28 Mass. App. Ct. 538 | Mass. App. Ct. | 1990
The plaintiff MacDonough appeals from a summary judgment of the Superior Court dismissing his claim which is, essentially, that he was discharged from his job with the Massachusetts Housing Finance Agency (MHFA) in violation of law. He has abandoned sundry of his theories of liability, and his appeal now reduces to the contentions that the MHFA infringed upon his constitutional right of free expression and also was in breach of a “public
1. Narrative.
From September 21, 1981, to May 9, 1986, the plaintiff Kenneth MacDonough was employed by MHFA
However, on the following day, October 25, the plaintiff wrote a “confidential” letter to Bernard Singer, chairman of the board of directors of MHFA. He said that Kuehn intended to move a company of his into about 8,000 square feet of the commercial space at Craigie Arms and to pay rent of $15 per square foot. The plaintiff thought at least $30 would be “more realistic”; and if fair, rather than arbitrarily deflated rent was paid on such space, no SHARP subsidy would be necessary. Because of Kuehn’s “relationship with M.H.F.A.” a “serious ethical” question, “[p]ossibly, a criminal one?,” arose. With so many MHFA insiders aware of the deal, outsiders would eventually know about it: from an ethical and political standpoint MHFA was “opening itself up to á disastrous situation.” The plaintiff hoped Singer would inform all board members — the December board meeting was near — and “derail this potential disaster before it takes place.”
Singer forwarded the letter to the MHFA executive director, Marvin Siflinger, who on November 12, 1985, sent it to the chief of operations, Eleanor G. White. Regular processing of the application was stopped. On November 14, White, Antonelli, Brian Frawley (Antonelli’s supervisor), and the plaintiff met, and on November 18, White addressed a memorandum to the plaintiff summarizing her initial view of the plaintiff’s behavior as follows. Any doubts or information he had about the commercial rents should not have been withheld from his superiors; it should have been passed through the regular chain of command; the withholding risked a situation where a given problem might not have been attacked before the open board meeting; White inferred that the plaintiff intended to embarrass the staff in its relation to the chairman or the public. Furthermore, the plaintiff had made “unsupported accusations about ethical and/or criminal lapses in the supervisory staff” and thereby had done a disservice to his colleagues and supervisors: if he had evidence
As White promised in her memorandum, the MHFA took prompt steps to investigate the plaintiff’s assertions. The real estate appraisal and consultant firm of Casey & Dennis was retained to conduct an independent appraisal; another assistant appraiser at MHFA was assigned to evaluate the commercial rent levels obtainable at Craigie Arms; the developer was invited to submit additional information on commercial rents; and the plaintiff himself was requested (by Antonelli) to review commercial rent levels in the Harvard Square area.
The plaintiff after conducting a review submitted a memorandum to Antonelli on November 21, 1985, in which he said that even if the commercial space was not used for occupancy by retail businesses, which he considered its best and highest use, the rent (for office use) should be $25 per square foot. But as the commercial space involved was actually space in the basement which hardly qualified for retail business, Antonelli asked the plaintiff for further substantiation. On December 9, 1985, the plaintiff turned in a second memorandum; now he concluded that $24 was the proper rate even for office use. The evaluations by the others who had been asked to review the matter were to the effect that $13-15 was the proper office rent. Antonelli concluded that the plaintiff’s evaluation was unsupported. Antonelli so informed the plaintiff by memorandum of January 13, 1986: the plain
As to the plaintiff’s suggestion of ethical or criminal implications in MHFA dealings with Kuehn, we note: Kuehn was chairman of the Multi-Dwelling Advisory Board of MHFA. MHFA’s enabling act, St. 1966, c. 708, § 11, exempts individuals, like Kuehn, who are serving on its advisory boards, from the provisions of the conflict of interest statute, G. L. c. 268A. Kuehn was free to apply for financing for his construction projects through MHFA.
To go backward in time, the record indicates that the plaintiff’s performance on his job had been deteriorating since 1984 when he was denied a merit raise. It declined further after Antonelli’s assessment of January 13. The plaintiff was to have his semi-annual performance assessment in January 1986, but Antonelli postponed this and on January 31 he set up a sixty-day action plan for the plaintiff to go into effect in February 1986.
On April 10, 1986, Antonelli made the performance assessment. He graded the plaintiff’s work as “unacceptable” in the categories of (1) “workload management,” (2) “communication and coordination,” and (3) “initiative and responsiveness”; and “needs improvement” in the category of
With the concurrence of Frawley, White, and Siflinger in this review of the plaintiff’s performance, the plaintiff was dismissed on May 9, 1986.
2. Discussion.
(a) In general. The measure of the case is that the plaintiff was dismissed from service for substandard performance as an assistant real estate appraiser, in which the letter of October 25 figured, if at all, only as an example of that kind of performance, being erroneous in its assertions and disruptive in the manner of its presentation. If, as appears, the plaintiff’s inefficiency or incompetence was the MHFA’s reason for the discharge, then the case is well on its way to solution. Nevertheless, we deal more particularly with the plaintiff’s two contentions.
The prime question whether an employee’s conduct is the subject of constitutional protection is submitted to a “balancing” process — “the interests of the [plaintiff], as a citizen, in commenting upon matters of public concern
“Allegedly protected activity must be evaluated with an eye toward: (1) whether it was directed against those with whom plaintiff is regularly in contact such that it might impede harmony among co-workers or the ability of supervisors to maintain discipline; (2) whether plaintiffs activity has a detrimental impact on those with whom he must maintain personal loyalty and confidence for the fulfillment of his job responsibilities; and (3) with regard to erroneous statements concerning matters*545 of public concern, whether such statement impedes plaintiffs performance of his daily duties or the regular operation of the [agency] generally.”
Deserving particular attention here are the several references of the plaintiffs superiors to the effects of the episode of the Singer letter on internal discipline, loyalty, and confidence among the plaintiffs coworkers, upon the plaintiffs performance, and upon general operation of the Agency. The judge below found that the “balance” fell in favor of the Agency, and we do the same upon independent appraisal unaided by the “clearly erroneous” standard of Mass.R.Civ.P. 52(b), 365 Mass. 816 (1974).
Although unnecessary to decision, we point out that, were it assumed that the letter to Singer was the subject of constitutional protection, the plaintiff would nevertheless fail in the end on the issue of the employer’s motivation in discharging him. The assessments showed the plaintiffs performance to be unacceptable apart from the sending of the letter. We add that we do not think the MHFA would be barred by the Federal or State Constitutions from considering the rashness of the content and manner of communication of the letter as having some bearing on the plaintiffs proficiency as a worker. But in any event that consideration does not appear to have figured substantially in the final action.
(c) Common law claim. In DeRose v. Putnam Mgmt. Co., 398 Mass. 205, 206 (1986), the court answered in the affirmative the question “whether an employee at-will may resort to the courts for a remedy if the employee at-will is dismissed in violation of public policy in circumstances in which the employer does not deprive the plaintiff of any bonuses, wages, or commissions.” Under the title of “public policy,” “[r]edress is available for employees who are terminated for asserting a legally guaranteed 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 v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 149-150 (1989).
Judgment affirmed.
In six additional counts, the plaintiff complained of a variety of things — intentional infliction of mental distress, discrimination based on religious affiliation or moral code, breaches of civil service and conflict of interest laws; violation of the MHFA’s enabling statute. The judge also found implicit in the complaint a defamation claim. That claim and the two urged here the judge disposed of on summary judgment; the rest of the complaint he dismissed for failure of statement under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974).
MHFA is an independent corporate and political body which promotes an increase in the supply and availability of decent, safe, and sanitary housing for low and moderate income families and individuals.
A SHARP subsidy works to reduce interest requirements on mortgages which finance new construction or substantial renovations for projects devoted to a certain amount of low income housing.
At some point after the Singer letter, the plaintiff’s then attorney filed a complaint with the State Ethics Commission. The present record leaves the circumstances obscure, but it appears that the commission conducted a preliminary investigation; it found no probable cause for further investigation or hearing.
The plaintiff refused to assent by signing his name to the plan. Nevertheless, it was Antonelli’s directive to him.
It may be doubted whether the letter to Singer qualifies, in the Pickering sense, as a comment on a matter of public concern; rather it may be viewed as comment on an internal management question. Of course the letter was not directed to the public. Compare Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-284 (1977). Sometimes the plaintiff in his argument invokes a right to call attention to his employer’s violation of State law, sometimes — with even less record support — a right to protest his being personally coerced by superiors into engaging in unethical or illegal conduct.
The case of Mello v. Stop & Shop Cos., 402 Mass. 555, 560 n.6 (1988), assumes the possibility of protecting at-will employees against discharge for so-called “whistleblowing.” However that kind of communication might be defined, the protection would not be expected to extend to a recklessly false charge or imputation, even if uttered in a belief that it was true.