Moriarty v. Boys & Girls Club of Marshfield

By the Court (Green, Grainger & Massing, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

The plaintiff, James G. Moriarty, appeals from the dismissal of his complaint alleging wrongful termination of his employment as the executive director of the defendant Boys and Girls Club of Marshfield (club). See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The individual defendants are members of the club's board of directors and governance committee (collectively, board). Moriarty's three-count complaint asserts (1) wrongful termination in violation of public policy, (2) breach of an implied contract of employment, and (3) tortious interference with employment against the individual defendants.

Background. The material facts are not in dispute. To the extent we perceive any peripheral inconsistencies in the parties' recitations of facts, we accept Moriarty's allegations as true for the purposes of reviewing the dismissal of his complaint. Polay v. McMahon, 468 Mass. 379, 382 (2014).

Moriarty's termination was the outcome of disagreements concerning the club's "After School" program, offering education, fitness, career development, recreational, and artistic programs to elementary school children after the school day and into the early evening. The program is of a category, involving nonresidential custody and care of young children, that is subject to supervision by the Massachusetts Department of Early Education and Care (department or EEC). G. L. c. 15D, § 1 et seq. Such programs are subject to licensure by the department, unless they qualify for an exemption under the criteria set forth in the department's exemption policy #20100601. The club "self-identified its [program] as exempt from [the department's] licensing."

In January of 2013 Moriarty submitted the club's application for ongoing exemption from licensing for the program to the department. After the department informed Moriarty that licensing was required for the program, the club submitted a revised application in June of 2013. Thereafter, Moriarty informed the defendants that he believed the program required licensure, and that the club was misrepresenting the program by describing it as "open door." Moriarty also requested permission to contact the department to "discuss this issue."

The individual defendants replied in a series of electronic mail messages (e-mails) disputing Moriarty's stated position, emphasizing that the club had not run the program under licensure in the past, stating that licensure is "completely contrary to the philosophy, business plan and guiding principles of the Club," questioning whether Moriarty shared "similar goals," and suggesting a meeting with the chair of the governance committee to assess Moriarty's "willingness to participate in the mission, philosophy and strategic plan of the Club and its board." The defendants expressed concern that under licensure the club's "building, as constructed, would necessitate fewer children visiting the club on a daily basis," which, in turn, would result in the loss of "all fundraising, especially corporate sponsorship, major gifts and most likely many of our remaining outstanding pledges."

On August 2, 2013, the board informed Moriarty through his attorney that it had voted the previous day to terminate his employment effective August 9. On August 8, Moriarty submitted a letter to the board specifically citing the "Whistle Blower Policy set forth in the Club's Employee Handbook," and alleging that the club had misrepresented its open door policy to the department in order to obtain a licensing exemption. On August 9, the board provided "official notice" confirming the August 1 vote to terminate Moriarty effective August 9, and confirming that he had been informed of that fact through his attorney on August 2.

Discussion. Wrongful termination in violation of public policy. Moriarty, an employee at will, invokes the doctrine that an employer may incur liability for terminating an at-will employee "for a reason that violates a clearly established public policy." Upton v. JWP Businessland, 425 Mass. 756, 757 (1997). The important distinction in this context, as the Supreme Judicial Court stated in Shea v. Emmanuel College, 425 Mass. 761, 762-763 (1997), "is between a discharge for an employee's internal complaint about company policies . . . and an internal complaint made about the alleged violation of the criminal law." An employee may not be discharged "for refusing to do that which the law forbids." Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989).

Prior to his termination, Moriarty had objected to the "open door" characterization of the club's program contained in the revised application for exemption and had expressed the belief that an audit of the program would determine that licensure was required. While he referred to the perceived misrepresentation as "inadvertent," and the application's characterization of the program as "inaccurate," he also couched his objections in terms that invoked regulatory strictures ("I am concerned that the Club's characterization [is] a means of avoiding EEC [licensing] requirements") and principles of integrity ("I have a moral and ethical obligation to bring these matters to your attention").

The defendants assert that these statements must be interpreted as nonactionable policy disagreements. See, e.g., id. at 149-151 (policy disagreement concerning centralization of management authority insufficient grounds to challenge termination of at-will employee). While this interpretation can be inferred from the record, it is not inescapable. The messages from Moriarty to the defendants also permit a reasonable fact finder to conclude that Moriarty was alerting them of his concern that the revised application was an attempt to evade the licensing requirements imposed by a duly and legislatively authorized public agency. General Laws c. 15D, §§ 6 and 15, require that the program be either licensed or exempt from licensure, and impose criminal penalties for failure to comply. See Upton, supra at 757. See also Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988).

We therefore conclude, viewing the allegations of the complaint as true and drawing reasonable inferences in Moriarty's favor, that Moriarty has stated a cause of action sufficient to survive a motion under rule 12(b)(6). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7, 635-636 (2008); Welch v. Sudbury Youth Soccer Assn., Inc., 453 Mass. 352, 354 (2009).

Breach of an implied contract of employment. The defendants assert that Moriarty's letter of August 8, 2013, explicitly citing the club's whistleblower policy contained in the employee handbook, cannot support his claim for breach of an implied contract of employment, as he had already been terminated on August 1 or 2. Insofar as we consider that evidentiary proceedings are required to resolve Moriarty's claim that his previous messages sent before August 1 fall within the handbook's whistleblower protection provision, we need not address this argument. We express no opinion on the actual date that Moriarty ceased to be employed for purposes of protection as a putative whistleblower.

Interference with contract. Finally we note that Moriarty's claim couched as "interference with employment" is closely related to his breach of contract claim. His interference claim, however, also requires a showing of improper means or motive on the part of the individual defendants who allegedly induced the club to breach his employment contract. In this context the requirement of improper means or motive is equated to "actual malice." Shea, 425 Mass. at 764. The e-mails sent to Moriarty by the individual defendants permit the inference that the individual defendants were frustrated and unhappy with his approach to the issue of licensure; whether they also provide the requisite element of a "spiteful malignant purpose, unrelated to the legitimate corporate interest," ibid., quoting from Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992), while a much more difficult question, is ultimately one that here, and as a rule, is susceptible to a factual determination.

Judgment dated April 25, 2014, reversed.

By the Court (Green, Grainger & Massing, JJ.),

Clerk Entered: May 1, 2015.