Cullen v. EH Friedrich Co., Inc., Civ. A. No. 94-30016 MAP.

• Decision Date: 15 November 1995
• Docket Number: Civ. A. No. 94-30016 MAP.
• Citation: 910 F. Supp. 815
• Parties: Michael CULLEN and Margaret Cullen, Plaintiffs, v. E.H. FRIEDRICH CO., INC. and Robert Potorski, Defendants.
• Court: U.S. District Court — District of Massachusetts

910 F. Supp. 815

Michael CULLEN and Margaret Cullen, Plaintiffs, v. E.H. FRIEDRICH CO., INC. and Robert Potorski, Defendants.

Civ. A. No. 94-30016 MAP.

United States District Court, D. Massachusetts.

November 15, 1995.

Sean P. O'Leary, Robert G. O'Leary, Springfield, MA, Michael O. Shea, Raipher D. Pellegrino, Pellegrino & O'Connell, P.C., Springfield, MA, for Michael Cullen.

Sean P. O'Leary, Robert G. O'Leary, Springfield, MA, for Margaret Cullen.

Gordon D. Quinn, Sullivan & Hayes, Springfield, MA, Anthony Hazen, Law Office of Robert F. O'Day, North Quincy, MA, for

E.H. Friedrich Company, Inc., Robert Potorski.

ORDER

PONSOR, District Judge.

This case is before the Court on the Magistrate Judge's Report and Recommendation regarding the defendants' Motion for Summary Judgment.

No objection to the Recommendation has been filed. Moreover, this court has reviewed the Report and Recommendation de novo and found it well supported. For these reasons, it is hereby ordered that the Recommendation be adopted and that the defendants' Motion for Summary Judgment be allowed.

It is so ordered.

REPORT AND RECOMMENDATION OF COURT ON DEFENDANTS' JOINT MOTION FOR SUMMARY JUDGMENT

(Docket No. 27)

NEIMAN, United States Magistrate Judge.

I. INTRODUCTION

This action arises out of Plaintiff Michael Cullen's termination from the employ of Defendant E.H. Friedrich Co., Inc. by its president, Defendant Robert Potorski. Plaintiff Margaret Cullen, Michael's wife, asserts a claim for loss of consortium. Pursuant to Federal Rule of Civil Procedure 56, Defendants have moved for summary judgment on all of Plaintiffs' claims (Counts One through Eight). Defendants' motion has been referred to the Court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts. 26 U.S.C. § 636(b)(1)(B). On October 6, 1995, Plaintiffs voluntarily dismissed Mr. Cullen's claims of negligent hire, supervision and retention of an employee (Count One), negligent infliction of emotional distress (Count Two), negligent failure to provide a safe workplace (Count Three), and breach of the collective bargaining agreement's just cause provision (Count Seven). See Stipulation of Dismissal Under F.R.C.P. 41(a)(1) of Counts I, II, III, and VII of the Plaintiffs' Complaint (Docket No. 46). For the reasons set forth below, the Court recommends allowing the motion for summary judgment with regard to all of Plaintiffs' remaining claims: wrongful discharge in violation of public policy (Count Four), defamation (Count Five), promissory estoppel (Count Six) and loss of consortium (Count Eight).

II. FACTUAL BACKGROUND

Defendant E.H. Friedrich Co., Inc. ("Friedrich") manufactures metal doors and frames and has its principal place of business in Holyoke, Massachusetts. Friedrich hired Plaintiff Michael Cullen ("Cullen") as a welder on September 8, 1986 and fired him October 15, 1992 for an alleged altercation with another welder, Edward Smith ("Smith"), on September 24, 1992. Smith, who was also fired for his involvement in the fight, is not a party to this action. Friedrich considers fighting a dischargeable offense and its President, Defendant Robert Potorski ("Potorski"), had suspended and fired two employees for fighting on company premises prior to Cullen's termination.

Cullen, throughout his employment at Friedrich, was covered by a collective bargaining agreement ("CBA") between the company and Carpenters Local Union No. 108. The CBA provides that an employee who receives at least two written warnings within a six month period is subject to discharge. It allows Friedrich to discipline or discharge an employee for just cause "without the necessity of first giving a warning," and gives the company the exclusive right to select, transfer, discipline, discharge, hire and assign employees, "to maintain discipline and order," and to "enforce rules for employee conduct." The CBA also provides that an employee challenging any disciplinary decision must file a grievance with the union shop steward within five working days and that a challenged discharge decision shall be immediately referred to a "Grievance Committee" where union representatives, the employee and management may discuss the matter. Finally, the CBA makes the union "the sole and exclusive judge of whether or not the grievance proceeds to arbitration" after the conclusion of the Grievance Committee meeting. See Defendants' Joint Motion for Summary Judgment ("Defendants' Motion"), Exhibit 3.

Sometime during the morning of Thursday, September 24, 1992, Cullen claims that Smith antagonized him by denigrating his wife, Plaintiff Margaret Cullen, and by making obscene physical gestures. There are several versions as to how Cullen responded to Smith's alleged provocation. On the one hand, are employees Bill Chagnon, who says he saw Cullen pushing Smith and throwing a 36" metal gauge or pipe at Smith on company premises, Hal Glanville, who allegedly observed Cullen strike Smith, and Peter Gallo, who claims to have seen Cullen throw a punch and that Smith then emerged from the break area holding his mouth and complaining that he "was hit by Mike Cullen." See Defendant's Motion, Exhibits 7-9. On the other hand, are Cullen, who denies punching or throwing anything at Smith, and employee Dan Majerowski, who stated: "Mike Cullen threw a metal gauge in the air but not in Eddie's Smith's direction as it was obvious he really did not intend to throw it at Eddie. He threw it because he was mad and wanted to show him he was angry and wanted Ed Smith to leave him alone." See Plaintiffs' Opposition to Defendants' Joint Motion for Summary Judgment ("Plaintiffs' Opposition"), at 2. In any event, there is no dispute that around 12:25 p.m., Smith struck Cullen several times on his skull with a metal pipe on a sidewalk immediately outside Friedrich's building, that Cullen was injured and that Smith was fired later that day.

On Saturday, September 26, 1992, Potorski, who had been away from the company since 11:00 a.m. on the day of the alleged altercation, first learned of the incidents and decided to interrupt his vacation in order to conduct an investigation. On the morning of September 28, 1992, Potorski asked Cullen to submit a written statement concerning the alleged incidents. Cullen refused, claiming that his attorney told him not to provide any written statements. Sometime during that same morning, Friedrich supervisors, Larry Welch and David Brookbank, issued Cullen a written warning for his "Gross Misconduct" the previous Thursday. See Plaintiff's Opposition, Exhibit E. Subsequently, during the early part of that week, Potorski also spoke with Chagnon, who told him that he saw Cullen push and throw a metal gauge at Smith, and Glanville and Gallo, who told him that they either saw or heard Cullen punch Smith.

Cullen swore out a criminal complaint against Smith immediately after the alleged altercation and on Friday, September 25, 1992, Smith was arraigned in Holyoke District Court on charges of assault and battery with a dangerous weapon.¹ According to Cullen, Potorski approached him on Thursday, October 1, 1992, and asked what he was going to tell the District Attorney with regard to the assault and battery prosecution. Cullen says that he told Potorski that he would pursue the charge and would tell the District Attorney that Smith used and distributed illegal drugs on Friedrich's premises. Cullen had allegedly witnessed Smith distribute and/or share marijuana and cocaine on company premises and complained to Potorski about this. Potorski admits to having known about Smith's drug usage, but denies that Cullen told him that he was going to the D.A. with the drug information. Production manager Larry Welch, when asked whether he had been told that Smith was using drugs, replied, "I'd heard it. I've heard it about a lot of people in there. It's only hearsay." Plaintiff's Opposition, Exhibit F.

On October 5, 1992, Potorski, in the presence of the union steward, suspended Cullen and told Cullen to call him on October 15, 1992 concerning his status as there was the possibility of termination. Cullen claims that Potorski told him that his suspension did not mean that he was being fired. On October 15, 1992, Potorski spoke with and wrote to Cullen, explaining that he was being terminated for punching Smith. Copies of the otherwise confidential letter were sent to Mark Spirito, the union steward, and David Bergeron, another union official, but no one else. Cullen subsequently hand-delivered a note to Potorski's secretary and, on October 19, 1992, Potorski forwarded Cullen's note, which he treated as a grievance, to Spirito, the union steward.

On December 3, 1992, a meeting was held to discuss Cullen's grievance. Present at the meeting were Cullen, Potorski, Spirito and Bergeron. At the meeting, Potorski stated that Cullen had been fired for fighting and that he had statements from three employees who had seen Cullen hit Smith. Cullen does not dispute that, at the meeting, Potorski stated that he had statements from three men who had "seen me hit Mr. Smith." See Defendant's Statement of Material Facts, Exhibit 11b (Cullen deposition), at 95. (Prior to the meeting, Cullen knew that Chagnon, Glanville and Gallo, who had also spoken with union officials, alleged that he had initiated a fight with Smith. See id., at 85, 97.) The union asked Friedreich to provide it with "written" statements from these employees within several weeks. After the meeting, Potorski sent Cullen a letter, dated December 16, 1992, stating that the discharge was justified. Copies of this letter were also sent to Spirito and Bergeron.

Friedrich subsequently provided the union with written statements from Chagnon, Glanville and Gallo, although Cullen claims, without explanation, that they were coerced into giving their statements. After receiving...