Larch v. Mansfield Municipal Electric Dept

Decision Date30 July 2001
Docket NumberNo. 00-2582,00-2582
Parties(1st Cir. 2001) JOHN LARCH, Plaintiff, Appellee, v. MANSFIELD MUNICIPAL ELECTRIC DEPARTMENT, Defendant, Appellant Heard
CourtU.S. Court of Appeals — First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

[Copyrighted Material Omitted] Leonard H. Kesten, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Kesten were on brief, for appellant.

Alan R. Hoffman, with whom Lynch, Brewer, Hoffman & Sands LLP were on brief, for appellee.

Before Torruella, Circuit Judge, Gibson,* Senior Circuit Judge, and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

On February 2, 1998, the Board of Commissioners of the Mansfield Municipal Electric Department voted not to renew the contract of the Department's manager, John Larch. Larch filed a complaint against the Department under Mass. Gen. Laws ch. 149, § 185(b) (the "Whistleblower Statute"), and 42 U.S.C. § 1983, alleging that his employment had been unlawfully terminated in retaliation for his refusal to obey Commissioner Frank Colella's order that he hire Michael Forbes, a friend of Colella's, as an apprentice lineman/meter reader or meter reader. The case went to trial, and the jury returned a verdict for Larch on the Whistleblower claim, awarding damages in the amount of $607,977.00. The court added attorney's fees, costs, and prejudgment interest. The Department appeals on numerous grounds. We affirm.

I. Background

From March of 1983 to June 30, 1998, John Larch was manager of the Mansfield Municipal Electric Department (the "Department" or the "Electric Department"), where he was in charge of the day-to-day operation of the Department, including the hiring and discharge of employees. The Board of Selectmen, who under the town charter were also the Electric Department's Board of Commissioners (the "Board"), were responsible for setting Electric Department policy. The three Board members who voted not to renew Larch's contract in February of 1998 were Frank Gerald Colella, Norman Mahana, and William C. Madan. Madan and Mahana were elected to the Board in March of 1996; Colella had been elected the previous year. Larch accused these three Commissioners of acting in concert to retaliate against him for his decision not to hire Forbes. The two Commissioners who opposed the motion not to renew Larch's contract were Amos M. Robinson and Dianne Royle (who replaced Joseph M. Pasquale on the Board in 1997).

In March of 1998, Larch filed a complaint in Bristol County Superior Court against defendants Madan, Royle, Colella, Mahana, and Robinson, as members of the Mansfield Municipal Electric Department Board of Commissioners, alleging that the Board's decision not to renew his contract violated the Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149, § 185(b), because it was in retaliation for his refusal to perform an act (hire Forbes) that he reasonably believed would have been unlawful. Larch claimed that it would have been unlawful to hire Forbes because under Massachusetts law the "manager of municipal lighting" shall have "full charge" of "the employment of . . . agents and servants," Mass. Gen. Laws ch. 164, § 56, and because under the collective bargaining agreement a union member who expressed interest in the position had priority over Forbes. The complaint also alleged breach of contract and unlawful discharge, and sought declaratory relief. Larch filed an amended complaint in April of 1998, adding as defendants Madan, Colella, and Mahana as individuals, and the Mansfield Municipal Electric Department, and adding a federal civil rights claim under 42 U.S.C. § 1983. In May of 1998 the case was removed to the United States District Court for the District of Massachusetts. In March of 1999 a suggestion of death was filed as to Mahana.

The central issue at trial, which commenced on June 26, 2000, was whether the Board's decision not to renew Larch's contract was in retaliation for Larch's decision not to hire Forbes. Larch's theory of the case was that Colella had ordered him to hire Forbes, and that when he refused to do so in June of 1996, a majority on the Board (Colella, Madan, and Mahana) launched a protracted campaign of harassment against him that culminated in February of 1998 with the vote not to renew his contract. The Board argued that Colella never ordered Larch to hire Forbes, but simply recommended him for the position, and that the non-renewal decision was unrelated to the Forbes affair.

During the trial, the court dismissed the claims against the individual defendants, directed a verdict for the Department on the civil rights claim, and directed a verdict for Larch on the breach of contract claim (with nominal damages).1 The Whistleblower claim went to the jury, which on July 5, 2000, returned a verdict for Larch in the amount of $607,977.00. In a subsequent order the district court awarded prejudgment interest from March 9, 1998, and attorney's fees and costs pursuant to the Whistleblower Statute.

The Department then moved for judgment as a matter of law, for a new trial, and to alter or amend the judgment. It argued that there was insufficient evidence that Larch reasonably believed that hiring Forbes would have violated the law; that there was insufficient evidence that his refusal to hire Forbes was a substantial or motivating factor in the Board's decision not to renew his contract; that the non-renewal of Larch's contract was not a "retaliatory action" within the meaning the Whistleblower Statute; that the district court erred in admitting into evidence the statements of the deceased Commissioner Mahana; and that the award of damages was too speculative and should be reduced. The district court denied these motions. The Department also moved for reconsideration of the court's order concerning attorney's fees and prejudgment interest. The court granted these motions in part, adjusting the date from which prejudgment interest would be awarded and authorizing certain deductions from the attorney's fees award. The court entered an amended judgment on October 20, 2000, awarding Larch $607,977.00, plus prejudgment interest in the amount of $168,498.84, attorney's fees in the amount of $119,265.00, and costs of $8,523.00. The Department filed a notice of appeal on November 16, 2000.

II. Sufficiency of the Evidence

Larch claims, and the jury found, that the Department violated the Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149, § 185(b), which provides, in relevant part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

. . .

(3) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.

The district court instructed the jury that Larch had to prove (1) "that he objected to or refused to participate in an activity, policy or practice that he reasonably believed was in violation of a law, rule or regulation;" (2) "that his refusal to participate in the activity played a substantial or motivating part in the decision not to renew his contract"; and (3) "that the retaliatory action caused him damages." The Department argues that there was insufficient evidence for the jury to make findings one and two.

"We review the district court's denial of [a] motion for judgment as a matter of law de novo, viewing the evidence in the light most favorable to [the non-moving party] and drawing all reasonable inferences in its favor. Our inquiry is whether the evidence, when viewed from this perspective, would permit a reasonable jury to find in favor of [the non-moving party] on any permissible claim or theory." Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 7 (1st Cir. 2000) (citations and internal quotation marks omitted). We conclude that the evidence was sufficient to support the jury's verdict.

(a) Reasonable Belief That Hiring Forbes Would Have Been Unlawful

Larch testified that he reasonably believed that hiring Forbes pursuant to Colella's order would have violated three Massachusetts statutes. Because Larch only had to establish that he reasonably believed that hiring Forbes would have violated one of the statutes he cited,2 we limit our discussion to Mass. Gen. Laws ch. 164, § 56, which provides that the "manager of municipal lighting" shall have "full charge" of "the employment of . . . agents and servants."3 Larch argues that hiring Forbes pursuant to Colella's order would have entailed an unlawful substitution of Colella's judgment for his own. The Department asserts that Colella never ordered Larch to hire Forbes, but simply recommended Forbes for the positions.

There was ample evidence at trial to support a jury finding that Colella had ordered Larch to hire Forbes. On March 5, 1996, the Board voted to authorize a new position for an apprentice lineman/meter reader. Between March 5 and June 3, 1996, Colella indicated to Larch on at least three occasions that he expected Forbes, a friend and co-worker of Colella's, to be hired for the new position. While it was common for Commissioners to recommend people for open positions, Larch testified that he believed Colella was ordering him to hire Forbes. Larch testified that he had decided not to hire Forbes "as long as [Colella] was telling me to hire him."

Larch did not post the new position when it was authorized, believing that "we were going to have a problem" when Colella found out that Forbes was not getting the job. At the beginning of June, however, Larch learned that Shawn Curran, a meter reader in the Department, had decided to bid for the position. Larch believed that Curran's bid would...

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