A Suрerior Court jury determined that when the defendant, Robert Leger, general manager of James Monroe Wire & Cable Corp. (JM), fired Efrain Falcon, an at-will employee, he wrongfully interfered with Falcon’s employment.
Leger argues that the evidence was insufficient to show that he was not acting within thе scope of his privilege to terminate an at-will employee when he let Falcon go, and that Falcon failed to overcome that privilege with sufficient evidence that Leger acted with a “spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Shea v. Emmanuel College,
Our examination of the record discloses sufficient evidence of malice on Leger’s part to support a conclusion that he fired Falcon for Falcon’s refusal to comply with his instructions to interfere with a product inspection process conducted by a private, independent testing laboratory upon which government inspectors rely to insure the safety of the public. Such conduct amounted to a violation of a clearly established public policy grounded in statutes and regulations designed to minimize potential hazards of fire and shock associated with poorly insulated electrical wire. Consequently, as Leger’s actions did not comport with any legitimate corporate interest, Falcon succeeded in establishing that Leger abused his privilege to fire Falcon.
1. Facts
Leger was hired by JM as general manager in February, 1994, with the expеctation that he would correct some problems the company was having with quality control. Reporting directly to the president of JM, he was responsible for all departments, including quality control, and for all hiring and firing decisions. Until Falcon’s discharge, Leger considered him to be a reliable and competent worker, who was rewarded with several raises. Falcon indicated that the two were generally amicable toward one another and that he knew of no reason why Leger would want to cause him harm.
Sixty percent of JM’s total output was regularly sold through distributors to the industrial market. Such industrial wiring includеd fire alarm cable, typically installed in residences, hotels, and high rise buildings. JM industrial wire could also end up in elevators and home appliances. Such products ordinarily must meet strict safety standards meant to prevent fire and electrical shock. JM contracted with an independent, nonprofit organization, Underwriters Laboratories, Inc. (UL), to perform periodic, unannounced testing of its products. Certification by an organization such as UL assures government inspectors and the public that the wire complies with the requisite UL standards and is safe for its intended purposes, and also signifies that JM had agreed to manufacture its wire and cable in accordance with those specifications.
As a prerequisite to obtaining a UL “listing,” which refers to the right to mark an approved product with the UL label, a manufacturer must sign a written agreement provided by UL. Under its agreement with UL, JM paid a fee for the right to purchase and affix UL labels upon approved wire and cable.
On UL’s part, the organization agreed to provide regular, unannounced inspections of Usted products at JM’s South Lancaster factory. The purpose of the inspections was to determine comphance with each of the requisite safety standards prior to labeling and shipping of JM’s products bearing the UL label. In certain circumstances, a batch of wire, while technically nonconforming, could still be deemed acceptable for labeUng and shipping upon further consideration by the UL inspector as long as safety was not at issue and the variance was de minimis. In any event, it was the UL inspector, not JM, who controlled the ultimate resolution by requiring JM to avail itself of various options until the problem was corrected to UL’s satisfaction.
EHzabeth Goldsmith served as the UL inspector for JM during the relevant period. She testified that the set of safety standards with which wire and cable products must conform prior to UL Hsting was created by UL in consultation with wire and cable manufacturers. These standards pertain to the safe conditions under which the wire may be used, such as temperature, locations (dry or wet), and the amount of maximum voltage for proper operation. UL standards also specify such criteria as the proper type and size of conductor wire and insulation, and the type and quality of compound to be used in making the insulation for the wire.
According to Leger, a twenty-two-year veteran of the cable and wire industry, assessing the safety of wire and cable essentially involves a determination that it is “capable of carrying the electricity and not producing a shock or hazard.” He further asserted that a UL inspector, whom he likened to a “government inspector,” tests specifically for the electrical safety and flammability of the listed wire, criteria that could affect public
Part of Falcon’s job in quality control was to assist Goldsmith during hеr unannounced visits to JM’s South Lancaster facility. Goldsmith would view sample wire cuttings under JM’s microscope to determine the thickness of both the copper wire and the wire’s insulation at various points. On other occasions, she would send samples of compound, the raw material from which insulation is made, to UL’s laboratory for compliance testing.
b. Events leading to Falcon’s discharge. On December 7, 1994, Goldsmith visited JM and inspected samples from a lot of 50,000 feet of eighteen gouge, sixteen string, two conductor, 600 volt, “Type TC” power and tray cable. The tray cable had been wound onto twenty reels while awaiting UL labeling for shipping to Anixter, a JM customer based in Ohio. Goldsmith rejected the batch as unsafe due to nonconforming insulation and placed the whole lot on hold. On the variation notice she issued to JM, Goldsmith indicated that the problem was a “very low wall” of insulation where the two conductors intersected. Goldsmith’s actual measurements ranged from a low of five to a high of twelve mils.
Following Goldsmith’s December 7, 1994, visit, Leger ap
Falcon believed, based upon his experience and training in quality control and his own personal knowledge of the compound used to make the insulation on the lot of tray cable in question, that no amount of weeding of defective sections would have sufficed to correct the problem with the insulation thickness. According to him, the lot was most likely rejected because of JM’s practice of mixing a nonconforming, “cheap” type of “regrinded” compound during the manufacturing process. From Falcon’s perspective, such conduct by JM in violating UL standards was motivated by making profits at the expense of the safety of the general public. Falcon claimed that “sometimes we do things that is [sz'c] not legal” at JM, such as “ship it out the way it is” when in fact the wire does not meet
Despite his doubts about the safety of the wire’s insulation, Falcon complied with Leger’s order to resubmit the rejected shipment to Goldsmith for reinspection when she returned on December 16, 1994. It was no surprise to Falcon when Goldsmith found the insulation to be faulty and once again ordered the shipment held.
Following Goldsmith’s reinspection on December 16, 1994, Leger told Falcon to hide the whole batch of tray cable in the back of the factory and to conceal it with cardbоard. To Falcon’s knowledge, the bad batch of tray cable remained there until some time in early February, 1995, when Leger further ordered him to load all twenty reels on to a rental truck, where it stayed for some time, unchanged, and forever hidden from Goldsmith.
On the afternoon of February 9, 1995, Goldsmith unexpectedly returned for a final, third inspection of the Anixter order. She did not inspect the wire hidden in the rental truck on this visit. Falcon was convinced that JM deceived Goldsmith by substituting and presenting for inspection a new, conforming batch of wire in its place, and that the rejected wire was mislabeled and shipped as if it had been approved.
Falcon had arrived at work around 6:00 a.m. on February 9, 1995. Within an hour or so of his arrival, he approached Leger to request a raise in his hourly pay, from $9.75 to $11 an hour. According to Falcon, Leger responded that he had no problem with the raise, but said “you have to change the way you deal
Leger met with Goldsmith after her February 9, 1995, inspection. Neither testified as to the substance of their conversation. Shortly after she left, Falcon claims that he labeled the old wire with UL labels, and shipped it to Anixter, per Leger’s instructions. At the end of Falcon’s shift, Leger called him to his office where Leger told him he had no recourse but to fire him. Leger’s stated reason was the abrasive and threatening manner in which Falcon had asked for the raise in front of other employees.
2. UL listing and the statutory framework. Tray cable wire, the type of wire at issue in this case, is intended to be installed in settings and in products that are subject to the National Electrical Code (NEC), and several NEC articles govern its use. The UL label affixed to the tray cable in this case states that the tray cable is “UL listed [] for use in accordance with Articles 318, 340, 500 and 501 of the National Electrical Code.” Consequently, the label indicates thе tray cable complies with the law of those states, such as Massachusetts, that have adopted the NEC in relevant part. See 527 Code Mass. Regs. §§ 12:00 et seq. (1993). The 1993 Massachusetts electrical code, 527 Code Mass. Regs. §§ 12.00 et seq., is the 1993 NEC as adopted and modified in part by the Commonwealth’s board of fire
The intent of the Massachusetts electrical code is “the practical safeguarding of persons and property from hazards arising from the use of electricity,” 527 Code Mass. Regs. § 12:00, art. 90-1. The State building code, 780 Code Mass. Regs. §§ 100 et seq. (1992), the intent of which is “to insure public safety, health and welfare . . . and, in general, to secure safety to life and property,” controls “the standards or requirements for materials to be used in connection [with buildings] including but not limited to provisions for safety.” 780 Code Mass. Regs. §§ 100.2, 100.4.
According to the Massachusetts electrical code, only “Usted” equipment and materials (i.e., those of which a representative sample have been approved and tested by a certified, independent laboratory) are acceptable in certain installations.
3. Discussion. Viewing the evidence in the tight most favorable to Falcon, Cort v. Bristol-Myers Co.,
In cases alleging tortious interference by the employee’s supervisor or other company official who instigated the firing, malice means “actual malice” and “[a]ny reasonable inference of malice must ... be ‘based on probabilities rather than possibilities.’ ” Gram v. Mutual Liberty, Ins. Co.,
In some circumstances, malice may be demonstrated by evidence of the defendant’s unjustified personal vendetta or ill will exceeding personal dislike of the employee. See O’Brien v. New England Tel. & Tel. Co.,
It is well established that Massachusetts law does not protect at-will employees who claim to be fired for their complaints about internal company policies or the violation of company rules, even though the employees’ actions may be considered appropriate аnd “socially desirable.” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch.,
Similarly, in Mello v. Stop & Shop Cos., supra, the plaintiff’s discharge allegedly occurred as a result of three reports he made to his superiors about wrongdoing by store managers and buyers. Although the plaintiff failed to prove causаtion, the court noted that even if he had met his burden in this regard, two of his reports were unprotected by the public policy exception where they related solely to internal matters: the company’s buyers’ alleged personal use of rebate checks meant for the company and the managers’ practice of presenting false damage and shortage claims to the company’s own warehouse. Ibid. Termination based solely on the employee’s third report, however, might have triggered liability as, unlike the wrongdoing described in the other two reports, the alleged fraud was perpetrated not on the company but on the outside manufacturers and suppliers with whom the company did business. Id. at 560 & n.6. In sum, no matter how well-meaning the employee’s efforts may be, and regardless of a possible public interest served by those efforts, so long as the underlying corporate activity remains confined to matters that are strictly internal to the employer, the public policy exception cannot be invoked to protect the at-will employee from discharge.
On the other hand, “[rjedress is available for employees who are terminated for asserting a legally guaranteеd right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Smith-Pfeffer
Here, the evidence supported the conclusion that Falcon was discouraged, both explicitly by Leger and by the implicit threat of discharge, from reporting suspected UL violations by JM that had the potential to affect the safety of the population at large. Falcon’s good faith dispute with management over an electrical product deemed to be unsafe by an independent testing laboratory concerned much more than just matters internal to JM.
Our cases have suggested that an employee could be shielded from the risk of discharge if he or she reasonably, but perhaps erroneously, reports that an employer is violating State and municipal laws and ordinances concerning public safety. See ibid, (court assumes, without deciding, that “whistleblowing based on a reasonable, good faith [but erroneous] belief that the employer is violating the law should be protected in particular instances”). See also Hobson v. McLean Hosp. Corp.,
Here, Falcon presented ample evidence that Leger’s conduct, although possibly not “illegal” in the sense of creating criminal liability, as Falcon may have believed, nevertheless presented a threat to the public safety and was otherwise unlawful. Examination of the applicable statutes and regulations indicates that the relationship between UL safety standards and the NEC is such that any attempt to interfere with UL testing and labeling procedures is tantamount to committing a fraud upon those State inspectors who rely upon UL procedures to ensure public safety. Where Falcon’s claims are grounded in regulations directly bearing on public safety, we will give weight to the statement of public policy that such regulations represent. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch.,
Judgment affirmed.
Order denying motion for judgment notwithstanding the verdict or for new trial affirmed.
Notes
Falcon also made a claim against JM in a separate count for wrongful termination in violation of public policy. The jury found for JM on this count. See note 15, infra.
We review the evidence most favorable to Falcon to determine “whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference сould be drawn in favor of the plaintiff.” Boothby v. Texon, Inc.,
JM could lose the right to adhere UL labels to any of its products if JM were to habitually ship its customers wire that a UL inspector had rejected as unsafe and placed on hold. JM could also risk the recall of such mislabeled products, presumably at its own expense.
An inspector from UL, Elizabeth Goldsmith, testified that the only difference between the label admitted as an exhibit at trial and the label JM would have used in 1994 and 1995 was the addition of the JM name. At that time JM used a “generic” label.
Webster’s Third New International Dictionary (1993) defines a “mil” as “a unit of length equal to Viooo inch or 0.0254 millimeter used esp. for the diameter of wire.”
As a rule, JM would scrap wire rejected by UL and sell it to a scrap reclaimer at a lower price than it would have received had the wire passed inspection. Washing off a UL label for resale was neither practical nor profitable.
Prior to that, on December 8, 1994, Leger had written a letter to William Kline, a UL official, in which Leger acknowledged that he did “not totally disagree with [Goldsmith’s] rejection” of the tray cable. Leger suggested an alternative method of testing that would allow the product to be released to Anixter, so long as the low рoints tested within two to three mils of the specified standard. Although Goldsmith recalled that Kline may have expressed an intent to allow JM some further reduction in the minimum insulation widths on the order, she could remember nothing more about that conversation. The record is unclear as to whether JM was allowed to resolve the problem in this manner.
GoIdsmith claimed to have no reason to believe that the tray cable submitted to her at the third inspection on February 9, 1995, was not the same batch that she had previously tested and rejected on December 7 and December 16, 1994, and that it had been made compliant and could be released. She acknowledged, however, that she knew of nothing to prevent a manufacturer from shipping a product that UL had rejected.
Falcon claimed that he had also referred Goldsmith to Leger on the first inspection when Goldsmith asked him what kind of compound had been used on the wire.
See G. L. c. 22D, § 4, added by St. 1996, c. 151, § 109 (formerly G. L. c. 22, § 14) (statutory authority for board of fire prevention regulations); c. 143, § 3L (statutory authority for promulgation of regulations relative to electrical wiring and fixtures by board of fire prevention regulations); c. 148, §§ 4, 10, 28 (statutory authority of fire marshal to enter premises to inspеct, and for promulgation of fire prevention regulations and fire safety code); c. 166, § 32 (municipal inspector of wires).
The relevant language was subsequently recodified at 780 Code Mass. Regs. §§ 101.2, 101.4.
Recodified at 780 Code Mass. Regs. § 101.5 & Appendix A.
The 1993 Massachusetts electrical code defines “Listed” as follows: “Equipment or materials included in a list published by an organization acceptable to the authority having jurisdiction and concerned with product evaluation, that maintains periodic inspection of production of listed equipment or materials, and whose listing states either that the equipment or material meets appropriate designated standards or has been tested and found suit
Leger’s аrgument that nothing remained against him individually in Falcon’s case once the jury returned a verdict in favor of JM on the count alleging wrongful termination in violation of public policy is without merit. Once the jury made the factual determination that JM neither deliberately mislabeled nor shipped non-UL approved cable, they proceeded no further, as instructed on the special verdict form. Thus, they did not reach the issue whether JM terminated the plaintiff in violation of any public policy. Consequently, no significance can be attached to the verdict on the count against JM, particularly with reference to Leger and the evidence presented against him individually on the count alleging tortious interference.