Rock v. Lifeline Systems Company

Filing 18

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER DEFENDANT LIFELINE SYSTEMS COMPANYS PARTIAL MOTION TO DISMISS COMPLAINT (DOCKET ENTRY # 8)is ALLOWED as to Count V and DENIED as to Counts I, II and IX.(Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DENISE ROCK,
Plaintiff,

v.

CIVIL ACTION NO.
13-11833-MBB

LIFELINE SYSTEMS COMPANY,
Defendant.

MEMORANDUM AND ORDER RE:
DEFENDANT LIFELINE SYSTEMS COMPANY’S PARTIAL MOTION TO DISMISS
COMPLAINT (DOCKET ENTRY # 8)
April 22, 2014
BOWLER, U.S.M.J.
Pending before this court is a partial motion to dismiss
(Docket Entry # 8) filed by defendant Lifeline Systems Company
(“Lifeline”) pursuant to Fed.R.Civ.P. 12(b)(6) (“Rule
12(b)(6)”).

Plaintiff Denise Rock (“Rock”) opposes the motion.

(Docket Entry # 13).

After conducting a hearing on January 23,

2014, this court took the motion (Docket Entry # 8) under
advisement.
PROCEDURAL HISTORY
The amended complaint alleges that Lifeline engaged in
gender and age discrimination in violation of Massachusetts and
federal law, wrongful termination of employment in violation of
Massachusetts and federal law, and retaliation in violation of
Massachusetts law and federal law.

(Docket Entry # 4).

It sets

out the following causes of action:

(1) violation of

Massachusetts General Laws chapter 151B (“chapter 151B”) for
discrimination on the basis of gender (Count I); (2) violation
of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e (“Title
VII”), for discrimination on the basis of gender (Count II); (3)
violation of chapter 151B for discrimination on the basis of age
(Count III); (4) violation of Title VII and the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., for
discrimination on the basis of age (Count IV); (5) violation of
public policy under Massachusetts common law for wrongful
termination of employment (Count V); (6) violation of the
whistleblowing protections of the Sarbanes-Oxley Act (“SOX”), 18
U.S.C. § 1514A (“section 1514A”) (Count VI); (7) violation of
chapter 151B for retaliation (Count VII); (8) violation of Title
VII for retaliation (Count VIII); and (9) violation of the
whistleblowing protections of the Consumer Product Safety
Improvement Act (“CPSIA”), 15 U.S.C. § 2087 (“section 2087”)
(Count IX).

(Docket Entry # 4).

counts one, two, five and nine.

The motion seeks to dismiss
(Docket Entry # 8).

STANDARD OF REVIEW
In conducting a Rule 12(b)(6) analysis, a court “accept[s]
as true all well pleaded facts in the complaint and draw[s] all
reasonable inferences in favor of the plaintiffs.”

Gargano v.

Liberty International Underwriters, Inc., 572 F.3d 45, 48 (1st

2

Cir. 2009).

“To survive a motion to dismiss, the complaint must

allege ‘a plausible entitlement to relief.’”
Harris, 549 F.3d 46, 52 (1st Cir. 2008).

Fitzgerald v.

While “detailed factual

allegations” are not required, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement for relief’ requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”

Bell Atlantic

v. Twombly, 550 U.S. 554, 555 (2007); Maldonado v. Fontanes, 563
F.3d 263, 266 (1st Cir. 2009); Thomas v. Rhode Island, 542 F.3d
944, 948 (1st Cir. 2008).

Additionally, “a well-pleaded

complaint may succeed even if . . . actual proof of those facts
is improbable.”

Bell Atlantic v. Twombly, 550 U.S. at 556.

In evaluating a Rule 12(b)(6) motion, a court may consider
inter alia “‘documents central to the plaintiffs’ claim,”
“‘documents sufficiently referred to in the complaint,’” and
“‘documents the authenticity of which are not disputed by the
parties.’”

Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007);

see also Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524
F.3d 315, 321 (1st Cir. 2008); Watterson v. Page, 987 F.2d 1, 3
(1st Cir. 1993).

Lifeline attaches an affidavit with exhibits

consisting of the U.S. Food and Drug Administration (“FDA”)
website printouts (Docket Entry # 11) to its memorandum in
support of the partial motion to dismiss.

(Docket Entry # 9).

Lifeline maintains that this court can take judicial notice of

3

the FDA website printouts.

(Docket Entry # 9).

The exhibits

are relevant to Count IX and their inclusion in the record is
addressed in the discussion section with respect to this count.
FACTUAL BACKGROUND
I.

Administrative Proceedings
On April 26, 2012, Rock filed a charge of discrimination

with the Massachusetts Commission Against Discrimination
(“MCAD”) and the U.S. Equal Employment Opportunity Commission
(“EEOC”) against Lifeline alleging discrimination on the basis
of her age and sex.

(Docket Entry # 4, ¶ 29).

Lifeline

received the charge around the first week of May 2012.
Entry # 4, ¶ 29).

(Docket

On May 7, 2012, Rock filed a charge in

violation of the whistleblower protections of SOX with the U.S
Department of Labor (“DOL”). (Docket Entry # 4, ¶ 4).

Rock

“later added . . . a charge of violation of the whistleblower
provisions of [CPSIA].”

(Docket Entry # 4, ¶ 4).

On June 14, 2012, Lifeline terminated Rock’s employment.
(Docket Entry # 4, ¶ 29).

On December 14, 2012, Rock filed a

second charge of discrimination with the MCAD and the EEOC
alleging discrimination on the basis of her age, sex and
retaliation.

(Docket Entry # 4, ¶ 4).

On March 22, 2013, Rock

requested to withdraw the charges of wrongful termination with
the DOL because no determination on her claims had been made
within 180 days of filing her claim.

4

(Docket Entry # 4, ¶ 5).

On May 9, 2013, the EEOC issued a right to sue letter.

(Docket

Entry # 4, ¶ 5).
II.

Factual Background
Up until her termination, Rock was employed at Lifeline for

12 years as a sales person or, to use the formal title, an
“‘account representative.’”

(Docket Entry # 4, ¶ 9).

Lifeline,

“also known as Lifeline Systems, Inc., Philips Lifeline or
Philips,” is a subsidiary or “sister” company of Royal Philips
Electronics (“Royal”).

(Docket Entry # 4, ¶ 9).

Rock initially

worked at Lifeline Systems, Inc. beginning in 2000.
Entry # 4, ¶ 9).

(Docket

Thereafter, she also worked at Philips

Lifeline, which subsequently changed its name to Lifeline
Systems Company, i.e., Lifeline.

(Docket Entry # 4, ¶ 10).

Royal acquired Lifeline in 2006 and Health Watch, Inc.
(“Health Watch”) in 2007.

(Docket Entry # 4, ¶ 12).

Both

Lifeline and Health Watch manufacture and sell devices that
provide medical alert warnings from a customer’s residence to a
central location from which assistance can be provided.
Entry # 4, ¶ 12).

(Docket

Subscribers to “the Lifeline System” “wear a

button around their neck or wrist, and in case of emergency they
press the button that transmits a signal to a transmitter in
their home, which in turn will transmit an emergency response to
a trained response associate 24 hours a day, 365 days a year.”
(Docket Entry # 4, ¶ 12).

5

Rock was born in 1957 and was one of the oldest salespeople
in her department.

(Docket Entry # 4, ¶¶ 6 & 28).

Throughout

her employment, Rock was “consistently in the top 4 or 5
performers in her department in terms of sales and revenue
results.”

(Docket Entry # 4, ¶ 10).

an excellent fashion.”

She “performed her job in

(Docket Entry # 4, ¶ 10).

In September 2007, Rock learned from a Health Watch manager
that a “patient death in a fire had likely been caused by faulty
Health Watch equipment, and that at least six other subscribers
had died in similar circumstances.”

(Docket Entry # 4, ¶ 13).

Rock told the manager that, “the matter would have to be
reported to [Lifeline].”

(Docket Entry # 4, ¶ 13).

The

manager, however, “asked [Rock] to promise that she would not
report it.”

(Docket Entry # 4, ¶ 13) (emphasis in original).

Rock immediately reported the conversation to a “Philips
attorney” on the Health Watch Acquisition Team (“the quality
team”).

(Docket Entry # 4, ¶ 14).

to her September 25, 2007 email.

The attorney did not respond
(Docket Entry # 4, ¶ 14).

Rock then “forwarded the email to another attorney who was a
Philips Ethics Officer.”

(Docket Entry # 4, ¶ 14).

The second

attorney “responded to the email and stated that he had spoken
to the first attorney, and that [Rock] would be called so the
Company could look into this ‘Product Liability’ matter.”
(Docket Entry # 4, ¶ 14).

Shortly after Rock “reported this

6

information, the Health Watch Acquisition Team put together an
aggressive plan to ‘swap’ Health Watch equipment ahead of [an]
original schedule.”

(Docket Entry # 4, ¶ 14).

In early October 2007, Rock learned that her “job and
compensation were being changed in a manner which would clearly
result in her having less income.”

(Docket Entry # 4, ¶ 16).

As noted, she was one of the top performers in her department in
both “sales and revenue results.”

(Docket Entry # 4, ¶ 10).

Rock’s job performance did not justify the changes.
Entry # 4, ¶ 16).

(Docket

In November 2007, Rock informed two of the

Philips’ attorneys that “it was her belief that she was being
retaliated against for reporting the fire deaths.”

(Docket

Entry # 4, ¶ 16).
In 2008, Rock received a “low performance evaluation which
was particularly critical regarding ‘communications and
effective working relations.’”

(Docket Entry # 4, ¶ 17).

She

“received a 4% bonus rather than the 12% to 18% bonus that she
should have earned for exceeding her sales goals.”
Entry # 4, ¶ 17).

(Docket

The bonus reduction was “one of a number of

the actions Philips Lifeline/Lifeline Systems took against
[Rock] . . . to make her job as unpleasant as possible in the
hope that she would resign.”

(Docket Entry # 4, ¶ 17).

In early 2009, Rock learned that at least one patient had
died due to strangulation “by a Lifeline cord.”

7

(Docket Entry #

4, ¶ 18).

Rock “informed a Product Marketing Manager that she

would refuse to respond to inquiries about this by giving a
misleading statement.”

(Docket Entry # 4, ¶ 18).

On October 1, 2009, Rock learned that another subscriber’s
Lifeline equipment had “caught fire while plugged into an
electrical outlet.”

(Docket Entry # 4, ¶ 19).

This was the

first time Rock learned that the Lifeline units, as opposed to
just the Health Watch units, “had issues with catching fire.”
(Docket Entry # 4, ¶ 19).
for testing.”

The burned equipment was “submitted

(Docket Entry # 4, ¶ 19).

Upset that the

Lifeline units might cause fires and deaths, Rock contacted the
first attorney she contacted in 2007 and informed the attorney
that one of the “Lifeline units had spontaneously burst into
flames.”

(Docket Entry # 4, ¶ 19).

The attorney assured her

that the quality team was working on the matter.

(Docket Entry

# 4, ¶ 19).
On December 17, 2009, Rock learned “that two Lifeline
subscribers had died in a fire.”

(Docket Entry # 4, ¶ 20).

informed her supervisor, “who made light of the issue.”
Entry # 4, ¶ 20).
to in 2007.

(Docket

She then emailed an attorney she had spoken

(Docket Entry # 4, ¶ 20).

He informed her to

contact the first attorney she spoke to in 2007.
# 4, ¶ 20).

She

(Docket Entry

Around this time period, “Rock began to hear rumors

that she was going to be fired.”

(Docket Entry # 4, ¶ 20).

8

In late 2009, Rock met with a person on the quality team
“to discuss the Lifeline product defect.”
21).

(Docket Entry # 4, ¶

She left the meeting “feeling hopeless.”

4, ¶ 21).

She now believed that Lifeline would not reveal the

problems to subscribers or the public.
21).

(Docket Entry #

(Docket Entry # 4, ¶

She “knew that the matter would not be properly handled,

based upon the way the Health Watch equipment issues had been
handled.”

(Docket Entry # 4, ¶ 21).

In 2010, Rock again received a “negative review, with an
overall low rating despite that fact that her manager had told
her how well she was doing.”

(Docket Entry # 4, ¶ 22).

“Virtually all members of [Rock’s] sales team received merit
increases in 2010, with the exception of [Rock].”
# 4, ¶ 22).

(Docket Entry

She did not receive an explanation for the denial

of a merit raise.

(Docket Entry # 4, ¶ 22).

Thereafter, she

complained to human resources that her whistleblowing was the
cause of the negative review.

(Docket Entry # 4, ¶ 22).

treatment continued through 2011 and 2012.

The

(Docket Entry # 4, ¶

22).
In late 2011, Rock’s attorney contacted a number of present
as well as past Lifeline employees “who had dealt with [Rock]”
and inquired about the “defective products.”
¶ 23).

(Docket Entry # 4,

Shortly after these telephone calls, “the retaliation

against [Rock] dramatically increased.”

9

(Docket Entry # 4, ¶

24).

Around the same time period, Rob Wolf (“Wolf”) became the

area vice president of sales for corporate accounts at Lifeline. 1
(Docket Entry # 4, ¶ 25).

He was a friend of several employees

“involved with the Health Watch transition” and “were aware of
[Rock’s] reporting.”

(Docket Entry # 4, ¶ 25).

Wolf “displayed

an intense dislike” for Rock and joined with these employees “to
compel Rock to resign” or terminate her employment.

(Docket

Entry # 4, ¶ 25).
In January 2012, Wolf placed Rock on a two month
Performance Improvement Plan (“PIP”).

(Docket Entry # 4, ¶ 27).

The PIP was “unjustified” and established “unrealistic and
unattainable goals” for her to achieve.
27).

(Docket Entry # 4, ¶

On March 12, 2012, Rock was given a “‘Final Warning

Letter’ regarding supposedly unsatisfactory job performance.”
(Docket Entry # 4, ¶ 27).
“Younger employees, male employees, and in particular
younger female employees” at Lifeline were “held to a less
strict performance standard” than Rock.
24).

(Docket Entry # 4, ¶

By the middle of 2011, Rock “was meeting her goals, and

she eventually exceeded her year end revenue goal, placing fifth
in her department, an excellent result.”
28).

(Docket Entry # 4, ¶

She was “responsible for 30% of the Company’s equipment

1

Wolf replaced a male who held the same position.

¶ 25).

10

(Docket Entry # 4,

revenue for January 2012.”

(Docket Entry # 4, ¶ 28).

“Underperforming younger employees in her department were given
better reviews” than Rock and were not placed on a PIP.
Entry # 4, ¶ 28).

(Docket

Whereas Rock’s PIP criticized “her ‘call

volume,’” younger as well as male employees were not criticized
for their lower call volume statistics.
28(3)).

(Docket Entry # 4, ¶

Younger coworkers in her department were not

disciplined or criticized for socialization and inattentiveness.
(Docket Entry # 4, ¶ 28).

A number of younger employees also

“surfed the internet” and made few work calls during the day yet
were not criticized or disciplined for such conduct.

(Docket

Entry # 4, ¶ 28).
A Senior Human Resources Manager also told Rock “that she
should not bother to spend the time to defend her work in
response to an unfair evaluation she had received.”
Entry # 4, ¶ 28).

(Docket

Rock “overheard a manager say that the way to

‘get rid of’ an employee who is performing satisfactorily in
terms of their statistics, is to criticize them for their ‘job
skills,’ which was one of the techniques used against [Rock].”
(Docket Entry # 4, ¶ 28).
In early April 2012, 2 Rock “became aware that certain of
Lifeline’s ‘AutoAlert Help Buttons’ might not be operating

2

The amended complaint refers to the date as April 2013, a time when
Rock no longer worked at Lifeline. (Docket Entry # 4). This court draws the
reasonable inference that the correct year is 2012.

11

properly, might be defective, and that users of the Lifeline
System might have suffered injuries or death as a result . . ..”
(Docket Entry # 4, ¶ 30).

A suspect button was submitted for

testing by Lifeline after an incident involving a customer
falling and it “had been found not to be functioning normally
during laboratory tests, due to a faulty aspect of the button.”
(Docket Entry # 4, ¶ 30).

Rock was “told by the technician who

performed the testing that she should not discuss this
information with the customer.” 3

(Docket Entry # 4, ¶ 30).

Rock

stayed involved in the investigation of the button failure.
(Docket Entry # 4, ¶ 31).
Later in April 2012, 4 Rock learned that a second button had
failed to detect a fall.

(Docket Entry # 4, ¶ 32).

Although

the button was purportedly “sent to Lifeline for testing after
the incident, Lifeline technicians claimed that they never
received [it], and that it had been lost in the process of being
transmitted to them.”

(Docket Entry # 4, ¶ 32).

In late April 2012, 5 Rock “wrote to the Lifeline technician
and several Managers asking why the information regarding the
defective units would not be reported to customers so that

3

Like other third party statements in the amended complaint, this
statement is not considered for the truth of the matter asserted.
4

See fn. 2.

5

See fn. 2.

12

customers and subscribers to Lifeline System[s] could make
informed decisions regarding the use of the system.”
Entry # 4, ¶ 33).

(Docket

Rock was told that she should direct her

requests through Lifeline’s legal department.

(Docket Entry #

4, ¶ 33).
On June 7, 2012, 6 Rock learned of a third button that had
malfunctioned, resulting in an undetected fall that led to a
customer’s death.

(Docket Entry # 4, ¶ 35).

Technical support

initially told Rock “that the ‘button’ was not defective,” but
later told her that it was never received by Lifeline and thus
never tested.

(Docket Entry # 4, ¶ 35).

The customer insisted

that the button had been sent for testing and Rock informed
technical support that the button had been sent to Lifeline.
(Docket Entry # 4, ¶ 35).
On June 11, 2012, 7 Rock sent an email “to the Technical
Support and Quality Managers at Lifeline, explaining the
situations with the three ‘buttons,’ expressing her concern that
allegedly defective equipment had been ‘lost’ three times, that
she had been informed of other defective AutoAlert Help Buttons,
and asking what Lifeline’s obligation was to report to customers
the results of equipment sent back for testing.”
# 4, ¶ 36).

(Docket Entry

On June 14, 2012, Rock sent an additional email as

6

See fn. 2.

7

See fn. 2.

13

she had not heard back from either technical support or the
quality managers. 8

(Docket Entry # 4, ¶ 37).

Shortly

thereafter, on June 14, 2012, Rock was informed that her
employment was terminated.

(Docket Entry # 4, ¶¶ 1 & 37).

Lifeline hired a female in her thirties to replace Rock.
(Docket Entry # 4, ¶ 26).

“[H]er territory was given to a male

employee in his 40s who had been with the company for several
years.”

(Docket Entry # 4, ¶ 26).
DISCUSSION

I.

Gender Discrimination (Counts I and II)
Lifeline argues that counts one and two are subject to Rule

12(b)(6) dismissal because the amended complaint fails to allege
a prima facie case of gender discrimination.
p. 1).

(Docket Entry # 8,

Specifically, with respect to the fourth element,

Lifeline contends that Rock fails to allege that an individual
outside Rock’s protected class received favorable treatment or
was hired in her place.

(Docket Entry # 8, p. 1).

Rock submits

that the prima facie case for gender discrimination does not
require a showing of “comparator evidence” and that a
demonstration of discriminatory animus and causation by “proof
of pretext” is sufficient to survive dismissal.
13, pp. 6 & 7).

8

See fn. 2.

14

(Docket Entry #

Lifeline and Rock disagree on the appropriate prima facie
showing for gender discrimination under chapter 151B and Title
VII.

(Docket Entry # 8 & # 13).

Under the paradigm set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04
(1973), the plaintiff employee bears the initial burden of
showing a prima facie case for discrimination by a preponderance
of the evidence.

The burden then shifts to the defendant

employer “to articulate some legitimate, nondiscriminatory
reason” for its adverse employment action against the
plaintiff.”

See Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 248 (1981).

The final burden rests upon the plaintiff

employee to “submit evidence that the defendant’s articulated
reason for the termination was not the real one, but a pretext,
or cover-up, for the discriminatory motive underlying the
plaintiff's termination.”

Knight v. Avon Products, Inc., 780

N.E.2d 1255, 1262, n.4 (Mass. 2003); see Loeb v. Textron, Inc.,
600 F.2d 1003, 1012 (1st Cir. 1979).
“‘The analysis of a gender discrimination claim is
essentially the same under the State and Federal statutes.’”
Beal v. Board of Selectmen of Hingham, 646 N.E.2d 131, 138 n.5
(Mass. 1995) (internal brackets omitted).

Ordinarily, “a

plaintiff establishes a prima facie case by showing that (1)
[she] is a member of a protected class; (2) [she] was qualified
for the job; (3) the employer took an adverse employment action

15

against [her]; and (4) the position remained open or was filled
by a person with similar qualifications.”

Kosereis v. Rhode

Island, 331 F.3d 207, 213 (1st Cir. 2003); accord Garcia v.
Bristol-Myers Squibb Co., 535 F.3d 23, 31 n.2 (1st Cir. 2008).
“The last two elements may ‘vary according to the nature of
the plaintiff’s claim.’”

Cham v. Station Operators, Inc., 685

F.3d 87, 93 (1st Cir. 2012) (internal brackets omitted); Abramian
v. President & Fellows of Harvard College, 731 N.E.2d 1075, 1084
(Mass. 2000) (elements of chapter 151B prima facie case “‘may
vary depending on the specific facts of a case’”).

Another

formulation of the fourth element in a prima facie gender
discrimination case resulting in termination is that the
“employer sought a replacement with similar qualifications.”
Beal v. Board of Selectmen of Hingham, 646 N.E.2d at 138; accord
White v. University of Massachusetts at Boston, 574 N.E.2d 356,
358 (Mass. 1991) (stating fourth element in gender
discrimination wrongful termination case as “employer sought a
replacement with similar qualifications”); Gomez-Gonzalez v.
Rural Opportunities, Inc., 626 F.3d 654, 662 (1st Cir. 2010)
(fourth element of “prima facie case of gender-based
discriminatory discharge under Title VII” is that “employer
sought someone of roughly equivalent qualifications to perform
substantially the same work”).

16

In reduction in force cases, however, “the fourth prong is
unworkable because the plaintiff’s position no longer exists.”
Lewis v. City of Boston, 321 F.3d 207, 214 n.6 (1st Cir. 2003).
The two reduction in force cases cited and relied upon by Rock 9
are therefore distinguishable.
The prima facie framework is nonetheless “not a mechanical
exercise.”
Cir. 1994).

Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st
Furthermore, in a 1990 First Circuit case, the

court noted that, “[W]e have never held that the fourth element
of a prima facie discharge case can be fulfilled only if the
complainant shows that she was replaced by someone outside the
protected group.

Indeed, we have said precisely the opposite.”

Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 155 (1st
Cir. 1990) (gender discrimination brought by former female
employee) (emphasis added).

Cumpiano thus held “that, in a case

where an employee claims to have been discharged in violation of
Title VII, she can make out the fourth element of her prima
facie case without proving that her job was filled by a person
not possessing the protected attribute” and that “a complainant
can satisfy the fourth prong of her prima case simply by showing
9

Sullivan v. Liberty Mutual Insurance Co., 825 N.E.2d 522 (Mass.
2005), and Trustees of Health & Hospitals of City of Boston, Inc. v.
Massachusetts Commission Against Discrimination, 871 N.E.2d 444 (Mass. 2007).
In fact, the Sullivan court acknowledges that, “the fourth element is
nonsensical in a reduction in force case: the plaintiff is not replaced, nor
does her employer ‘seek to fill’ the position, for the very purpose of a
workforce reorganization is generally to reduce the number of employees.”
Sullivan v. Liberty Mutual Insurance Co., 825 N.E.2d at 531.

17

that . . . the employer had a continued need for ‘someone to
perform the same work after the complainant left.’”

Id.

(internal brackets omitted); see Miles v. Dell, Inc., 429 F.3d
480, 487 n.3 (4th Cir. 2005) (collecting case law); Pivirotto v.
Innovative Systems, Inc., 191 F.3d 344, 353 (3rd Cir. 1999)
(noting “that seven of the eight federal courts of appeals to
have addressed it have held that a plaintiff need not prove, as
part of her prima facie case, that she was replaced by someone
outside of the relevant class”); see Caesar v. Shinseki, 887
F.Supp.2d 289, 303 (D.Mass. 2012) (dicta noting that while
“‘attributes of a successor employee may have evidentiary force
in a particular case,’ plaintiff is certainly not required to
prove ‘that her job was filled by a person not possessing the
protected attribute’”); Douglas v. J.C. Penney Co., Inc., 422
F.Supp.2d 260, 273 (D.Mass 2006) (fact that plaintiff, a male,
“was replaced with a male has ‘evidentiary force,’ but does not
defeat his prima facie case”).
In the case at bar, Lifeline hired another female to
replace Rock as a sales representative.

Lifeline however gave

her territory to a male employee who, viewing the record in
Rock’s favor, assumed the duties of Rock’s position.

Giving

Rock’s territory to a male employee coupled with an adequate
showing that Lifeline had a continued need “for ‘someone to
perform the same work after the complainant left,’” Cumpiano v.

18

Banco Santander Puerto Rico, 902 F.2d at 155, as shown by the
fact that it hired a replacement, provides an adequate showing
to satisfy the relatively easy burden of the prima facie
showing.

See Kosereis v. Rhode Island, 331 F.3d at 213 (prima

facie showing “is not onerous and is easily made”) (omitting
citation and internal quotation marks).

Lifeline’s argument

seeking dismissal on the basis of Rock’s failure to meet the
fourth element of a prima facie case is therefore unavailing.
Citing paragraph 24 of the first amended complaint,
Lifeline argues that Rock cannot state a claim of gender
discrimination “when she unequivocally alleges that the
employees who she claims were treated more favorably than she
was were female.”

(Docket Entry # 9).

It is true that

paragraph 24 states that Lifeline held “younger female
employees” to a less strict performance standard than Rock.

The

paragraph also alleges however that Lifeline held “male
employees” to a less strict performance standard than Rock.
Lifeline therefore overstates the significance of the allegation
and, accordingly, it does not provide a sufficient basis to
dismiss counts I and II.
Lifeline next contends that, “[Rock] has not pled that male
employees with performance issues similar to hers were not
terminated or disciplined by Lifeline.”

(Docket Entry # 9).

Rock is not required to offer and analyze comparator evidence as

19

part of the prima facie case.

See Cham v. Station Operators,

Inc., 685 F.3d at 94 n.4 (“‘time to consider comparative
evidence in a disparate treatment case is at the third step of
the burden-shifting ritual . . .,’ as opposed to as part of a
plaintiff’s prima facie case”); Conward v. Cambridge School
Committee, 171 F.3d 12, 19 (1st Cir. 1999); see also Fernandes v.
Costa Brothers Masonry, Inc., 199 F.3d 572, 584-585 (1st Cir.
1999).
In sum, with respect to Lifeline’s arguments, the first
amended complaint states a plausible entitlement to relief with
respect to counts I and II.
II.

Wrongful Termination (Count V)
Lifeline seeks to dismiss Count V because section 1514A of

SOX, which Rock invokes in Count VI, preempts the common law
claim of wrongful termination in violation of public policy.
Lifeline also argues that Rock bases her wrongful termination
claim on whistleblowing and, because section 1514A of SOX
provides her a comprehensive remedy, she cannot maintain a
wrongful termination claim based on the public policy exception
to at-will employment.

(Docket Entry # 9, pp. 7-8).

Thus,

according to Lifeline, the common law claim “may not be invoked
when, as here, there is an adequate statutory remedy.”
Entry # 9, p. 8).

20

(Docket

Rock reasons that because “[t]here has been no
determination that [Rock’s] specific claims are covered by
[SOX’s] whistleblower protections,” it is “premature to rule on
whether or not [her] claims under [SOX] are preempted by her
state wrongful termination in violation of public policy
claims.”

(Docket Entry # 13, p. 3).

In light of the ability to

plead claims alternatively or inconsistently, Rock argues that
such a determination is appropriate for consideration after
discovery upon summary judgment.

(Docket Entry # 13, p. 3).

The purpose of SOX is to “[protect] ‘whistleblower’
employees of publicly-traded companies by prohibiting employers
from retaliating against employees because they provided
information about specified potentially unlawful conduct.”
v. Staples, Inc., 555 F.3d 42, 52 (1st Cir. 2009).

Day

As explained

in Day:
Those types of [unlawful] conduct fall into three broad
categories: (1) a violation of specified federal criminal
fraud statutes: 18 U.S.C. § 1341 (mail fraud), § 1343
(wire fraud), § 1344 (bank fraud), § 1348 (securities
fraud); (2) a violation of any rule or regulation of the
[Securities and Exchange Commission]; and/or (3) a
violation of any provision of federal law relating to fraud
against shareholders.
Id. at 54-55.

SOX provides a private cause of action that:

authorizes an award of make-whole relief to an employee
who prevails in the DOL administrative proceedings. This
can include reinstatement with “the same seniority status
that the employee would have had but for the
discrimination,” “back pay, with interest,” and

21

compensation for any special damages sustained, including
litigation costs, and reasonable attorneys’ fees.
Day v. Staples, Inc., 555 F.3d at 53; see 18 U.S.C. §
1514A(c)(2); see also 29 C.F.R. § 1980.105(a).
Turning to Lifeline’s argument that SOX provides a
comprehensive remedy for whistleblowing, Massachusetts law
recognizes a common law claim “‘for employees who are terminated
for asserting a legally guaranteed right (e.g., filing workers’
compensation claim), for doing what the law requires (e.g.,
serving on a jury), or for refusing to do that which the law
forbids.’”

Acher v. Fujitsu Network Communications, Inc., 354

F.Supp.2d 26, 29 (D.Mass. 2005).

“Similarly, an employee may

not be terminated for assisting in an ongoing governmental
investigation into illegal conduct, or reporting suspected
violations of safety standards that present a threat to the
safety of the population at large.”

Id.

(internal citations

omitted); see Dineen v. Dorchester House Multi-Serv. Ctr., Inc.,
2014 WL 458188, at *3 (D.Mass. Feb. 3, 2014) (courts “‘justify
legal redress in certain situations for employees terminated for
performing important public deeds, even though the law does not
absolutely require the performance of such a deed’” and
whistleblowing “‘may’ fall into this category”).

The

Massachusetts Supreme Judicial Court (“SJC”) makes clear however
“that ‘a statute itself may provide that an employer may not

22

terminate an employee for exercising rights conferred by the
statute, and in such a case, the common law public policy
exception is not called into play.’”

Id. at *4; King v.

Driscoll, 638 N.E.2d 488, 494 n.7 (Mass. 1994); Valerio v.
Putnam Associates Inc., 173 F.3d 35, 45-46 (1st Cir. 1999)
(agreeing with lower court “that Massachusetts does not appear
to recognize a common law cause of action [for wrongful
termination] where the relevant public policy has already been
vindicated by a state or federal statute”).

The court in

Valerio therefore affirmed the district court’s allowance of
summary judgment on a wrongful termination in violation of
public policy claim as precluded by the federal remedy under
Fair Labor Standards Act.

Id.

In other words, when an

“employee is terminated for exercising her statutory right, and
the statute provides the employee with a statutory remedy for
that type of retaliatory termination, the statutory remedy
preempts the common-law wrongful-discharge claim.”

Crevier v.

Town of Spencer, 600 F.Supp.2d 242, 265 (D.Mass. 2008).
Finally, the SJC “consistently” interprets the “public policy
King v. Driscoll, 638 N.E.2d at 492.

exception narrowly.”

SOX constitutes comprehensive and pervasive legislation
that provides a statutory remedy for whistleblowing by employees
in publicly-traded companies.
F.3d at 52, 59-60.

See Day v. Staples, Inc., 555

The First Circuit in Day allowed summary

23

judgment in favor of Staples, Inc. on a common law wrongful
termination claim based on the public policy exception to atwill employment because of the comprehensive framework of SOX:
Day does not have a claim for wrongful termination under
Massachusetts common law. In passing SOX, Congress aimed
to create comprehensive legislation to fill the gaps in a
patchwork of state laws governing corporate fraud and
protections for whistleblowers. It would be entirely
inappropriate for plaintiff to be able to use a federal
statute designed to address the inadequacies of state law
to create a new common law cause of action under
Massachusetts law.
Id. at 59-60.

A statutory framework does not need to be

“comprehensive” for it to prohibit a common law claim for
wrongful termination.

See Dineen v. Dorchester House Multi-

Serv. Ctr., Inc., 2014 WL 458188, at *5 (the SJC, “the final
arbiter of the contours of the exception to the common law rule,
never imposed the term ‘comprehensive’ as a precondition”).
In the case at bar, the allegations that give rise to
Rock’s common law claim arise from the same set of facts giving
rise to her SOX claim.

(Docket Entry # 4); see Dineen v.

Dorchester House Multi-Serv. Ctr., Inc., 2014 WL 458188, at *4
(denying plaintiff ability to plead common law claim for
wrongful termination in violation of public policy when “[h]er
common law claim not only invokes the same public policy
established by the federal statute, it arises from the very acts
giving rise to her federal claim”).

Rock alleges in the amended

complaint that she “was fired for doing what the law requires,

24

namely reporting to her supervisors and managers improper
activities which she believed violated various laws, rules and
regulations, and which caused a serious danger to the public
health and safety.”

(Docket Entry # 4, ¶ 48).

The facts

supporting the SOX claim are premised on “providing information
to persons with supervisory authority over her and persons
having the authority to investigate, discover or terminate
misconduct, with regard to matters she reasonably believed to
constitute bank fraud, wire fraud and fraud on investors.”
(Docket Entry # 4, ¶ 40).

SOX is designed to protect employees

from the very same set of actions that Rock presently invokes in
the wrongful termination claim.

Her reporting of the “suspected

violations of safety standards” that she believed “present a
threat to the safety of the population at large,” Acher v.
Fujitsu Network Communications, Inc., 354 F.Supp.2d at 29,
arises from the same conduct that prompted her to report the
alleged mail, wire and securities fraud.

(Docket Entry # 4, pp.

15-16).
Rock therefore does not have a viable common law claim of
wrongful termination in violation of public policy.
Accordingly, it is not necessary to address the arguments of
preemption and alternative pleading as per Rule 8(d).
III.

CPSIA (Count IX)

25

Lifeline argues that Count IX should be dismissed because
the Lifeline devices that are the basis of the CPSIA claim are
registered under the Federal Food, Drug, and Cosmetic Act, 15
U.S.C. §§ 360 et seq. (“FDCA”).

Consequently, such “devices”

are not “consumer products” within the meaning of CPSIA.
(Docket Entry # 9, p. 10).

Alternatively, Lifeline argues that

Rock failed to comply with the procedural requirements of CPSIA
by not alleging that she filed a complaint “with the Secretary
of Labor within 180 days of the alleged violation” (Docket Entry
# 9, pp. 12-13).

See 15 U.S.C. § 2087(b).

CPSIA defines the term “consumer product” as any article
for sale to a consumer for use in or around a household or
school or any article for “the personal use, consumption or
enjoyment of a consumer in or around” a household or school.
U.S.C. § 2052(H).

15

The term excludes “drugs, devices, or

cosmetics (as such terms are defined in sections 201(g), (h),
and (i) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. §
321(g), (h), and (i)]).”

15 U.S.C. § 2052(H)(5); see Goldsmith

v. Mentor Corp., 913 F.Supp. 56, 63 (D.N.H. 1995).

Accordingly,

“[M]edical ‘devices’ covered by the Federal Food, Drug, and
Cosmetic Act are specifically not included in the CPSA’s
definition of consumer products.”

Kemp v. Pfizer, Inc., 835

F.Supp. 1015, 1024 (E.D.Mich. 1993) (citing 15 U.S.C. § 2052).

26

Because the Lifeline products at issue are registered
devices under the FDCA, Lifeline maintains that they are not
consumer products governed by CPSIA and, consequently, are not
subject to protection under the statute’s whistleblower
provision.

(Docket Entry # 9).

In order to establish that the

Lifeline products at issue are regulated by the FDCA, Lifeline
attaches to its memorandum (Docket Entry # 9) an affidavit with
exhibits (Docket Entry # 11) that purportedly detail the
Lifeline products at issue as registered devices on the FDA
website.

(Docket Entry # 11); see 15 U.S.C. § 2052.

Rock

concedes that if the Lifeline devices are registered under the
FDA, the claim under CPSIA would be improper.
13, p. 16).

(Docket Entry #

Rock maintains, however, that “the [exhibits]

presented on the Motion to Dismiss are inadequate for a
determination on this issue” and that Rock “is entitled to
engage in discovery on this issue.”

(Docket Entry # 13, p. 16).

“Ordinarily . . . any consideration of documents not
attached to the complaint, or not expressly incorporated
therein, is forbidden, unless the proceeding is properly
converted into one for summary judgment under Rule 56.”
Watterson v. Page, 987 F.2d at 3.

Lifeline cites In re Fruit

Juice Products Mktg. & Sales Practices Litig., 831 F.Supp.2d
507, 509 (D.Mass. 2011), as an example where the court
“allow[ed] and [took] judicial notice of information from [the]

27

FDA website and grant[ed] defendant’s motion to dismiss based on
it.”

(Docket Entry # 9, p. 11).

The plaintiffs in that case,

however, did not oppose the defendant’s request for the court to
take judicial notice.

See id. at 509.

Here, because Rock

maintains that “the accuracy and authenticity of the attachments
are far from clear” (Docket Entry # 13, p. 16), she implicitly
opposes any request for judicial notice of Lifeline’s exhibits.
Rock disputes both the accuracy of the attachments and that
the devices referred to therein are the devices at issue in this
action.

Federal Rule of Evidence 201 (“Rule 201”) allows a

court to take judicial notice of a fact “at any stage of a
proceeding.”

F.R.E. 201(d).

A court may take judicial notice

of “a fact that is not subject to reasonable dispute because it
. . . can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”

F.R.E. 201(b).

It is also true that a “Court can take judicial notice and
consider documents posted on a government website.”

Hadley v.

Chrysler Group LLC, 2014 WL 988962, at *2 (E.D.Mich. March 13,
2014).

Where, as here, the information on the website is not

necessarily relevant to the facts, it is inadvisable to assume
that the devices listed in the website are the same as those in
the amended complaint.

See Hotel Employees & Restaurant

Employees Union, Local 100 of New York, N.Y. & Vicinity, AFL CIO
v. City of New York Department of Parks & Recreation, 311 F.3d

28

534, 549 (2nd Cir. 2002) (while “appropriate to take judicial
notice of fact that the website makes such a designation, as the
authenticity of the site has not been questioned, the fact
itself has little relevance with regard to park dedication”)
(citations omitted).

The amended complaint refers to

“transmitting devices” that “provide medical alert warnings” as
well as “the Philips Lifeline System,” the “Health Watch”
System, “Lifeline’s ‘AutoAlert Help Buttons’” and the “Health
Watch equipment” or the “Health Watch units.”
4).

(Docket Entry #

At best, the attached exhibits reflect registration of the

“Lifeline Personal Response System” or the “Lifeline(R) Personal
Response System.”

(Docket Entry # 11, Ex. C & D).

The amended

complaint does not refer to a “Lifeline Personal Response
System.”

Accordingly, even taking judicial notice of the

website printouts, dismissal of Count IX is improper because the
registered devices in the exhibits are not necessarily the
devices at issue in this action.
Turning to Lifeline’s alternative argument that Rock
“fail[ed] to allege compliance with the procedural requirements
of the CPSIA whistleblower statute” (Docket Entry # 9, p. 19),
section 2087 states, in relevant part:
A person who believes that he or she has been discharged
or otherwise discriminated against by any person in
violation of [CPSIA] may, not later than 180 days after
the date on which such violation occurs, file (or have any
person file on his or her behalf) a complaint with the

29

Secretary of Labor alleging such discharge or
discrimination and identifying the person responsible for
such act.
15 U.S.C. § 2087(b); see 29 C.F.R. § 1983.103(d).

Lifeline’s

reliance on Jallali v. USA Funds, 2012 WL 3291873, at *5
(S.D.Fla. Aug. 13, 2012), is misguided.

The plaintiff’s amended

complaint in Jallali “[did] not contain any allegation that
Jallali complied with any of the procedural requirements of 15
U.S.C. § 2087(b)” nor did the plaintiff address “arguments that
she has failed to exhaust her administrative remedies.”
(emphasis added).

Id.

The plaintiff in Jallali “respond[ed] only

that it would have been futile to adhere to the section 2087’s
procedural requirements because the litigation had already
commenced at the time the alleged violation had occurred.”

Id.

Rock has not indicated that she attempted to bypass any of
section 2087’s procedural requirements before bringing forth
this action as the plaintiff did in Jallali.

See id.

Under SOX, which is the first charge that Rock filed with
the DOL, “if the Secretary has not issued a final decision
within 180 days of the filing of the complaint” a claimant may
“[bring] an action at law or equity for de novo review in the
appropriate district court of the United States.”

18 U.S.C. §

1514A(b)(1)(B); see 29 C.F.R. § 1980.114(a); Newman v. Metro.
Life Ins. Co., 2013 WL 951779, at *9 (D.Mass. Mar. 8, 2013).
Under CPSIA, which is the second charge that Rock added to the

30

original charge with the DOL, “If the Secretary has not issued a
final decision within 210 days after the filing of the complaint
. . . the complainant may bring an action at law or equity for
de novo review in the appropriate district court of the United
States.”

15 U.S.C. § 2087(b)(4) (italics omitted); see 29

C.F.R. § 1983.114(a)(2).
Here, Rock alleges undertaking the following procedures:
On May 7, 2012 Ms. Rock filed a timely charge of violation
of the whistleblower provisions of the Sarbanes-Oxley law
with the U.S. Department of Labor, and later added to her
claim with the U.S. Department of Labor a charge of
violation of the whistleblower provisions of the Consumer
Product Safety Improvement Act . . . On March 22, 2013 Ms.
Rock requested that her charges of wrongful termination
with the U.S. Department of Labor be withdrawn, as no
determination on her claims had been made within 180 days
of her filing the claims. Ms. Rock has exhausted her
administrative remedies and has timely filed suit in this
court.
(Docket Entry # 4, ¶¶ 4-5).
Lifeline terminated Rock on June 14, 2012, purportedly in
violation of the whistleblower protection provisions of CPSIA.
The alleged violation therefore took place in or around June
2012 and, after Rock filed the SOX charge with the DOL on May 7,
2012, she “later added” the CPSIA charge.

See 29 C.F.R. §

1980.103(b) & 29 C.F.R. § 1983.103(b) (under SOX and CPSIA,
“[n]o particular form of complaint is required.
be filed orally or in writing”).

A complaint may

Although Rock did not specify

the date she added the CPSIA charge, a reasonable inference can

31

be drawn that Rock properly filed the CPSIA charge within the
requisite 180 day time period.

See 15 U.S.C. § 2087(b).

withdrew both charges on March 22, 2013.

She

See 29 C.F.R. §

1980.111(a) & 29 C.F.R. § 1983.111(a) (under SOX and CPSIA,
“[a]t any time prior to the filing of objections to the
Assistant Secretary’s findings and/or preliminary order, a
complainant may withdraw his or her complaint”).

Again

interpreting the record in Rock’s favor, a reasonable inference
therefore arises that she complied with section 2087(b)(4)’s
filing requirements by waiting the requisite 210 days before
filing suit in this court.
Lifeline’s arguments to dismiss Count IX are unavailing.
CONCLUSION
In accordance with the foregoing discussion, Lifeline
System’s partial motion to dismiss (Docket Entry # 8) is ALLOWED
as to Count V and DENIED as to Counts I, II and IX.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

32