Opinion
No. 12–P–449.
2013-04-10
Pedro M. CANOVAS v. UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL & another.
By the Court (KANTROWITZ, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Dr. Pedro M. Canovas, appeals, claiming error in a decision of a Superior Court judge to grant summary judgment in favor of the defendants, University of Massachusetts Medical School (UMMS) and Dr. Dario C. Altieri.
The prior dismissal of counts 4 (partial), 8, and 9, are not challenged on appeal. Moreover, all claims raised in his prolix complaint but not briefed are waived. We do not review new claims raised for the first time on appeal. R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73–74 (2001).
Against UMMS, Canovas maintains that the judge erred by dismissing his claims for (1) breach of contract, (2) wrongful discharge in breach of contract, and (3) breach of the implied covenant of good faith and fair dealing.
Against Altieri, Canovas maintains the judge erred by dismissing his claims for (1) retaliation, (2) tortious interference with contract rights, (3) tortious interference with prospective business or economic advantage, and (4) promissory estoppel. Discussion. In reviewing whether summary judgment was appropriate, the question before us is “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Bartle v. Berry, 80 Mass.App.Ct. 372, 377 (2011). See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). As such, we examine independently the summary judgment materials.
Breach of contract and wrongful discharge. Canovas's claims against UMMS are premised on his assertion that he entered into an employment contract for a definite term with UMMS when he accepted the terms of Altieri's offer letter on August 25, 2004. He further argues that he believed he would be employed at least until January 7, 2010, because UMMS filed a visa petition letter on Canovas's behalf providing that the dates of his employment period were September 15, 2007, to January 7, 2010. UMMS asserts that Canovas was an employee “at-will” and was subject to termination at any time without cause. See Smith–Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989) (employment at-will can be terminated at any time and for any reason).
Where an employment contract “contains no definite period of employment, it establishes employment at-will ... terminable by either the employee or the employer without notice, for almost any reason or for no reason at all.” Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). Where the contract is ambiguous with respect to the duration of the employment, whether the employment is at-will or for a definite term is determined by reference “not only to the contract language but also to the attendant circumstances, including ‘the nature of the employment, ... the prior negotiation, [and] the situation of the parties.’ “ Kravetz v. Merchants Distribs., Inc., 387 Mass. 457, 460 (1982).
Even where a judge may find an implied year-to-year contract, a defendant will be entitled to summary judgment if the record shows justifiable cause for the plaintiff's termination. See Mahoney v. Hildreth & Rogers Co., 332 Mass. 496, 498–499 (1955). Justifiable cause exists where the grounds for discharge are reasonably related, in the employer's honest judgment, to the needs of his business. See Boothby v. Texon, Inc., 414 Mass. 468, 480–481 (1993).
Here, the record reveals that Canovas was an at-will employee. On August 25, 2004, Altieri offered Canovas a position in his laboratory at UMMS. The offer letter required a two-year commitment, which Canovas completed in 2006. In February, 2008, Altieri lost a grant that left him with a budget shortfall of approximately $200,000 per year.
On March 7, 2008, Altieri notified Canovas that his position as a postdoctoral associate in his laboratory at UMMS would be eliminated “due to a deficiency in research funds,” and that the action was “not related to [his] performance.” See Karcz v. Luther Mfg. Co., 338 Mass. 313, 320 (1959) (“Discharges because of economic conditions on a nondiscriminatory basis must be regarded as for ‘just cause’ ”). Additionally, UMMS's postdoctoral policy, which governed Canovas's position, stated that “[a]ll appointments ... are contingent upon the availability of funds.” Canovas was aware of this policy as he cites the policy for other matters.
Altieri's grant funding was eventually restored, but not until March 2, 2009, by which time Canovas had already been terminated.
Lastly, Canovas's argument that Altieri's April 17, 2007, letter to the United States Citizenship and Immigration Services (USCIS) constituted a promise of continued employment, is unavailing. Although our courts have not had the opportunity to address this matter, other courts which have done so have held that a letter to USCIS does “not imply a reciprocal commitment of [the employer] to a ... term-employment contract.” Arboireau v. Adidas–Salomon AG, 347 F.3d 1158, 1166 (9th Cir.2003). See Geva v. Leo Burnett Co., 931 F.2d 1220, 1224 (7th Cir.1991). Accordingly, there was no error in granting summary judgment on Canovas's breach of contract and wrongful discharge claims.
In the context of at-will employment, we only apply the covenant of good faith and fair dealing where a termination is made in bad faith, which is not the case at hand. King v. Driscoll, 424 Mass. 1, 6 (1996). As discussed above, the record establishes that UMMS's termination was neither in bad faith nor motivated by anything other than its legitimate business interests. Canovas failed to show that Altieri promised him a bonus, yearly salary increase, or money for attendance at conferences. Moreover, the covenant cannot be used to supply contract terms that were not negotiated or provided. Chokel v. Genzyme Corp., 449 Mass. 272, 276 (2007). As such, Canovas's claim of breach of the covenant of good faith and fair dealing fails as a matter of law for lack of proof of a promise. See Fortune v. National Cash Register Co., 373 Mass. 96, 104 (1977).
Retaliation. Canovas alleges that Altieri retaliated against him by (1) seeking a no-trespass order against Canovas in September, 2008, and (2) refusing to help Canovas publish the scientific research article that he had written. He also claims that he was discriminated against by Altieri due to his age and national origin.
Canovas's G.L. c. 151B claims, based on national origin and age, fail because he failed to prove by “a fair preponderance of the evidence, that the defendant's proffered reason for its employment decision was not the real reason, but is a pretext for discrimination.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). More favorable treatment of those outside the protected category is the best proof of pretext; such evidence is lacking here. As the judge noted, all the postdoctoral students were foreign born. Accordingly, Canovas's national origin claim fails because he produced insufficient evidence that could support a jury verdict that it was more likely than not that the articulated reason was a pretext for actual discrimination.
On the age claim, Canovas's claim is built around one ambiguous comment by a coworker, who was not a decisionmaker, that the failure to rehire Canovas was because he was more senior. This is insufficient to rise to the level of age discrimination because “statements by people without the power to make employment decisions ... do not suffice to satisfy the plaintiff's threshold in these cases.” Somers v. Converged Access, Inc., 454 Mass. 582, 597 (2009).
To succeed on his claim, Canovas needed to “prove that [he] reasonably and in good faith believed that [Altieri] engaged in wrongful discrimination.” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000).
Here, Canovas failed to provide sufficient evidence. Indeed, his own testimony demonstrated that Altieri's “malicious” treatment of Canovas was “purely scientific,” and not based on his nationality, race, or age. Essentially, the record lacks any evidence to suggest that Altieri's stated reason for terminating Canovas—insufficient funding—was merely a pretext to mask discriminatory animus. See id. at 116–118.
Consequently, we agree with the judge's determination that no rational juror could find that Canovas harbored a reasonable, good-faith belief that Altieri had engaged in unlawful discrimination.
Tortious interference with contractual rights and advantageous business or economic relations.
Canovas also asserts that Altieri, as an agent of UMMS, tortiously induced UMMS to breach the parties' contract.
Canovas's claim for intentional interference with advantageous business relations fails as a matter of law because there is no evidence that Altieri gave him a bad reference.
It is settled that if a supervisor is acting within the scope of his employment responsibilities, his actions will be privileged unless he acted with actual malice. Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663–664 (1981). Actual malice requires the supervisor to act with “spiteful, malignant purpose,” unrelated to some legitimate interest, to breach the employment relationship. Blackstone v. Cashman, 448 Mass. 255, 260–261 (2007).
To show malice, Canovas asserts that Altieri continually embarrassed him in front of colleagues, was otherwise arrogant and disrespectful, did not adequately help him in publishing his paper, and did not give him an increase in salary. Even if Canovas's claims were true, they do not amount to the required malice within the meaning of the standard. Proof of actual malice requires more than a showing of mere hostility, and “personal dislike will not warrant an inference of the requisite ill will.” King v. Driscoll, 418 Mass. 576, 587 (1994). Furthermore, any reasonable inference of malice must be based on probabilities rather than possibilities, and such an inference requires an affirmative showing that the supervisor's actions were not derived from legitimate business interests. See Gram v. Liberty Mut. Ins. Co., 384 Mass. at 664;Boothby v. Texon, Inc., 414 Mass. at 487.
Here, it is undisputed that Altieri faced a budget shortfall. Moreover, Canovas has not offered competent evidence to show that the reason for his termination or Altieri's subsequent abandonment of the research paper were the result of a spiteful, malignant purpose unrelated to the legitimate operation of the laboratory. See Blackstone v. Cashman, 448 Mass. at 260–261.
Promissory estoppel. Canovas's claim is based on Altieri's representation that he was committed to publishing Canovas's work. To succeed on a claim for promissory estoppel, the plaintiff must show “that there [was] an unambiguous promise and that the party to whom the promise was made reasonably relied on the representation.” Rhode Island Hosp. Trust Natl. Bank v. Varadian, 419 Mass. 841, 848 (1995).
Given the arduous procedure of publishing, we fail to see how Canovas could have reasonably relied on a guaranty of publication. At most, as Altieri argues, Canovas could rely on the fact that Altieri would “attempt” to publish, but nothing more. As the record shows, Altieri did make such attempts. That the article was not published was not of Altieri's own doing. See Loranger Constr. Corp. v. E.F. Hauserman Co., 6 Mass.App.Ct. 152, 154 (1978). To the extent that Altieri's commitment to working with Canovas wavered after Canovas initiated formal complaints against him, there is no injustice that requires relief.
For these reasons, and for substantially those in the memorandum of decision of the judge, the judgment is affirmed.
So ordered.