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Serin DERIN a.k.a. Zeynep Seren Derin, Plaintiff, v. STAVROS CENTER FOR INDEPENDENT LIVING, INC., Defendant.
MEMORANDUM AND ORDER REGARDING DEFENDANT'S PARTIAL MOTION TO DISMISS
(Dkt. No. 8)
Plaintiff, Seren Derin, brings this employment discrimination and invasion of privacy action against her former employer, Stavros Center for Independent Living, Inc., an independent living facility dedicated to aiding disabled individuals. Plaintiff is a Turkish-born, seventy-six-year-old Muslim woman with paraplegia. In addition to being employed by Defendant, Plaintiff was also a client, receiving services from Defendant related to her paraplegia. On June 2, 2020, Defendant terminated Plaintiff, an employee of thirty-eight years. Plaintiff claims that following her termination, she was replaced by younger, non-Muslim, non-disabled, American-born, white individuals.
Before the Court is Defendant's Motion to Dismiss Counts III, IV, and V. Defendant asserts Plaintiff did not properly exhaust the claims in Counts III and IV and they should be dismissed for lack of jurisdiction and failure to state a claim upon which relief may be granted. As to Count V, Defendant argues Plaintiff has failed to state a claim upon which relief may be granted because she voluntarily provided her medical information to Defendant outside of the employment context. For the reasons discussed below, this Court denies Defendant's Motion to Dismiss Counts III, IV, and V.
A. Plaintiff's Employment with Defendant
Defendant first hired Plaintiff in 1982 as a receptionist and Plaintiff eventually became the organization's Chief Financial Officer (“CFO”). (Compl., Dkt. No. 1, at ¶¶ 11, 14.) Around 1999, Plaintiff was one of the founders of Defendant's Fiscal Intermediary Program (“FI Program”), a program serving upwards of 9,000 consumers. (Id. at ¶¶ 15, 16.) Plaintiff stepped down from her position as CFO in 2015 in order to work shorter weeks. (Id. at ¶ 22.) Thereafter, Plaintiff worked as the Contracts Manager for the FI Program. (Id. at ¶ 23.) In recent years, Plaintiff's vision has begun to decline. (Id. ¶ 24.) Specifically, Plaintiff was diagnosed with age-related macular degeneration and in 2018 she had surgery for two cataracts. (Id. at ¶¶ 24-26.) Due to her visual impairments, Plaintiff benefits from reading larger than standard type and using an extra-large computer monitor. (Id. at ¶ 27.) In 2019, Angeline Ramirez became Defendant's Executive Director. (Id. at ¶ 28.) At no time did Ramirez or anyone in Defendant's leadership express concern with Plaintiff's job performance. (Id. at ¶¶ 29-30.)
In February of 2020, during the early days of the COVID-19 pandemic, Plaintiff asked to work remotely because she was concerned that her age and paraplegia made her particularly at risk for serious complications from COVID-19. (Id. at ¶¶ 34-36.) Plaintiff explained her specific concerns to Ramirez and began working remotely during the last week of February. (Id. at ¶ 40.) Plaintiff claims she worked effectively and remained in contact with coworkers via video conferences and by telephone. (Id. at ¶¶ 42, 44.)
On June 2, 2020, Plaintiff received a call from Human Resources and Ramirez informing her she was being terminated immediately. (Id. at ¶ 46.) Ramirez explained that Defendant was moving “in a new direction.” (Id. at ¶¶ 48-49.) Subsequently, Plaintiff's job duties were assigned to employees without apparent disabilities who were white, younger, U.S. born, and non-Muslim. (Id. at ¶ 52.) Following her termination, Plaintiff alleges she was blocked from sending emails to Defendant's servers from her personal email address and this interfered with the services she receives through Defendant and her ability to engage Human Resources to obtain her final pay stub or personnel file. (Id. at ¶¶ 55-57.)
Around October of 2020, Plaintiff learned that earlier in the year a coworker had accessed her health records contained in Defendant's client files. (Id. at ¶¶ 59-60.) Plaintiff alleges this coworker worked in a position that did not require access to health records contained in client files. (Id. at ¶ 61.) Furthermore, she alleges the coworker shared her private medical information with other coworkers, none of whom had a legitimate business need to know the information. (Id. at ¶ 62.)
B. Administrative Exhaustion
On October 2, 2020, Plaintiff filed a complaint (“First Charge”) with the Massachusetts Commission Against Discrimination (“MCAD”) and the U.S. Equal Employment Opportunity Commission (“EEOC”) alleging Defendant had discriminated against her based on her age and disability. (Id. at ¶ 66.) Plaintiff requested to withdraw her case from the MCAD and EEOC on December 8, 2020. (Dec. 8, 2020 Letter, Dkt. No. 9-2.) The MCAD dismissed the First Charge without prejudice as to the merits on January 19, 2021. (Jan. 19, 2021 Letter, Dkt. No. 9-3.) The EEOC provided Plaintiff written authorization to litigate the claims raised in the First Charge on February 8, 2021. (Compl. at ¶ 68.) A few weeks later, on February 26, 2021, Plaintiff filed a second complaint (“Second Charge”) with the MCAD and EEOC in which she alleged Defendant discriminated against her based on her race, national origin, and creed. (Id. at ¶ 69.) In addition, Plaintiff claimed Defendant violated the Americans with Disabilities Act (“ADA”) by making unauthorized inquiries involving Plaintiff's health information and unlawfully disclosing that information. (Id.) The Second Charge was filed with a letter requesting that the MCAD and EEOC dismiss the complaint and authorize Plaintiff to file a lawsuit. (Feb. 26, 2021 Letter, Dkt. No. 9-4, p. 2.) On March 29, 2021, the EEOC authorized Plaintiff to file suit with respect to the Second Charge. (Compl. at ¶ 71.) Then, on April 23, 2021, the MCAD authorized Plaintiff to file suit, as well. (Id. at ¶ 72.) Plaintiff filed this action on April 29, 2021, asserting claims of age discrimination (Count I), disability discrimination based on her termination (Count II), race/national origin discrimination (Count III), discrimination on the basis of religion (Count IV), disability discrimination based on disclosure of confidential medical information (Count V), and invasion of privacy (Count VI).
III. Legal Standard
When presented with a motion to dismiss for failure to state a claim, a court must accept all well-pleaded allegations as true and grant the plaintiff the benefit of all reasonable inferences. Ezra Charitable Trust v. Tyco Intern., Ltd., 466 F.3d 1, 5-6 (1st Cir. 2006). The court may also consider additional facts contained in “documents the authenticity of which are not disputed by the parties; ․ official public records; ․ documents central to plaintiffs’ claim; or ․ documents sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). If a complaint states a plausible claim for relief on its face, it will survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. A court need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. Whether a complaint asserts a plausible claim is thus fact specific, and all legal conclusions made must be supported by factual allegations. Id.
A. Race/National Origin Discrimination & Discrimination based on Religion
Defendant asserts Counts III and IV of the Complaint should be dismissed because Plaintiff failed to properly exhaust her administrative remedies before filing this action. The claims set out in Counts III and IV of the Complaint—alleging that Defendant discriminated against Plaintiff based on her race, national origin, and/or religion when it terminated her—were not included in the First Charge. Plaintiff included those claims in the second complaint filed on February 26, 2021, several weeks after she received the written notice allowing her to file suit regarding the claims set forth in the First Charge. The EEOC and MCAD both subsequently issued written notices authorizing Plaintiff to file suit with respect to the claims in the Second Charge.
Despite the written notices issued by the EEOC and MCAD, Defendant argues Plaintiff has not exhausted the claims first raised in her Second Charge because after the First Charge was dismissed, Mass. Gen. Laws ch. 151B, § 9 barred Plaintiff from bringing a subsequent complaint “on the same matter.” Defendant asserts that MCAD should not have accepted Plaintiff's Second Charge because the same facts recited in the dismissed First Charge provide the basis for the claims of race, national origin, and religious discrimination set out in the Second Charge. MCAD, however, did not share Defendant's view; it accepted Plaintiff's Second Charge and granted Plaintiff's request for immediate withdrawal to enable Plaintiff to pursue a judicial remedy. See 804 C.M.R. 1.08 (1)(b). The purpose of the prohibition in § 9 barring a party from subsequently bringing a complaint on the same matter is to ensure that a complainant obtains either a formal agency hearing or pursues a judicial action, but not both. Brunson v. Wall, 405 Mass. 446, 541 N.E.2d 338, 341-42 (1989). The submission and dismissal of the Second Charge did not conflict with that purpose.
Plaintiff withdrew her First Charge without undergoing the formal agency process and before time had expired for her to file a charge related to Defendant's decision to terminate her employment. She then identified additional, timely claims. At that point, she could either file a second charge with MCAD in order to exhaust the new claims or proceed to litigation and risk having the additional claims dismissed for failure to exhaust.1 She elected to file the Second Charge and signaled that she was not seeking to undergo the formal agency process by asking to immediately withdraw the charge. MCAD's acceptance and grant of Plaintiff's request to immediately withdraw the Second Charge demonstrates MCAD found her approach consistent with the requirements of § 9.
Nonetheless, Defendant argues this court should second-guess MCAD's actions. Defendant cites no examples of a court taking similar action or any other basis for this court to exercise such authority. On the contrary, MCAD is often granted deference once they have acted on a matter. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 750 N.E.2d 928, 938 (2001) (“We have consistently granted deference to MCAD decisions and policies.”).
Finally, even if the court were inclined to dictate to MCAD how it should carry out its administrative role, the court would not require MCAD to alter its approach. Requirements that plaintiffs exhaust administrative remedies before filing suit were not meant to undermine the broad remedial purposes of antidiscrimination statutes like Title VII and ch. 151B. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (“honor[ing] the remedial purpose of [Title VII] as a whole” by holding filing period is not jurisdictional, but rather “subject to waiver as well as tolling when equity so requires”); Mass. Gen. Laws ch. 151B, § 9. The purpose behind requiring plaintiffs to file first with the MCAD is to “provide notice to the prospective defendant and to encourage conciliation and settlement of disputes.” Fant v. New England Power Serv. Co., 239 F.3d 8, 11 (1st Cir. 2001). “[I]f plaintiffs ‘were permitted to allege one thing in the administrative charge and later allege something entirely different in a subsequent civil action,’ ” this purpose would be undermined. Davis v. Lucent Techs., 251 F.3d 227, 231 (1st Cir. 2001) (quoting Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996)). However, this concern is not pertinent to the matter at hand because, as Defendant acknowledges, the claims in Plaintiff's Second Charge were not something “entirely different,” but rather arose from the same set of factual circumstances set out in the First Charge. As Plaintiff has argued, MCAD has the authority to decide whether to allow withdrawal of a complaint to enable a plaintiff to file a civil suit. See Mass. Gen. Laws ch. 151B, § 9; 804 C.M.R. 1.04(12); 804 C.M.R. 108(1). Because the MCAD accepted Plaintiff's Second Charge, and for the reasons set forth above, Defendant's Motion to Dismiss as to Counts III and IV is denied.
B. Disclosure of Confidential Medical Information
Defendant also argues that Count V of the Complaint should be dismissed because the facts alleged by Plaintiff are not sufficient to state a violation of the ADA. In Count V of the Complaint, Plaintiff alleges Defendant made unlawful inquiries into Plaintiff's medical information and then disclosed this information without her approval. Under the ADA, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to ․ advancement, or discharge of employees, ․ and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). As defined in the statute, discrimination includes any “medical examinations and inquiries” throughout one's employment. Id. at § 12112(d). Such inquiries must be “job-related and consistent with business necessity.” Id. at § 12112(d)(4)(A). If an inquiry is made, the medical information must be maintained in separate medical files and treated as a confidential medical record. Id. at § 12112(d)(3)(B).
An inquiry need not be addressed directly to an employee or job applicant to fall within the scope of § 12112(d). Cf. Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 676 (1st Cir. 1995) (recognizing that pre-employment inquiries to third parties are permissible only to the extent the same inquiry could be made directly of the job applicant). The EEOC has also interpreted the prohibition on inquiries as extending to “indirect or surreptitious inquiries such as a search through an employee's belongings to confirm suspicions about an employee's medical condition.” U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance on Disability – Related Inquiries and Medical Examinations of Employees under the ADA, #9 (2000). On the other hand, a general inquiry made by an employer without knowledge that an employee has a health condition is not subject to the restrictions of § 12112(d)(4)(B) and an employer is not required to treat an employee's voluntary response to such an inquiry as a confidential medical record, even if it contains medical information about the employee. See, e.g., E.E.O.C. v. Thrivent Fin. for Lutherans, 700 F.3d 1044, 1052 (7th Cir. 2012). Similarly, employers do not need to treat information disclosed freely by an employee, rather than in response to an inquiry from their employer, as confidential health information. See Pouliot v. Town of Fairfield, 226 F. Supp. 2d 233, 246 (D. Me. 2002).
Defendant argues that any use or dissemination of Plaintiff's private medical information did not violate § 12112(d) because the information was not obtained through a medical examination or employment-related inquiry, but was, instead, voluntarily provided by Plaintiff. However, as Plaintiff's complaint makes clear, she provided the relevant information to Defendant as a client of its services, not within the context of her employment. The dual nature of the relationship between Plaintiff and Defendant is an important factor that distinguishes this case from others in which courts have found that employers were not required to treat information provided voluntarily as confidential health information. When the factual allegations are credited, there is a sufficient basis for finding that when Defendant accessed its client records for Plaintiff in connection with her employment, it was making an inquiry subject to the limitations and protections afforded by § 12112(d). At that time, Defendant was aware of Plaintiff's disabilities and was only permitted to make inquiries that could result in the disclosure of Plaintiffs health if there they were “job-related and consistent with business necessity.” 42 U.S.C. § 12112; see, also, Thrivent Fin., 700 F.3d at 1052. To conclude otherwise at this early stage of the litigation would be inconsistent with the prohibitions of § 12112(d) and the purposes of the ADA confidentiality requirements. The court, therefore, denies Defendant's request for dismissal of Count V.
For the reasons set forth above, the Court denies Defendant's Partial Motion to Dismiss as to Counts III, IV, and V of Plaintiff's Complaint. (Dkt. No. 8.)
It is so Ordered.
1. Had Derin proceeded directly to litigation without attempting to exhaust her additional claims, the court would likely be considering arguments about whether the scope of the investigation rule applies to the claims raised in the Second Charge. “[T]he scope of the investigation rule ․ reflects the idea ‘that the scope of a civil action is not determined by the specific language of the charge filed with the agency, but rather, may encompass acts of discrimination which the MCAD investigation could reasonably be expected to uncover.’ ” Davis v. Lucent Techs., 251 F.3d 227, 233 (1st Cir. 2001) (quoting Conroy v. Boston Edison Co., 758 F. Supp. 54, 58 (D. Mass. 1991)).
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Docket No: Civil Action No. 21-30051-MGM
Decided: January 19, 2022
Court: United States District Court, D. Massachusetts.
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