Rock v. Lifeline Sys. Co.

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

CIVIL ACTION NO. 13-11833-MBB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

April 22, 2014

MEMORANDUM AND ORDER RE:

DEFENDANT LIFELINE SYSTEMS COMPANY'S PARTIAL MOTION TO DISMISS

COMPLAINT (DOCKET ENTRY # 8)

BOWLER, U.S.M.J.

Pending before this court is a partial motion to dismiss (Docket Entry # 8) filed by defendant Lifeline Systems Company ("Lifeline") pursuant to Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"). Plaintiff Denise Rock ("Rock") opposes the motion. (Docket Entry # 13). After conducting a hearing on January 23, 2014, this court took the motion (Docket Entry # 8) under advisement.

PROCEDURAL HISTORY

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

STANDARD OF REVIEW

In conducting a Rule 12(b)(6) analysis, a court "accept[s] as true all well pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiffs." Gargano v. Liberty International Underwriters, Inc., 572 F.3d 45, 48 (1^stCir. 2009). "To survive a motion to dismiss, the complaint must allege 'a plausible entitlement to relief.'" Fitzgerald v. Harris, 549 F.3d 46, 52 (1^st Cir. 2008). While "detailed factual allegations" are not required, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement for relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic v. Twombly, 550 U.S. 554, 555 (2007); Maldonado v. Fontanes, 563 F.3d 263, 266 (1^st Cir. 2009); Thomas v. Rhode Island, 542 F.3d 944, 948 (1^st Cir. 2008). Additionally, "a well-pleaded complaint may succeed even if . . . actual proof of those facts is improbable." Bell Atlantic v. Twombly, 550 U.S. at 556.

In evaluating a Rule 12(b)(6) motion, a court may consider inter alia "'documents central to the plaintiffs' claim," "'documents sufficiently referred to in the complaint,'" and "'documents the authenticity of which are not disputed by the parties.'" Curran v. Cousins, 509 F.3d 36, 44 (1^st Cir. 2007); see also Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1^st Cir. 2008); Watterson v. Page, 987 F.2d 1, 3 (1^st Cir. 1993). Lifeline attaches an affidavit with exhibits consisting of the U.S. Food and Drug Administration ("FDA") website printouts (Docket Entry # 11) to its memorandum in support of the partial motion to dismiss. (Docket Entry # 9). Lifeline maintains that this court can take judicial notice ofthe FDA website printouts. (Docket Entry # 9). The exhibits are relevant to Count IX and their inclusion in the record is addressed in the discussion section with respect to this count.

FACTUAL BACKGROUND

I. Administrative Proceedings

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

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

II. Factual Background

Up until her termination, Rock was employed at Lifeline for 12 years as a sales person or, to use the formal title, an "'account representative.'" (Docket Entry # 4, ¶ 9). Lifeline, "also known as Lifeline Systems, Inc., Philips Lifeline or Philips," is a subsidiary or "sister" company of Royal Philips Electronics ("Royal"). (Docket Entry # 4, ¶ 9). Rock initially worked at Lifeline Systems, Inc. beginning in 2000. (Docket Entry # 4, ¶ 9). Thereafter, she also worked at Philips Lifeline, which subsequently changed its name to Lifeline Systems Company, i.e., Lifeline. (Docket Entry # 4, ¶ 10).

Royal acquired Lifeline in 2006 and Health Watch, Inc. ("Health Watch") in 2007. (Docket Entry # 4, ¶ 12). Both Lifeline and Health Watch manufacture and sell devices that provide medical alert warnings from a customer's residence to a central location from which assistance can be provided. (Docket Entry # 4, ¶ 12). Subscribers to "the Lifeline System" "wear a button around their neck or wrist, and in case of emergency they press the button that transmits a signal to a transmitter in their home, which in turn will transmit an emergency response to a trained response associate 24 hours a day, 365 days a year." (Docket Entry # 4, ¶ 12).

Rock was born in 1957 and was one of the oldest salespeople in her department. (Docket Entry # 4, ¶¶ 6 & 28). Throughout her employment, Rock was "consistently in the top 4 or 5 performers in her department in terms of sales and revenue results." (Docket Entry # 4, ¶ 10). She "performed her job in an excellent fashion." (Docket Entry # 4, ¶ 10).

In September 2007, Rock learned from a Health Watch manager that a "patient death in a fire had likely been caused by faulty Health Watch equipment, and that at least six other subscribers had died in similar circumstances." (Docket Entry # 4, ¶ 13). Rock told the manager that, "the matter would have to be reported to [Lifeline]." (Docket Entry # 4, ¶ 13). The manager, however, "asked [Rock] to promise that she would not report it." (Docket Entry # 4, ¶ 13) (emphasis in original).

Rock immediately reported the conversation to a "Philips attorney" on the Health Watch Acquisition Team ("the quality team"). (Docket Entry # 4, ¶ 14). The attorney did not respond to her September 25, 2007 email. (Docket Entry # 4, ¶ 14). Rock then "forwarded the email to another attorney who was a Philips Ethics Officer." (Docket Entry # 4, ¶ 14). The second attorney "responded to the email and stated that he had spoken to the first attorney, and that [Rock] would be called so the Company could look into this 'Product Liability' matter." (Docket Entry # 4, ¶ 14). Shortly after Rock "reported thisinformation, the Health Watch Acquisition Team put together an aggressive plan to 'swap' Health Watch equipment ahead of [an] original schedule." (Docket Entry # 4, ¶ 14).

In early October 2007, Rock learned that her "job and compensation were being changed in a manner which would clearly result in her having less income." (Docket Entry # 4, ¶ 16). As noted, she was one of the top performers in her department in both "sales and revenue results." (Docket Entry # 4, ¶ 10). Rock's job performance did not justify the changes. (Docket Entry # 4, ¶ 16). In November 2007, Rock informed two of the Philips' attorneys that "it was her belief that she was being retaliated against for reporting the fire deaths." (Docket Entry # 4, ¶ 16).

In 2008, Rock received a "low performance evaluation which was particularly critical regarding 'communications and effective working relations.'" (Docket Entry # 4, ¶ 17). She "received a 4% bonus rather than the 12% to 18% bonus that she should have earned for exceeding her sales goals." (Docket Entry # 4, ¶ 17). The bonus reduction was "one of a number of the actions Philips Lifeline/Lifeline Systems took against [Rock] . . . to make her job as unpleasant as possible in the hope that she would resign." (Docket Entry # 4, ¶ 17).

In early 2009, Rock learned that at least one patient had died due to strangulation "by a Lifeline cord." (Docket Entry #4, ¶ 18). Rock "informed a Product Marketing Manager that she would refuse to respond to inquiries about this by giving a misleading statement." (Docket Entry # 4, ¶ 18).

On October 1, 2009, Rock learned that another subscriber's Lifeline equipment had "caught fire while plugged into an electrical outlet." (Docket Entry # 4, ¶ 19). This was the first time Rock learned that the Lifeline units, as opposed to just the Health Watch units, "had issues with catching fire." (Docket Entry # 4, ¶ 19). The burned equipment was "submitted for testing." (Docket Entry # 4, ¶ 19)....