Dusel v. Factory Mut. Ins. Co.
| Decision Date | 14 July 2021 |
| Docket Number | Civil Action No. 19-11698-NMG |
| Parties | Thomas Dusel, Plaintiff and Defendant in Counterclaim, v. Factory Mutual Insurance Company, d/b/a FM Global, Defendant and Plaintiff in Counterclaim. |
| Court | U.S. District Court — District of Massachusetts |
This suit arises out of the termination of Thomas Dusel ("Dusel" or "plaintiff") from the employ of Factory Mutual Insurance Company, d/b/a FM Global ("FM Global" or "defendant"). Pending before the Court are cross motions for summary judgment, plaintiff's motion to dismiss Counterclaim I and numerous related motions filed by plaintiff.
FM Global is a commercial property insurer with a principal place of business in Rhode Island. Hobbs Brook Management ("HBM") is a wholly owned subsidiary of FM Global located in Waltham, Massachusetts. HBM develops, owns and operates offices and life science facilities in the greater Boston area and provides real estate management services for properties owned by FM Global.
Dusel is a resident of Boxford, Massachusetts. He was hired by FM Global in 1983 and eventually became the President and Chief Financial Officer ("CEO") of HBM. He served in that role until he was fired in September, 2018. As CEO, he had several employees report directly to him including Kevin Casey, Vice President of Leasing and Construction, and Michael Valli, Vice President of Food Services and Facilities.
In 2015, Patricia Holland, an employee who reported to Mr. Casey, filed a complaint with the Human Resources Department ("HR") at FM Global alleging that Mr. Casey had acted inappropriately and had harassed her. HR conducted an investigation and decided not to discipline Mr. Casey. Dusel testified at his deposition that he disagreed with the findings of the investigation and informed HR of his disagreement.
In February, 2018, Ms. Holland filed another complaint with HR concerning Mr. Casey's workplace behavior. Dusel claims to have reported Ms. Holland's concerns to his supervisor at theparent corporation and to the Chief Financial Officer of FM Global prior to the filing of the complaint. During the subsequent investigation, Dusel was interviewed several times and reported that he had observed Mr. Casey act aggressively toward both male and female employees.
Corporate leadership concluded that Mr. Casey had not violated workplace violence or discrimination policies but decided to transfer the entire HBM senior management team to the headquarters of FM Global in Johnston, Rhode Island. Defendant asserts the transfer was necessary to ensure a positive work environment but Dusel insists that it was an attempt to force the members of the HBM management team to quit.
In July, 2018, FM Global began an audit of the Verizon account for HBM after Mr. Lalli asked to retain his cell phone even though he was leaving the company. The audit led to the discovery that several employees, including Dusel, had multiple active cell phone numbers being charged to the company account. Further investigation revealed that personal phones belonging to Dusel's wife and daughter had been charged to the company account for years.
Dusel concedes that he never reimbursed HBM for the cell phone service used by his family members for several years but asserts that he intended to repay the company as soon as he was billed. He also states that, once FM Global shared its concerns about his family's cell phone charges, he transferred the phone lines to a personal account in order to comply with company policy.
Approximately one month later, investigators asked Dusel whether he had any family members on the HBM Verizon plan, to which he responded in the negative. He later testified that he did not inform investigators about the recent transfer of phone lines because they did not explicitly ask about it.
In August, 2018, FM Global released a report in which it concluded that Dusel had been charging the phone service of multiple family members to HBM and that he had not been truthful during the investigation. Dusel responds that he was not untruthful but rather simply confused about the phone lines.
During the investigation into HBM's Verizon Account, FM Global learned that Dusel had frequently visited an office building owned by HBM in Wakefield, Massachusetts ("the Wakefield Facility") during non-business hours. Security camerafootage captured plaintiff entering the building's cafeteria carrying an empty bag and leaving minutes later with what appeared to be a full bag. Further investigation revealed that plaintiff had entered the Wakefield Facility during non-business hours on 87 occasions over a two-year period.
Defendant asserts that plaintiff had no reason to be in that building because it was leased to a third party tenant and HBM did not occupy any part of it. Defendant concluded that Dusel had entered the building to steal food and/or other items and consequently terminated his employment in September, 2018.
In July, 2019, Dusel filed a complaint in the Massachusetts Superior Court for Middlesex County alleging age discrimination (Count I) and retaliation (Count II) in violation of M.G.L. c. 151B, § 4(1B) and (4) against FM Global. Shortly thereafter, defendant removed the action to this Court on the basis of diversity jurisdiction.
In its answer, FM Global asserted counterclaims for 1) misappropriation, 2) waste of corporate assets, 3) conversion, 4) unjust enrichment and 5) breach of fiduciary duty.
In April, 2021, both parties moved for summary judgment. FM Global seeks summary judgment with respect to each of plaintiff's claims under M.G.L. c. 151B, § 4 and Dusel seeks summary judgment as to each of the counterclaims asserted by defendant. Plaintiff also moved to dismiss the first of defendant's counterclaims for failure to state a claim and has filed several other motions seeking to strike or exclude certain evidence and facts proffered by defendant in support of its motion for summary judgment.
The Court will first address the five motions filed by plaintiff requesting that certain evidence proffered by defendant be stricken or excluded from all further proceedings.
Plaintiff moves to exclude certain pornographic and sexually explicit materials identified and produced by defendant from being utilized in any further proceedings. Dusel contends that such evidence, which was discovered after the termination of his employment by FM Global, is irrelevant to his claims and presents a significant risk of unfair prejudice. He also submits that FM Global cannot show that it constitutes after-acquired evidence. Defendant responds that the evidence ishighly relevant to all claims and counterclaims and does constitute after-acquired evidence.
City of Springfield v. Civil Service Commission, 469 Mass. 370, 378 n.14 (2014). The doctrine serves to limit an employee's recovery by cutting off front and back pay at the time that the employer discovers the evidence. Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 382 n.14 (1st Cir. 2004).
Although Massachusetts law has neither expressly adopted nor rejected the after-acquired evidence doctrine, the First Circuit Court of Appeals has permitted such evidence to be considered only to assess damages and not liability. See Heagney v. Wong, 915 F.3d 805, 820-21 (1st Cir. 2019) (citing Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir. 1997)). To rely on after-acquired evidence, an employer must establish that the wrongdoing was sufficiently severe to warrant the discharge of the employee "on those grounds alone" had the employer known of it at the time of discharge. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-63 (1995).
Here, the evidence at issue qualifies as after-acquired evidence. Dusel cannot seriously contend that FM Global would not have been justified in terminating his employment had they discovered that he had accessed and stored a large amount of pornographic and other sexually explicit materials at work. Even if FM Global did not explicitly prohibit viewing and storing pornography on company property, a reasonable employee would anticipate that such conduct could be grounds for termination. In any event, defendant's Preventing Discrimination and Harassment Policy states that displaying images of a sexual nature may constitute sexual harassment and may subject offenders to discharge.
Furthermore, the evidence is clearly relevant to plaintiff's claims because it could have the effect of limiting any potential damages suffered by Dusel for the alleged discrimination and retaliation. Although summary judgment will be entered in favor of FM Global on Dusel's complaint (addressed in detail below), the evidence is also clearly relevant to the counterclaims because defendant alleges improper expenditure of company funds due, in part, to the retention of a third party vendor purportedly as a result of the download of pornography to plaintiff's computer.
Accordingly, the Court will not foreclose defendant from offering such evidence at trial in support of its counterclaims. Plaintiff's motion to file a reply to the opposition of defendant will be allowed but, because the Court understands and has considered the arguments to be raised by Dusel based upon the content of that motion, his motion to exclude the after-acquired evidence will be denied.
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