Opinion
20-P-994
12-22-2022
BRIAN GOMES v. SOUTHCOAST HEALTH SYSTEM, INC., & 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
The plaintiff, Brian Gomes, appeals from a Superior Court summary judgment dismissing his claims against the defendants, Southcoast Health System, Inc., and its corporate affiliates (collectively, Southcoast), alleging a breach of Gomes's employment contract and a violation of the implied covenant of good faith and fair dealing. On appeal, Gomes asserts that genuine issues of fact regarding the existence of an employment contract precluded summary judgment. He also challenges two earlier orders as improperly limiting the scope of discovery. We affirm.
Summary judgment.
"The standard of review of a grant of summary judgment 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." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, it was undisputed that when Gomes was hired as a nursing assistant in 1988, and thereafter, he signed multiple documents acknowledging that his employment could be terminated at any time, without notice or cause, and that Southcoast's employee policies did not "constitute . . . contractual obligations on the part of [Southcoast]." In addition, Southcoast's published disciplinary policy, and a May 2014 letter from management describing Southcoast's human resources policy manual, informed employees that those documents did not create a contract, that management could alter them at any time; and that employment was at will. Southcoast terminated Gomes's employment in 2017 based on performance issues and allegations of sexual harassment.
Gomes's complaint claimed that the termination violated Southcoast's written employment policies and procedures, in breach of an asserted employment contract. An employee handbook or similar document may create such a contract. See O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 691-694 (1996). But an employer, by including sufficient disclaimer language in the document in question, may prevent the document from forming a contract and thus preserve the at-will status of the employment. See Ferguson v. Host Int'1, Inc., 53 Mass.App.Ct. 96, 103 (2001) .
A judge ordered summary judgment for Southcoast on the breach of contract claim, agreeing with Southcoast that, based on the undisputed facts, Gomes had no employment contract as a matter of law. On appeal, Gomes claims that there were genuine disputes of fact regarding this issue. But he specifically identifies only one such dispute; he points to a statement in Southcoast's May 2014 letter that "[i]t is the responsibility of leadership to ensure that these policies are administered in an equitable, consistent, and impartial manner." Gomes argues that, based on this language, he "reasonably expected Southcoast to adhere to its promises of fair treatment."
Gomes's assertion that he was promised fair treatment ignores other language in the same letter. That language made clear that Southcoast's personnel policies and procedures "ha[d] been adopted voluntarily," were "not intended to give rise to contractual obligations or otherwise restrict the at-will nature of the employment relationship," and could be changed by Southcoast "from time to time to reflect current needs and/or circumstances." Further, "where, in the sole judg[]ment of [management], the strict adherence to a policy would cause undue hardship to an employee and/or Southcoast, an exception may be granted." Gomes makes no attempt to explain how, in light of this language, the letter could reasonably be construed as an enforceable promise governing his employment.
The judge also ruled that, even if there was a contract, Gomes's failure to invoke the grievance procedure established by Southcoast's manual was an independent basis for summary judgment on the contract claim. See 0'Brien, 422 Mass. at 695. Although Gomes argued that invoking the grievance process would have been futile -- because the same management personnel involved in the original decision to terminate him would have been involved in the grievance process -- the judge rejected this argument as lacking any evidentiary support. On appeal, Gomes neither points to any additional evidence to support this argument nor identifies any other error in the judge's reasoning. Summary judgment on the breach of contract was therefore proper on this ground as well.
Gomes also argues that summary judgment was premature because, on the day Southcoast filed its summary judgment motion, there were discovery issues outstanding. But those issues were resolved one week later, and Gomes was then afforded more than two additional months to take up to ten depositions, but he declined to do so. Nor did he ever file an affidavit invoking Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974). See First Nat'l Bank of Boston v. Slade, 379 Mass. 243, 244-245 (1979). The judge did not abuse her discretion in rejecting Gomes's prematurity argument.
On Gomes's separate claim for breach of an implied covenant of good faith and fair dealing, the judge ordered summary judgment for Southcoast because there was no evidence that Gomes's termination deprived him of any compensation for work already performed. See Harrison v. NetCentric Corp., 433 Mass. 465, 473 (2001). On appeal, Gomes does not argue that this ruling was erroneous, and we need not discuss it further. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) .
Discovery orders.
Gomes argues that, before summary judgment entered, two other motion judges improperly denied Gomes's motion to compel the production of certain documents, and granted Southcoast's motion for a protective order against the taking of certain depositions noticed by Gomes. Although we see no abuse of discretion in either ruling, see Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 302 (2009), we choose to resolve Gomes's arguments on a simpler ground. Neither in his brief, nor when pressed at oral argument, did Gomes explain how the discovery he was denied could have shed any additional light on whether he had an employment contract with Southcoast. Because we have concluded that summary judgment was correctly granted on the ground that no such contract existed, Gomes has not shown, as he must in order to obtain relief, how the discovery orders prejudiced him. See J_d. (appellate court generally "uphold[s] discovery rulings unless the appellant can demonstrate an abuse of discretion that resulted in prejudicial error" [quotation omitted]).
We reject Southcoast's argument that Gomes's failure to specifically mention those discovery orders in his notice of appeal means we have no jurisdiction to review them. The appeal of the final judgment suffices to bring the prior rulings before us. See Aiello v. Aiello, 447 Mass. 388, 398 (2006); Roberson v. Boston, 19 Mass.App.Ct. 595, 597 (1985) (appeal from summary judgment "brings up with it the interlocutory order"). See also Guardianship of Kelvin, 94 Mass.App.Ct. 448, 451 n.8 (2018) .
Judgment affirmed.
The panelists are listed in order of seniority.