This lawsuit stems from a dispute between the plaintiff, a police officer in Wareham, and the town over the validity of two agreements. The agreements were signed while proceedings were pending to discharge the plaintiff from the police force at the time he was receiving benefits under G. L. c. 41, § 111F. In the first agreement, executed on November 20, 1984, the plaintiff withdrew his claim for § 111F benefits and took an unpaid leave of absence of not less than one year, in exchange for the town dropping the pending disciplinary proceedings. The agreement also called for psychological testing as a condition to the plaintiff’s rejoining the police force. In the second agreement, executed on January 8, 1985, the provision for a leave of absence was changed to an eighteen-month suspension, and the plaintiff wаs given up to six months to pass the psychological examination required for his return to work.
On December 9, 1985, the plaintiff filed a complaint in the Superior Court against the town of Wareham, its board of selectmen, and the present defendants. Insofar as still relevant, the action sought a declaratory judgment under G. L. c. 231A that the agreements by which he relinquished his right to benefits under G. L. c. 41, § 111F, were invalid because his assent was obtained by “illicit means, coercion and duress.” The complaint also sought damages for alleged violations of the Massachusetts Civil Rights Act, G. L. c. 12, § 11I.
A judge of the Superior Court empanelled a jury, which heard the evidence. At the conclusion of the plaintiff’s case, and again at the conclusion of all the evidence, the defendants moved for a directed verdict pursuant to Mass.R.Civ.P. 50(a),
Thereafter, the judge entered a document entitled “Findings, Rulings and Orders.” In the document, the judge outlined the plaintiff’s contentions concerning the invalidity of the agreements because of duress and coercion. The judge stated that “[t]he decisions as to these matters were submitted for the court’s determination. However, for the assistance of the court, special questions 1 and 2(a) were submitted to the jury and they answered both affirmatively and thus advised the court that the plaintiff’s waiver of his rights . . . was not voluntary and was without effect.” The judge then stated that “the evidence was insufficient to support the jury’s answers to questions 1 and 2(a),” and he indicated that he would “disregard them *401 and order them vacated.” 3 The judge next proceeded to discuss the evidence and to conclude that “the plaintiff knew what was going on, that he understood the proceeding^] and signed [the agreements] voluntarily and with full understanding of their meaning.” A judgment entered, entitled “Judgment on Findings By the Court,” which vacated the jury’s answers to questions 1 and 2(a) and determined that the agreements by which the plaintiff relinquished his right to benefits under G. L. c. 41, § 111F, were knowingly and voluntarily made by him and, therefore, valid. The judgment also disposed of the other claims in the case, which are no longer in issue. No postjudgment motions were filed. The plaintiff has appealed.
1. The plaintiff argues that the judge, having empanelled a jury under Mass.R.Civ.P. 39(c),
The plaintiff correctly points out that a judge proceeding under rule 39(c) may, in the exercise of discretion, empanel a jury to decide issues of fact in a case not triable as of right by a jury, see
Charles River Constr. Co.
v.
Kirksey,
The judge appears to have mistakenly assumed that the jury’s answers to questions 1 and 2(a) were purely advisory because he speaks in his decision of the answers as having “advised the court.” The judge also indicated that he considered the plaintiff’s evidence “insufficient to support the jury’s answers to questions 1 and 2(а).” This language reveals that the judge was, essentially, applying the standard to be used when ruling on a motion for a directed verdict or a motion for judgment n.o.v. Consistent with his observations, the judge vacated the jury’s answers to questions 1 and 2(a) on the basis of the insufficiency of the plaintiff’s evidence, and he went on to observe that the evidence established that the plaintiff had signed the agreement knowingly and voluntarily. When the plaintiff received the judge’s decision he filed no motion either to press the position he now takes on appeal, namely, that the judge could not set aside the jury verdict in the absence of a motion of the defendants under rule 50(b), or to attempt to clarify the record on what actually had occurred. The defendants also remained silent throughout except for filing and arguing a motion under rule 50(a) for a directed verdict at the conclusion of the plaintiff’s case and renewing that motion at the conclusion of all the evidence. They may have assumed that the judge was acting within his authority in fashioning a judgment that varied from the jury’s responses consistent with the judge’s stated remarks after the trial that there were “aspects of the case ... in the equity domain . . . [on] which I will have to make my own judgment . . . .”
In view of the judge’s stated basis for setting aside the jury verdict — that hе .considered the evidence insufficient to support the jury’s findings — we think the case should be analyzed as if a motion for judgment n.o.v. under rule 50(b) had been filed by the defendants and allowed by the judge. Under rule
*403
39(c), a jury verdict otherwise binding is subject to the court’s common law supervisory powers,
Crocker
v.
Crocker,
2. We disagree with the plaintiff that a vоluntary agreement by a police officer to forgo G. L. c. 41, § 111F, benefits in exchange for a leave of absence or the imposition of a suspension is invalid as matter of law. The analogy the plaintiff attempts to draw between § 111F, and G. L. c. 152, § 46, of the Workers’ Compensation Act is inapposite. The decisions in
Jones
v.
Wayland,
3. In deciding if the plaintiff’s evidence was sufficient to support the jury’s findings, we inquire whether the evidence considered in the light most favorable to the plaintiff supports any reasonable inference in his favor. See
Raunela
v.
Hertz
*404
Corp.,
There was evidence that the plaintiff began working as a police officer in 1975 and became a K-9 officer in 1980. On September 19, 1984, he received a disciplinary letter setting out various incidents of insubordination and violations of departmental rules and regulations. As punishment, the plаintiff was assigned a permanent walking beat (without a dog) and given forty hours of extra duty. On the same day that he received this letter, the plaintiff fell off a broken step while leaving the police station and hurt his back. Shortly thereafter, he began to receive benefits under G. L. c. 41, § 111F.
On or about October 3, 1984, the police department was" advised of a further possible infraction by the plaintiff. On October 17, 1984, after investigation, the department delivered a civil service hearing notice to the plaintiff based on the infractions listed in the previous letter and on the new infraction concerning the plaintiff’s K-9 dog. The dog had been picked up at the plaintiff’s residence after the police department had been advised that the dog needed exercising and that the plaintiff no longer lived at home. The notice scheduled a hearing before thе acting town administrator to consider whether the plaintiff should be discharged from the police force.
On November 20, 1984, while at a meeting concerning the disciplinary complaints, the plaintiff signed the first agreement withdrawing his § 111F claim and removing himself from §111F status. In exchange, the pending disciplinary proceedings were to be dropped, and the plaintiff was granted an “unpaid leave of absence [of] not less than one year’s duration.” The agreement further provided that the plaintiff’s return to work was conditioned on his satisfactory completion of psychological testing. The plaintiff also signed a separate waiver of his §111F rights. These arrangements were made in the presence of the union shop steward.
At this meeting, the plaintiff asked the defendant, Lieutenant Cardalino, who would be responsible for his medical expenses. He was told “not to worry about it” because the town would still be liable. The plaintiff also asked Cardalino what would *405 happen if he did not sign the agreement and waiver of § 111F benefits and was told that “[w]e are going to fight it. We’ll take you to the selectmen meeting.” The plaintiff told a fellow officer (the union shop steward) that he was taking a “year’s leave of absence,” and that he wanted the officer to witness what was being said. At this time the plаintiff was experiencing back pain and wearing a back brace. The plaintiff testified he was taking medication (“pain killers”), and “drinking a lot.” During the last two weeks of November, 1984, he specifically stated that he “lost time frame” and “just drank.” The plaintiff was also having serious marital difficulties. He further testified that he had read the agreement before signing it and that it was what he wanted to do. Specifically, the plaintiff indicated that he wаnted to take a year off without pay to “straighten out.”
On or about November 29, 1984, the town administrator sent a letter to the plaintiff informing him that the town would “resume a hearing” on December 14, 1984 (which was later continued to January 8, 1985) for the purpose of considering his discharge from the police force. The meeting was intended, among other things, to finalize and “sanction” the November 20 agreement. The same infractions detailеd in the prior civil service notice were again listed.
On January 8, 1985, the parties assembled before the town administrator. The plaintiff was represented by a police union representative. The charges were read and, according to the plaintiff’s testimony, “everything was out in the open, and just to sanction the agreement I had, I sat there, there was some talk, they pushed papers around.” The plaintiff was affоrded an opportunity to testify on the charges but declined to do so on the advice of the union representative. Another agreement was passed to the plaintiff which he signed. This second agreement contained one major difference from the prior agreement: it placed the plaintiff on an eighteen-month “suspension,” instead of granting him a one-year “leave of absence.” The plaintiff did not rеexecute the earlier, separate waiver of his § 111F benefits. 5
*406 At the time of the execution of the second agreement, there was no change in either the plaintiff’s back condition or his use of medication or alcohol. The plaintiff testified that he had been drinking during the night before the meeting. The union representative smelled liquor on the plaintiff at the hearing, and the plaintiff’s wife, who was also present, stated thаt she believed that the plaintiff was “emotionally disturbed.” 6 The plaintiff first became aware of the fact that the second agreement called for a suspension rather than a leave of absence three weeks later. He subsequently returned to work on the police force in 1986 in accordance with the terms of the second agreement.
(a) In order to avoid the agreements because of duress,
7
the plaintiff had to show “that conduct by the other party causеd him to enter into the contract ‘under the influence of such fear as precludes him from exercising free will and judgment. ’ ”
Coveney
v.
President & Trustees of the College of the Holy Cross,
The crux of plaintiff’s claim of duress is that, at the time he executed the agreements to waive his § 111F rights, he was “intoxicated, medicated, and emotionally disturbed.” He asserts that the agreements were executed under threat of being fired which, in turn, was based upon “trumped up” allegations reinstituted after he was injured and placed on § 111F status.
There is no evidence to support a finding that the disciplinary charges against the plaintiff were “trumped up” or lacked a basis in fact. The plaintiff never questioned or sought to challenge thе original set of infractions, and he was never subjected to the punishment imposed for these infractions. The subsequent incident involving the dog, together with the prior infractions, gave the defendants a reasonable basis upon which to pursue the plaintiff’s discharge. The fact that the charge involving the dog was eventually dropped at the January 8, 1985, hearing is of no consequence. The decision to abandon the charge was a judgmental concession on the part of the town administrator which would not warrant a finding that the disciplinary action against the plaintiff was unfair or brought in bad faith.
The fact that the plaintiff was advised that if he did not sign the first agreement the town would go ahead with the hearing to discharge him does not constitute duress. An indication that a party intends to pursue lawful legal proceedings if the other party fails to accept a pending settlement offer will not, normally, constitute duress. The settlement offer involved no misuse of process or the making of an exorbitant demand. See *408 Restatement (Second) of Contracts § 176 comment d. Moreover, at all times, the plaintiff had available to him the alternative of defending himself at the hearing and seeking review of any decision to discharge or discipline him either in court or with the Civil Service Commission.
The рlaintiff’s excessive drinking, taking of pain-killing medication, and marital problems may, of course, have made him susceptible to duress. However, susceptibility alone, without a wrongful or improper act or threat, will not establish duress. Moreover, the plaintiff admitted in his testimony that he wanted a year off from the police force “to straighten out.” He also testified that he signed the first agreement voluntarily, and the second agreеment without reading it. It is also significant that the plaintiff accepted the benefits of the agreements by taking a year off and availing himself of the opportunity the agreement provided him to rejoin the police force. At the execution of both agreements, he was assisted by a union representative.
Although mindful that in most cases duress is an issue of fact, the evidence of the plaintiff’s drinking, his use of pain-killers, and his emotional distress because of marital difficulties is not adequate to warrant a finding of duress here.
8
The plaintiff’s evidence does not support a conclusion that the defendants’ conduct overcame the plaintiff’s mind and will, or that the defendants had acquired such dominion over him that he was a pawn in their hands. See
Freeman
v.
Teeling,
*409
(b) The jury’s answer to special question 2(b), that the town and its representatives had not interfered with the plaintiff’s due process rights by means of intimidation, coercion or threats, appears to have decided the plaintiff’s claim under G. L. c. 12, § 11I, in the defendants’ favor. The plaintiff argues, howеver, that the jury’s answer to special question 2(a) creates a separate basis for finding that his rights under G. L. c. 12, § 11I, were violated. Essentially, for the reasons stated above, the plaintiff’s evidence would not support a finding that the agreements were the product of a threat (acts or language by which another is placed in fear of injury or damage), intimidation (creation of fear to compel conduct), or cоercion (the active domination of another’s will). See
Redgrave
v.
Boston Symphony Orchestra,
Inc.,
4. The foregoing addresses the principal contentions raised by the plaintiff in an effort to reverse the judgment. His other contentions either were not raised below or are without merit.
Judgment affirmed.
Notes
1. With regard to plaintiff Delaney’s written Agreement(s) to take a one-year leave of absence, or suspension, from the Wareham Police Department, do you find that plaintiff Delaney’s withdrawal of 111F rights was made under duress, coercion or undue influence from his employer?
YES.
2(a). If your answer to No. 1 is “YES,” do you find that the Town of Wareham, through intimidation or coercion or threats, interfered with plaintiff Delaney’s rights under chapter 41, section 111F?
YES.
2(b). If your answer to No. 1 is “Yes”, do you find that the Town of Wareham, through intimidation or coercion or threats, interfered with plaintiff Delaney’s due process rights?
NO.
3(b). If your answer to 2(a) ... is “YES” whаt damages do you find plaintiff Delaney suffered (other than loss of wages and medical expenses) as a result of the violation of his 111F rights?
No dollars. $.00
The judge, however, accepted the jury’s answers to the other questions which did not pertain to the declaratory judgment proceedings.
“(c) Framing Jury Issues. In all actions not triable of right by a jury, the court, except where otherwise provided by law, may upon motion frame issues of fact to be tried by a jury.”
On the same day, the plaintiff was given notice of his right under G. L. c. 31, § 42, to appeal his suspension to the Civil Service Commission. The plaintiff exercised that right on March 22, 1985. On May 2, 1985, the Civil *406 Service Commission voted to dismiss the appeal because it was untimely filed. The plaintiff subsequently filed a petition for review in the Boston . Municipal Court which was still pending at the time of trial.
Other evidence of plaintiff’s mental condition came from a psychiatrist who began treating the plaintiff in late August, 1986. The psychiatrist testified that the plaintiff was suffering from major depression, but that he did not really know what plaintiffs condition was in 1984 except from “secondary . . . information.” The plaintiff never made any § 111F claim involving any mental or psychological disability.
In this case, the terms duress and coercion were used synonymously. The judge also considered the evidence as raising a claim of undue influencе, which was also basically treated as subsumed within the duress claim. We will refer to all these claims as ones for duress.
The assurance given the plaintiff prior to the execution of the first agreement that his medical bills would be paid does not improve his case. There is no claim that the agreements were induced by misrepresentation, and the evidence will not support a conclusion that the statement either vitiated consent to the arrangement or amounted to duress.