Cummins v. EG & G SEALOL, INC.

• Citation: 690 F. Supp. 134
• Decision Date: 30 June 1988
• Docket Number: Civ. A. No. 87-0114 L.
• Parties: James J. CUMMINS v. EG & G SEALOL, INC.
• Court: U.S. District Court — District of Rhode Island

690 F. Supp. 134

James J. CUMMINS v. EG & G SEALOL, INC.

Civ. A. No. 87-0114 L.

United States District Court, D. Rhode Island.

June 30, 1988.

A. Lauriston Parks, Raymond A. Marcaccio, Providence, R.I., for plaintiff.

David Rappaport, Boston, Mass., Frederick Bass, Providence, R.I., for defendant.

OPINION AND ORDER

LAGUEUX, District Judge.

The primary issue presented for decision in this matter is whether the Rhode Island Supreme Court will recognize a common law cause of action in tort in cases where an employer terminates an employee-at-will for reporting employer misconduct expressly prohibited by statute. In the past twenty years, a large number of jurisdictions in the United States has recognized such an action in one form or another. More importantly, the Rhode Island Supreme Court, itself, has tacitly indicated that it will sanction a cause of action for retaliatory discharge in an employment-related context. Given these two indicia, this Court believes that the Rhode Island Supreme Court in the future will expressly recognize a cause of action in tort for employees-at-will who have been discharged for exposing employer conduct that is in violation of an express statutory mandate. Plaintiff's motion to amend the complaint to add such a cause of action in this case, therefore, is granted.

Plaintiff, James J. Cummins, was first employed by the Engineered Products division of defendant EG & G Sealol, Inc. (Sealol) in February of 1982. One year later plaintiff became the Director of Business Development for Sealol. He remained in that position until January 15, 1986, when his employment was terminated effective January 27, 1986.

On November 7, 1986, plaintiff filed a complaint with the Rhode Island Commission for Human Rights alleging that defendant had discriminated against him because of his age. On the same day, plaintiff also filed a similar complaint with the Equal Employment Opportunity Commission in Boston, Massachusetts.

After exhausting his administrative remedies, plaintiff filed a complaint in this Court again alleging that defendant had intentionally discriminated against him because of his age. He requested relief in the form of back pay, reinstatement and "liquidated damages." Defendant answered plaintiff's complaint on May 1, 1987, in essence claiming that plaintiff was discharged for reasons other than age.

For approximately the next year the parties undertook discovery of the matter in dispute. Then in March of 1988, plaintiff filed a motion to amend the complaint by adding a second count sounding in tort for retaliatory discharge.

In the proposed amended complaint, plaintiff reaverred his cause of action for age discrimination. In the second count plaintiff has alleged that in June of 1983, he became aware that defendant was using inflated prices on certain defense contracts for the production of equipment; that from June until the date of his termination, he "relayed written and oral communications to his superiors which criticized defendant's pricing practices" on the defense contracts; and that he refused to attend certain meetings for defense contract negotiations because of defendant's alleged misrepresentations concerning the pricing of products.

He further alleges that on January 27, 1986, he was terminated from his employment; that he was fired from his job, either in whole or in part, because he criticized defendant's purported illegal pricing practices and refused to participate in conduct that would perpetuate them; and finally that a termination for this reason is "contrary to the public policy of the United States," and creates a right of action for wrongful discharge under the law of Rhode Island.

On April 13, 1988, defendant filed an opposition to plaintiff's motion to amend, and the entire matter was heard one month later on May 11, 1988. At that time it became unclear whether this Court should certify the issue in dispute to the Rhode Island Supreme Court or decide the matter itself. Consequently, plaintiff's motion to amend was taken under advisement. It is now in order for decision.

The motion to amend the complaint was filed by plaintiff pursuant to Fed.R.Civ.P. 15(a). That rule provides that a party who seeks to amend a pleading after a responsive pleading has been served may amend the pleading "only by leave of court ... Leave shall be freely given when justice so requires."

The United States Supreme Court has interpreted Rule 15 to allow a plaintiff to amend his complaint unless the cause of action contained in the attempted amendment fails to state a claim upon which relief can be granted, or the amendment would unduly prejudice defendant in some manner. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Defendant Sealol argues both grounds in opposition to the motion.

The claim plaintiff wishes to add to his complaint in this case arises, if at all, under state law. This Court may legitimately adjudicate such a claim under the doctrine of pendent jurisdiction; however, as a state law claim, it is necessary to look to the law of the forum state (Rhode Island) in order to determine whether that law recognizes the existence of such an action.

The Rhode Island Supreme Court has declared on many occasions that an employee who renders personal services for an indefinite term (an employee-at-will) may be terminated "at any time for any reason or for no reason at all," Roy v. Woonsocket Institution for Savings, 525 A.2d 915 (R.I. 1987). Until recently, the Rhode Island Supreme Court has never addressed the issue of whether an employee-at-will may maintain a cause of action for wrongful discharge where he has been released in retaliation for refusing to participate in an alleged illegal activity. Rather, all Rhode Island Supreme Court cases prior to 1988 that discuss the general rule for employees-at-will deal with the situation where the employee merely claimed that he was terminated without good cause, Roy, 525 A.2d at 916-918, or for no reason at all. See Roy 525 A.2d at 918 n. 2. The law of Rhode Island regarding wrongful discharge actions based upon employer violations of express statutory language, until very recently, was unclear.

Normally, where the law of the forum state is "unclear" and a procedure for certifying issues of law from the federal to the state supreme court exists, the United States Supreme Court has directed lower federal courts to follow the certification procedure. Lehman Brothers v. Schein, 416 U.S. 386, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). Thus, had the Rhode Island Supreme Court continued its complete silence on the issue in dispute, this Court would have been required to certify the question of law to that court pursuant to Rule 6 of the Rhode Island Supreme Court Rules of Appellate Procedure.

However, resort to the certification procedure is unnecessary in the present case. In Volino v. General Dynamics, 539 A.2d 531 (R.I.1988), the Rhode Island Supreme Court tacitly recognized that employees-at-will possess a cause of action in tort in cases where they are discharged for exposing employer conduct that is contrary to statutorily enacted public policy.

In Volino, plaintiff alleged that he had been wrongfully discharged by defendant in retaliation for reporting several incidents of malpractice by defendant and its agents that violated United States Navy construction standards. Defendant moved for summary judgment contending that plaintiff was not discharged because he reported violations but rather because he had left defendant's premises without authorization, and had a history of absenteeism. In addition, defendant argued, that plaintiff was an employee-at-will, and thus, could be terminated at any time with or without cause. The trial court granted defendant's motion for summary judgment on the latter ground and plaintiff appealed to the Rhode Island Supreme Court.

In deciding whether the trial court had properly granted summary judgment, the Court first addressed the law of Rhode Island concerning contracts for personal services for an indefinite term. Citing Roy v. Woonsocket Institute for Savings, 525 A.2d at 917, the Court noted that such contracts were terminable at the will of either party at any time for any reason or for no reason at all.

The case, however, was not decided upon this ground. Rather, the Court proceeded to uphold the trial judge's grant of summary judgment on the ground that plaintiff had failed to present specific facts showing that he was fired as a result of reporting defendant's malpractice. All that could be determined from the record was that plaintiff had left defendant's premises without authorization and had a history of absenteeism. Thus, there was no genuine issue of material fact to be decided and it was held that defendant's motion for summary judgment was properly granted by the trial judge.

That the Supreme Court proceeded to make this determination indicates clearly that the Court recognized that plaintiff possessed a cause of action for retaliatory discharge. Otherwise, application of the rule in Roy would have decided the motion for summary judgment as a matter of law. If the Roy rule applied, plaintiff, as an employee-at-will, would have been barred from bringing a cause of action in tort because he could be discharged "at any time" and "for any reason," including for reporting misconduct on the part of his employer. The Supreme Court, however, upheld the trial judge's ruling on the ground that plaintiff had failed to show that he was fired in a retaliatory manner. Implicitly, this is a recognition that plaintiff already possessed a cause of action for retaliatory discharge, and lost the motion for summary judgment because he failed to assert facts that would create an issue of material fact as to the discharge's retaliatory nature. The Court in Volino, then, has indicated that a cause of action in tort exists for wrongful discharge in cases where...