Narrator: SJC-12991.
Kaylee Osborne Trussell V Children's Hospital Corporation.
-: Okay, who do we have first?
-: That's me, Chief Justice, Budd.
Good morning.
I'm Michael Mason.
I represent the plaintiff, Kaylee Osborne Trussell
in this case.
And we're here seeking, asking the court to vacate
the superior court's dismissal of the case.
Here we sided, excuse me, here we made two claims
under Chapter 149, Section 52E.
And allowing the dismissal of this case to stand
would really sanction conduct
that that statute was intended to prevent.
It would also run afoul, the clear public policy
here in the Commonwealth that protects victims of abuse
who take steps to engage
with the legal process and enforce their rights.
-: Attorney Mason, can you just say what your client did
to show that she was trying
to enforce rights under the statute?
-: Yes, thank you, Justice Budd.
So she, a number of things, first of all,
she had discussions directly,
with the hospital and explain the situation to them
telling them that she had the prevention,
abuse prevention order that she was enforcing it
through the Haverhill Police Department
so that she was directly engaging with the police on it
and pursuing it as a criminal matter
which actually did continue your honor after this case
and went through a criminal proceeding.
-: But did she ask for time off or anything like that?
-: Well, she didn't simply because she didn't know
when she was going to need the time off your honor.
That's one of the decisions in this case is that-
-: Did she raise the fact that she might need time off?
-: Well, she certainly gave them adequate notice
under the statute, your honor,
the statute includes providing a copy
of a harassment prevention order as giving notice
which she did and actually the hospital attached that
to their papers.
So she let them know.
-: But she gave notice that she had
an abuse prevention order.
Is that the notice you're talking about?
-: Yes, your honor, and that she was enforcing it.
So the hospital knew, and this is important really
to both of our claims under the statute, they had noticed
that she was enforcing her rights and the hospital also knew
that she was likely to need leave in the future.
They didn't know when precisely, but they knew
that she was gonna be engaged in the legal process
which could include meeting with the police
which could include going to court.
And that's what was in the hospital's,
you know, mind, when they terminated her,
really, with no other reason to terminate her.
And that's, you know, looking at the analogous FMLA cases,
you know, they state that when an employer knows
that an employee may need leave
and they terminate them for that reason
that's retaliation,
which here would be paragraph I of Section 52E.
So they certainly had
there's certainly enough that we pled here, your honor,
to justify continuing with our claim of retaliation.
And in terms of the interference provision
under section 52E that's paragraph H, you know,
there's no doubt that they had noticed
and that her termination prevented her
from exercising her rights.
She was attempting to exercise her rights
and she was fired before she could do it.
And, you know, the analogy I drew in my papers
which I think is the most, it's probably the closest,
when you look at the FMLA cases
would be a pregnancy situation.
You know, the, in the Parada case for example,
you have an employee who's pregnant,
she doesn't know when she's gonna need the leave.
She knows she's gonna be out at some point
hopefully doesn't know when that's gonna happen,
that's the situation my client was in.
She was cooperating with the police.
That process was ongoing, but she hadn't yet been, you know
summoned to a court date,
that the police didn't need her to come in yet
and give any testimony.
So it was simply premature to expect her
to give an exact date and exact duration of a leave.
-: Can I start, justice, Chief Justice Budd are you done?
Sorry.
-: Yeah, go ahead.
-: Can I start with the employment itself for a second?
'Cause there's something still remains to be done
before she's a full employee, right?
Have you alleged and I'm just trying to confirm
that she is an employee based on your allegations,
because even your allegations
represent that there's some followup still going on, right?
What is your understanding at least,
what are you alleging based on
the why she's an employee
even though she's not completely done
with the employment process?
-: Well, our allegations are,
and thank you for the question, Justice Kafker.
Our allegations are that she actually is an employee.
I mean, this is someone
who has gone through background checks.
The hospital sent her an ID badge,
they issued her an employee ID number.
They put her on the schedule
told her when to show up for work.
She's an employee.
I mean, I, you know-
-: But the letter that you both referenced
indicates she's still undergoing
some kind of background review, right?
-: That's what the letter says.
But with all due respect, that's just not true.
I mean, she had gone through the background checks
and then was hired,
I mean they- -: Was she getting paid yet?
Was she entering time and getting paid?
-: Yeah, she hadn't come in for her first day yet,
your honor, but the nature of her relationship
with the hospital was an employee.
I mean, they hired her to be a staff nurse,
you know, as I said, she went through
all the required background checks,
was on the schedule.
They told her to come in a week earlier.
She would have come in that day.
I mean, this is someone who is under their control
and direction as an employee.
So we certainly allege that she was an employee.
And I would also point out, you know, if there's a ruling
in this case that someone who's been hired,
but just simply hasn't started work yet,
can lawfully be terminated
because they've told the employer
that they're enforcing a harassment prevention order,
that would just create an enormous loophole in this law
and completely frustrate its purposes.
-: What do we make of this sentence in the letter that says,
"The work clearance process was not able to be initiated."
what did, that's your letter, right?
-: No, no, that's the hospital's letter.
-: Okay, what's your view, is that incorrect then?
The work clearance process was not able to be initiated?
-: Yeah, it's with due respect, your honor,
I mean, it's completely false.
I mean, it was completed.
I mean, they, as I said, they, you know,
they put her through a background check, she passed it,
they sent her an ID badge, so she could get in the building-
-: There, she hasn't quite passed it, right?
Because they're following
whether they should be following up on this
or not is a separate question, but they are following up
on this domestic violence issue incident, aren't they?
Both sides recognize, you say it was wrong
for them to do it, they're gonna tell us
that it was right for them to do it,
but they're still doing that
before she's formally on the payroll, right?
-: Well, I mean, first of all, your honor,
I think she was in their system
because she had an ID number and it was on the schedule.
-: So we should, but in your view, because she's got an ID
and she's been given this preliminary schedule
she's an employee for the purposes of a motion to dismiss.
That's your essential holding on the first point?
-: Well, that plus it's the nature of their relationship,
which is really what what judge Wilkins,
I think, correctly focused on, you know,
she's not a volunteer at the hospital.
She's not, you know, an independent contractor.
The nature of her relationship
with the hospital is employment.
So I think that's the overriding issue
and it's just supported by these other factors.
-: Okay, so let me get to then the second part of this,
'cause we've took for you to win
we've got some gaps to fill, right?
There's the statutory language isn't exactly satisfied.
You know, she hasn't earned leave,
or requested leave, basically what she's doing
is putting them on notice.
I've got a problem with this other woman
and you're, I want you to be aware of it because it's gonna,
I gotta deal with it, right?
She's not requested leave.
So we have to extend the statutory language
to cover that situation, right?
-: With due respect I don't think that's correct
because the statutory language-
-: Tell me, make, tell me how, again
we'd like to start with the language.
Tell me how you meet the language exactly.
I get that the legislature may have intended to cover this.
It's just, I'm trying to make the language work
in your favor here.
-: Yes, thank you, your honor.
So, and again, there are two, you know, we have two sections
of the statute that we've filed claims under.
So as to the anti-interference section
you know, the FMLA, which, you know, this statute
one reason I've drawn some analogies there
is that this statute really mirrors the language of the FMLA
in terms of, you know, no interference, restraint,
denial of an attempt or sorry exercising
or attempt to exercise her rights.
It's really the same language.
And under the FMLA analyzing that same language,
courts have found that
if the employer has reasonably adequate information,
that an employee may require leave, that's enough.
Once they know that there's a qualifying reason given,
then the law protects the employee
from being interfered with.
And that's important, you know,
one of the sort of trade-offs in the law,
is that this notice really is intended
to benefit the employer.
And here they certainly had noticed
reasonably adequate notice.
And I would just point to the Shah case, the Sarnowsky case,
the Holiday case that we've cited in our brief at page 12.
-: Yeah, help me with the statutory language a second.
I get, you've done a really nice job on the analogy.
And I understand that,
I'm just trying to make the statute work in your favor.
So use the language of the statute.
Tell me how you meet the language of the statute.
-: Sure, well, there's actually, you know, a notice
I think this is even clearer than the FMLA,
frankly your honor, because this statute paragraph E
says that the employer needs to get "Appropriate notice."
One of the issues here is that once my client
told the hospital that she was enforcing this order,
you know, they didn't tell her what their policy was.
And the statute says, well,
the notice is according to the employer's policy.
She didn't know what their policy was
but she told them directly that she was enforcing the order.
So they certainly knew it.
And she also gave a copy of the harassment prevention order
which is one of the enumerated methods of notice
that the statute gives.
So she actually specifically gave notice under the statute.
I think that's the, item number one is the order itself,
and she gave that to them.
So I'm trying to be-
-: I have the, I have the same concerns
that Justice Kafker is asking about.
This is a very difficult situation
and very concerning that she wasn't hired
or she was fired before she started.
And maybe that speaks to whether or not in this circumstance
she should be an at-will employee,
but I have a hard time understanding
what there is to suggest that Children's Hospital
decided to fire her or not hire her
because they were concerned that she would request leave.
In fact, that's probably not why they did it.
They probably did it because they had all of these concerns
that were inappropriate, in my view,
about harassment and domestic violence.
But I don't think there's anything here that says,
"Oh, we're going to not hire her because she might ask to go
to court to renew her restraining order."
I'm really having a hard time understanding that.
-: Yeah, thank you your honor.
And that, that really gets to the claim
we've made under paragraph I
which is the anti uses the phrase, the term discrimination.
It's really more of a retaliation claim.
You know, the case law under the FMLA reflects that
once an employer has notice,
that the employee has a possible need for leave,
that the employee is engaged in protected activity.
And that's because when an employer terminates someone
because they may need leave and here they certainly knew
she, that my client may need to leave.
I mean, she gave them the order
and said she was enforcing it.
-: Counsel, I don't mean to interrupt you
but I wanna dovetail off of Justice Lowy's point.
We're at the stage of 12P6.
And so the issue that Justice Lowy just raised
was this is not the old native versus (indistinct) standard.
This is the I and keynote standard.
This is as your brother raised,
this is more than notice pleading now.
You've got to give us something much more
to suggest that it's not just bald speculation
that you gave notice,
that you have this order,
she gets terminated after it well,
arguably still in a conditional offer.
So therefore ipso facto, it's gotta be because
she was going to eventually ask for time off.
Isn't that exactly what I keynote says you can't do,
you just aren't you just speculating here?
-: Well, your honor, we've actually pled the specific,
specific facts that would meet the prime aphasia case.
So in terms of causation, you know,
we lay out the fact that she put them on notice.
They said they were going to speak to the harasser
which as we've argued in our brief,
I won't go into that whole argument,
but is completely improper.
And then they let her go and gave her no reason.
And when this, when the case is analyzed,
under the burden shifting standard, once we've,
once we've shown that the temporal proximity is very close
and here it's a week or less, I mean,
we've cited cases where it's 11 months here, it's a week.
That's certainly sufficient to meet the prime aphasia case.
And if you look at the broader circumstances, you know,
they gave her no reason, why they let her go
what they've said and they've attached their letter
is that they couldn't start the onboarding process
which is completely false.
You know, they didn't say,
"Hey we found disturbing information
when we talked to your stalker."
They didn't say that, they didn't say that you didn't meet
the conditions of your conditional employment.
So that, that argument they've made
I think is a complete red herring.
They said something completely false
which is we can't even start the process.
I mean, she's at the end of the process already.
So, you know, here
I think we've laid out the specific facts.
We're not relying on just pure conclusory statements
that she could prove our case.
I mean, this is at the pleading stage.
We need to see how the evidence comes out.
When you've got someone who's, you know,
actively pursued by the employer, passes a background check,
they hire her, they put her on the schedule.
She says, "Listen, I've gotta enforce
this harassment prevention order against the stalker."
And then a few days later they fire her, you know,
in the complaint, I'm not sure what else we could add
that would, that would give a plausible case.
-: The point I'm making is that,
that doesn't obviate Justice Lowy's point,
that they could have spoken to the defendant
in the harassment order.
They could have come to some other issue that was raised
by that other than potentially asking for time off
to vindicate whatever rights she might've had
under the 250-80 statute.
It doesn't, it doesn't eliminate that.
-: First of all, your honor, you know,
it's actually a violation of the order for the stalker
and the hospital to speak.
The stalker is not to contact Ms. Osborne Trussell
directly or indirectly, including with an employer.
So here you've got an employer actively, you know,
facilitating a violation of the order.
I mean, the Pibity District Court already found
that this person was a threat to my client
and issued the order.
-: That can't be true, right counsel. I mean, it can't that
the order as between these two individuals
precludes Children's from doing something.
-: Right.
-: But I mean, the stalker, first of all
the stalker's not allowed.
-: Right, well I get that.
I get the order precludes the stalker doing certain things
but it doesn't preclude Children's from doing things.
-: Well, I mean, I would argue the Children's
is facilitating a breach of the order.
I mean, there's really no legitimate reason
to talk to the stalker.
That issue has been litigated.
They did a background check on my client
that came back completely clean.
So there really is no legitimate reason
for them to be speaking with the stalker at all.
And again, I would note that
if that was the reason they let her go
their letter would have said that.
And it didn't say that.
And I think we need the opportunity-
-: Would it be permissible for Children's
would it be permissible for Children's to let her go,
because they learned "The other side of the story?"
-: No, I don't think it would be your honor.
I mean, there's, that's already been litigated
and a judge found that the stalker was a threat
to my client and my client's enforcing the order.
There's nothing that came up in a background check
that would cause them not to hire her.
-: I didn't see this in the record, but I, could you, could,
if you could point it out to me, was the order at the point
that it was communicated to Children's Hospital,
was it only after the ex parte
or was it after a two party hearing?
-: It was after a two party hearing and it was almost a year
after the order entered, so it was a long after.
-: All right, and does it also indicate as to whether or not
there was evidence taken from the defendant?
Does the record indicate that?
-: I's a good, you know, I believe that's part of the order,
your honor, but I'm not entirely sure.
-: Okay.
-: Can I follow up on Justice Georges' question
about the 12(b)(6) standard,
'cause my understanding your argument,
and again, if I'm mischaracterizing,
when she alerts Children's Hospital
that there's a domestic violence restraining order
out there, she is putting them on,
I guess what you call implicit notice
that she may need time off to deal with this, 'cause again,
I'm trying to apply the statutory language
in a way that you win, but I need to get there.
So I agree you satisfy everything,
except for the request for leave,
you have to somehow get there.
Is it that you're notice that she's got
this restraining order to Children's
means that she's implicitly said,
"Look I'm gonna need time to deal with this."
And is that enough for you to satisfy the 12(b)(6) standard?
'Cause, and is that right, is that your argument?
-: It is, it is your honor.
And, you know, the issue with that claim,
the retaliation claim under paragraph five-
-: I get I, if you've, if you've met the, I you meet
if they fired her, because you requested leave
to deal with this, they're violating I, I get it.
But I've got to somehow get over the hurdle
that the trial judge or the motion judge didn't
which is that you requested leave.
And I'm trying to get a sense is, is your,
is your notifying them an implicit request
that you're gonna need time to deal with this,
through your work?
'Cause we have to get over that hurdle, don't we?
-: Well, it, yes.
I mean, we need to allege enough to show
that there's a plausible case,
that they fired her because she engaged
in protected activity.
-: Right?
-: And that's where these FMLA cases are helpful,
because and I can, I can point
I think this is probably the best distillation of this point
that I could find, your honor,
it's an a case it's not in my brief.
I'm happy to to send the site over today,
if that would help, but, you know,
and the case it's called Johnson V Dollar General
inside of the Northern District of Iowa
and the court there said
that it would defeat the purpose of the statute
to allow an employer to retaliate against an employee,
when the employer has received enough information
to put the employer on notice
that the employee may need FMLA leave.
And the reason for that, the court explained
was because in that situation,
the employer has both shown the required animus
and engaged in conduct of sufficient gravity
to brand the employers actions as retaliatory.
So, you know, under the interference provision
there's no, you know, there's no motive
that we need to prove, but even under retaliation, you know,
once they know that she may require leave,
and again, I think we've put forward
more than sufficient facts to show that they knew that,
they can't fire her for that reason.
-: But counsel, and I don't want to belabor this point
but there were a whole lot of dominoes
that would have had to have fallen
for all of this to come into play.
You allege a violation.
Some reviewing authority was going to have to find
either by an application or the police probable cause
for a complaint, there would have gone, you know,
through all the procedural machinations
assuming all of that, and then potentially a trial.
There are all of these things that are so far downstream
which again goes back to the I keynote standards.
You're making a lot of presumptions here,
that needs to be alleged with some specificity,
which some have in the complaint.
And I'm just wondering if you're saying it's there,
then that's all you need to say.
But again, I'm just wondering, I didn't see that in there.
And I'm wondering if you're saying that that's pled
in the complaint and if you could point me to where that is.
-: Well, your honor, you know, my client hadn't been,
those things hadn't been scheduled yet, your honor.
I think the issue here is that, you know,
if employers are allowed to fire an employee
who comes to them, which is what the law encourages
is this notice, and that's for the employer's benefit.
If an employee comes to them and says, you know,
"I'm in the process of enforcing this order
I've been in contact with the Haverhill Police Department.
Here's a copy of the order."
And then the employer can fire that person
with no possible consequence.
I just think that completely upends the purpose of this law
and also violates public policy
as we've also we've alleged in our complaint.
So I absolutely think, and we've alleged all that.
And I think that's certainly sufficient
to state a plausible claim.
I don't think the law says
that an employer can fire someone
when they know they're enforcing their rights
as long as no actual court date
or no actual police interview has been scheduled yet.
I mean, that's just not what the law intends
or is it, you know, addresses.
So, I do think that we've certainly pled enough
to state a claim under those two different provisions
of the statute and also under the public policy language.
You know, I don't know if the court has any questions
on that issue, I think we've addressed it in our brief,
so I'm happy to rest on that if there are no questions.
-: Okay, thank you, Attorney Mason.
Attorney Riley.
You're on mute.
-: Good morning again, Chief Justice Budd.
And may it please the court.
My name is Richard Riley,
I represent Children's Hospital in this matter.
With me in the virtual courtroom,
but socially acceptable six feet away is Peter Cobar
the attorney who was with me on the brief was indispensable
in the drafting of that brief.
I would like to raise first the issue of whether or not
Ms. Osborne Tressel qualified as an employee
under the statute.
Judge Wilkins held that she did qualify
for reasons stated in his opinion, respectfully we disagree.
And because this court can uphold the dismissal
of the case on any basis that's available to it
in the record, we feel this threshold issue
is the first to be discussed.
-: I'm not aware of employees who get badges
and a work schedule who haven't been cleared for takeoff.
Is that common practice at Children's Hospital?
I mean, getting a badge at a hospital
is a big deal, isn't it?
-: It is, I'm sure your honor, as soon as it's, you know
activated whenever that is, to actually open doors
and whatever that may entail.
But the offer letter stated,
not just that our offer is contingent
upon a comprehensive background check.
It stated that employment is contingent
upon a number of things,
including a comprehensive background check.
The timing that is available in the pleadings
that we can derive from the pleadings alone
is that the offer letter was made on February 12th of 2019.
And it was on February 28th, 2019
that Ms. Osborne Trussell discovered
that the alleged harasser had contacted the hospital
and violated the HPO
and brought this to the hospital's attention.
So regardless of whether the background check
to the extended had been done prior to February 12th
had been completed,
it was certainly within the hospital's purview.
And I would suggest the obligation of an entity
such as Children's Hospital and considering the population
of patients and families that they serve,
that if they receive information
such as is alleged in this case,
from a person allegedly harassing this prospective employee
or the person who has accepted the offer of employment
can contingent on the background check
that they continue the background check
and that they did continue that is evidenced
by the fact that as is alleged in the complaint,
the plaintiff, excuse me,
the hospital informed the plaintiff in response
to the post February 28th interaction,
informed the plaintiff that the hospital
was going to communicate with the alleged harasser
to get her side of the story.
That's what the complaint alleges,
which understanding that we're bound by that.
I know that I'm not, it's not open to me
nor would I attempt to present to the court
any actual facts as might have,
might've be elicited in the course of the case.
-: Again, from a 12(b)(6) perspective
don't we have enough facts allege
that she was essentially hired and she was fired
based on this, your investigation of this,
harassment prevention or which accorded issue,
don't, we, again trials of different matters,
even summary judgment after discovery,
but they've alleged essentially you gave her a badge,
you put her in her work schedule,
she informs you that she's got someone stalking her
and then you fire her after you follow up.
There's no indication of anything else in this,
that, except for that.
And doesn't that get you?
I wanna get to the leave issue separately
but doesn't that I think they seem to have alleged enough
for her to be an employee,
and that you fired her because of this.
-: Well, we respectfully disagree.
-: Give me something in their allegations that support
that that's not the case.
-: Yes. -: You accept everything
they've alleged is true.
-: Well, all of the-
-: And the reasonable probably inferences
that you can draw from that.
-: Alright, and what they have alleged in terms
of the connection between, well, we haven't gotten to
whether or not a request for leave was made,
but whether or not any effort to restrain
or interfere with Ms. Osborne's asserted rights
under the statute was the reason
that the offer was withdrawn or the employment terminated.
That's, you know, at this point that's not important.
The only allegation in the complaint
is essentially what in the case file
has been referred to as temporal proximity.
The case law is pretty clear
that the temporal proximity is not enough.
We argued in the brief, they-
-: We have more than temporal proximity.
We also have that she had a badge,
she was scheduled for work,
and that you told her you're gonna follow up on this.
So, you know, it's not, we got,
we got a lot here and this is a 12(b)(6).
-: Right, but what is not said,
other than the temporal proximity,
and what you've just suggested, your honor,
is that there is a temporal relationship
after the hospital said, we're gonna follow up
and, you know communicate with the harasser,
that the offer was withdrawn.
The fact that those, that that was the sequence of events,
does not establish, and it's not sufficient to plead only
the temporal proximity.
There was no allegation in the complaint
that there was any comment made to Ms. Osborne Trussell,
whether it be in the form of a criticism or as-
-: I think I get you, let me move to the second point
which makes me nervous from both sides.
So domestic violence is not something
like a doctor's appointment you can schedule.
You know, it happens,
you know, your partner attacks you,
you've gotta run to court and you gotta do it quickly.
Or you've, you know, we can't plan domestic violence.
It's not.
So, isn't this enough here, you know,
if she were an employee, I understand your first argument
but if she's employed and she says,
"This person just violated this order,
I've gotta respond to this immediately."
She doesn't know when she's gonna run, you know,
she's gotta get a lawyer, she's gotta do other things.
I mean, isn't it, we can't plan these things.
This is not, this is just, again,
it's not like going to the doctor
and getting your arm looked at,
it's an unplanned, unprovoked attack that she's saying
"I've gotta deal with this."
And by the way, you're, you've got,
she did, she alerted you, you know,
it's not like she just, you know,
you were on the Facebook notice, right?
-: It was, it was actually an email, I believe, your honor.
But there was a posting that was tagged yes,
to the hospital.
-: So isn't that enough?
She's saying, look, you're my employer.
I gotta deal with this.
And, as a courtesy, she's letting you know too,
'cause you know, she could just do nothing too.
I'm just trying to figure out
why that's not enough for notice here, even under,
you know even under this statute
which talks about a request for leave.
-: Sure, well, the statute actually, well
first of all, your honor, I wanna make one point clear
which it may drive towards the public policy issue.
This is not a domestic violence case.
There's no domestic violence involved.
There's no domestic aspect to it at all.
This was a harassment prevention order
against a third party, unrelated to the plaintiff,
who she claimed was stalking her.
In that but nonetheless, the notice provision
in section 52 eight E-
-: Again, I'm not sure stalkers plan their attacks either.
I mean, I'm not sure we can count on a stalking incident
the same way we can plan on a medical plan.
-: But I know, it did not intend to,
for that to be the point your honor,
though, section 52E specifically contemplates
the possibility of, for instance
under section D a threat of imminent danger,
in which case the notice requirement
is not, the employee does not have to comply
with the notice requirement and can satisfy it
with giving the necessary information about it
after the fact,
which goes to the point of this statute
contains requirements and it contains limitations
as to who it covers, when and under what circumstances.
We're past whether she's an employee.
I think that, you know, our argument is made on that
in the briefs and in the discussion we've had here just now,
but as far as notice is concerned,
the notice is that I need leave.
The notice is not that I may at some unspecified point
in the future need leave.
If that were the case, then an employee
who had any kind of a dispute
that warranted a harassment prevention order
could tell the employer that on day one
or in the interview process,
and then from day one forward, that employee
would essentially no longer be an at-will employee.
Because if that employee were terminated for no reason,
which is what an at-will employee is,
then the same argument is being made here could be made.
Well, I told them that I might need leave
under the abusive behavior statute at some point in time,
and they fired me after that,
so therefore there's been a violation of the statute.
There was no actual request for leave.
In fact, in the reply brief of the plaintiff,
it is admitted that the reason that no amendment
to the complaint in the underlying matter
which judge Wilkins invited the plaintiffs to do,
the reason that no amended complaint was filed,
was because there were no additional facts to alleged.
This is on, I think page six of the talent's reply brief.
-: Council, can I ask you to address your brother's point,
that by giving the hospital notice of the HPO,
it was sufficient as it might be
under the Family Medical Leave Act
to put the hospital on notice that leave may be required
if it, you know,
if the court date interfered with the schedule,
if all these contingencies happened
you know, if I go into premature labor
and why isn't this enough?
-: Simply because your honor, the, this particular statute
not the FMLA I'll get to that,
does not speak to protection of employees
who might someday need the protections of the statute.
-: No, but I'm talking about notice.
Like why isn't it enough for notice to say
here's the HPO, this posting happened,
I'm pursuing police action.
Why isn't that enough notice of the leave
that may be required?
At this point he doesn't, she doesn't know
if the court date's gonna interfere
with whatever schedule the hospital has planned for her.
-: Sure, well, eventually she will, presumably,
it might be the same day, might be the next day,
but she will know if there's going to be a hearing
or some meeting with the DA that she needs to attend.
And at that point she will give,
as required under the statute, the notice.
And again, if there's imminent danger,
the notice provision is amended.
The FMLA is a very different statute,
in terms of the notice that's required,
the amount of time that it provides the employee
and the disruption to the employer's work
are completely different
such that the Congress delegated to the Secretary of Labor
the right to draft regulations.
And one of those specific regulations
is 29 CFR 825.302
which is employee notice requirements
for foreseeable FMLA leave.
That section, which is discussing the Amicus briefs as well,
does require an employer,
even if the employee doesn't quite know that it's FMLA
they're looking for, and isn't entirely clear
as to what they need or when they may need it.
There's a requirement under this regulation, which is two
and a half single-spaced pages long, that the employer
has to engage in a proactive discussion with the employee
and try and figure out what you're gonna need,
when you're gonna need it.
That is not what they, the abusive behavior statute
in Massachusetts is about.
It's very specific as the rights that it confers.
And it's very specific about the limitations
as to the companies that are subject to it.
Not including any who have less than fewer
than 50 employees.
It, requirements of notice and documentation to establish
what leave is required to establish.
It's one of the purposes set forth in the statute
when it's gonna be required, et cetera.
So the FMLA cases are really on the notice issue
are not analogous at all.
They serve a different purpose and are the subject
of detailed regulation, which itself shows
that if our legislature had intended anything
other than what it states in the statute,
it could have said so, if-
-: Do you think, you think our legislature,
again, do you think our legislature intended
so I'm not saying this is exactly your case,
but let me pose it the following hypothetical,
some employee comes in completely upset.
You know, my spouse is beating me
and your employer says, "You're fired."
I take it, your view is that's okay.
-: No, no, no, your honor.
Kafker: Why isn't that okay?
In your view?
-: The check home case says the temporal proximity
is not enough,
frankly, I think that if in the meeting
and to the face of the employee,
in response to that statement, that rule might be bent, or-
-: Why is it different than what you're arguing?
I'm just not sure I understand why it's not
because essentially you're saying if you fire them
before the request it, you're safe, but, I just,
just distinguish that for me,
'cause I'd like to have comfort
that I'm not allowing that to occur
if I decide in your favor.
-: Well, safe is I'm not sure the word I would use,
the employer start, we start off this whole analysis
with the employment relationship being at will.
Unless there is some statutory violation,
or a public policy issue, which we have not yet discussed,
there is no necessity for giving the employee a reason.
The hypothetical that you have just suggested
which is not, which are not the facts of this case
and are not pleaded in this case.
I would, if I were representing the plaintiff in that case,
I would argue that that temporal proximity
which is bing bing, in, you know, directly in response
to one statement that, that you're fired,
it's implied you're fired because you just told me
that you had to go to court to get a restraining order.
In our case, there is nothing but a temporal proximity
that is somewhere in the course of about two weeks
during which other things were happening.
The thing that was happening was the communication
with the alleged harasser, a question raised earlier,
which you know, is, it highlights the issue
although it's a danger area and I'm not suggesting
in any way, this is what Children's did or would do.
But if Children's had contacted the alleged harasser
and learned of facts that convinced it
that my goodness, there is really a lot more to this story,
and we have some significant doubts
about this current almost employee
and her maturity, her judgment, her character.
-: Isn't that, isn't that her summary judgment
and trial that you made very, hey, you may have discovered
that she was stalking the other person.
And you know, you can't have someone
like that in working in your hospital.
Or the two of them are gonna draw swords
in the middle of the, you know, emergency room.
But we don't have those facts.
-: We do.
-: That for summary judgment and a trial
what we have are close temporal proximity,
no other explanation,
and a statute that isn't clear,
but you know, I just-
-: Your honor, if I may, what we don't have
is really anything more than temporal proximity
because it's not as if there's no other explanation,
it could be, and I say could be knowing this is speculative
and I'm leaving it as speculative
because of what the where we are in the 12(b)(6).
It is just as likely, if not more,
that the hospital learned something
in that ongoing background check that is focusing
on the alleged harasser and their communications
that was received.
-: That's the trial or (indistinct).
-: I understand your honor.
But my point is that if you take that out of,
that speculative possibility is there,
but the plaintiff has alleged nothing more
than the speculative possibility that the action taken
was in an effort to deny her leave rights under the statute.
So you have to plead more than speculative,
conclusory allegations.
There has to be something specific
and I point back to the Checone case
which talks about why temporal proximity is not enough
in a situation as an FMLA case.
And why it's not sufficient is because they were nothing
like them and this court gave the examples
of negative comments by a supervisor,
expressions of reluctance about that employee's history
of FMLA leave taking, something that is more
than temporal proximity that would suffice to establish
if proven that there was a connection
between not just between learning
about the harassment prevention order
but a connection between the withdrawal of the offer
or terminating her
whichever the court ended up deciding it is
and a desire to interfere with the employee's rights
under the statute, the right to leave.
And my suggestion is that the complaint as it is,
leaves it as speculative, that that was the reason
as it would be speculative for me to say,
there were other reasons discovered in the course of the,
of the background check, it's the plaintiff's burden
to allege more than speculation.
And that's what was not done here.
So the complaint is insufficient
in that it does not establish that she was an employee.
It doesn't state that she requested leave
or the leave was denied or interfered with
or that she was retaliated against any right
that she had under the statute.
The public policy issue, if I could briefly address that,
the public policy is a kind of an escape hatch
where there is no other recourse available to an individual.
The recourse in the (indistinct) case, for instance,
there was no Abusive Behavior Prevention Act at that time.
And so therefore, I think it was Judge Sikora,
ruled that there was going to be a public policy reason
to recognize that right.
But we now have it since 2014, we have a very
specific statute that covers the landscape in terms
of what the legislature believed needed to be provided
to employees and the limitations on it.
The best example being it doesn't apply
to companies that employ fewer than 50 people.
That's a policy determination that the legislature made,
presumably after considering the host of factors
that will ease the burden on the employer,
the need of the employee fairness in terms of notice
and substituting employees for the absent employee,
all those things are fodder for a legislative action
and not for a public policy determination by this court,
particularly where this is not a domestic violence issue.
This is simply a harassment prevention order,
that under the statute, under the stalking statute actually,
what's required is, I don't have the wording right
in front of me, but it's just a pattern of behavior
that is directed at a specific individual
and designed to cause them mental distress
or fear or anxiety words to that effect.
That public policy, I mean, there's a statute that prevents
that prohibits it, in fact makes it criminal
under certain circumstances, but it's not domestic violence.
So, you know, we're not this case is not the case
for this court to determine that it is incumbent
upon the court to establish a public policy exception
to the at-will employment doctrine
because this is not that case.
-: All right, thank you.
That's been very helpful,
and we're gonna- -: thank you for your time.
-: Yeah, we're gonna take a five minute break at this time.
Thank you all.
Riley: Thank you, your honors.