Opinion
1784CV0055BLS2
01-16-2019
Anthony J. GUARINO, Ph.D. v. The MGH INSTITUTE OF HEALTH PROFESSIONS, INC. et al.
MEMORANDUM AND ORDER ALLOWING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT and DENYING PLAINTIFF’S ORAL MOTION TO AMEND HIS COMPLAINT
Kenneth W. Salinger, Justice of the Superior Court
Anthony J. Guarino worked as a faculty member at The MGH Institute of Health Professions, Inc. ("IHP") for a number of years. Dr. Guarino claims that IHP’s decision not to renew his faculty appointment constitutes a breach of contract and wrongful termination in violation of public policy, that Alex Johnson (IHP’s Provost) unlawfully interfered with Guarino’s employment contract, and that both IHP and Johnson defamed Guarino. Defendants have moved for summary judgment on all claims. At the motion hearing, Guarino made an oral motion to amend his complaint to add a claim that IHP’s subsequent termination of his employment before the end of Guarino’s five-year appointment constitutes a further breach of contract.
The Court concludes that Defendants are entitled to summary judgment in their favor on all facts and that the proposed amendment to the complaint would be futile. The undisputed facts show that Guarino engaged in a pattern of disruptive and insubordinate conduct. IHP’s decisions not to renew and then to terminate Guarino’s employment because of that unprofessional conduct did not violate the parties’ contract. Guarino cannot assert a claim for wrongful discharge in violation of public policy because he was employed for a term of years, not at-will; in any case, firing Guarino in part for publicly criticizing IHP did not violate public policy. Since IHP did not breach its contract with Guarino, Johnson cannot be liable for interfering with that contract; in any case there is no evidence that Johnson acted with a legally improper motive or used improper means in firing Guarino. The defamation claim regarding allegations against Guarino in the written statement of cause for dismissal is barred by Defendants’ conditional privilege to disclose negative allegations in connection with determining whether an employee should be fired, and Guarino has not mustered any competent evidence that Defendants made any other defamatory statement about him. The Court will therefore ALLOW Defendants’ motion for summary judgment and DENY Plaintiff’s oral motion to amend his complaint.
1. Factual Background
The following are undisputed facts, as demonstrated in the evidentiary materials submitted by the parties or reasonable inferences that one could draw from those facts. The Court "must ... draw all reasonable inferences" from the evidence presented "in favor of the nonmoving party," as a jury or judicial fact finder would be free to do at trial. Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119 (2010). It has done so.
1.1. Terms of Employment
IHP is a private, non-profit charitable institution of higher learning that offers post-secondary degrees in several health professions. IHP describes itself on its official stationary as "A graduate school founded by Massachusetts General Hospital." Dr. Johnson is and at all relevant times was the Provost of IHP, which means that he oversees and is responsible for academic affairs at IHP.
IHP first hired Dr. Guarino as a Professor in 2009 for a three-year term. In 2012 IHP renewed Guarino’s faculty appointment for a five-year term of employment starting September 1, 2012 and expiring on August 31, 2017. Guarino’s reappointment was as a Professor in the Center for Interprofessional Studies and Innovations. His direct supervisor was Associate Provost Peter Cahn.
The letter of reappointment signed by IHP and Guarino states that "[t]he benefits and responsibilities" of Guarino’s faculty appointment "are outlined in and are subject to the policies and terms in the MGH Institute of Health Profession’s Faculty Handbook."
This Handbook provides that all IHP faculty members must "collectively commit" to act in accord with a list of the school’s "core values in all we do." Those values include maintaining an "inclusive and welcoming environment where every person is treated with dignity and respect," fostering "mutual trust and collegiality," and building "productive partnerships among faculty, staff, and students that support learning and work and foster interprofessional and global collaboration."
Like all IHP professors, Guarino never had tenure. Nor did he have any contractual right to have his faculty appointment renewed at the end of its term.
Although Dr. Guarino disagrees with this view of his contractual rights, as explained below the proper legal interpretation of unambiguous provisions of the Handbook is a question of law for the Court to decide.
It is up to the Provost to decide whether to recommend that a faculty member be reappointed. If the Provost recommends reappointment to a five-year term, which is offered to all faculty members with the rank of Professor, that recommendation must be approved by the Trustees. If the Provost chooses not to recommend reappointment, then the faculty member’s employment by IHP will not continue beyond the existing appointment. The Trustees do not and need not review decisions by the Provost not to recommend reappointment.
The Handbook provides that the Provost’s decision as to whether to recommend a faculty member for reappointment must be based on whether there is continuing demand for the particular faculty member in the program where they have been working, whether the faculty member has been successful at meeting the goals of that program and the Institute as a whole, and whether the faculty member’s supervisor recommends that they be reappointed. The Handbook also indicates that a faculty member’s annual review is "a valid and useful indicator of academic productivity and performance," and that it should therefore be used "to inform the reappointment decision."
Although the Handbook’s "guidelines for faculty reappointment" state that any faculty member not being recommended for reappointment must be informed "of their rights of appeal," nothing else in the Handbook or in any other IHP policy establishes any appeal process or right.
Faculty members like Guarino can be fired for cause before the end of their term of appointment. The Handbook provides that cause for dismissal "includes, but is not limited to," (i) "substantial failure to discharge the responsibilities and duties of a faculty member," and (ii) engaging in "unprofessional conduct which seriously and detrimentally affects the educational goals of the Institute or which might cause the Institute to be held in disrepute or legal consequences."
Decisions as to whether to dismiss a faculty member for cause must be made pursuant to the "Problem Resolution Procedure" specified in the Handbook. The Procedure provides that formal proceedings, including those concerning the possible dismissal of a faculty member for cause, must be commenced by the delivery of a "statement of cause" by the Provost to the affected faculty member and to the faculty Hearing Committee, which will then review the matter.
1.2. Dr. Guarino’s Performance
As a Professor at IHP, Dr. Guarino taught classes in statistics and biostatistics and served as the methodologist and a statistical consultant for faculty and student research projects and grants.
Dr. Guarino consistently received high marks for his teaching and scholarship. In 2011 Guarino received an award for excellence in teaching. And in subsequent annual reviews his supervisor, Dr. Cahn, repeatedly praised Guarino’s professional contributions to IHP as a teacher and consulting statistician.
However, Guarino became involved in a series of interpersonal conflicts at IHP that eventually led to his faculty appointment not being renewed and then to the early termination of Guarino’s employment by IHP.
1.2.1. Conflict with Student
One such conflict involved a student. In September 2013, an IHP student sent an email, from her personal Gmail account, asking Guarino and another faculty member to reschedule a meeting about her doctoral program capstone project. The student worked at a university in another state. She explained she could not attend the scheduled meeting because her university dean had imposed a mandatory commitment. Guarino responded to the student at her work email account, copied the student’s dean at her place of employment without the student’s prior knowledge or authorization, and revealed to the student’s employer that the student’s capstone project had been rejected. The student was very upset and lodged a formal complaint at IHP.
1.2.2. Conflicts with Colleagues
Other such conflicts involved IHP faculty and staff. In December 2013, a female faculty colleague had trouble getting Guarino to finish statistical work she needed for a paper she was trying to complete and have published. The colleague asked Guarino either to finish his work and get credit for co-authorship, or to "release authorship" and let the colleague "find another statistician to finish the project." Guarino refused to do either, asserting that he "cannot be deleted as an author because you refuse to meet with me" and accusing the colleague of being "habitually ill prepared." The colleague was upset and turned to the Provost for help. Johnson resolved the matter by helping the faculty colleague recruit an outside consultant to finish the statistical work and convincing Guarino to withdraw his demand for authorship credit.
In January 2014 a different female faculty member complained to IHP’s Director of Research Programs that Guarino had repeatedly made her uncomfortable by engaging in unpredictable and unprofessional behavior. The faculty member requested confidentiality and said she did not want to go forward with a formal investigation.
In March 2014 a female staff member complained about Guarino to the human resources department. According to the staff member, Guarino told her that he recently saw someone from behind that looked like the staff member, and that Guarino wanted to get that woman into bed until he realized it was not the staff member. The staff member said that this was not the first time Guarino had made unwelcome sexual comments to her. The staff member said she did not want to participate in a formal investigation and preferred to speak to Guarino herself.
Although Guarino disputes that he ever harassed this or another staff member or colleague, it is undisputed that this female staff member made these complaints.
1.2.3. Formal Warning
Dr. Cahn warned Dr. Guarino in his 2014 annual evaluation that although Guarino continued to excel in teaching and research, Guarino’s repeated conflicts with others at IHP, as summarized above, were a troubling "pattern of unprofessionalism" that "threaten to undermine" IHP’s "collegial working and learning environment."
1.2.4. Communication with Student
In July 2015, Guarino complained about Johnson to an IHP student. After the student sent an email thanking Guarino for his teaching and positive contributions to the student’s education, Guarino responded in an email that he copied to Johnson. In that response Guarino said he was "always arguing" with Johnson about the student’s program, asserted that Johnson "thinks I’m a puntz" [sic], and asked the student to send positive feedback about Guarino to Johnson because Guarino believed that would give him "more leverage to argue for funding."
Johnson followed up in writing with Guarino. Johnson explained that Guarino’s communication with this student "was unprofessional and demonstrated poor judgment," that it was "inconsistent with the core values of the IHP," and that any further unprofessional conduct by Guarino "will lead to disciplinary action up to and including dismissal from employment at the IHP."
Guarino did not react well to this letter. He responded in writing, telling Johnson that his letter was "another example of your pattern of capricious, baseless accusations, which has now created a hostile environment." Guarino asserted that "these allegations are ... groundless and a gross violation of my rights."
Johnson and Cahn then met with Guarino and discussed the incidents and complaints summarized above. During this meeting Guarino said that Johnson was a bully and that Guarino felt sorry for Johnson because so many students and colleagues had complained about him.
1.2.5. Criticism of IHP Annual Report
At around the same time, also in July 2015, Guarino sent an email to Johnson questioning a statistic in the IHP’s 2014 Annual Report. In that document IHP reported that the number of students receiving scholarships had increased by 61 percent over the past two years. Guarino said that this was misleading because one could calculate, based on other figures in the annual report, that over the same period the average aid award per student had decreased by 14 percent from $ 18, 055 to $ 15, 501 per student. The other figures indicated that the total amount of financial aid had increased by 38 percent from $ 3.25 million to $ 4.48 million over these two years, and that the total number of students receiving financial aid had increased by 61 percent from 109 to 180.
In Guarino’s view increases in the number of students receiving financial aid and in the total amount of financial aid awarded by IHP were irrelevant if the average student aid award had decreased because the total number of financial aid recipients had gone up. Guarino asserted in his email to Johnson that reporting the increase in the number of students receiving aid was a form of "duplicity" because it used "the wrong unit of measure."
Johnson responded by email, copying the IHP President, Dr. Jan Bellack. Johnson asked to meet with Guarino to discuss the concern he had raised about the annual report. In response, Guarino said "I really see no reason to meet" because "the numbers speak for themselves."
Guarino did not let the matter rest. In November 2015, Guarino solicited an email from a friend at The Louisiana State University Laboratory School questioning the same financial aid data in IHP’s annual report. Guarino later testified that although he did not write this email he did help "frame" it. Guarino shared this email with Johnson and discussed it with staff from IHP’s human resources department.
This prompted President Bellack to write to Guarino a few days later regarding the issue. Bellack noted that the financial aid statistics criticized by Guarino were all accurate and denied that they were misleading or deceptive. She also expressed surprise that Guarino had received the email from his friend on the same day he was scheduled to meet with human resources, and told Guarino that he "should not be responding personally on behalf of the Institute with regard to our Annual Report or other published institutional data measures."
On April 4, 2016, more than four months later, Guarino replied to Bellack in an email that said "Attached is a partial response ..." to Bellack’s November 19, 2019, memorandum. Guarino attached an article he had written with four others that criticized the financial aid data discussed in IHP’s annual report. Although the article did not identify IHP by name, it reproduced two figures directly from IHP’s annual report, described them as having been published by "a professional graduate school in the northeast," and referred to the school as "the Institute." The article asserted that the figures taken from IHP’s annual report were "devious" and that they did not "accurately or honestly portray a useful financial aid picture because there was no base line adjustment" to account for the increased number of students receiving financial aid. It also declared that knowingly presenting data in this way, by comparing raw numbers without adjusting for base line differences, is "devious and borderline criminal."
Dr. Bellack responded to Dr. Guarino ten days later in a letter. Bellack expressed her dismay that Guarino had responded to her November 2015 memorandum by publishing an article using "the Institute’s images without permission" and "portraying the Institute using disparaging language." She told Guarino that, in her view, the article was "unprofessional behavior" that "disrupts the [IHP’s] learning and work environment," and that he would be subject to disciplinary action potentially including dismissal from employment if he could not "behave in a professional manner."
Guarino expressed his strong disagreement with Bellack’s letter a few weeks later. In his May 2016 self-evaluation, which he sent to Cahn, Guarino asserted that his "professionalism and competence was maliciously attacked because I alerted the administration to serious misrepresentations and embarrassingly stupid calculations printed in the Institute’s published reports." Guarino also said that Bellack’s recent letter "confirmed what I have suspected for some time; the research capabilities of many in upper management is abysmally low."
1.3. Non-Renewal of Faculty Appointment
Under the terms of the Faculty Handbook, Dr. Guarino was entitled to learn at least one year in advance whether his five-year appointment to the faculty would be renewed after it lapsed by its terms on August 31, 2017.
Dr. Guarino met with his supervisor Dr. Cahn in December 2015 for Guarino’s mid-year evaluation. During this meeting, Guarino reiterated his desire to take a one-year sabbatical during the 2016-2017 academic year, which would be the last year of Guarino’s current academic appointment.
In February 2016, Cahn informed Guarino that IHP was not going to renew his faculty appointment when it expired on August 31, 2017. Cahn also said that, although Guarino could not take a formal sabbatical leave during his final year at IHP, the Institute was willing to grant Guarino leave from all duties during his last year as a faculty member, while continuing his full compensation and benefits. In response, Guarino said he preferred to stay on and teach during his last year, rather than take the functional equivalent of the sabbatical he had requested.
On May 17, 2016, Cahn forwarded to Guarino a letter from Provost Johnson stating that IHP would not be renewing his faculty appointment. In the letter, Johnson said he would not recommend that Guarino be reappointed and that as a result Guarino’s faculty appointment would expire on August 31, 2017. Johnson said that Guarino would continue to receive his full compensation and benefits, but that during his last year Guarino would no longer be asked to teach any IHP students or allowed to accept any new statistical consulting projects with students or faculty members. Johnson said that Guarino could keep using his IHP laptop, but that during Guarino’s last year IHP would no longer be providing him with an office, because Guarino would no longer have any active responsibilities at IHP. In the last paragraph Johnson alluded to "previous and ongoing concerns with your professional behavior, which have been separately addressed," and warned Guarino that "any new violations of my HP policy on your part may result in your immediate dismissal."
Three months later, in August 2016, Guarino accused Johnson of making "unsubstantiated allegations concerning my unprofessional behavior." He also asserted that Johnson’s decisions to bar Guarino from continuing to teach IHP students or accepting new statistical consulting projects with IHP students or faculty members "far exceed your purview" as Provost of IHP. Although Guarino agreed not to teach during the coming academic year, Guarino said he intended to continue to help IHP colleagues with course preparations and data analyses. Guarino also refused to vacate his office space.
1.4. Termination of Employment
IHP responded by starting a formal dismissal proceeding against Dr. Guarino.
On October 25, 2016, Dr. Cahn submitted a written "Statement of cause for dismissal" to Dr. Johnson. The Statement of Cause alleged that all of the incidents described above "establish a pattern of unprofessional conduct" and that Dr. Guarino should be dismissed for having engaged in "unprofessional conduct which seriously and detrimentally affects the educational goals of the Institute or which might cause the Institute to be held in disrepute or legal consequences," which the Faculty Handbook identifies as on possible ground for dismissing a faculty member for cause.
On November 4, 2016, Dr. Johnson sent the Statement of Cause to Dr. Guarino and to the three faculty members who were elected by the faculty to serve on its Hearing Committee, as required by the Faculty Handbook. The Hearing Committee was responsible, under the Handbook, for determining whether there should be a formal hearing, if so conducting the hearing, and then making a recommendation was to whether Dr. Guarino should be dismissed. The Hearing Committee decided that a formal hearing was appropriate.
At Dr. Guarino’s request, the Hearing Committee extended the deadlines established by the Faculty Handbook. The Committee gave Guarino until December 14 to submit a written response to the Statement of Cause and gave both sides until January 6, 2017, to submit any documents they planned to introduce and to identify any witnesses they planned to present at the formal hearing. The Committee also twice postponed the hearing to accommodate Dr. Guarino.
Although Dr. Guarino asserted that he still did not have enough time to gather evidence to submit to the Committee, he has not identified any documents or testimony that he could have presented if only he had been given a further extension of the time for doing so.
Dr. Guarino submitted a detailed written response to the Statement of Cause on December 14, 2016. He did not submit any other documents. The formal hearing took place on February 27, 2017. Dr. Johnson, President Bellack, and Sarah Welch (from the human resources department) testified. Dr. Guarino was given the opportunity to testify and to call other witnesses; he opted not to do so.
The Hearing Committee issued its written findings and recommendations on March 14, 2017.
The Committee made several findings in favor of Dr. Guarino. It found that IHP did not prove that Guarino engaged in conduct that created a sexually hostile work environment. The Committee found that Guarino did nothing wrong in using profanity one time when he spoke with President Bellack. Though it did not approve of Guarino’s 2013 actions in revealing a student’s difficulties in completing her capstone project to the student’s employer, the Committee found that this did not violate the federal Family Educational Rights and Privacy Act. And it found that "the Institute did not prove that there was factual support for the allegations of unprofessional conduct made by Professor Guarino’s female colleagues because those colleagues did not appear as witnesses at formal hearing."
But the Committee expressly found that all of the other claims set forth in the statement of case were substantiated by the evidence, which is reproduced in the summary judgment record.
The Committee found that Guarino had engaged in a "pattern of inappropriate, disruptive and unprofessional conduct" that was "antithetical to the Core Values of the Institute," and that he had "repeatedly engaged in unprofessional conduct which seriously and detrimentally affected the educational goals of the Institute and caused the Institute to be held in disrepute."
The three faculty members serving on the Hearing Committee unanimously recommended that Guarino be immediately dismissed. Johnson accepted the recommendation and terminated Guarino’s employment for cause on March 15, 2017.
2. Claimed Breach of Contract
IHP is entitled to summary judgment in its favor on Guarino’s claims that IHP breached the express terms and the implied covenant of good faith and fair dealing of its employment contract with Guarino by not renewing Guarino’s faculty appointment beyond August 2017.
2.1. Contractual Nature of Handbook
The IHP told Dr. Guarino in his letter of reappointment that "[t]he benefits and responsibilities" of his employment as a faculty member "are outlined in and are subject to the policies and terms in the MGH Institute of Health Profession’s Faculty Handbook."
IHP and Guarino are therefore contractually bound by the provisions of the Faculty Handbook and Guarino was "entitled to whatever rights" that the Handbook set forth. See O’Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 694 (1996). To the extent that the Handbook provisions are contractually binding, the meaning of its unambiguous provisions is a question of law that the Court must decide. See Driscoll v. Board of Trustees of Milton Academy, 70 Mass.App.Ct. 285, 293 (2007).
"If a contract ... is unambiguous, its interpretation is a question of law that is appropriate for a judge to decide on summary judgment." Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002). "Whether a contract is ambiguous is also a question of law." Eigerman v. Putnam Investments, Inc., 450 Mass. 281, 287 (2007). "[A]mbiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other’s." Indus Partners, LLC v. Intelligroup, Inc., 77 Mass.App.Ct. 793, 795 (2010) (affirming summary judgment), quoting Jefferson Ins. Co. v. Holyoke, 23 Mass.App.Ct. 472, 475 (1987).
The Court must construe the Handbook by applying "the standard of ‘reasonable expectation’" and give the Handbook whatever meaning that IHP "should reasonably expect the other party" (i.e., its faculty members) "to give it." Id., quoting Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000); accord Berkowitz v. President & Fellows of Harvard College, 58 Mass.App.Ct. 262, 269, rev. denied, 440 Mass. 1101 (2003). Since the Handbook is part of a contract between an institution of higher education and its faculty members, the Court must avoid reading the Handbook in a way that would unreasonably interfere with academic decisions by the institution. Berkowitz, supra; accord Schaer, supra, at 482.
Unless they make a clear contractual commitment to the contrary, colleges, universities, and similar institutions have broad discretion in deciding who may join or remain on their faculty. See Berkowitz, supra (ordering dismissal of complaint challenging denial of tenure). Such decisions "necessarily hinge on subjective judgments regarding the professor’s academic excellence, teaching ability, creativity, contributions to the university [or institute] community, report with students and colleagues, and other factors that are not susceptible of quantitative measurement." Id., quoting Kumar v. Board of Trustees, Univ. of Mass., 774 F.2d 1, 12 (1st Cir. 1985) (Campbell, C.J., concurring); accord Massachusetts Bd. of Higher Educ./Holyoke Community College v. Massachusetts Teachers Ass’n/Massachusetts Community College Council/National Education Ass’n, 79 Mass.App.Ct. 27, 33 (2011).
Absent "a violation of a reasonable expectation" created by contract or "arbitrary and capricious conduct" by the institution, courts and juries may not second-guess decisions by an academic institution about who should serve on its faculty. Berkowitz, at 58 Mass.App.Ct. 269-70.
2.2. No Breach by Non-Renewal of Faculty Appointment
Dr. Guarino had no contractual right to be reappointed to the IHP faculty after his five year term as a professor ended in August 2017. The Faculty Handbook gives the Provost broad discretion as to whether to recommend that a professor’s faculty appointment be renewed. The Handbook requires the Provost to base that decision on three criteria: whether there is continuing demand in the IHP program where the faculty member has been working for the particular faculty member, whether the faculty member has been successful at meeting the goals of their particular program and the Institute in general, and whether the faculty member’s academic unit supervisor recommends that they be reappointed. But these criteria each involve subjective judgments.
The undisputed facts show that the Provost’s decision not to recommend that Dr. Guarino’s appointment be renewed was reasonably based on the contractual criteria and thus was not arbitrary or capricious.
It was neither arbitrary nor capricious for Dr. Johnson to conclude that Dr. Guarino had not been successful at meeting the goals of the Institute, and thus that the second criterion was not met, because Guarino’s escalating conflicts with colleagues were inconsistent with core values of IHP as specified in the Faculty Handbook. Under the Handbook, Guarino had a contractual obligation to treat others with dignity and respect, conduct himself in a manner that fostered mutual trust and collegiality, and build productive partnerships among faculty, staff, and students. Johnson could reasonably have concluded that Guarino acted in a manner inconsistent with these values by bickering with and violating the trust of other faculty, staff, and students, as discussed above.
The third criterion was also not met, as Guarino’s supervisor did not recommend reappointment.
Although a jury could reasonably conclude that at least part of the reason IHP did not renew Guarino’s term of employment is that he helped to write and publish an article attacking IHP’s discussion of its financial aid program in its 2014 annual report, under the circumstances that did not make the non-renewal arbitrary, capricious, or a breach of contract. Guarino could have written an article that criticized the use of financial aid statistics in IHP’s annual report in a professionally appropriate manner. But he chose not to do so. Instead, Guarino published an article accusing IHP’s leadership of being dishonest, devious, and almost criminal— even though he never questioned the accuracy of any of the data or calculations disseminated by IHP. After IHP’s President complained about Guarino’s attack upon the Institute, he responded in his self-evaluation by questioning the academic competence of IHP’s upper management. These undisputed facts show that it was reasonable for Johnson and Cahn to conclude that Guarino was no longer capable of participating in productive partnerships with IHP faculty and staff.
In sum, no reasonable jury could find that IHP abused its discretion in considering Guarino’s vituperative attacks on IHP leadership in deciding not to renew Guarino’s academic appointment. Cf. Springgate v. School Comm. of Mattapoisett, 11 Mass.App.Ct. 304, 309-16 (1981) (trial judge committed reversible error in finding that school committee lacked ground to terminate tenured teacher who engaged in pattern of disruptive behavior with colleagues).
The facts do not support Guarino’s claims of procedural violations either. Johnson made his final decision as to whether to recommend renewal of Guarino’s appointment immediately after Guarino’s annual review, as contemplated in the Handbook. And since Guarino had no right of appeal under the Handbook, IHP’s alleged failure to inform him of that fact could not have caused him any harm.
Guarino’s claim that IHP breached the implied covenant of good faith and fair dealing adds nothing to his claim that IHP breached the express terms of the Faculty Handbook. The implied covenant "does not create rights or duties beyond those the parties agreed to when they entered into the contract." Boston Med. Ctr. Corp. v. Secretary of Executive Office of Health & Human Servs., 463 Mass. 447, 460 (2012) (affirming dismissal of claim), quoting Curtis v. Herb Chambers I- 95, Inc., 458 Mass. 674, 680 (2011). Instead, the implied covenant only governs "the manner in which existing contractual duties are performed." Eigerman v. Putnam Investments, Inc., 450 Mass. 281, 289 (2007). The undisputed facts show that IHP’s decision not to renew Guarino’s appointment did not violate the implied covenant, for the reasons discussed above.
2.3. Termination for Cause Cut Off any Damages
In any case, Guarino’s claim that IHP breached his contract by not renewing his faculty appointment beyond August 2017 became moot once his employment was terminated for cause in March 2017. The undisputed facts demonstrate that IHP lawfully terminated Guarino’s employment for cause after affording him all of the procedural rights provided in the Faculty Handbook.
The Handbook provides that any IHP faculty member may have their appointment and employment terminated early "for cause." As noted above, the Handbook provides that cause for dismissal "includes, but is not limited to": (i) "substantial failure to discharge the responsibilities and duties of a faculty member"; and (ii) engaging in "unprofessional conduct which seriously and detrimentally affects the educational goals of the Institute or which might cause the Institute to be held in disrepute or legal consequences."
Where an employer is allowed to discharge an employee for "cause," as here, the employer may terminate someone’s employment based on any ground "reasonably related, in the employer’s honest judgment, to the needs of his business." Flomenbaum v. Commonwealth, 451 Mass. 740, 746 (2008), quoting G & M Employment Serv., Inc. v. Commonwealth, 358 Mass. 430, 435 (1970). This standard "necessarily leave[s] some scope for the exercise of subjective judgment on the part of the employer." Goldhor v. Hampshire Coll., 25 Mass.App.Ct. 716, 722 (1988). Whether termination was for cause may be resolved by summary judgment where no reasonable jury could infer that the employee was discharged for a reason unrelated to the employer’s legitimate business interests. See York v. Zurich Scudder Investments, Inc., 66 Mass.App.Ct. 610, 618-19 (2006).
The undisputed facts show that IHP had reasonable grounds to dismiss Guarino for cause. IHP knew that Guarino repeatedly sparred with colleagues, had made several female colleagues feel uncomfortable in his presence, had upset a student by revealing to the student’s employer that she was having difficulty completing her doctoral capstone project, and tried to involve another student in an interpersonal conflict between Guarino and the IHP Provost. Then, from late 2015 into 2016, Guarino became increasingly insubordinate toward IHP administrators. He turned a professional discussion with IHP’s President about the Institute’s use of financial aid statistics in its annual report into a thinly-veiled public attack on IHP, in an article calling the Institute’s administration "devious" and dishonest. When the President asked him to stop such attacks Guarino instead escalated and personalized them, by writing in his 2016 self-evaluation that his communications with the President demonstrated that "the research capabilities of many in upper management [at IHP] is abysmally low." Finally, after the Provost informed Guarino that his faculty appointment would not be renewed, Guarino flatly refused to obey the Provost’s instruction not to take on any new statistical consulting projects with IHP faculty or students and also refused to vacate his office.
Taken as a whole, this course of conduct by Guarino justified his dismissal for cause. "A pattern of persistent disruptive behavior and clashes with colleagues, however minor each incident, which tends in the judgment of" the hiring authority "to interfere with the efficient operation of a school is reasonable ground for dismissal; it may be characterized as conduct unbecoming a teacher." Springgate, 11 Mass.App.Ct. at 309 & 316 (affirming dismissal of tenured public school teacher based on repeated "displays of rudeness and tactlessness in front of students" and repeated failure "to work in a cooperative and civil manner with her colleagues"); accord Harris v. Board of Trustees of State Colleges, 405 Mass. 515, 526 (1989) (affirming dismissal of tenured professor based on pattern of behavior including belittling students and harassing faculty members, administrators, and staff).
In sum, the dismissal of Dr. Guarino for cause effective March 15, 2017, was consistent with and permitted under his contract with IHP. As a result, Guarino could have no claim for damages, and therefore his claim for breach of contract would fail even if there were a triable issue as to whether the prior non-renewal of his appointment constituted a breach of contract. See Schwartz v. Travelers Indem. Co., 50 Mass.App.Ct. 672, 682 (2001) (affirming summary judgment for defendant on contract claim because plaintiff could not muster any evidence he suffered damage as a result); see generally Roman v. Trustees of Tufts College, 461 Mass. 707, 711 (2012) ("A nonmoving party’s failure to establish an essential element of her claim ‘renders all other facts immaterial’ and mandates summary judgment in favor of the moving party." (quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991)).
The Hearing Committee’s decision not to grant Dr. Guarino’s further requests for continuances of filing deadlines and of the formal hearing date was not a breach of contract either. The Committee had discretion as to whether to grant such a continuance, and the undisputed facts show that there was no abuse of discretion here. See Martin v. School Committee of Natick, 393 Mass. 430, 436 (1984).
2.4. Oral Motion to Amend Contract Claim
Dr. Guarino’s complaint alleges that the non-renewal of his faculty appointment was a breach of contract. It does not allege that the subsequent termination of his employment for cause was a breach of contract. Nor could it. The complaint was filed on January 6, 2017, which was seven weeks before the Hearing Committee’s formal hearing and almost ten weeks before Guarino was fired.
During the hearing on Defendants’ motion for summary judgment, Guarino asked for the first time for leave to amend his complaint to add a claim that the termination of his employment was an independent breach of contract by IHP.
The Court denies Guarino’s oral motion to amend his complaint because the proposed amendment would be futile. See, e.g., Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436, 461 (2018) (affirming denial of motion to amend complaint to assert new claims because undisputed facts made clear that amendment would fail as a matter of law and thus be futile); Johnston v. Box, 453 Mass. 569, 583 (2009) ("Courts are not required to grant motions to amend prior [pleadings] where ‘the proposed amendment ... is futile.’" (quoting All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 272 (1993)).
Although the proposed amendment might survive a motion to dismiss, it would nonetheless be futile because it could not survive Defendant’s motion for summary judgment. "Leave to amend a complaint is futile when the complaint as amended would still be properly dismissed or be immediately subject to summary judgment for the defendant." Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). For the reasons discussed above, it is apparent from the summary judgment record that there are no material facts in dispute, Defendants would be entitled to summary judgment in their favor on the new claim as a matter of law, the proposed amendment would therefore be futile, and the motion for leave to file such an amended complaint should therefore be denied. See, e.g., Milanese, 244 F.3d at 110.
Accord, e.g., Executive Leasing Corp. v. Banco Popular de Puerto Rico, 48 F.3d 66, 71 (1st Cir. 1995); Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001); Steinburg v. Chesterfield County Planning Comm’n, 527 F.3d 377, 390-91 (4th Cir. 2008); King v. East St. Louis School Dist. 189, 496 F.3d 812, 819-20 (7th Cir. 2007); Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir 2001).
3. Wrongful Termination in Violation of Public Policy
IHP is also entitled to summary judgment in its favor on Guarino’s claim that the non-renewal of his faculty appointment violated public policy for several reasons.
Under Massachusetts law, only at-will employees can sue for wrongful termination in violation of public policy. See Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 209 (1991) ("The common-law doctrine granting an employee a cause of action for wrongful discharge, if the reason for the discharge is contrary to public policy, is limited to at-will employees"). Guarino was employed for a specified term of years. He was not an at-will employee and therefore cannot assert a claim for wrongful termination in violation of public policy.
In any case, the undisputed facts make clear that Guarino would not be able to prove he was discharged in violation of public policy even if he had been an at-will employee. Redress is available under this legal theory only "for employees who are terminated for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)," or for doing things that are expressly encouraged by statute such as cooperating with a law enforcement investigation. Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472-73 (1992), quoting Smith-Pfeffer v. Superintendent of Fernald State Sch., 404 Mass. 145, 149-50 (1989). There is no evidence that Guarino was let go for any such reason.
Though IHP’s financial aid program may be a matter of some public interest, terminating Guarino’s employment at least in part because he joined with others in writing and publishing an article criticizing IHP’s 2014 annual report does not constitute wrongful termination in violation of public policy as a matter of law. See Wright, 412 Mass. at 472 (firing employee in retaliation for having criticized hospital employer to outside reviewers did not violate public policy); Smith-Pfeffer, supra (firing competent employee because she signed letter highly critical of superintendent of state school for developmentally disabled clients and opposed his reorganization plan did not constitute discharge in violation of public policy).
4. Intentional Interference with Contractual Relations
Dr. Johnson is entitled to summary judgment in his favor on the claim that he tortiously interfered with the employment contract between IHP and Dr. Guarino.
To prevail on this claim, Guarino would have to prove that: (1) he "had an employment contract" with IHP; (2) Johnson "knowingly induced" IHP "to break the contract"; (3) Johnson’s interference "was improper in motive or means"; and (4) Guarino was harmed as a result of Johnson’s unlawful interference. Shea v. Emmanuel Coll., 425 Mass. 761, 764 (1997); accord, e.g., Weiler v. PortfolioScope, Inc., 469 Mass. 75, 84 (2014).
Johnson is entitled to summary judgment because Guarino cannot prove that Johnson induced IHP to breach its contract. As explained above, IHP is entitled to summary judgment in its favor on the breach of contract claims. Since Guarino cannot prove that IHP breached Guarino’s contract of employment it necessarily follows that Johnson cannot be held liable for tortious interference with that contract. See JNM Hospitality, Inc. v. McDaid, 90 Mass.App.Ct. 352, 354-55 & 357 (2016) (where landlord did not breach lease by failing to make nonexclusive parking spaces available to customers of restaurant lessee, third party cannot be liable for intentionally interfering with lease to detriment of tenant); Cavicchi v. Koski, 67 Mass.App.Ct. 654, 661 (2006) (where clients did not breach contingent fee agreements when they discharged attorney, new lawyer who convinced them to do so could not be liable for intentional interference with contract).
In addition, Johnson is entitled to summary judgment for the further reason that there is no evidence that Johnson acted with improper motive or means when he decided not to renew Guarino’s faculty appointment. In the employment context, a supervisor like Johnson cannot be held liable for interfering with someone’s employment unless the plaintiff employee proves the supervisor’s decision to fire the employee was done "for a spiteful, malignant purpose, unrelated to the legitimate corporate interest." Blackstone v. Cashman, 448 Mass. 225, 261 (2007), quoting Wright, 412 Mass. at 476. Even if a jury could find that Johnson fired Guarino in retaliation for criticizing IHP’s administration in the article attacking the 2014 annual report data, that would not support a finding that Johnson acted based on an improper motive because, as discussed above, IHP had the right to discharge Guarino for that reason. See Wright, supra .
5. Defamation Claims
Finally, Defendants are also entitled to summary judgment in their favor on the defamation claim.
5.1. Conditional Privilege
The defamation claim is based primarily on two paragraphs in the Statement of Cause that informed the Hearing Committee of the factual basis for Dr. Cahn’s recommendation that Dr. Guarino’s appointment be terminated early. In the paragraphs relevant to the defamation claim, the Statement summarizes allegations by a female faculty member whom complained that Guarino acted strangely and made her feel uncomfortable, and further allegations by a female staff member who asserted that Guarino made inappropriate sexual comments to her. Guarino has testified that these allegations are false.
Guarino argues that Dr. Johnson and IHP defamed him by publishing these allegations to the three members of the Hearing Committee.
Defendants are entitled to judgment in their favor on this claim because Guarino has not mustered any evidence to overcome the conditional privilege that protects publication of allegations of misconduct to a faculty hearing committee.
"An employer has a conditional privilege to disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer’s legitimate interest in the fitness of an employee to perform his or her job." Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 509 (1984). Where it applies, the conditional privilege protects an employer against liability for statements about an employee that "turn out not to be true." See Dexter’s Hearthside Rest., Inc. v. Whitehall Co., 24 Mass.App.Ct. 217, 222 (1987).
The conditional privilege applies here. The Handbook establishes a specific procedure that must be followed if the IHP seeks to dismiss a faculty member for cause. Dr. Johnson provided the Statement of Cause to the three faculty members who comprised the Hearing Committee established to investigate and review the charges against Dr. Guarino. Dissemination of the allegations against Guarino to this limited audience was reasonably necessary to serve IHP’s legitimate interest in determining whether Guarino was fit to continue as a faculty member. The mere fact that the Hearing Committee did not credit these allegations because neither of the women who had made them testified at the formal hearing is beside the point.
"It is true that an employer may lose its privilege if it ‘(1) knew the information was false, (2) had no reason to believe it to be true, ... (3) recklessly published the information unnecessarily, unreasonably, or excessively, ’ or (4) that it acted out of malice." Bulwer v. Mount Auburn Hosp., 86 Mass.App.Ct. 316, 335 (2014), quoting Sklar v. Beth Israel Deaconess Med. Center, 59 Mass.App.Ct. 550, 558 (2003).
IHP is nonetheless entitled to summary judgment on this claim because Guarino has not mustered any evidence "that would permit a rational fact finder to conclude that" IHP "was not entitled to the conditional privilege" with respect to the Statement of Cause. See Bulwer, supra; Barrows v. Wareham Fire Dist., 82 Mass.App.Ct. 623, 632 (2012); Martins v. University of Mass. Med. Sch., 75 Mass.App.Ct. 623, 634 (2009). There is no evidence whatsoever that IHP or Dr. Johnson knew or had any reason to believe that the allegations against Dr. Guarino by a female faculty member and a female staff member were false. Defendants only shared the Statement of Cause as required with the Hearing Committee members; there is no evidence that they shared it with anyone else. And there is also no evidence to support any inference that Defendants acted recklessly or maliciously in conveying the challenged allegations.
5.2. Hearsay and Conjecture
The rest of the defamation claim is based on inadmissible hearsay or conjecture. Guarino testified at his deposition that a graduate assistant, whose name he cannot recall, once told Guarino that the assistant heard Johnson say critical things to another professor about Guarino’s performance at a trustee meeting. Guarino also testified that he was "assuming" that Johnson said critical things about him to Dr. Chris Olsen at Global Health, because at some point Olsen told Guarino he could not hire him to do statistical consulting because of Guarino’s dispute with IHP. Guarino has not been able to muster any admissible evidence that Johnson made defamatory statements about Guarino to the unnamed professor, to Olsen, or to anyone else.
The Court cannot consider Guarino’s assertions or conjecture about disparaging statements allegedly made by Johnson when Guarino was not present.
The assertion regarding what the unnamed graduate assistant allegedly told Guarino constitutes inadmissible hearsay that may not be considered in deciding the pending motion for summary judgment. See Symmons v. O’Keefe, 419 Mass. 288, 295 (1995); Flesner v. Technical Communications Corp., 410 Mass. 805, 817 (1991); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437-38 (1989). This principle applies with full force to claims for defamation: a plaintiff claiming defamation cannot defeat a motion for summary judgment with inadmissible hearsay. See Whirty v. Lynch, 27 Mass.App.Ct. 498, 499-500 (1989).
Similarly, Guarino’s unsupported speculation that Johnson must have made defamatory statements to Olsen cannot defeat summary judgment either. "On summary judgment, any inference that could be drawn in favor of the nonmoving party ‘must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture.’" Cesso v. Todd, 92 Mass.App.Ct. 131, 139 (2017), quoting McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 706 n.3 (1990); accord Brooks v. Peabody & Arnold, LLP, 71 Mass.App.Ct. 46, 56 (2008).
ORDER
Defendant’s motion for summary judgment is ALLOWED. Plaintiff’s oral motion to amend his complaint to assert an additional claim for breach of contract is DENIED. Final judgment shall enter dismissing all claims with prejudice.
Although these cases were all decided under the federal rules of civil procedure, the same principle applies here. See generally Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 228 (2012) (judicial construction of federal rules of civil procedure applies to parallel Massachusetts rules, "absent compelling reasons to the contrary or significant differences in content" (quoting Strom v. American Honda Motor Co., 423 Mass. 330, 335 (1996), and Rollins Envtl. Servs., Inc., v. Superior Court, 368 Mass. 174, 180 (1975)).