Doe v. Medeiros et al
Filing
22
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Ellis' motion to dismiss as to the vicarious liability claim (Count VII) and ALLOWS Ellis' motion to dismiss as to the negligent hiring claim, but ALLOWS such m otion without prejudice to amend as to the negligent training and supervision claim. D. 13. If Doe seeks to amend the negligent training and supervision claim asserted in Count VIII, she must do so by March 18, 2016. In light of this ruling, Ellis' previous motion to dismiss the original complaint, D. 6, is DENIED as moot and Doe's motion to strike that prior motion as moot, D. 12, is ALLOWED. (Hourihan, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
JANE DOE,
)
)
Plaintiff,
)
)
v.
)
)
Civil Action No. 15-cv-11356-DJC
FRANK MEDEIROS and
)
ELLIS MANAGEMENT SERVICES, Inc.
)
d/b/a ELLIS, PARTNERS IN MYSTERY
)
SHOPPING a/k/a ELLIS, PARTNERS IN
)
MANAGEMENT SOLUTIONS,
)
)
Defendants.
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.
March 3, 2016
Introduction
Plaintiff Jane Doe (“Doe”) has filed this lawsuit against Frank Medeiros (“Medeiros”)
and Ellis Management Services (“Ellis”). Doe alleges battery (Count I), assault (Count II),
negligent infliction of emotional distress (Count III), intentional infliction of emotional distress
(Count IV), negligence (Count VI) and violations of her federal and state constitutional rights
against Medeiros (Counts V). D. 11 ¶¶ 27-38. Doe alleges vicarious liability (Count VII) and
negligent hiring and training against Ellis (Count VIII). Id. ¶¶ 39-42. Ellis now moves to
dismiss the counts against it in the amended complaint. D. 13. For the reasons stated below, the
Court DENIES in part and ALLOWS in part the motion to dismiss.
II.
Standard of Review
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court “accept[s] the truth of all well-pleaded
1
facts and draw[s] all reasonable inferences therefrom in the pleader's favor.” García-Catalán v.
United States, 734 F.3d 100, 102 (1st Cir. 2013). In conducting its review, the Court must first
distinguish between factual allegations and conclusory legal allegations. Id. at 103. While the
court must accept the factual allegations in the complaint as true, the conclusory legal allegations
are properly disregarded. Id. Second, the Court must determine whether the factual allegations
present a “reasonable inference that the defendant is liable for the misconduct alleged.” Haley v.
City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
“This context-specific inquiry does not demand ‘a high degree of factual specificity.’”
García-Catalán, 734 F.3d at 103. “[T]he plaintiff need not demonstrate that she is likely to
prevail,” but the complaint must nonetheless be “plausible on its face.” Id. at 102-03. The
complaint must recite facts sufficient to “raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S.
at 557) (alteration in original). Courts rely upon their judicial experience and common sense in
conducting this analysis and determining whether the pleading crosses the plausibility threshold.
See García-Catalán, 734 F.3d at 103 (internal citations omitted).
III.
Factual Background
The following allegations are taken from the amended complaint, D.11, and the Court
accepts them as true for the purposes of this motion. As alleged, in December 2011, Doe worked
as a property manager for Community Builders (“Community”). D. 11 ¶ 6. During this time,
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Community had a contract with Ellis pursuant to which Ellis sent secret shoppers to view
Community’s rental properties. Id. ¶ 7. During these viewings, the secret shoppers posed as
potential tenants. Id.
Ellis creates the secret shopping schedules, drafts detailed instructions for
the secret shoppers and provides feedback to its secret shoppers. Id. ¶ 13. Ellis requires its
secret shoppers to complete documents that include details such as the layout of leasing offices
and eye color of agents.
Id.
Some of those documents contain minimum length writing
requirements. Id. Ellis hired Medeiros as a secret shopper. Id. ¶ 8.
Doe alleges that on December 12, 2011, Medeiros contacted Doe to view a rental unit
owned by Community.
Id. ¶ 15.
Later that morning, Doe met Medeiros in Fall River,
Massachusetts for a showing. Id. ¶ 16. Once at the showing, Medeiros asked Doe if any other
tenants were home. Id. ¶ 17. Medeiros held Doe’s hand for an extended period of time during
their handshake. Id. Doe told Medeiros that there were income requirements to qualify for
renting the apartment. Id. ¶ 18. In response, Medeiros told Doe that he would falsify his
application form. Id. Medeiros asked Doe if she was “wearing a wire.” Id. ¶ 19. He then
grabbed Doe’s collar with both of his hands and began to “feel her chest.” Id. At that point, Doe
pulled away from Medeiros and left the building. Id. ¶ 20.
Doe further alleges that she immediately filed a police report. Id. ¶ 21. Medeiros was
charged with indecent assault and battery on a person over 14. Id. During the Fall River Police
Department’s investigation, Medeiros informed the officers that he was “working undercover for
a private company called EMPS.” Id. ¶ 22. Medeiros further informed the officers that “he was
hired by this private company to evaluate the performance of sales representatives.” Id.
Medeiros produced “several documents with interview questions and a phone number for the
company.” Id.
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As alleged by Doe, in 2013, a state court continued the criminal action without a finding;
the continuation was issued on the conditions that Medeiros serve two years of probation,
undergoes
intensive
sex
offender
counseling
and
obeys
a
no
contact
order.
Id. ¶ 23. Following the incident, Doe was diagnosed with post-traumatic stress disorder, major
depressive disorder and generalized anxiety disorder. Id. ¶ 25. Doe has sought outpatient
treatment, including therapy and medication. Id.
Doe alleges that public records that are available on the Internet show that Medeiros has a
criminal record in his home state of Rhode Island, including one criminal case in 2004. Id. ¶ 10.
As alleged, in 2004, Medeiros pled nolo contendere to one count of “Obtaining Money Under
False Pretenses Less Than $1,500/Misdemeanor” and one count of “Real Estate License
Required.” Id. ¶ 11. In that same criminal case, one count of “Obtaining Money Under False
Pretenses Greater Than $1,500/Felony,” one count of “Embezzlement Over $100,” and two
additional counts of “Real Estate License Required” were dismissed. Id. ¶ 11.
IV.
Procedural History
Doe commenced this action on or about December 15, 2014 in the Bristol Superior Court.
D. 1-1. On March 27, 2015, Ellis removed the case to this Court. D.1. Ellis has now moved to
dismiss, D. 13, and the Court heard the parties on the motion and took the matter under
advisement. D. 21.
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V.
Discussion
A.
Vicarious Liability
“Broadly speaking, respondeat superior is the proposition that an employer, or master,
should be held vicariously liable for the torts of its employee, or servant, committed within the
scope of employment.” Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319-20 (2002).
Accordingly, to prevail on a claim of vicarious liability, a plaintiff must show (1) an employeremployee relationship and (2) that the alleged tortious conduct fell within the scope of
employment. Id. at 321-22.
1.
Doe Has Plausibly Alleged That Medeiros Was an Employee
Determining whether an employer-employee relationship exists is a case-specific, factdependent inquiry. See id. at 322. In making that determination, courts weigh a number of
factors. See id. (citing Restatement (Second) of Agency § 220(2) (1958)). The factors properly
considered include but are not limited to the method of payment, the parties’ understanding of
their relationship; the employer’s direction and control of the employee’s work; and the location
of the work. Id.; see Nat'l Ass'n of Gov't Emps. v. Labor Relations Comm'n, 59 Mass. App. Ct.
471, 474 (2003). The extent to which the hiring party maintains control and direction over the
hired party is often considered a particularly important factor in the analysis. Dias, 438 Mass. at
322; see Estate of Moulton v. Puopolo, 467 Mass. 478, 489 (2014).
Doe has adequately alleged that Medeiros was an employee of Ellis. In relevant part,
Doe alleges that Ellis hired Medeiros as a secret shopper. D. 11 ¶ 8. Medeiros’ responsibility as
a secret shopper was to view Community’s rental properties while posing as a potential tenant.
Id. ¶ 7. According to Doe, Ellis drafted detailed instructions for secret shoppers. Id. ¶ 13. Ellis
also created the secret shopping schedules. Id. Taken together, these allegations plausibly
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suggest that Ellis maintained control over Medeiros’ work and provided the instrumentalities
essential to Medeiros’ work. Granting Doe every reasonable inference, as the Court must do at
this stage, it is plausible that the schedules Ellis drafted provided the structure by which
Medeiros visited properties and evaluated the properties. It is similarly plausible that Medeiros
conducted his viewings of the properties in a manner that was in keeping with the instructions
provided by Ellis. Moreover, Doe has made a plausible showing that even after Medeiros
viewed the properties, as a secret shopper, Medeiros would have had to complete forms reporting
certain details of his viewings to Community. Id. By collecting this information and then
providing feedback to Medeiros, id., Ellis exercised direction over Medeiros’ performance as a
secret shopper.
Such direction and control is highly suggestive of an employer-employee
relationship. See Estate of Moulton, 467 Mass. at 489.
Doe’s allegations also plausibly suggest that Medeiros believed he was an employee of
Ellis, another relevant factor in the analysis. As alleged by Doe, Medeiros stated to police
officers that “he was working undercover for a private company called EPMS [the initials for
Ellis]” and “he was hired by this company to evaluate the performance of sales representatives.”
D. 11 ¶ 22. Moreover, Medeiros allegedly provided the company’s phone number and several
documents with interview questions to the officers. Id. While Medeiros’ statement that he was
“working” for Ellis is not determinative, the statement gives rise to a reasonable inference that
Medeiros believed he was an employee. That is, it at least weighs in favor of a finding that there
was an employer-employee relationship. Medeiros’ alleged decision to furnish documents and
information related to Ellis to the police during the investigation further supports this conclusion.
Although Doe’s factual allegations on the question of whether there was an employeremployee relationship between Ellis and Medeiros are not voluminous by any means, they
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“cross[] the plausibility threshold.” García-Catalán, 734 F.3d at 103. To the extent that there are
gaps, the factual pleadings have nonetheless “raise[d] a reasonable expectation that discovery
will reveal evidence” to further substantiate the claim that Medeiros was an employee.
Twombly, 550 U.S. at 556. The Court concludes that Doe has adequately alleged that Medeiros
was an employee of Ellis.1
2.
Doe Has Plausibly Alleged that Medeiros’ Conduct Fell Within the
Scope of His Employment
After concluding that there was an employer-employee relationship, courts must
determine whether the misconduct alleged fell within the scope of employment. Dias, 438 Mass.
at 322-323; see Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 404 (1990). An
employee’s conduct falls within the scope of his employment if (1) the conduct was of the kind
he was employed to perform (2) it was motivated, at least in part, by a purpose to serve the
employer and (3) it occurs substantially within the authorized time and space limits. Id.; see
Wang Labs., Inc. v. Bus. Incentives, Inc., 398 Mass. 854, 859 (1986). The Court considers each
element separately.
Doe has plausibly alleged that Medeiros assaulted Doe in the course of searching for a
wire and that search was the kind of work he was hired to perform. According to Doe, during
the time that Doe and Medeiros met at the rental unit owned by Community, Medeiros “asked
[Doe] if she was wearing a wire.” Id. ¶ 19. Medeiros then allegedly grab Doe’s collar with both
hands and begin to feel her chest. Id. These allegations must be viewed in the context of Doe’s
allegation that Medeiros described his work assignment as posing to “evaluate the performance
1
In light of the Court’s conclusion regarding the plausibility of Medeiros’ employment status,
there is no need to consider Doe’s alternative argument that “[e]ven if Medeiros were an
independent contractor, Ellis cannot avoid vicarious liability because it directed and controlled
Medeiros’ actions.” D. 15-1 at 8.
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of sales representatives.” Id. ¶ 22. That work required him to be “undercover” and operate as a
“secret shopper.” Id. ¶¶ 8, 22. It is at least plausible that Medeiros inquired into whether Doe
was wearing a wire as a part of “evaluat[ing]” Doe’s performance as a sales representative.
Medeiros’ concern regarding a wire could have conceivably reflected the “undercover” and
“secret” nature of his work. The inferences that Medeiros was searching for a wire, D. 15- 1 at
12, and that such a search is the kind of work Medeiros was hired to perform are plausible, even
if unlikely, based upon these allegations. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1,
12 (1st Cir. 2011) (explaining that factual allegations must be accepted as true, even if those
allegations are “seemingly incredible”).
This view of the allegations also plausibly suggests that Medeiros was motivated, at least
in part, by a desire to serve his employer.
Even if Medeiros’ view of the “secret” and
“undercover” elements of his job, including searching for a wire, was overzealous or misguided,
it is at least plausible that his conduct may have been motivated in part by a desire to protect the
“secret” and “undercover” nature of his work. See e.g., Meyer v. Runyon, 869 F. Supp. 70, 80
(D. Mass. 1994) (holding that conduct fell within the scope of employment even if it may have
been “overzealous or one sided”). “It does not matter that [Medeiros] may have acted loutishly
and/or overzealously in his pursuit of [his employer’s] interests.” See, e.g., Chase v. United
States Postal Serv., No. 12-cv-11182-DPW, 2013 U.S. Dist. LEXIS 157592, *51-52 (D. Mass.
Nov. 4, 2013).
Moreover, the fact that touching Doe may not have been necessary to Medeiros’
employment task is not determinative because “acts not strictly necessary for fulfillment of an
agent's duties nonetheless may fall within the agent's scope of employment.” Com. v. Jerez, 390
Mass. 456, 461-62 (1983). Similarly, the offensive nature of Medeiros’ alleged misconduct does
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not necessarily place it outside of the scope of employment. See McIntyre ex rel. Estate of
McIntyre v. United States, 545 F.3d 27, 39 (1st Cir. 2008) (explaining that an employer may be
liable for an employee’s conduct even where the employee’s conduct was forbidden) (internal
citations omitted).
Finally, Doe has sufficiently pleaded that Medeiros’ alleged misconduct occurred within
the authorized time and space limits of his job, as Plaintiff alleges that the misconduct occurred
during a visit to a rental property. D. 11 ¶ 16. In all of these ways, Doe has adequately stated a
claim for vicarious liability.
B.
Negligent Hiring and Training
Employers have a duty to exercise reasonable care in the hiring and training of their
employees. See Foster v. Loft, Inc., 26 Mass. App. Ct. 289, 290 (1988). That duty, however, is
not boundless. Employers are obligated to ensure that their employees do not inflict foreseeable
harm upon a foreseeable class of plaintiffs. See Roe No. 1 v. Children's Hosp. Med. Ctr., 469
Mass. 710, 714 (2014). Thus, to state a claim for negligent hiring, a plaintiff must show (1) that
the employer knew or should have known that the employee posed the danger plaintiff alleges
and (2) that there is a casual relationship between the breach of duty and the harm alleged.
Armstrong v. Lamy, 938 F. Supp. 1018, 1046 (D. Mass. 1996); see Nelson v. Salem State Coll.,
446 Mass. 525, 538 (2006).2
To determine whether it was reasonably foreseeable that an employee would cause harm
to a plaintiff, courts examine the totality of circumstances. See Coughlin v. Titus & Bean
Graphics, Inc., 54 Mass. App. Ct. 633, 639 (2002). The fact that an employee has a criminal
2
Because the Court has concluded that Doe has plausibly pleaded that Medeiros was Ellis’
employee, there is no need to resolve the question of whether a negligent hiring claim can be
based upon the conduct of an independent contractor. D. 15-1 at 13.
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record, by itself, is not automatically sufficient to establish an employer’s knowledge. See id.;
see also Foster, 26 Mass. App. Ct. at 294. Instead, foreseeability turns upon the nature of the
employee’s criminal record. See Foster, 26 Mass. App. Ct. at 294 n.7. There must be a
connection between the employee’s criminal background and the nature of the alleged tortious
conduct. Id. Thus, since Doe relies upon Medeiros’ alleged criminal background as the basis for
charging Ellis with knowledge of Medeiros’ proclivity to commit the alleged misconduct, D. 151 at 17-18, the Court must determine whether there is a sufficient connection between Medeiros’
criminal background and the sexual assault Doe alleges.
According to Doe, Medeiros’ criminal record reveals nolo contendere pleas to obtaining
property by false pretenses failure to have a real estate license in 2004 as well as several other
counts, including two felony charges of obtaining money under false pretenses, that were
dismissed.
D. 11-1 at 1. Doe argues that this record provided Ellis sufficient notice of the
alleged sexual assault because “[the charges against Medeiros] support the inference of
misconduct, including dishonesty, in previous real estate transactions” and “Medeiros did not
exercise decorum in his position.” D. 15-1 at 17-18. Even assuming arguendo that Ellis knew or
should have known of Medeiros’ criminal record, there is not a sufficient connection between
Medeiros’ criminal background and the misconduct Doe alleges to support liability. Even if
Ellis knew about Medeiros’ criminal record, Ellis can at most be charged with a basis to foresee
that Medeiros might have a propensity for dishonest conduct. Doe, however, does not allege that
dishonesty by Medeiros caused her injury, but instead that his alleged sexual assault did. D. 11
¶¶ 19, 24. Thus, there is no connection between Medeiros’ criminal record and the alleged
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misconduct.
3
Foster, 26 Mass. App. Ct. at 294 n.7 (explaining that “[a]n employee's past
conviction of larceny by check would not make the employer liable, on the basis of the doctrine
of negligent hiring or negligent retention, for the employee's subsequent rape of a customer”).
For all of these reasons, Doe has failed to plead a basis upon which the Court can find
that Medeiros’ alleged misconduct was foreseeable to Ellis for the purposes of negligent hiring
claim. See e.g., Vicarelli v. Bus. Int'l, Inc., 973 F. Supp. 241, 246 (D. Mass. 1997) (dismissing
claim for negligent hiring, retention and supervision without prejudice where plaintiff did not
allege that employer “knew or should have known of any propensity on the part of [employee]
for sexual harassment”); Saldivar v. Pridgen, 91 F. Supp. 3d 134, 138 (D. Mass. 2015) (holding
that negligent hiring and training claim was not adequately alleged where plaintiff “identified no
prior violation by [the employee] relating to sexual misconduct that could have put the
[defendant] on notice”). Thus, to the extent that Count VIII alleges a negligent hiring claim, it is
dismissed.
To the extent, however, that Count VIII alleges a negligent training or supervision claim,
that portion of Ellis’ motion to dismiss is ALLOWED without prejudice to amend. As with the
tort of negligent hiring, as to these claims, “the duty of an employer to avoid negligence in the
hiring, supervision and retention of employees ordinarily runs to members of the public,”
Vicarelli, 973 F. Supp. at 246, like Doe. Further, to state a negligent training or supervision
claim, a plaintiff must allege “[a] causal relationship between any breach of duty and the harm
suffered by the plaintiff.” Nelson v. Salem State College, 446 Mass. 525, 538 (2006). It would
not be sufficient to show merely deficiencies in a training program to prevail on such a claim.
3
Given that the Court concludes that Medeiros’ criminal background was not sufficient warning
to Community to create liability for the sexual misconduct alleged, there is no need to resolve the
parties’ dispute regarding whether Medeiros’ nolo contendere pleas are admissible, are outdated
or can be treated as admissions of guilt. D. 14 at 6-7; D. 15-1 at 15-16.
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Id. The Court, however, does not conclude that it would be futile to amend where it may be
plausibly alleged that Ellis failed to provide sufficient training and supervision to Medeiros such
that he would appropriately execute his “secret shopper” duties and, as a result of Ellis’s failure
to do so, Doe was assaulted.
VI.
Conclusion
For the foregoing reasons, the Court DENIES Ellis’ motion to dismiss as to the vicarious
liability claim (Count VII) and ALLOWS Ellis’ motion to dismiss as to the negligent hiring
claim, but ALLOWS such motion without prejudice to amend as to the negligent training and
supervision claim. D. 13. If Doe seeks to amend the negligent training and supervision claim
asserted in Count VIII, she must do so by March 18, 2016. In light of this ruling, Ellis’ previous
motion to dismiss the original complaint, D. 6, is DENIED as moot and Doe’s motion to strike
that prior motion as moot, D. 12, is ALLOWED.
So Ordered.
/s/ Denise J. Casper
United States District Judge
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