Opinion
No. 08-02125-C.
July 29, 2009, July 30, 2009.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
On September 17, 2008, the defendant JRM Hauling Recycling Services, Inc. (JRM Hauling) fired its employee, the plaintiff, Herve Francois (Mr. Francois). Mr. Francois alleges that his termination was in retaliation for talking with other JMR Hauling employees about JRM Hauling's employment and treatment of illegal aliens in violation of public policy. As there is no evidence that JRM Hauling knew of Mr. Francois' activities, and because Mr. Francois did not complain to management or a supervisor, JRM Hauling's motion for summary judgment will be allowed.
BACKGROUND
Mr. Francois was employed by JRM Hauling as a truck driver from July 31, 2007 to September 17, 2008. While working for JRM Hauling, Mr. Francois learned that most of the laborers employed by JRM Hauling were illegal aliens that did not have health insurance and were not covered by workers' compensation insurance. Mr. Francois met two laborers, Edson (stationed in Beverly) and Anderson (stationed in Peabody), who were illegal aliens from Brazil who each lost part of an index finger during work related accidents at JRM Hauling. Edson and Anderson told Mr. Francois that after they were injured, JRM Hauling offered them $8000 each for their medical bills, lost wages, and pain and suffering, but if they accepted the money they would not be allowed to work at JRM Hauling. Edson and Anderson also told Mr. Francois that JRM Hauling indicated that if they did not accept the money, they could return to work once their injuries healed, but they would not be paid lost wages.
After learning this information, Mr. Francois started speaking with several laborers and one driver, Mark S. (stationed in Beverly), between July and September of 2008 about JRM Hauling's practice of hiring illegal workers, mistreating injured and uninjured workers, and about what action they could take to report JRM Hauling or remedy these issues.
On September 17, 2008, Mr. Francois was working with Mauro Ferreira (Ferreira) in Malden, Massachusetts. At about 2:00 p.m. Salustiano Cunha (Cunha), JRM Hauling's Operations Manager, radioed Mr. Francois and asked him to report to the office with Ferreira. At about 4:00 p.m. Mr. Francois and Ferreira met with Cunha, James Gardner, James Motzkin, and Thomas Flanagan, who were members of the Safety Committee at JRM Hauling. During the meeting, the Safety Committee alleged that Cunha observed Ferreira riding on the driver's side fuel tank while the truck was being operated by Mr. Francois in Revere, a violation of JRM Hauling's policies and procedures. Mr. Francois indicated that his truck was never in Revere on that day and that Ferreira was not riding on the driver's side fuel tank. Ferreira also indicated that he was not riding on the driver's side fuel tank.
Mr. Francois was given a written notice of disciplinary action related to the incident but because he refused to sign it, he was terminated.
DISCUSSION
Summary judgment shall be granted where there is no genuine issue as to any material fact and where the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991).
Generally, at-will employment is terminable by the employer or the employee for any reason or for no reason at all. Upton v. JWP Businessland, 425 Mass. 756, 757 (1997). An at-will employee may, however, state a claim for wrongful discharge when the termination violates a clearly established public policy.Id.; King v. Driscoll, 418 Mass. 576, 582 (1994). The public policy exception recognizes a cause of action where an employee is terminated for "asserting a legally guaranteed right (e.g., filing a workers' compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do what the law forbids (e.g., committing perjury)." Smith-Pfeffer v. Superintendent of the Walter F. Fernald State Sch., 404 Mass. 145, 150 (1989).
Massachusetts courts have narrowly construed the public policy exception to the at-will doctrine because to do otherwise would convert the general rule into a rule that requires just cause to terminate an at-will employee. Id. Even where an employee was performing "appropriate, socially desirable duties" the courts have not extended the public policy exception to the at-will employee. Id. at 150-151 (no violation of well-established public policy where nurse made internal reports of problems regarding management restructuring plan where employee believed proposed plan would "constitute[ ] a threat to the well-being of the institution and its residents"). The existence of a well-defined public policy is a question of law for the court.Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472 (1992).
Mr. Francois claims that he was preparing to "blow the whistle" on JRM Hauling for their hiring and treatment of illegal aliens. Mr. Francois relies on Shea v. Emmanuel College, 425 Mass. 761 (1997) and Mello v. Stop Shop Cos., 402 Mass. 555 (1988) to support his claim that he should be protected by the public policy exception available to whistleblowers. In Mello, the court assumed without deciding that an at-will employee who told his employer of criminal wrongdoing occurring within the company would be entitled to recover for wrongful discharge even though the employee did not complain to public authorities. 402 Mass. at 560. Nine years later, inShea, the Supreme Judicial Court held that liability may be imposed where the employee makes an internal complaint about an alleged violation of criminal law. 425 Mass. at 762-763.
While Mr. Francois is correct that he does not need to make an external report or a formal complaint to be protected, Shea and other cases on the subject of internal reporting do not assist him because these cases involve employee reports or complaints to the employer, supervisor, or management. See Shea, 425 Mass. at 763 (cause of action available for reporting violation to supervisor); Wright, 412 Mass. at (cause of action available where employee complained to national headquarters survey team that was investigating local office and would be making staff and administration decisions).
There is no evidence that the employees that Mr. Francois spoke to played any role in the decision to fire him or told JRM Hauling management of his activities. See Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, 618-619 (1996) (summary judgment in favor of defendant employer affirmed where employee told two other employees that she filed police report against supervisor because there was no evidence that president of defendant company, who fired employee, was aware that employee had filed a police report). A bare assertion or speculation that JRM Hauling terminated Mr. Francois because they knew he spoke with other employees about employment conditions is not sufficient to create a dispute of material fact concerning the reason for his discharge. Shea, 425 Mass. at 763-764, citing Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 368 (1996); Benson v. Mass. Gen. Hosp., 49 Mass. App. Ct. 530, 532 (2000) (parties may not rely on bare assertions and conclusions to create a dispute necessary to defeat summary judgment). Mr. Francois has no reasonable expectation of proving that JRM Hauling knew of his discussions with other employees and that JRM Hauling fired him in retaliation.
Mr. Francois stated in his affidavit: "The defendant knew of my actions based on conversations and reports from Mark S. and/or laborers that I spoke with during that time." Because Mr. Francois does not provide the foundation for this statement, for example, that it was based on personal knowledge, this court cannot credit the assertion.Polaroid Corp. v. Rollins Environmental Services (NJ), Inc., 416 Mass. 684, 696 (1993) (bare assertions and conclusions in an affidavit which are unsupported by personal knowledge cannot be used to forestall summary judgment).
Even assuming that JRM Hauling's conduct violated a clearly defined public policy, Mr. Francois has failed to cite any case law, nor has this court identified case law that recognizes a cause of action for an employee who discusses a perceived violation of law with co-workers rather than management. See Prader, 39 Mass. App. Ct. at 618-619. JRM Hauling is entitled to summary judgment.
ORDER
The defendant, JRM Hauling Recycling Services, Inc.'s Motion for Summary Judgment (paper # 4) as to Count I of the amended complaint is ALLOWED .