Tenedios v. Wm. Filene's Sons Co., Inc.

• Citation: 479 N.E.2d 723,20 Mass.App.Ct. 252
• Parties: Helen TENEDIOS v. WM. FILENE'S SONS COMPANY, INC. et al. 1
• Decision Date: 24 June 1985
• Court: Appeals Court of Massachusetts

Page 723

479 N.E.2d 723

20 Mass.App.Ct. 252

Helen TENEDIOS v. WM. FILENE'S SONS COMPANY, INC. et al. ¹

Appeals Court of Massachusetts Essex.

Argued Feb. 12, 1985.

Decided June 24, 1985.

George E. Brankey, Boston, for plaintiff.

Carmine W. DiAdamo, Lawrence, for defendants.

Before DREBEN, KAPLAN and WARNER, JJ.

KAPLAN, Justice.

On December 9, 1976, the plaintiff Helen Tenedios was working as a salesclerk in the junior sportswear department of a branch store of the defendant Wm. Filene's Sons Company, Inc. (Filene's), located in Peabody. She had worked for Filene's for nineteen years, was well regarded, and had received a number of awards for reporting incidents of shoplifting. On the day mentioned, about 12:30 P.M., while the plaintiff was waiting on a customer named Esther Withington, the codefendant Joseph S. Bisson, security manager of the store, burst upon the plaintiff, seized one of the customer's boxes of merchandise, and ordered the plaintiff to the rear of the department. Thrusting the box at the plaintiff's face, Bisson said, "This is the sweater you were going to give that friend of yours," meaning Withington. The plaintiff denied that Withington was her friend, and denied the charge. A security employee, Eileen Suckley, escorted the plaintiff to the store's security office where she was detained and pressed to sign a form admitting guilt. The defendant Bisson entered carrying a sweater taken from the box. When the plaintiff asked to see the store manager or director of personnel, Bisson refused and said, "I don't need anybody, I have the evidence right here." The plaintiff was locked in the room while Bisson and Suckley left for a few minutes. Returning, Bisson threatened to handcuff the plaintiff and drag her through the store if she did not sign. The plaintiff did not sign and Bisson in fact handcuffed her.

Peabody police arrived shortly and conducted the plaintiff to the local police station where Suckley filed an application for a criminal complaint charging the plaintiff with larceny under $100. That afternoon the plaintiff was arraigned in Peabody District Court, and the following day the Salem Evening News reported the arrest and the charge. On December 17, 1976, Filene's advised the plaintiff by letter that she had been fired as of December 10.

On January 13, 1977, a jury acquitted the plaintiff of the larceny charge but Filene's did not reinstate her and indeed for a time opposed her unemployment compensation on the ground that she had been discharged for violating store rules. The plaintiff sought but failed to secure a job with various stores on the North Shore.

In the present action against Filene's and Bisson, the plaintiff has recovered a judgment against them, jointly and severally, for a total of $40,000. A jury returned verdicts for the plaintiff against each defendant for $1,000 on counts of false imprisonment; $35,000 on counts of malicious prosecution; and $4,000 on counts of abuse of process. On counts of defamation, the jury found for the defendants. The trial judge directed verdicts for the defendants on counts of intentional infliction of emotional distress, and for the defendant Filene's on a count against it of wrongful termination of employment.

Upon her appeal, the plaintiff, having taken proper objections below, attacks the judge's direction of verdicts, and also complains of the judge's order establishing that her recovery is $40,000, not $80,000 as the plaintiff claims on the basis of her reading of the jury's intention. ²

1. Wrongful termination. Here both parties assume that the doctrine of the Fortune case (Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 [1977] ), would apply if the facts as to the discharge sufficed, even though the record indicates that the plaintiff's employment was covered by a collective bargaining agreement and was not an employment at will, to which alone the Fortune doctrine applies. See Azzi v. Western Electric Co., 19 Mass.App. 406, 409-410, 474 N.E.2d 1166 (1985); Bertrand v. Quincy Mkt. Cold Storage & Warehouse Co., 728 F.2d 568, 571 (1st Cir.1984). ³ For purposes of the appeal, we are content to allow the parties to make their own law. Still the evidence does not support the claim. We may assume, as the plaintiff contends, that the dismissal was a product of inadequate investigation, and an act of bad faith. Still there was no such breach of an understood covenant of fair dealing as is embraced by the Fortune rule. A discharge that is contrived to despoil an employee of earned commissions or similar compensation due for past services will qualify under Fortune. See Gram v. Liberty Mutual Ins. Co., 384 Mass. 659, 672, 429 N.E.2d 21 (1981); Maddaloni v. Western Mass. Bus Lines, Inc., 386 Mass. 877, 881-884, 438 N.E.2d 351 (1982); McCone v. New England Tel. & Tel. Co., 393 Mass. 231, 233-235, 471 N.E.2d 47 (1984). So also will a discharge actuated by a reason that offends a public policy, as where an employee is dismissed for refusing to commit a crime. See Gram, supra, 384 Mass. at 668 n. 6, 429 N.E.2d 21 (collecting cases); Cort v. Bristol-Myers Co., 385 Mass. 300, 303-307, 431 N.E.2d 908 (1982). That the plaintiff was fired arbitrarily and was injured in her expectations of future wages or other future emoluments does not, without more, encompass the Fortune -type of liability, however meretricious we may consider the dismissal to have been. See Gram, 384 Mass. at 670-671, 429 N.E.2d 21; Kravetz v. Merchants Distribs. Inc., 387 Mass. 457, 463, 440 N.E.2d 1278 (1982); McCone, 393 Mass. at 233-235, 471 N.E.2d 47. ⁴

2. Intentional infliction of emotional distress. The trial judge directed a verdict for the defendants on this claim in the light of Foley v. Polaroid Corp., 381 Mass. 545, 548-550, 413 N.E.2d 711 (1980), where it was held, on facts resembling those in the present case, that an employee's emotional distress caused by the employer's intentional behavior, which arose out of the employment relationship, was not separately actionable because it was a subject of compensation under the workers' compensation act. ⁵ See G.L. c. 152, § 24 ("exclusivity" provision). After the Polaroid case, it was still possible to offer the argument, as the plaintiff has done, that the statute did not extinguish the separate claim in a case like the present in which the emotional injury followed upon a bad faith dismissal of the employee (in Polaroid the employee was offered reinstatement). That possible escape from Polaroid was closed by Simmons v. Merchants Mut. Ins. Co., 394 Mass. 1007, 476 N.E.2d 221 (1985) (rescript by divided court). See also Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 539, 413 N.E.2d 690 (1980) (Quirico, J., concurring and dissenting); Paris v. Snappy Car Rental, Inc., 18 Mass.App. 968, 469 N.E.2d 1293 (1984); Milner v. Stepan Chem. Co., 599 F.Supp. 358 (D.Mass.1984). And see Kelly's Case, 394 Mass. 684, 689, 477 N.E.2d 582 (1985) (employee who suffers emotional injury in consequence of being laid off or transferred may recover workers' compensation). ⁶

3. The verdicts. Before the judge instructed the jury, there was discussion about the way the jury would record their verdicts. The judge said there would be general verdict slips for each count against each defendant--"They will be special questions," said the judge, "in the sense that they will be decided by the topics, by the issues, that are going to be sent to the jury." There was no objection. Neither was there objection to the judge's instructions regarding the verdict slips, which included a warning against duplicating any recoveries. The plaintiff urges on appeal that the judge erred in using the general verdict slips, but no such objection was presented, and we perceive no error in a matter of the form of verdicts largely left to a trial judge's discretion. See Everett v. Bucky Warren, Inc., 376 Mass. 280, 291, 380 N.E.2d 653 (1978); R.H. Baker & Co. v. Smith-Blair, Inc., 331 F.2d 506, 508 (9th Cir.1964). See also Mass.R.Civ.P. 49(a) & (b), 365 Mass. 812-813 (1974).

On each subject as to which the jury found for the plaintiff, the verdicts showed the same amount against each defendant; thus, for malicious prosecution, $35,000 against Filene's and $35,000 against Bisson. After judgment the defendants moved, in effect, for a clarifying statement that the total recovery was $40,000 cast jointly and severally against the two defendants. The judge entered an order accordingly. Thereupon the plaintiff moved, in effect, for a judgment for $80,000, and in support of the application she filed an affidavit of the jury foreman purporting to show how the jury reached their verdict and that they intended the larger amount.

The relationship...