kate Hodges (Hodges) and Christopher Whelan (Whelan), (collectively, “the defendants”), retaliated against her for taking leave under the Family and Medical Leave Act (FMLA) to care for her husband, by fabricating disciplinary issues and ultimately forcing her to resign. The defendants move to dismiss the amended complaint (“the complaint”) for failure to state a claim; the plaintiff opposes the motion. (Dkt. Nos. 10, 13). For the reasons discussed below, the motion to dismiss is granted in part and denied in part.
I. Background
A. Facts
The facts as taken from the complaint are as follows. The plaintiff began working part-time for the Concord Recreation department in 1981 and became a full-time
In February 2015 defendant Hodges became Assistant Town Manager. (Compl. ¶ 8).
On or about March 24, 2015, the plaintiff became Acting Recreation Director following the former director’s retirement. (Compl. ¶ 9).
The plaintiff received positive performance evaluations at all times during her employment. (Compl. ¶ 7). In a June 2015 yearly evaluation, Hodges rated the plaintiff as a “top performer.” (Compl. ¶ 10).
In July 2015 the plaintiffs husband was diagnosed with stage four lung cancer. (Compl. If 11). She informed Hodges of her husband’s diagnosis and noted that she would regularly need to attend medical appointments with her husband. (Compl. ¶ 11). Hodges informed Whelan of the diagnosis and the plaintiffs need to regularly attend appointments. (Compl. ¶ 11). Neither Hodges nor anyone in the Concord town government provided the plaintiff with FMLA paperwork or a notice of her FMLA rights at this time. (Compl. ¶ 12). The plaintiff attended numerous medical appointments with her husband from July 2015 until the end of her employment in February 2016. (Compl. ¶ 18).
Meanwhile, throughout the fall of 2015, the Town was searching for a full-time Recreation Director. (Compl. ¶ 14). On or about December 17, 2015, Hodges informed the plaintiff that she could apply for the position but that the Town was going to look externally to fill the full-time position. (Compl. ¶ 14).
In or about January 2016 the plaintiff for the first time received FMLA paperwork to complete. (Compl. ¶ 15). She completed the paperwork requesting intermix tent leave and returned it to the Town’s HR department. (Compl. ¶ 15). On the following day, Hodges and HR Director Amy Foley (Foley) invited the plaintiff to a meeting to interview her about an investigation into potential misconduct involving another employee in the Recreation Department. (Compl. ¶ 16). They asked the plaintiff questions and requested that she collect data about this employee. (Compl. ¶ 16).
Within a few days Hodges and Foley met with the plaintiff again and asked her if she had spoken to anyone about the investigation. (Compl. ¶ 17). The plaintiff had spoken to two employees briefly, including Jon Straggas (Straggas), the Aching Assistant Recreation Director. (Compl. ¶ 17). Hodges and Foley told the plaintiff that she could be fired for doing so. (Compl. ¶ 17). At this meeting or soon thereafter, Hodges told the plaintiff that Hodges could not appoint her to the full-time Recreation Director position because the plaintiff had spoken to co-workers about an internal investigation. (Compl. ¶ 18). Hodges suggested that the plaintiff give her co-workers an excuse to explain why she was out of consideration for the job, specifically that she had decided against taking the position due to her husband’s medical condition. (Compl. ¶ 18). The plaintiff followed this suggestion even though it was false. (Compl. ¶ 20).
On January 19, 2016, Hodges announced at a staff meeting that the plaintiff was withdrawing from consideration for Recreation Director, and that Straggas was being appointed General Manager of the Beede Center. (Compl. ¶ 19). The plaintiff had previously been in charge of the Beede Center and this announcement was made without first having informed her. (Id.).
On or about January 21, 2016 Hodges approached the plaintiff as she was cleaning out her office at the Beede Center. (Compl. 1121). Hodges told her that the Town was requiring her to sign a Last
The LCA specifies the following:
a. It lasts three years;
b. Higgins’ employment will be deemed to be at-will regarding the following misconduct — failure to follow directions, improper sharing of information, failure to be forth-rightyforthcoming in any manner, or policy violations;
c. The Town will be considered to have satisfied the just cause standard regarding any discipline for such misconduct;
d. Higgins shall have no right to appeal any adverse action for such misconduct;
e. Town Manager Whelan, at his sole discretion, may terminate Higgins for any such misconduct, and she preemptively waives pre-discipline or pretermination meeting/hearing rights she has based on her status as a public employee;
f. Higgins waives any and all rights to file or assert any claims, including court actions, regarding any further disciplinary action, including termination, taken by the Town for the three-year period under the LCA;
g. Higgins agrees that she had the opportunity to consult with an attorney before signing the LCA.
(Compl. ¶ 22).
The plaintiff signed the LCA that day but did not have the opportunity to consult with an attorney before doing so. (Compl. ¶ 23). In fact, Hodges told the plaintiff that she would be terminated if she did not sign the LCA, despite the fact that the plaintiff had not ever received any discipline before receiving the LCA, and had not received any formal discipline for speaking to coworkers about the internal investigation discussed above. (Compl. ¶¶ 23-24). The Town signed the LCA on January 25, 2016. (Compl. ¶ 25).
Subsequently, in two staff meetings near the end of January and the beginning of February 2016 at which the plaintiff was present, Whelan and/or Hodges posed some questions to the staff. (Compl. ¶ 27). The questions were intended for Straggas but the plaintiff, unaware of that fact, answered them, to Whelan’s and Hodges’s consternation. (Compl. ¶ 27). On February 19, 2016, Hodges and Foley met with the plaintiff and told her that she had violated the LCA by answering the questions directed to Straggas. (Compl. ¶ 28). The plaintiff was given a choice to decide by February 22nd whether to resign voluntarily or be terminated. (Compl. ¶ 28). The plaintiff received a letter later that day from Hodges stating that the plaintiff had been placed on administrative leave and would probably be terminated the following week. (Compl. ¶ 29). The letter did not provide any notice of a pre-termination hearing. (Compl. ¶ 30).
On February 23, 2016, and as a result of the foregoing, the plaintiff resigned, involuntarily. (Compl. ¶ 31). But for these events, the plaintiff had intended to work at least three more years. (Compl. ¶ 32).
B. The Complaint (Dkt. No. 4)
Count One of the complaint alleges that the defendants treated the plaintiff unfairly and terminated her in retaliation for her taking leave to care for her husband, in violation of the FMLA, 29 U.S.C. § 2615(a)(1).
Count Two alleges that the defendants deprived the plaintiff of her procedural and/or substantive due process rights by terminating her without affording her a hearing.
Count Three alleges that the defendants breached a contract with the plaintiff by forcing her to sign the LCA and to resign.
The defendants argue that the complaint-should be dismissed because the plaintiff waived her right to bring suit against them when she signed the LOA. The defendants argue that the complaint fails independently because it does not. allege plausible facts to support any of the counts. Finally, the defendants argue that Hodges and Whelan are entitled to qualified immunity on Counts One and Two.
II. Legal Standard
Courts reviewing a motion to dismiss under Rule 12(b) (6) must apply the notice pleading requirements of Rule 8(a) (2). Educadores Puertorriquenos en Accion v. Hernandez,
To show that one is entitled to relief, the plaintiff must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
III. Analysis
As a threshold matter, the defendants submit six extraneous documents along with their motion to dismiss, inclúding: (1) the LCA; (2) the Town Charter; (3) the February 19, 2016 letter placing the plaintiff on administrative leave; (4) a copy of the Town Employee Appeal Procedure; and (5-6) two emails from the plaintiff to Hodges. In one email written on February 12, 2016, the plaintiff appears to apologize to Hodges for her behavior in an office meeting the previous day. In the second email written on February 23, 2016, the plaintiff tenders to Hodges her resignation.
On a motion to dismiss, “[ordinarily .., any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden.” Watterson v. Page,
The plaintiff does- not challenge inclusion of the first four referenced items but does
Dismissal based on the LCA is not appropriate where the plaintiff alleges that she was coerced into signing the LCA and that the LCA itself was an act of retaliation.
The defendants contend that the entire complaint should be dismissed because the plaintiff waived her right to sue them when she signed the LCA. Among other things, the LCA provides that the plaintiff “waives any and all rights to file or assert any claims, including court actions, regarding any further disciplinary action, including termination....” (Compl. ¶ 22). Provided that an employment agreement containing a waiver provision is entered into freely and absent duress, courts will uphold the waiver. See Mills v. U.S. Postal Service,
Here, however, the complaint alleges that the plaintiff did not freely sign the LCA. Rather, it alleges that the impetus for the LCA was unfair retaliation for the plaintiffs taking of FMLA leave, and that the defendants pressured the plaintiff into signing the LCA and then forced her to resign involuntarily. If true, such facts might well provide the plaintiff with a basis to challenge the enforceability of the LCA. See South Bay Boston Mgmt. v. Unite Here, Local 26,
Where the enforceability of the LCA may be one of the key issues in this case, and is likely to turn on as yet undiscovered fácts surrounding its creation and execution, both parties should be entitled to fully explore the issüe through discovery, and dismissal at this early juncture therefore would not be appropriate. See Long v. McDonald, No. CIV-16-209-RAW,
The FMLA requires covered employers (including the defendants) to provide their employees with unpaid leave for qualified medical and family-related reasons, such as caring for a sick family member, and prohibits an employer from retaliating against an employee for exercising her FMLA rights. 29 U.S.C. §§ 2601 et seq.; 29 C.F.R. § 825.220(c);. Carrero-Ojeda v. Autoridad de Energia Electrica,
While a plaintiff need not plead a prima facie case to survive dismissal under Rule 12(b)(6), the elements of a prima facie case are useful as a prism to shed light upon the plausibility of a plaintiffs claim. Id. To make out a prima facie case of FMLA retaliation a plaintiff must show that (1) she availed herself of a protected FMLA right (e.g., she engaged in protected conduct), (2) she was adversely affected by an employment decision, and (3) there was a causal connection between the protected conduct and the adverse employment action. Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc.,
With respect to the first prong, there is no real dispute that the complaint adequately alleges that the plaintiff completed FMLA paperwork and took time off from work to attend her husband’s medical treatments.
With respect to prong two, the defendants argue that the plaintiff was not adversely affected by an employment decision because she resigned voluntarily. However, when a resignation, comes as the result of an employer offering the employee a choice between resignation or termination, as the complaint alleges here, a resignation can amount to an adverse employment action. See Pierce v. Alice Peck Day Memorial Hosp., No. Civ. 00-318-M,
Regarding prong three, the defendants argue that the plaintiff offers no facts other than timing to show that her termination was the result of her protected FMLA conduct. That is not entirely accurate, however. The complaint also alleges that the plaintiff had never previously been disciplined before completing the FMLA paperwork, and in contrast was disciplined and forced to sign the LCA only after engaging in protected conduct. Where the complaint alleges such a stark contrast in the way the plaintiff had been treated for several years prior to engaging in protected conduct, and the way in which she was treated almost immediately after doing so, that is enough at this stáge to support the allegation that the plaintiffs termination was causally connected to her act of exercising her rights under the FMLA.
The defendants argue that Count Two alleges insufficient facts to support a procedural or substantive due process claim. The due process clause of the Fourteenth Amendment protects interests in life, liberty, and property. U.S. Const, amend. XIV. “When protected interests are implicated, the right to some kind of prior hearing [before deprivation of those rights] is paramount.” Board of Regents of State Colleges v. Roth,
i. Procedural Due Process
With respect to the claim of a procedural violation, the defendants argue that the plaintiff resigned voluntarily and therefore cannot show that the Town deprived her of any property interest. The defendants argue that the procedural claim fails even assuming the plaintiff was wrongfully disciplined because she failed to pursue “available post-deprivation relief.” To that extent, the defendants argue that the plaintiff cannot on the one hand claim that the LCA was invalid because it was forced upon her, but yet defend her failure to seek post-discipline relief on the ground that it would have been' futile in light of the LCA!
To establish a procedural due process violation, a plaintiff must identify a protected' liberty or property interest, and allege ‘that the defendants, acting under color of state law, deprived [the plaintiff] of that .., interest without constitutionally adequate process.’ ” Aponte-Torres v. University of Puerto Rico,
In order to have procedural due process rights in her employment, the “plaintiff must have had a reasonable expectation, based on a statute, policy, rule, or contract, that he or she would continue to be employed.” Concepcion Chaparro v. Ruiz-Hernandez,
The defendants argue that the plaintiff voluntarily signed the LCA and then resigned, and therefore was not deprived of any procedural right to a hearing or post-discipline review. As noted above, though, the plaintiff alleges that she was forced to sign the LCA and did not resign voluntarily. The defendants argue that the procedural due process claim fails even assuming the plaintiff was wrongly disciplined, because it then means she should have known she was entitled to ignore the LCA and pursue her procedural rights. The defendants .frame this as a question of fairness but if that is true,, it similarly holds that the defendants cannot simultaneously contend on the one hand that the LCA was a valid agreement that properly waived the plaintiffs procedural rights, but argue with equal force on the other that the plaintiffs claim should be dismissed because she did not ignore the LCA and pursue her rights regardless. In the Court’s view, additional discovery is needed to determine whether there is any merit to this claim. Dismissal at this stage is not appropriate.
ii. Substantive Due Process
The substantive due process claim is a bit more difficult to discern. “While property interests are protected by procedural due process even though the interest is derived from state law rather than the Constitution, ... substantive due process rights are created only by the Constitution.” Christensen v. Kingston School Committee, 360 E.Supp.2d 212, 223 (D. Mass. 2005) quoting Regents of University of Michigan v. Ewing,
The Supreme Court has stated that “[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.” Albright v. Oliver,
The First Circuit has emphasized that merely because an employee has a valid protected property interest under the procedural due process clause does not mean that the same property interest will be enough to sustain a substantive. due process claim. See Santiago de Castro v. Morales Medina,
However, substantive due process claims based on employment interests are not outright prohibited, even'if they are much less likely to rise to the level of a constitutional violation, and at least two courts in this district have entertained such claims. See Dobelle v. Flynn,
Beyond requiring deprivation of a constitutionally protected interest, substantive due process claims “are limited to government action that, by its very nature, ‘shock[s] the conscience/ and we reserve it for ‘truly horrendous situations.’ ” Freeman v. Town of Hudson,
One court-in this Circuit has collected cases in which, the First Circuit has found behavior to be conscience shocking, and they all involve very extreme circumstances. See Esposito v. Town of North Providence, No. C A 04-302S,
Nevertheless, as noted above, at least one court in this district has found facts somewhat similar to those in this case to be sufficient to survive a motion to dismiss. See Bliss,
The Court cannot determine whether Hodges and Whelan are entitled to qualified immunity at this stage.
The defendants argue ' that Hodges and Whelan are entitled to qualified immunity on Counts One and Two. At the motion to dismiss stage “it is the defendant’s conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness.’ ” Behrens v. Pelletier,
To determine whether a government official enjoys qualified immunity, a court must decide “(1) whether the facts alleged or shown by the plaintiff make out a violation of a [statutory or] constitutional right;
This is a highly fact-intensive inquiry. Indeed, the Supreme Court has cautioned that courts should not define “clearly established” law at a high level of generality. Mullenix v. Luna, — U.S. -,
The defendants argue that the rights Hodges and Whelan are alleged to have violated were not clearly established at the time of the defendants’ actions and decisions. The Court cannot agree.
Regarding Count One, courts in this district have recognized that the rights protected by the FMLA have been clearly established since at least 2007. See Mason v. Massachusetts Dept. of Environmental Protection,
Regarding Count Two, it has long been established that public employees have a property interest in their employment and are therefore entitled to process before termination. Roth at 576-77,
A public employee’s right to a hearing before being deprived of her job has long been clearly established. See Ruiz-Casillas v. Camacho-Morales,
The plaintiff has failed to state a claim for breach of contract.
In order for a contract claim to survive a motion to dismiss, “[plaintiffs ... must do more than allege, in concluso-ry fashion, that the defendant breached the contract, by describing, with “substantial certainty,” the specific' contractual promise the defendant failed to keep.” Brooks v. AIG SunAmerica Life Assur. Co.,
The complaint does not meet this standard with respect to Count Three. First, it fails to identify what “contract” is at, issue. As the Court understands it, the plaintiff does not allege the LCA to be the contract at issue. At the hearing on the motion to dismiss, the plaintiff argued that, assuming the LCA was without force, the defendants breached a contract — presumably an implied one, when they forced the plaintiff to resign without providing her a hearing. Without more, this claim is too vague and imprecise to provide meaningful guidance to the defendants. The Court thus agrees that the breach of contract claim should be dismissed, but without prejudice, subject to the plaintiffs ability to amend to set out specific facts demonstrating she is entitled to relief.
'IV. Conclusion
The defendants’ Motion to Dismiss as to Counts One and Two is DENIED. The Motion to Dismiss as to Count Three is GRANTED, without prejudice, with 14 days for leave to file an amended complaint alleging specific facts demonstrating an implied contract.
Notes
. The plaintiff argues that qualified immunity cannot be granted on a statutory claim, but instead requires a constitutional right. The Court does not agree. See Pearson v. Callahan,
. The Court is aware that the plaintiff has filed a motion for leave to file a second amended complaint to add claims under the ADA and M.G.L, c. 151B. (Dkt. No, 32). The leave to amend granted here is specific to the breach of contract claim found in the first amended complaint and1 has no bearing on the plaintiff's pending motion for leave to amend.