Summary
describing "determinative" cause in whistleblower claims as "the decisive factor, the crucial factor, the deciding factor, the conclusive factor"
Summary of this case from Edwards v. CommonwealthOpinion
No. 12–P–166.
2013-03-21
Karen ORFALY v. OFFICE OF COMMUNITY CORRECTIONS & others.
The judge went on to define the standard of reasonable preponderance of the evidence.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Karen Orfaly, appeals from a Superior Court judgment. A jury rejected her whistleblower claim against the defendant, the Office of Community Corrections (OCC). Orfaly alleged that OCC had forced her to resign because she had revealed two violations of statutory requirements by the agency. She contends that the trial judge (1) provided a flawed supplemental instruction in response to a jury question; (2) excluded relevant evidence; and (3) wrongly denied her motion for a new trial. For the following reasons, we affirm.
Background. 1. Evidence. The jury heard the following evidence. The OCC oversees treatment programs for convicted offenders in lieu of incarceration. Karen Orfaly is a Massachusetts resident who accepted a job at OCC as a program specialist. According to Orfaly, when she accepted the position, OCC's executive director, Steven Price, “assured” her a promotion to a regional director position. Orfaly's theory at trial was that she had told supervisors of two concerns about the lawfulness of OCC's operations, and that OCC had forced her resignation in retaliation for her disclosures. First, Orfaly alleged that she had informed OCC's deputy director, Patricia Horne, that OCC was not in compliance with Federal HIPAA standards.
Second, she claimed that she had told OCC's general counsel that OCC had not established advisory boards in accordance with G.L. c. 211F, § 6, its governing statute. Orfaly's employment with OCC had lasted fewer than thirty working days as of the time of her resignation.
HIPAA stands for the Health Insurance Portability and Accountability Act of 1996.
Seven OCC employees testified about Orfaly's poor performance and her disruptive and unprofessional behavior. Orfaly's supervisor, Vincent Lorenti, testified that she was disrespectful, inattentive during training, and unable to meet the work requirements involving basic computer skills. As a result, an intern, who also testified, had to complete much of Orfaly's work.
OCC's statewide supervisor, Patricia Campatelli, testified that, on separate occasions, Orfaly had engaged in multiple instances of unwanted and offensive horseplay with Campatelli. Two other employees testified to observation of one particular episode. Another witness testified to observation of another.
As a result of these incidents, Price and Horne scheduled a meeting with Orfaly. They told her that her performance was unsatisfactory and that her “presence in the office had become unpleasant.” Price testified that he had permitted Orfaly to resign in lieu of termination. Orfaly did so.
2. Procedure. In her Superior Court complaint, Orfaly alleged (1) a violation of the whistleblower act, G.L. c. 149, § 185; (2) promissory estoppel; and (3) intentional interference with contractual or advantageous business relations. Only the whistleblower act allegation against OCC survived pretrial motion practice. Additionally, before trial, the judge granted OCC's motion in limine to exclude the evidence which had formed the basis of the dismissed promissory estoppel claim, i.e., the promise by Price to promote Orfaly. After a five-day trial, the jury reached a verdict in favor of OCC.
Analysis. 1. Supplemental instruction. Trial judges have significant latitude to frame the language of jury instructions as long as the instructions explain the applicable law adequately. Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009). We “consider[ ] [the charge] as a whole to determine whether it is legally correct....” McHoul, petitioner, 445 Mass. 143, 156 (2005), quoting from Gilchrist v. Boston Elev. Ry., 272 Mass. 346, 353 (1930). A judge has discretion to fashion the “necessity, extent, and character” of supplemental instructions in response to jury questions. Urban Inv. & Dev. Co. v. Turner Constr. Co., 35 Mass.App.Ct. 100, 105 (1993).
Here, as part of the judge's initial instructions, he explained to the jury that they “must find that the plaintiff has proven that the OCC's retaliatory intent was the determinative cause in bringing about the adverse employment action.”
Later, during deliberations, the jury asked, “Does the adverse employment action have to be more than 50% of the reason or may it be a lower percentage ... ?” The judge responded by giving, in part, the following instruction:
Pursuant to the whistleblower statute, G.L. c. 149, § 185, a cause of action requires, inter alia, retaliatory action by the employer as the proximate result of a protected disclosure or threatened disclosure.
“It's the quality of deciding or determining an outcome. Synonyms or appropriate descriptions of determinative would be—in the context of factors would be the decisive factor, the crucial factor, the deciding factor, the conclusive factor.
“I am not going to attempt even to turn that definition and that explanation into a percentage. I am merely going to define determinative as I just have. But because you asked about percentages, I do want to deal with that for a moment.”
The judge went on to define the standard of reasonable preponderance of the evidence.
Orfaly contends that the judge (1) defined “determinative cause” incorrectly because he failed to use the “but for” language from antidiscrimination cases arising under G.L. c. 151B, § 4; and (2) confused the jury by the close proximity between the judge's definition of determinative cause and his supplemental instruction about the burden of proof. The judge did not commit either error.
First, the judge provided to the jury synonyms of determinative cause and he refused to assign the term a percentage-based meaning. No authority required him to adopt “but for” or other language from antidiscrimination cases. His instruction assisted the jury to understand the connection between retaliatory intent and adverse employment action. He acted with sound discretion and explained determinative cause adequately. Kelly v. Foxboro Realty Assocs., LLC, supra.
Second, the judge correctly addressed the jury's question about “percentages” of causation. He explained that the concept of percentage did not apply to the definition of determinative cause, and that it did apply to the meaning of reasonable preponderance of the evidence necessary for proof of retaliatory causation. His explanation accurately separated the definition of the concept from the proof of the concept. In the absence of contrary indication, we assume that the jury understood and followed the distinction. Roberts v. Southwick, 415 Mass. 465, 473 (1993).
2. Judge's exclusion of the promise. Orfaly contends that the judge committed reversible error by excluding evidence that Price promised her a promotion to regional director.
She claims that this evidence was relevant to explain her acceptance of the program specialist position despite her deficiencies in the job's requisite computer skills.
Although Orfaly in her brief fails to allege that the judge “abused his discretion,” we treat her allegation of “reversible error” to invoke that standard.
A judge has discretion to decide whether evidence is relevant and admissible at trial. Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991). The judge must decide whether the probative value of the proffered evidence outweighs its prejudicial effect and whether it might mislead the jury. Zabin v. Picciotto, 73 Mass.App.Ct. 141, 150 (2008).
Here, two principal reasons supported exclusion of evidence of the promise. First, the judge had already dismissed the promissory estoppel claim; he feared that introduction of the promise would confuse the jury. He stated that the promise involved “an awful lot of evidence on a peripheral issue, the relevancy of which is marginal at most.” He decided that the prejudice of the promise's introduction “outweighed” its “slight” probative value. In particular, he anticipated that a limiting instruction about a substantial volume of evidence would confuse the jury. See Read v.. Mt. Tom Ski Area, Inc., 37 Mass.App.Ct. 901, 902 (1994) (judge may exclude relevant evidence if there is danger of confusing jury).
Second, the judge's ruling was fair to both parties. He permitted Orfaly to state that she had the “hope” of a promotion without reference to an alleged promise. That accommodation allowed Orfaly to explain her acceptance of the position and avoided the risk of confusing the jury with evidence of an unenforceable promise .
The judge ruled also that the defendant's cross-examination of Orfaly about her deficiencies as a program specialist did not open the door to the introduction of the promise. Contrary to Orfaly's contention on appeal, her testimony did not require explanation beyond her “hope” of a promotion.
Finally, even if we assume that the judge excluded the promise in error, Orfaly suffered no prejudice. The jury heard Orfaly's evidence of her disclosures or threatened disclosures. However, seven witnesses testified about Orfaly's poor work performance and disruptive and inappropriate on-the-job behavior. The quality and quantity of that evidence abundantly supported the finding that Orfaly's resignation in lieu of termination had resulted from her own behavior. Introduction of the promise would have had little or no proper bearing on the outcome of the trial.
3. Motion for a new trial. A new trial may be granted when the verdict is “so greatly against the weight of the evidence [as to indicate] that it was the product of bias, misapprehension, or prejudice.” Jamgochian v. Dierker, 425 Mass. 565, 571 (1997), quoting from Scannell v. Boston Elev. Ry., 208 Mass. 513, 514 (1911). Although Orfaly on appeal cites the correct standard, she has not argued the weight of the evidence and merely invoked the contentions already discussed as the basis for a new trial. Those grounds lack merit. The judge properly denied the motion for new trial.
Judgment affirmed.
Order denying motion for new trial affirmed.