Kelleher v. Lowell Gen. Hosp.

• Decision Date: 15 July 2020
• Docket Number: No. 19-P-392,19-P-392
• Citation: 152 N.E.3d 126,98 Mass.App.Ct. 49
• Court: Appeals Court of Massachusetts
• Parties: Pamela KELLEHER v. LOWELL GENERAL HOSPITAL & others.

98 Mass.App.Ct. 49

152 N.E.3d 126

Pamela KELLEHER

v.LOWELL GENERAL HOSPITAL & others.¹

No. 19-P-392

Appeals Court of Massachusetts, Middlesex..

Argued January 9, 2020

Decided July 15, 2020

Helen G. Litsas, Boston, for the plaintiff.

Jessica S. Jewell, Boston, for the defendants.

Present: Maldonado, Singh, & Englander, JJ.

ENGLANDER, J.

The plaintiff, Pamela Kelleher, appeals from a judgment dismissing her employment-based claims for failure to state a claim. Kelleher was an at-will employee at defendant Lowell General Hospital (hospital) until she resigned from her position as a cardiac sonographer in 2016. The gist of her claims is that her supervisor at the hospital was intentionally abusive towards her, and thereby created "intolerable working conditions" that caused her severe emotional distress, and ultimately, compelled her to resign. Kelleher brought claims for, among other things, defamation, intentional interference with advantageous business relations, and "constructive discharge." The motion judge granted the defendants' motion under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). We affirm.

Background. The facts are taken from the well-pleaded allegations of the amended complaint, and for present purposes must be accepted as true. See Calixto v. Coughlin, 481 Mass. 157, 158, 113 N.E.3d 329 (2018). Kelleher had worked at the hospital for several years. Her immediate supervisor was the lead sonographer, defendant Kathy Mireault. Mireault's supervising physician was defendant Dr. Richard Birkhead. Kelleher alleged that "[f]or numerous months prior to her termination" in April 2016, Mireault inflicted intolerable working conditions on her, which conditions were "ratified" by Birkhead. In particular, Kelleher alleges that Mireault targeted her with "daily, unprovoked angry and humiliating outbursts," which became an "almost daily occurrence." Mireault's behavior led to Kelleher's physical and emotional distress, a medical leave, and ultimately, to Kelleher's resignation, which Kelleher alleges constituted a constructive discharge.

The above allegations were made generally, and in conclusory fashion. In addition, the complaint refers to three more specific occurrences:

(1) In October of 2015, Mireault came into the office on her day off "to berate" Kelleher, in the presence of other employees and patients, regarding a scheduling issue. Mireault's statements cast Kelleher's work "in a negative light." Thereafter, Mireault brought Kelleher into Birkhead's office and continued to impugn Kelleher's work. Mireault threw her hands in the air and said, "I'm done with her."

(2) In December of 2015, Mireault "exploded" at Kelleher about another scheduling issue, in the presence of coworkers and patients.

(3) In March of 2016, Mireault requested Kelleher's assistance with respect to taking a patient. When Kelleher responded that she could not assist because she had other work to complete, Mireault shouted at Kelleher in front of patients and coworkers, "You never help!"

As to defendant Birkhead, the complaint alleges that he took no steps to remedy Mireault's treatment of Kelleher, despite Kelleher's repeated requests for assistance.

The complaint contains five counts: (1) "constructive discharge," (2) defamation, (3) intentional interference with advantageous business relations, (4) intentional infliction of emotional distress, and (5) breach of the implied covenant of good faith and fair dealing. After a hearing, the motion judge entered a thoughtful decision that dismissed each count as legally untenable on the facts alleged.

Discussion. 1. Standard of review. We review an order on a motion to dismiss de novo, accepting the allegations as true and drawing all reasonable inferences in the plaintiff's favor. Edwards v. Commonwealth, 477 Mass. 254, 260, 76 N.E.3d 248 (2017). To survive a motion to dismiss, the factual allegations must "plausibly suggest[ ]," and not merely be "consistent with," an "entitlement to relief." Id., quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008). Allegations plausibly suggest a right to relief where they allow the judge reasonably to infer that the defendant is liable for the alleged misconduct, and raise a reasonable expectation that discovery will reveal evidence of same. Trychon v. Massachusetts Bay Transp. Auth., 90 Mass. App. Ct. 250, 251, 59 N.E.3d 404 (2016), and cases cited. While "detailed factual allegations" are not necessary, to be sufficient a complaint must nevertheless provide "more than labels and conclusions." Iannacchino, supra, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Importantly for present purposes, we need not accept as true "legal conclusions cast in the form of factual allegations" (quotation omitted). Edwards, supra. The plausibility analysis is "context-specific," and guided by "[our] judicial experience and common sense" (citation omitted). Trychon, supra.

2. Constructive discharge. Kelleher's claim for constructive discharge fails because there is no such independent cause of action under Massachusetts law. An employee does not have a right not to be "constructively" discharged. Rather, the employee must first have a right not to be discharged, which may arise, for example, from some established common-law right, such as a contractual right, see Fortune v. National Cash Register Co., 373 Mass. 96, 101, 364 N.E.2d 1251 (1977), from "a well-defined public policy," Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472, 589 N.E.2d 1241 (1992), or from statute -- for example, a right under G. L. c. 151B to be free from employment discrimination. Constructive discharge, on the other hand, is merely a doctrine used to prove an element of a wrongful discharge claim -- that is, that the employee was in fact discharged, rather than left voluntarily. Such is the context in which the doctrine has been applied in the Massachusetts courts. See, e.g., GTE Prods. Corp. v. Stewart, 421 Mass. 22, 33-34, 653 N.E.2d 161 (1995) (wrongful discharge); Rubin v. Household Commercial Fin. Servs., Inc., 51 Mass. App. Ct. 432, 438-440, 746 N.E.2d 1018 (2001) (breach of contract and breach of fiduciary duty). Compare Simpson v. Federal Mine Safety & Health Review Comm'n, 842 F.2d 453, 461 (D.C. Cir. 1988) (Ginsburg, J.) (under Federal employment statutes, "[c]onstructive discharge doctrines simply extend liability to employers who indirectly effect a discharge that would have been forbidden by statute if done directly"); Joliet v. Pitoniak, 475 Mich. 30, 41, 715 N.W.2d 60 (2006) ("constructive discharge is not a cause of action").

Here Kelleher had no contractual right to continued employment at the hospital -- she was an employee at will. In Massachusetts an at-will employee can be terminated at any time, "for almost any reason or for no reason at all" (quotation omitted). Wright, 412 Mass. at 472, 589 N.E.2d 1241. Since Kelleher could be terminated at any time, for almost any reason or no reason, she cannot advance a claim that working conditions of the type alleged here rendered it such that she could no longer continue. The constructive discharge claim was properly dismissed.

3. Defamation. Kelleher's defamation claim is based upon two separate statements by Mireault: (1) "I'm done with her," stated in Birkhead's office, and (2) "You never help," stated in the general office space, with coworkers and patients present.

To establish a claim for defamation, Kelleher needs to show that (1) Mireault made a false statement to a third party, (2) of and concerning Kelleher, that (3) is capable of damaging Kelleher's reputation in the community, and (4) either caused Kelleher economic loss or is actionable without proof of economic loss. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630, 782 N.E.2d 508 (2003) ; Van Liew v. Eliopoulos, 92 Mass. App. Ct. 114, 120, 84 N.E.3d 898 (2017). Here neither statement is actionable in defamation, as a matter of law.²

A statement that is claimed to be defamatory must reasonably be understood either as a statement of actual fact, or one that implies defamatory facts.³ See Lyons v. Globe Newspaper Co., 415 Mass. 258, 262-267, 612 N.E.2d 1158 (1993). Statements that are merely "rhetorical hyperbole," or which express a "subjective view," are not statements of actual fact. See Scholz v. Delp, 473 Mass. 242, 251, 41 N.E.3d 38 (2015) ; Fleming v. Benzaquin, 390 Mass. 175, 185, 454 N.E.2d 95 (1983) ; Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 25, 793 N.E.2d 1256 (2003). Whether a statement is of actual fact must be evaluated in light of what an objectively reasonable person would have understood, hearing the statement in the context in which it is made, including the make-up of the audience. See Fleming, supra at 189, 454 N.E.2d 95 ; Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 309, 435 N.E.2d 1021 (1982), cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982) ("the court must consider all of the circumstances surrounding the statement, including ... the audience").

As to the first of the two statements alleged in the complaint, Mireault's exclamation "[y]ou never help" is not actionable. The statement was made in frustration, only moments after Mireault had asked Kelleher for help. A reasonable person observing the exchange would not have understood Mireault to be asserting a fact -- that is, that Kelleher "never" helped. Indeed, Mireault had just asked for Kelleher's help, and "experience and common sense" tell us that Mireault would not have done so unless she reasonably expected that help might be forthcoming (citation omitted). Trychon, 90 Mass. App. Ct. at 251, 59 N.E.3d 404. Rather, a reasonable observer would have understood the statement as rhetorical hyperbole -- a nonfactual figure of speech borne of frustration that is sometimes heard around the office and indeed, around the home. Accord Fleming, 390 Mass. at 183, 454...