Opinion
21-P-1164
12-14-2022
WILLIAM RALPH v. TOWN OF DEDHAM & Others. [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
Following termination of his employment with the town of Dedham (town), the plaintiff brought a complaint against, relevant here, the town for violation of the Whistleblower Act, G. L. c. 149, § 185. After trial, a Superior Court jury returned a verdict in favor of the town. On appeal, the plaintiff contends that the judge erred in denying his request for a jury instruction concerning the inference of retaliation to be drawn from the temporal proximity between his protected conduct and the town's adverse action against him. Discerning no prejudicial error, we affirm.
The jury also returned a verdict in favor of two individual defendants, the town finance director and the town manager, on claims that they intentionally interfered with his advantageous relationship with the town. The plaintiff does not challenge the verdict as to the counts against these individual defendants. Defendants Dello Iacono and MacDonald were dismissed out pretrial on summary judgment; the plaintiff does not challenge those dismissals.
The background facts are those the jury could have found based on the evidence and consistent with the verdict.
The plaintiff had been employed by the town as the assistant director of finance within the finance department for five years before his employment was terminated. During that time period, the plaintiff also held positions of assistant tax collector and interim tax collector. Over the years, the plaintiff raised issues concerning the propriety of various financial practices within town government. Specifically, the plaintiff complained of the failure to conduct statutorily required audits, failure to issue purchase orders required by town bylaw, use of unaccounted for cash as a "slush fund" to reconcile balances, hundreds of thousands of dollars in "missing" funds, and the charging of taxes at an incorrect rate. Additionally, the plaintiff objected to the "so-called Siemens Project," an energy saving conservation project adopted by the town.
During his tenure with the town, the plaintiff applied for other positions within town government. Among these was the position of treasurer/collector; the plaintiff interviewed for the position but was not ultimately hired. Later, the plaintiff applied and interviewed for the position of finance director, but he did not make it to the final round of interviews. When the position was reposted, due to the town's failure to select any candidate arising out of the first posting, the plaintiff did not reapply. In the fall of 2014, the town had hired a new town manager. The town also hired a new finance director in the spring of 2015. In the summer of 2015, the new town manager, with input from the new finance director, decided to eliminate the plaintiff's position as redundant and unnecessary. Instead, a new position of financial systems manager (entailing the same pay) was created for the plaintiff and offered to him. The plaintiff did not accept the newly created position and his old position was eliminated. As a result, the plaintiff's employment with the town terminated.
Discussion.
At trial, the judge gave the parties his proposed jury instructions for review. The plaintiff objected to the judge's failure to include his requested instruction on temporal proximity, which read as follows:
"You are permitted to infer retaliation from the timing and sequence of events. The inference may be drawn if 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 or where adverse employment actions follow close on the heels of protected activity.
"In other words, close temporal proximity between the protected activity and the adverse employment action permits an inference of the causal nexus necessary for a finding of retaliation."
The judge overruled the objection, commenting that the instruction suggested "too strong of an inference," but allowed plaintiff's counsel to argue the point in his closing.
On appeal, the plaintiff contends that the judge erred in declining his request and that the judge's reasoning underscores the error. A trial judge's responsibility with respect to jury instructions is to "instruct the jury fairly, clearly, adequately, and correctly concerning principles that ought to guide and control their action." Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 547 (2014) (quotation omitted). The judge is "not bound to instruct in the exact language of the [parties'] requests," however, and "has wide latitude in framing the language to be used in jury instructions as long as the instructions adequately explain the applicable law." Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009) (quotations omitted). "We review objections to jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party." Tryon v. Massachusetts Bay Transp. Auth., 98 Mass.App.Ct. 673, 684 (2020), quoting Dos Santos v. Coleta, 465 Mass. 148, 153-154 (2013). See Mass. R. Civ. P. 61, 365 Mass. 829 (1974).
The plaintiff argues that the requested instruction was both a correct statement of law and relevant to the issues at trial, such that the judge's failure to give it constituted error. However, "[e]very possible correct statement of law need not . . . be included in jury instructions if the instructions as given are correct and touch on the fundamental elements of the claim." Selmark Assocs., 467 Mass. at 547, quoting Conners v. Northeast Hosp. Corp., 439 Mass. 469, 481 (2003).
Here, the judge instructed the jury on the essential elements of a whistleblower action. He informed the jury that, in order to prove his claim, the plaintiff must show that it was more likely than not that he engaged in protected activity while working as an employee of the town, that the town retaliated against him because of that protected activity, and that the town's retaliation harmed him. Compare Edwards v. Commonwealth, 488 Mass. 555, 568-569 (2021) (elements of whistleblower claim:
"[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").
The plaintiff does not argue that the instructions as given were erroneous. Rather, he argues that the instructions gave the jury no guidance as to how to find retaliation. The plaintiff's requested instruction, however, did not involve a complex matter that required explication. As courts have noted in the past, an adverse employment action against an employee soon after an employee engages in protected conduct is "strongly suggestive of retaliation." Mole v. University of Mass., 442 Mass. 582, 593 (2004), quoting Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988). The inference is such a natural one that the judge may well have been concerned that an instruction on the point would have overemphasized the point in favor of the plaintiff. Indeed, temporal proximity alone is generally not enough to establish a causal connection. See Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248, 264 n.17 (2021). The plaintiff's requested instruction, without additional language making it clear that it was only one of many factors that could be considered in the calculus, could well have been viewed as imbalanced. There was no error in excluding it.
Even had there been error, however, such is "not grounds for setting aside a verdict unless the error was prejudicial -- that is, unless the result might have differed absent the error." Blackstone v. Cashman, 448 Mass. 255, 270 (2007). For essentially the same reasons, we conclude that the result would not have differed had the jury been instructed on the concept of temporal proximity. It was a common sense proposition that the jury could not have overlooked.
In his preliminary remarks to the jury, the judge stated that, when he spoke of the plaintiff's burden of proof, he meant that the jury should consider whether the "[p]laintiff's version of the facts is more likely true than not true based upon the evidence and any reasonable conclusions from that evidence [emphasis added]." Those remarks were followed up by the plaintiff's opening statement in which his counsel highlighted the "timing" between "when [the plaintiff] sent this letter out," the hiring of the town manager and town finance director, and that "[t]wo months after they were hired" the plaintiff's "position is eliminated."
Moreover, the plaintiff's case was not a particularly strong one for temporal proximity, which is likely why it did not figure prominently in closing argument. By the time of trial, the plaintiff's claims of retaliation centered on two events: (1) the town manager's decision not to hire the plaintiff for the position of finance director; and (2) the plaintiff's termination from employment. The plaintiff had hurdles to climb to prove retaliation with respect to each theory. As to the finance director position, there was scant evidence that the town manager, who himself was newly hired, was aware of the plaintiff's history of engaging in protected activity. Further, the candidate that was ultimately hired was more qualified for the position. With respect to the plaintiff's termination, the evidence was that his position was eliminated but that a new position was created and offered to him at the same salary. With strong factual reasons weighing against retaliation, the inference of retaliation from temporal proximity, even if the jury had been explicitly instructed on it, would not have changed the result.
Judgment affirmed.
Meade, Wolohojian & Singh, JJ.
The panelists are listed in order of seniority.