Lysak v. Seiler Corp.

• Citation: 614 N.E.2d 991,415 Mass. 625
• Parties: , 62 Fair Empl.Prac.Cas. (BNA) 88, 64 Empl. Prac. Dec. P 43,157, 62 USLW 2006 Patricia LYSAK v. The SEILER CORPORATION.
• Decision Date: 21 June 1993
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 991

614 N.E.2d 991

415 Mass. 625, 62 Fair Empl.Prac.Cas. (BNA) 88,

64 Empl. Prac. Dec. P 43,157, 62 USLW 2006

Patricia LYSAK v. The SEILER CORPORATION.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued March 3, 1993.

Decided June 21, 1993.

Scott L. Machanic, Natick, for plaintiff.

Harry L. Manion, III (Mark H. Burak, with him), Boston, for defendant.

Before NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

The plaintiff, Patricia Lysak, states in her complaint that her employer, the defendant, The Seiler Corporation, terminated her employment because she was pregnant, and that therefore the termination violated the prohibition found in G.L. c. 151B, § 3, against discrimination in employment because of sex. See School Comm. of Braintree v. Massachusetts Comm'n Against Discrimination, 377 Mass. 424, 430, 386 N.E.2d 1251 (1979), and School Comm. of Brockton v. Massachusetts Comm'n Against Discrimination, 377 Mass. 392, 397 n. 8, 386 N.E.2d 1240 (1979), in which this court held that pregnancy is a sex-linked classification. After a jury trial, the jury found for the defendant and a judgment was entered accordingly. The plaintiff appealed and we transferred the case here on our own initiative. On appeal, the plaintiff argues that the trial judge erred by not directing a verdict in her favor pursuant to her request. She also argues that the judge erred by not giving a jury instruction that she had requested and by excluding testimony concerning her emotional distress. We affirm the judgment.

We summarize the evidence relevant to the first two issues, beginning with the plaintiff's testimony. The plaintiff testified that, after being interviewed on February 20, 1987, by William Zammer, the defendant's president, she was employed by the defendant as its marketing director beginning March 23, 1987. On April 24, 1987, she told Zammer that she was pregnant. Zammer was extremely upset by that revelation. He told her that the situation was "untenable" and that she could not continue in the position for which she had been employed. He said that he felt "personally betrayed." Zammer told her that she had lied to him about being career oriented. She denied that she had lied. On the Monday following April 24, the plaintiff proposed to Zammer that her employee status be terminated and that, instead, she be considered an independent contractor. The plaintiff and defendant then entered into such a relationship which lasted until the middle of July, 1987.

According to the plaintiff's testimony, when Zammer interviewed her for employment on February 20, 1987, Zammer and she did not discuss any plans she might have had with regard to either having or not having more children. The plaintiff was pregnant at the time of her interview with Zammer and, because of positive laboratory tests and her doctor's confirmation, she knew at that time that she was pregnant.

Zammer's testimony in substance was that, when he and the plaintiff first met on February 20, 1987, she told him, without any solicitation by him, that her husband stayed home and took care of their two children with the help of an au pair and that "she was not planning on having any more kids." Zammer's testimony was that he would have hired the plaintiff if he had known she was pregnant, but, because she told him, without being asked, that she had no intention of having more children and that was a lie, he felt betrayed. Zammer testified that on the Monday following the April 24 disclosure of her pregnancy, the plaintiff told him that she had made a mistake, that she had lied to him and wanted to make it up to him. According to his testimony, Zammer told the plaintiff that she had lied to him and he would not be able to trust her anymore. Nevertheless, he accepted her proposal that she and the defendant would enter into an independent contractor relationship because the defendant had some unfinished projects that needed prompt completion and she could complete them.

On appeal, the plaintiff's first contention is that she was denied a directed verdict to which she was entitled. It is very seldom that a verdict dependent on oral evidence can be directed in favor of the party with the burden of proof. Foley v. Polaroid Corp., 400 Mass. 82, 89, 508 N.E.2d 72 (1987). Nevertheless, the plaintiff says she was entitled to a directed verdict in this case because of the principle articulated in Kraft v. Police Comm'r of Boston, 410 Mass. 155, 571 N.E.2d 380 (1991). In that case, the plaintiff was required to complete two forms under oath in connection with his application for appointment as a police officer. The forms unlawfully required him to give information about his mental health history. He gave false information and several years later the defendant commissioner terminated his employment because he "had failed to disclose his Veteran[s'] Administration Hospital admissions on his answers to application questions." Id. at 156, 571 N.E.2d 380. The defendant commissioner argued to this court that the relevant statute, G.L. c. 151B, § 4(9A) (1988 ed.), did not bar him from inquiring into the mental health hospitalization history of an applicant for a position that would require the carrying of a gun. We held that the inquiries were prohibited by the statute, and that "[t]he commissioner had no authority to discharge [the plaintiff] for giving false answers to questions that the commissioner under law had no right to ask." Id. at 157, 571 N.E.2d 380. Based on Kraft, the plaintiff argues that, "accepting the defendant's version of the facts," that is, that Zammer discharged the plaintiff for giving unsolicited false information about whether she was pregnant, Zammer, and therefore the defendant, violated the law by discharging the plaintiff, at least constructively, on April 24, 1987. Therefore, the plaintiff argues, the discharge cannot stand.

Kraft does not help the plaintiff. A rule that bars an employer from discharging an employee because of the employee's false responses to the employer's unlawful inquiries, does not bar a discharge due to unsolicited, volunteered, false statements made by the employee. Any result other than the one reached in Kraft at best would have ignored the employer's unlawful inquiries, and at worst would have rewarded the employer for them. In either event, employers in the future would have been encouraged to violate the law. Here, however, there was no evidence, binding on the defendant, that unlawful inquiries had been made. Therefore, the evidence warranted the jury's verdict that the defendant's discharge of the plaintiff was lawful, and the plaintiff was not entitled to a directed verdict.

Next, the plaintiff contends that it was error for the trial judge not to give proposed jury instruction number 17. The first of that proposed instruction's two sentences states: "Because the Defendants [could] not legally make any employment decisions based solely on the fact that Mrs. Lysak was pregnant, and because they also could not legally inquire whether she was pregnant, you are instructed that, as a matter of law, they could not base any employment decision on any alleged misrepresentation by Mrs. Lysak concerning her pregnancy. Kraft v. Police Commissioner of Boston, 410 Mass. 155 (1991)." That instruction could not properly have been given for the same reason, stated above, that the plaintiff was not entitled to a directed verdict. Contrary to the requested instruction, the defendant could properly have based an employment decision on an unsolicited misrepresentation by the plaintiff concerning pregnancy if the jury found those to be the facts.

The second and final sentence of the proposed instruction at issue on appeal states: "Therefore, if you find that the Defendants did in fact base an employment decision in whole or in part on the alleged misrepresentation by Mrs. Lysak about the pregnancy, the Defendants must prove that the same decision would have been made absent a consideration of any information about the pregnancy. Fields v. Clark University, 817 F.2d 931 (1st Cir.1987)." The second sentence would have been an incorrect instruction, too, because, although it is less than clear, it appears to be based on the same incorrect legal premise that underlies the first sentence. Furthermore, the plaintiff did...