203 F. Supp.2d 52 (2002) | Cited 0 times | D. Massachusetts | April 29, 2002


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

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

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 medicalhistory of physical impairment. Plaintiff doesnot specifically describethe handicap from which she suffers but defendants do not dispute thatshe is handicapped or that she was able to perform the essentialfunctions of her job with accommodation.

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

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

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

Orell's relationship with Walsh, Herron and another employee, CatherineRacicot ("Racicot") was acrimonious. Racicot is the secretary of theorthopedic physician of plaintiff's son and, in 1994, Racicot had anaffair with Orell's husband. Orell made a claim in September, 1994 thatRacicot submitted an inaccurate report with respect to her son's medicalcondition. In response to that claim, Racicot filed a grievance againstplaintiff for harassment.

On December 16, 1997, Walsh filed a grievance complaint against Orellfor statements contained in the December 10 email message. Walshconducted the investigation of his own grievance and participated in thedecision to terminate plaintiff's employment. The defendants determinedthat the allegations in Orell's email message were untrue and thattermination was warranted but they waited 20 days before implementing thetermination. Plaintiff was denied access to documents which would haveestablished the truth of the allegations contained in her email.

During her employment, plaintiff brought certain legal, ethical andmedical issues to the attention of her supervisors and the UMMCAdministration, including the falsification of time cards, disparatetreatment, denial of promotion, refusal to accommodate her disability andhostile working environment.

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

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

Plaintiff filed a complaint with the Massachusetts Commission AgainstDiscrimination ("MCAD") in June, 1997. UMMC's motion to dismiss thecomplaint was denied but after plaintiff was allowed to amend it, sheelected 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 toaccommodate her disability and for termination of her employment on thebasis 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 inEmployment Act, 29 U.S.C. § 621, et seq. ("ADEA"), 3) infringement ofher right to free speech in violation of the First Amendment to theUnited States Constitution and Article 16 of the MassachusettsConstitution, 4) retaliation, 5) wrongful discharge, 6) breach ofcontract, 7) breach of the covenant of good faith and fair dealing, 8)intentional interference with contractual relations, 9) intentionalinfliction of emotional distress, 10) defamation, 11) violation of thefederal and state "whistleblower" statutes, 31 U.S.C. § 3730(h) andM.G.L. c. 149 § 185, and 12) hostile environment discrimination inviolation of 42 U.S.C. § 2000e.

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

I. Standard for Motion to Dismiss

A motion to dismiss for failure to state a claim may be granted only ifit appears, beyond doubt, that the plaintiffs can prove no facts insupport of their claim that entitle them to relief. Conley v. Gibson,355 U.S. 41, 45-46 (1957). The Court must accept all factual averments inthe complaint as true and draw all reasonable inferences in theplaintiff'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 lookonly to the allegations of the complaint and if under any theory they aresufficient to state a cause of action, a motion to dismiss the complaintmust 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 isnecessary to address certain of plaintiff's claims that are faciallydefective with respect to all defendants. In both Counts II and III,plaintiff alleges that defendants discriminated against her by terminatingher employment on the basis of her disability. The only differencebetween the two claims is that plaintiff brings Count II under Title VIIand 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 todiscrimination on the basis of race, color, religion, sex or nationalorigin, Count II of plaintiff's complaint fails to state a claim uponwhich relief can be granted and will, accordingly, be dismissed as to alldefendants. See Clorox Company v. Proctor & Gamble Commercial Co.,228 F.3d 24, 30 (1st Cir. 2000) (court may dismiss an action sua sponteand without notice where claim's defects cannot be cured by amendment).

Similarly, plaintiff alleges in Count VI and VII that defendantstreated her disparately and discharged her based on her age. She bringsCount VI under Title VII and Count VII under the ADEA, 42 U.S.C. § 621et seq. Because Title VII does notapply to discrimination on the basisof age, Count VI will be dismissed against all defendants.

Finally, in Count XVIII, entitled "Hostile Environment", which containsa hodgepodge of claims, plaintiff alleges that defendants violated TitleVII by taking adverse employment action against her in retaliation forher exercise of free speech and by subjecting her to a hostile workenvironment and failing to accommodate her disability.

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

In order to state a claim for retaliation under Title VII, plaintiffmust show that 1) as an employee she was engaged in an activity protectedby that statute and 2) there was a causal link between the protectedactivity and the adverse employment action. Hoeppner v. Crotched MountainRehabilitation Center, Inc., 31 F.3d 9, 14 (1st Cir. 1994). Becauseplaintiff fails to allege that she was retaliated against because sheopposed practices prohibited under Title VII, i.e., discrimination on thebasis of race, color, religion, sex, or national origin, Count XVIIIalleging retaliation in violation of Title VII will be dismissed againstall defendants.

B. The Eleventh Amendment

It is also necessary to address the applicability of the EleventhAmendment to the United States Constitution to the instant suit. Neitherparty cites it but it is relevant to the viability of plaintiff's claimsagainst Corbett because she states that she is suing him in his officialand individual capacities.

The Eleventh Amendment states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.

As interpreted, the Eleventh Amendment bars suit against a state bycitizens of that state in federal court. Seminole Tribe of Florida v.Florida, 517 U.S. 44, 47 (1996). It precludes the bringing of a federalclaim against a state official based on an allegation that such officialviolated state law in carrying out his duties. Pennhurst State School andHospital v. Halderman, 465 U.S. 89, 101 (1984); LaManque, et al. v.Massachusetts Dept. of Employment and Training, et al., 3 F. Supp.2d 83,93-94 (D. Mass. 1998).

This Court has previously held that UMMC, as a part of the Universityof Massachusetts, is a public institution established under the laws ofthe Commonwealth and is, accordingly, an "arm" of the state entitled toEleventh Amendment immunity. Ali v. University of Massachusetts MedicalCenter, et al., 140 F. Supp. 2 d 107, 110 (D. Mass. 2001). Insofar asOrell is suing Corbett in his official capacity, the Eleventh Amendmentbars plaintiff's state law claims for money damages against him in thatcapacity. Mills v. Maine, 118 F.3d 37, 54 (1st. Cir. 1997). Plaintiff'sfederal law claims for money damages against Corbett in his officialcapacity are also barred by the Eleventh Amendment.Board of Trustees ofthe University of Alabama, et al. v. Garrett, et al., 531 U.S. 356, 374(2001) (suits in federal court by state employees to recover moneydamages under Title I of the ADA are barred by the Eleventh Amendment);Kimel v. Florida Board of Regents, et al., 528 U.S. 62, 67 (2000) (samewith respect to the ADEA); U.S. ex. rel. Moore v. University ofMichigan, 860 F. Supp. 400, 405 (E.D. Mich. 1994) (same with respect to31 U.S.C. § 3730(h)).1

IV. Analysis of Arguments of These Defendants in Support of Their Motion to Dismiss

A. Plaintiff's Federal Discrimination Claims

Orell alleges numerous discrimination claims under federal law againstdefendants Corbett and ISH. She claims that ISH and Corbett violated theADA by failing to accommodate her disability and discharging her on thebasis of her disability. She also alleges that Corbett and ISH violatedthe ADEA by subjecting her to disparate treatment, failing to promote herand terminating her employment, all on the basis of her age.

These defendants seek to dismiss plaintiff's federal employmentdiscrimination claims on the grounds that 1) they did not make thedecision to terminate plaintiff, 2) individual liability is notrecognized under the ADEA or the ADA and 3) they were not plaintiff'semployers. The First Circuit Court of Appeals has endorsed the practiceof treating judicial precedent interpreting Title VII as instructive ininterpreting the ADEA. Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir.1997). Accordingly, this Court will apply that tenet of interpretation inthis case with respect to plaintiff's federal employment discriminationclaims. See Carparts Distribution Center, Inc., et al. v. AutomotiveWholesaler's Association of New England, Inc., et al., 37 F.3d 12, 16(1st Cir. 1994) (using Title VII as a guide in interpreting ADA).

1. Whether These Defendants made the Alleged Discriminatory Decision to Terminate the Plaintiff's Employment

These defendants argue that they cannot be held liable for the allegeddiscriminatory termination of plaintiff's employment because they neitherhad the authority nor made the decision to discharge the plaintiff.UMMC, they contend, made the decision to terminate plaintiff'semployment.

Orell alleges in her complaint that Corbett served as Interim Directorto oversee the Materials Management Department. She also alleges thatCorbett had no power to terminate her under his contract with UMMC.Nonetheless, Orell states in the complaint that Corbett wrote the letterof termination dated December 30, 1997 by which she was discharged fromher employment with UMMC. Construed in the light most favorable to theplaintiff, such facts sufficiently allege that Corbett made the decisionto terminate plaintiff's employment. See Garita Hotel Ltd. Partnership,958 f.2d at 17 (court must draw all reasonable inferences in theplaintiff's favor).

2. Whether ISH is Plaintiff's Employer for Purposes of the ADA or ADEA

The defendants argue that plaintiff's federal discrimination claimsagainst ISHmust be dismissed because ISH was not plaintiff's employer.

Title I of the ADA provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a). The ADA defines "covered entity" as "anemployer, employment agency, labor organization, or jointlabor-management committee." 42 U.S.C. § 12111(2). That statutedefines "discrimination" to include:

not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

42 U.S.C. § 12112(5)(A).

The ADEA makes it unlawful for an employer:

to fail or refuse to hire or 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 age.

29 U.S.C. § 623(a).

There is no significant distinction between the definition of"employer" in the statutes. The ADA defines "employer" as:

A person engaged in industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

42 U.S.C. § 2000e(b). The ADEA defines "employer" in identicalterms except that it requires that the employer have at least 20employees, See 29 U.S.C. § 630.

Although the above statutory definitions do not provide much guidanceon the issue of who will be considered an employer, the First CircuitCourt of Appeals, along with other circuit courts, has interpreted theterm "employer" broadly in order to further the congressional objectiveof affording equality of employment opportunity. Carparts, 37 F.3d at16; Rivas, et al. v. Federacion de Asociaciones Pecuarias de PuertoRico, 929 F.2d 814, 820 (1st Cir. 1991); Baranek v. Kelly, et al.,630 F. Supp. 1107, 1113 (D. Mass. 1986); United States v. New York StateDepartment of Motor Vehicles, et al., 82 F. Supp.2d 42, 46 (E.D.N.Y.2000); Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir.1973). The First Circuit has recognized that where an entity, bycontracting with an employer, acquires control over the employmentconditions of the employer's workers, that entity becomes liable as a"joint employer" under anti-discrimination law. Rivas, 929 F.2d at 820n. 17.

Although ISH is not plaintiff's employer within the conventionalmeaning of the term, it may be considered her employer if it exercisescontrol over an important aspect of her employment. Carparts DistributionCenter, Inc., 37 F.3d at 17; New York State Dept. of Motor Vehicles, 82F. Supp. 2d at 46 (defendant may be liable under Title VII if itinterferes with plaintiff's employment opportunities with a third partyand the defendant controls access to those opportunities). Factors to beconsidered in determining whether an entity is a joint employer arewhether it: 1) supervises the employee's day-to-day activities, 2) hasthe authority to hire or fireemployees, 3) promulgates work rules andconditions of employment, 4) controls work assignments and 5) issuesoperating instructions. Rivas, 929 F.2d at 820.

ISH is a consulting firm and contracted with UMMC to provide consultingservices. The facts alleged in the complaint indicate that ISH did notsupervise plaintiff's day to day activities, hire or fire employees,control work assignments, issue operating instructions or conduct anyother activities commonly performed by employers. ISH was not,therefore, plaintiff's joint employer.

The only relationship between the plaintiff and ISH was the appointmentof Corbett, an employee of ISH, as Interim Director of the MaterialsManagement Department of UMMC. As the title of the position indicates, itis supervisory and, from the facts alleged in the complaint, Corbett hadauthority to fire Orell. The Court must, therefore, determine whether ISHcan be vicariously liable for Corbett's alleged discrimination underprinciples of agency law.

The Supreme Court has established that an employer is vicariouslyliable under Title VII for the discriminatory acts of its supervisors ifthose acts result in a tangible employment action. BurlingtonIndustries, Inc. v. Ellerth, 524 U.S. 742, 762-63 (1998); Faragher v.City of Boca Raton, 524 U.S. 775, 790 (1998). Such vicarious liability isfound where there is a tangible employment action because the supervisorcould not have taken such action absent his or her agency relationshipwith the employer. Ellerth, 524 U.S. at 761-62.

The decisions in Ellerth and Faragher were based on principles ofagency law. Ellerth, 524 U.S. at 754 (agency law applies because TitleVII defines "employer" to include agents). Because the term "employer" isalso defined under the ADA and the ADEA to include "agents," principlesof agency law control whether an employer is liable for thediscriminatory acts of its supervisor. See EEOC v. Wal-Mart Stores,Inc., 187 F.3d 1241, 1247 (10th Cir. 1999) (applying vicarious liabilityin disability discrimination case brought under ADA); Dockery v. DaytonHudson Corp., No. 97C6677, 2000 U.S. Dist. LEXIS 11190 (N.D. Ill.) (samewith respect to ADEA).

Under principles of agency law, a "master" is liable for the torts ofhis "servants committed while acting within the scope of theiremployment." Restatement (Second) of Agency § 219(1). Although thecomplaint is far from lucid, Orell appears to allege that Corbettterminated her employment and failed to promote her because of her ageand handicap. Based on those allegations, the termination of Orell'semployment was an action taken within the scope of Corbett's employment.Restatement (Second) Agency §§ 228(1)(c), 230 (conduct is withinscope of employment if it is of the kind agent was employed to performand it was "actuated, at least in part, by a purpose to serve hisemployer").

Under Section 227 of the Restatement, "a servant directed or permittedby his master to perform services for another may become the servant ofsuch other in performing the services." Factors to be considered indetermining whether one is an employee of another are the extent ofcontrol the employer has over the employee's work, whether the work isdone under the direction of the employer, the length of time for whichthe employee is employed and whether or not the parties believe they arecreating an employmentrelationship. Restatement (Second) of Agency § 220.

According to the facts alleged in the complaint, Corbett was, at allrelevant times, acting in the capacity of an employee of UMMC rather thanISH. He was contracted out by ISH to work as the Interim Director of aUMMC department. His hiring and firing decisions were made in thatcapacity and with the purpose of serving UMMC. ISH cannot, therefore, bevicariously liable for the alleged discriminatory decisions, if any, madeby Corbett as Interim Director of the Materials Management Department ofUMMC.

3. Individual Liability

Although the First Circuit Court of Appeals has declined to determinewhether individuals can be held liable under the federalanti-discrimination statutes, almost all circuits that have addressed theissue have determined that individual liability is not authorized. Seee.g. Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.1999) (ADA); Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180-181(4th Cir. 1998) (Title VII); Wathen v. General Electric Co., 115 F.3d 400,405-06 (6th Cir. 1997); Mason v. Stallings, 82 F.3d 1007, 1009 (11thCir. 1996) (ADA); Dici v. Pennsylvania, 91 F.3d 542, 551-52 (3d Cir.1996) (Title VII); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-1317 (2dCir. 1995) (Title VII); Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995)(Title VII); E.E.O.C. v. AIC Sec. Investigations, Inc., 55 F.3d 1276,1279-82 (7th Cir. 1995) (Title VII).

Most district courts in this circuit have also determined that thestatutes do not invoke individual liability. Wright v. CompUSA, Inc. etal., No. 01-11567, 2001 U.S. Dist. LEXIS 22010, *9 (D. Mass.) (claimagainst individual supervisor must be dismissed on ground that ADAprecludes individual liability); Vizcarrondo v. Board of Trustees ofUniversity of Puerto Rico, 139 F. Supp. 198, 206 (D. P.R. 2001)(dismissing claims against individual defendant on grounds that ADA, ADEAand Title VII do not permit individual liability); Ali v. University ofMassachusetts Medical Center, 140 F. Supp.2d 107, 109 (D. Mass. 2001)(same with respect to ADA); Lemire v. Silva, et al., 104 F. Supp.2d 80,92 (D. Mass. 2000) (same); Homey v. Westfield Gage Co., 95 F. Supp.2d 29,33 (D. Mass. 2000) (Title VII). On the basis of such pervasive legalprecedent, this Court finds that Defendant Paul Corbett cannot, as amatter of law, be held individually liable for discrimination under theADA or the ADEA.

B. Plaintiff's State Discrimination Claims

Plaintiff claims that ISH and Corbett discriminated against her basedon her age and handicap in violation of the MassachusettsAnti-discrimination Law, M.G.L. c. 151B § 4.

Chapter 151B § 4 makes it an unlawful practice:

[f]or an employer in the private sector, by himself or his agent, because of the age of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. . . [or] [f]or any employer, personally or through an agent, to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person.

M.G.L. c. 151B §§ 4(1B) and (16).

Similar to the federal anti-discrimination statutes, Chapter 151Bprohibitsdiscrimination by an employer or its agent. Based on the agencyprinciples discussed above, ISH cannot be vicariously liable for thealleged discrimination exercised by Corbett because, on the allegedfacts, he was not acting as an agent for ISH at all times relevant tothis case.

Unlike the federal anti-discrimination statutes, however, Chapter 151Bprovides for individual liability. Chapter 151B states that it is unlawfulfor:

any person whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or attempt to do so.

M.G.L. c. 151B § 4. Although the Massachusetts Supreme Judicial Courthas not yet established whether supervisors are subject to individualliability under that statute, the Massachusetts Appeals Court hasinterpreted it to allow for personal liability under the theory of aidingand abetting. See Beaupre v. Cliff Smith & Associates,50 Mass. App. Ct. 480, 491 (2000).

The defendants argue that Beaupre only applies in sexual harassmentcases where the defendant supervisor was personally responsible for thediscriminatory conduct but nothing in Beaupre limits its holding to casesinvolving sexual harassment. There, the Court stated that 1) the plainlanguage of the statute provides for individual liability in many of itssections and 2) imposing individual liability is consistent with themandate of M.G.L. c. 151B § 9 that the provisions of the chapter mustbe construed liberally to discourage discriminatory conduct. Id. at491-92.

Construed in the light most favorable to the plaintiff, she hassufficiently alleged that Corbett terminated her employment or was, atthe very least, involved in that decision. She further alleges that suchaction was taken on the basis of her age and disability. Such allegationsare sufficient at this stage of the proceedings to state a claim againstCorbett individually for discrimination in violation of M.G.L. c. 151B.

C. Plaintiff's "Whistleblower" Claims

In Count XVII, plaintiff alleges that the defendants violated thewhistleblower provision of the False Claims Act, 31 U.S.C. § 3730(h)("FCA"), and the Commonwealth's whistleblower statute, M.G.L. c. 149§ 185, by terminating her employment in retaliation for herdisclosing the falsification of time records by certain employees.

Defendants respond that plaintiff's claims under 31 U.S.C. § 3730(h)and M.G.L. c. 149 § 185 must be dismissed because, like theanti-discrimination statutes, the whistleblower statutes do not recognizeindividual liability and neither ISH nor Corbett were plaintiff'semployers within the meaning of that statute. Defendants cite no law insupport of their argument.

The FCA, 31 U.S.C. § 3729-31 penalizes persons who submitfraudulent bills to the government. United States v. O'Connell, et al.,890 F.2d 563, 568 (1st Cir. 1989). The whistleblower provision wasenacted "to make employees feel more secure in reporting fraud to theUnited States." Tighe v. Career Systems Development Corp.,915 F. Supp. 476, 485 (D. Mass. 1996).

By virtue of § 3730(h):

Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole.

The FCA does not define the term "employer." Unlike the federalanti-discrimination statutes, the whistleblower provision does notexplicitly extend the definition of employer to include agents of theemployer. However, the First Circuit Court of Appeals has determined thata corporation can be held vicariously liable for the fraud of its agentscommitted against the government under § 3729 of the FCA. O'Connell,890 F.2d at 568. The Court need not determine whether vicarious liabilityexists under § 3730(h) because even if it does, according to thefacts alleged in the complaint, Corbett was acting as an agent of UMMC,not ISH. The plaintiff's claim against ISH for retaliation under31 U.S.C. § 3730(h) will, therefore, be dismissed.

There is no First Circuit case law addressing the issue of whether§ 3730(h) imposes individual liability. However, other courts whichhave considered the issue have conclusively determined that suchliability cannot be imposed. See e.g., United States ex rel. Palladinov. VNA of S. N.J., Inc., 68 F. Supp.2d 455, 464 (D. N.J. 1999); Millerv. Bunce, et al., 60 F. Supp.2d 620, 624 (S.D. Tex. 1999); Mruz, et al.v. Caring, Inc., et al., 991 F. Supp. 701, 709 (D. N.J. 1998); UnitedStates ex rel. Lamar v. Burke, et al., 894 F. Supp. 1345, 1348 (E.D. Mo.1995) (analyzing issue according to Title VII precedent).

In determining that there is no individual liability under the federalwhistleblower statute, the United States District Court for the Districtof New Jersey in Mruz reasoned that because Congress provided forliability for fraud by those who are not employers under31 U.S.C. § 3729, it knew how to provide liability for non-employersif it had so intended. Id. at 709. This Court agrees with that reasoningand will, therefore, dismiss plaintiff's retaliation claim againstCorbett under 31 U.S.C. § 3730(h).

The Massachusetts counterpart to 31 U.S.C. § 3730(h)states:

An employer shall not take any retaliatory action against an employee because the employee. . . [d]iscloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer. . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law.

M.G.L. c. 149 § 185(b)(1). The statute defines "employer" as:

the commonwealth, and its agencies or subdivisions, including but not limited to, cities, towns, counties, regional school districts, or any authority, commission, board or instrumentality thereof.

M.G.L. c. 149 § 185(a)(2). The plain language of the statute doesnot support the imposition of individual liability. The definitionenumerates several entities considered to be employers within the meaningof the statute but does not contain terms suggesting an intent toestablish individual liability.

There is no Massachusetts case on point determining whether individualscan be held liable under M.G.L. c. 149 § 185. In Fisher v.Commonwealth of Massachusetts, et al., No. 01-0613, 2001 Mass. Super.LEXIS 414, the Superior Court of Massachusetts construed theapplicability of the term "employer" in § 185. In Fisher, theplaintiff state police officer brought a claim for retaliation pursuant to§ 185 against the Commonwealth, its Department of State Police andvarious officers of thatDepartment. Id. at *1. The Court dismissed theclaim against the Commonwealth on the ground that a retaliation claimunder the state whistleblower statute "can only be prosecuted againstone's employer". The Court elaborated:

Although the definition of "employer" does include the Commonwealth and any of its agencies or political subdivisions, its meaning plainly intends the action be brought against one's employer and that it did not intend to include everyone who might be considered in the chain of command.

Id. at *4 Under the Superior Court's strict interpretation of the term"employer", an individual supervisor would not be considered an employerwithin the meaning of the statute. Plaintiff's state whistleblower claimagainst Corbett will, therefore, be dismissed.

With respect to plaintiff's whistleblower claims against ISH underMassachusetts law, again, ISH was not Orell's employer and is notvicariously liable for acts of Corbett related to the instant action. Thestate law whistleblower claim against ISH will, consequently, bedismissed.

D. Breach of Contract

The complaint contains three counts labeled "Count XIV" the first twoof which allege, respectively, that Corbett and ISH breached Orell'semployment contract. Defendants seek to dismiss the breach of contractclaims because no contract existed between the plaintiff and Corbett orbetween the plaintiff and ISH. plaintiff responds that Corbett, as anauthorized agent of UMMC, breached her contract of employment when heterminated her and that she was an intended third party beneficiary ofthe contract between ISH and UMMC.

In order to state a claim for breach of contract, plaintiff must allegefacts sufficient to show that an express or implied binding agreementexisted between her and the defendants. Flattery v. Gregory, et al.,397 Mass. 143, 145 (1986); Choate, Hall & Stewart v. SCA Services, Inc.,378 Mass. 535, 543 (1979). Orell alleges that she was employed by UMMCand that ISH and UMMC entered into an agreement for consulting services.She fails, however, to identify any agreement, express or implied,between her and Corbett or between her and ISH.

Orell argues vaguely that she adequately alleges a claim for breach ofcontract against Corbett because he was an agent of UMMC. She assertsthat she began her employment with UMMC in 1971 and that Corbett washired in 1997 but her employment agreement, if any, was with UMMC, notCorbett. Her complaint contains no allegation that she had an employmentagreement with Corbett and even though Corbett may have been UMMC'sagent, he does not thereby become liable under its contracts. Restatement(Second) of Agency § 328.

A plaintiff may sue for breach of a contract to which she is not aparty where she is a third-party beneficiary of that contract. Monahan v.Town of Methuen, 408 Mass. 381, 391 (1990); Flattery, 397 Mass. at 148;Rae v. Air-Speed, Inc., et al., 386 Mass. 187, 194 (1982). A third partyis an intended beneficiary of a contract if:

recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties to the contract and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

Flattery, 397 Mass. at 148-49. The agreement between UMMC and ISH was forconsulting services to be provided by ISH. The alleged facts do notsupport a claim that the purpose of the contract was to benefit Orell orthat she otherwise had a right to performance of the agreement. Becauseplaintiff has failed to allege privity of contract between her and thedefendants or that she was a third-party beneficiary to the contractbetween UMMC and ISH, her breach of contract claims against Corbett andISH will be dismissed.

Furthermore, because a claim for breach of the covenant of good faithand fair dealing exists only where there is an enforceable contractbetween the parties, see Bateman v. Federal Deposit Insurance Corp.,112 F. Supp.2d 89, 97 (D. Mass. 2000), that claim against Corbett and ISH(Count XIII) will also be dismissed.

E. Intentional Interference with Contractual Relations

In the third "Count XIV", plaintiff alleges that defendant Corbettintentionally interfered with plaintiff's employment contract with UMMCby terminating her. Corbett seeks to dismiss that claim on the groundthat he did not participate in the decision to terminate plaintiff fromher employment.

In order to state a claim for intentional interference with contractualrelations, the plaintiff must allege that 1) she had a contract with athird party, 2) the defendant knowingly induced the third party to breakthat contract, 3) the defendant's interference, in addition to beingintentional, was improper in motive or means, and 4) she was harmed bythe defendant's actions. Melo-Tone Vending, Inc. v. Sherry, Inc.,39 Mass. App. Ct. 315, 318 (1995).

Plaintiff alleges that she had an employment contract with UMMC andthat Corbett wrote the letter terminating her from her employment. Shealso alleges she suffered economic damages as a result of her discharge.A determination of the defendant's motive and state of mind is prematureat this stage of the litigation, and, because all reasonable inferencesare drawn in favor of the plaintiff, she has adequately met her burden ofstating a claim for intentional interference with contractual relations.

F. Wrongful Discharge

A plaintiff has a cause of action in tort for wrongful discharge whenshe is an at-will employee and is discharged in violation of publicpolicy. Acciavatti v. Professional Services Group, Inc., 982 F. Supp. 69,74 (D. Mass. 1997); Folmsbee v. Tech Tool Grinding & Supply, Inc.,417 Mass. 388, 394 (1994). Only an at-will employee can avail herself ofa cause of action for wrongful discharge, Acciavatti, 982 F. Supp. at74, and plaintiff does not specifically allege that she was an at-willemployee. In fact, she alleges that her employment was governed by anemployment contract. Because the complaint is ambiguous, however, thisCourt will afford plaintiff the benefit of the doubt and presume thatOrell has alleged that she was an at-will employee.

Again, because ISH was not plaintiff's employer, her claim against itfor wrongful termination will also be dismissed. Acciavatti v.Professional Services Group, Inc., 982 F. Supp. 69, 74 (D. Mass. 1997)(plaintiff must be an at-will employee of defendant to maintain cause ofaction for wrongful discharge).

Under principles of agency law, an agent who commits a tort is notrelieved from liability because he acted at the command or on account ofthe principal. Restatement (Second) of Agency § 343; RefrigerationDiscount Corp. v. Catino, 330 Mass. 230, 235 (1953) (citing Kennedy v.Shain, et al., 288 Mass. 458, 459 (1934)). If it is determined thatCorbett was acting as UMMC's agent, Corbett may be liable to plaintifffor the tort of wrongful discharge. Construed in the light most favorableto the plaintiff, her allegations are sufficient to state a claim forwrongful discharge against Corbett.

G. Defamation

Plaintiff alleges in Count XVI that Corbett's December 30, 1997termination letter was defamatory. Defendants seek to dismiss Count XVIon the ground that they had a conditional privilege to publish theletter.

Defamation is the publication, without privilege, of a false statementof fact which causes damage to the plaintiff's reputation. Correllas v.Viveiros, 410 Mass. 314, 319 (1991). Plaintiff claims that the letter oftermination written by Corbett and sent to her was defamatory. However,she fails to allege that the letter was published to or seen by anyoneother than herself. Her defamation claim against all defendants will,consequently, be dismissed. Khalil v. Museum of Science, No. 97- 01811,2000 Mass. Super. LEXIS 386, *9-10 (defamatory matter must have beencommunicated to someone other than the plaintiff).

Because Orell has failed to state a claim for defamation, it isunnecessary to consider whether she has alleged facts sufficient tosupport a claim that defendants abused their privilege to publishdefamatory information reasonably necessary to serve a legitimatebusiness interest. See Bratt v. International Business Machines Corp., etal., 392 Mass. 508, 509 (1984) (An employer has a conditional privilegeto publish defamatory statements about an employee when "the publicationis reasonably necessary to serve the employer's legitimate interest inthe fitness of an employee to perform his or her job."); McCone, et al.v. New England Telephone and Telegraph Co., 393 Mass. 231, 235 (1984)(The privilege is lost through unnecessary, unreasonable or excessivepublication upon proof that the employer published the defamatoryinformation recklessly).

H. Intentional Infliction of Emotional Distress

Plaintiff alleges in Count XV that the defendants' actions of defamingher and discriminating against her on the basis of her disabilityconstituted extreme and outrageous behavior and were committed with theintent to cause her extreme emotional distress. Under Massachusetts law,a plaintiff alleging intentional infliction of emotional distress mustshow:

(1) that the [defendants] intended to inflict emotional distress or that they knew or should have known that emotional distress was the likely result of their conduct;

(2) that the conduct was extreme and outrageous;

(3) that the actions of the defendants were the cause of the plaintiff's distress; and

(4) that the emotional distress sustained by the plaintiff was severe.

Haddad v. Gonzalez, 410 Mass. 855, 871 (1991). Conduct is extreme andoutrageous if it goes "beyond all possible bounds of decency and isutterlyintolerable in a civilized community." Agis v. Howard JohnsonCo., 371 Mass. 140, 145 (1979). It is for the court to decide whether thedefendant's conduct may be reasonably regarded as so extreme as to permitrecovery. See Caputo v. Boston Edison Co., 924 F.2d 11, 14 (1st Cir.1991).

In this case, the plaintiff identifies as outrageous conductdefendant's 1) termination of her employment by means of falseaccusations, 2) mischaracterization of her opinions, 3) maliciousdefamation and 4) disability discrimination. Insofar as plaintiff'sallegations of disability discrimination form the basis of herintentional infliction of emotional distress claim, she is precluded fromrecovering separate damages. Kilroy v. Husson College, 959 F. Supp. 22,23 (D. Me. 1997) (plaintiff cannot recover separate emotional damages foremployment discrimination that is covered by the ADA); Stewart v. UnitedStates, No. 99-4058, 2000 U.S. Dist. LEXIS 17151, *48-50 (N.D. Cal.)(same with respect to Title VII).

Even if plaintiff's claim for intentional infliction of emotionaldistress based upon her allegations of disability discrimination were notpreempted, the alleged facts supporting her claim of disability do notrise to the level of behavior that is utterly intolerable in a civilizedcommunity. Plaintiff claims that defendants failed to make reasonableaccommodations for her disability. Such conduct does not satisfy thestringent standard of a claim for intentional infliction of emotionaldistress. See e.g. Ramsey v. United Airlines, Inc., No. 98-7518, 2000U.S. Dist. LEXIS, *32-33 (N.D. Ill.) (failure of employer to transferemployee in order to accommodate his disability does not rise to thelevel of extreme and outrageous behavior); Garrett v. Autozone, Inc.,71 F. Supp.2d 617, 622 (E.D. Tex. 1999) (termination based on disabilitydid not support claim for intentional infliction of emotional distress);Parker v. Noble Roman's, Inc., No. 96-0065, 1997 U.S. Dist. LEXIS 22885,*23-24 (S.D. Ind. 1997) (failure to accommodate disability is not extremeand outrageous conduct).

The other actions cited by plaintiff likewise do not constitute extremeand outrageous conduct as that term is defined under Massachusetts law.To establish liability for intentional infliction of emotional distress,plaintiff must establish more than "tortious or even criminal intent" orthat the employer has "intended to inflict emotional distress, or eventhat [their] conduct has been characterized by malice or a degree ofaggravation." Tetrault v. Mahoney, Hawkes & Goldings, et al.,425 Mass. 456, 466 (1997) (quoting Foley v. Polaroid Corp., 400 Mass. 82,99 (1987). Assuming the facts alleged by plaintiff are true, they do notconstitute behavior that is "utterly intolerable in a civilized society."Agis, 371 Mass. at 145.

Moreover, plaintiff has failed to allege that she "suffered distress sosevere that no reasonable person could be expected to endure it." Lanev. Memorial Press, Inc., 2000 Mass. Super. LEXIS 99, *17 (2000).Plaintiff alleges in conclusory fashion that she suffered humiliation,great personal loss, loss of reputation and other economic andnon-economic damages. Those allegations are insufficient to support aclaim for extreme and severe emotional distress. See e.g. Simon, 385Mass. at 93 (plaintiff suffered distress so severe that she was unable tocare for her children and sought psychiatric counseling); see alsoBoyle, 378 Mass. at 594 (plaintiff suffered distress so severe that shehemorrhaged).

I. Infringement of Right of Free Speech

In Count X, plaintiff alleges that defendants terminated her employmentin retaliation for the exercise of her rights of free speech.

The First Amendment to the United States Constitution and Article XVIof the Massachusetts Constitution protect the rights of free speech andassembly from abridgement by the government. Columbia BroadcastingSystems, Inc. v. Democratic National Committee, 412 U.S. 94, 114 (1973);Bertulli v. First National Stores, Inc., No. 75-1202, 1979 U.S. Dist.LEXIS 9792, *5 (D. Mass.); Commonwealth v. Noffke, 376 Mass. 127, 134(1978). Defendants argue that plaintiff's claims must be dismissedbecause the First Amendment and Article XVI apply only to governmentaction. The Court is aware that plaintiff's claims are also faciallydeficient for an entirely different reason.

Plaintiff's constitutional claims cannot be brought directly under theFirst Amendment to the U.S. Constitution or Article XVI of theMassachusetts Constitution. To bring a claim of a violation of theformer, a plaintiff must allege a cause of action under42 U.S.C. § 1983. Diaz v. City of Fitchburg, No. 94- 40157, 1997U.S. Dist. LEXIS 2353, *32-33 (D. Mass.). To bring a claim of a violationunder the Massachusetts Constitution, plaintiff must allege a cause ofaction under the Massachusetts Civil Rights Act, M.G.L. c. 12 §§ 11Hand 11I. Grubba v. Bay State Abrasives, Division of Dresser Industries,Inc., 803 F.2d 746, 748 (1st Cir. 1986); Martino v. Hogan, et al.,37 Mass. App. Ct. 710, 711 (1994). Plaintiff has done neither and herfederal and state constitutional claims in Count X will, therefore, bedismissed as against all defendants.

J. Retaliation

Orell's retaliation claim (Count XI) is confusing and unclear. Shealleges that the adverse employment action by defendants was conducted inretaliation for the exercise of her free speech rights. As explainedabove, to the extent plaintiff claims a violation of her rights under theFirst Amendment and Article XVI, she must allege a cause of action under42 U.S.C. § 1983 and M.G.L. c. 12 §§ 11H and 11I, respectively,which she has not done.

She also alleges in her retaliation claim that defendants deprived herof her rights under M.G.L. c. 151B and Title VII. Because plaintiff makesno allegation that she was discriminated against based on her race, sex,national origin, color or religion, her retaliation claim, insofar as itis brought under Title VII, will be dismissed.

Plaintiff may maintain a cause of action for discriminatory retaliationbased on age and/or disability under M.G.L. c. 151B § 4 if she showsthat 1) she reasonably and in good faith believed her employer wasengaged in wrongful discrimination, 2) she acted reasonably in responseto her belief, and 3) her employer's desire to retaliate against her wasa motivating factor in deciding whether to take an adverse employmentaction. Tate v. Dept. of Mental Health, 419 Mass. 356 (1995). She has notyet stated such a cause but her pending claim for retaliation will bedismissed without prejudice and with leave to file an amended claim forretaliation if desired.


For the reasons set forth in the Memorandum above:

1) the motion of defendant ISH to dismiss (Docket No. 4) is ALLOWED in its entirety;

2) the motion of defendant Paul Corbett to dismiss (Docket No. 4) is, with respect to Counts I, II, III, VI, VII, VIII, X, XIII, XIV (breach of contract), XIV (breach of contract), XV, XVI, XVII and XVIII, ALLOWED, and is otherwise DENIED;

3) all claims for money damages against Paul Corbett in his official capacity are DISMISSED;

4) Count XI is DISMISSED without prejudice and with leave to amend within 30 days of the date of this order; and

5) Counts II, VI, X, XV, XVI and XVIII against defendant, UMMC, are DISMISSED sua sponte.

So ordered.

1. Although defendant UMMC has not filed a motion to dismiss, theCourt notes that the Eleventh Amendment bars plaintiff's claims for moneydamages against it. Furthermore, her claims against the remainingindividual defendants are barred to the extent she seeks damages againstthem in their official capacities.

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