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All eyes on how far law goes on personnel files

Plaintiff says he was fired for exercising rebuttal right

After hearing arguments in Meehan v. Medical Information Technology, Inc. on Nov. 1, the Supreme Judicial Court in Massachusetts will have an opportunity to clarify whether an employee’s exercise of his rights under the state’s Personnel Records Act can serve as the basis of a suit alleging wrongful discharge.

That same question sharply divided the state’s Appeals Court. Two judges on the panel, Vickie L. Henry and Peter J. Rubin, would have allowed the plaintiff’s suit to survive a motion to dismiss.

But Henry and Rubin found themselves in the minority when the panel was expanded to include Chief Justice Mark V. Green and Judge Ariane D. Vuono, along with Judge William J. Meade, who wrote what became the majority opinion.

Henry’s dissent, which Rubin joined, decried a result that renders the

statutory right granted by G.L.c.149, §52C, “useless and illusory, and empowers employers to punish employees for doing exactly what the Legislature authorized them to do.”

Henry continued that “[c]ountenancing such a result is wholly inconsistent with a just — or even a sane — employment policy. The majority essentially casts the Legislature as a trickster, creating a trap for unwitting employees that employers now may spring.”

But, looking at the body of law that has grown up around the issue, the majority answered in the negative what it viewed as “the ultimate question”: “whether the right to rebuttal provided by §52C is a public policy sufficiently well defined and important such that the exercise of that right brings an employee within the public policy exception to the general rule that an at-will employee may be terminated without cause.”

The plaintiff is now challenging whether that was, in fact, the right question to be asking. But he also argues that, even if it was, the court should have found that the rights created by the Public Records Act are both “well defined” and “important” and ruled in his favor.

Considerable confusion

As Boston attorney Andrea M. Sullivan noted in a September op-ed in Lawyers Weekly, the Appeals Court’s ruling has employers and employees all at sea.

“The Appeals Court’s ruling in Meehan has left employers and employees alike without clear answers when it comes to whether to submit a rebuttal or whether to terminate an employee based on the submission of a rebuttal,” she wrote.

The Appeals Court’s decision already has had attorneys who represent employees second guessing how they advise their clients, agreed Boston attorney Gavriela M. Bogin-Farber.

Bogin-Farber authored an amicus brief in Meehan on behalf of the Massachusetts Employment Lawyers Association, ACLU of Massachusetts, Fair Employment Project, GLBTQ Advocates and Defenders, and Massachusetts Law Reform Institute.

Until recently, it had been “second nature” for attorneys to instruct their clients as a first step to request copies of their personnel files, another right guaranteed by §52C, she noted.

Now, the Appeals Court’s sanctioning of a firing allegedly prompted by a request made under §52C is calling the wisdom of that guidance into question.

“Can we even do that safely?” Bogin-Farber asked rhetorically. “We may be putting people’s jobs at risk by providing that advice.”

While the plaintiff is being supported by the Attorney General’s Office as well as the groups on whose behalf Bogin-Farber wrote, the defendant has received amicus support from the Pioneer Institute.

“Where you have a potential change in the law that would undermine economic stability and economic freedom, that’s right in our wheelhouse,” said James P. McKenna, a senior fellow with PioneerLegal and author of the Pioneer Institute’s brief.

The defendant’s attorney, Scott J. Brewerton, declined to comment, citing a company policy of not commenting on ongoing litigation.

The plaintiff’s attorney, James A. Kobe of Newton, did not respond to requests for comment.

When exception applies

According to the plaintiff, a turning point in the development of the law around the public policy exception came in 1989, when the SJC, in Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, provided its most succinct distillation of the circumstances in which an employee could invoke it.

The SJC said a valid case could begin with an employee taking one of three categories of actions, which had triggered an employer to retaliate: “asserting a legally guaranteed right,” like filing a workers’ compensation claim; “doing what the law requires,” like serving on a jury; or “refusing to do what the law forbids,” like committing perjury.

The SJC added a fourth category two years later in Flesner v. Technical Communications Corp. The court said that legal redress might also be available “in certain circumstances for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed.”

But here, the plaintiff argues that he was asserting his right guaranteed by §52C to submit a rebuttal to a performance improvement plan instituted by his employer, so he fits squarely in the first category articulated in Smith-Pfeffer.

What the Appeals Court’s decision below has done is upend what had been a clear two-step process to determine whether the public policy exception should apply, the plaintiff and its amicus supporters say.

The first step is to check whether the case fits into one of the three Smith-Pfeffer categories. Only when the answer to that inquiry is “no” does a court need to move onto the second step, which is to see whether the fourth category from Flesner applies.

“In holding otherwise, the Superior Court and the Appeals Court both improperly grafted onto the clear rule set out in this Court’s cases new, vague, and difficult-to-apply criteria that not only eviscerate the right set forth in the Personnel Records Act, but also threaten to seriously weaken the public policy exception,” Deputy State Solicitor David C. Kravitz and Assistant Attorney General Alex Sugerman-Brozan write in the AG’s brief.

Keeping the two inquiries distinct makes sense, the AG’s brief adds, given the SJC’s “repeated admonitions that policy determinations are for the legislative branch, not for the judiciary.”

In other words, passing a law is precisely how the Legislature establishes that a certain policy is both “important” and “well defined.” Once the Legislature speaks to those matters, it would be inappropriate for courts to treat them as unsettled, in the AG’s estimation.

No ‘significant public importance’?

But defendant Medical Information Technology argues that the decisions below are in keeping with a line of cases establishing that courts should draw the exceptions to the rule of at-will employment narrowly.

For example, with its 1994 decision in King v. Driscoll, the SJC established that “the internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception,” the defendant notes.

That at some point a personnel record might be transmitted to third parties “does not alter the fundamentally internal nature of the record,” the defendant’s brief reads.

Contrary to the suggestion of the plaintiff and amici, there have been cases in which employers have fired plaintiffs after invoking employment-related rights guaranteed by statute, and those employees had their public policy exception cases dismissed.

Such cases include the 2007 suit Parker v. Town of N. Brookfield, in which an employer terminated an at-will employee after she applied for health insurance benefits under G.L.c. 32B.

The Appeals Court agreed that while the employee could assert her right to those benefits by private cause of action, the statute did not provide an avenue for a wrongful termination claim.

The plaintiff and supporting amici cast Parker as an outlier, which is incompatible with Smith-Pfeffer and not binding on the SJC.

Sky is falling… but in which direction?

The defendant argues that allowing at-will employees to bring a claim whenever they submit a rebuttal to their personnel record “would effectively convert an employer’s compliance with §52C into a just-cause rule because employers would then have to justify the discharge in court.”

The defendant argues that allowing at-will employees to bring a claim whenever they submit a rebuttal to their personnel record “would effectively convert an employer’s compliance with §52C into a just-cause rule because employers would then have to justify the discharge in court.”

The defendant points to a situation like the one present in 1997’s Upton v. JWP Businessland, in which the SJC held that an employee could not claim wrongful discharge when she refused to work additional hours “due to an irreconcilable conflict between her new work schedule and the obligations of parenting.”

Under the rule Meehan proposes, the plaintiff in Upton could have protected herself from discharge simply by registering her objection in the form of a rebuttal to her personnel file, the defendant suggests.

Such a rule would upset a “well-considered balance that underlies the doctrine of at-will employment,” which “fosters economic growth,” the Pioneer Institute argues in its amicus brief in support of the defendant.

But the plaintiff and the amici supporting him say the defendant and Pioneer Institute are vastly overstating the threat to at-will employment.

“If Meehan were to prevail, employers would remain free to terminate employees for an almost infinite number of unfair, arbitrary and inconsequential reasons, or for no reason at all,” the plaintiff’s brief reads.

Instead, the plaintiff and amici say dire consequences will result from upholding the Appeals Court’s decision.

If you chill the exercise of the rights guaranteed by §52C, it will have a cascading effect on workers’ ability to vindicate other, more substantive rights, such as freedom from discrimination in the workplace, they argue.

Bogin-Farber fears the Appeals Court majority in Meehan may have grappled with the central issue in the case as an “abstract concept,” when it is anything but.

“This has very serious real-world implications” for “every single person who is employed in the commonwealth,” she said.

Only by using §52C to request his personnel file will an employee first gain access to relevant email sent by his manager, for example.

“An employee will be at a serious disadvantage in advancing their rights in a litigation or pre-litigation context if they cannot gain access to their records,” Bogin-Farber said.

In her brief, Bogin-Farber noted that there are “myriad examples of how the [Personnel Records Act’s] rights help employees enforce their rights under other substantive statutes,” such as the 2019 Appeals Court case Charles v. Leo, in which a violation of the PRA supported a jury’s $10 million punitive damages award.

The jury found that the defendant excluded key documents from the plaintiff’s personnel file and then sought to conceal their conduct over a period of years.

“Thus, the extent to which the employer failed to comply with its obligations under the PRA, which also impaired the employee’s ability to exercise her rights under same, affected the outcome of the employee’s Chapter 151B claims,” Bogin-Farber wrote.

The attorney general’s brief notes that since it enacted the PRA in 1986, the Legislature has repeatedly strengthened its protections for employees, which speaks to the “important interests extending beyond the employer-employee relationship, including combatting employment discrimination,” that the PRA serves.

But the defendant counters that even though an employee might use a rebuttal as an initial step to internally allege discrimination, safety violations or governmental fraud, that does not justify “judicially adding” a wrongful discharge provision that the Legislature did not see fit to include in §52C.