By Jody L. Newman
Send Email to: jnewman@dwyercollora.com
This article was first presented to the Massachusetts Continuing Legal Education: Chapter 4 An Update on Tort Issues in Employment Termination Case (1997), © MCLE, Inc.
I. Introduction
Common law tort claims are frequently present in employment disputes, usually in addition to statutory discrimination claims and common law contract and wrongful discharge claims. This past year produced a series of decisions which have significantly curtailed the continued viability of negligent/intentional infliction of emotional distress in the employment context and well as major decisions in other employment related torts. This article highlights recent state and federal court rulings on tort claims in employment cases and is intended as a supplement to the discussions which have appeared in previous additions of this publication.
II. Claims
A. Intentional Infliction of Emotional Distress
1. Chakrabarti v. Cohen, 31 F.3d 1 (1st Cir. 1994). The First Circuit Court of Appeals affirmed a directed verdict on an intentional infliction of emotional distress claim brought by a physician against his supervisors for failing to show the requisite "extreme and outrageous conduct." The record indicated that the physician was demoted and eventually fired without strict adherence to termination procedures, and despite praise by several of his coworkers. The Court said that in order to prove such outrageous conduct, it is necessary to show "something more than a faulty evaluation, a procedural error in applying opaque credential rules, or even a dead-end job ...."
2. Hamilton v. Baystate Medical Educ. and Research Found., Inc., ___ F. Supp. ___ No. 92-30179-MAP, 1994 WL 590843 (D. Mass Oct. 27, 1994). In a summary judgment proceeding, the district court held that the exclusivity bar of the Massachusetts Workers' Compensation Act (Mass. Gen. L. ch. 152, §§ 24 and 29) precluded the intentional infliction of emotional distress claim of the plaintiff pathologist against his former employer. The employer terminated the plaintiff because he suffered from a disease which afflicted his mental capacities and resulted in a series misdiagnoses. Judge Pasner reasoned that since the plaintiff claimed his emotional distress resulted from the protracted termination process, the injury clearly arose out of the nature of his employment. The Court further held that, as a matter of law, the plaintiff failed to show that the employer's conduct rose to the "required level of outrageousness."
3. Conway v. Smerling, 37 Mass. App. Ct. 1 (1994). The Massachusetts Court of Appeals affirmed the Superior Court's judgment n.o.v. for the defendant employer on the former employee's intentional infliction of emotional distress claim based on the employer's disclosure to an employment agency that the circumstances surrounding the employee's departure was the subject of a police investigation. The Court found that the employer actions did not approach the level of appalling conduct necessary to trigger the tort, stressing that "a high order of reckless ruthlessness" or "deliberate malevolence" is required. "[T]he investigation and reporting of the suspected embezzlement was founded in reasonable apprehension based on objective facts and, to that degree, privileged. In any event, the [employer] handled [the employee] with comparative graciousness. They did not fire her, vilify her, or take steps to maximize her shame in the eyes of coworkers. They did not harass her on the job or thereafter."
4. Perti v. Burns & Levinson, C.A. No. 94-0971B Mem. & Dec (Suffolk Super. Ct. May 11, 1994) (22 M.L.W. 2003). The Superior Court dismissed a former law firm associate's intentional infliction of emotional distress claim brought against her law firm and two of its partners as barred by the exclusivity provision of the Massachusetts Workers' Compensation Act. The alleged criticism and discharge of the associate, reasoned the Court, occurred during the associate's course of employment and in the partners' exercise of their supervisory duties in furtherance of the law firm's interests.
5. Salhab v. Middlesex County, C.A. No. 93-1110 Mem. & Dec. (Middlesex Super. Ct. March 23, 1994) (22 M.L.W. 1646). A claim for intentional infliction of emotional distress brought by a former corrections officer of Lebanese descent and a member of the Sunni Muslim faith, survived a motion to dismiss. Judge Cowen held that "victimization on the basis of national origin and religion is intolerable and clearly would support an intentional interference claim." The decision did not discuss the Workers' Compensation Act. Top
B. Negligent Infliction of Emotional Distress
1.Catalano v. First Essex Sav. Bank, 37 Mass. App. Ct. 377 (1994). The Massachusetts Courts of Appeals clarified that the exclusivity provisions of the Massachusetts Workers' Compensation Act bars negligent infliction of emotional distress claims and affirmed the dismissal of the plaintiff's action against her former employer. The confusion over the viability of the negligent infliction actions stemmed from amendments to the workers' compensation act in 1985 and 1986, Mass. Gen. L. ch. 152, § 1(7A) (1986 ed.), which provided that the emotional distress that arose out of a bona fide personnel action was not compensable under its provisions unless it was the intentional infliction of emotional distress. From this definition, the plaintiff argued that workers' compensation only preempted intentional infliction claims. The Court, however, disagreed. Relying on the legislature's "probable intent," the Court reasoned that by amending section 1(7A) of chapter 152, the legislature sought to shield employer's from financial liability for emotional distress claims stemming from personnel actions unless motivated by an intent to inflict emotional distress. As such, the Court found it "unlikely" that the legislature sought "to preserve a civil action for claims based on negligent infliction of emotional distress that arise from bona fide personnel action." To recognize this claim, stated the Court, would obstruct its purpose of relieving employers of the burden for non-intentional emotional damages and breakdown the workers compensation act's overall design to provide a uniform, statutory remedy.
2. Hamilton v. Baystate Medical Educ. and Research Found., Inc., ___ F. Supp. ___ No. 92-30179-MAP, 1994 WL 590843 (D. Mass Oct. 27, 1994). The district Court entered summary judgment on a pathologist's claim for negligent infliction of emotional distress against his former employer on the ground that it is barred by the exclusivity clause of the Massachusetts Workers' Compensation Act. The Court cited Catalano v. First Essex Sav. Bank, 37 Mass. 377 (1994) as resolving the confusion over the viability of negligent infliction claims. The Court added that even if the Workers' Compensation Act did not preclude his action, his alleged insomnia, headaches, and gastric distress, without treatment or expenses, failed to evidence the requisite physical harm necessary to bring a negligent infliction of emotional distress claim.
3. Duggan v. Celata Eng'r, Inc., C.A. No. 91-7844-F Mem. & Dec. (Middlesex Super. Ct. April 8, 1994) (22 M.L.W. 2690). The Superior Court dismissed a former at will employee's negligent infliction of emotional distress claim on the ground that the termination of employment at will does not alone serve as a basis for such an action. The Court also noted that judgment for the defendant was appropriate because the plaintiff failed to present expert medical evidence needed to link the termination with his alleged physical manifestations that may have been attributable to a pre-existing medical condition and that first occurred several months after the termination. Top
C. Defamation
1.Lyons v. National Car Rental Sys., Inc., 30 F.3d 240 (1st Cir. 1994). The First Circuit Court of Appeals held that whether an employer lost its conditional privilege to defame its employee by recklessly investigating the theft of company car was a question for the jury and reversed the trial court's directed judgment against the employee's defamation claim. The Court agreed with the trial court that evidence indicating that the theft was an "inside job" and involvement by someone with the employee's last name raised a conditional privilege that allowed the employer to defame the employee by questioning her about the crime as reasonably necessary to protect its business interest. However, the Court disagreed that the conditional privilege warranted a judgment for the employer citing the employer's statements that it had "strong evidence" against her, when it had, "at best, a reasonable suspicion" could be found to be reckless so as to defeat the privilege. Also, the Court noted that all the employer's statements made at the same time and in the same context were "part and parcel" of a single slanderous accusation and therefore improperly excluded by the trial court.
2. Dragnetti v. Chmielewski, 416 Mass. 808 (1994). The Supreme Judicial Court affirmed a jury's defamation award to a police officer for statements made by the police chief to a newspaper which falsely impugned the police officer with criminal conduct. The Court ruled that the defamation claim was properly submitted to the jury because the allegations of an intent to commit a crime may discredit the officer "in the minds of a considerable and respectable segment of the community." Next, the Court rejected the defense that the newspaper article did not directly quote the chief because the presence of quotation marks is not an element of a defamation claim. Lastly, the Court concluded that the chief's remarks were not conditionally privileged as the statements were published in a general circulation newspaper, not to a narrow group who shared an interest in the communication. The chief had no official duty to report an internal investigation to the newspaper and its readers did not share a "common interest" that privileges his statements.
3. Perti v. Burns & Levinson, C.A. No. 94-0971B Mem. & Dec (Suffolk Super. Ct. May 11, 1994) (22 M.L.W. 2003). The Superior Court denied a law firm's and two partners' motion to dismiss a defamation claim brought by a former associate on the ground that whether her supervisor exceeded his qualified privilege to publish information about the plaintiff was a question for the jury. The Court reasoned that whether the partner had a legitimate interest to discuss the plaintiff's mental health with other employees of the law firm was a question for the jury. Top
D. Intentional Interference With Contractual Or Advantageous Relations
1.Chakrabarti v. Cohen, 31 F.3d 1 (1st Cir. 1994). The First Circuit Court of Appeals affirmed a jury's damage award on the intentional inference with advantageous relations claim of a physician who, after opposing a department merger that installed new supervisors, was terminated by those supervisors. In so doing, the Court rejected the supervisors' argument that no reasonable juror could have found for the physician. Even if the jury rejected the plaintiff's primary argument that he was fired in retaliation for protected speech, the Court reasoned that alternative grounds, such as fabricating claims of incompetence, supported the jury's award. The Court also rejected the supervisors' contention that they enjoyed statutory immunity for interference with an advantageous relationship between the hospital and its employees under Mass. Gen. L. ch. 231, § 85N and Mass. Gen. L. ch. 111, § 203(c). Unlike the exemption for employers' interference, the Court reasoned that these statutes do not bar suits between co-employees. Instead, these statutes merely create a privilege for supervisors' to express their views in good faith and by reasonable means.
2. Dragnetti v. Chmielewski, 416 Mass. 808 (1994). The Supreme Judicial Court held that sufficient evidence supported a jury's damage award on a police officer's claim of unlawful interference with contractual relation against the police chief who knowingly interfered with the officer's teaching contract with a police academy. The Court reasoned that even though as chief he could have lawfully accomplished the same result due to his broad authority over the off-duty private employment of police officers, by misrepresenting the officer's "scheduling problem" to the academy, the chief interfered by improper means. The Court also found sufficient evidence of an improper motive citing a "strained relationship" between the officer and the chief that caused the chief to retaliate against the officer.
3. Catalano v. First Essex Sav. Bank, 37 Mass. App. Ct. 377 (1994). The Massachusetts Court of Appeals held that a former employee's intentional interference with an advantageous relationship claim against a fellow employee was not barred by the exclusivity clause of the Massachusetts workers' compensation act, Mass. Gen. L. ch. 152, § 24, and reversed the Superior Court's dismissal. The Court reasoned that the plaintiff's allegations that her co-worker had continually interfered with and prevented her from performing her job were sufficient to show that the co-worker's conduct was not within the course of his employment or in furtherance of his employer's interest.
4. Conway v. Smerling, 37 Mass. App. Ct. 1 (1994). Holding that a employer was not liable for interference with advantageous business relations for telling an employment agency that the circumstances surrounding the employee's departure was the subject of a police investigation, the Massachusetts Court of Appeals reversed a jury's judgment in favor of the employee. The Court reasoned that there was insufficient evidence to support the element is that the defendant act without "lawful cause." Here, "in response to an inquiry about a former employee, [the employer] had a privilege, if not a duty, to speak the truth even if the disclosure of the facts might negatively affect the subject's job prospects." Although the employer may have lost this privilege if abused so as "to besmirch [the employee] to disguise their own dereliction," the Court concluded that the plaintiff had made no such showing in this case.
5. Vernazarro v. Collins, No. 844, 1994 WL 89425 (Mass. App. Div. March 24, 1994) (22 M.L.W. 1431). The Massachusetts Appellate Division of the District Court Department held that the defendant county commissioner, who refused to approve personnel papers submitted by the plaintiff prospective county employee, was entitled to qualified immunity in the plaintiff's wrongful interference with contractual relations claim and reversed the district court's order denying the defendant's motion to dismiss. The Court reasoned that government officials performing discretionary functions, such as hiring and approving county employees are shielded from liability to the extent that their conduct does not violate clearly established law. Top
E. Misrepresentation / Fraud / Deceit
1. Engelbrecht v. Northeastern Univ., C.A. No. 92-3038 Mem. & Dec. (Suffolk Super. Ct. Nov. 16, 1993) (__ M.L.W. __). The Superior Court granted summary judgment for defendant university on a former employee's negligent misrepresentation claim for failure to show the existence of any false statement. The Court found that statements concerning tuition benefits were not untrue because free tuition, while limited to some extent, existed. With respect to statements about work schedule flexibility, the Court reasoned that the statements were not actionable as opinions or statements of future intent. In addition, the Court noted that the speaker personally believed, at the time the statements were made, that the plaintiff would not have difficulty scheduling courses.