Mitchell v. TAC Technical Services, Inc.

734 N.E.2d 1198, 50 Mass. App. Ct. 90, 16 I.E.R. Cas. (BNA) 1305, 2000 Mass. App. LEXIS 762
CourtMassachusetts Appeals Court
DecidedSeptember 14, 2000
DocketNo. 98-P-343
StatusPublished
Cited by7 cases

This text of 734 N.E.2d 1198 (Mitchell v. TAC Technical Services, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. TAC Technical Services, Inc., 734 N.E.2d 1198, 50 Mass. App. Ct. 90, 16 I.E.R. Cas. (BNA) 1305, 2000 Mass. App. LEXIS 762 (Mass. Ct. App. 2000).

Opinion

Gillerman, J.

Claiming that his employment was terminated on account of his age (count I) and that the termination was in violation of public policy and therefore wrongful (count II), the [91]*91plaintiff brought this action against his employer, TAC Technical Services, Inc. (TAC); Polaroid Corporation (Polaroid), his workplace; and David Chenard, his supervisor at Polaroid.2 A judge of the Superior Court allowed the defendants’ motions for summary judgment. We affirm.

We state the material facts, as developed in the plaintiff’s deposition and his two affidavits, in the light most favorable to the plaintiff. The plaintiff, a mold mechanic, began working as an at-will employee at Polaroid on or about April 24, 1995. The plaintiff’s job involved the use of isopropanol 99, a cleaning substance used to wipe molds. According to the plaintiff, his first supervisor, Robert Roussos, on several occasions told him that he was happy with the plaintiff’s job performance as a mold mechanic.

A week or two after beginning his work at Polaroid, the plaintiff found that fumes from the isopropanol “irritated” him, and he asked Roussos for a material safety data sheet (MSDS) at that time. The plaintiff wanted to assess the “hazardous nature” of the isopropanol. Roussos said he would try to locate one. The plaintiff made the same request on a “number of occasions” thereafter. The plaintiff makes no mention in his affidavit of any additional events during the succeeding months of May and June.

On Thursday, July 6, 1995, the plaintiff again asked Roussos for an MSDS on isopropanol. Roussos said he wanted to see the MSDS also; he intended to complain about the fumes as well. Later that day the plaintiff repeated his request in front of the defendant Chenard, the plaintiff’s second supervisor. Chenard was annoyed and interrogated the plaintiff in a hostile manner. Later, Chenard gave the plaintiff the wrong MSDS. The plaintiff discovered the mistake, and Chenard told the plaintiff to look for the MSDS himself. The plaintiff was unable to find it. Chenard said he would get the MSDS directly from the manufacturer. The MSDS arrived from the manufacturer very shortly thereafter and was given to the plaintiff.3

At about 11 a.m. on July 6 or July 7 (the record is unclear), [92]*92the plaintiff left work because he “didn’t feel well.” He did not return to work the following Monday “[b]ecause the hazard still existed and I was sick when I left [work].”

On the following Monday, July 10, he learned that he had been terminated either late Friday or on Monday. On July 10 or 11, he filed a “health complaint” with the Occupational Safety and Health Administration (OSHA), and met with that agency on July ll.4

In his affidavit dated May 8, 1997, filed in these proceedings, the plaintiff stated, “I need to conduct discovery in this matter in order to demonstrate inter alla, the age of the person that replaced me, when the actual decision was made to discharge me, who made such decision, what statements were made about such decision, what documents are in existence relative to such decision, what conversations . . . Chenard had with Roussos about my performance, etc. I need to take the depositions of . . . Chenard and Roussos.”5 It appears from the record before us that the plaintiff did not conduct any such discovery or take any such depositions.

Discussion. The first stage of the established three-stage analysis under the Massachusetts antidiscrimination statute, G. L. c. 15IB, puts the burden on the plaintiff to establish a prima facie case of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000). In an age discrimination case, this requires the plaintiff to establish that he was (i) over forty; (ii) doing his job acceptably; (iii) fired; and (iv) replaced by a younger person. Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 n.4 (1996). The plaintiff appears to have satisfied the first three conditions, but [93]*93not the fourth. As noted above, the plaintiff acknowledged that he required discovery in order to establish “the age of the person that replaced” him. The plaintiff attempted no such discovery, and he filed no affidavit pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), that could provide a basis for a continuance in order to take the needed depositions. In these circumstances the failure to file the rule 56(f) affidavit was “fatal.” See Baker v. Monga, 32 Mass. App. Ct. 450, 453 (1992). The fourth condition not having been fulfilled, the plaintiff did not survive stage one of his discrimination claim. There was no error in dismissing count I.

Count II — the alleged public policy exception to the rule governing at-will employees — presents a quite different question. We start with the fact that the public policy exception to the general rule — that an at-will employee may be terminated with or without cause — is quite narrow. Merola v. Exergen Corp., 423 Mass. 461, 464 (1996). See King v. Driscoll, 418 Mass. 576, 582-583 (1994), describing instances where the exception is available, and concluding “[t]his court consistently has interpreted the public policy exception narrowly, reasoning that to do otherwise would ‘convert the general rule . . . into a rule that requires just cause to terminate an at-will employee.’ ” Ibid., quoting from Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989).

The plaintiff points to the Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651 et seq. (1994) (act), as evidence of a strong Federal policy of providing a safe workplace to employees. For that reason, the argument continues, the act provides the basis for applying the public policy exception to the Massachusetts common law regarding at-will employment. More particularly, the plaintiff points to 29 C.F.R. § 1977.12(a) (1999), which discusses § 11(c) of the act. Section 11(c) of the act protects employees, inter alla, from discrimination, or discharge, occurring because of the exercise “of any right afforded by this Act.” See 29 C.F.R. § 1977.3(d). Section 1977.12(a) continues: “Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (section 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents [94]*94of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation.”

Subsection (b)(1) of 29 C.F.R. § 1977.12 continues the discussion of § 11(c) of the act: “On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter,

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734 N.E.2d 1198, 50 Mass. App. Ct. 90, 16 I.E.R. Cas. (BNA) 1305, 2000 Mass. App. LEXIS 762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-tac-technical-services-inc-massappct-2000.