Mello v. Stop & Shop Cos.

• Decision Date: 13 June 1998
• Docket Number: No. BR-4517,BR-4517
• Parties: GREGORY J. MELLO v. STOP & SHOP COMPANIES, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

402 Mass. 555,

524 N.E.2d 105,

3 I.E.R. Cas. (BNA) 1105

GREGORY J. MELLO v. STOP & SHOP COMPANIES, INC.

No. BR-4517

Supreme Judicial Court of Massachusetts, Bristol

February 3, 1988

June 13, 1988

Richard L. Neumeier Jacqueline Y. Parker & John Silvia, Jr., with him) for the plaintiff.

Anil Madan Steven R. Sortevik with him) for the defendant.

Lynn A. Girton, Marjorie Heins & Terrence J. McLarney, for Floyd Nelson & others, amici curiae, submitted a brief.

Hennessey, C.J., Wilkins, Liacos, Abrams, & O'Connor, JJ.

OPINION

We consider first on direct appellate review whether the evidence warranted a finding that the defendant, Stop & Shop, discharged the plaintiff Mello, an employee at will, in violation of a principle of public policy for which the law should impose liability for wrongful discharge. We conclude that the evidence did not warrant a finding that Mello was discharged in violation of such a public policy principle. Consequently, the trial judge, who has reported the propriety of his ruling for appellate consideration, erroneously denied Stop & Shop's motion for judgment notwithstanding the verdict on Mello's claim of wrongful discharge.

We also consider Mello's claim that Stop & Shop intentionally caused Mello emotional distress by its treatment of him following his discharge. We conclude that the judge, who has also reported the correctness of his ruling on this issue, committed no reversible error in ordering a directed verdict for Stop & Shop on Mello's count alleging the intentional infliction of emotional distress.

1. Opinions around the country in recent years often have favored permitting at-will employees to recover for terminations made in violation of particular public policies. See DeRose v. Putnam Management Co., 398 Mass. 205, 209, 496 N.E.2d 428 (1986), and Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 n.6, 429 N.E.2d 21 (1981), where cases are collected. We have recognized that an employer is liable to a former employee at will whom it discharged because the employee failed to follow the employer's instruction to testify falsely at a trial. DeRose v. Putnam Management Co., supra at 210. More recently, we have said that, where an employee at will alleges that she was discharged because she enforced safety laws which were her responsibility to enforce, she states a claim for discharge in violation of public policy. Hobson v. McLean Hosp. Corp., ante 413, 416 (1988). 1

Our cases have not attempted in general terms to identify those principles of public policy that are sufficiently important and clearly defined to warrant recovery by an at-will employee who is discharged for engaging in, or for refusing to engage in, particular conduct. The task is not an easy one. We have stated a few basic principles. The discharge of an at-will employee without cause is not alone a sufficient basis for imposing liability. Gram v. Liability Mut. Ins. Co., supra at 671. Although an argument can be made for a rule of job security in such circumstances, at least for now the Legislature must be the source of any such rule. Id. at 670-671. We have also said that an employer does not violate a public policy justifying the recovery of damages solely by giving a false reason for the discharge of an at-will employee. See Cort v. Bristol-Myers Co., 385 Mass. 300, 306, 431 N.E.2d 908 (1982).

A basis for a common law rule of liability can easily be found when the Legislature has expressed a policy position concerning the rights of employees and an employer discharges an at-will employee in violation of that established policy, unless no common law rule is needed because the Legislature has also prescribed a statutory remedy. 2 If the employer discharges an at-will employee for refusal to commit an unlawful act (see DeRose v. Putnam Management Co., supra), or for fulfilling her duty to assure the employer's compliance with the law involving public safety (see Hobson v. McLean Hosp. Corp., supra), another class of public policy considerations warrants recovery. As will be seen, the public policy violation on which Mello relies in this case fits into none of these clearly defined categories. As will also be seen, Mello failed to prove that Stop & Shop would not have discharged him but for Mello's conduct protected by that public policy principle on which he relies.

We turn to a consideration of the evidence most favorable to Mello. Mello started working for the Bradlees division of Stop & Shop in 1973 as a department manager in a store on Cape Cod. In 1974 he became assistant store manager of a Bradlees store in Brockton. Later he became assistant to the market manager for a district of ten stores. Mello was a good worker who put in long hours, received various raises, and was regarded as a valued employee.

In the latter part of 1979, Mello learned that buyers for Bradlees were receiving rebate checks, some payable to them personally. He told his superiors about the checks and was told to stay away from the subject. It would be speculative to infer that any unlawful conduct was involved in the practice Mello questioned. 3 About the same time, Mello learned that managers of several stores were making false damage and shortage claims against Bradlees' warehouse and against manufacturers and suppliers. Such claims involved untruthful assertions that merchandise had been delivered to a store in a defective condition or had not been delivered at all. Mello told his superior, naming particular stores. His superior said it was a shame but such claims against manufacturers and suppliers were common practice. Another superior told Mello to mind his own business. There was no evidence that Mello was responsible for the false claims or for supervising the store managers who made them. 4 As to claims against manufacturers and suppliers, there was no evidence that Mello's duties would have made him a reasonable suspect of any wrongdoing with respect to claims against manufacturers and suppliers delivering directly to stores.

Shortly after these incidents, Mello was given certain samples of merchandise to deliver to Bradlees' Fall River store. Mello delivered most of the samples but, as he testified, he kept certain items for himself and others. Stop & Shop investigated the incident, accused Mello of violating company policy, and, after several meetings with Bradlees personal, discharged Mello on December 20, 1979. Only after his discharge did Mello raise the charge that Stop & Shop was seeking to get rid of him to "cover up" the illegal activities he had discovered. We are not dealing here, therefore, with a case in which the employer discharged an employee because the employee threatened to report the employer's criminal conduct to the authorities, nor are we concerned here with a case in which the employee was discharged because he agreed to testify against a fellow employee and to cooperate with law enforcement authorities (see Palmateer v. International Harvester Co., 85 Ill. 2d 124, 132, 52 Ill. Dec. 13, 421 N.E.2d 876 [1981]). 5

Stop & Shop seeks to persuade us that the evidence requires a finding that it discharged Mello for good cause because he took company property. The evidence permits but does not require that conclusion. Mello is not bound to accept the company's stated reason as the real reason for his discharge simply because he testified that Stop & Shop personnel told him that he was discharged for taking company property.

Mello's claim here is that the real reason for his discharge was that he complained to his superiors about false damage and false shortage claims made by store managers. We agree that the jury could properly have found that the reason Stop & Shop gave for Mello's discharge was not the real reason for his discharge. Among the various possible "real" reasons for Mello's discharge as to which there was evidence, only the claim on which he now relies (his "whistleblowing") conceivably involved a violation of some public policy warranting Stop & Shop's liability. 6

We need not decide whether a discharge for whistleblowing concerning false claims against manufacturers and suppliers violates a public policy warranting Stop & Shop's liability, because the evidence would not permit a finding that Stop & Shop discharged Mello because of his complaints about false claims against manufacturers and suppliers. Some false claims about which Mello complained were made against Bradlees' warehouse, not against manufacturers and outside suppliers. These claims within the company concern internal matters. No well defined public policy principle would have been violated had Mello been discharged because he reported those alleged wrongs. See Suchodolski v. Michigan Consol. Gas Co., 412 Mich. 692, 696, 316 N.W.2d 710 (1982). Because Mello's complaints about false claims were directed collectively against false claims within Bradlees and false claims against manufacturers and suppliers and because he also complained about rebate checks, there is no basis by which a jury would have been warranted in concluding that Mello would not have been discharged but for making that portion of his complaint about false claims that involved manufacturers and suppliers. 7

2. There remains for consideration Mello's claim of intentional infliction of emotional distress based on Stop & Shop's treatment of him after he had ceased to work for Stop & Shop and had moved to Virginia. The judge charged the jury that Mello had the burden of proving "that Stop & Shop intended to inflict emotional distress or that Stop & Shop knew or should have known that emotional distress was the likely result of its conduct." This instruction was consistent with our cases. See Nancy P. v. D'Amato, 401 Mass. 516, 520, 517 N.E.2d 824 (1988); Simon v. Solomon, 385 Mass. 91, 95, 431 N.E.2d 556 (1982); Agis v. Howard Johnson Co., 371 Mass. 140, 144-145, 355 N.E.2d 315 (1976).

In answer to a question, the jury stated that Stop & Shop did not...