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denying dismissal of suit for breach of contract rooted in previous settlement agreement and not in defendant's statutory duties under Chapter 151B
Summary of this case from Galletly v. Coventry Healthcare, Inc.Opinion
CIVIL ACTION NO. 07-10233-RWZ.
October 30, 2007
MEMORANDUM OF DECISION AND ORDER
Plaintiff William Harrison ("Harrison") brings a six-count complaint based upon alleged age discrimination by his former employer, Kraft Foods Global, Inc. (together with Kraft Foods, Inc., "Kraft"). Kraft has filed a motion to dismiss the complaint. The motion is ALLOWED in part and DENIED in part.
There is some confusion as to the identity of Harrison's former employer, Kraft Foods, Inc. or Kraft Foods Global, Inc. Kraft alleges that Kraft Foods, Inc. is a holding company without employees and Harrison's employment was with Kraft Foods Global, Inc. (See Mem. in Supp. of Defs.' Mot. to Dismiss ("Defs.' Mem.") (Docket # 15-1) at 1 n. 1.) Harrison alleges that Kraft Foods, Inc. consistently held itself out as his employer and the written settlement agreement at issue is between himself and Kraft Foods, Inc. (See Pl.'s Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n") (Docket # 18-1) at 2 n. 1.) Given the current confusion, I decline to dismiss Kraft Foods, Inc. from the action at this time.
I. Factual Background
The facts are drawn from Harrison's amended complaint (Docket # 9). For purposes of the motion to dismiss, I accept as true all well-pleaded allegations. Ezra Charitable Trust v. Tyco Int'l, Ltd., 466 F.3d 1, 6 (1st Cir. 2006).
Harrison worked for Kraft for nearly thirty years prior to his termination in October 2005, having been hired as a sales representative for a predecessor company in 1978. In 1999, he filed an age discrimination complaint against Kraft with the Massachusetts Commission Against Discrimination ("MCAD"), based upon Kraft's alleged failure to promote him. The parties entered into a settlement agreement the same year, and Kraft promoted Harrison to the position of Customer Business Manager. In May 2005, he was again promoted, to the position of Customer Business Manager II.
In June 2005, Harrison was charged with driving while under the influence ("DUI") while off-duty and driving a personally-owned vehicle. He believed that Kraft's written company policy required him, as an employee in a "car-eligible" position, to report the DUI to Kraft. He, therefore, did report the DUI to both his manager and Kraft's Human Resources department and indicated that his court appearance was scheduled for late July 2005. In mid-July 2005, Kraft suggested that Harrison take vacation time with the expectation that the DUI matter would be resolved by the time he returned. However, the DUI hearing was subsequently rescheduled to mid-September 2005.
In August 2005, Harrison was diagnosed with a medical condition. Kraft suggested that he take a short term disability leave, again with the expectation that the DUI matter would be resolved prior to his return. Harrison took the disability leave intending to return to work on October 1, 2005. However, on September 13, 2005, the evening before his scheduled court appearance, he learned that the hearing had again been postponed, to November 14, 2005. He notified Kraft of the delay.
On September 23, 2005, Kraft informed Harrison that his employment would be terminated effective October 1, 2005. The stated reason for termination was a company policy which required termination upon an employee's citation for DUI unless the employee was found "not guilty" of the charge. Kraft informed Harrison that it would reinstate him when the DUI charges were resolved, either in his current position or a different position with the same salary and benefits. Kraft described specific other positions that would be available to Harrison upon his return.
In late October 2005, Harrison learned that Kraft had hired a man in his thirties to fill his position. Shortly thereafter, he learned that Kraft had hired a woman in her thirties to fill one of the other positions Kraft had described to him.
In mid-November 2005, Harrison's DUI hearing was again rescheduled to December 2, 2005. On that date the charge was dismissed for lack of prosecution. Harrison notified Kraft of the dismissal on three separate occasions — in December 2005, January 2006, and March 2006. Kraft did not respond.
Harrison then sent a letter to Kraft in April 2006 asserting that Kraft had discriminated against him on the basis of his age. In response, Kraft asked him to confirm that he wanted to be reinstated and requested court documents showing that the DUI charge had resulted in a finding of "not guilty." Harrison promptly confirmed his interest in reinstatement and provided Kraft with the court documents showing dismissal for lack of prosecution.
Harrison then learned that the prosecutor had decided to refile the DUI charge. On June 12, 2006, with the re-filed DUI charge pending, Kraft informed Harrison that it would not reinstate him under any circumstances. The DUI charge was subsequently dismissed with prejudice in October 2006.
II. Procedural History
On July 24, 2006, Harrison filed a charge of discrimination with MCAD alleging age discrimination in violation of Mass. Gen. Laws ch. 151B ("ch. 151B"), § 4. He subsequently withdrew his charge and commenced an action pursuant to ch. 151B, § 9, in the Massachusetts Superior Court. The complaint alleged (1) unlawful discrimination in violation of ch. 151B; (2) breach of an employment contract; and (3) wrongful termination in violation of public policy. Kraft timely removed the complaint to federal court under 28 U.S.C. § 1441 and filed a motion to dismiss. Harrison filed a second charge with MCAD on February 13, 2007, alleging unlawful retaliation and unlawful inquiry into criminal history. He filed an amended complaint on February 20, 2007 ("Complaint" or "Compl.") (Docket # 9), which added three new causes of action: (1) breach of the 1999 settlement agreement between Harrison and Kraft (Count II); (2) unlawful retaliation (Count III); and (3) unlawful employment practices (Count IV). Kraft timely filed a motion to dismiss (Docket # 14).
Chapter 151B, § 9 provides, in part, that "any person claiming to be aggrieved by a practice made unlawful under this chapter . . . may, at the expiration of ninety days after the filing of a complaint with the commission, or sooner if a commissioner assents in writing . . . bring a civil action for damages or injunctive relief or both in the superior or probate court. . . . The petitioner shall notify the commission of the filing of the action, and any complaint before the commission shall then be dismissed without prejudice, and the petitioner shall be barred from subsequently bringing a complaint on the same matter before the commission."
The Complaint set forth the previous claims in Count I (age discrimination in violation of ch. 151B); Count V (breach of employment contract); and Count VI (wrongful termination in violation of public policy).
III. Legal Standard
Dismissal is appropriate only if the complaint "presents no set of facts justifying recovery." Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). In deciding the motion to dismiss, I accept as true all well-pleaded allegations and give plaintiff the benefit of all reasonable inferences. Ezra, 466 F.3d at 6. As plaintiff's claims are based upon violations of Massachusetts law, I must look to the constructions placed upon these statutes by Massachusetts' courts. See Woods v. Friction Materials, Inc., 30 F.3d 255, 263 (1st Cir. 1994), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).
Defendants assert discrete grounds for dismissing each of the counts in the complaint. I address each argument in turn.
IV. Discussion
A. Count I: Age Discrimination in Violation of Ch. 151B, § 4
Under ch. 151B, § 5, a complainant must file a charge with MCAD "within 300 days after the alleged act of discrimination." Kraft argues that the alleged act of discrimination occurred on September 23, 2005, when it informed Harrison that his employment would be terminated, and plaintiff's age discrimination claim is untimely because he filed his MCAD charge on July 24, 2006 — 304 days later. Plaintiff counters that the allegedly discriminatory "act" did not occur on September 23, 2005, because the termination was equivocal, and the discriminatory act occurred in late October 2005 at the earliest, when he learned that a younger man had been hired to fill his position.
Plaintiff has the better of this argument. The instant case is analogous to Wheatley v. Am. Telephone Telegraph Co., 636 N.E. 2d 265 (Mass. 1994). In Wheatley, the employer informed the employee that his position would be eliminated, but that he would have a "transition period" in which to find another position within the company. The Massachusetts Supreme Judicial Court ("SJC") held that the termination notice, which offered the possibility of other employment within the company, was "equivocal" and therefore did not trigger the commencement of the limitations period. Id. at 268. Here, Kraft terminated Harrison but told him that he would be reinstated when the DUI charges were resolved, either in his current position or a different position within the company. Kraft even described specific positions that would be available to Harrison upon his return. Kraft's September 23, 2005, termination notice is therefore properly viewed as equivocal and insufficient to trigger the statute of limitations.
Defendants heavily rely upon Adamczyk v. Augat, Inc., 755 N.E. 2d 824 (Mass.App.Ct. 2001), to support their argument that the September 23, 2005, termination was unequivocal. In Adamczyk, the SJC found that the limitations period was triggered by the employer's announcement that it intended to close one of its manufacturing plants, notwithstanding its contemporaneous statement that it would "make every effort to provide job transfer opportunities to other facilities for those interested."Id. at 827. However, in Adamczyk the allegedly discriminatory act was the employer's decision to close that particular facility, allegedly because it contained a significant number of older workers. The employees were therefore notified of the allegedly discriminatory act on the date the company informed them the plant would be closed. The termination notice was unequivocal regarding the closure of the plant because the company's statement that it would attempt to provide job transfer opportunities could not reasonably be construed to mean that the company might change its decision regarding the closure. See id. at 829.
Furthermore, in age-based discriminatory discharge claims, "the limitations period does not start to run until the employee knows or should know that he or she has been or will be replaced by a person outside the protected age group." Wheatley, 636 N.E. 2d at 268. Harrison alleges that he became aware that Kraft had filled his position with a younger man in late October 2005. Therefore, on this basis as well, the limitations period for Harrison's age discrimination claim was not triggered by the initial termination notice on September 23, 2005. Harrison timely filed his initial MCAD charge.
B. Count II: Breach of Settlement Agreement
The 1999 settlement agreement between the parties included a promise by Kraft not to retaliate against Harrison for bringing his initial claim. Plaintiff alleges that Kraft used the criminal charge as a pretext for terminating him in retaliation for his 1999 age discrimination claim, and he asserts that Kraft has therefore breached the settlement agreement.
Kraft argues that this breach of contract claim simply recasts a retaliation claim Harrison could have made under ch. 151B and must therefore be dismissed. The SJC has determined that, "where applicable, G.L. c. 151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections. . . ." Charland v. Muzi Motors, Inc., 631 N.E. 2d 555, 559 (Mass. 1994); see also Green v. Wyman-Gordon Co., 664 N.E. 2d 808, 813 (Mass. 1996) ("Insofar as the plaintiff's common law claims are merely recast versions of her sexual harassment claims under c. 151B, they are barred by that statute's exclusivity provision.").
I decline to adopt defendants' argument. Although ch. 151B precludes the adoption of new common law remedies for discrimination, see Charland, 631 N.E. 2d at 559, it does not exclude previously existing common law remedies. "[W]e do not view [ch. 151B] as tending to narrow or eliminate a person's common law rights where applicable. The statute broadens existing remedies rather than requiring resort to it as exclusive of all other remedies." Comey v. Hill, 438 N.E. 2d 811, 817 (Mass. 1982) (plaintiff's claim for tortious interference with an advantageous relationship due to age discrimination not precluded by ch. 151B). Harrison's claim for breach of contract is rooted in the 1999 settlement agreement between the parties, not Kraft's statutory duties under ch. 151B. His common law right to sue for breach of contract pre-existed the enactment of ch. 151B and is therefore not precluded by the statute. See Long v. Am. Int'l Adjustment Co., Inc., Civ. A. No. 86-0060-MA, 1986 WL 9806, at *2 (D. Mass. Mar. 12, 1986) (allowing suit for breach of employment contract stemming from defendant's alleged age discrimination because "the wrong [plaintiff] complains of here — the protected interest — is not age discrimination, but his dashed contractual expectations"). The court notes, however, that the complaint is light on facts connecting Kraft's alleged conduct to Harrison's 1999 age discrimination claim. Accordingly, the claim may be ripe for dismissal on summary judgment once the parties have engaged in discovery.
C. Counts III and IV: Unlawful Retaliation in Violation of Chapter 151B, § 4 and Unlawful Employment Practices in Violation of Chapter 151B, § 4(9)
Harrison alleges that Kraft retaliated against him for his April 2006 complaint of age discrimination (made via a letter to Kraft dated April 11, 2006) by placing new conditions on his reinstatement, namely, proof that the DUI charge had been adjudicated and resolved with a "not guilty" finding instead of any favorable resolution, and then by revoking its promise of reinstatement entirely. He also alleges that Kraft's automobile policy violates ch. 151B, § 4(9), which prohibits employers from inquiring into an employee's "arrest, detention, or disposition regarding any violation of law in which no conviction resulted. . . . "
Kraft poses two grounds for dismissal of Counts III and IV. First, it argues that Harrison did not comply with ch. 151B, § 9, which provides that a civil action may not be brought on a claim until the expiration of ninety days after the filing of the MCAD complaint or sooner if a commissioner assents in writing. Harrison did not file an MCAD charge for these alleged violations until February 13, 2007. When he filed his amended complaint adding these claims a week later, on February 20, he did not have a commissioner's assent to do so without waiting for the expiration of the ninety-day term. He therefore failed to exhaust his administrative remedies as required by ch. 151B, § 9.
Harrison did not obtain MCAD's assent to add the alleged violations to the complaint until March 23, 2007. (See Docket # 18-5.)
The fact that Harrison subsequently obtained permission from the MCAD to withdraw his second charge does not alter the fact that its underlying claims were prematurely added in the complaint. This requirement is not merely technical in nature; rather, it furthers important purposes. "First, it is meant to provide the agency with an opportunity to investigate and conciliate the claim of discrimination. Second, the filing requirement provides notice to the defendant of a potential suit." Conroy v. Boston Edison Co., 758 F. Supp. 54, 57 (D. Mass. 1991). That purpose is frustrated if the employee is permitted to allege one thing in the administrative charge and later something entirely different in the civil action. Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996) (interpreting Title VII). The proper procedural remedy in this situation is dismissal of these claims. However, because Harrison has now satisfied the prerequisites under ch. 151B and time remains in the limitations period for him to file another complaint, he could simply file a separate action with these claims. Such a course is not efficient. Given this unique situation, dismissal of the claims for failure to exhaust administrative remedies would represent the triumph of form over substance and common sense.
Second, Kraft cites ch. 151B, § 9, which provides for dismissal of the MCAD charge once a judicial action is filed. Thereafter, the plaintiff is "barred from subsequently bringing a complaint on the same matter before the commission." Defendants argue that because Harrison's second MCAD charge concerns the "same matter" as Harrison's initial MCAD charge, he was barred from filing it.
It is true that the factual allegations in Harrison's February 13, 2007, MCAD charge ("2007 Charge") (Docket # 18-4) are nearly identical to the allegations made in his July 24, 2006, MCAD charge ("2006 Charge") (Docket # 18-2). The unlawful employment practices claim (Count IV) concerns the "same matter" as the 2006 Charge because it simply asserts a new theory of liability based upon the same allegations regarding Kraft's auto policy that were made in the 2006 Charge. Similarly, Harrison's retaliation claim is based upon Kraft's June 12, 2006, letter in which it allegedly revoked its promise of reinstatement because of Harrison's complaints of age discrimination. (See Compl. ¶ 50.) The 2006 Charge included allegations regarding Kraft's June 12, 2006, letter. (2006 Charge ¶¶ 19, 21.) Accordingly, the retaliation claim also involves the "same matter" as the 2006 Charge.
These documents are properly before the court on a motion to dismiss. See Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) ("when . . . a complaint's factual allegations are expressly linked — and admittedly dependent upon — a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6)"); Edwin v. Blenwood Assocs., 9 F. Supp. 2d 70, 72 (D. Mass. 1998) (when an MCAD charge is referenced in the complaint and its content determines the parameters of the complaint, "this Court may consider the MCAD complaint in making its decision on this [12(b)(6)] motion without converting the matter into a summary judgment proceeding").
Plaintiff argues, alternatively, that whether or not the unlawful practices and retaliation claims constitute the "same matter" as the 2006 Charge is not dispositive because the claims are "reasonably within the scope" of the 2006 Charge. Under First Circuit precedent, a claim that was not raised in an administrative charge will survive if it "is reasonably within the scope of an agency investigation of [the] administrative charge." Lattimore, 99 F.3d at 464. The scope-of-investigation rule "reflects the idea that the scope of a civil action is not determined by the specific language of the charge filed with the agency, but rather, may encompass acts of discrimination which the MCAD investigation could reasonably be expected to uncover." Davis v. Lucent Technologies, 251 F.3d 227, 233 (1st Cir. 2001). The rule requires a fact-specific inquiry into the similarities between the administrative charge and the civil claim. Additional claims may proceed when they are "reasonably related to the allegations of the charge and grow out of such allegations." Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir. 1990).
In this instance, the 2006 Charge challenged Kraft's policy, even though the unlawful practices claim was not expressly made. (See 2006 Charge ¶ 6 ("The stated reason for the termination made no sense. . . . The DUI citation was a purely private matter having no bearing on my job at Kraft"); ¶ 20 ("Kraft's decision to terminate my employment and refusal to reinstate me without waiting to see how the DUI charges were resolved was arbitrary on it[s] face . . .").) Although it is a close question, one could reasonably expect an MCAD investigation based upon the 2006 Charge to include the issue of whether Kraft's auto policy constitutes an unlawful employment practice.
In contrast, the retaliation claim is not reasonably within the scope of the 2006 Charge. The "scope of the charge" analysis focuses on the potential investigation that the administrative agency would have conducted based on the charge. See Powers, 915 F.2d at 39. Here, the 2006 Charge did not include any mention of the claim of age discrimination that Harrison made in his April 11, 2006, letter to Kraft, nor Kraft's response. (Compare 2007 Charge ¶¶ 9-10 with 2006 Charge ¶ 17.) The 2006 Charge did not include any facts which would suggest to an investigator that Harrison was complaining about retaliation. Accordingly, the retaliation claim is not within the scope of the 2006 Charge. See Wynn Wynn, P.C. v. Mass. Comm'n Against Discrimination, 729 N.E.2d 1068, 1082 (Mass. 2000); Lattimore, 99 F.3d at 463-64;Conroy v. Boston Edison Co., 758 F. Supp. 54, 59-60 (D. Mass. 1991).
The motion to dismiss is allowed as to Count III and denied as to Count IV.
D. Count V: Breach of Employment Contract and/or Breach of Duty of Good Faith and Fair Dealing
1. Breach of Employment Contract
The stated reason for Harrison's termination was the application of Kraft's auto policy, which purportedly called for immediate termination of any employee charged with a DUI, as well as a requirement of a "not guilty" finding on any DUI charge. (See Docket # 18-6 at 8.) Harrison alleges that this version of the auto policy was not in effect at the time he was charged, and Kraft's actions were inconsistent with its prior written policies, amounting to a breach of an employment contract between the parties. (See Compl. ¶¶ 39(a), 61.)
Massachusetts law assumes at-will employment, unless there exists, expressly or impliedly, a contract governing the terms and conditions of employment. Jackson v. Action for Cmty. Dev., 525 N.E.2d 411, 412 (Mass. 1988). "[O]n proper proof, a personnel manual can be shown to form the basis of an express or implied contract." Id. at 415. In O'Brien v. New England Tel. Tel. Co., 664 N.E.2d 843 (Mass. 1996), the SJC attempted to clarify the standard by which to determine whether an employment manual serves, either expressly or impliedly, as a contract. The SJC noted that the central question is whether the employee "would reasonably conclude that the employer was presenting the manual as a statement of the conditions under which employment could continue." Id. at 848. Harrison satisfies the pleading requirement by alleging that he "understood that such a policy purported to reflect certain terms and conditions of employment at Kraft. . . ." (Compl. ¶ 14.)
Kraft argues that Harrison cannot allege the breach of an alleged employment agreement because he disputes that the auto policy was in effect when he received his DUI. (Defs.' Mem. at 12-13.) Kraft misconstrues Harrison's claim. Although Harrison alleges that the exact auto policy Kraft applied to him was not in existence at the time of his DUI (see Compl. ¶ 61), he clearly alleges that Kraft had an auto policy at the time. (See id. ¶ 14 ("Mr. Harrison's understanding was that . . . a written company policy required him to report the citation and the date of the scheduled court appearance to his manager. He had seen such a written policy in the past. . . .").)
Whether Harrison has adequately pled a breach of this policy and resultant breach of employment contract, is another matter. (See Rep. Mem. in Supp. of Defs.' Mot. to Dismiss (Docket # 20) at 6.) Employment policies may grant employees rights that are greater than those enjoyed in at-will employment. However, Harrison has simply alleged the existence of a prior policy that required him to report the charge of DUI. He has not identified any terms in the previous policy that would form the basis of an implied contract obligating Kraft not to terminate him because of the charge. I am mindful that I must read the complaint to support all reasonable inferences; however, I am free to disregard "bald assertions [and] unsupportable conclusions." In re Credit Suisse First Boston Corp., 431 F.3d 36, 45 (1st Cir. 2005).
Harrison attached "pertinent parts" of the employment policy "at issue" to his opposition to the motion to dismiss. (See Pl.'s Opp'n at 2 n. 1 and Docket # 18-6.) I may take notice of materials incorporated into the complaint by reference. See Beddall, 137 F.3d at 17. However, the portions of the policy attached by Harrison fail to provide any basis for his allegation that Kraft's actions breached its policy.
The policy, which is dated both October 1, 2003, and March 7, 2002, contains the same operative language as the policy from October 2005 (Docket # 18-3). (See Docket # 18-6 at 3 ("It is the policy of Kraft Foods that all vehicles, whether Company-owned, leased, locally rented, or employee-furnished, be used by employees in compliance with applicable driving laws. . . . This policy also includes and covers personally owned vehicles . . .) (emphasis added); id. at 7-8 ("Off-duty moving violations are fully encompassed in this policy," defining "Charge or conviction of DUI" as a "Disqualifying Moving Violation," providing "No 'disqualifying' violations [allowable] after hire date," and stating "Disqualifying or chargeable moving violation citations are automatically considered convictions unless a 'not guilty' verdict is rendered by the traffic/judicial authority. Drivers who incur a disqualifying moving violation anytime after hire . . . will be subject to immediate termination of employment.").)
2. Breach of Duty of Good Faith and Fair Dealing
Harrison also alleges that Kraft's application of its auto policy breached its duty of good faith and fair dealing. The SJC's most recent elucidation of this issue, in Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d 667 (Mass. 2005), is helpful:
Every contract in Massachusetts is subject, to some extent, to an implied covenant of good faith and fair dealing. This implied covenant may not be invoked to create rights and duties not otherwise provided for in the existing contractual relationship. . . .
In the context of employment, employers (in varying contexts and subject to strict limitations) have been held liable for breach of the implied covenant of good faith and fair dealing only in circumstances when an at-will employee has been terminated in bad faith. There is no general duty on the part of an employer to act nicely.Id. at 683-84 (internal citations and quotation marks omitted). In Ayash, the employee argued that the employer breached the covenant by not following the disciplinary procedures described in its bylaws. Id. at 684. The SJC agreed, finding that a claim could be asserted based upon an employer's alleged bad faith breach of its implicit promise to abide by its own procedures. Id.
Harrison's claim is similar: he alleges that Kraft acted in bad faith by applying an auto policy not in effect at the time of his DUI and terminating him prior to the resolution of his DUI charge. The difficulty with this claim, as with Harrison's breach of employment contract claim, is that he has not alleged that Kraft's prior policies included any sort of promise or obligation to delay termination until a DUI charge was resolved, nor has he alleged that Kraft's actions otherwise violated its own disciplinary procedures.
Additionally, Harrison's failure to plead any damages stemming from the alleged breach is fatal to his claim. "Our cases establish that, in awarding damages for breach of the implied covenant of good faith and fair dealing, the goal is to compensate an employee for past services and to deny the employer any readily definable, financial windfall resulting from the breach." Ayash, 822 N.E.2d at 685 (internal citation and quotation marks omitted). "[K]eeping in mind that the plaintiff received all sums due her for her employment, [the employer] is liable neither for negative effects on the plaintiff's future career nor for the plaintiff's emotional distress." Id. at 686 (finding no breach of implied covenant even though employer did not renew plaintiff's employment contract). The same is true here. Harrison does not allege that Kraft has not compensated him for past services; his claim exclusively concerns his desire for wages he would have made in the future had his employment not been terminated. As such, his claim is not cognizable. See id.;Harrison v. NetCentric Corp., 744 N.E.2d 622, 630 (Mass. 2001) (no claim when employer "did not deprive the plaintiff of any income that he reasonably earned or which he was entitled"); King v. Driscoll, 673 N.E.2d 859, 863 (Mass. 1996) ("King II") (same).
The motion is allowed as to Count V.
E. Count VI: Wrongful Termination in Violation of Public Policy
Under Massachusetts law, at-will employees can, in certain circumstances, sue for wrongful termination in violation of public policy. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 533 N.E.2d 1368, 1371 (Mass. 1989). However, "the public policy exception to the general rule — that an at-will employee may be terminated with or without cause — is quite narrow." Mitchell v. Tac Tech. Serv., Inc., 734 N.E.2d 1198, 1201 (Mass.App.Ct. 2000). The SJC has established categories of discharge in violation of public policy: "Redress is available 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)." Smith-Pfeffer, 533 N.E.2d at 1371 (internal citations and quotation marks omitted). See generally King v. Driscoll, 638 N.E.2d 488, 492 (Mass. 1994) ("King I"), 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.'" Id. (quoting Smith-Pfeffer, 533 N.E.2d at 1371).
Harrison alleges that Kraft violated public policy, specifically Mass. Gen. Laws ch. 214, § 1, by conditioning his on-going employment upon aspects of private, off-duty conduct — his DUI charge — that he believes does not bear upon his employment. Massachusetts has not previously applied the public policy exception to the type of conduct alleged here, and Harrison admits that his claim presents a novel theory of recovery. However, "[t]he rationale for implying a private remedy under the 'public policy exception' to the traditional rule governing at-will employment contracts is that, unless a remedy is recognized, there is no other way to vindicate such public policy." Melley v. Gillette Corp., 475 N.E. 2d 1227 (Mass. 1985). Here, the alleged conduct is already protected by ch. 151B, § 4(9), and is subject to the comprehensive administrative scheme of ch. 151B and does not, therefore, give rise to a claim for violation of public policy. See id.; Charland, 631 N.E. 2d at 559; Green, 664 N.E. 2d at 813.
Chapter 214, § 1B, provides: "A person shall have a right against unreasonable, substantial or serious interference with his privacy."
See Pl.'s Opp'n at 18 n. 12.
V. Conclusion
For the reasons stated above, defendants' motion to dismiss is ALLOWED as to Counts III, V and VI. It is DENIED as to the remaining counts.