Simas v. First Citizens' Federal Credit Union

• Decision Date: 06 March 1998
• Docket Number: No. Civ.A. 96-10073-MLW.,Civ.A. 96-10073-MLW.
• Citation: 996 F.Supp. 76
• Parties: Victor E. SIMAS, Plaintiff, v. FIRST CITIZENS' FEDERAL CREDIT UNION, Barbara Silva, and Lisa Grace, Defendants.
• Court: U.S. District Court — District of Massachusetts

996 F.Supp. 76

Victor E. SIMAS, Plaintiff, v. FIRST CITIZENS' FEDERAL CREDIT UNION, Barbara Silva, and Lisa Grace, Defendants.

No. Civ.A. 96-10073-MLW.

United States District Court, D. Massachusetts.

March 6, 1998.

John K. Markey, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, MA, Philip N. Beauregard, Beauregard & Burke, New Bedford, MA, for Plaintiff.

Michael P. Duffy, Harvey Weiner, Peabody & Arnold, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANTS, FIRST CITIZENS' FEDERAL CREDIT UNION, BARBARA SILVA AND LISA GRACES MOTION FOR SUMMARY JUDGMENT (# 26)

COLLINGS, United States Magistrate Judge.

I. Introduction

In January, 1996, plaintiff Victor E. Simas (hereinafter "Simas") filed a six-count complaint naming as parties defendant First Citizens' Federal Credit Union (hereinafter "First Citizens"), Barbara M.W. Silva (hereinafter "Silva"), and Lisa A. Grace (hereinafter "Grace"). Simas is a former employee of First Citizens, having worked at the credit union from 1983 through May of 1994. At all relevant times, defendant Silva served as both the Chief Operating Officer and President of First Citizens. Defendant Grace too was employed at First Citizens, from 1993 through May of 1994 holding the position of Senior Vice President of the Mortgage Department. The plaintiff alleges that he was subjected to unlawful discrimination and constructively discharged in retaliation for having "blown the whistle" on certain purported improprieties involved in a particular real estate loan made by the credit union.

With the parties' consent, this case was referred and reassigned to the undersigned for all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c). At a subsequent conference, a discovery schedule was set and thereafter discovery continued apace, albeit with minor skirmishes. With discovery complete, the defendants have filed a motion for summary judgment on the complaint in its entirety together with a statement of undisputed facts, a memorandum of law and exhibits. In response, Simas has submitted a substantive opposition to the motion for summary judgment including a statement of material facts, a memorandum of law, affidavits and exhibits. With the record now complete,¹ the defendants' motion for summary judgment is in a posture for decision.

II. The Facts

The historical facts underlying this litigation are in large measure undisputed.² Beginning in January of 1983 Simas was employed by First Citizens, working his way up from his initial position as a collector ultimately to attain the position as Vice President of Credit and Collections. (Defendants, First Citizens' Federal Credit Union, Barbara Silva and Lisa Grace's Statement of Undisputed Facts # 25 ¶¶ 1, 4, 5; Plaintiff's Statement of Material Facts # 36 ¶ 2³) According to the plaintiff, over the years he was recognized and acknowledged as a hard worker with his performance evaluations consistently ranging from good to excellent. (# 36 ¶ 2) At the same time, Simas did have some weak points, including being quick tempered with co-workers, difficult and moody. (Affidavit of Michael P. Duffy, Esq., # 29, Exh. E)

As earlier noted, defendant Silva was the President of First Citizens. (# 25 ¶ 2; # 36 ¶ 1) She was the plaintiff's supervisor and, indeed, was responsible for all personnel decisions. (# 36 ¶ 1) During the relevant time period defendant Grace, Silva's daughter, was the Senior Vice President of the Mortgage Department. (# 25 ¶ 3; # 36 ¶ 1) In this position, Grace was involved only with personnel actions affecting employees within her department. (# 25 ¶¶ 3, 28)

In August of 1990, First Citizens made a loan to one Louis Xifaras, an individual who was then the Vice Chair of the credit union's Board of Directors and a member of the Building Committee. (# 25 ¶ 8; # 36 ¶ 3) He was also a friend of Silva. (# 36 ¶ 3) The $800,000 loan, the largest ever granted by First Citizens, was secured by Mr. Xifaras' residence and other property appraised at the time to be worth $1,030,000. (Id.) Grace was the person who processed the loan and presented it to the Board of Directors for approval. (Id.)

Approximately two years later in August of 1992, Simas, on behalf of First Citizens management team, requested a meeting with two members of the Board of Directors of the credit union to discuss concerns that defendant Grace was being given preferential treatment by First Citizens and its Board. (# 25 ¶ 9) At that meeting according to the plaintiff

I brought up some concerns about what we felt was the, quote, unfairness or disparity between departments in obtaining resources, be it furniture, office equipment, personnel, things like that, and we felt Lisa's contact or increasing contact with the board of directors was playing a role in that.

Statement of Undisputed Facts # 25, Exh. A at 47.

It was in August, 1993, that Simas first became aware that due to his intent to file for bankruptcy, Xifaras would likely default on the $800,000 loan from First Citizens'.⁴ (Affidavit of Victor E. Simas # 35 ¶ 4) The plaintiff discussed the loan with Silva the following month and, thereafter, on or around September 17, 1993, spoke with Jeanine Watts (hereinafter "Watts"), the internal auditor of the credit union. (# 25 ¶ 12; # 35 ¶ 5) Simas requested that Watts conduct a full investigation into the processing of and circumstances surrounding the loan. (Id.) According to the plaintiff, while agreeing that the size of the loan was unusual, Watts declined to go to the Board of Directors "without facts". (# 36 ¶ 4) The defendants contend that Watts "conducted a review of plaintiff's suspicions and found in her opinion that there was no basis for any of plaintiff's suspicions." (# 25 ¶ 12) Thereafter Simas and Watts had a series of telephone conversations wherein the tension between the two mounted, and ultimately led to Watts contacting Silva to complain about Simas' conduct.⁵ (# 25 ¶ 12; # 35 ¶ 5) Upon learning of the telephone call to Silva, the plaintiff again called Watts to tell her that her actions could get him fired, and that he might get in touch with either the press or the National Credit Union Administration ("NCUA") with respect to the loan. (# 36 ¶ 5) Watts apparently reported this conversation with Simas to Silva. (Id.)

The minutes of a September 27, 1993 meeting of the First Citizens Personnel Committee meeting reflect the following:

President Silva informed the committee that a request has been made by Vice President Vic Simas relative to a $4,000 student loan. She refused this request due to the fact that Mr. Simas had filed bankruptcy in 1990 and said loan, if granted, would not be guaranteed by the federal government should a delinquency occur when payment became due and payable (copies of Simas memo attached).

Ms. Silva also informed the committee that recent conduct by Mr. Simas (not the first time) has caused emotional distress to members of the management team. Discussion was held relative to Ms. Silva's charges and the following recommendations were made to her:

1. That the loan request by Mr. Simas be brought before the full board for approval or disapproval.⁶

2. That Ms. Silva record instances which can be verified in which, in her opinion, has been of improper behavior [sic] on the part of Mr. Simas representing an officer of this credit union. Reference to previous evaluations should be recorded. This evaluation may be used as a warning and possible termination could result should repeated offenses again occur.

Affidavit # 35, Exh. L.

The plaintiff states that thereafter he was contacted by the then chairman of the Board of Directors, Ed Harrington (hereinafter "Harrington"), who inquired about what had happened with Watts. (# 35 ¶ 7) According to Simas, he explained that he had asked Watts to investigate the Xifaras loan; although Harrington purportedly indicated that he would look into the situation, Simas never heard back from him. (Id.)

In a five-page memorandum dated October 8, 1993, Silva, in pertinent part, wrote the following to the plaintiff:

It has again been brought to my attention that your conduct as an officer and employee of this credit union has caused an eruption of emotional stress among a number of employees.

It is my understanding that a telephone call was made to the home of an officer of the credit union on Friday evening, September 17, 1993. Allegations were made by you relative to a member's account and to which you requested she check your "suspicions." The officer informed you, at that time, she would inform "her boss" (Chairman of the Supervisory Committee) relative to your comments. A review was conducted by the officer as to these allegations on Monday, September 20, 1993 which resulted in her opinion that there was no basis of any improprieties.

She called you at your office on Thursday (September 23, 1993) and reported her findings. The phone call to you then resulted in threats to the credit union (personally calling NCUA and/or Standard Times). I understand an effort was made to calm you but you became more irrational and aggressive and subjected the officer to verbal abuse and harassment by a series of telephone calls to her that day.

To question a situation or decision at the credit union through proper channels is understandable and permissible.

To accuse someone of an alleged impropriety in making a decision without any proof is inexcusable and will not be tolerated.

You are well aware that I have personally spoken to you over the years regarding various instances where I have felt you have used poor judgment.

* * * * * *

Your professional and performance skills in the credit/collection department are excellent. You have developed a viable and well-organized department. You have kept abreast of all new regulations and changes in the law which affect your department. Bankruptcy laws have changed constantly and I feel assured that your...