Opinion
No. 15–P–1387.
08-04-2016
Frank TRAMONTOZZI v. MASSACHUSETTS DEPARTMENT OF TRANSPORTATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Frank Tramontozzi, appeals from a summary judgment in favor of the defendant (department) on count I of his verified complaint alleging wrongful termination. Tramontozzi was an employee at will of the department of which, on February 8, 2011, he was chief engineer. On that date a light fixture fell in the Central Artery Tunnel in the city of Boston.
Counts II and III were dismissed by stipulation of the parties.
--------
On March 2, 2011, Tramontozzi was appointed acting administrator for the highway division, replacing the administrator, who had taken a leave of absence. As acting highway administrator he reported directly to the Secretary of Transportation (Secretary). Tramontozzi discussed the incident with the Secretary on March 8, 2011. The Secretary publicly took the position that this conversation, one month after the light fell, was the first he had heard of this very serious incident and it necessitated the inspection of more than 20,000 lights.
Viewing the evidence in the summary judgment record as we must, in the light most favorable to the nonmoving party, see Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), on March 24, 2011, Tramontozzi was called to a meeting with the Secretary. Tramontozzi was told that he would be fired or that he could resign. Told by the department's general counsel that it would be wiser to resign, he did so. The verified complaint alleges that the Secretary then issued a press release on Tramontozzi's resignation without his knowledge.
We may assume without deciding that viewing the evidence in the light most favorable to Tramontozzi, it could support a finding that he did nothing wrong with respect to the role he played in addressing the incident involving the light fixture. We may further assume without deciding that a jury could find that, despite this, he was fired by the Secretary as a scapegoat so that the Secretary could blame the lack of action and failure to alert the public about the fallen light fixture for more than one month on Tramontozzi when, in fact, these things were a result of the Secretary's own failures. And we may also assume, again without deciding, that, viewing the evidence in the light most favorable to Tramontozzi, a jury could have found that he was constructively discharged, even though he submitted a letter of resignation.
Nonetheless, we see no error. Tramontozzi acknowledges that as an employee at will he was subject to termination for any or no reason. He argues, however, that we should extend the public policy exception to the rule, see DeRose v. Putnam Mgmt. Co., 398 Mass. 205, 208–210 (1986), to cover this alleged circumstance.
Specifically, Tramontozzi argues that if a jury found the facts to be as we have assumed them to be, his firing violates the principle of “open, honest and accountable government.” He argues that “[p]ublic policy should not condone a termination to provide cover for or to insulate superiors from responsibility, political controversy, or to preserve a job.” We understand his claim to be that this public policy exception would apply only to employees at will employed by the government.
We agree with Tramontozzi that the public policy exception is not static and that it may be held to apply in new circumstances that have not confronted our courts before. Currently, the only circumstances described in our case law for invoking the public policy doctrine are based in protected conduct of the employee. See, e.g., Cort v. Bristol–Myers Co., 385 Mass. 300, 306–307 (1982) (wrongful termination may be found where employee is terminated for refusing to provide information to employer where such request is serious or substantial interference with privacy); DeRose v. Putnam Mgmt. Co., supra (public policy exception applies to employee who refused to give false testimony against coworker in criminal trial); Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416–417 (1988) (public policy exception may apply to employee who enforced safety laws that it was her responsibility to enforce); Flesner v. Technical Communications Corp., 410 Mass. 805, 810–811 (1991) (public policy exception applies to employee who voluntarily cooperated with investigation by United States Customs officials); Shea v. Emmanuel College, 425 Mass. 761, 763 (1997) (public policy exception applies to employee who reported criminal conduct in place of employment to her employer). See also Parker v. North Brookfield, 68 Mass.App.Ct. 235, 240 (2007), citing Smith–Pfeffer v. Superintendent of the Walter E. Fernald State Sch ., 404 Mass. 145, 149–150 (1989) (“In exceptional cases, for reasons of public policy, an at-will employee may maintain a cause of action and find redress where the termination results from the employee's assertion of some legally guaranteed right, or refusal to engage in illegal or harmful conduct”).
We need not reach Tramontozzi's argument that we should look to the decision maker's subjective motivation, however, because the termination of an at-will employee violates public policy only if the policy at issue is a “clearly established” and “well-defined” public policy of the Commonwealth. Upton v. JWP Businessland, 425 Mass. 756, 757 (1997).
The public policy put forward by Tramontozzi, one of honest, open, and accountable government, is one we can all support. But it is inadequately defined to allow any at-will government employee who believes he was fired in violation of that policy to bring suit. The question what exactly is required by the policy of open, honest, and accountable government that Tramontozzi articulates is both difficult to define and open to debate. Indeed, a finder of fact might conclude that almost any firing for which there was an absence of just cause violates that policy. The Supreme Judicial Court, however, has made clear that the public policy exception must be construed narrowly in order to avoid effectively imposing a just cause requirement for termination of at-will employees. See King v. Driscoll, 418 Mass. 576, 582 (1994), quoting from Smith–Pfeffer v. Superintendent of the Walter E. Fernald State Sch ., supra at 150 (“This court consistently has interpreted the public policy exception narrowly, reasoning that to do otherwise would ‘convert the general rule ... into a rule that requires just cause to terminate an at-will employee’ ”).
Judgment affirmed.