Selfridge v. Jama et al

Filing 47

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting in part (as to the individual defendants and as to Counts I, II, IV, V and VI regarding Boston Home Health) and denying in part (Counts III and VII regarding Boston Home Health 24 Mot ion for Summary Judgment); granting so much of 25 Motion for Protective Order as remained outstanding following the January 8 2015 conference; denying 29 plaintiff's cross motion for summary judgment; granting in part and denying in part 30 Motion to Strike ; denying 34 Motion to Strike. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

STACIE SELFRIDGE

)
)
Plaintiff,
)
)
)
v.
)
)
MOHAMED JAMA, TRICIA MURRAY,
)
BAMBIE ANDERSON, NOEMI PEREZ,
)
and BOSTON HOME HEALTH AIDES, LLC, )
)
Defendants.
)

CIVIL ACTION NO.
13-11108-DPW

MEMORANDUM AND ORDER
March 24, 2016
This action arises out of the termination of the plaintiff,
Stacie Selfridge, from her employment at Boston Home Health
Aides, LLC (“Boston Home Health”), where she served as a manager
and allegedly anticipated obtaining an ownership interest in the
company.

Selfridge seeks declaratory and monetary relief for

unpaid compensation, emotional distress, and breach of contract
and fiduciary duty claims.

The defendants — Boston Home Health,

Mohamed Jama (the chief executive officer), and employees Tricia
Murray, Bambie Anderson, and Noemi Perez — assert counterclaims
alleging Selfridge’s violation of duties to the company and
abuse of process.

I have before me the parties’ cross-motions

for summary judgment, two motions to strike, and the defendants’

motion for a protective order to prohibit the plaintiff from
taking two supplemental depositions.
I. BACKGROUND
A.

Factual Background
1.

Formation and Membership of Boston Home Health

Boston Home Health, incorporated on January 4, 2010, is a
Massachusetts limited liability company formed for the purpose
of providing home health care services, nursing services, and
related activities.

The company is managed by its members, who

are authorized to act on behalf of and manage the company.

This

authorization includes entering into agreements, executing
contracts and documents, engaging employees and agents, defining
such employees’ duties and compensation, and establishing member
and employee benefit and incentive plans.

Members are entitled

to distributions from the company “from time to time . . . after
the Members determine in their reasonable judgment that the
Company has sufficient cash in excess of the current and the
anticipated needs of the Company to fulfill its business
purposes.”

Such distributions are made in accordance with each

member’s sharing ratio.
The original members of Boston Home Health were Jama,
Abdulkadir Mohamed, and Barlin Hassan.

Under the terms of the

operating agreement, the original members agreed to make initial
2

capital contributions, with Jama contributing $250 and obtaining
an initial sharing ratio of 1/2, and Mohamed and Hassan
contributing $125 each and each obtaining an initial sharing
ratio of 1/4.

The operating agreement permits the addition or

withdrawal of members with the written consent of all existing
members.1

No additional members have been added since the

operating agreement was executed.
2.

Selfridge and Other Individual Defendants Join Boston
Home Health

Selfridge, Murray, Anderson, and Perez joined Boston Home
Health as employees in late 2011, when the company had
approximately 25 to 35 patients.

Selfridge is a certified

occupational therapist assistant who performed primarily
administrative work for Boston Home Health.

Murray is a

physical therapist who took on an administrative management role
at Boston Home Health in February 2012; Anderson is a registered
nurse who served as assistant director of nursing; and Perez
performs marketing work.

1

This is consistent with the requirements of Mass. Gen. Laws
ch. 156C, § 20 (admission as a member of a limited liability
company). Under the terms of the operating agreement, an
additional member must make an initial capital contribution as
set forth in an admission agreement signed by the company and
the additional member. When a member withdraws, he or she must
sign a withdrawal agreement with the company.
3

a.

The Employment Agreement

The employment of the four women at Boston Home Health was
governed by an employment agreement that all four signed along
with Jama and Liban Abdulle, another employee, on February 1,
2012.

This agreement was crafted by Attorney Saul Benowitz with

the purported intention of governing the parties’ relationships
until a dispute between Mohamed (one of the members) and Boston
Home Health was resolved.

The agreement states that it does not

create or confer any membership or ownership interest beyond
what is provided for in the operating agreement, and that it is
intended “to enable the business of the Company to proceed to
the mutual benefit of the parties” without adding new members.
i.

Management and Compensation Provisions

Although the employment agreement does not create new
members, it vests management authority for the company in
Selfridge and Jama as officers, giving Jama the precedential
decision where the two officers disagree.2

2

The employment

This provision of the employment agreement is potentially at
odds with the operating agreement, which requires that
management decisions be made by affirmative vote of members
whose interests constitute a majority of the sharing ratios of
all the members. It may also be at odds with Massachusetts
corporate law, which appears to require that managers be
designated by the operating agreement or that the addition of
other managers be provided for in the operating agreement. See
4

agreement also sets forth the compensation (including profit
sharing), duties and responsibilities, termination procedures,
confidentiality requirements, non-assignment and non-compete
requirements, and other employment terms for the employee
signatories.

It provides that Selfridge, Anderson, Murray, and

Perez are each to receive a salary of $2,000, presumably per
week.

The employee signatories shall also receive “incentive

payments” on a quarterly basis or more frequently if the
officers determine that “the financial condition of the Company”
warrants such payment.

Selfridge, Anderson, and Murray are each

to receive 14.5% incentive payment shares, and Perez is to
receive a 6.5% incentive payment share, presumably of whatever
funds are authorized to be used for incentive payments.
Finally, the agreement provides for officer approval of overtime
hours and additional overtime compensation.
ii.

Termination Procedures

If an employee is terminated, the employment agreement
provides for two compensation scenarios: a termination payment
or continued payment of the employee’s incentive payments.

When

the employee is terminated by the company for “adequate cause”3

Mass. Gen. Laws ch. 156C, §§ 2(7), 26(a). However, Selfridge
does not press these potential conflicts.
3 “Adequate cause” is defined by the agreement as “(i) fraud,
embezzlement, or other intentional misappropriation by the
5

or at the voluntary election of the employee, the company
selects the compensation option.

When an employee is terminated

without adequate cause by agreement of the officers, the
employee selects the compensation option.
Incentive payments upon termination are made consistent
with the incentive payment shares defined in the agreement.

The

termination payment consists of “the reasonable present fair
market value of the Employee’s rights to receive Incentive
Payments, to the same extent as if said rights were freely
assignable.”

If the employee voluntarily left or has been

terminated for adequate cause, the termination payment is
reduced by “twenty-five (25%) of such determined value” and by
“any amounts due to Company on account of [any] acts or
omissions of the Employee constituting ‘Adequate Cause,’”4 and
the company may elect to make the payment either in a lump sum
of by delivery of a promissory note.

If the employee was

terminated without adequate cause and opts to receive a
Employee from the Company; (ii) conviction of the Employee of a
felony or a misdemeanor involving moral turpitude; or (iii)
conduct by the Employee involving gross negligence, willful
misconduct or other action which materially damages the
reputation or business of the Company. The existence of
Adequate Cause shall be determined by unanimous vote of the
remaining Employees of the Company.”
4 This calculation is to be reached by agreement of the company
and the employee or his or her legal representative, or if an
agreement cannot be reached, by a certified public accountant.
6

termination payment, he or she is entitled to full payment
within thirty days of termination.
3.

Selfridge’s Termination

Selfridge was terminated on October 15, 2012, after
approximately eight months of employment at Boston Home Health,
through an email from Jama.

She contends that she was never

informed that her performance was inadequate and instead that
she received positive reviews from Murray, who was apparently
her supervisor.5

The defendants have articulated a variety of

reasons for her termination, including that she failed to work
more than five to ten hours a week at certain times because she
was attending a master’s degree program, that she engaged in
threatening conduct and was difficult to work with, that she
wrote checks to at least one vendor that was not a Boston Home
Health vendor, that she promised to bring new clients to the
company but failed to do so, that she lacked the qualifications
to perform her job responsibilities, and that she engaged in
fraudulent activity regarding therapy visit notes submitted to
MassHealth, for which the company had to return approximately
$10,000 in payments.

Selfridge denies all of these claims

except for her participation in a clinical program for her
5

Selfridge concedes she had received some warning from Liban
Abdulle, who informed her on October 13 that she would be
terminated.
7

master’s degree, which required her to be away from her office
during business hours five days a week for twelve weeks during
her employment at Boston Home Health; she claims that she did
her work for the company at other times.
B.

Procedural History
The plaintiff filed her complaint on May 5, 2013 seeking

recovery for “a freeze out as to her employment at, and
ownership of” Boston Home Health.

She seeks a declaratory

judgment that she is entitled to 14.5% of the value of Boston
Home Health, monetary damages for her termination without cause
and her unpaid compensation, and an award of attorneys’ fees,
based on her claims of breach of fiduciary duty, negligent and
intentional infliction of emotional distress, breach of
contract, violation of the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq., and violation of the Massachusetts Wage Act,
Mass. Gen. Laws ch. 149, §§ 148, 150.
The defendants filed their answer and counterclaims against
the plaintiff on July 25, 2013, to which Selfridge responded on
August 1.

The parties then engaged in discovery, including

numerous depositions.6

Nearly a year later, on July 22, 2014,

the parties provided a joint status report indicating that two
6

Throughout this case, the parties have had some concerns about
confidentiality. On April 11, 2014, I entered an order of
confidentiality in accordance with the parties’ stipulation.
8

depositions remained and would be completed by July 31, document
discovery would be completed by July 30, and motions for summary
judgment would be filed by July 31.

On July 29, the defendants

filed a motion for summary judgment pursuant to Fed. R. Civ. P.
56 as well as a motion for a protective order to prohibit the
belated depositions of two individuals other than those
contemplated by the July 22 status report.
Selfridge opposed the motions for summary judgment and for
a protective order, and in so doing filed her own motion for
summary judgment, seemingly limited to one issue: her purported
right to incentive payments.7

The defendants opposed Selfridge’s

summary judgment motion, and Selfridge has filed a reply.

In

addition, Selfridge moves to strike certain statements made by
the defendants in their memorandum, and the defendants move to
strike portions of Selfridge’s affidavit.

Both motions to

strike are opposed.
II. DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER AND TO
PROHIBIT FURTHER DISCOVERY
A.

Background
As noted above, on July 22, 2014, the parties informed me

7

Although none of Selfridge’s filings are docketed as a motion
for summary judgment, it is clear that Selfridge intended to
move for summary judgment to some extent. The defendants
clearly consider the plaintiff to have moved for summary
judgment as well.
9

that two depositions remained and would be completed by July 31,
that document discovery would be completed by July 30, and that
motions for summary judgment would be filed by July 31.
According to the defendants, the two remaining depositions
contemplated by the July 22 status report were of Perez – one of
the named defendants – and of Liban Abdulle.

These depositions

were scheduled to occur on July 28 and July 31, respectively.
Following the deposition of Perez on July 28, attorneys for
both parties orally confirmed that the last deposition was to
occur on July 31.

But later that day, defendants’ counsel

received notices from plaintiff’s counsel, dated July 25, 2014,
for the additional depositions of Mohamed — the member engaged
in a legal dispute with Boston Home Health — and his counsel,
Cameron Pease, on August 1.

On July 24, 2014, Mohamed and

Boston Home Health had reached a settlement agreement in
principle, which Boston Home Health expected would remain
confidential.

In seeking to depose Mohamed and his attorney,

and to obtain a copy of the settlement agreement, Selfridge
purportedly sought to verify that a settlement agreement had
indeed been reached and the dispute between Mohamed and Boston
Home Health had been resolved.
On July 29, concurrent with their motion for summary
judgment, the defendants filed the instant motion for a
10

protective order as to the settlement discussions, negotiations,
and agreement in the Mohamed litigation and to prohibit further
discovery through the depositions of Mohamed and Pease.

The

defendants contend that the deposition notices were untimely and
would add nothing to the summary judgment record, because they
pertain to witnesses who have no relevant knowledge of the
matter.

They further contend that the information regarding the

settlement would be inadmissible in this litigation and
therefore it adds no value to Selfridge’s case.8

At a hearing on

this matter on January 7, 2015, I directed the defendants to
provide a copy of the settlement agreement, which was executed
on August 26, 2014, to the plaintiff under seal, and afforded
Selfridge an opportunity to respond to the agreement.9

Given

these developments, to the extent the defendants sought to
prohibit Selfridge’s access to the settlement agreement, that
request is now moot.
8

The defendants’ contention that the settlement agreement and
its contents would be inadmissible is incorrect. “[C]ourts can
allow the discovery of information contained in and related to
confidential settlement agreements,” but a high burden must be
met. Atchison Casting Corp. v. Marsh, Inc., 216 F.R.D. 225, 226
(D. Mass. 2003). Where a settlement agreement from a prior
lawsuit “concerns the very facts underlying the parties’
dispute” and “bears directly on the damages Plaintiff seeks,”
discovery of the settlement agreement is appropriate. Id.
9 In her response to the settlement agreement, Selfridge merely
rehashes the arguments she has made previously regarding her
anticipated ownership in Boston Home Health.
11

B.

Discussion
As the question of access to the settlement agreement has

been resolved, I address only Selfridge’s request to depose
Mohamed and his attorney.

Selfridge has not sought leave from

this court to conduct these depositions.

“Ordinarily, a party

who wishes to conduct further discovery before the court acts on
a summary judgment motion should present timely affidavits”
under Fed. R. Civ. P. 56(d) explaining why certain critical
facts are as of yet unavailable.10

Nestor Colon Medina &

Sucesores, Inc. v. Custodio, 964 F.2d 32, 38 (1st Cir. 1992);
see Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 137 (1st
Cir. 2001) (“The management of pretrial discovery lies primarily
within the sound discretion of the district court.”).

Although

the deposition requests were served on the defendants before the
close of the discovery period, Selfridge represented in the July
22 joint status report that discovery would be completed and
summary judgment motions filed by July 31.

Clearly, depositions

scheduled to occur on August 1 fall outside these bounds.
Selfridge accordingly bears the burden of “articulat[ing] a
plausible basis for the belief that discoverable materials exist

10

As part of a 2010 revision of Rule 56, “[s]ubdivision (d)
carries forward without substantial change the provisions of
former subdivision (f).” Fed. R. Civ. P. 56 advisory
committee’s note.
12

which would raise a trialworthy issue.”

Price v. Gen. Motors

Corp., 931 F.2d 162, 164 (1st Cir. 1991).

Her memorandum in

opposition to the defendants’ motion fails to serve as an
affidavit required under Rule 56(d) to carry this burden.
Nonetheless, I will consider the arguments she makes there.
Selfridge’s proffered reason for wanting to depose Mohamed
and his attorney is that she wishes to confirm that the dispute
with Mohamed has been resolved — not that she believes they can
provide any substantive support for her claims.

This reason has

been addressed by her receipt of the settlement agreement
between Mohamed and Boston Home Health.

Selfridge has not

demonstrated that any additional information that could be
obtained by deposing Mohamed or his attorney would create a
trialworthy issue or even add any evidence of value to her case.
In addition, Selfridge has puzzlingly stated that the issue of
ownership — which from her perspective is conditioned on
resolution of the Mohamed dispute — is not important at this
stage.

In her opposition to the defendants’ summary judgment

motion and her own motion for summary judgment, Selfridge states
that “ownership is not the dispositive factor” for her claims,
and that “[s]he . . . understands that issues of fact preclude a
decision on that point at this time” because of the dispute
between Mohamed and Boston Home Health.
13

Where Selfridge has

stated that the pending claims in her case can be resolved
without an answer to the ownership question, she has failed to
demonstrate how additional evidence of ownership is relevant.
Selfridge has offered no “plausible basis to support a belief
that discoverable material exists which . . . would suffice to
raise a trialworthy issue.”

Filiatrault, 275 F.3d at 138.

The

change in circumstances of a recent resolution in the known
dispute between Mohamed and Boston Home Health alone does not
merit further discovery.

Accordingly, I will not permit further

discovery absent satisfaction of Fed. R. Civ. P. 56(d).
III. MOTIONS TO STRIKE
Both parties have filed motions to limit the evidence
considered for summary judgment.

Generally, “only evidence that

would be admissible at trial may be considered in connection
with a motion for summary judgment.”

Barraford v. T & N Ltd.,

988 F. Supp. 2d 81, 84 (D. Mass. 2013) (citing Garside v. Osco
Drug, Inc., 895 F.2d 46, 49-51 (1st Cir. 1990)).

The proponent

of the challenged evidence must prove its admissibility.
id.

I will consider each of the parties’ motions in turn.

14

See

A.

Selfridge’s Motion to Strike11
Selfridge objects to seven statements of fact in the

defendants’ memorandum in support of their motion for summary
judgment,12 asserting that these statements should be stricken
for lack of foundation and hearsay.13
1.

Challenges for Lack of Foundation
a. Statement 2

Selfridge moves to strike the statement that “[a]t best
Selfridge worked maybe 10 hours per week,” and that “[s]he spent
three months of the eight with [Boston Home Health] in an allday clinical training for school, not at [Boston Home Health].”
This statement is based on Murray’s deposition testimony as to
Selfridge’s minimal working hours and on Selfridge’s own
deposition testimony.

Selfridge contends that Murray failed to

provide any evidence that she was aware of all of the hours

11

As a threshold matter, the defendants contend that Selfridge’s
motion to strike should be denied because she failed to comply
with Local Rule 7.1 requiring conferral between the parties
prior to filing a motion. Although compliance with Rule 7.1 is
of significance, I will nonetheless consider the merits of her
motion. See Maloney v. Town of Hinsdale, Civ. No. 11-11297-MAP,
2012 WL 4103909, at *2 (D. Mass. Aug. 10, 2012) (“a violation of
the rule does not necessitate summary denial”).
12 The defendants incorporated their statement of undisputed
facts into their memorandum. See note 17, infra.
13 To the extent the plaintiff raises additional objections in
her statement of undisputed facts, these objections are not
considered at this point because they were not specifically
stated in the motion to strike.
15

Selfridge worked, and therefore the statement lacks a proper
foundation.
Under Fed. R. Evid. 602, “[a] witness may testify to a
matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may consist of the
witness’s own testimony.”

Id.

The defendants state that as

Selfridge’s direct supervisor, Murray was aware of Selfridge’s
assignments and knew that she could not perform much of her work
remotely.

Murray stated that Selfridge “wasn’t there but maybe

four or five hours a week, realistically” and that “[s]he would
claim she was working from home; however, she didn’t have access
to the portal, nor was she qualified to do QA as a coder.”
Given Murray’s supervisory role and her familiarity with
Selfridge’s work, there is an adequate foundation for the first
statement.

The second statement, that Selfridge spent three

months engaging in clinical training for a master’s degree while
she was employed by Boston Home Health, is taken directly from
Selfridge’s deposition testimony and is therefore admissible.
b. Statement 3
Selfridge moves to strike for lack of foundation the
statement that “Selfridge did not get along with the other BHHA
employees, its lawyer, or its landlord, and people left the
16

Company because of her.”

She asserts that the defendants have

not offered the testimony of any of these individuals stating as
such.

The defendants contend that the basis for this statement

is the deposition testimony of Murray, Selfridge’s supervisor,
who had first-hand knowledge of various individuals’ views on
Selfridge.

This is sufficient to establish a foundation for

personal knowledge.
c. Statement 6
Selfridge moves to strike Murray’s conclusions regarding
Selfridge’s preparation of notes in her work with Janet Lucey,
asserting that Murray has no knowledge as to how the notes were
prepared.

Specifically, Murray stated that occupational therapy

evaluation forms are supposed to be completed by a registered
Certified Occupational Therapist (COT) and that she had learned
that certain therapy visit notes were signed by Lucey, a COT,
but in the handwriting of Selfridge, who is not authorized to
complete the form.

Murray stated that Selfridge paid Lucey for

her signature and conducted the subsequent visits herself.

She

further speculated as to why Selfridge would take this approach,
positing that Lucey had a busy schedule and was probably unable
to do the visits herself.

Murray attempted to reach Lucey about

this matter but was unable to.

Boston Home Health ultimately

returned the funds Mass Health had paid for these visits.
17

The defendants contend that Murray testified based on her
personal knowledge as a certified physical therapist as to
proper procedure and her personal knowledge of Selfridge’s
handwriting and qualifications.

Although several portions of

Murray’s testimony are properly based on this personal
knowledge, Murray’s speculation as to why Selfridge would have
engaged in this conduct is not and is therefore inadmissible.
2.

Challenges for Hearsay
a. Statement 1

Selfridge moves to strike as inadmissible hearsay a
statement Murray made in her deposition regarding one of the
reasons for Selfridge’s termination:
[O]ur Assistant Director of Nursing had come to us
stating that Stacie had approached her and said quote,
“I’m going to [expletive deleted] everybody at Boston
Home Health and bring it down,” to which Judy replied,
“Please don’t do that.” And she said quote, “Watch
me.” That was the final day that they decided to let
her go.
“Hearsay evidence, inadmissible at trial, cannot be considered
on a motion for summary judgment.”

Garside, 895 F.2d at 50.

The defendants correctly contend, however, that this statement
is admissible as a statement of a party-opponent, Fed. R. Evid.
801(d)(2)(A), and under the state of mind exception to the
hearsay rule.

See Fed. R. Evid. 803(3).

Indeed, these

statements are not offered for the truth of the matter asserted,
18

but rather to demonstrate that Selfridge had a hostile state of
mind toward Boston Home Health at the time they were made.

As

such, they are admissible.
b. Statement 4
Selfridge moves to strike the statement that “Selfridge was
insubordinate to BHHA’s Chief Executive Officer,” found in
Murray’s deposition testimony, because she contends that it is
based on a conversation between Murray and Jama and must be
offered by Jama if at all.14

The defendants correctly contend

that this fails to qualify as a “statement” for the purposes of
the hearsay rule.

“Hearsay must be a ‘statement,’ i.e., either

‘(1) an oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by the person as an assertion.”
Staelens ex rel. Estate of Staelens v. Staelens, 677 F. Supp. 2d
499, 504 (D. Mass. 2010) (quoting Fed. R. Evid. 801(a)(c)).

14

At the deposition, the following dialogue occurred between
Attorney Trombetta and Tricia Murray:
Q: What did [Selfridge] do that made her disruptive?
A: She was hyperverbal, loud, always in a bad mood,
disagreed with everybody’s opinion in a loud manner.
She was insubordinate.
Q: When was she insubordinate?
A: To [Jama].
Q: How?
A: Telling him that he could only be paid for 20 hours
a week as the CEO of the company because she needed a
paycheck because she left a job for employment at
Boston Home Health.
19

This sentence sets forth facts in the form of the report
apparently overheard by Murray, rather than “any statement or
conduct by a declarant intended as an assertion.”

Id.

The

facts asserted in this sentence are admissible.
c. Statement 5
Selfridge moves to strike Murray’s statement in her
deposition that Selfridge falsely claimed that she knew patient
referral sources but did not bring any new patients to the
company, and that Selfridge actually lost patients for the
company by failing to show up at their homes.

Selfridge

contends that these facts must come in through the testimony of
a patient who had left for this reason, rather than through
Murray’s impression.
To the extent Murray states that Selfridge joined Boston
Home Health because “she said she knew all these referral
sources and these resources that could help grow this company,
which, in turn, she did not and did not bring one client to the
company,” those statements appear to be based on Murray’s
personal knowledge of what Selfridge said and are admissible as
statements of a party-opponent.

See Fed. R. Evid. 801(d)(2)(A).

As to the lost clients, Murray states that Selfridge “in fact,
lost several clients for Boston Home Health for failure to show
up at their homes.”

She seems to base this statement on
20

conversations she had with nursing supervisors who informed
Murray that their clients reported that Selfridge visited but
did not perform her duties.

Defendants do not offer any

justification for this portion of the challenged statement.
Therefore, the portion of the statement pertaining to clients
leaving Boston Home Health is stricken.
d. Statement 7
Finally, Selfridge moves to strike Attorney Benowitz’s
statement that Selfridge’s attorney contacted Benowitz and told
him that he was “ok” with the employment agreement.

Defendants

contend that Selfridge’s attorney was her authorized agent for
review of the employment agreement, and therefore his statement
is admissible.

Under Fed. R. Evid. 801(d)(2)(C),(D), a

statement by a person authorized by an opposing party to make a
statement on that subject, including an agent acting within the
scope of that relationship, is not hearsay.

Accordingly, this

statement is admissible.
3.

Summary

The second part of statement 5 is stricken (that Selfridge
“lost patients by not showing up at their homes”), as are those
portions of statement 6 regarding Murray’s speculation of the
reasons for Selfridge’s conduct in preparing certain therapy

21

visit notes.

Otherwise, Selfridge’s motion to strike will be

denied.
B.

Defendants’ Motion to Strike Selfridge’s Affidavit
The defendants move to strike the entirety of Selfridge’s

affidavit submitted in support of her cross-motion for summary
judgment and opposition to the defendants’ motion for summary
judgment on the basis that it directly contradicts the sworn
deposition testimony of Selfridge, relies on impermissible
hearsay, and recites conclusory allegations rather than facts.
Under Fed. R. Civ. P. 56(e)(1), an affidavit opposing
summary judgment must “set out facts that would be admissible in
evidence.”

Affidavits submitted by witnesses who have already

been deposed may be considered by the court when the earlier
testimony was vague, but require explanation for consideration
if the earlier testimony was clear.

“A subsequent affidavit

that merely explains, or amplifies upon, opaque testimony given
in a previous deposition is entitled to consideration in
opposition to a motion for summary judgment.”

Gillen v. Fallon

Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir. 2002).
However, “[w]hen an interested witness has given clear answers
to unambiguous questions, [s]he cannot create a conflict and
resist summary judgment with an affidavit that is clearly
contradictory, but does not give a satisfactory explanation of
22

why the testimony is changed.”

Colantuoni v. Alfred Calcagni &

Sons, 44 F.3d 1, 4-5 (1st Cir. 1994).

An affidavit that is

simply “an attempt to manufacture an issue of fact in order to
survive summary judgment” is not admissible.

Orta-Castro v.

Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 110 (1st
Cir. 2006).
Like the affidavit rejected in Orta-Castro, Selfridge’s
affidavit was executed after the defendants filed their motion
for summary judgment, and after Selfridge had been deposed,
“thus suggesting that the [affidavit] was made solely to create
an issue of fact for the purpose of surviving summary judgment.”
Orta-Castro, 447 F.3d at 110.

Indeed, the affidavit was

executed four days before Selfridge filed her opposition to the
defendants’ motion.

Cf. id.

Contrast Chiang v. MBNA, 620 F.3d

30, 31 n.3 (1st Cir. 2010) (appropriate for district court to
consider affidavit executed after witnesses’ depositions had
been taken because “court requested additional discovery to
clarify” certain issues).

Selfridge has offered no explanation

for why she believed a supplemental affidavit was necessary.
These indications of a last-ditch survival tactic give me
pause.

Clearly, the affidavit serves as a direct rebuttal to

the arguments and theories presented by the defendants in their
summary judgment motion.

But the defendants have not adequately
23

identified the determinative feature that would merit my
disregard of the affidavit: direct conflict between the earlier
and supplemental testimony.

See Orta-Castro, 447 F.3d at 110

(affidavit disregarded because it was in conflict with earlier
deposition answers and proffering party had offered no credible
explanation for the subsequent change in testimony); Colantuoni,
44 F.3d at 4-5 (same).
The defendants point to only two paragraphs of the
affidavit that they consider to be directly at odds with
Selfridge’s deposition testimony:15 ¶ 29 and ¶ 31, stating that
she requested and expected overtime payment, which conflicted
with her clear testimony at her deposition that Boston Home
Health did not pay overtime while she was employed there.
Selfridge contends that there is nothing inconsistent in stating
that Boston Home Health does not pay overtime but that she
nonetheless asked Jama to pay her overtime and does not know if
he would have decided to do so.

I agree with Selfridge that the

statements are not in direct contradiction to her testimony and,
although perplexing, need not be stricken on the basis of direct
contradiction.

The necessary conflict for disregard of a duly-

15

At the hearing on this matter, I afforded defendants’ counsel
an opportunity to expand their identification of direct
conflicts, but they did not do so.
24

sworn affidavit has not been identified here.

Where the

deposition testimony on a particular issue “was neither clear
nor unambiguous,” a supplemental affidavit is appropriate and
indeed must be considered in opposition to a motion for summary
judgment.

Gillen, 283 F.3d at 26.

The defendants have not

demonstrated the necessary conflict for the affidavit overall.
I am similarly unpersuaded by the defendants’ hearsay
argument.

In paragraphs 24 and 25 of her affidavit, Selfridge

states that she has had “many conversations with numerous
representatives of various providers and with business
representatives,” that none of them have “indicated in any way
that any actions which [she] had undertaken at Boston Health had
hurt the company’s reputation,” and that she “do[es] not believe
that they have any knowledge of what I had done at Boston
Health.”

She further states that she did not take any actions

that injured the reputation of Boston Home Health.

The

defendants contend that these paragraphs constitute inadmissible
hearsay because they attempt to “climb into the minds” of third
parties.

Ultimately this proffer does not shed light on the

question whether Selfridge’s termination was for adequate cause,
although this is quite apparently the goal of her statements in
the affidavit.

Her recounting of statements made by others

(“various providers and business representatives”) runs afoul of
25

the hearsay rule, although her characterization of their
knowledge of matters occurring at Boston Home Health does not.
Accordingly, absent the identification of a conflict, I
will consider the affidavit, apart from the effort to report
what Selfridge heard others say.
IV. SUMMARY JUDGMENT STANDARD
The purpose of summary judgment practice is “to pierce the
pleadings and to assess the proof in order to see whether there
is a genuine need for trial.”
omitted).

Garside, 895 F.2d at 50 (citation

Summary judgment is appropriate when, based on the

pleadings, discovery, and disclosure materials in the record,
“there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.”
R. Civ. P. 56(a), (c).

Fed.

A “genuine” dispute is one that, based

on the supporting evidence, “a reasonable jury could resolve
. . . in favor of the non-moving party,” and a “material” fact
is one that has “the potential to affect the outcome of the suit
under the applicable law.”

Sanchez v. Alvarado, 101 F.3d 223,

227 (1st Cir. 1996) (citations and quotation marks omitted).
When reviewing a motion for summary judgment, I view the
facts “in the light most favorable to the non-moving party.”
Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir.
1999).

If the moving party satisfies the burden of showing,
26

based on evidentiary material, that there is no genuine issue of
material fact, the burden shifts to the nonmoving party to
demonstrate by reference to other evidentiary material “that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

See

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
“[C]onclusory allegations, improbable inferences, and
unsupported speculations” are insufficient to establish a
genuine dispute of fact.16

Medina-Munoz v. R.J. Reynolds Tobacco

Co., 896 F.2d 5, 8 (1st Cir. 1990).

16

At various points in her opposition to the defendants’ motion
for summary judgment and her own motion for summary judgment,
Selfridge asks this court to draw inferences in her favor from
the invocation by Jama and Abdulle of their Fifth Amendment
privilege against self-incrimination in refusing to answer
questions at their depositions. Although an adverse inference
may be drawn in a civil matter from a party’s assertion of the
Fifth Amendment privilege, silence cannot be given any “more
evidentiary value than [is] warranted by the facts surrounding
the case.” Baxter v. Palmigiano, 425 U.S. 308, 317-18 (1976).
Indeed, “the entry of judgment based only on the invocation of
the privilege and ‘without regard to the other evidence’ exceeds
constitutional bounds.” LaSalle Bank Lake View v. Seguban, 54
F.3d 387, 391 (7th Cir. 1995) (citations omitted).
What more
is required, however, appears to be an open question in this
circuit. Judge Stearns recently acknowledged that the First
Circuit has not made clear whether and to what extent an adverse
inference may be drawn from a party’s silence at the summary
judgment stage. See Unum Group v. Benefit P’ship, Inc., 938 F.
Supp. 2d 177, 184 (D. Mass. 2013) (citing In re Marrama, 445
F.3d 518, 522-23 (1st Cir. 2006)). Unum Group did not grapple
with the issue, because Judge Stearns concluded that “even when
permitted at the summary judgment stage, an adverse inference,
standing alone, is not sufficiently conclusive evidence to
27

Where, as here, both parties have moved for summary
judgment, “[t]he court must rule on each party’s motion on an
individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the Rule 56
standard.”

Bienkowski v. Northeastern Univ., 285 F.3d 138, 140

(1st Cir. 2002) (citation omitted); see Mandel v. Boston
Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006).

Summary

judgment is appropriate if “either of the parties deserves
judgment as a matter of law on facts that are not disputed.”
Adria Int’l Group, Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107
(1st Cir. 2001).
V. DISCUSSION OF SUMMARY JUDGMENT MOTIONS
Selfridge seeks a declaratory judgment as to her ownership
interest (Count I) and asserts claims of breach of fiduciary
duty (Count II), negligent infliction of emotional distress
(Count III), intentional infliction of emotional distress (Count
IV), breach of contract (Count V), violation of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq. (Count VI), and
violation of the Massachusetts Wage Act, Mass. Gen. Laws ch.

satisfy a moving party’s burden.” Id. (citing LaSalle Bank, 54
F.3d at 389-94, and other cases). Here, it is sufficient to
conclude that some independent evidence in the record is
required to support the underlying allegations. Id.
28

149, §§ 148, 150 (Count VII).

The defendants raise several

counterclaims that are not the subject of the instant motions.
The defendants have moved for summary judgment as to all
counts of Selfridge’s complaint.17

They contend that the

undisputed evidence demonstrates that Selfridge is not and never
has been an owner of Boston Home Health, that her termination
was justified and complied with the terms of the employment
agreement, that the payments she claims she was denied were
entirely discretionary, and that she is not entitled to relief
under either the Fair Labor Standards Act or the Massachusetts
Wage Act.

Selfridge opposes all of these arguments and asks

that the defendants’ motion for summary judgment be denied in
full.

She also moves for summary judgment as to her claim

regarding incentive payments, which can fairly be read as a

17

Selfridge apparently believes that the defendants did not
comply with the requirement of Local Rule 56.1 that a moving
party provide “a concise statement of material facts of record
as to which the moving party contends there is no genuine issue
to be tried, with page references to affidavits, depositions,
and other documentation.” Failure to comply with this
requirement can be a basis for denial of a motion for summary
judgment. However, the defendants have adequately complied with
Rule 56.1. Although a moving party often submits a separate
document providing an enumerated list of material facts, the
defendants’ inclusion of this statement of material facts in
their memorandum in support of their motion satisfies this
requirement.
29

claim for breach of contract in Boston Home Health’s failure to
make such payments to her.
A.

Ownership Interest (Count I)
The parties agree and the record makes clear that Selfridge

was never made a member or owner of Boston Home Health.

The

employment agreement governing Selfridge’s relationship to
Boston Home Health explicitly states that it does not confer
membership on any of the employee signatories.18

Indeed, no

additional members have been added since the initial operating
agreement identifying Jama, Mohamed, and Hassan as members.19

18

Specifically, the employment agreement provides that:
[N]otwithstanding that some or all of the Employees
may ultimately desire to gain admission as Members of
the Company, this Agreement, and the payments and
benefits to be conferred upon the Employees hereunder,
are not intended (in themselves) to confer any indicia
of ownership in the Company, but only to recognize, in
the form of compensation for services rendered
(through payment of wages, overtime, and “incentive”
payments), the contributions of the various Employees
to the ongoing business and success of the Company;
nothing contained herein is intended to have the
effect of contravening either the Company’s
Certificate, Operating Agreement, or the requirements
of M.G.L., Ch. 156C.

It also states that “this Agreement provides for Employee
compensation only, and does not, nor is it intended to, create
any membership or ownership interest in the Company except as
may otherwise exist under its Operating Agreement, and as the
same may be modified, amended, or supplemented hereafter.”
19 Not only did the terms of the employment agreement
specifically state that it did not grant membership, but
30

Selfridge nonetheless contends that she was promised
membership once the dispute with Mohamed was resolved.

Although

she acknowledges the express integration clause in the
employment agreement, she contends that the parties had a
separate verbal agreement that remains enforceable.

She asserts

that the extensive emphasis in the employment agreement on the
dispute with Mohamed as precluding Selfridge and the other women
from becoming members demonstrates that there was a verbal
agreement to pursue membership after resolution of the dispute.20
She points also to an email from Benowitz to Selfridge — in
which he shared a draft of the employment agreement and
described his attempt to capture the “profit sharing” element
while avoiding the appearance of ownership interests, as that
could not be achieved under the circumstances at the time — as
demonstrating that the employment agreement was intended to
convey the benefits of ownership without doing so by terms.

In

Selfridge’s status as a manager of the company also did not
confer membership as a matter of law. Under Massachusetts
corporate law, managers of limited liability companies “need not
be a member of the limited liability company.” Mass. Gen. Laws
ch. 156C, §§ 24, 25.
20

The employment agreement indicates that it is in effect
“pending resolution of matters between the Company and Abdul
[Mohamed], [] unless and until this Agreement is terminated,
modified, or amended.” Importantly, modification of the
agreement must be “in writing and duly executed by all of the
Employees.”
31

short, Selfridge understood that she and the other women would
become owners automatically upon resolution of the issues with
Mohamed, and seeks to enforce that promise now that Mohamed is
no longer a member.21
The defendants rely on the same evidence to argue that it
was clear that membership was not guaranteed for Selfridge, and
that at best Selfridge had “an agreement to agree concerning her
eventual admittance as a member of [Boston Home Health].”

They

also point to the testimony of Benowitz, who drafted the
operating agreement and the employment agreement, that “there
was nothing in this agreement, or discussed, that anything would
happen automatically upon either that occurrence, or anything
else.”
Typically, when a written agreement is executed, there is
“a strong inference that the parties do not intend to be bound
by earlier negotiations or agreements until the final terms are
settled.”
21

Rosenfield v. U.S. Trust Co., 195 N.E. 323, 325

Selfridge also provides copies of the Facebook pages of Murray
and Anderson indicating that they are owners of Boston Home
Health, in support of her apparent assertion that the women are
now members because of the promise of membership upon resolution
of the Mohamed dispute. The defendants contend that these
representations cannot establish ownership rights as a matter of
law because they are “inactionable statements of opinion” rather
than statements of fact. NPS, LLC v. Ambac Assur. Corp., 706 F.
Supp. 2d 162, 171 (D. Mass. 2010). I find these admissions to
be marginal but hardly persuasive evidence on the ownership
question.
32

(Mass. 1935).

Indeed, the parole evidence rule in Massachusetts

“prohibits the introduction of extrinsic evidence to alter the
terms of an integrated and complete written contract.”

Hallmark

Inst. of Photography, Inc. v. CollegeBound Network, LLC, 518 F.
Supp. 2d 328, 331 (D. Mass. 2007) (citing Cambridgeport Sav.
Bank v. Boersner, 597 N.E.2d 1017, 1020 (Mass. 1992)).

Despite

the presence of an integration clause in the employment
agreement, suggesting that it represents the entirety of the
parties’ agreement, embodied in the agreement is the suggestion
that when the dispute with Mohamed is resolved, the parties may
revisit the question of membership.

Nothing in the integration

clause explicitly precludes the possibility of some promise
based on this condition precedent; nor does the parol evidence
rule serve to exclude earlier conversations where they would not
necessarily modify the provisions of the employment agreement,
but rather serve to trigger a series of revisions to obtain the
result promised.

See Kennedy Bros., Inc. v. Bird, 192 N.E. 73,

76 (Mass. 1934) (“Previous negotiations may clarify the sense in
which expressions were understood by the parties.”); see also
Mass. Mun. Wholesale Elec. Co. v. Town of Danvers, 577 N.E.2d
283, 288 (Mass. 1991) (“When construing a contract, a court
looks to the parties’ intent to determine whether they have
created a condition precedent.”).
33

Selfridge has not created a genuine issue of material fact,
however, that would allow a reasonable fact finder to conclude
that she indeed had an oral agreement to become a member with
the persons who would need to provide consent for her
membership.

The addition of a new member, under the terms of

the operating agreement, requires the written consent of all
existing members.

Although Selfridge contends that she, Jama,

Murray, Anderson, and Perez agreed that she and the other women
would become members when the Mohamed dispute was resolved, she
does not allege that she had any conversation or agreement with
Hassan, one of the existing members, to confer membership.22
Leaving aside Mohamed, on the assumption that he is no longer a
member, Selfridge has not alleged that she had an oral agreement
with the individuals - Jama and Hassan - capable of conferring
membership.
Even if Selfridge did allege that she had conversations
with Jama and Hassan in which both promised to make Selfridge a
member, Selfridge would have only an agreement to agree.
22

An

Selfridge instead states in her affidavit that “Abdulle never
objected” and that “he also agreed to the proposal made by Mr.
Jama.” She argues that Abdulle acted on behalf of his wife,
Barlin Hassan, and therefore his agreement to the proposed
membership serves to bind Hassan. But Selfridge does not allege
anywhere in her affidavit or in other evidentiary materials that
Abdulle acted on behalf of Hassan, and presents this allegation
only in argument. This is inadequate to create an issue of
material fact at summary judgment.
34

agreement to agree, standing alone, does not create an
enforceable contract.

See Laudano v. 214 South Street Corp.,

608 F. Supp. 2d 185, 194 (D. Mass. 2009); Cousin v. Sofono,
Inc., Civ No. 01-30186-MAP, 2003 WL 22391233, at *6 (D. Mass.
Oct. 17, 2004) (citing Rosenfield, 195 N.E. at 325-26).
Selfridge has not alleged that the parties agreed on certain
essential terms of her membership, including her initial capital
contribution and sharing ratio.

See Laudano, 608 F. Supp. 2d at

194-95 (“An alleged oral contract is unenforceable if it is
silent on ‘essential terms.’” (quoting Held v. Zamparelli, 431
N.E.2d 961, 962 (Mass. App. Ct. 1982)).

As there is no

enforceable agreement to confer membership on Selfridge, I will
grant summary judgment for the defendants on this count.
B.

Common Law Claims
1.

Breach of Fiduciary Duty (Count II)

Selfridge alleges that the individual defendants acted as
co-owners of Boston Home Health, and that each owed the other a
fiduciary duty of loyalty and good faith.

She further contends

that these defendants breached their duties by terminating her,
making “baseless threats,” withholding compensation, attempting
to freeze her out of the company, and refusing to acknowledge
her interest in the company.”

35

Selfridge and the individual defendants were not co-owners
of Boston Home Health together and did not owe each other duties
in that respect.

Instead, Selfridge was an at-will employee,

because her employment agreement did not specify a definite
period of employment, and her employment was “terminable . . .
without notice, for almost any reason or for no reason at all.”
Jackson v. Action for Boston Cmty. Dev., Inc., 525 N.E.2d 411,
412 (Mass. 1988).

However, such termination must comport with

the covenant of good faith and fair dealing implied in at-will
employment contracts in Massachusetts, which requires that a
party deal “honestly and in good faith in both the performance
and enforcement of the terms of [the] contract.”

Hawthorne’s,

Inc. v. Warrenton Realty, Inc., 606 N.E.2d 908, 914 (Mass.
1993); see Kravetz v. Merchants Distribs., Inc., 440 N.E.2d
1278, 1280 (Mass. 1982) (citing Gram v. Liberty Mut. Ins. Co.,
429 N.E.2d 21 (Mass. 1981); Fortune v. Nat’l Cash Register Co.,
364 N.E.2d 1251 (Mass. 1977)).

Under the Fortune doctrine, “an

employer is accountable to a discharged employee for unpaid
compensation if the employee [is] terminated in bad faith and
the compensation is clearly connected to work already
performed.”

Harrison v. NetCentric Corp., 744 N.E.2d 622, 629

(Mass. 2001).

36

The defendants contend that they had numerous, good faith
reasons for terminating Selfridge.

These reasons were explained

at length by Murray and Anderson in their depositions, and one
basis — that Selfridge barely attended work while she was
enrolled in a full-time clinical unit for her master’s degree —
was supported by Selfridge’s own testimony.
Selfridge has not presented any genuine issues of material
fact that, if resolved in her favor, could allow a factfinder to
conclude that the defendants acted in bad faith in discharging
her.

She offers only the conclusory allegations in her

complaint and her assertion that adverse inferences should be
drawn from Jama’s complete silence in his deposition.

But such

inferences cannot be the sole basis for rebutting the evidence
offered by the defendants.

See Unum Group v. Benefit P’ship,

Inc., 938 F. Supp. 2d 177, 184 (D. Mass. 2013).

Selfridge also

fails to point to any evidence of threatening conduct by any of
the individual defendants.

Recognizing that Selfridge has other

avenues for obtaining relief for unpaid compensation through her
Wage Act claim, I will grant summary judgment for the defendants
on this count.
2.

Breach of Contract (Count V)

Selfridge asserts that the defendants breached the terms of
the employment agreement in (1) purporting to terminate
37

Selfridge’s employment for “adequate cause” without complying
with the requirements for doing so in the agreement and (2)
regardless of the basis for her termination, failing to pay her
either ongoing incentive payments or a termination payment, as
required by the terms of the agreement.

A plaintiff alleging

breach of contract under Massachusetts law must demonstrate that
the parties entered into a valid agreement; the plaintiff was
ready, willing, and able to perform under the agreement; the
defendant breached the agreement; and the plaintiff sustained
damages as a result of the breach.

Singarella v. City of

Boston, 173 N.E.2d 290, 291 (Mass. 1961); see Michelson v.
Digital Fin. Servs., 167 F.3d 715, 720 (1st Cir. 1999).

The

parties’ dispute focuses on whether the defendants indeed
breached the agreement, based on their differing interpretations
of what the agreement requires.
In interpreting the terms of the governing contract, there
is a factual issue for a jury to decide if the language is
ambiguous, such that the terms are facially inconsistent or
“reasonably susceptible to multiple, plausible interpretations.”
Nault v. United States, 517 F.3d 2, 4 (1st Cir. 2008); see
Children’s Hosp. Corp. v. George Washington Univ., 750 F. Supp.
2d 239, 245 (D. Mass. 2010) (citations omitted).

An unambiguous

contract, on the other hand, must be enforced according to its
38

plain terms.

Smart v. Gillette Co. Long Term Disability Plan,

70 F.3d 173, 176-79 (1st Cir. 1995).

A party has breached a

contract if it has failed to perform, under the plain terms of
the contract, and lacks a legal excuse for doing so.

See Realty

Developing Co. v. Wakefield Ready-Mixed Concrete Co., 100 N.E.2d
28, 30 (Mass. 1951).
a. Basis for Selfridge’s Termination
As noted above, where an employment contract does not
specify the duration of employment, an employee is considered to
be at-will and may be terminated with or without cause at any
time.23

See Jackson, 525 N.E.2d at 412.

Under the terms of the

employment agreement, the basis for termination dictates the
form of compensation received by the departing employee.

When

the employee is terminated by the company for “adequate cause”
or at the voluntary election of the employee, the company
selects the compensation option as between two choices: an
ongoing incentive payment or a termination payment.

When an

employee is terminated without adequate cause, however, the

23

Selfridge asserts in a footnote that she could not be
terminated at all, because Jama failed to consult with her prior
to her termination, as required by ¶ 1 of the employment
agreement vesting management responsibilities jointly in Jama
and Selfridge. Although she states that she “is not pursuing
this argument [at] this time,” I note that the employment
agreement could not be read to guarantee Selfridge continued
employment at the company.
39

employee selects the compensation option.

Selfridge asserts

that she was terminated without cause and therefore her
termination should be governed by ¶ 8 of the agreement, allowing
her to elect a compensation mechanism, whereas the defendants
contend that ¶ 6 governs her termination and places the
compensation election in their hands.
“Adequate cause” has a specific definition in the
employment agreement as: “(i) fraud, embezzlement, or other
intentional misappropriation by the Employee from the Company;
(ii) conviction of the Employee of a felony or a misdemeanor
involving moral turpitude; or (iii) conduct by the Employee
involving gross negligence, willful misconduct or other action
which materially damages the reputation or business of the
Company.”

The agreement also states that “[t]he existence of

Adequate Cause shall be determined by unanimous vote of the
remaining Employees of the Company.”

Termination for adequate

cause under the agreement thus requires fulfillment of two
elements: (1) qualifying conduct and (2) termination approval by
all remaining employees.
There is credible evidence that Selfridge engaged in
conduct involving gross negligence or willful misconduct, namely
her allegedly fraudulent or simply rushed completion and
submission of therapy visit notes to MassHealth for
40

reimbursement.

Taking Murray’s allegations as true, this

conduct materially damaged the business of Boston Home Health by
requiring it to return $10,000 worth of payments to Mass Health.
However, Selfridge’s assertions that Murray misunderstood her
visit notes and that she did not engage in inappropriate
behavior arguably create a material dispute on this issue, where
the language of the contract appears to require actual
misconduct rather than merely perceived misconduct.
Even assuming that there is no dispute that Selfridge
engaged in conduct meriting termination for cause, the
defendants have not presented any evidence that the second
requirement has been satisfied.

Although a reasonable inference

could be made from the testimony of Murray and Anderson that
they supported the decision to terminate Selfridge, the
employment agreement clearly requires a unanimous vote of all
remaining employees to support a determination of adequate
cause.24

Accordingly, there is a genuine dispute whether

Selfridge was terminated for adequate cause or not.

24

Contrary to Selfridge’s assertion, the employment agreement
does not require that this vote be in writing; however, some
evidence that a vote occurred and that it was unanimous is
necessary.
41

b. Selfridge’s Entitlement to Incentive Payments
If Selfridge was not terminated for adequate cause, she
would have been entitled to choose between receiving ongoing
incentive payments and receiving a one-time termination payment;
if she was terminated with adequate cause, Boston Home Health
would still have been obligated to pay her one of these forms of
payment upon discharge.

The defendants assert that whether

Selfridge could have selected the payment is irrelevant, because
she would not have received anything under either option.
Boston Home Health had not been making incentive payments at the
time of Selfridge’s termination, and therefore her incentive
payment upon discharge and continuing into the future would be
zero.

Similarly, because termination payments are contingent on

the amount of the incentive payment, her termination payment
would also have been zero.

Accordingly, the defendants ask for

summary judgment in their favor on this count, because
regardless of the basis for Selfridge’s termination, she is not
owed any additional compensation than what she has received.25

25

The defendants also assert that Selfridge’s claim for
incentive payments is belated, as it was not raised in her
complaint, her deposition, or her sworn answers to
interrogatories. They read the complaint as hinging on the
plaintiffs’ ownership claim and therefore contend that the
absence of the terms “incentive payment” and “termination
payment” from her complaint preclude her from raising these
claims. Her complaint is not so limited, however. In her
42

Selfridge recognizes that the employment agreement provides
for payment of incentive payments at the discretion of the
officers based on “the financial condition of the Company,” and
therefore that there could be times when no incentive payment is
made, but emphasizes that the phrase, “‘Incentive Payments’
shall be made” means that the incentive payments are not
discretionary.

When the company is in a financial position to

make such payments, Selfridge contends, they must be paid.
Selfridge does not dispute, however, that neither she nor any of
the individual defendants received an incentive payment during
her time at Boston Home Health because the company was not in a
position to provide them.

Instead, Selfridge asserts that

because Murray received an incentive payment in 2013, she is
entitled to receive the same payment as well.
The parties have identified an ambiguity in the language of
the agreement on its face: whether the incentive payment
breach of contract claim, Selfridge asserts that the defendants
breached the employment contract they had with her, and that she
is entitled to damages for that breach. Because incentive and
termination payments are explicitly provided for in the
employment agreement, a claim for them is implied in her general
breach of contract claim. In addition, Selfridge clearly
contemplated these types of payments in her answers to the
interrogatories, where she indicated that she sought damages of
more than $350,000 in lost income, but that “[t]his amount
continues to increase.” Although Selfridge did not provide the
calculation methodology, as requested, this $350,000 figure
corresponds with her later assessment of the incentive payments
allegedly received by Murray.
43

obligation (and correspondingly the termination payment
obligation) is determined at the time of termination, as the
defendants contend, or whether it imposes an ongoing obligation
on the company to make incentive payments to a former employee
at such time in the future as the company becomes able to pay
them to existing employees, even if it made no such payments
during the former employee’s tenure at the company, as Selfridge
contends.

Where there are multiple interpretations of

contractual language, there is a jury question only to the
extent that those interpretations are reasonable and plausible.
See Nault, 517 F.3d at 4; see also Fashion House, Inc. v. K mart
Corp., 892 F.2d 1076, 1085 (1st Cir. 1989) (court must interpret
contract using “readily ascertainable meaning” that “reasonable
person, reading the document as a whole and in a realistic
context,” would give terms).
The proffer of some possible interpretation of the
contractual language, however, is not enough to survive summary
judgment.

Rather, it must be one “that will give effect to the

chief design to be accomplished by [the contract].”

Mass. Mun.

Wholesale, 577 N.E.2d at 294. Selfridge’s reading of the
employment agreement, although drawn from the plain terms of the
agreement, is not a reasonable or plausible one.

44

The employment agreement is expressly that — an at-will
employment contract — that does not confer any sort of ownership
or ongoing membership in the company beyond employment.

To say

that the incentive payment obligation is dynamic and defined by
the incentive payments actually made over the course of the
continued life of the company is to transform an agreement
governing at-will employment into an agreement to provide a
lifetime annuity, re-calculable each time the performance of the
current employees results in a measurable financial gain for the
company.

Surely a reasonable employee would not understand an

employment agreement to afford such a benefit.

Cf. Metropolitan

Prop. & Cas. Ins. Co. v. Morrison, 951 N.E.2d 662, 671 (Mass.
2011) (construing an insurance contract just as “any other
contract” and “consider[ing] what an objectively reasonable
insured, reading the relevant policy language, would expect to
be covered” (internal quotation marks and citations omitted)).
Instead, the agreement is clearly designed to provide some sort
of severance payment for terminated employees, albeit through a
complicated arrangement of mechanisms, based on their service at
the end of their relationship with the company.
This interpretation is supported by the use of the term
“incentive” to define these payments.

“A contract should be

construed in such a way that no word or phrase is made
45

meaningless by interpreting another word or phrase, because the
interpretation should favor a valid and enforceable
contract . . . .”

Lexington Ins. Co. v. All Regions Chemical

Labs, Inc., 647 N.E.2d 399, 400 (Mass. 1995); see Edmund Wright
Ginsburg Corp. v. C.D. Kepner Leather Co., 59 N.E.2d 253, 257
(Mass. 1945).

An “incentive payment” by name and purpose is

designed to motivate employees to perform at a high level to
ensure the success of the company and correspondingly to reap
the rewards of that success.

See Webster’s Third New

International Dictionary 1141 (1986) (defining “incentive” as
“something that incites or has a tendency to incite to
determination or action”).

It would be perverse to require a

company to provide increased incentive payments to former
employees who are no longer contributing to the success of the
company.

This reading is not inconsistent with providing

“ongoing incentive payments,” where ongoing can — and here, only
reasonably may — be interpreted to mean the continued provision
rather than continuous recalculation.

A reading of the

agreement as a whole thus demonstrates that ongoing incentive
payments are to be made only to the extent that such payments
were made at the time of termination.

See De Freitas v. Cote,

174 N.E.2d 371, 373 (Mass. 1961) (words of contract are to be
given “their plain and ordinary meaning in the light of the
46

circumstances and in view of the subject matter” (citations
omitted)); Rubin v. Murray, 943 N.E.2d 949, 960 (Mass. App. Ct.
2011) (“objective is to construe the contract as a whole, in a
reasonable and practical way, consistent with its language,
background, and purpose” (internal quotation marks and citations
omitted)).
That the valuation of incentive payments owed to an
employee over time is based on the value of any such payments
made at the time of the employee’s termination is consistent
with the language governing termination payments in the
agreement.

Under ¶ 7 of the agreement, the termination payment

is calculated based on “the reasonable present fair market value
of the Employee’s rights to receive Incentive Payments.”

Under

¶ 8, when an employee is terminated without adequate cause, the
company must pay the termination payment, if elected by the
discharged employee, “within thirty (30) days after the
effective date of termination.”

In order to give effect to the

30-day payment requirement under ¶ 8, “present” under ¶ 7 must
mean at the time of termination or as of “the effective date of
termination.”

Even though ¶ 8 is in some ways a more specific

provision than ¶ 7, it can “control the meaning of [the] more
general provision of the same subject,” Kolbe v. BAC Home Loans
Servicing, LP, 738 F.3d 432, 445 n.13 (1st Cir. 2013),
47

particularly if doing so permits the provisions to be
interpreted consistently with one another such that all of the
terms of the contract are given effect.

See Blackie v. State of

Me., 75 F.3d 716, 722 (1st Cir. 1996).
The operation of paragraphs 7 and 8 together, and their
reflection upon the meaning of the entire agreement, permit only
one reasonable interpretation: that the time of termination is
the determinative temporal point on which the incentive and
termination payments are based.

Because the only reasonable

reading of the employment agreement is the calculation of an
incentive payment (and a corresponding termination payment) at
the time of termination, rather than at some point in the
future, there is no basis on which Selfridge could be entitled
to either type of payment, since no incentive payments were made
during her tenure at Boston Home Health.

Accordingly, I will

grant the defendants’ motion for summary judgment and deny
Selfridge’s cross-motion for summary judgment on this count.
3.

Infliction of Emotional Distress

Selfridge alleges that the defendants engaged in
“intentional and outrageous acts which they knew would cause
extreme emotional distress.”

She asserts that she was

terminated without cause, by surprise, and not in compliance
with the procedures required for termination under the
48

employment agreement, and that the defendants “engaged in
vindictive and demeaning conduct which included the non-payment
of wages to Selfridge and meritless threats only to prevent her
from filing this action.”

In her subsequent filings, she

asserts that she has suffered loss of sleep, anxiety, and
depression as a result of these events, and states that she
talked about her emotional distress with a nurse-practitioner
but did not enter into any formal therapy.

In light of these

claims, she seeks damages for both negligent and intentional
infliction of emotional distress.

The defendants assert that

Selfridge’s emotional distress claims are “hollow” and that she
has not met the requisite showing for these claims.
a. Negligent Infliction (Count III)
A claim of negligent infliction of emotional distress in
Massachusetts requires satisfaction of five elements: “(1)
negligence; (2) emotional distress; (3) causation; (4) physical
harm manifested by objective symptomatology; and (5) that a
reasonable person would have suffered emotional distress under
the circumstances of the case.”
N.E.2d 171, 181 (Mass. 1982).

Payton v. Abbott Labs, 437

Physical harm has taken on a

broader significance since Payton; plaintiffs pursuing such a
claim “must corroborate their mental distress claims with enough
objective evidence of harm to convince a judge that their claims
49

present a sufficient likelihood of genuineness to go to trial.”
Sullivan v. Boston Gas Co., 605 N.E.2d 805, 810 (Mass. 1993).
Pulling the facts necessary to satisfy each element of this
claim from Selfridge’s complaint and evidentiary materials is
challenging, but not wholly unsuccessful.

Nowhere does she

pinpoint the alleged negligence resulting in her emotional
distress, although one might infer that her claims that the
defendants wrongly accused her of falsifying therapy visit notes
and failed to consult the employment agreement before
terminating is the basis for her negligence claim.

Selfridge

has demonstrated the possibility of emotional distress and
resulting symptoms.

Indeed, symptoms similar to those Selfridge

alleges have been deemed sufficient to survive a motion for
summary judgment in other cases.

See, e.g., Kelly v. Brigham &

Women’s Hosp., 745 N.E.2d 969, 976-77 (Mass. App. Ct. 2001)
(plaintiff’s own testimony of “cramps, shortness of breath, and
nightmares” was sufficient emotional distress to survive
defendants’ motion for summary judgment); Bresnahan v.
Mcauliffe, 712 N.E.2d 1173, 1177-78 (Mass. App. Ct. 1999)
(anxiety, depression, and anger are adequate symptoms).
Contrast Gutierrez v. Mass. Bay Transp. Auth., 772 N.E.2d 552,
566-67 (Mass. 2002) (tears alone are not adequate “objective
manifestation” of emotional distress).
50

The remaining elements — causation and whether a reasonable
person would experience such distress — are undoubtedly
questions for a jury, and the defendants have not shown that
there are no facts on which a jury could find in Selfridge’s
favor on these elements.

See Payton, 437 N.E.2d at 184 (noting

the difficulty of proving causation in this context).

Where, as

discussed above, there are genuine disputes of material fact
whether the defendants properly terminated Selfridge and
regarding the bases for her termination, and where all
reasonable inferences are to be made in favor of the non-moving
party, a reasonable jury could find that Selfridge has
demonstrated negligent infliction of emotional distress
sufficiently to survive summary judgment.

Cf. Gardner v.

Simpson Financing Ltd. P’ship, 963 F. Supp. 2d 72, 83 (D. Mass.
2013) (jury is entitled to credit potentially self-serving
testimony by plaintiffs of symptoms relevant to emotional
distress claim).

Accordingly, I will deny the defendants’

motion on this count.
b. Intentional Infliction (Count IV)
Selfridge’s claim of intentional infliction of emotional
distress cannot survive summary judgment.

A claim of

intentional infliction of emotional distress in Massachusetts
requires satisfaction of three elements: “(1) that the actor
51

intended to inflict emotional distress or that he knew or should
have known that emotional distress was the likely result of his
conduct; (2) that the conduct was ‘extreme and outrageous,’ was
‘beyond all possible bounds of decency’ and ‘was utterly
intolerable in a civilized community;’ (3) that the actions of
the defendant were the cause of the plaintiff’s distress; and
(4) that the emotional distress sustained by the plaintiff was
‘severe’ and of a nature ‘that no reasonable [person] could be
expected to endure it.’”

Agis v. Howard Johnson Co., 355 N.E.2d

315, 318-19 (Mass. 1976) (internal citation omitted).

The

conduct must be more than “‘mere insults, indignities, threats,
annoyances, petty oppressions or other trivialities’ nor even is
it enough ‘that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been
characterized by ‘malice’ or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort.’”
Tetrault v. Mahoney, Hawkes & Goldings, 681 N.E.2d 1189, 1197
(Mass. 1997).
Whether the “extreme and outrageous” conduct element is
satisfied “can be decided by the court” through assessment of
“the extent and nature of the defendant’s conduct.”

McCarty v.

Verizon New Eng., Inc., 731 F. Supp. 2d 123, 130 (D. Mass. 2010)
52

(quoting Caputo v. Boston Edison Co., 924 F.2d 11, 14 (1st Cir.
1991)).

Without belittling Selfridge’s disputes with the

individual defendants and Boston Home Health, it cannot be said
that those interactions rose to the level of “extreme and
outrageous conduct.”

Selfridge’s allegations leave much to the

imagination of what specific behaviors the defendants engaged in
that could fit this bill, but she has made no indication that
they rise to the level of conduct typically recognized as
“extreme and outrageous.”

Compare Kibbe v. Potter, 196 F. Supp.

2d 48, 72 (D. Mass. 2002) (“frequent instances” of lewd sexual
conduct and insinuation, “if proven, would allow, albeit not
require, a reasonable jury to conclude that [the] conduct was
extreme and outrageous”), with Richey v. American Auto. Ass’n,
Inc., 406 N.E.2d 675, 678 (Mass. 1980) (dismissal of employee as
“a bad, unjust, and unkind decision” is not “extreme and
outrageous conduct,” and collecting cases).

Accordingly, I will

grant summary judgment for the defendants on the intentional
infliction of emotional distress claim.
C.

Statutory Wage Claims
1.

Violation of the Fair Labor Standards Act (Count VI)

The defendants assert that they are entitled to summary
judgment on Selfridge’s claim of a violation of the Fair Labor
Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., because
53

Selfridge has admitted that Boston Home Health did not pay
overtime during her tenure there, and because Selfridge met the
administrative exemption of the FLSA.
The FLSA, in general terms, requires that an employee be
paid a minimum hourly wage and overtime compensation if he or
she works in excess of forty hours in a work week.
§§ 206, 207.

29 U.S.C.

Certain employees are exempt from these

requirements, including those who are “employed in a bona fide
executive, administrative, or professional capacity.”
§ 213(a)(1).

Id.

The Department of Labor has defined such an

employee as one who is “[c]ompensated on a salary or fee basis
at a rate of not less than $455 per week . . . ; (2) [w]hose
primary duty is the performance of office or non-manual work
directly related to the management or general business
operations of the employer or the employer’s customers; and (3)
[w]hose primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.”
29 C.F.R. § 541.200(a) (2014).

The employer bears the burden of

demonstrating that a particular employee falls within the
exemption.
Cir. 2011).

Hines v. State Room, Inc., 665 F.3d 235, 240 (1st
As Judge Stearns recently observed, “[w]hether an

exemption applies implicates questions of both fact and law.
The question of how an employee spends her time is factual,
54

while the issue of whether the nature of her work renders her
exempt from the FLSA’s overtime requirement is a question of
law.”

DiBlasi v. Liberty Mut. Group, Inc., Civ. No. 12-10967-

RGS, 2014 WL 1331056, at *6 (D. Mass. Apr. 3, 2014) (citations
omitted).
The first element is clearly satisfied because Selfridge
earned a salary of $2,000 per week.

The defendants demonstrate

that the second element is satisfied through reference to
Selfridge’s own description of her responsibilities, which
included meeting with doctors, doing payroll, keeping employment
records, collaborating with vendors, inputting data, performing
administrative tasks, and only occasionally seeing patients.
The third element is satisfied through reasonable inferences
that these tasks involve the exercise of discretion, as well as
the express investiture of Selfridge with management authority
by the employment agreement.

The defendants accordingly have

demonstrated that no reasonable juror could find that Selfridge
did not fall within the administrative exemption to the FLSA.
Selfridge’s opposition to the defendants’ summary judgment
motion focuses primarily on her assertion that the employment
agreement explicitly contemplated the payment of overtime wages,
followed by a series of adverse inferences she seeks to draw
from Jama’s invocation of his Fifth Amendment privilege.
55

Specifically, she asserts that the decision of whether overtime
compensation was payable was at Jama’s discretion, that he could
have determined that Selfridge was entitled to overtime
compensation, and that an adverse inference should be drawn that
he would have elected to pay her overtime.

Even if these

inferences were permissible, this would be the basis for a
contractual claim, but not a statutory one.

However, as the

defendants emphasize, this chain of inferences is rebutted by
Selfridge’s clear statement that overtime compensation was not
provided while she was a manager at Boston Home Health and
tasked with making such decisions – a statement corroborated by
Murray and Perez.26

Absent any independent evidence supporting

her suggestion that Jama would have paid her overtime, a
reasonable jury could not find in Selfridge’s favor.
Group, 938 F. Supp. 2d at 184.

See Unum

Accordingly, I will grant

summary judgment for the defendants on this count.
2.

Violation of the Massachusetts Wage Act (Count VII)

Finally, Selfridge raises a claim for unpaid compensation
under the Massachusetts Wage Act.
§§ 148, 150.

See Mass. Gen. Laws ch. 149,

“Section 148 of the Wage Act requires prompt and

full payment of wages due” and prohibits “special contracts”
26

Selfridge’s eligibility for overtime compensation is also
undermined by the testimony of Murray and Selfridge herself that
at times she worked only ten hours a week or less.
56

that aim to thwart the requirements of the Wage Act.
Attorney Gen., 941 N.E.2d 1118, 1120 (Mass. 2011).

Camara v.
Section 148

therefore “generally prohibit[s] an employer from deducting, or
withholding payment of, any earned wages,” even where the
employee has assented to the deduction.

Id. at 1121 (quoting

Mass. Gen. Laws ch. 149, § 148).
Section 150 of the Wage Act recognizes several exceptions
to this general rule, including “the attachment of such wages by
trustee process or a valid assignment thereof or a valid set-off
against the same.”

Mass. Gen. Laws ch. 149, § 150.

The

Massachusetts Supreme Judicial Court has defined “valid set-off”
consistent with “the common, ordinary sense to refer to
circumstances where there exists a clear and established debt
owed to the employer by the employee.”

Somers v. Converged

Access, Inc., 911 N.E.2d 739, 750 (Mass. 2009).

This includes

situations “where there is proof of an undisputed loan or wage
advance from the employer to the employee; a theft of the
employer’s property by the employee, as established in an
‘independent and unbiased proceeding’ with due process
protections for the employee; or where the employee has obtained
a judgment against the employee for the value of the employer’s
property.”

Camara, 941 N.E.2d at 1124 n.13.

57

Selfridge alleges that the defendants have failed to pay
her more than $15,000.

The defendants contend that any unpaid

wages owed to her should be offset by $10,000 for the loss she
caused to Boston Home Health in falsely completing therapy visit
notes, and that this set-off “would exceed any award for ‘back
pay’ she could hope to recover in 2013.”27
As a threshold matter, neither party has offered specific
calculations or supporting evidence as to the precise amount of
unpaid wages, rather than other allegedly unpaid compensation,
Selfridge is owed.28

However, Selfridge stated that there were

times during her employment that she did not receive her full
27

The defendants also contend that Selfridge earned more in 2014
from her other jobs than she would have at Boston Home Health,
and therefore that she is not entitled to any recovery. They do
not cite any cases to support their contention that even if
Selfridge could make a case for liability under the Wage Act,
her claim for damages falls short of any recoverable amount,
because she earned more at her other jobs. The case law
suggests that the defendants’ reading of some sort of mitigation
into the statute is misplaced. In Somers v. Converged Access,
Inc., 911 N.E.2d 739, 744 (Mass. 2009), the court stated that
“‘damages incurred’ by an individual under section 150 for
having been misclassified as an independent contractor rather
than an employee, in violation of section 148B . . . equal the
value of wages and benefits he should have received as an
employee, but did not.” The court rejected the argument that
damages “should be measured by subtracting the compensation the
plaintiff obtained as an independent contractor from the
compensation the plaintiff would have received had he been hired
as an employee.” Id.
28

It is unclear whether Boston Home Health has paid Selfridge
some of what she is owed, and if so what amounts remain
outstanding.
58

wages because the company was unable to pay them.

This is

enough to state a claim and identify a genuine dispute as to
whether Boston Home Health improperly reduced or made deductions
from her earned wages in violation of the Wage Act.
Assuming there is a basis for relief, the defendants have
not demonstrated that they imposed a valid set-off equal to
$10,000 under section 150, such that a reasonable juror could
conclude only that Boston Home Health properly withheld these
monies from Selfridge due to her conduct.

Whether circumstances

involving employee misconduct or employee-induced damages to the
company merit a set-off has been the subject of some confusion
for Massachusetts courts.

See Camara, 94 N.E.2d at 1122-24

(discussing cases grappling with the issue).

In Camara, the

Supreme Judicial Court rejected an agreement between a disposal
service company and its employees that payment for damages to
company trucks and third-party personal property for which an
employee was at fault would be deducted from his or her wages.
Id.

The court concluded that this did not satisfy the policy

purposes of the Wage Act and the contemplated exemptions from it
because “[v]alid setoffs . . . all implicitly involve some form
of due process through the court system, or occur at the
employee’s direction and in the employee’s interests.”
1122.

Id. at

The deductions at issue did not qualify as such because
59

the company had “not shown that any of the employees are legally
liable for damages, or that, with respect to third parties, [the
company] was legally required to make payments on an employee’s
behalf by a judgment.”

Id.

The court reasoned that these

deductions were not “analogous to a setoff to correct an
employee’s misappropriation of an employer’s funds” that would
be valid under section 150 because the internal process employed
by the company involved “a unilateral assessment of liability as
well as amount of damages with no role for an independent
decision maker, much less a court, and, apparently, not even an
opportunity for an employee to challenge the result within the
company.”

Id. at 1122-24.

The resulting determination of

liability and deduction from wages therefore did not rise to the
level of “a clear and established debt owed to the employer by
the employee.”

Id. at 1124 (quoting Somers, 911 N.E.2d at 750).

The defendants point to the testimony of Murray and
Anderson as support for their suggestion that Selfridge’s debt
to Boston Home Health has been established.

These women claim

that Selfridge had filled out visit forms that were required to
be completed by a certified occupational therapist, which
Selfridge was not, and that she had paid Lucey to sign the
forms.

Selfridge denies any wrongdoing and asserts that Murray

and Anderson misunderstood how the notes at issue were prepared
60

and “lacked any basis to determine that [she] had engaged in
inappropriate behavior.”
I conclude that there is a genuine issue of material fact
as to whether Selfridge engaged in conduct that would establish
a debt owed to her employer for the resulting losses.

Further,

I am skeptical whether Boston Home Health’s apparently proactive
withholding of wages, absent any written agreement that such
deductions would be made or formal procedure to determine if
Selfridge engaged in the alleged conduct, and if so, what the
extent of the damages were, could be considered a valid set-off
even if the underlying wrongful conduct is established.

Where

there was not even an internal adjudication, much less a
judicial one, of Selfridge’s liability to Boston Home Health, it
is unlikely that the Wage Act permits the company simply to
withhold what it believes is due to it from an employee’s wages.
Taking Selfridge’s pleadings as true, and making all reasonable
inferences from the evidence in her favor, I am satisfied that
there is a genuine dispute for trial and will deny summary
judgment on this count.
D.

Liability of Individually Named Defendants
The defendants contend that none of the individually named

defendants may be held personally liable for any of the actions
taken by Boston Home Health.

Officers are ordinarily not liable
61

for breach of contract by the corporation, although they may be
liable for tort claims.

Union Mut. Life Ins. Co. v. Chrysler

Corp., 793 F.2d 1, 11 (1st Cir. 1986); see My Bread Baking Co.
v. Cumberland Farms, Inc., 233 N.E.2d 748, 751 (Mass. 1968) (“A
corporation or other person controlling a corporation and
directing, or participating actively in . . . its operations may
become subject to civil or criminal liability on principles of
agency or of causation.”).

To pierce the corporate veil in

Massachusetts and hold individual defendants liable, a court
must consider numerous factors, including “(1) common ownership;
(2) pervasive control; (3) confused intermingling of business
activity assets, or management; (4) thin capitalization; (5)
nonobservance of corporate formalities; (6) absence of corporate
records; (7) no payment of dividends; (8) insolvency at the time
of the litigated transaction; (9) siphoning away of corporate
assets by the dominant shareholders; (10) nonfunctioning of
officers and directors; (11) use of the corporation for
transactions of the dominant shareholders; (12) use of the
corporations in promoting fraud.”

Evans v. Multicon Constr.

Corp., 574 N.E.2d 395, 398 (Mass. App. Ct. 1991); see George
Hyman Const. Co. v. Gateman, 16 F. Supp. 2d 129, 150 (D. Mass.
1998).

On the record before me, there is no evidence that any

of these factors is satisfied for any of the individually named
62

defendants.

Indeed, Selfridge conceded as much at the hearing

on this matter.

Accordingly, I will grant summary judgment as

to the individual defendants on all counts.
VI. CONCLUSION
For the reasons set forth above: the defendants’ motion for
summary judgment (Dkt. No. 24) is GRANTED in full as to the
individual defendants, and GRANTED in part (as to Counts I, II,
IV, V, and VI) and DENIED in part (as to Counts III and VII), as
to Boston Home Health; so much of defendants’ motion for a
protective order (Dkt. No. 25) as remained outstanding following
the January 8, 2015 conference is GRANTED; plaintiff’s crossmotion for summary judgment (Dkt. No. 29) is DENIED; plaintiff’s
motion to strike (Dkt. No. 30) is DENIED in part and ALLOWED in
part; and defendants’ motion to strike plaintiff’s affidavit
(Dkt. No. 34) is DENIED.
It is FURTHER ORDERED that the parties shall file on or
before April 15, 2016 a joint scheduling submission outlining a
proposal for bringing this case to final judgment.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

63