John Ferreira v. Child and Family Services of Rhode Island ( 2019 )

December 17, 2019
Supreme Court
No. 2018-177-Appeal.
(NC 17-330)
John Ferreira :
v. :
Child and Family Services of Rhode Island. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2018-177-Appeal.
(NC 17-330)
John Ferreira :
v. :
Child and Family Services of Rhode Island. :
Present: Suttell, C.J., Goldberg, Flaherty, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The plaintiff, John Ferreira, is challenging the
dismissal of his first amended complaint against the defendant, Child and Family Services of
Newport County (CFS).1 This case came before the Supreme Court pursuant to an order directing
the parties to appear and show cause why the issues raised in this appeal should not be summarily
decided. After considering the parties’ written and oral submissions and reviewing the record, we
conclude that cause has not been shown and that this case may be decided without further briefing
or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior
Court.
I
Facts and Travel
In August 2017, Ferreira filed a complaint in Newport County Superior Court, claiming
that his former employer, CFS, defamed him and discriminated against him based on his age,
1
The plaintiff named “Child and Family Services of Rhode Island” as the defendant in his initial
complaint, but served the complaint upon Child and Family Services of Newport County. He then
amended the defendant’s name to “Child and Family Services (C&FS) of Newport Co[unty]” in
his first amended complaint. Child and Family Services of Newport County is the proper party
defendant in this case, despite the caption indicating otherwise.
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gender, and “hostile environment[.]” The factual allegations asserted that Ferreira, who had been
employed by CFS for nine years, resigned from his position after a newly hired clinician
undermined him at the workplace by reporting false accusations against him to their supervisors,
who in turn inappropriately disciplined Ferreira. CFS filed a motion to dismiss the complaint,
which a hearing justice of the Superior Court granted, in part for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) of the Superior Court Rules of Civil Procedure because Ferreira had not
exhausted his administrative remedies by obtaining the required right to sue letter from the Rhode
Island Commission for Human Rights, and in part for failure to state a claim upon which relief
may be granted pursuant to Rule 12(b)(6). The dismissal was without prejudice, however, and
Ferreira was given twenty days from the date of the decision to file an amended complaint.
Ferreira timely filed an amended complaint, adding a few new factual allegations and
claims.2 Accepting the factual allegations in the amended complaint as true—as we must when
we consider an appeal from the grant of a motion to dismiss pursuant to Rule 12(b)(6), Chariho
Regional School District v. State, 207 A.3d 1007, 1012 (R.I. 2019) (Chariho)—Ferreira’s
circumstances were as follows. He was over forty years old and had worked at CFS, a nonprofit
agency, for nine years, having always received “good” evaluations. He was “very experienced
with [CFS’s] clients.” In the summer of 2016, CFS hired a young, inexperienced female clinician,
who “undermined” Ferreira by accusing him “of inappropriate communication and incompetence
to management, co-workers and clients” and by “refusing to back him up when he tried to enforce
policy with the clients.” CFS “treated the clinician better than they treated [Ferreira].” CFS
summoned Ferreira to a disciplinary meeting, confronting him with the “young” clinician’s
2
Ferreira obtained a right to sue letter from the Commission for Human Rights prior to filing his
amended complaint.
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accusations as well as references to prior events for which Ferreira had not previously been made
aware or disciplined. CFS presented Ferreira with a “last written warning[,]” which he refused to
sign. One of Ferreira’s managers frequently told Ferreira, a retired police officer: “You’re not a
cop anymore[,]” which Ferreira took to be a reference to his age. Ferreira “suffered stress,
embarrassment, and financial hardship from these events[,]” “sought relief from his physician[,]”
and was placed on stress leave. Ferreira resigned, but shortly thereafter attempted to rescind his
resignation, which CFS “refused to accept” and “terminated [his] service while he was on stress
leave citing his resignation.” Neither the initial complaint nor the amended complaint specified
any dates, sequence, or chronology for these alleged events.
Ferreira asserted several claims in his amended complaint: Defamation (specifying all of
its varieties: slander, libel, and false light); constructive termination; discrimination based on
disparate treatment, age, and gender pursuant to G.L. 1956 chapter 112 of title 42 and G.L. 1956
§ 28-5-7; and breach of the covenant of good faith and fair dealing. CFS responded with a motion
to dismiss the amended complaint. At the conclusion of the hearing on this motion, the hearing
justice dismissed the defamation claim and the claim of breach of the covenant of good faith and
fair dealing and took the claims for discrimination and constructive termination under advisement.
Over one month later, in a written decision, the hearing justice dismissed the remaining age and
gender discrimination claims, as well as Ferreira’s claim for “constructive termination,” and
dismissed the entire amended complaint, with prejudice. Ferreira challenges the dismissal of each
claim in his amended complaint.3
3
As the parties are aware, the sequence of procedural events after the hearing on CFS’s motion to
dismiss was somewhat convoluted and out of the ordinary procedural order. Ferreira’s claims of
defamation and breach of good faith and fair dealing were dismissed at the May 7, 2018 hearing.
On May 25, Ferreira filed a notice of appeal, listing the May 7 hearing date entered on the form as
the “date of Judgment or Order Appealed From.” On May 31, the Superior Court clerk entered an
-3-
II
Standard of Review
The purpose of a motion to dismiss for failure to state a claim upon which relief may be
granted is “to test the sufficiency of the complaint.” Chariho, 207 A.3d at 1012 (quoting Pontarelli
v. Rhode Island Department of Elementary and Secondary Education, 176 A.3d 472, 476 (R.I.
2018)). When this Court reviews the grant of a motion to dismiss pursuant to Rule 12(b)(6), we
apply the same standard as the hearing justice. Id. “[W]e assume the allegations contained in the
complaint [are] true and view the facts in the light most favorable to the plaintiff[].” Id. (quoting
Rein v. ESS Group, Inc., 184 A.3d 695, 699 (R.I. 2018)). “We will affirm a trial justice’s grant of
a motion to dismiss ‘when it is clear beyond a reasonable doubt that the plaintiff would not be
entitled to relief from the defendant under any set of facts that could be proven in support of the
plaintiff’s claim.’” Id. at 1012-13 (quoting Rein, 184 A.3d at 699).
III
Discussion
Before us, Ferreira argues that his amended complaint fulfilled the purpose of the general
pleading rules by providing adequate notice to CFS of his claims for defamation, discrimination,
constructive termination, and breach of the covenant of good faith and fair dealing. He also asserts
that his amended complaint should not have been dismissed with prejudice and that he should have
been given leave to amend his complaint once again. CFS responds that the hearing justice
order memorializing the hearing justice’s oral decision to dismiss the claims of defamation and
breach of the covenant of good faith and fair dealing and to take the remaining counts under
advisement. The hearing justice’s written decision granting CFS’s motion to dismiss the age and
gender discrimination claims as well as the constructive termination claim entered on June 13,
2018. Final judgment, however, did not enter until September 13, 2019, after this case was
scheduled for oral argument before us. Because the final judgment was eventually filed, we will
address the dismissal of each of his claims.
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properly dismissed the amended complaint with prejudice because the pleading lacked any factual
allegations to support the required elements of the claims alleged in the pleading.
A
Defamation
“To prevail in a defamation action, a plaintiff must prove: (a) a false and defamatory
statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting
at least to negligence on the part of the publisher; and (d) damages, unless the statement is
actionable irrespective of special harm.” Burke v. Gregg, 55 A.3d 212, 218 (R.I. 2012) (quoting
Marcil v. Kells, 936 A.2d 208, 212 (R.I. 2007)); see also Shannahan v. Moreau, 202 A.3d 217,
231 (R.I. 2019). “With respect to the first element of defamation, a plaintiff must show that the
statement is false and malicious, imputing conduct which injuriously affects a man’s reputation,
or which tends to degrade him in society or bring him into public hatred and contempt.” Id.
(brackets and deletion omitted) (quoting Marcil, 936 A.2d at 212). However, “a pleading need not
include the ultimate facts that must be proven in order to succeed on the complaint or * * * set out
the precise legal theory upon which his or her claim is based.” Oliver v. Narragansett Bay
Insurance Company, 205 A.3d 445, 451 (R.I. 2019) (quoting Rhode Island Mobile
Sportsfishermen, Inc. v. Nope’s Island Conservation Association, Inc., 59 A.3d 112, 119 (R.I.
2013)). While a plaintiff in a civil action “is not required to draft the pleading with a high degree
of factual specificity[,]” the plaintiff is responsible for “providing some degree of clarity as to what
is alleged[.]” Hyatt v. Village House Convalescent Home, Inc., 880 A.2d 821, 824 (R.I. 2005).
“[D]ue process considerations are implicated, and we require that ‘the complaint give the opposing
party fair and adequate notice of the type of claim being asserted.’” Id. (quoting Butera v. Boucher,
798 A.2d 340, 353 (R.I. 2002)). A Rule 12(b)(6) motion “does not deal with the likelihood of
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success on the merits, but rather with the viability of a plaintiff’s bare-bones allegations and claims
as they are set forth in the complaint.” Id. at 823-24.
The hearing justice concluded that Ferreira had not alleged the required element of
publication with the requisite level of specificity in the pleading and dismissed Ferreira’s claim
that CFS had engaged in the tort of defamation. The hearing justice also concluded that the
allegations of misleading and exaggerated statements regarding Ferreira’s work performance were
insufficient to survive the motion to dismiss his cursory claims for slander, libel, and false light.
In his amended complaint, Ferreira alleged that the new clinician “undermined” him “by
refusing to back him up when he tried to enforce policy with the clients[,]” “undermined [him] to
management, co-workers, and clients[,]” and “accused [him] of inappropriate communication and
incompetence to management, co-workers and clients.” Ferreira also alleged that “[t]he
administration * * * exaggerated [his] work history and rendered misleading descriptions of long
prior work events that [he] had never been disciplined or warned about that called into question
[his] competence[,]” “admitted to one of [his] co-workers that they had ‘pulled a shady’ on [him,]”
and a manager frequently undermined his age by stating, “You’re not a cop anymore.” Ferreira
does not allege, however, that any of the statements made by the new clinician or the supervisors
were false. At the end of the amended complaint, under the heading “Counts,” Ferreira simply
lists: “Defamation; including Slander, Libel, and False Light[,]” without any additional detail or
allegations.
Mindful of the liberal pleading standards in our jurisdiction, we must decide whether
alleging that a co-worker “undermined” or “accused” a plaintiff in the presence of clients and co-
workers provides adequate notice to a defendant regarding the allegedly false statement published
to an unprivileged third party. We have previously held that the use of the word “wrong” was, as
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a matter of law, “too imprecise and vague to be verifiable as either true or false, and therefore, [it
was] not actionable as a potentially defamatory communication.” Leddy v. Narragansett
Television, L.P., 843 A.2d 481, 489 (R.I. 2004). In Leddy, the plaintiff accused the defendants of
defamation after the defendants aired a news story about municipal employees who had retired
with disability pensions working full-time for other government entities and who were collecting
both a current salary and their disability pensions. Id. at 483-84. One of the defendants—a news
reporter—had ambushed the plaintiff for an interview, and images of the reporter’s attempt to
interview the plaintiff aired in a promotional advertisement for the news broadcast with a voice-
over stating that, if viewers wanted to avoid talking to investigative reporters, they should refrain
from doing “anything wrong.” Id. at 489.
In the instant case, the hearing justice concluded that this Court’s holding in Leddy
prescribed a heightened level of specificity in the pleadings. We disagree. Leddy presented an
appeal from the grant of a motion for summary judgment, not from a motion to dismiss, therefore
the lens through which we evaluate the claim is completely different. See Leddy, 843 A.2d at 484.
We held in Leddy that the voice-over’s statement in the advertisement was not defamatory as a
matter of law and did not consider whether the allegations were sufficient to state a conceivable
claim for defamation. See id. at 488, 489.
Although a claim for defamation may not be subject to a heightened standard of specificity
in the pleadings, a defendant is entitled to “fair and adequate notice” of the basis of the claim
asserted in a complaint. Hyatt, 880 A.2d at 824. Ferreira’s allegations that defendant
“undermined[,]” “accused[,]” and “exaggerated” are not equivalent to alleging that defendant
published a false statement to a third party—here, presumably, CFS’s clients. These words are
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not synonymous with “false,” and we therefore are of the opinion that Ferreira has not sufficiently
alleged a claim for defamation, whether slander or libel.
Ferreira also listed the tort of “false light” as part of his defamation claim. In G.L. 1956
§ 9-1-28.1(a)(4), the General Assembly created a broad individual right to privacy, including the
“right to be secure from publicity that reasonably places another in a false light before the
public[.]” “To prevail in an action for false light, a plaintiff must prove that there has been some
publication of a false or fictitious fact which implies an association which does not exist; and the
association which has been published or implied would be objectionable to the ordinary reasonable
person under the circumstances.” Shannahan, 202 A.3d at 231 (brackets omitted) (quoting Alves
v. Hometown Newspapers, Inc., 857 A.2d 743, 752 (R.I. 2004)). Ferreira’s claim for false light
was properly dismissed for the same reason as his claim for defamation: The amended complaint
does not allege that CFS made any false statements about him.
B
Breach of the Covenant of Good Faith and Fair Dealing
The hearing justice dismissed Ferreira’s claim that CFS breached the covenant of good
faith and fair dealing because Ferreira had not alleged that any contract existed—either express or
implied through employment policy. It is well settled that “[v]irtually every contract contains an
implied covenant of good faith and fair dealing between the parties.” Dovenmuehle Mortgage, Inc.
v. Antonelli, 790 A.2d 1113, 1115 (R.I. 2002) (quoting Centerville Builders, Inc. v. Wynne, 683
A.2d 1340, 1342 (R.I. 1996)). “[W]e have [also previously] explained that a claim for breach of
the implied covenant of good faith and fair dealing does not create an independent cause of action
separate and apart from a claim for breach of contract.” McNulty v. Chip, 116 A.3d 173, 185 (R.I.
2015). Our review of the amended complaint reveals that Ferreira did not make any allegations
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regarding the existence of an employment contract governing his employment relationship with
CFS. Indeed, the allegations reveal remarkably little about Ferreira’s employment with CFS; the
only relevant allegations in the amended complaint are that CFS is a nonprofit agency in Rhode
Island and that Ferreira worked for CFS for nine years. Without alleging that a contract—express
or implied—existed between himself and CFS, Ferreira has not properly pled a claim for breach
of the covenant of good faith and fair dealing.
C
Discrimination Claims
Ferreira also contends that he pled sufficient facts to state his claims for age discrimination,
gender discrimination, and disparate treatment pursuant to § 28-5-7 and chapter 112 of title 42.
The Fair Employment Practices Act, chapter 5 of title 28 (FEPA), prohibits employers from
discharging an employee or discriminating against an employee on the basis of, inter alia, age,
sex, or gender identity and expression. Section 28-5-7(1)(i) and (ii). The Civil Rights Act of 1990,
chapter 112 of title 42, “provides all persons with ‘full and equal benefit of all laws’ regardless of
sex or disability” as defined in FEPA. DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13, 20 (R.I.
2005) (quoting § 42-112-1(a)). We have previously noted that claims of age discrimination and
sex or gender discrimination require a similar legal analysis and can therefore be considered
simultaneously. See Neri v. Ross-Simons, Inc., 897 A.2d 42, 48 (R.I. 2006). This Court has also
previously adopted the legal framework employed by the federal courts when considering these
claims. Id. The plaintiff must establish a prima facie case of each claim. Id. at 48-49. With an age
discrimination claim, the plaintiff must show that:
“(1) [he or] she was at least forty years of age; (2) [his or] her job
performance met the employer’s legitimate expectations; (3) the
employer subjected [him or] her to an adverse employment action
(e.g., an actual or constructive discharge); and (4) the employer had
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a continuing need for the services provided by the position from
which the claimant was discharged.” Bucci v. Hurd Buick Pontiac
GMC Truck, LLC, 85 A.3d 1160, 1170 (R.I. 2014) (quoting Neri,
897 A.2d at 49).
With a gender discrimination claim, the plaintiff must show that:
“(1) [he or] she is a member of a protected class; (2) [he or] she was
performing [his or] her job at a level that rules out the possibility
that [he or] she was fired for inadequate job performance; (3) [he or]
she suffered an adverse job action by [his or] her employer; and (4)
[his or] her employer sought a replacement for [him or] her with
roughly equivalent qualifications.” Neri, 897 A.2d at 49 (quoting
DeCamp, 875 A.2d at 21).
To withstand CFS’s motion to dismiss, Ferreira was required to plead allegations to satisfy
the prima facie elements of his discrimination claims. Taking the allegations in Ferreira’s
complaint as true, CFS did not actually discharge Ferreira from his employment. Ferreira resigned,
and CFS terminated his employment on that basis. In the alternative, to sufficiently plead the
adverse employment action of a constructive discharge, Ferreira had to allege that his working
conditions had become so difficult that a reasonable person in his position would have felt
compelled to resign. See Wellborn v. Spurwink/Rhode Island, 873 A.2d 884, 891 (R.I. 2005).
While Ferreira alleged that he sought medical treatment for the stress resulting from the activity at
work involving the new clinician, he did not allege that he felt compelled to resign.
Ferreira’s gender discrimination claim is also insufficiently pled because there is no
allegation that, after he resigned, CFS sought a replacement for him with similar qualifications.
The allegations in the amended complaint are clear that the new clinician was hired to fill a position
that was “hard to fill[,]” and that this position was available before Ferreira resigned. Ultimately,
the amended complaint does not include sufficient facts to allege a prima facie case of either
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employment discrimination or a civil rights violation.4 We therefore affirm the hearing justice’s
dismissal of Ferreira’s discrimination claims.
D
Dismissal with Prejudice
Ferreira also argues that the hearing justice erred by dismissing the amended complaint
with prejudice, as opposed to providing Ferreira with another opportunity to amend his pleading.
Our review of the record reveals that the hearing justice provided detailed reasoning in his written
decision dismissing Ferreira’s initial complaint, including its deficiencies that led to the dismissal
of all of the counts in that complaint. Clearly, Ferreira did not take any cues from the hearing
justice’s first decision granting CFS’s motion to dismiss without prejudice when Ferreira drafted
his amended complaint. As such, we agree with the hearing justice’s conclusion that to provide
Ferreira “with leave to amend for a second time would [have been] futile[.]”
IV
Conclusion
For the reasons set forth herein, the judgment of the Superior Court is affirmed. The record
of this case shall be returned to the Superior Court.
Justice Robinson did not participate.
4
Ferreira also included a separate claim for “constructive termination.” We note that while
constructive termination is a cognizable, independent claim under Title VII of the federal Civil
Rights Act of 1964, Wellborn v. Spurwink/Rhode Island, 873 A.2d 884, 891 (R.I. 2005), there is
no indication in Ferreira’s amended complaint or his briefing statements before this Court that he
pled this claim pursuant to this federal law.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
John Ferreira v. Child and Family Services of Rhode
Title of Case
Island.
No. 2018-177-Appeal.
Case Number
(NC 17-330)
December 17, 2019
Date Opinion Filed
Justices Suttell, C.J., Goldberg, Flaherty, and Indeglia, JJ.
Written By Chief Justice Paul A. Suttell
Newport County Superior Court
Source of Appeal
Associate Justice Brain Van Couyghen
Judicial Officer From Lower Court
For Plaintiff:
Thomas Folcarelli, Esq.
Attorney(s) on Appeal For Defendant:
Kristen Whittle, Esq.
Matthew R. Plain, Esq.
SU‐CMS‐02A (revised June 2016)