Showing posts with label Vickie Henry. Show all posts
Showing posts with label Vickie Henry. Show all posts

Wednesday, January 20, 2021

Divided court allows employee firing for exercising statutory right to supplement personnel record

Pixy.org CC BY-NC-ND 4.0
An at-will employee may be fired for rebutting an adverse employment action, the Massachusetts Appeals Court held today, despite a state law that specifically empowers employees to add rebuttals to their personnel records.  The decision drew a vigorous dissent from two of the five justices on the rehearing panel.

As my 1L students tire of hearing, we read cases in law school (in the common law tradition) for one of a number of purposes.  For any given lesson, it's important to know which our purpose is, especially when it is to demonstrate the rule by counterexample.  To teach wrongful termination, I have used a federal case, applying Massachusetts law, in which the court is much more generous to the at-will claimant than a state high court typically is.  But today's case proved only the norm.

The instant plaintiff found no relief from the usual rule that, as the Appeals Court quoted precedent, "employment at will can be terminated for any reason or for no reason."  Massachusetts admits of narrow exception to the rule for "well-defined public policy," "preferably embodied in a textual law source."  Think firing a model for taking maternity leave, a claim that resonates with dimensions of both statutory entitlement and civil rights.  Yet even while the plaintiff here pointed to a specific statutory entitlement, the Appeals Court rejected his claim.

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

Meehan's rebuttal was not in the appellate record, the court wrote in a footnote.  From its absence, one might infer that it was not predicated on what the court would regard as worthy public policy.  An employer's "internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception," the Supreme Judicial Court held previously.  "If it were otherwise, our courts would become super personnel departments," the Appeals Court reasoned.

Justice Meade
Mass.gov
It would be hard to conclude that the court's ruling is other than consistent with common law norms.  Many a state court has never seen a wrongful termination claim it liked, at least in the context of at-will employment.  And the notion of utterly "at will" conforms to the American norm of freedom to contract.

At the same time, the ruling seems to undermine the statute.  As a practical matter, an employer asserts many reasons for an adverse personnel action, and an employee's rebuttal answers in kind.  The rebuttal itself is then a viable predicate for termination—"not a team player"—even when the employee alleges, inter alia, an actionable wrong, such as discrimination.  The employee may then complain of discrimination vis-à-vis the precipitating adverse action.  But the employee had that option anyway.  There is nothing to be gained, and everything to be lost, by using the rebuttal statute as a resolution procedure.

Justice Henry
Mass.gov

That was the thrust of the dissent.  "Only the credulous and fools would exercise this right henceforth," Justice Henry wrote of the rebuttal statute.

Meditech admitted that it terminated Meehan solely for writing the rebuttal, something he had a statutory right to do.  Dispute resolution is among the purposes of the statute, Justice Henry reasoned, possibly sparing the Commonwealth an unemployment insurance claim.  At minimum, the personnel record, which might be reviewed by a prospective second employer, is complete with both sides of the story.  Meditech has no apparent, legitimate interest, Justice Henry observed, merely in disallowing rebuttal under the statute.

The dissent concluded:

The result the majority reaches renders the statutory right useless and illusory, and empowers employers to punish employees for doing exactly what the Legislature authorized them to do. Countenancing 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.

The case is Meehan v. Medical Information Technology, Inc., No. 19-P-1412 (Jan. 20, 2021).  Justice William J. Meade wrote the majority opinion, which Chief Justice Green and Justice Vuono joined.  Justice Meade was an appellate attorney in the attorney general's office in the 1990s and deputy chief legal counsel to Governor Mitt Romney in the 20-aughts before going on the bench, and he teaches appellate practice at Suffolk Law School.  

Justice Vickie L. Henry wrote the dissent, which Justice Rubin joined.  Justice Henry was a commercial litigator in intellectual property, product liability, and other matters for more than a decade, and then a senior staff attorney for Gay & Lesbian Advocates & Defenders before her appointment to the bench.  The case was reheard after the initial panel divided 2-1.  The addition of two judges apparently only added a vote for each corner.

Wednesday, September 26, 2018

Public officials must know religious freedom gets strict scrutiny, so lose qualified immunity in civil rights case over church access

In a civil rights case involving the freedom of religion, the Massachusetts Appeals Court today denied qualified immunity to public officials who prevented the employee-plaintiff from going to church for Christmas, even without a plain prior case on similar facts.  The decision has important implications across the field of qualified immunity and "constitutional tort," because civil rights plaintiffs routinely claim violations of fundamental rights that officials should know trigger strict scrutiny in constitutional law.

St. Michael's Chapel at Chelsea Soldiers' Home
By Randall Armor, Boston's Hidden Sacred Spaces (CC BY-NC-ND 4.0)
Teresa Krupien was working at the Soldiers' Home in Chelsea, a veterans' healthcare facility.  Another employee reported that Krupien injured the other's wrist when the two were moving a patient into a wheelchair.  After investigation, and upon mixed conclusions among officials, Krupien was issued a "stay-away directive," barring her from the home premises.  Krupien promptly informed officials that the directive would prevent her from attending Christmas services at the chapel, her "spiritual home," and alleged in her civil rights complaint that the directive in sum barred her from church services for 37 days.  Officials for that time refused to modify the directive.

The trial court dismissed claims under the Massachusetts civil rights act on grounds of qualified immunity, and the Appeals Court reversed.  Qualified immunity pertains when (1) a plaintiff complains of a public official's violation of statutory or constitutional rights, (2) the plaintiff's right was clearly established at the time of the alleged violation, and (3) a reasonable person in the shoes of the defendant would have understood that plaintiff's rights were clearly violated.  Qualified immunity is an important defense in the law of "constitutional tort," because torts with public-official defendants usually must rise to the level of civil rights violations in order to overcome sovereign immunity, which is absolute unless waived.

The argument in qualified immunity usually centers on the second element, with an assist from the third, the two forming something like a "reasonable belief" test.  Public officials, who bear the burden of proof of immunity, invariably argue that they were clueless about any clear violation because never before have the courts had a case quite like this one.  Plaintiffs invariably respond by saying that of course this has never happened before, but come on, a lot of cases just like this have happened.  Where element two is hard on plaintiffs with its clarity requirement, element three gives plaintiffs an assist by testing officials' denial objectively.  Many a commentator has noted that the odd yet defensible effect of this rule is to give public officials a pass on a kind of civil rights offense once--but only once.

True to form, defendants here argued that no precedent provided clear guidance to officials on how to handle Krupien's desire to go to church.  Nevertheless, the court opined, ample precedents demonstrate that struct scrutiny applies to claims of free religious exercise.  And strict scrutiny, a public official should know, tests for narrow tailoring to achieve a legitimate state interest.  Officials here had no evidence that Krupien's attendance at church would jeopardize anyone's safety.  It would have been a simple matter to narrow the order and let her attend worship services.

Judge Posner at Harvard Law
By chensiyuan (CC BY-SA-2.5)

The appeals court pointed to an oft-cited lamentation of renowned jurist, sometimes-"consummate ass," advocate-for-the-downtrodden-whilst-né-Circuit-Judge Richard Posner, in which he pointed out that the lack of case law spelling out the impermissibility of selling a child into slavery cannot mean that a defendant gets one free pass to do so.  Wrote Judge Posner in full:
Our job is the humbler one [than Congress's, in extending or abolishing immunity] of applying the immunity doctrine. We begin with the elementary proposition that it would be improper to deny immunity to a particular defendant on the ground that his conduct could be subsumed under some principle of liability in force when he acted. That approach would shrink immunity to trivial dimensions, since it is always possible to find a principle of comprehensive generality (such as "due process of law"). But the immunity doctrine as it has evolved goes much further than this to protect public officers. It is not enough, to justify denying immunity, that liability in a particular constellation of facts could have been, or even that it was, predicted from existing rules and decisions, even though law, as Holmes famously remarked, is a prediction of what courts will do faced with a particular set of facts. (Maybe it is more than that, but it is at least that.) Liability in that particular set must have been established at the time the defendant acted.

It begins to seem as if to survive a motion to dismiss a suit on grounds of immunity the plaintiff must be able to point to a previous case that differs only trivially from his case. But this cannot be right. The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.

Judge Henry
(Ballotpedia)
Murphy ex rel. K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (paragraph break added).  The Massachusetts Appeals Court here sought to fine-tune that balance between the general principle, religious freedom, and the specific distinction between one strict-scrutiny case and the next.

The case is Krupien v. Ritcey, No. AC 17-P-870 (Sept. 26, 2018).  The opinion was authored by Associate Justice Vickie L. Henry.  A graduate of Wellesley College and Boston University Law, Judge Henry left a lucrative commercial litigation practice with Foley Hogg in 2011 to serve as senior staff attorney and youth initiative director for Gay & Lesbian Advocates & Defenders (GLAD).  In that capacity, she appeared in the consolidated cases that became Obergefell v. Hodges (U.S. 2015), establishing the federal constitutional right of gay marriage.  Judge Henry was appointed to the bench by Governor Baker in 2015.