Kun v. KinderCare Education LLC

Filing 28

Magistrate Judge Donald L. Cabell: ELECTRONIC ORDER entered granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the defendants motion to dismiss is ALLOWED IN PART and DENIED IN PART. Count One is dismissed except to the extent it asserts that the defendant terminated the plaintiff for conducting a mandated additional review pursuant to 606 CMR 14.13. Count Two is dismissed in its entirety. (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

GINA KUN,
Plaintiff,
No. 16-CV-11727-DLC
v.
KINDERCARE EDUCATION LLC, f/k/a
KNOWLEDGE UNIVERSE EDUCATION,
LLC, a/k/a MERITOR ACADEMY,
Defendants.

MEMORANDUM AND ORDER ON DEFENDANT KINDERCARE EDUCATION LLC’S
MOTION TO DISMISS (Dkt. No. 5)

CABELL, U.S.M.J.
Defendant KinderCare Education LLC 1 (KinderCare) terminated
longtime employee plaintiff Gina Kun in 2015 over her handling of
two separate workplace matters.
complaint
policy.

that

her

termination

(Dkt. No. 1).

Kun contends in a two-count
violated

Massachusetts

public

The defendant moves to dismiss the

complaint for failure to state a claim; the plaintiff opposes the
motion.

(Dkt. Nos. 5, 8).

For the reasons explained below, the

motion to dismiss is ALLOWED IN PART and DENIED IN PART.

1

KinderCare LLC was formerly known as Knowledge Universe Education, LLC a/k/a
Meritor Academy. (Dkt. 6, p.1, n.1). For purposes of consistency the
defendant is referred to here as KinderCare or the defendant.

I.

BACKGROUND
A. Facts
Accepting

the

allegations

in

the

complaint

as

true

for

purposes of the motion to dismiss, the plaintiff began working for
KinderCare in 1991.

(Compl. ¶ 3).

As of January 2000, and at all

relevant times thereafter, she held the title of Director. (Compl.
¶ 4).

KinderCare ultimately fired the plaintiff over her handling

of two separate matters, one occurring in 2013 and the other around
2015.

(Compl. ¶ 6-13).

Regarding the 2013 incident, one of Kun’s duties was to
perform annual background checks on KinderCare employees.
¶ 5).
on

an

(Compl.

In or around November 2013, she initiated a background check
employee

by

making

an

inquiry

with

Department of Early Education and Care (EEC).

the

Massachusetts

(Compl. ¶ 6).

The

EEC responded that the Massachusetts Department of Children and
Families (DCF) had reported a finding of physical abuse against
the employee.

(Compl. ¶ 7).

State law requires that an employee

receive an “additional review” where such a finding has been made. 2

2

Title 606 of the Code of Massachusetts Regulations (CMR) relates to the
Department of Early Education and Care. “The purpose of 606 CMR 14.00 is to
establish standardized procedures regarding the review of criminal records
and other background information of [employees] for positions licensed,
approved or funded by EEC. 606 CMR 14.01. Under this section, EEC employers
are required to conduct background checks of its employees. 606 CMR 14.08.
Certain background check results lead to presumptive or discretionary
disqualification from employment. 606 CMR 14.12. However, when such a
disqualification occurs, the employee “shall receive additional review by the
[employer] to determine if the [employee] poses an unacceptable risk of harm
to children within the position sought,” and must be offered the opportunity
to submit additional, relevant information. 606 CMR 14.13 (emphasis added).

2

On December 6, 2013, the plaintiff notified the EEC in writing (as
required) that the employee wished to undergo the additional review
process.

(Compl.

¶

8).

The

plaintiff

then

conducted

the

additional review with the employee, pursuant to 606 CMR 14.00.
(Compl. ¶ 9).

After conducting the review, the plaintiff decided

to keep the employee.
Regarding

the

(Id.).

2015

incident,

the

plaintiff

in

or

about

December 2014 learned of an allegation that a child had been left
unattended in the KinderCare facility for a brief period of time.
(Compl. ¶ 10).

The plaintiff promptly investigated the matter and

determined that the circumstances did not rise to a level that
would otherwise require her to report the matter to DCF pursuant
to Massachusetts General Laws (M.G.L.) chapter 119, section 51A. 3
(Compl. ¶ 10-11).
KinderCare subsequently learned of these two incidents in
January 2015, in the course of conducting an internal audit.
(Compl. ¶ 12).

On February 24, 2015, KinderCare terminated the

plaintiff based on her handling of each incident.

KinderCare

determined that the plaintiff had failed to follow corporate

3 Section 51A requires a “mandated reporter” to report suspected abuse or
neglect. It provides in pertinent part that: A mandated reporter who, in
his professional capacity, has reasonable cause to believe that a child is
suffering physical or emotional injury resulting from: (i) abuse inflicted
upon him which causes harm or substantial risk of harm to the child's health
or welfare, including sexual abuse; (ii) neglect, including malnutrition;
(iii) physical dependence upon an addictive drug at birth, shall immediately
communicate with the department orally and, within 48 hours, shall file a
written report with the department detailing the suspected abuse or neglect….
M.G.L. c. 119, § 51A(a).

3

policies and expectations regarding background checks of existing
employees in connection with the 2013 incident, and had neglected
to follow reporting and/or investigative procedures relative to
incidents of alleged abuse and/or neglect occurring at the school
in connection with the 2015 incident.

(Compl. ¶ 13).

KinderCare failed to ever provide any training or education
to the plaintiff relative to handling matters like these.
¶ 14-15).

(Compl.

Similarly, the plaintiff was unaware of the existence

of any corporate policies bearing on how KinderCare employees
should handle matters like these.

(Compl. ¶ 16-17).

B. The Complaint
The complaint asserts two common law claims for wrongful
termination,

arising

from

the

2013

and

2015

incidents,

respectively, but it could be clearer in articulating the specific
reason why the plaintiff contends she was fired.
Regarding Count One, the narrative paragraphs preceding the
actual count assert that KinderCare terminated Kun because she
failed to follow corporate policies and expectations that she did
not know of, and which may not have even existed.
17).

(Compl. ¶¶ 13-

However, Count One itself alleges that Kun was terminated in

retaliation

for

acting

in

“full

compliance”

with

state

law.

(Compl. ¶¶ 19-21).
The same is true regarding Count Two; the narrative paragraphs
assert that Kun was fired for failing to follow corporate policies
4

but Count Two itself alleges that she was terminated for acting in
“full compliance” with state law. (Compl. ¶¶ 13-17, 23-24). Count
Two also appears to allege that KinderCare fired the plaintiff
because it “falsely concluded that she had not investigated the
allegation” of a child having been left unattended.
23).

(Compl. ¶

Giving the plaintiff the benefit of the ambiguity, the Court

will read both counts as alleging wrongful termination based on
(1) the plaintiff’s purported failure to comply with internal rules
and regulations, and (2) retaliation against the plaintiff for
having correctly followed Massachusetts law in her handling of
both matters.

The Court will also read Count Two as additionally

alleging termination based on the defendant’s false conclusion
that the plaintiff had not investigated the allegation of a child
left unattended.

II. LEGAL STANDARD
Courts reviewing a motion to dismiss under Rule 12(b)(6) must
apply the notice pleading requirements of Rule 8(a)(2). Educadores
Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66-67 (1st
Cir. 2004).

Under Rule 8(a)(2), a complaint need only include a

short and plain statement of the claim showing that the pleader is
entitled to relief and giving the defendant fair notice of the
grounds for the plaintiff’s claim.
47 (1957).

Conley v. Gibson, 355 U.S. 41,

Therefore, “a Court confronted with a Rule 12(b)(6)

motion ‘may dismiss a complaint only if it is clear that no relief
5

could be granted under any set of facts that could be proved
consistent with the allegations.’”

Educadores Puertorriquenos en

Accion at 66 (citing Hishon v. King & Spalding, 467 U.S. 69, 73
(1984)).
To show that one is entitled to relief, the plaintiff must
provide “enough facts to state a claim to relief that is plausible
on its face.”
(2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully,” and is met when “the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 556).

A court must “accept as true all well-pleaded facts

set forth in the complaint and draw all reasonable inferences
therefrom in the pleader’s favor.”
F.3d

39,

46

(1st

Cir.

2011)

Haley v. City of Boston, 657
(quoting

Artuso

v.

Pharmaceuticals, Inc., 637 F.3d 1, 5 (1st Cir. 2011)).

Vertex
However,

the Court is “not bound to accept as true a legal conclusion
couched as a factual allegation.”

Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555).

III. ANALYSIS
The plaintiff alleges that she was wrongfully terminated by
KinderCare on February 24, 2015.

Under Massachusetts law, an at6

will employee may be fired for any reason or no reason at all.
Murray v. Warren Pumps, LLC, 821 F.3d 77, 89 (1st Cir. 2016) (“[A]n
employer may lawfully terminate a relationship with an at-will
employee at any time—for any reason, for no reason, and even for
a reason that might be seen by some as unwise or unkind.”).
However,

“courts

have

recognized

limited

exceptions

to

this

general rule, including where the discharge is for reasons that
violate

clearly-established

public

policy.”

Rodio

v.

R.J.

Reynolds Tobacco Co., 416 F. Supp. 2d 224, 232-33 (D. Mass. 2006)
(internal quotations omitted).

Where, as here, the plaintiff’s

claim for wrongful termination is premised on the public policy
exception, Massachusetts recognizes that an employee may pursue a
cause of action for wrongful termination.

King v. Driscoll, 418

Mass. 576, 582 (1994); see also Rodio, 416 F. Supp. 2d at 236
(public policy must be “well-defined” or “clearly established” to
effectively state a claim for wrongful termination).

While there

is no bright line between protected and non-protected actions,
redress is available for employees who are terminated for asserting
a legally guaranteed right, for doing what the law requires, or
for refusing to do that which the law forbids.

Rodio, 416 F. Supp.

at 236 (citing Smith-Pfeffer v. Superintendent of the Walter E.
Fernald State Sch., 404 Mass. 145, 533 N.E.2d 1368, 1371 (1989)).
Beyond

these

defined

categories,

the

Massachusetts

Supreme

Judicial Court has “consistently interpreted the public policy
7

exception narrowly, reasoning that to do otherwise would convert
the general rule into a rule that requires just cause to terminate
an at-will employee.”

King, 418 Mass. at 582 (internal quotation

and alteration marks omitted).
As such, the public policy exception does not necessarily
protect all employee acts that are appropriate, or even socially
desirable.

See Smith-Pfeffer, 404 Mass. at 150.

“In addition,

the internal administration, policy functioning, and other matters
of an organization, such as matters that do not rise to a level of
public importance, cannot be the basis for a wrongful termination
claim based on the public policy exception.” Butler v. Shire Human
Genetic Therapies, Inc., No. 16-11692-MLW, 2017 WL 1007291, at *5
(D. Mass. March 15, 2017) (internal quotation marks omitted).
“Instead, internal policy decisions are a matter of judgment for
those entrusted with decision making within an institution, and an
employee who disagrees with her employer’s decisions, even an
employee in a socially important occupation, may not seek redress
in the courts.”

Id.; see also Smith-Pfeffer, 404 Mass. at 151

(“An employee, even one in a socially important occupation, who
simply disagrees with her employer’s policy decisions, may not
seek redress in the courts.”); Mello v. Stop & Shop Cos, 402 Mass.
555 (1988) (internal matters and policies cannot form the basis of
a public policy exception to the at-will doctrine).

“[I]t is a

question of law for the judge to decide whether [the] retaliatory
8

firing of an at-will employee … would violate public policy.”
Murray, 821 F.3d at 90 (internal quotation and alteration marks
omitted).
Applying these principles here, the Court agrees with the
defendant that, as far as both counts purport to allege wrongful
termination

based

on

the

plaintiff’s

failure

to

comply

with

internal policies regarding background checks and alleged abuse
and/or neglect of children, the complaint does not make out a valid
claim for wrongful termination in violation of public policy.
King,

418

Mass.

at

583

(“internal

administration,

policy,

functioning, and other matters of an organization cannot be the
basis for a public policy exception to the general rule that atwill employees are terminable at any time with or without cause”);
Smith-Pfeffer,

404

Mass.

at

151

(termination

of

employee

in

“socially important occupation” over disagreement with employer’s
policy decisions did not rise to the level of a termination in
violation of public policy); Mello, 402 Mass. at 560-61 (“no public
policy

principle

would

have

been

violated”

by

terminating

plaintiff for complaints that concerned internal company matters).
To the extent the plaintiff is heard to counter that a public
policy is nonetheless implicated where the theory is that the
plaintiff was not only terminated just for failing to comply with
an internal policy, but was in addition disingenuously terminated
for reportedly violating an internal policy that either does not
9

exist or was never made available to the employee, she has failed
to provide adequate legal support for this theory.
However, to the extent Kun contends in Count One that she was
fired for doing what the law required, it appears that 606 CMR
14.13 mandated the additional review process Kun conducted here.
If

KinderCare

requirement,

terminated
that

Kun

arguably

for

following
state

would

this
valid

a

mandatory
wrongful

termination claim, even accepting that nothing in the pertinent
regulations

required

KinderCare

conducting the review.

to

retain

the

employee

after

Count One therefore states a claim for

relief, but only a very, very narrow one, insofar as it alleges
that KinderCare terminated the plaintiff because she chose to
conduct

an

additional

review

as

mandated

by

606

CMR

14.13.

Discovery will determine whether there is any merit to this claim.
Regarding Count Two, none of the three possible theories of
liability noted above rests on the allegation that KinderCare
terminated the plaintiff for doing something the law requires, for
refusing to do something the law forbids, or for asserting a legal
right. Rather, even assuming the plaintiff was required to conduct
an investigation into possible neglect, Count Two at most alleges
that KinderCare fired Kun because it believed she failed to conduct
an adequate investigation, or because it concluded (falsely) that
she conducted no investigation at all.

By contrast, there is no

way to read the complaint as alleging that Kun was fired because
10

she consciously chose to conduct a legally mandated investigation.
In short, Count Two does not state a valid claim for wrongful
termination.

IV. CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss
is ALLOWED IN PART and DENIED IN PART.

Count One is dismissed

except to the extent it asserts that the defendant terminated the
plaintiff for conducting a mandated “additional review” pursuant
to 606 CMR 14.13.

Count Two is dismissed in its entirety.

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

July 6, 2017

11