CARL CORT & others vs. BRISTOL-MYERS COMPANY & others.
Supreme Judicial Court of Massachusetts, Suffolk
February 18, 1982
385 Mass. 300
Suffоlk. October 5, 1981. — February 18, 1982. Present: HENNESSEY, C.J., WILKINS, ABRAMS, NOLAN, & LYNCH, JJ.
Employees at will who allegedly were discharged for refusing to furnish personal information to their employer stated no claim for damages under
An employer has no duty to give a reason for discharging an employee at will, and consequently, is not liable to such an employee for breach of an implied covenant of good faith and fair dealing if he conceals the reason for the employee‘s discharge or gives a reason that is factually unsupportable. [303-306]
In an action by former employees to recover damages from an employer who discharged them after they refused to furnish personal information in response to the employer‘s questionnaire, the evidence did not warrant a finding that their discharge was in violation of a legally implied covenant of good faith and fair dealing, where public policy considerations did not warrant imposing liability on the employer and where certain of the unanswered questions were relevant to the employees’ job qualifications, did not invade privacy rights protected by law, and were not unduly intrusive. [306-310] ABRAMS, J., concurring.
CIVIL ACTION commenced in the Superior Court on April 16, 1975.
The case was tried before Lynch, J.
The Supreme Judicial Court granted a request for direct appellate review.
A. Theodore Welburn (John F. Bradley, II, with him) for the plaintiffs.
Thomas D. Burns (Catherine A. White with him) for the defendants.
WILKINS, J. The plaintiffs, formerly employed as salesmen by the defendant Bristol-Myers Company (Bristol-Myers), appeal from judgments for the defendants. The trial judge entered directed verdicts for the defendants on the plaintiffs’ claim that the defendants had unlawfully invaded their privacy. He also entered judgments for the defendants notwithstanding the jury‘s verdicts for the plaintiffs on the plaintiffs’ claims that Bristol-Myers hаd terminated their employment in bad faith.3 We affirm the judgments.
We summarize the evidence, recognizing that, in passing on the judge‘s allowance of the defendants’ motions, we must view the evidence in the light most favorable to the plaintiffs. D‘Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 657 (1978). Prior to February, 1975, Bristol-Myers had employed the three plaintiffs as salesmen in the Boston area, selling Bristol-Myers drug products to various purchasers, such as hospitals, physicians, and drug stores. Each of the employment agreements was terminable at will. Flaherty had worked for Bristol-Myers for thirteen years; Cort for eleven years; and Schleffer for nine years. There was evidence that the plaintiffs had performed their duties well. In 1974, Bristol-Myers determined that the performance of its Boston sales division had been the worst of any of its sales divisions. The defendant Aldridge, newly designated northeast regional sales manager, instructed the defendant Pogorelc, the Boston district sales manager, to send a questionnaire to each Boston district salesman with instructions to each to answer and return the questionnaire. The
Pogorelc told each plaintiff that the questionnaire had to be filled out completely. There was evidence that answers to such a questionnaire could be used as a type of psychiatric test. There was no evidence that the answers were so used or were intended to be so used. In November or December, 1974, each plaintiff answered the questionnaire but failed to answer, or, in the cаse of Cort, gave frivolous answers to, certain questions. On February 19, 1975, Pogorelc gave a letter of warning to each plaintiff. Each letter referred to the recipient‘s poor job performance. Pogorelc testified that a decision to discharge the plaintiffs had already been made when the letters were drafted, and that the letters of warning were prepared to justify the discharges. Each plaintiff responded in writing that his letter of warning contained inaccuracies. There was evidence that sales in the Boston area, normally credited to the plaintiffs, had bеen adversely affected by Bristol-Myers‘s problems in producing one drug and by the loss of a bid on another drug which could have been sold to a group of hospitals.
In circumstances that need not be detailed, each of the plaintiffs was discharged in February or March, 1975. Each received the compensation and other payments to which he was entitled, apart, of course, from the payments to which each claims in this action he is entitled. There was no evidence of any anticipated, measurable future compensation based on past services to which the рlaintiffs were entitled.
1. The judge properly allowed the defendants’ motion for directed verdicts on the plaintiffs’ claims for invasion of privacy under
2. The judge correctly allowed the defendants’ motion for judgments notwithstanding the verdicts on the plaintiffs’ claims that Bristol-Myers terminated their employment in bad faith. The plaintiffs rely on our opinion in Fortune v. National Cash Register Co., 373 Mass. 96 (1977), and argue that Bristol-Myers terminated their employment in violation of a covenant of good faith and fair dealing imposed by law in the at-will employment relationship. In the Fortune case, we recognized that an employer may not in every instаnce terminate without liability an employment contract terminable at will. There, we upheld the plaintiff‘s claim for future commissions based on past service when the employer terminated the plaintiff‘s employment without good cause and for the purpose of retaining the sales commissions for itself.
In an opinion that was issued after this case was argued, we considered further the question of the rights of an employee at will who was discharged without good cause. Gram v. Liberty Mut. Ins. Co., 384 Mass. 659 (1981). We noted that the absence of good cause to discharge an employee does not alone give rise to an enforceable claim for breach of a condition of good faith and fair dealing. Id. at 671. We recognized that termination of at-will employment could give rise to a claim where the reason for the discharge was contrary to public policy. Id. at 668 n.6. The employer‘s predatory motivation in the Fortune case can be classified as a reason contrary to public policy. In the Gram case, which did not involve an improper motive for the discharge, we went beyond those cases that had allowed recovery for the discharge of an at-will employee because of a motivation which was contrаry to public policy. We allowed
We come then to the circumstances of the case before us. The jury returned a special verdict (
The question for our decision is whether the evidence warranted a finding for the plaintiffs on their claims of a bad faith termination of their at-will employment. This is not a case in which the employer, as in the Fortune case,
The plaintiffs argue that Bristol-Myers gave pretexts as reasons for terminating their employment. They correctly point out that the jury would have been warranted in finding that Bristol-Myers discharged them, not because of poor work performance, as Bristol-Myers asserted, but because they refused to answer the questionnaire in full. We consider first the claim that because the reason for the discharge was merely a pretext, the plaintiffs are entitled to recover for their discharge without cause. Next, we consider whether the plaintiffs should be entitled to recover if, as the jury could have found, Bristol-Myers discharged them for failure to answer the questionnaire.5
We decline to impose liability on an employer simply because it gave a false reason or a pretext for the discharge of an employee at will. Such an employer has no duty to give any reason at the time of discharging an employee at will. Where no reason need be given, we impose no liability on an еmployer for concealing the real reason for an employee‘s discharge or for giving a reason that is factually unsupport-
We come finally to the question whether the defendants should be liable for discharging any plaintiff for the incompleteness of his response to the questionnaire. As we have already said, the jury would have been warranted in finding, by way of reasonable inference, that Bristol-Myers discharged each plaintiff for this reason. In the context of our opinions concerning the rights of at-will employees discharged without cause, the question is whether some principle оf public policy requires that Bristol-Myers be liable for such a discharge.
In assessing this question, we note that no case has been cited to us, nor are we aware of any case, that has imposed liability on a private employer for discharging an at-will employee for the employee‘s failure to furnish personal information to the employer.7 Although the Legislature has imposed restrictions on employers’ seeking certain information from an employee or prospective employee, it has not forbidden the gathering of information of the character sоught in this case.8 On the other hand, if the questionnaire
sought to obtain information in circumstances that constituted an “unreasonable, substantial or serious interference with his privacy” in violation of the principles expressed in
We would not go so far as to say that an employer would always be liable for discharging an employee for his refusal to answer questions not relevant to its business purposes. In public policy terms, it is the degree of intrusion on the rights of the employee which is most important. In measuring the nature of the intrusion, at least as to its reasonableness (but perhaps as well as to its substantiality and seriousness), the nature of the employee‘s job is of some significance. The information that a high level or confidential employee should reasonably be expected to disclose is broader in scope and more personal in nature than that which should be expected from an employee who mows grass or empties waste baskets. A salesman responsible for the sale of drug products to hospitals, doctors, and pharmacists falls in the middle of this range, but toward its upper side. The temperament and dedication of a salesman are important factors in his effectiveness, and questions bearing on these subjects are certainly reasonable and should be expected.
The questionnaire, entitled Biographical Summary, sought information which, it represented, would be held in strict confidence. Thе subjects covered included business experience, education, family, home ownership, physical data, activities, and aims. In general, each plaintiff furnished answers to the questions concerning his business experience,
None of the plaintiffs answered the questions under the heading “AIMS.” These questions concerning “AIMS,” which we regard as appropriate to ask of a salesman and not improperly intrusive on his privacy rights, asked each to state his qualifications for his job, his principal strengths, his principal weaknesses, activities in which he preferred not to engage, the income he would need to live the way he would like to live, and his plans for the future.11 The fact that the plaintiffs had worked for Bristol-Myers for a number of years in no way made the asking оf these questions
We express no view as to whether in particular circumstances specific subjects (beyond those statutorily interdicted) may lie outside an employer‘s right of inquiry so as to make the employer liable for discharging an at-will employee who declines to respond to the inquiry. We conclude that this case is not one in which, on the evidence most favorable to the plaintiffs, public policy considerations justify the imposition of liability on the employer. Most of the unanswered questions were relevant to the plaintiffs’ job qualifications and represented no invasion of the plaintiffs’ rights of privacy protected by law. Questions about family and home ownership were probably not of much significance to Bristol-Myers, but those questions were not improperly intrusive, sought information mostly available in public records, and were, in any event, largely answered. These questions were no more intrusive than those asked on an application for life insurance or for a bank loan. If there were some questions that may have been overreaching in the circumstances, the fundamental fact remains that the plaintiffs declined to answer a large number of incontestably relevant, and not unreasonably intrusive, questions. No public policy considerations protect an at-will employee in such a circumstance.
We affirm the judgments for the defendants, entered on their motion for judgments notwithstanding the jury‘s verdicts, on the plaintiffs’ clаims that the defendants terminated their employment in violation of an obligation of good faith and fair dealing that should be imposed by law.
Judgments affirmed.
I agree that “[m]ost of the unanswered questions were relevant to the plaintiffs’ job qualifications and represented no invasion of the plaintiffs’ rights of privacy protected by law.” Further, in this case the plaintiffs voluntarily1 answered the questions most likely to be viewed as objectionable.2 The plaintiffs refused to answer, or gave flippant answers (see supra at 309 n.11) to, many relevant and unintrusive questions.3 Therefore, I conclude that the plaintiffs failed to show an invasion of their privacy.
As I read the opinion, it implicitly recognizes that
I believe the opinion recognizes that a careful balancing must be made between privacy interests and the need for the requested information, its materiality, and its relevance. Therefore, I would explicitly state the opinion‘s underlying premise: that an employee at will has an action for bad faith discharge if an employer discharges the employee for failure to provide private information. In such cases the issue would be “[a]t what point do inquiries about... employees become unduly intrusive?” Report of the Privacy Protection Study Commission: Personal Privacy in an Information Society 223 (1977).
Because of the plaintiffs’ lack of proof, the opinion does not, and need not, focus on that issue. Nor does it address whether questions are more intrusive when the information requested is largely irrelevant to any business purpose of the employer.4 See Report of the Privacy Protection Study Commission: Personal Privacy in an Information Society 236-237 (1977); Miller, the Privacy Revolution: A Report from the Barricades, 19 Washburn L. Rev. 1, 19 (1979); Comment, The Use and Abuse of Computerized Information: Striking a Balance Between Personal Privacy Interests and Organizational Information Needs, 44 Alb. L. Rev. 589, 601 (1980); Comment, Employee Privacy Rights: A