Opinion
10-P-1688
11-04-2011
JAMES D. CIRCO v. JOHN DREW & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In June, 2004, the plaintiff, James Circo (plaintiff), filed a complaint against defendants John Drew, Joseph Kelly, Fidelity Investors Inc., and Seaport Asset Management, Inc. (collectively defendants), arising out of the June, 2003, termination of his employment at Seaport Asset Management. The plaintiff alleged wrongful termination in violation of public policy and tortious interference with business relations. In September, 2005, the trial court granted a motion to dismiss the wrongful termination claim, and in May, 2008, and July, 2009, denied subsequent motions by the plaintiff to reconsider the dismissal.
The tortious interference with business relations claim was tried to a jury, which in June, 2009, returned a verdict finding no liability on the part of the defendants. Judgment entered dismissing the action. In response, the plaintiff filed (1) a motion for judgment notwithstanding the verdict, (2) a motion to alter or amend the judgment, and (3) in the alternative, a motion for a new trial. In October, 2009, a judge denied all three motions.
The plaintiff appeals (1) the September, 2005, dismissal of the wrongful termination claim and subsequent denial of his motion for reconsideration of the same, and (2) the judgment dismissing the tortious interference with business relations claim and the denial in October 2009, of all three of the plaintiff's motions relating to that judgment.
Discussion. We review de novo the judge's allowance of the defendants' motion to dismiss the wrongful termination claim. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
The plaintiff argues that his termination violated public policy because he was discharged for first reporting his security concerns to the defendants, and then refusing to abide by the defendant's subsequent order not to put said concerns in writing. He also argues that the defendants' amended policy to allow him to document his security concerns, but only by way of memoranda routed through Fidelity's legal department, further violated public policy through abuse of the attorney-client privilege. The plaintiff argues that he was terminated by the defendants for violating policies that both (1) endangered public safety and (2) had no purpose other than the facilitation of future perjury.
The public policy exception to an employer's ability to terminate its at-will employees is a narrow one. Redress is only available to those 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.' Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). For a claimant to survive a motion to dismiss a claim for wrongful termination in violation of public policy, he or she must identify a Massachusetts statute or regulation that clearly expresses a legislative policy that protects or encourages the plaintiff's activity. Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 473 (1992). See Mercado v. Manny's T.V. and Appliance, Inc., 77 Mass. App. Ct. 135, 139 (2010). The exception also can be triggered in the rare circumstance where an employee is terminated for performing 'important public deeds, even though the law does not absolutely require the performance of such a deed.' Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991).
The public policy exception to the at-will termination rule is employed, where appropriate, to protect policies with a basis in Massachusetts legislative or regulatory intent. Here, the plaintiff has not presented evidence to suggest that any action by the defendants, including the rule that employees refrain from putting their security concerns in writing, violated 'a well-defined, important public policy.' Mercado, supra at 139. The evidence does not suggest, as the plaintiff argues, that his employer's policy was designed to facilitate future perjury. Any connection between the policy in question and said future perjury is attenuated at best.
Further, the evidence does not support the claim that the plaintiff was terminated for performing an 'important public deed.' The plaintiff provides no evidence that the harm to public safety he predicted is anything but speculative. The dispute between the plaintiff and the defendants regarding the reporting of security concerns amounted to a difference of opinion on internal policy matters, a legal basis for termination under the at-will rule.
Termination as a result of 'internal policy matters' does 'not warrant recovery by an at-will employee.' Mercado, supra at 141. See also Smith-Pfeffer, supra at 150; and Wright, supra at 473. For the foregoing reasons there was no error in the dismissal of the wrongful termination claim.
Using the standard of abuse of discretion, we review the judge's denial of the plaintiff's motion for reconsideration. Commissioner of Rev. v. Comcast Corp., 453 Mass. 293, 312 (2009). No new evidence presented during discovery or during the trial of the plaintiff's tortious interference claim supported the plaintiff's claim that he was wrongfully terminated in violation of public policy, and the judge was within his discretion to deny the motion.
We also affirm the judge's denial of the plaintiff's three postjudgment motions. To prevail on a claim for intentional interference with advantageous business relations, a plaintiff must prove that (1) he was party to an advantageous employment contract, (2) the defendant knowingly induced the employer to break the contract, (3) the defendant's interference, in addition to being intentional, was improper in motive or means, and (4) the plaintiff was harmed by the defendant's interference. Shea v. Emmanuel College, 425 Mass. 761, 764 (1997). The jury in this case found that the plaintiff failed to prove the necessary fourth element of causation and damages, and judgment entered dismissing the action on the merits.
The plaintiff suggests that the jury's verdict 'established liability' against the defendants on the tortious interference claim, where the jury found no support for the necessary element of causation and damage. Liability attaches to a defendant only when each necessary element of tortious interference has been met. See Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 608 (2007). Here, the jury found that the plaintiff failed to prove the causation and damage element.
The judge did not abuse his discretion by denying the plaintiff's postjudgment motions for a judgment notwithstanding the verdict, Powers v. H.B. Smith Co. Inc., 42 Mass. App. Ct. 657, 666 (1997), his motion to alter or amend the judgment, Gannett v. Shulman, 74 Mass. App. Ct. 606, 615 (2009), or his motion for a new trial. Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011).
Judgment affirmed.
Orders denying plaintiff's postjudgment motions affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),