Flynn v. City of Boston

• Decision Date: 06 October 2003
• Docket Number: No. 01-P-542.,01-P-542.
• Citation: 59 Mass. App. Ct. 490,796 NE 2d 881
• Court: Appeals Court of Massachusetts
• Parties: KEVIN N. FLYNN & another v. CITY OF BOSTON & another.

59 Mass. App. Ct. 490

796 NE 2d 881

KEVIN N. FLYNN & another¹ v. CITY OF BOSTON & another.²

No. 01-P-542.

Appeals Court of Massachusetts, Suffolk.

November 22, 2002.

October 6, 2003.

Present: GELINAS, COWIN, & MCHUGH, JJ.

Mark S. Bourbeau for the plaintiffs.

Eve A. Piemonte Stacey, Assistant Corporation Counsel, for the defendants.

GELINAS, J.

Kevin Flynn and Randy Wolfson brought this action against the city of Boston (city) and Evelyn Riesenberg for wrongful termination, in violation of an alleged public policy established by G. L. c. 55, § 16. A judge in the Superior Court granted summary judgment for the defendants, and the plaintiffs appeal. We affirm.

We summarize the facts taken from the summary judgment materials, considered in the light most favorable to the plaintiffs, who are the nonmoving parties. Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 113 (1990). Both Flynn and Wolfson were senior, at-will employees of the central office of Boston Community Centers (BCC), a city of Boston agency, with some 400 employees, responsible for delivering community services, such as child care, youth work, and senior citizen programs, and administering grants both from city funds and from other sources. Flynn served as associate director of administration and finance, and Wolfson was one of two associate directors of its field operations. Both reported directly to Riesenberg, the executive director of BCC, appointed by the newly elected mayor of Boston in January of 1994. On July 26, 1994, Riesenberg informed Flynn and Wolfson that their employment with BCC was terminated. As a reason, she told them that they, along with two other associate directors, were being terminated as part of a restructuring of BCC's management.³ Flynn and Wolfson claim that their employment was terminated not because of a restructuring of management, but because of political considerations and criticism of Riesenberg's management decisions. Wolfson claims that Riesenberg pressured her to tell which of the mayoral candidates the BCC staff had supported in the recent mayoralty election. Wolfson told Riesenberg that she was uncomfortable with the question. Flynn claimed that Riesenberg asked him to tell her how to fire all of the staff and replace them with Riesenberg's or the mayor's people. As evidence of the politicized nature of their being fired, both Wolfson and Flynn point to the fact that Riesenberg hired Charles Clabaugh, a precinct captain for the prevailing candidate during the campaign, as her special assistant, without posting the position or asking for a résumé or employment application. Wolfson and Flynn regarded this as a political appointment, and told Riesenberg of their opposition to the appointment.

Wolfson and Flynn then claimed that Riesenberg and Clabaugh pressured them, and other BCC staff, to hire a person because of his political connections, whom they believed was unqualified, for an important street worker position. When this employee proved incapable of performing the job, Riesenberg ordered a second person to be hired, over Flynn's and Wolfson's stated objection that employing a second person would violate the terms of the Federal grant that funded the position. Flynn and Wolfson presented similar evidence regarding the hiring, for political reasons, of a nonqualified community center athletic director. Flynn and Wolfson objected here as well, and Riesenberg overruled them. Flynn also claims that Riesenberg ordered him to process a pay raise for a union employee in violation of the union contract with the city. Flynn protested the pay raise. Finally, Wolfson and Flynn alleged that Riesenberg failed to properly handle claims of sexual harassment, and that when they, Flynn and Wolfson, objected, they were removed from any involvement with the claims.

After termination, Flynn and Wolfson brought suit in the United States District Court, under 42 U.S.C. § 1983, for wrongful termination in violation of their rights to free speech and association under the First Amendment to the United States Constitution. The Federal suit also contained claims under the Massachusetts civil rights act, G. L. c. 12, § 11I, and wrongful termination in violation of the Massachusetts campaign finance law, G. L. c. 55, § 16. The Federal District Court granted summary judgment against the plaintiffs on all claims and dismissed their complaint. On appeal to the First Circuit Court of Appeals, summary judgment was upheld as to the Federal claims, but vacated with respect to the State claims, with instructions to the District Court to dismiss them without prejudice, so that they might be re-filed in State court. See Flynn v. Boston, 140 F.3d 42, 48 (1st Cir.), cert. denied, 525 U.S. 961 (1998). This suit followed.

We follow the well-established rules governing summary judgment motions. Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226, 232 (1997).

It is uncontroverted that Flynn and Wolfson were employees at will. As such, their employment was subject to being "terminated at any time for any reason or for no reason at all." Upton v. JWP Businessland, 425 Mass. 756, 757 (1997) (citations omitted). See GTE Products Corp. v. Stewart, 421 Mass. 22, 26 (1995), citing Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). The rule is not absolute. Liability may be imposed upon an employer if the employer terminates an at-will employee for a reason that violates clearly established public policy. Upton, supra at 757. See Flesner v. Technical Communications Corp., 410 Mass. 805, 810 (1991). In order for Flynn and Wolfson to prevail, therefore, they must establish that there was a question of fact whether their termination as employees at will was in violation of some well-established public policy.

Our courts have consistently interpreted any public policy exception to the rule in a very narrow sense. Smith-Pfeffer v. Superintendent of the Water E. Fernald State Sch., 404 Mass. 145, 150 (1989) (to do otherwise would convert the general rule "into a rule that requires just cause to terminate an at-will employee"). See King v. Driscoll, 418 Mass. 576, 582 (1994). We have found public policy exceptions making redress available to employees at will who have been terminated in a variety of instances: for asserting a legal right, for doing what the law requires, or for refusing to disobey the law. See Upton, supra at 757, and cases cited therein.

The existence of a clearly defined public policy is a question of law for the court. Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472 (1992). It is for the judge, not the jury, to "determine whether, on the evidence, there is a basis for finding that a well-defined, important public policy has been violated." Mello v. Stop & Shop Cos., 402 Mass. 555, 561 n.7 (1988). See Smith-Pfeffer, supra at 151; Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 244-245 (1994). If the court finds that there is a well-defined, important public policy, then "the judge must advise the jury what that public policy is and that, if they find that the employer discharged the employee for particular conduct that is protected by that public policy, they would be warranted in returning a verdict for the employee." Mello, supra at 561 n.7.

General Laws c. 55, § 16, as amended by St. 1975, c. 151, § 16, states:

"No person in

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