Cort v. Bristol-Myers Co.

• Citation: 431 N.E.2d 908,385 Mass. 300
• Decision Date: 18 February 1982
• Docket Number: BRISTOL-MYERS
• Parties: , 115 L.R.R.M. (BNA) 5127 Carl CORT et al. 1 v.COMPANY et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts

Page 908

431 N.E.2d 908

385 Mass. 300, 115 L.R.R.M. (BNA) 5127

Carl CORT et al. ¹ v. BRISTOL-MYERS COMPANY et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 5, 1981.

Decided Feb. 18, 1982.

A. Theodore Welburn, Boston (John F. Bradley, II, Medford, with him), for plaintiffs.

Thomas D. Burns, Boston (Catherine A. White, Boston, with him), for defendants.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

The plaintiffs, formerly employed as salesmen by the defendant Bristol-Myers Company (Bristol-Myers), appeal from judgments for the defendants. The trial judge entered directed verdicts for the defendants on the plaintiffs' claim that the defendants had unlawfully invaded their privacy. He also entered judgments for the defendants notwithstanding the jury's verdicts for the plaintiffs on the plaintiffs' claims that Bristol-Myers had terminated their employment in bad faith. ³ We affirm the judgments.

We summarize the evidence, recognizing that, in passing on the judge's allowance of the defendants' motions, we must view the evidence in the light most favorable to the plaintiffs. D'Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 657, 378 N.E.2d 971 (1978). Prior to February, 1975, Bristol-Myers had employed the three plaintiffs as salesmen in the Boston area, selling Bristol-Myers drug products to various purchasers, such as hospitals, physicians, and drug stores. Each of the employment agreements was terminable at will. Flaherty had worked for Bristol-Myers for thirteen years; Cort for eleven years; and Schleffer for nine years. There was evidence that the plaintiffs had performed their duties well. In 1974, Bristol-Myers determined that the performance of its Boston sales division had been the worst of any of its sales divisions. The defendant Aldridge, newly designated northeast regional sales manager, instructed the defendant Pogorelc, the Boston district sales manager, to send a questionnaire to each Boston district salesman with instructions to each to answer and return the questionnaire. The plaintiffs, and other salesmen, objected to certain questions as highly personal and offensive, and also as not related in any apparent way to their job performance. It is the demand that the plaintiffs answer this questionnaire that gives rise to their claim of invasion of privacy. We shall subsequently discuss the questions to which the plaintiffs objected.

Pogorelc told each plaintiff that the questionnaire had to be filled out completely. There was evidence that answers to such a questionnaire could be used as a type of psychiatric test. There was no evidence that the answers were so used or were intended to be so used. In November or December, 1974, each plaintiff answered the questionnaire but failed to answer, or, in the case of Cort, gave frivolous answers to, certain questions. On February 19, 1975, Pogorelc gave a letter of warning to each plaintiff. Each letter referred to the recipient's poor job performance. Pogorelc testified that a decision to discharge the plaintiffs had already been made when the letters were drafted, and that the letters of warning were prepared to justify the discharges. Each plaintiff responded in writing that his letter of warning contained inaccuracies. There was evidence that sales in the Boston area, normally credited to the plaintiffs, had been adversely affected by Bristol-Myers's problems in producing one drug and by the loss of a bid on another drug which could have been sold to a group of hospitals.

In circumstances that need not be detailed, each of the plaintiffs was discharged in February or March, 1975. Each received the compensation and other payments to which he was entitled, apart, of course, from the payments to which each claims in this action he is entitled. There was no evidence of any anticipated, measurable future compensation based on past services to which the plaintiffs were entitled.

1. The judge properly allowed the defendants' motion for directed verdicts on the plaintiffs' claims for invasion of privacy under G.L. c. 214, § 1B, and we affirm the judgments entered on this motion. Whatever unlawful invasion of privacy or other claim might have arisen if the defendants had obtained some of the information sought by the questionnaires, the short answer is that the plaintiffs declined to provide any information they regarded as confidential or personal. The defendants' attempted invasion of privacy, if it was one, failed. Not even a beachhead was established. We are not concerned here with an employee who answered unreasonably intrusive personal questions under the threat of being discharged if he did not answer those questions.

2. The judge correctly allowed the defendants' motion for judgments notwithstanding the verdicts on the plaintiffs' claims that Bristol-Myers terminated their employment in bad faith. The plaintiffs rely on our opinion in Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), and argue that Bristol-Myers terminated their employment in violation of a covenant of good faith and fair dealing imposed by law in the at-will employment relationship. In the Fortune case, we recognized that an employer may not in every instance terminate without liability an employment contract terminable at will. There, we upheld the plaintiff's claim for future commissions based on past service when the employer terminated the plaintiff's employment without good cause and for the purpose of retaining the sales commissions for itself.

In an opinion that was released after this case was argued, we considered further the question of the rights of an employee at will who was discharged without good cause. Gram v. Liberty Mut. Ins. Co., --- Mass. ---, Mass.Adv.Sh. (1981) 2287, 429 N.E.2d 21. We noted that the absence of good cause to discharge an employee does not alone give rise to an enforceable claim for breach of a condition of good faith and fair dealing. Id. --- Mass. at --- - ---, at 2299-2300, 429 N.E.2d 21. We recognized that termination of at-will employment could give rise to a claim where the reason for the discharge was contrary to public policy. Id. --- Mass. at ---, at 2296 n.6, 429 N.E.2d 21. The employer's predatory motivation in the Fortune case can be classified as a reason contrary to public policy. In the Gram case, which did not involve an improper motive for the discharge, we went beyond those cases that had allowed recovery for the discharge of an at-will employee because of a motivation which was contrary to public policy. We allowed the plaintiff, an insurance salesman, who, if not discharged, would have been entitled to renewal commissions, to recover for "reasonably ascertainable future compensation based on his past services." Id. --- Mass. ---, ---, at 2300, 2301 n.10, 429 N.E.2d 21. We concluded that, when an employee is discharged without good cause, the obligation of good faith and fair dealing imposed on an employer makes him liable for the loss of compensation that is clearly identifiable and is related to the employee's past service.

We come then to the circumstances of the case before us. The jury returned a special verdict (Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974) ), and stated that the plaintiffs' at-will employment contracts were terminated in bad faith. This finding was based on an instruction that extended the concept of bad faith well beyond the limits expressed in our holding in the Fortune case. The judge charged the jury that each plaintiff could recover for the bad faith termination of his employment contract if Bristol-Myers had no good business or other legitimate reason for the termination and if Bristol-Myers was motivated solely or primarily by "bad faith, malice, ill-will, spite, personal hostility, or retaliation." ⁴ The question for our decision is whether the evidence warranted a finding for the plaintiffs on their claims of a bad faith termination of their at-will employment. This is not a case in which the employer, as in the Fortune case, discharged an employee to deprive him of commissions already earned but not yet payable. Nor is this a case, like the Gram case, in which the employee lost reasonably ascertainable future compensation based on past services. There was no evidence that the plaintiffs' future earnings would be based in any respect on past sales of Bristol-Myers products. We have rejected the general concept of job security as a basis for allowing recovery for termination without cause of an at-will employee. Gram v. Liberty Mut. Ins. Co., supra --- Mass. at --- - --- at 2299-2300, 429 N.E.2d 21.

The plaintiffs argue that Bristol-Myers gave pretexts as reasons for terminating their employment. They correctly point out that the jury would have been warranted in finding that Bristol-Myers discharged them, not because of poor work performance, as Bristol-Myers asserted, but because they refused to answer the questionnaire in full. We consider first the claim that because the reason for the discharge was merely a pretext, the plaintiffs are entitled to recover for their discharge without cause. Next, we consider whether the plaintiffs should be entitled to recover if, as the jury could have found, Bristol-Myers discharged them for failure to answer the questionnaire. ⁵

We decline to impose liability on an employer simply because it gave a false reason or a pretext for the discharge of an employee at will. Such an employer has no duty to give any reason at the time of discharging an employee at will. Where no reason need be given, we impose no liability on an employer for concealing the real reason for an employee's discharge or for giving a reason that is factually unsupportable. As a kindness to an employee in his seeking future employment, an employer may well not state its reasons fully and accurately. Here, of course, Bristol-Myers's motivation may not have been so noble. We...