Apessos v. Memorial Press Group

15 Mass. L. Rptr. 322
CourtMassachusetts Superior Court
DecidedSeptember 30, 2002
DocketNo. 011474A
StatusPublished

This text of 15 Mass. L. Rptr. 322 (Apessos v. Memorial Press Group) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Apessos v. Memorial Press Group, 15 Mass. L. Rptr. 322 (Mass. Ct. App. 2002).

Opinion

Sikora, J.

RULING

Upon consideration of all motion and opposition materials and of the oral arguments of counsel, the court hereby DENIES the motion of defendant Memorial Press Group (“MPG”) to dismiss both counts of the verified Complaint of Sophia Apessos pursuant to MassR.Civ.P. 12(b)(6).

REASONING

I.The Allegations of the Complaint

The main allegations of the verified Complaint are as follows. MPG employed Sophia Apessos as a newspaper reporter from approximately June of 1999 through July of 2000 (Complaint, ¶¶8, 26). During that time she suffered verbal and physical abuse from her then husband, Gilbert Hernandez (id., ¶9). On Saturday, July 29, 2000, Hernandez beat Ms. Apessos; she sought help from Plymouth Police Department (id., ¶¶12-13). The police arrested Hernandez and charged him with assault and battery (id., ¶13). The police helped Ms. Apessos to obtain a temporary abuse prevention order in accordance with G.L.c. 209A, §5 (id., ¶14). On the evening of July 29 Hernandez called Ms. Apessos from jail in violation of the order (id., ¶15).

On Monday, July 31, Ms. Apessos appeared in the Plymouth District Court to apply for an extension of the temporary abuse prevention order (id., ¶16). Also on that day she appeared at Hernandez’ arraignment upon the assault and battery charge and upon a charge of violating the restraining order (id., ¶¶18-19). She gave testimony about the Saturday night call in violation of the order (id., 119). In addition she went to the police station to have photographs taken of her face. She then returned home in order to have her door locks changed, a measure recommended to her by the police (id., 1117, 21, 22). The events occupied the entire work day.

On Saturday evening she had called her supervisor and left a voice message that she would be absent on Monday in order to attend court proceedings. On Monday afternoon she spoke by phone with her supervisor, informed that person of the need to meet the locksmith at her house, and advised that she would be at work on Tuesday morning, August 1 (id. at 1117, 23).

When she reported to work in the morning, MPG’s human resources director terminated her (id., 124). Ms. Apessos alleges that MPG discharged her because of her absence on Monday, July 31; that the absence was the effect and proximate cause of her termination (id., 1126-27).

II. Dismissal Standards Under Rule 12(b)(6)

Under Rule 12(b)(6) the motion judge must treat as true all well pleaded allegations of the complaint and all reasonable inferences available from those allegations in favor of the plaintiff. Nader v. Citron, 372 Mass. 96, 98 (1977) (authorities collected from the cognate federal rule).

Dismissal is appropriate “only if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” GMAC v. Abington Casualty Co., 413 Mass. 583, 584 (1992), quoting from Nader v. Citron, 372 Mass. 96, 98 (1977), and from Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A motion judge need not dismiss a claim simply because it alleges a new theory of liability. “]I]t is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader’s suppositions.” New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28, 30 (1988).

III. Count One for Wrongful Termination in Violation of Public Policy. A. Generally

Massachusetts recognizes a common law claim (sounding in tort) for wrongful termination of an at-will employee. The claimant must plead (1) that the employer discharged her, (2) for reason in violation of a public policy, (3) embodied in a specific provision of law such as a constitutional clause or statute. Wright v. Shriners Hospital for Crippled Children, 412 Mass. 469, 472-75 (1992); Hobson v. McLean Hospital Corporation, 402 Mass. 413, 416 (1988); and DeRose v. Putnam Management Co., 398 Mass. 205, 210 (1986). The identification of a public policy is a matter of law for the court. However the court must locate the policy in a reasonably specific source. See Wright 412 Mass. at 472-75 (policy is lacking in state regulations and in federal and state statutes generally encouraging sound standards of hospital care and management); Kolodziej v. Smith, 418 Mass. 215, 222 (1992) (policy affording religious holiday benefits does derive from state constitutional provision assuring free exercise of religious freedom); Mello v. Stop & Shop Companies, 402 Mass. 555, 560-61 (1988) (no public policy exists in a company’s treatment of internal managerial misconduct reported by the discharged employee but not acted upon by the company).

Massachusetts has recognized an actionably public policy interest in circumstances in which a company terminated the employee for refusal to give false testimony against another employee, DeRose v. Putnam Management Co., 398 Mass. 205, 208-10 (1986); for insistence upon compliance with safety regulations at [324]*324a hospital, Hobson v. McLean Hospital Corporation, 402 Mass. 413, 416-17 (1988); for cooperation in a governmental investigation of the employer, Flesner v. Technical Communication Corp., 410 Mass. 805, 810-11 (1991); and for reporting to the employer the criminal conduct of another employee, Shea v. Emmanuel College, 425 Mass. 761, 762-63 (1997). Legislation has been the primaiy, but not the exclusive, location of the public policy interest. “While we often look to statutes to find pronouncements of public policy, it is not necessarily true that the existence of a statute relating to a particular matter is by itself a pronouncement of public policy that will protect, in every instance, an employee from termination.” King v. Driscoll, 418 Mass. 576, 583-84 (1994). The reason for the Massachusetts courts’ caution is the concern that a relaxed or enlarged definition of protected public policies would erode the essential character of at-will employment: the right of the employer to discharge the worker freely, with or without reason. Wright, 412 Mass. at 472.

B. Ms. Apessos’ Claim

Under 12(b)(6) canons I must treat as true the allegations of the complaint that MPG fired Ms. Apessos by reason of her August 1, 2000, absence from work to pursue her judicial remedies against domestic abuse by her husband, and' to assist the police in the presentation of evidence (the photographing of her face), and to assist in her own security (the change of locks). The question becomes whether these activities, in whole or in part, embody a public policy sufficiently recognized by specific provisions of law so as to protect Ms. Apessos’ from termination for their pursuit.

First, and most generally, Ms. Apessos was engaged in activity authorized by law. Part One, Article XI, of the Declaration of Rights of the Massachusetts Constitution assures each citizen “recourse to the laws, for all injuries or wrongs which [s]he may receive in [her] person, property, or character.

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Conley v. Gibson
355 U.S. 41 (Supreme Court, 1957)
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364 N.E.2d 1251 (Massachusetts Supreme Judicial Court, 1977)
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524 N.E.2d 105 (Massachusetts Supreme Judicial Court, 1988)
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Wright v. Shriners Hospital for Crippled Children
589 N.E.2d 1241 (Massachusetts Supreme Judicial Court, 1992)
Nader v. Citron
360 N.E.2d 870 (Massachusetts Supreme Judicial Court, 1977)
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Bluebook (online)
15 Mass. L. Rptr. 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apessos-v-memorial-press-group-masssuperct-2002.