Flagg v. AliMed, Inc.

Flagg v. AliMed, Inc.

Opinion

 [*24]  [**356] BOTSFORD, J. ] The Commonwealth's antidiscrimination statute, G. L. c. 151B, § 4 (16), bars employment discrimination on the basis of handicap.  [***2] This case presents the question whether the statute bars an employer from discriminating against its employee based on the handicap of a person with whom the employee associates. We answer that, in the circumstances of this case, it does.¹

Background. The plaintiff, Marc Flagg, appeals from the dismissal of his second amended complaint (complaint)² against his former employer, the defendant, AliMed, Inc. (AliMed). The complaint contained claims of defamation and of employment discrimination in violation of G. L. c. 151B (c. 151B).³

We recite the pertinent facts alleged in the complaint. By [*25]  February, 2008, the [**357]  plaintiff had worked for AliMed for approximately eighteen years, and had received good job performance reviews. As an employee, the plaintiff received a salary and benefits, including family medical insurance, and an implied term of his employment was that AliMed would not terminate him because a family member developed a serious medical condition that involved considerable medical expense. On December 7, 2007, the plaintiff's wife underwent surgery for removal of  [***4] a brain tumor, and thereafter was receiving rehabilitative care. As a result, the plaintiff became responsible for caring for the couple's children, including the obligation to pick up his daughter from school -- a task that required him to be absent from work from about 2:55 P.M. until about 3:20 P.M. on certain days. The plaintiff's manager at AliMed told him to take the time necessary to do what he had to do to care for his family. When the plaintiff left work to pick up his daughter on various days between December 27, 2007, and January 15, 2008,⁴ he did not "punch out" -- either when he went to pick up his daughter or after he had returned to work and was leaving at the end of the day. His manager knew the plaintiff was not punching out, and did not say anything to him about this practice. On February 4, 2008, however, AliMed terminated the plaintiff's employment, proffering as its reason the fact that the plaintiff had failed to punch out on certain days when he left to pick up his daughter and therefore was being paid for hours that he had not actually worked. AliMed's proffered reason for the termination was false: the real reason the plaintiff was terminated was that his wife  [***5] had a very serious and expensive medical condition that rendered her totally disabled, and for which AliMed, through its health plan, was financially responsible. The February 4 employment termination took place at a time when the plaintiff's wife was again a hospital inpatient because of a recurrence of the brain tumor, and the termination resulted in the immediate cancellation of the plaintiff's health insurance and an initial denial of unemployment benefits.⁵ As a consequence, [*26]  the plaintiff had to deplete his retirement plan funds and all his savings and suffered mental anguish. In addition, AliMed's false reasons, and allegation that the plaintiff fraudulently was claiming that he had worked certain hours when he had not and thereby obtained money to which he was not entitled, "became known amongst fellow workers and the community at large," likely leading people who learned of this allegation and who did not know him to conclude that the plaintiff "had engaged in serious deliberate misconduct" when in fact he had not done so.

AliMed moved to dismiss the plaintiff's complaint pursuant to Mass. R. Civ. P. 12 (b) (6), as amended, 365 Mass. 754 (1974), and to strike portions of the complaint under Mass. R. Civ. P. 12 (f), as amended, 365 Mass. 754 (1974).⁶ After a hearing, a judge in the Superior Court allowed the motion to dismiss, ruling that (1) the claim of defamation was not pleaded adequately; and (2) the plaintiff's claim of employment discrimination did not state a claim on which relief could be granted: "the theory that [AliMed] fired plaintiff because his [**358]  wife was handicapped is not recognized in the Commonwealth." A judgment of dismissal entered on December 28, 2010, and the plaintiff timely filed an appeal in the Appeals Court. We transferred the appeal to this court on our own motion.⁷

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