Opinion
21-P-157
03-24-2022
DANIEL J. KELLEY v. THE CITY KNOWN AS THE TOWN OF GREENFIELD.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from summary judgment entered in favor of the defendant (town), dismissing his complaint asserting a violation of the whistleblower statute, G. L. c. 149, § 185, when the town terminated his employment, allegedly for exposing problems with its accounting practices. A judge of the Superior Court allowed the town's motion for summary judgment on the basis that the plaintiff failed to establish a prima facie case. We affirm.
Background. In April 2016, Greenfield Community Energy and Technology (GCET) was established as a municipal lighting plant pursuant to G. L. c. 164. The plaintiff was hired in September 2016 as interim general manager. According to his contract, the plaintiff was "subject to the direction and control of the [m]ayor . . . pursuant to [G. L. c. 164, § 56]." Within a couple of months, the plaintiff began to have disputes with the town accountant and town treasurer over accounting practices involving GCET. During an e-mail exchange with the town auditor in March 2017, the plaintiff stated that he was not going to discuss the issues anymore and that the matter was in the hands of an attorney.
In an August 2017 meeting of the town council, the mayor reported that the plaintiff had contemplated suing the town but that he had since reconsidered. The mayor defended the plaintiff's concerns about the town's accounting practices with respect to GCET, explaining that the plaintiff had been advised by counsel that he could be held responsible for violation of G. L. c. 164, if the town did not follow proper procedures. Shortly thereafter, a town councilor requested the plaintiff to provide documentation of the legal opinion he relied on, along with "full financials" of GCET. The plaintiff refused.
On the following day, August 31, 2017, the mayor sent the plaintiff an e-mail instructing the plaintiff to "cease from further communications to [c]ouncilors, media or others" without consulting him. The mayor also requested the plaintiff to provide him with certain GCET financials by September 5, 2017, at 5:00 £.M. The mayor sent follow-up e-mails on September 14 and 15, 2017, concerning the requested information. In the September 15, 2017 e-mail, the mayor specified that the plaintiff was required to provide that information in both hard copy and electronic form by September 18, 2017, at 1:00 E-M. Additionally, the mayor emphasized that he was "required to prepare a report to the [c]ouncil by the end of the [first] quarter / September 30, 2017," and that he was "currently [] unable to complete [the report] without [his] requests being satisfied. Time is of the essence." The mayor terminated the plaintiff's employment on September 19, 2017, the next business day following the deadline set for the requested information.
Discussion. On a motion for summary judgment, the moving party bears the burden of demonstrating that there are no genuine issues of material fact in dispute and that those undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the moving party to judgment as a matter of law. See DiLiddo v. Oxford Street Realty, Inc., 450 Mass. 66, 70 (2007), citing Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Whereas, here, the nonmoving party will bear the burden of proof at trial, summary judgment is appropriate if the moving party demonstrates that the nonmoving party has no reasonable expectation of proving an essential element of that party's case. See HipSaver, Inc. v. Kiel, 464 Mass. 517, 522 (2013), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). An appellate court reviews a motion for summary judgment de novo. See Psychemedics Corp. v. Boston, 486 Mass. 724, 731 (2021) .
In order to make out his whistleblower claim under G. L. c. 149, § 185, the plaintiff was required to establish "(1) the plaintiff-employee engaged in an activity protected by the act; (2) the protected activity was the cause of an adverse employment action, such that the employment action was retaliatory; and (3) the retaliatory action caused the plaintiff damages." Edwards v. Commonwealth, 488 Mass. 555, 568-569 (2021). Here, there is no dispute that the plaintiff engaged in what could be considered protected activities, including disclosing or objecting to certain accounting practices believed to be improper, and that the plaintiff sustained an adverse employment action, namely termination from employment.
The issue is whether the plaintiff's engagement in protected activity was the cause of his termination, thus making the termination retaliatory. In the absence of direct evidence of retaliatory motive, causation can be inferred, for example, where "adverse action is taken against a satisfactorily performing employee in the immediate aftermath of the employer's becoming aware of the employee's protected activity." Psy-Ed Corp. v. Klein, 459 Mass. 697, 707 (2011), quoting Mole v. University of Mass., 442 Mass. 582, 592 (2004). Even then, the employer's desire to retaliate against the employee must be shown to be a determinative factor in its decision to take adverse action. Psy-Ed Corp., supra. See Edwards, 488 Mass. at 573 ("the determinative cause standard applicable in employment discrimination cases should be used in claims for retaliation brought under the whistleblower act").
Here, the plaintiff began making claims about the town's accounting practices within a few months of his hiring. The mayor was fully aware of the controversy from its inception, and he supported the plaintiff's position throughout the year-long controversy. It was only after, and immediately after, the deadline had passed for the plaintiff to provide the mayor certain GCET information that the plaintiff was terminated. Under the circumstances, an inference of retaliation cannot be sustained. See Mole, 442 Mass. at 595 (as elapsed time between employer learning of employee's protected activity and employer's adverse employment action "becomes greater, the inference weakens and eventually collapses"). "[U]nless the termination is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation" (citation omitted). Id.
Here, the plaintiff points to communications from town council members, particularly an August 30, 2017 e-mail from a town councilor to the plaintiff and the mayor, and argues that they support an inference that the mayor's decision to terminate his employment was brought about by pressure from the town council. While there may have been members of town government who sought to retaliate against the plaintiff for making the accounting issues public, the chain of causation was broken by the mayor's independent decision to terminate the plaintiff. See Mole, 442 Mass. at 598 ("a third person's independent decision to take adverse action breaks the causal connection between the supervisor's retaliatory or discriminatory animus and the adverse action").
The letter requested the plaintiff to voluntarily release information concerning GCET financials and, in the event that the plaintiff declined, set forth options that the town council had. Among them were passing a resolution calling on the mayor to replace the plaintiff and withholding funds from mayoral priorities if he refused to replace the plaintiff.
To the extent that the plaintiff argues that others were pulling the mayor's strings, the record does not support such a theory. "When assessing the independence of the ultimate decision maker, courts place considerable emphasis on the decision maker's giving the employee the opportunity to address the allegations in question, and on the decision maker's awareness of the employee's view that the underlying recommendation is motivated by bias or a desire to retaliate." Mole, 442 Mass. at 600. Here, the mayor was well aware of the long-standing controversy between the plaintiff and others in town government. The mayor steadfastly supported the plaintiff throughout. It was only after he gave the plaintiff an opportunity to provide requested GCET documents to him that the mayor took any adverse action against the plaintiff. Under the circumstances, the plaintiff has failed to establish a causal link between his protected activity and the mayor's termination of his employment.
The town's motion for summary judgment was properly allowed because the plaintiff failed to establish a prima facie case under the whistleblower statute.
Judgment affirmed.
The panelists are listed in order of seniority.