Gasior v. Massachusetts General Hosp.

• Decision Date: 11 May 2006
• Parties: Richard GASIOR v. MASSACHUSETTS GENERAL HOSPITAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1133

846 N.E.2d 1133

446 Mass. 645

Richard GASIOR v. MASSACHUSETTS GENERAL HOSPITAL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 3, 2006.

Decided May 11, 2006.

Shannon Liss-Riordan, Boston, for the plaintiff.

Frank E. Reardon, Boston (John P. Puleo with him) for the defendant.

The following submitted briefs for amici curiae:

Jonathan J. Margolis & Robert S. Mantell, Boston, for Massachusetts Employment Lawyers Association.

Beverly I. Ward, Boston, for Massachusetts Commission Against Discrimination.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

MARSHALL, C.J.

We consider in this case whether an employee's claim of unlawful employment termination in violation of G.L. c. 151B, § 4(16), survives the employee's death and, if so, what damages may be awarded. The employee, Richard Gasior, filed a complaint against his employer, Massachusetts General Hospital (MGH), claiming it had violated G.L. c. 151B, § 4, and the Massachusetts Equal Rights Act (MERA), G.L. c. 93, § 103, by refusing to permit him to return to work as a plumber after an authorized medical leave of absence. While the case was pending, Gasior died for reasons unrelated to his authorized medical leave.¹ MGH thereupon moved to dismiss the action on the grounds that Gasior's discrimination claim did not survive his death, and that his MERA claim was barred by the exclusivity provision of G.L. c. 151B. A judge in the Superior Court denied MGH's motion to dismiss the discrimination claim insofar as Gasior claimed compensatory damages, but allowed its motion as to that claim insofar as he claimed punitive damages. She also allowed MGH's motion as to Gasior's MERA claim.

On a joint motion of the parties, the judge then reserved and reported to the Appeals Court pursuant to Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996), so much of her ruling as concerned Gasior's discrimination claim: "Does an employment discrimination claim under G.L. c. 151B, § 4, survive the plaintiff's death pursuant to G.L. c. 228, § 1, insofar as the plaintiff claims compensatory but not punitive damages?"² We granted Gasior's application for direct appellate review.

We address the narrow question presented by the circumstances of this case, not the broader question reported by the judge. See McStowe v. Bornstein, 377 Mass. 804, 805 n. 2, 388 N.E.2d 674 (1979) ("Reported questions need not be answered... except to the extent that it is necessary to do so in resolving the basic issue"). We conclude that a claim that an employee was wrongfully dismissed in violation of G.L. c. 151B, § 4(16), survives the employee's death. We therefore affirm so much of the order as denied MGH's motion to dismiss. We further conclude that all of the remedies available to the employee under G.L. c. 151B survive his death. We therefore vacate so much of the judge's decision that allowed MGH's motion to dismiss as to punitive damages.³

1. Background. The issue for our consideration is the correctness of the interlocutory order entered in the Superior Court on MGH's motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974). See McStowe v. Bornstein, supra. Although MGH challenges some of the factual allegations in Gasior's complaint, in particular the circumstances of Gasior's efforts to return to work as a plumber, we review the question under the settled standard of review for a motion to dismiss pursuant to rule 12(b)(6):

"We take as true `"the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor . . ." Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). In evaluating the allowance of a motion to dismiss, we are guided by the principle that a complaint is sufficient "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nader v. Citron, 372 Mass. 96, 98 (1977) ....'"

Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45, 809 N.E.2d 1017 (2004). Under the "generous principles" that govern our review, Connerty v. Metropolitan Dist. Comm'n, 398 Mass. 140, 143, 495 N.E.2d 840 (1986), we summarize the facts alleged in the unverified complaint.

Gasior worked as a plumber for MGH for nineteen years, beginning in 1981. In February, 2000, he began an authorized medical leave of absence because of a heart condition. A physician approved Gasior's return to work in August, 2000. Gasior claims that from that time forward he was able to perform the essential functions of his job as a plumber "with or without reasonable accommodation," and that despite repeated attempts to return to his job as a plumber, MGH refused to permit him to return to work at that time, notwithstanding that MGH had posted several openings for plumbers.

In June, 2001, after exhausting his administrative remedies by filing a claim with the Massachusetts Commission Against Discrimination, Gasior filed a complaint in the Superior Court. He requested relief consisting of reinstatement, back pay, front pay, lost benefits, emotional distress damages, punitive damages, and attorney's fees and costs, and any other relief to which he might be entitled. At some point while his action was pending, Gasior became terminally ill. He filed motions to advance his trial date, but died in September, 2003, one week before the trial was scheduled to begin.

2. Survival of the discrimination claim. We first discuss the survival of Gasior's G.L. c. 151B claim under the Massachusetts survival statute, G.L. c. 228, § 1.⁴ We then turn to the issue of the relief that may be available.

The Massachusetts survival statute, G.L. c. 228, § 1, provides in pertinent part that, "[i]n addition to the actions which survive by the common law," certain enumerated claims, including certain specifically identified tort claims, survive the death of a party. A claim of employment discrimination in violation of G.L. c. 151B, § 4(16),⁵ is not a claim among those specifically enumerated in the statute. To remain viable after Gasior's death, therefore, the claim must fall within one of the enumerated tort claims or be deemed an action that survives "by the common law." G.L. c. 228, § 1.

Generally speaking, at common law contract claims, including those based on an implied contract, survive the death of a party. See Rendek v. Sheriff of Bristol County, 440 Mass. 1017, 797 N.E.2d 891 (2003); McStowe v. Bornstein, supra at 806-807, 388 N.E.2d 674, and cases cited. We have not previously decided whether a claim of discrimination pursuant to G.L. c. 151B survives a plaintiff's death.⁶ In other circumstances, in assessing whether a claim survives a party's death, we have observed that "[w]hat constitutes a contract claim has not been rigidly defined." Rendek v. Sheriff of Bristol County, supra at 1017, 797 N.E.2d 891. We have also recognized the close relationship between some employment discrimination claims and actions for what we have characterized as breaches of contract. See id. at 1017-1018, 797 N.E.2d 891 (claim for unlawful termination in violation of G.L. c. 35, § 51, is "contractual, or quasi contractual," and therefore survives plaintiff's death, because statute "control[s] a critical term of the employment — permissible grounds for termination"). See also Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 582, 808 N.E.2d 205 (2004) (Sosman, J., concurring) ("some discrimination claims are `rooted' in theories of contract [in essence reading the prohibitions of G.L. c. 151B into the parties' employment contract and then allowing suit for `breach' of that contract]").

In this case, we are presented with a specific question of alleged discrimination: does the claim of a plaintiff who has an established employment relationship with the defendant and who alleges that he was wrongfully dismissed or not reinstated by his employer, survive the plaintiff's death? The answer turns in part on the nature of the employment relationship. Gasior claimed that he had a "good work record" and received "positive performance evaluations" while working at MGH, but his complaint is otherwise silent as to any other aspect of his employment relationship with MGH. Gasior has not, for example, alleged the existence of an employment contract for a definite period, or that he was a member of a union protected by any collective bargaining agreement that might govern his termination. We therefore assume, without deciding, that he was an at-will employee at MGH. See Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9, 525 N.E.2d 411 (1988). See also S.C. Moriearty, J.F. Adkins, L.F. Rubin, & D.J. Jackson, Employment Law § 2.3, at 94 (2d ed. 2003) ("Presumptively the employment relationship is at-will, meaning that either party may terminate the relationship at any time, with or without cause").

Although we have not characterized every at-will employment relationship as itself constituting a form of contract — such a relationship could, for example, be viewed as a contract of successive performances of indefinite duration⁷ — we have had no difficulty in concluding that an at-will employment relationship contains implied terms, the breach of which is actionable. See, e.g., DeRose v. Putnam Mgt. Co., 398 Mass. 205, 210, 496 N.E.2d 428 (1986) (permitting at-will employee to recover damages on a breach of contract theory for discharge in violation of public policy); Fortune v. National Cash Register Co., 373 Mass. 96, 101, 364 N.E.2d 1251 (1977) (written contract for at-will employment "contains an implied covenant of good faith and fair dealing, and a termination not made in good faith constitutes a breach of the contract"). See also Jackson v. Action for Boston Community Dev., Inc., supra at 9, 525 N.E.2d 411 (recognizing that prohibition against discrimination in employment contained in G.L. c. 151B, § 4, restricts...