 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Kessler v. Cambridge Health Alliance11/29/2004
Middlesex.
April 14, 2004.
Practice, Civil, Complaint, Motion to dismiss, Standing. Contract, Employment, Collective bargaining contract. Labor, Grievance procedure. Employment, Records. Statute, Construction.
Civil action commenced in the Superior Court Department on October 10, 2001.
A motion to dismiss was heard by Nonnie S. Burnes, J.
One month after he was hired by the defendant Cambridge Health Alliance (Alliance) as a resident fellow in its child and adolescent psychiatry unit, the plaintiff, Michael N. Kessler, a medical doctor licensed to practice in the Commonwealth, was fired because of an unsatisfactory criminal offender record information (CORI) report. Unhappy with Alliance's responses to several requests for copies of his personnel records, Kessler filed a complaint in Superior Court alleging that Alliance had breached the collective bargaining agreement and a supplementary "House Officer Agreement" (count I), and had violated G. L. c. 149, § 52C, governing the maintenance of personnel records by private or public employers (count II). He sought declaratory and injunctive relief, and requested that the alleged statutory violation be referred to the Attorney General for "further action including the possible imposition of a fine." The complaint was dismissed for failure to state a claim, Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), and Kessler filed this appeal.
Background
Upon being hired by Alliance on July 1, 2001, Kessler became a member of a collective bargaining unit, the Cambridge Hospital House Officers' Association (association). As a union member, Kessler was also the beneficiary of the association's collective bargaining agreement and a supplementary House Officer Agreement with the Cambridge Public Health Commission. His employment was conditioned upon a satisfactory CORI report, a copy of which he had authorized Alliance to obtain. Kessler was terminated from his employment on August 1, 2001, and by a letter of that date, Alliance's personnel department notified Kessler that the termination was based on his "failure to satisfactorily meet the standards for a CORI check and the circumstances attendant on that failure."
Thereafter, Kessler made three written requests for copies of his personnel file, in which he invoked provisions of both the collective bargaining agreement and House Officer Agreement, along with G. L. c. 149, § 52C. See note 4, infra. After the first request, Alliance sent a copy of his file, which included forms confirming his dates of hire and termination; Kessler's application for employment; and copies of Kessler's passport, wage withholding statement, signed confidentiality agreement, and insurance sign-up forms. The second request essentially reiterated the first, and Alliance responded that the file had been sent. Evidently suspicious that copies of certain documents had been withheld, Kessler's third request stated that he also sought "copies of any and all documents which are held in an official training director's file," and emphasized that he sought all documents "including those which you have reason to believe I may have received in original form previously." In response, Alliance sent him a letter stating that it was not obliged to send him multiple copies of his personnel file, and asking him to " lease advise if you have not received the previously forwarded copy of your file . . . f you have reason to believe the copy of your personnel file that you received is not up to date." Kessler never responded to this letter.
It is undisputed that Kessler did not attempt to utilize the provisions relative to grievances and arbitration withi
Page 1 2 3 4 5 Massachusetts Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|