Gregg v. Northeastern University

• Court: District Court, D. Massachusetts
• Decided: April 20, 2022
• Docket: 1:21-cv-11495
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

__________________________________________ SIMONE GREGG, ) ) Plaintiff, ) ) CIVIL ACTION v. ) NO. 21-11495-JGD ) NORTHEASTERN UNIVERSITY, PAUL ZERNICKE, ) MARYELLEN SHEA, DIANA FITZGERALD, ) ALEXIS HARDING AND BRIGID HART-MOLLOY, ) ) Defendants. ) __________________________________________)

MEMORANDUM OF DECISION AND ORDER ON MOTION TO DISMISS COMPLAINT AGAINST DEFENDANTS DIANA FITZGERALD AND BRIGID HART-MOLLOY PURSUANT TO FED. R. CIV. P. 12(b)(6)

April 20, 2022

DEIN, U.S.M.J.

I. INTRODUCTION

The plaintiff, Simone Gregg (“Gregg” or the “Plaintiff”), was employed as a Development Associate in the Development Office of the defendant Northeastern University (“Northeastern” or “the University”) from October 2017 until her resignation in August 2019. She has brought suit1 alleging interference with her rights under the Family and Medical Leave Act, 29 U.S.C §§ 2614 et seq. (“FMLA”), and retaliation for exercising her FMLA rights, against Northeastern; her direct supervisor, Paul Zernicke (“Zernicke”); members of Northeastern’s Human Resources (“HR”) Department, Maryellen Shea (“Shea”) and Alexis Harding (“Harding”); and members of

1 Suit was originally brought in state court and was removed to this court by the Defendants. The Complaint (“Compl.”) is found at Docket No. 1-1. Northeastern’s Office of University Equity and Compliance (“OUEC”), Diana Fitzgerald (“Fitzgerald”) and Brigid Hart-Molloy (“Hart-Molloy”), who investigated her complaints (Compl. at Counts One & Two). She has also alleged that defendants Zernicke, Harding, Fitzgerald, and

Shea are liable for intentional interference with contractual/advantageous relations, to wit, her employment with Northeastern (Compl. at Count Three). This matter is before the court on the “Defendants Diana Fitzgerald and Brigid Hart-Molloy’s Motion to Dismiss” brought pursuant to Fed. R. Civ. P. 12(b)(6). (Docket No. 19). Fitzgerald and Hart-Molloy have moved to dismiss Counts One and Two on the basis that, as investigators with

OUEC, they did not have “sufficient control” over the plaintiff to be considered employers under the FMLA, and therefore cannot be held personally liable for violating that Act. Additionally, Fitzgerald has moved to dismiss Count Three for failure to state a claim of intentional interference because the facts alleged do not support a reasonable inference that Fitzgerald intentionally interfered with the Plaintiff’s employment. In response, the Plaintiff argues that it is reasonable to infer that Fitzgerald and Hart-Molloy serve in positions of “high

authority” and therefore can be held individually liable for FMLA violations and interference with contractual/advantageous relations. She further argues that the allegations of the Complaint are sufficient to state a claim. After consideration of the parties’ written submissions, oral argument, and for the reasons detailed below, Fitzgerald’s and Hart-Molloy’s motion to dismiss is ALLOWED, except that the Complaint will be dismissed without prejudice. 2

2 While the court is somewhat skeptical that the Plaintiff can state a claim of individual liability against these Defendants, the record is not conclusive on this point. Consequently, the Plaintiff will be given the opportunity to seek permission to amend her Complaint if she believes the facts so warrant. See In re Fresenius II. STATEMENT OF FACTS The Plaintiff began working at Northeastern University as a Development Associate in the Development Office in October 2017. (Compl. ¶ 10) During her employment, the Plaintiff

required both long-term and intermittent leave under the FMLA due to a chronic medical condition. (Id. ¶ 11). The Plaintiff alleges that her supervisor, Zernicke, interfered with her ability to take FMLA leave, retaliated against her for using FMLA leave time, and interfered with her employment with Northeastern by subjecting her to unfair treatment, depriving her of professional development opportunities, interfering with her pay, and inappropriately

questioning her regarding her private medical condition, among other allegations. (Id. ¶¶ 172, 175, 179). During this time the Plaintiff attempted to reach out to HR for assistance with FMLA matters and her ongoing conflict with Zernicke. (Id. ¶¶ 13–15, 39–40, 43–44, 58–62, 64, 71–72, 76–80, 95–96, 101, 104–107, 109, 117, 127, 132–134, 162). This included communicating with HR Benefits Specialist Shea, and HR Business Partner Harding, whose actions ultimately did not satisfy Gregg’s concerns. (Id.). The Plaintiff alleges that during this time, instead of helping her,

Harding and Shea interfered with her rights under the FMLA, retaliated against the Plaintiff for her use of FMLA leave, and intentionally interfered with the Plaintiff’s employment at Northeastern. (Id. ¶¶ 172, 175, 179). After the Plaintiff felt she had exhausted her options to remedy the situation with Shea and Harding, the Plaintiff contacted OUEC on April 26 and 29, 2019. (Id. ¶ 115). Through the help

Granuflo/Naturalyte Dialysate Prod. Liab. Litig., 76 F. Supp. 3d 279, 288 (D. Mass. 2015) (“Dismissal without prejudice is appropriate where the infirmity that prevents the complaint from proceeding is remediable, and it is possible for the plaintiff to re-file the complaint in a manner that would permit the alleged claims to move forward.”). of Mark Jannoni, the Plaintiff sought to commence an internal investigation of Zernicke’s alleged misconduct, as well as the actions of Shea and Harding. (Id.). Hart-Molloy was assigned to investigate the Plaintiff’s claims and began an informal investigation. (Id. ¶¶ 115–116).

Hart-Molloy sent a summary of the investigation to the Plaintiff on May 23, 2019, after concluding the informal investigation. (Id. ¶¶ 115–125). The Plaintiff disagreed with Hart- Molloy’s findings and objected to the fact that Hart-Molloy had not created an agreement which would govern future conduct between the Plaintiff and Zernicke, although such an agreement had been discussed with Gregg previously. (Id. ¶ 125). Gregg further alleges that

Hart-Molloy was not receptive to her proposed recommendations to improve relations among the Plaintiff, Zernicke, and HR. (Id. ¶¶ 121, 125). In June 2019, the Plaintiff sought the help of OUEC again regarding her conflict with Zernicke and HR, and requested a new investigator be assigned to her. (Id. ¶ 149). The Plaintiff included new concerns in her request, including that Zernicke had given the Plaintiff a negative reference for another position that the Plaintiff had applied for at Northeastern, and that an

anonymous previous employee of Zernicke allegedly was willing come forward to speak to the investigator. (Id. ¶¶ 142–146, 149). The formal investigation was assigned to Fitzgerald who communicated with Gregg and others about Gregg’s conflicts with Zernicke. (Id. ¶¶ 151, 153). The investigation concluded on August 8, 2019, with Fitzgerald finding no fault with Zernicke’s conduct or treatment of the Plaintiff, nor any violation of the Plaintiff’s FMLA rights by Zernicke or HR. (Id. ¶ 165). The Plaintiff disagreed with the findings of the investigation, but her request

to reopen the investigation was denied by Fitzgerald. (Id.). The Plaintiff claims that Zernicke’s retaliation against her continued to escalate while her health deteriorated, and she was driven to resign from her position at Northeastern on August 8, 2019. (Id. ¶ 166).

Additional facts will be provided below as appropriate. III. DISCUSSION

A. Standard of Review

Defendants Fitzgerald and Hart-Molloy have moved to dismiss the claims against them with prejudice, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state claim. (Docket No. 19). To determine whether a claim will survive a motion to dismiss under 12(b)(6), the court must accept all well-plead factual content in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). The complaint must allege enough factual content to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)). The court must be able to “draw the reasonable inference that the defendant is liable for the misconduct alleged,” and the inference drawn must be sufficient to move a claim

“across the line from conceivable to plausible.” Id. at 678, 680, 129 S. Ct. at 1949-51. The court may use its judicial experience and common sense to draw reasonable inferences. Id. at 679, 129 S. Ct. at 1950. For the reasons stated below, the court finds that the allegations against defendants Fitzgerald and Hart-Molloy are not sufficient to create a plausible inference that these

defendants were employers of the Plaintiff under the FMLA, or that Fitzgerald otherwise intentionally interfered with Gregg’s employment with Northeastern. Therefore, all counts against Fitzgerald and Hart-Molloy will be dismissed. B. Count One: FMLA Interference

In Count One of the Complaint, the Plaintiff alleges that Fitzgerald and Hart-Molloy interfered with her ability to receive the FMLA leave to which the Plaintiff was entitled. To establish a prima facie case of interference with FMLA rights, the employee must show (1) “’she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave her employer notice of her intention to take

leave; and (5) her employer denied her FMLA benefits to which she was entitled.’” Favreau v. Liberty Mutual, Inc., 451 F. Supp. 3d 150, 170 (D. Mass. 2020) (quoting Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 722 n.8 (1st Cir. 2014) (additional citations omitted)). “The FMLA applies only to ‘employers,’ which includes ‘any person who acts, directly or indirectly, in the interest of an employer to any of the employees.’” Boadi v. Center for Human Dev., Inc., 239 F. Supp. 3d 333, 348 (D. Mass. 2017) (quoting 29 U.S.C. §§

2611(4)(A)(ii)(I), 2615(a)(1)–(2)). While the issue has not been directly addressed by the First Circuit, the “national trend” is toward permitting individual liability under the FMLA. Id. and cases cited. Assuming, without deciding, that individual defendants can be employers under the statute, the instant Complaint fails to allege sufficient facts to include Fitzgerald and Hart- Molloy in this definition. “Courts in this circuit that have discussed the question ‘most commonly have applied the

parallel Fair Labor Standards Act (“FLSA”) test’ for individual liability” because both the FLSA and the FMLA similarly define “employer.” Id. (quoting Brunelle v. Cytec Plastics, Inc., 225 F. Supp. 2d 67, 82 (D. Me. 2002)). Thus, the court is to look at “the ‘economic reality’ of the totality of the circumstances bearing on whether the putative employee is economically dependent on the alleged employer.” Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668, 675

(1st Cir. 1998). See Brunelle, 225 F. Supp. 2d at 82 (using the Baystate FLSA framework to determine whether the defendant qualified as the employer under the FMLA). The court is directed to look “in particular to four factors: whether the alleged employer (1) had the power to hire and fire the employee[]; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4)

maintained employment records.” Baystate, 163 F.3d at 675. The court may also consider “whether the individual had personal responsibility for making decisions that contributed to the alleged violation.” Brunelle, 225 F. Supp. 2d at 82. “While it does not appear that all of these factors need to be present in order to find individual liability, whether or not the supervisor exerted some control over the employee’s position and contributed to the FMLA violation are the factors that carry the most weight.” Boadi, 239 F. Supp. 3d at 348.

There are no allegations in the Complaint which describe the job responsibilities of defendants Fitzgerald and Hart-Molloy, and none which indicate that these defendants had actual control over the Plaintiff’s employment. Rather, Gregg asks this court to engage in rank speculation, and “infer” that OUEC investigators, by virtue of their positions, have wide-ranging, unfettered authority over virtually every aspect of the terms of employment for the employees at the University. Thus, the Plaintiff argues:

Because both defendants worked in investigative roles in reviewing employee complaints about working conditions, it can be reasonably inferred that they each had the power to hire and fire employees as well as have roles in supervising and controlling employees’ work schedules and/or employees’ conditions of employment. This is especially true here where both Defendants Molloy and Fitzgerald were charged with investigating the Plaintiff’s complaints concerning Defendant Zernicke’s interference with her use of FMLA leave and his alteration of the terms and conditions of her employment. It also can be reasonably inferred that the Defendants’ responsibilities also included roles in determining employees’ rate of pay and maintaining employee personnel records as their investigation of the Plaintiff’s concerns implicated the reduction of her pay as well as a review of her personnel records.

Pl. Opp. to Mot. to Dismiss (Docket No. 26) at 7-8. As an initial matter, the Complaint does not include “factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (additional citations omitted). There are no facts alleged which would indicate that Fitzgerald or Hart-Molloy had the authority attributed to them by the Plaintiff. Moreover, the inferences that the Plaintiff has asked this Court to draw, based solely on the defendants’ responsibility for investigations by OUEC, are not “plausible” and the Court is being asked to engage in “mere conjecture[.]” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (additional citations omitted). It is not a logical inference that an employee tasked only with investigating complaints would have managerial responsibilities over employees working in different areas of the University. The Plaintiff, having failed to allege facts from which this court can infer that Fitzgerald and Hart-Molloy exercised control over the Plaintiff’s employment, has failed to state a claim against them for a violation of the FMLA.3

3 The court also notes but does not rely on the fact that the Plaintiff was, in fact, granted the FMLA leave she requested, making it unclear what conduct of these Defendants the Plaintiff is challenging in Count One. C. Count Two: FMLA Retaliation

“[T]he FMLA forbids an employer from retaliating against an employee for exercising her FMLA rights.” Carrero-Ojeda, 755 F.3d at 719. “To make out a prima facie case of FMLA retaliation, an employee must show: (1) she availed herself of a protected FMLA right; (2) she was adversely affected by an employment decision; and (3) there was a causal connection between her protected conduct and the adverse employment action.” Id. (internal punctuation and citation omitted). In addition, unlike an interference claim, “a retaliation claim requires an allegation (and, ultimately, proof) of a retaliatory motive on the part of the employer[.]”

Chacon v. Brigham & Women’s Hosp., 99 F.Supp.3d 207, 214 (D. Mass. 2015). In Count Two, the Plaintiff seeks to hold Fitzgerald and Hart-Molloy liable for retaliation under the FMLA. For the reasons detailed above, however, the FMLA applies only to “employers” and Gregg has failed to allege sufficient facts to hold these individual defendants personally liable as her “employer” under the statute. Therefore, the motion to dismiss Count Two is allowed.4 D. Count Three: Intentional Interference with Contractual/Advantageous Relations

In Count Three the Plaintiff alleges Fitzgerald intentionally interfered with her employment at Northeastern. “To make a successful claim for intentional interference with advantageous relations, a plaintiff must prove that (1) [she] had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant’s interference with the

4 Nothing herein should be interpreted as indicating that the Complaint otherwise states a claim of retaliation against Fitzgerald and Hart-Molloy. For example, but without limitation, there are no allegations from which the factfinder can infer that Fitzgerald or Hart-Molloy acted with a retaliatory motive in connection with their determination that Gregg had failed to assert valid claims against Zernicke, Hardy or Shea. See Chacon, 99 F. Supp. 3d at 214. relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.” Dobelle v. Flynn, 12 F. Supp. 3d 274, 296 (D. Mass. 2014) (quoting Blackstone v. Cashman, 448 Mass. 255, 260, 860 N.E.2d 7, 12-13 (2007));

see also Draghetti v. Chmielewski, 416 Mass. 808, 816, 626 N.E.2d 862, 868 (1994) (similar elements for claim of tortious interference with contractual relations). In the employment context, where “the plaintiff sues an official of the employer, [she] must satisfy an additional element: that the supervisor acted with ‘actual malice.’” Eaton v. Town of Townsend, Civil No. 18-11824-LTS, 2022 WL 952189, *24 (D. Mass. March 30, 2022) (quoting Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 75 (1st Cir. 2001)).5 “Proof of actual malice requires more than

a showing of mere hostility.” Id. (citation omitted) “To meet this demanding standard, [the Plaintiff] must ‘demonstrate that spite or malevolence, i.e., a purpose unrelated to any legitimate corporate interest, was the controlling factor’” in engaging in the challenged conduct. Id. (quoting Alba v. Sampson, 44 Mass. App. Ct. 311, 315, 690 N.E.2d 1240, 1243 (1998)) Moreover, “[t]o be reasonable, an inference of malice must be based upon

probabilities rather than mere possibilities.” Alba, 44 Mass. App. Ct. at 315, 690 N.E.2d at 1243. In the instant case, the Plaintiff relies on the proposition that “the elements underlying a claim for unlawful retaliation may be used to show malice when a tortious interference claim is brought against a supervisor in a loss-of-employment case.” Zimmerman, 262 F.3d at 77. Here, however, Gregg has not alleged sufficient facts to establish that Fitzgerald acted with

5 Massachusetts requires proof of malice in order “to protect a corporate official’s freedom of action.” Alba v. Sampson, 44 Mass. App. Ct. 311, 314, 690 N.E.2d 1240, 1243 (1998). “The court adopted this limitation to allay a supervisor’s fear of personal liability when the occasion arises for that supervisor to make an adverse employment decision on behalf of the employer.” Zimmerman, 262 F.3d at 76. retaliatory motive. See note 4, supra. All that is alleged in the Complaint is that Fitzgerald was an OUEC Investigator who was assigned to conduct a formal investigation of Gregg’s complaints (Compl. ¶ 151), that Gregg informed Fitzgerald about her negative interactions with Zernicke

(id. ¶ 153), that Fitzgerald’s findings at the conclusion of the formal investigation did not find any fault with Zernicke’s conduct or wrongdoing on the part of HR (id. ¶ 165), and that Fitzgerald refused to reopen the case when Gregg objected. (Id.). Allegations of “negligent or improper handling” of grievances are insufficient to state a claim of wrongful interference. Ruffino v. State Street Bank & Trust Co., 908 F. Supp. 1019, 1051 (D. Mass. 1995). In the

absence of any allegation to suggest “that [Fitzgerald] intentionally set out to cause a rupture in [Gregg’s] ongoing relationship with [Northeastern],” or any other facts to support a finding of malice, the claim of tortious interference against Fitzgerald must be dismissed. Id. IV. CONCLUSION For all the reasons detailed herein, “Defendants Fitzgerald and Brigid Hart-Molloy’s Motion to Dismiss” (Docket No. 19) is ALLOWED. The Complaint is dismissed without prejudice.

/ s / Judith Gail Dein Judith Gail Dein United States Magistrate Judge