Tinkham v. Jenny Craig, Inc.

• Decision Date: 06 October 1998
• Docket Number: Nos. 96-P-1333,97-P-1306,s. 96-P-1333
• Parties: Tracy TINKHAM & others 1 v. JENNY CRAIG, INC., & another 2 (and a consolidated case).
• Court: Appeals Court of Massachusetts

Page 1255

699 N.E.2d 1255

45 Mass.App.Ct. 567

Tracy TINKHAM & others ¹ v. JENNY CRAIG, INC., & another ² (and a

consolidated case).

Nos. 96-P-1333, 97-P-1306.

Appeals Court of Massachusetts,

Middlesex.

Argued Dec. 10, 1997.

Decided Oct. 6, 1998.

Carroll Edward Ayers, Wakefield, for plaintiffs.

Arthur G. Telegen, Boston (Gerald J. Huffman, Jr. and Michael L. Rosen, with him), for defendants.

Before JACOBS, GILLERMAN and SPINA, JJ.

JACOBS, Justice.

A Superior Court judge ordered summary judgment for the defendants (Jenny Craig) on a complaint filed by all five plaintiffs and containing several common law contract and tort counts. In that action (Tinkham I ), the plaintiffs essentially allege that Jenny Craig, their former employer, failed to provide promised opportunities for earnings and advancement, and improperly discharged them or caused them to resign. Later, the same judge entered summary judgment for Jenny Craig on complaints separately filed by three of the plaintiffs (collectively Tinkham II ) approximately one year after the filing of Tinkham I, alleging that Jenny Craig discriminated against them on the basis of gender in violation of G.L. c. 151B. The plaintiffs assert the judge erred in concluding that they failed to state a cause of action in Tinkham I and that their claims in Tinkham II were barred by operation of the doctrine of res judicata. Central to these appeals is whether that doctrine is applicable in circumstances where the plaintiffs had pursued the substance of Tinkham II in a mandatory administrative proceeding commenced before either action was filed. The plaintiffs also appeal from an order estopping them from asserting claims in excess of $50,000.

We summarize the tangled procedural history of these actions. In the spring and summer of 1993, three of the plaintiffs (Langley, Tahan and Tinkham) filed claims with the Massachusetts Commission Against Discrimination (MCAD) alleging that each, because of his gender, had been discriminated against by Jenny Craig in violation of G.L. c. 151B, § 4. On January 31, 1994, all five plaintiffs filed the Tinkham I complaint in the Superior Court, containing eleven common law tort and contract claims. Jenny Craig removed Tinkham I to the United States District Court in May of 1994. After the Federal judge was apprised that some of the plaintiffs might file discrimination claims under G.L. c. 151B, a scheduling order was entered in the Federal court permitting the plaintiffs to amend their complaint by September 16, 1994. On that date, the plaintiffs filed a motion in the Federal court to amend their complaint to add claims under G.L. c. 151B, but requested that the Federal court judge first act on their contemporaneously filed motion to remand the case to the Superior Court grounded on their representation that each of their "demands" was below the $50,000 diversity threshold. ³ The Federal judge ordered the remand, stating that the plaintiffs were "bound by [that] stipulation in the state court with respect to all claims arising under state law" and the case was retransferred to the Superior Court on November 10, 1994. Acting on Jenny Craig's motion, the Federal judge later clarified her order stating, "I meant what I said when I referred to 'all claims arising under state law.' This refers to pending as well as non-pending state claims...."

In February, 1995, Langley, Tahan and Tinkham effectively withdrew their cases from the MCAD (see note 8, infra ) and moved to amend Tinkham I in the Superior Court to add the G.L. c. 151B claims. On March 10, 1995, while that motion was pending and opposed by Jenny Craig, purportedly on the basis of the plaintiffs' failure to amend Tinkham I in the Federal court, Langley, Tahan and Tinkham, apparently concerned with the running of the time for bringing their claims, filed independent complaints, comprising Tinkham II, in the Superior Court alleging violations of G.L. c. 151B. Shortly thereafter, Jenny Craig removed Tinkham II to the Federal District Court on diversity grounds, claiming that the matters in controversy exceeded $50,000. Back in the Superior Court, a judge, in May, 1995, denied the plaintiffs' motion to amend Tinkham I subject to renewal in the event that the c. 151B claims pending in Tinkham II in Federal court were dismissed without a decision on the merits. The Federal judge, in turn, treated the Tinkham II plaintiffs as bound by their damages representation in Tinkham I and remanded Tinkham II to the Superior Court on August 9, 1995. ⁴ On October 26, 1995, the defendants filed their motion for summary judgment in Tinkham I. On January 12, 1996, a second Superior Court judge entered an order of consolidation with respect to Tinkham I and Tinkham II, followed on January 17, 1996, by her order in Tinkham I estopping the plaintiffs from seeking more than $50,000 in damages "on all of their state law claims." At the same time, she stated that the plaintiffs could move to amend Tinkham I by adding the c. 151B claims as long as the damages claimed did not exceed $50,000 per plaintiff. The plaintiffs did not move to amend the Tinkham I complaint. On April 19, 1996, the judge allowed summary judgment for Jenny Craig on the common law tort and contract claims in Tinkham I. The plaintiffs requested an entry of judgment in Tinkham I and appealed that case to this court. Applying the doctrine of res judicata, the judge, acting on a motion filed in October, 1996, determined that the c. 151B claims in Tinkham II were barred by her earlier decision in Tinkham I and ordered entry of summary judgment for Jenny Craig in Tinkham II.

1. Summary judgment in Tinkham I. At the time the judge considered summary judgment, the complaint contained the following counts: count I for constructive discharge (plaintiffs Short and Garland); counts III-VII for breach of employment contract; count VIII for misrepresentation; and count XI for promissory estoppel. ⁵ The plaintiffs fail to demonstrate any flaw either in the judge's conclusion that they did not advance specific facts to support their claim of misrepresentation and that, in any event, any reliance by them was unreasonable, or in her related determination that the plain terms of their respective written and integrated employment agreements "state that any oral statement made to the undersigned employee will not affect the at-will status of the employee's employment [and, therefore,] any alleged oral promises ... would be unenforceable." She also properly concluded that promissory estoppel was inapplicable, essentially because the plaintiffs "understood that there were contingencies attached to future promotion [and that] knowledge ... along with [their] at-will status, would make any promise to promote illusory. The promises of promotion alleged in this case could not transform the nature of plaintiffs' employment from at-will to employment for a definite period." The plaintiffs further assert error with respect to the summary judgment materials, claiming certain affidavits of the plaintiffs were not considered by the judge. The judge, however, properly excluded those portions of the affidavits which were in conflict with prior deposition testimony, or were conclusory, or were not based on personal knowledge. See Madsen v. Erwin, 395 Mass. 715, 721, 481 N.E.2d 1160 (1985); O'Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 906, 606 N.E.2d 937 (1993).

2. Res judicata. In allowing Jenny Craig's motion for summary judgment in Tinkham II, the judge relied on the judgment in Tinkham I and applied the doctrine of claim preclusion. "Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action." Blanchette v. School Comm. of Westwood, 427 Mass. 176, 179 n. 3, 692 N.E.2d 21 (1998). "The doctrine is a ramification of the policy considerations that underlie the rule against splitting a cause of action, and is 'based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.' " Heacock v. Heacock, 402 Mass. 21, 24, 520 N.E.2d 151 (1988), quoting from Foster v. Evans, 384 Mass. 687, 696 n. 10, 429 N.E.2d 995 (1981). It is settled that a summary judgment may be given preclusive effect. Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 693, 307 N.E.2d 826 (1974).

The determination of whether the plaintiffs in Tinkham II had the opportunity and incentive to litigate their c. 151B claims in Tinkham I should be addressed from the perspective of fairness and efficient judicial administration since the doctrine of claim preclusion "is not applied rigidly where such interests would not be served." Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass.App.Ct. 386, 391, 631 N.E.2d 1021 (1994). In that context, we conclude that claim preclusion is not applicable here, because the c. 151B claims were not split off in the usual sense from the Tinkham I complaint and because the plaintiffs' failure to add the c. 151B claims to Tinkham I is attributable not only to their own hapless maneuvering, but also to the somewhat misleading procedural sparring of Jenny Craig.

Well before the filing of Tinkham I, the Tinkham II plaintiffs submitted claims of gender discrimination to the mandatory initial jurisdiction of the MCAD pursuant to G.L. c. 151B. ⁶ See Charland v. Muzi Motors, Inc., 417 Mass. 580, 585, 631 N.E.2d 555 (1994). When those plaintiffs joined the other plaintiffs (Garland and Short) in filing Tinkham I approximately one-half year later, they were well within their rights to continue to subject their statutory claims of gender discrimination to administrative scrutiny and had no reason to believe they would be precluded from adding those claims, in their entirety, to their common law action. After the removal of Tinkham I to the Federal court...