Civil action commenced in the Superior
Court Department on February 11, 2019.
A motion to dismiss was heard by Diane C.
Freniere, J.
After review by the Appeals Court, the
Supreme Judicial Court granted leave to obtain further appellate review.
Robert S. Mantell (James A. Kobe also
present) for the plaintiff.
Scott J. Brewerton for the defendant.
The following submitted briefs for amici
curiae:
Gavriela M. Bogin-Farber for Massachusetts
Employment Lawyers Association & others.
James P. McKenna for Pioneer Institute.
Maura Healey, Attorney General, David C.
Kravitz, Deputy State Solicitor, & Alex Sugerman-Brozan, Assistant Attorney
General, for the Attorney General.
KAFKER, J.
The issue presented in this case is whether an employer can terminate an
at-will employee simply for exercising the right to file a rebuttal to be
included in his personnel file as provided by G. L. c. 149,
§ 52C. We conclude that such a
termination would violate the public policy exception to at-will employment. We therefore reverse the decision of the
Superior Court allowing the motion, filed by the employer, Medical Information
Technology, Inc. (Meditech), to dismiss the complaint brought by the plaintiff,
Terence Meehan.[2]
Background. The facts are drawn from the complaint and,
along with all reasonable inferences that can be drawn from them, are assumed
to be true for purposes of a motion to dismiss.
See Curtis v. Herb Chambers Iā95, Inc., 458 Mass. 674, 676 (2011). In November of 2010, Meehan began working for
Meditech as a sales representative. In
2017, Meditech undertook a revision of its then twelve-person regional sales
department, keeping nine employees as sales representatives and moving three,
including Meehan, to a newly created "sales specialist" position. The sales specialist position greatly changed
Meehan's job responsibilities, and his ability to earn commissions was
significantly diminished by this change.
According to Meehan, the structure of the sales specialist role created
little incentive for those leading sales efforts to utilize sales specialists,
and even if they did so, the potential for sales specialists to earn commission
income was quite limited.
Early in July of 2018, Meehan and the
other two sales specialists were placed on "performance improvement
plans" (PIPs). Approximately two
weeks later, on July 17, 2018, Meehan sent his supervisor a lengthy rebuttal to
having been placed on a PIP. Members of
Meditech's management team met that same day to discuss his rebuttal.[3] The
president and chief executive officer of Meditech decided that Meehan's
employment should be terminated immediately.
On the day of the meeting, Meehan's employment was terminated. In October of 2018, the PIP requirements for the
other two sales specialists were discontinued with one or both of them being
told that the PIP was "wrong" by a Meditech representative.
After obtaining an attorney, Meehan
protested his termination to Meditech.
Meehan thereafter filed a one-count complaint in the Superior Court
alleging wrongful discharge in violation of public policy. A Superior Court judge allowed Meditech's
motion to dismiss. The motion judge
recognized that Meehan had a statutory right pursuant to G. L. c. 149,
§ 52C, to submit a rebuttal; the judge nonetheless ruled that the right to
submit a rebuttal was "not a sufficiently important public policy" to
support Meehan's claim for wrongful discharge because it merely "involves
matters internal to an employer's operation." She also concluded that if any employee who
submitted a written statement disagreeing with any information contained in a
personnel record was protected from termination, this would convert the at-will
employment rule into one for just cause.
In a split decision, with an expanded
panel, the Appeals Court affirmed the decision allowing the motion to
dismiss. Meehan v. Medical Info. Tech.,
Inc., 99 Mass. App. Ct. 95, 96, 100 (2021).
We granted Meehan's application for further appellate review.
Discussion. 1.
Standard of review. "We
review the allowance of a motion to dismiss de novo" (citation
omitted). Magliacane v. Gardner, 483
Mass. 842, 848 (2020). For the purposes
of Meditech's motion, "we accept as true the allegations in the complaint
and draw every reasonable inference in favor of the plaintiff." Suburban Home Health Care, Inc. v. Executive
Office of Health & Human Servs., Office of Medicaid, 488 Mass. 347, 351
(2021).
2.
The public policy exception to employment at will. In general, "employment at will can be
terminated for any reason or for no reason." Harrison v. NetCentric Corp., 433 Mass. 465,
478 (2001). Massachusetts courts have,
however, recognized limited exceptions to the general rule, when "employment
is terminated contrary to a well-defined public policy." Wright v. Shriners Hosp. for Crippled
Children, 412 Mass. 469, 472 (1992). In
carving out these exceptions, the court has emphasized that the public policy
exception should be narrowly construed to avoid converting the general at-will
rule into "a rule that requires just cause to terminate an at-will
employee." King v. Driscoll, 418
Mass. 576, 582 (1994), S.C., 424 Mass. 1 (1996), quoting Smith-Pfeffer v.
Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989).
More specifically, the public policy exception
to at-will employment has been recognized "for asserting a legally
guaranteed right (e.g., filing a worker's 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)" (emphasis added). Smith-Pfeffer, 404 Mass. at 149-150. See DeRose v. Putnam Mgt. Co., 398 Mass. 205,
209-210 (1986) (public policy protected employee from wrongful termination
where employee refused to heed employer's instructions to give false
testimony). In addition to these three
categories, this court subsequently created a fourth category to protect those
"performing important public deeds, even though the law does not
absolutely require the performance of such a deed." Flesner v. Technical Communications Corp.,
410 Mass. 805, 810-811 (1991). Such
deeds include, for example, cooperating with an ongoing criminal
investigation. Id.
The court has also stated that "the
internal administration, policy, functioning, and other matters of an
organization cannot be the basis for a public policy exception to the general
rule that at-will employees are terminable at any time with or without
cause." King, 418 Mass. at 583
(employee not wrongfully terminated in violation of public policy where he
participated in shareholder derivative action).
As a further illustration of this point, in Wright, 412 Mass. at 474, a
plaintiff nurse reported internal problems to high-level hospital officials and
thereafter was terminated. This court
determined that because the nurse's reports concerned the organization's
internal matters, there was no basis for a public policy exception to the
at-will termination rule. Id. at
475. See Upton v. JWP Businessland, 425
Mass. 756, 758 (1997) (no liability for discharge stemming from employer
requiring employee to work overtime, even though such schedule interfered with
employee's childcare responsibilities); Mello v. Stop & Shop Cos., 402
Mass. 555, 558 n.3, 560-561 (1988) (no public policy violated where employee
fired for reporting noncriminal wrongdoing by other employees).
In determining whether to create a
common-law public policy exception to employment at will, we must also consider
whether the Legislature has prescribed a remedy for the public policy violation
at issue, including a remedy for a discharge of the employee for exercising
that right. See Osborne-Trussell v.
Children's Hosp. Corp., 488 Mass. 248, 265 (2021); Mello, 402 Mass. at 557. This is particularly true when the legally
guaranteed right that has been exercised is defined by statute, as it is in the
instant case.
With these general principles in mind, we
turn to the specific public policy at issue.
3.
General Laws c. 149, § 52C. The
plaintiff alleges that, by filing the rebuttal, he was exercising a statutory
right under G. L. c. 149, § 52C. The statute provides:
"An employer
shall notify an employee within [ten] days of the employer placing in the
employee's personnel record any
information . . . that . . . negatively
affect[s] the employee's qualification for employment, promotion, transfer,
additional compensation or the possibility that the employee will be subject to
disciplinary action. . . .
"If there is
a disagreement with any information contained in a personnel record, removal or
correction of such information may be mutually agreed upon by the employer and
the employee. If an agreement is not
reached, the employee may submit a written statement explaining the employee's
position which shall thereupon be contained therein and shall become a part of
such employee's personnel record. . . .
". . .
"Whoever
violates the provisions of this section shall be punished by a fine of not less
than [$500] nor more than [$2,500]. This
section shall be enforced by the attorney general."
G. L.
c. 149, § 52C. There is also a
records retentions provision in the statute:
"An employer
of twenty or more employees shall retain the complete personnel record of an
employee as required to be kept under this section without deletions or
expungement of information from the date of employment of such employee to a
date three years after the termination of employment by the employee with such
employer. In any cause of action brought
by an employee against such employer of twenty or more employees in any
administrative or judicial proceeding, including but not limited to, the
Massachusetts Office of Affirmative Action, the Massachusetts Commission
Against Discrimination, Massachusetts Civil Service Commission, Massachusetts
Labor Relations Commission, attorney general, or a court of appropriate
jurisdiction, such employer shall retain any personnel record required to be
kept under this section which is relevant to such action until the final
disposition thereof."
Id. Thus, G. L. c. 149, § 52C, is
designed, in part, to create a complete and reliable record of an employee's
tenure that is available for introduction as admissible evidence under the
business records exception to the hearsay rule in any resulting litigation that
may arise. See id.; Mass. G. Evid.
§ 803(6)(A) (2021).
4.
Whether termination of employment for a violation of G. L.
c. 149, § 52C, constitutes a public policy exception to at-will
employment. We conclude that the statutory
right of rebuttal provided in G. L. c. 149, § 52C, is a legally
guaranteed right of employment, and therefore, termination from employment for
the exercise of this legally guaranteed right fits within the first public
policy exception to employment at will defined by our case law. See Mello, 402 Mass. at 557 ("A basis
for a common law rule of liability can easily be found when the Legislature has
expressed a policy position concerning the rights of employees and an employer
discharges an at-will employee in violation of that established policy, unless
no common law rule is needed because the Legislature has also prescribed a
statutory remedy"). See also
Smith-Pfeffer, 404 Mass. at 149 (providing public policy protection against
discharge for assertion of "legally guaranteed right").
When addressing the discharge of an
employee for the exercise of an employment right defined by statute, we do not,
as the motion judge and Appeals Court did here, decide whether the right is
important or relates only to internal matters.
See Meehan, 99 Mass. App. Ct. at 98-100.
In enacting the statutory employment right, the Legislature has already
made both determinations, concluding that the right is a matter of public
significance.[4]
It is primarily in the fourth category,
when we are seeking to identify a public policy that has not been already
recognized in the law, that we consider how important the policy is, and
whether it relates primarily to internal affairs. Flesner, 410 Mass. at 810-811 ("We think
that the reasons for imposing liability in the [three] categories of cases set
forth in Smith-Pfeffer also justify legal redress in certain circumstances for
employees terminated for performing important public deeds, even though the law
does not absolutely require the performance of such a deed"). In this context, where there has been no
legislative recognition of the right, an examination of the importance and
public nature of the policy at issue in the discharge of the at-will employee
is necessary to determine whether it merits protection.[5]
Finally, even if we had to decide whether
the right of rebuttal was important, we would so conclude here. The right of rebuttal and accuracy of
information in personnel files are important for employees, and not just in
relation to their ability to earn a living with their current employer, but
also to protect the ability of employees to seek other employment, and to
enable other employers to make informed decisions about hiring them, thereby
preventing terminated employees from becoming public charges. See Meehan, 99 Mass. App. Ct. at 103 (Henry,
J., dissenting) (General Laws c. 149, § 52C "serves an important
public policy by ensuring that when employees choose or are to seek different
employment, they can be fairly evaluated by potential new employers. In essence, the statute makes labor markets
work more fairly by making . . . more balanced[]
information available to potential employers"). The right of rebuttal may also be important
for evaluating compliance with the laws of the Commonwealth, including those
governing the terms and conditions of employment, such as workplace safety, the
timely payment of wages, and the prevention of discrimination, and
nonemployment-related activity, such as those governing the environment and the
economy. See note 7, infra. The records retention provision of the
statute confirms the additional purposes that documentation of personnel
records, including rebuttal, may serve.
See G. L. c. 149, § 52C.
Having concluded that there is a public
policy employment right recognized by statute, we proceed to the question
whether the remedy for discharge of the employee for exercising this statutory
right of employment is already provided by statute or requires further common-law
protection.
"Of course, a statute itself may
provide that an employer may not terminate an employee for exercising rights
conferred by the statute, and in such a case, the common law public policy
exception is not called into play."
King, 418 Mass. at 584 n.7. See
Mello, 402 Mass. at 557 & n.2. See
also Osborne-Trussell, 488 Mass. at 265.
Where the Legislature has provided a remedy for the statutory violation
but not a remedy for discharge from employment for its exercise, the analysis is
more difficult. In these circumstances
we must discern whether the statutory remedy is meant to be comprehensive, or
whether there is a gap to be filled by common-law protection. Cf. Upton, 425 Mass. at 759 ("The
Legislature has directed that unemployment compensation should be available to
[a person unable to work extended hours due to childcare responsibilities], but
it has not provided that such an employee has an action for wrongful
discharge"); Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 513 (1985),
S.C., 397 Mass. 1004 (1986) (where employee sought to bring wrongful discharge
claim for age discrimination, court stated "that where, as here, there is
a comprehensive remedial statute [protecting against age discrimination in the
workplace], the creation of a new common law action based on the public policy
expressed in that statute would interfere with that remedial scheme").
In the instant case, the Legislature has
provided a limited remedy for violations of the act: a fine of not less than $500 nor more than
$2,500, to be enforced by the Attorney General.
G. L. c. 149, § 52C.
The statute does not address termination or retaliation for exercise of
the right itself. Given the limited
nature of the remedy, the absence of any discussion of termination, and the
lack of a private enforcement mechanism, the Legislature does not appear to
have considered the possibility of an employer simply terminating an employee
for exercising the right of rebuttal. Indeed,
such a response would appear to be sticking a finger in the eye of the
Legislature. It would also empower any
employer who so desired to essentially negate the important policies served by
the right of rebuttal. We conclude that
the Legislature would not have permitted such a flouting of its authority, had
it contemplated the possibility.[6]
Thus, we hold that recognizing a common-law wrongful discharge action
for the termination of an at-will employee for exercising the statutory right
of rebuttal would complement the remedial scheme.
We also disagree with the motion judge and
the Appeals Court that recognizing this right would provide just cause
protection for at-will employees or transform the courts into "super
personnel departments, assessing the merits -ā or even the rationality -- of
employers' . . . business decisions." Sullivan v. Liberty Mut. Ins. Co., 444 Mass.
34, 56 (2005), quoting Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st
Cir. 1991), cert. denied, 504 U.S. 985 (1992).
See Meehan, 99 Mass App. Ct. at 98-99.
The employer remains free to terminate the employee for any reason or no
reason so long as the employer does not terminate the employee for filing the
rebuttal itself. The rebuttal merely
memorializes the employee's position regarding the issue in dispute; it does
not provide any additional rights.[7] If the employer decides it prefers
someone else in the job, the employer remains free to terminate the employee,
regardless of the rebuttal. For example,
if an employee had an attendance problem, was disciplined for it, and filed a
rebuttal, the rebuttal would not in any way shield the employee from being
disciplined or fired for lack of attendance.
If the absenteeism continued, the employee could be terminated from
employment, regardless of the rebuttal.[8]
Finally, we provide some precautionary
guidance on the obvious issue left unresolved by the unusual factual posture of
this case. In filing his motion to
dismiss, the plaintiff did not attach a copy of his rebuttal to his complaint
or allege its contents. For purposes of
the motion to dismiss, we must therefore accept that he was fired for merely
filing the rebuttal as opposed to what he wrote in the rebuttal. As the issue of termination of an employee
for what is written in the rebuttal may very well arise on remand, and will
most certainly arise in subsequent cases, we briefly address this issue as
well, leaving further line drawing in this area to future cases.
As explained above, the express purpose of
the rebuttal provision is to give employees an opportunity to respond to
information in their personnel files that "has been used or may be used
. . . to negatively affect" them. G. L. c. 149, § 52C. The rebuttal provision itself only applies
when there is "disagreement" on the content of the file that the
parties cannot mutually resolve. Id.
As such, the rebuttal may be expected to
involve disputed, contentious subjects and vehement disagreement. In this context, where emotions inevitably
run high, the exercise and expression of the right of rebuttal should not be
grounds for termination when it is directed at "explaining the employee's
position" regarding the "disagreement with . . . information
contained in [the] personnel record," G. L. c. 149, § 52C, no matter how
intemperate and contentious the expression in the rebuttal. Cf. Glover v. South Carolina Law Enforcement
Div., 170 F.3d 411, 414 (4th Cir. 1999), cert. dismissed, 528 U.S. 1146 (2000)
(antiretaliation clause for participation in employment discrimination
administrative proceedings "ensure[s] not only that employers cannot
intimidate their employees into foregoing the [federally prescribed] grievance
process, but also that investigators will have access to the unchilled
testimony of witnesses"); Sias v. City Demonstration Agency, 588 F.2d 692,
695 (9th Cir. 1978) (narrow interpretation of right to bring informal, internal
grievances "would not only chill the legitimate assertion of employee
rights under [Federal law] but would tend to force employees to file formal charges
rather than seek conciliation or informal adjustment of grievances"). Such protection from termination, of course,
does not extend to threats of personal violence, abuse, or similarly egregious
responses if they are included in the rebuttal.
Egei v. Johnson, 192 F. Supp. 3d 81, 91 (D.D.C. 2016) (protection may
not extend to employee who "threatens another participant during the
course of" protected activity).
Conclusion. Termination of an at-will employee simply for
filing a rebuttal expressly authorized by G. L. c. 149, § 52C,
constitutes a wrongful discharge in violation of public policy. We therefore reverse the Superior Court's
order allowing the defendant's motion to dismiss, and the matter is remanded to
the Superior Court for further proceedings consistent with this opinion.
So ordered.
footnotes
[1] Doing business as Meditech.
[2] We acknowledge the amicus briefs
submitted by the Attorney General; the Massachusetts Employment Lawyers
Association, the American Civil Liberties Union of Massachusetts, the Fair
Employment Project, GLBTQ Advocates and Defenders, and the Massachusetts Law
Reform Institute; and by the Pioneer Institute.
[3] Also raised at the meeting was a three
week old confrontation between Meehan and another employee, where Meehan
allegedly called the other employee a "maggot" in response to a
political disagreement. That employee,
when asked by management, chose not to pursue the matter further. For purposes of the motion to dismiss, we
accept the defendant's contention that he was fired because of the rebuttal.
[4] As an employment right, it also
obviously fully applies in the workplace.
[5] In extending this importance and
internal affairs analysis to the instant case, the motion judge and the Appeals
Court primarily relied on our decision in King, 418 Mass. 576. See Meehan, 99 Mass. App. Ct. at 96-99 &
n.4. In King, 418 Mass. at 577-578, a
vice-president of a closely held corporation was fired after bringing a
shareholder derivative suit against his own employer regarding the
corporation's stock buyback price.
Although King did involve a statutory right, and we did discuss its
importance, it was not a right of employment, nor one that had been expressly
connected to employment. Id. at
584-585. Cf. Mello, 402 Mass. at 557 n.2
(listing statutes where Legislature has expressed policy position concerning
rights of employees). The court in King,
supra at 584, also did explain, albeit confusingly, that "[f]or the
exercise of a statutory right to be worthy of protection in this area we
believe that the statutory right must relate to or arise from the employee's
status as an employee, not as a shareholder." The court then went on to conclude that
"[t]he exercise of the right to file a derivative action arose from King's
status as a shareholder." Id. at
584-585. It is this point, not the
importance or unimportance of the statutory right at issue, that should be
understood as the basis of the King decision.
We emphasize that respect for the legislative branch makes any
discussion of the unimportance of a statutory right highly problematic.
[6] A review of the legislative history
reveals no draft bills or discussion addressing termination from employment for
exercising the right of rebuttal.
[7] This record may of course be relevant
when an employee claims that termination was the result of exercising a
different protected right, including the right not to be discharged for a
discriminatory reason, such as race, age, or sex, and the question whether the
reasons provided by the employer were pretextual has been raised. See, e.g., Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 684-685
(2016) (jury could have concluded that negative evaluations were pretextual or
biased based on other, contradictory evaluations in personnel file); Abramian
v. President & Fellows of Harvard College, 432 Mass. 107, 111 (2000)
("the jury could have found that the incident reports were false and were
entered into [the employee's] file without his knowledge"). That is an express purpose underlying the
right of rebuttal and the records retention requirement in the statute. See G. L. c. 149, § 52C
(requiring employers to keep personnel records for period of three years after
employee's termination, or until final disposition of administrative or
judicial claim).
[8] If, however, the employer had given
the employee a warning or a short suspension for being late, and then without
further attendance problems, when the employer receives the rebuttal, the
employer terminates the employee, the issue whether the filing of the rebuttal
was the cause of termination is presented.
This is analogous to the facts of the instant case.