JEFFREY FLESNER vs. TECHNICAL COMMUNICATIONS CORPORATION & others. [Note 1]

ABRAMS, J. Jeffrey Flesner claims that his former employer, Technical Communications Corporation (TCC), constructively discharged him in retaliation for his cooperation in a United States Customs Service investigation of TCC. A Superior Court judge awarded summary judgment in favor of TCC. Flesner now appeals, contending that the judge erred in dismissing his claims for (1) wrongful discharge; (2) misrepresentation; (3) invasion of privacy; and (4) violation of the Massachusetts Civil Rights Act, G. L. c. 12, Section 11I (1990 ed.). In addition, the defendants claim that Flesner is precluded from recovering damages by his own misrepresentations. We transferred the case to this court on our own motion. We reverse the summary judgment on the wrongful discharge and misrepresentation claims. We affirm on the other claims.

From the materials submitted to the court in conjunction with the summary judgment motion, the undisputed facts are as follows. TCC is a Massachusetts corporation that produces, develops, and sells internationally communications systems, including communications security systems. Arnold McCalmont and his son, James McCalmont, also defendants, are president and sales manager, respectively. Flesner worked as a salesman for TCC from January 31, 1983, until his resignation on September 1, 1983.

Flesner planned a sales trip to Argentina in July, 1983, to demonstrate certain TCC security equipment to potential buyers. He claims that before he left he repeatedly asked James McCalmont whether a temporary export license was needed to transport the equipment to Argentina. McCalmont

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told Flesner that because he was only demonstrating the equipment rather than making a permanent sale, no such license was required. At the time, TCC had applied for a temporary export license for Argentina but the application was returned with no action taken.

On the date of departure, Flesner was met at Logan International Airport in Boston by a TCC employee who delivered the equipment to Flesner and handed him a manila envelope containing Customs documents. Flesner checked the equipment through to Argentina. At a stopover in Miami, Flesner was detained by Customs officials. He handed them the documents that TCC had provided him in the manila envelope, but they did not satisfy the officials. The officials told Flesner that if he did not cooperate, he would be handcuffed and arrested on the spot. Flesner said he would cooperate. The officials further questioned Flesner for approximately two and one half hours about TCC's business, and Flesner's planned Argentina trip. Afterward, he was told to return to Boston the next day, but the equipment was seized.

When Flesner arrived back at Logan, he was met by other Customs officials who also told him that he would not be arrested or handcuffed if he cooperated. Again, he was questioned intensively. The officials instructed Flesner not to tell TCC that he was cooperating with them unless asked directly. They then released him. Later that night, Flesner met with the McCalmonts and Herman Wolz, another TCC employee, to relate the events of the past two days. He did not tell them, because they did not ask, that he was cooperating with Customs.

The Customs agents met with Flesner several times after the incident to ask further questions. They also interviewed Arnold McCalmont. At one point, Flesner was summoned to a meeting with Arnold McCalmont and TCC's lawyer at which Flesner informed them that he was cooperating with Customs. The lawyer advised Flesner that they might become adversaries and that Flesner should watch what he said to them.

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Flesner claims that the employer-employee relationship deteriorated thereafter. He asserts that he was forbidden to travel until the investigation was cleared up and that he was not allowed to telephone or telex potential customers. All of his correspondence was to be reviewed by Wolz, and little, if any, of it was approved for mailing. Because he was denied access to his customers, he asserts that he was prevented from making sales or earning commissions, although he had not made any sales prior to the incident either.

On August 31, 1983, Flesner told Arnold McCalmont and Wolz that he had met with Customs agents the previous week. Wolz told Flesner to inform them of any further contacts with Customs. Later, Flesner asked Wolz about his future with TCC. Wolz's response was not positive. He told Flesner that he should resign so that he could receive two weeks' severance pay or he would be fired the next day. On September 1, 1983, Flesner tendered his resignation.

In January, 1985, Flesner filed an eight-count complaint against the defendants. TCC counterclaimed for misrepresentation. In September, 1989, the defendants moved for summary judgment on Flesner's claims. [Note 2] On September 27, 1989, the judge allowed the motion except as to the counts for misrepresentation, wrongful discharge, and negligence. In October, he allowed the motion for all counts, and filed a memorandum of decision explaining his order. Flesner appeals the order as to five of those counts.

1. Motion for summary judgment. In ruling on a motion for summary judgment, "a judge . . . must consider `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' in determining whether summary judgment is appropriate. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). The burden on the moving party is to `show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment

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as a matter of law.' Id." Madsen v. Erwin, 395 Mass. 715, 719 (1985). This burden need not be met by affirmative evidence negating an essential element of the plaintiff's case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial. See Kourouvacilis v. General Motors Corp., ante 706 (1991).

Where a moving party properly asserts that there is no genuine issue of material fact, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A judge's mere belief that the movant is more likely to prevail at trial is not a sufficient basis for granting summary judgment. See Byrd v. Roadway Express, Inc., 687 F.2d 85, 87 (5th Cir. 1982); American Int'l Group v. London Am. Int'l Corp. Ltd., 664 F.2d 348, 351 (2d Cir. 1981). 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure Section 2725, at 104-105 (1983).

In cases where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) ("the generally accepted rule is that the `granting of summary judgment in a case where a party's state of mind . . . constitutes an essential element of the cause of action is disfavored'"), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984). See also Sweat v. Miller Brewing Co., 708 F.2d 655, 657 (11th Cir. 1983); Baldini v. Local 1095, UAW, 581 F.2d 145, 151 (7th Cir. 1978). 10A C. Wright, A. Miller, & M. Kane, supra at Section 2730. In such cases, "[m]uch depends on the credibility of the witnesses testifying as to their own states of mind. In these circumstances, the jury should be given an opportunity to observe the demeanor, during direct and cross-examination, of the witnesses whose states of mind are at issue." Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir. 1971).

With these principles in mind, we consider the merits of Flesner's arguments.

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2. Wrongful discharge. Flesner claims that TCC constructively discharged him in violation of public policy because of his cooperation with the Customs officials. We have recognized an exception to the traditional doctrine that at-will employees may be discharged for any reason or no reason at all, where the discharge is for reasons that violate public policy. See DeRose v. Putnam Management Co., Inc., 398 Mass. 205 (1986). We have held, for example, that a cause of action will lie when an employee is fired for disobeying the employer's instruction to testify falsely at a trial, see id., or for enforcing safety regulations for which she was responsible, see Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988).

In Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 149-150 (1989), we stated that 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)." Flesner claims he was discharged for cooperating with the Customs officials. The law did not require him to cooperate; he had the right to remain silent. Nevertheless, it is the public policy of this Commonwealth to encourage cooperation with ongoing criminal investigations. See, e.g., G. L. c. 262, Section 29 (1990 ed.) (providing compensation and travel costs reimbursement for any person who attends the Attorney General or the offices of a district attorney for the purpose of assisting an investigation); G. L. c. 233, Section 20D (1990 ed.) (permitting a grant of immunity for specified crimes for witnesses in a grand jury investigation); Correllas v. Viveiros, ante 314 (1991). Cf. 18 U.S.C. Section 6002 (permitting a grant of immunity to witnesses testifying or providing information in a proceeding ancillary to an agency of the United States).

We think that the reasons for imposing liability in the categories of cases set forth in Smith-Pfeffer also justify legal redress in certain circumstances for employees terminated for performing important public deeds, even though the law does

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not absolutely require the performance of such a deed. [Note 3] In such a situation, as in the Smith-Pfeffer categories, allowing the employer to terminate employees for reasons that directly contradict the public policy of the Commonwealth would seriously impair that policy. See Petermann v. International Bhd. of Teamsters, 174 Cal. App. 2d 184 (1959).

Cooperating with an ongoing governmental investigation is an important public deed which fits this category. See Palmateer v. International Harvester Co., 85 Ill.2d 124 (1981) (cause of action stated where plaintiff claims he was discharged in retaliation for supplying information to law enforcement agency that a fellow employee might have committed a crime and for agreeing to assist in the investigation and trial). The judge, however, granted summary judgment because "TCC never urged Flesner not to cooperate with Customs officials or otherwise hamper an investigation." This assertion does not demonstrate an absence of evidence on an essential element of the claim. See Kourouvacilis, supra. Flesner's claim is that the discharge itself was motivated by a desire to interfere with or retaliate for his cooperation with the investigation. Such intentional interference, if found by a jury, would constitute a wrongful discharge in violation of public policy.

Moreover, the judge asserted that, while "Flesner may be said to have been fired for participating in an illegal scheme in which the employer was involved, . . . such a termination does not fall within the public policy exception." Although a reasonable jury may conclude that such was the cause for Flesner's termination, it would not be required to so conclude. Where a jury can draw opposite inferences from the

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evidence, summary judgment is improper. See Anderson v. Liberty Lobby, Inc., supra at 248-250. Flesner's deposition asserts that he asked about export licenses and TCC told him they were not necessary. Thus, it is permissible to conclude that Flesner left on his trip completely unaware that he was acting in violation of the law. [Note 4] He describes his ongoing cooperation with Customs authorities and a corresponding deterioration in his working relationship with TCC. He asserts that he was told to resign with two weeks' pay or be fired. This evidence sufficiently raises a question of material fact as to whether Flesner was discharged in retaliation for his cooperation with a law enforcement investigation. [Note 5] The defendants contend that Flesner was discharged, if at all, for other legitimate business reasons. Thus, the motive for the discharge is a primary contested issue of fact. In such circumstances, the grant of summary judgment on these claims was improper. See Sweat v. Miller Brewing Co., supra (where employer's intent in discharging plaintiff was contested, summary judgment was improper); Padway v. Palches, 665 F.2d 965, 967 (9th Cir. 1982) (same). [Note 6]

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3. Damages. In addition to economic damages, Flesner claims damages for emotional distress and mental anguish as well as punitive damages. [Note 7] Punitive damages are not allowed in this Commonwealth unless expressly authorized by statute. See Santana v. Registrars of Voters of Worcester, 398 Mass. 862, 867 (1986); USM Corp. v. Marson Fastener Corp., 392 Mass. 334, 353 (1984). Because no such legislative authorization applies to this case, Flesner's claim for punitive damages cannot stand.

Because the judge ordered summary judgment for the defendants on liability for the wrongful discharge count, he did not decide whether such a cause of action gives rise to tort damages, such as those for emotional distress claimed by Flesner, in addition to contract damages. There is, therefore, no ruling before us to review.

The parties focused on liability in the motion for summary judgment. Therefore, the factual background on damages is undeveloped. Indeed, no facts alleged in the complaint or submitted on summary judgment evidence any suffering by Flesner of mental anguish due to the defendant's conduct in wrongfully discharging him. We decline to adopt a hard and fast rule on whether tort damages in general and emotional distress damages in particular are recoverable in wrongful discharge cases in the absence of a well-developed factual record. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 417 n.3 (1988). If at trial no facts are brought out supporting damages for emotional distress due to the defendant's intentional conduct, then the question need not be reached. We therefore decline to address this issue. [Note 8]

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4. Misrepresentation. The judge also granted summary judgment on Flesner's misrepresentation claim because the complaint did not allege damages independent of those alleged in connection with the termination of his employment. "Therefore," according to the judge, the "plaintiff's cause of action, if one lies, must be for Wrongful Discharge."

Even if the judge were correct that the only damages Flesner alleges are those arising out of his termination, a point we do not decide, the overlap does not justify dismissal of the claim. Flesner, of course, cannot recover double damages for the two claims, but he is entitled to proceed on more than one theory of recovery. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979); Laurendeau v. Kewaunee Scientific Equip. Corp., 17 Mass. App. Ct. 113, 120-121 (1983). Mass. R. Civ. P. 8 (e) (2), 365 Mass. 749 (1974). The judge does not conclude that Flesner insufficiently alleged or supported his claim of misrepresentation. Summary judgment should not have been allowed on the misrepresentation claim. Cf. Presto v. Sequoia Sys., Inc., 633 F. Supp. 1117 (D. Mass 1986) (claims for breach of employment contract and misrepresentation allowed to go forward; wrongful discharge claim dismissed on other grounds). [Note 9]

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5. Flesner's alleged misrepresentation. The defendants argue that Flesner is precluded from recovering damages because he misrepresented several facts on his resume and in his job interview leading to his employment with TCC. According to the defendants, TCC would not have hired Flesner had they known these representations were not true. Therefore, they conclude that even though they did not discover these misrepresentations until after Flesner resigned, he cannot recover any damages because TCC would have been justified in firing him even absent any wrongful motives. Because the judge ordered summary judgment for the defendants on all counts, he did not reach this issue.

The defendants cite a line of Federal wrongful discharge and employment discrimination cases in support of their argument. See, e.g., East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988); Smallwood v. United Airlines, Inc., 728 F.2d 614 (4th Cir.), cert. denied, 469 U.S. 832 (1984); Murnane v. American Airlines, 667 F.2d 98 (D.C. Cir.), cert. denied, 456 U.S. 915 (1982). These cases all deal with the question of the appropriate remedy once discrimination or a wrongful discharge has been established. In Mt. Healthy, a teacher was fired, in part because of his exercise of rights secured him by the First Amendment to the United States Constitution. Several other permissible reasons could have supported the discharge, however. The Supreme Court remanded the case to the District Court to determine whether the school board in fact would have fired the plaintiff even absent the impermissible reason. The court reasoned that the plaintiff should not be put in a better position than he would have been in had the wrong not been committed. See Mt. Healthy, supra at 285-287. Later cases extended this principle to allow employers to show that other legitimate reasons would have justified their conduct even though those reasons were not discovered until after the fact. See Summers, supra; Smallwood, supra.

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Even if the defendants are correct that they may show that their "after the fact" discovery of legitimate reasons for discharging Flesner precludes recovery, resolution of this issue is not appropriate at the summary judgment stage. The parties dispute whether Flesner actually made some of the misrepresentations. [Note 10] As for other misrepresentations, although Flesner concedes he made them, he disputes their effect. [Note 11] Flesner argues that TCC did not rely on these statements in hiring him. At the very least, it is certainly disputed whether TCC would have discharged Flesner (as opposed to not hiring him) had they discovered the misrepresentations during the course of employment. The cases cited by the defendants in which a court found that the employee was unqualified and would not have been hired absent the discrimination involved wrongful conduct in the hiring stage, not the discharge stage. See East Texas Motor Freight, supra; Smallwood, supra; Murnane, supra. Moreover, the only case they cite deciding on summary judgment that a plaintiff was not entitled to recover even if he proved a discriminatory discharge involved uncontested employee malfeasance far more egregious than is alleged here. See Summers, supra (discharged employee falsified insurance records in over 150 instances, including instances after having been placed on probation for such conduct). [Note 12] Because the defendants'

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contention that Flesner is precluded from recovering damages even if he proves wrongful discharge depends on disputed issues of material fact involving the defendants' motive or intent, summary judgment is not proper.

6. Invasion of privacy. Flesner alleges that TCC "monitored" his personal telephone calls and made anonymous telephone calls to his friends and family inquiring about him. He asserts a claim for damages for invasion of privacy pursuant to G. L. c. 214, Section 1B (1990 ed.). The judge ruled that the evidence was insufficient to support these allegations and ordered summary judgment for the defendants. We agree with the judge's holding.

Because Flesner would bear the burden of proving his claim of invasion of privacy at trial, the defendants, as the parties moving for summary judgment, had the burden of demonstrating at least that there was an absence of evidence in the record supporting Flesner's claim. See Kourouvacilis, supra at 715-716. If the evidence is insufficient to support his claim, "a trial would be useless and [the defendants are] entitled to summary judgment as a matter of law." Id. at 715, quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331-332 (1986) (Brennan, J., dissenting).

We agree with the defendant that, accepting Flesner's statement of evidence on the claim of invasion of privacy as accurate, the evidence was insufficient as a matter of law. The only evidence cited by Flesner that TCC telephoned his family and friends was his own deposition testimony that his family and friends told him that they had received such calls. The judge correctly ruled that the testimony was hearsay and insufficient to survive a motion for summary judgment. See Mass. R. Civ. P. 56 (e); Madsen v. Erwin, supra at 719;

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Jackson v. Hogan, 388 Mass. 376, 378 (1983). The sole evidence that Flesner offers to support his claim that TCC monitored his calls was his testimony regarding Herman Wolz's admitted conduct. Flesner stated that Wolz admitted that he called Flesner's insurance company to verify that reimbursement claimed by Flesner for a call to the company was justified. Flesner asserts that the fact that Wolz verified this one call "leads me to believe that they were monitoring my [tele]phone calls. Personal as well as professional." This unsupported statement of belief also is insufficient to survive a summary judgment motion. See Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968 (1976); Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 433 (1987). The judge was correct in his disposition of this claim.

7. The Massachusetts Civil Rights Act claim. Finally, Flesner claims that he is entitled to relief under the Massachusetts Civil Rights Act, G. L. c. 12, Section 11I (1990 ed.) (MCRA). The MCRA provides a remedy to a person whose secured rights under the Constitution or laws of the United States or the Commonwealth have been interfered with by threats, intimidation, or coercion. See G. L. c. 12, Section 11I. Flesner has not clearly identified any "secured right" with which TCC interfered. In his complaint he mentions rights under the Fourteenth Amendment of the United States Constitution and unspecified rights under the Massachusetts Declaration of Rights which he characterizes as the "freedom to use [one's] faculties in all lawful ways to live and work where he will; to earn his livelihood in any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts, which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes mentioned above." The essence of his argument on appeal appears to be based on a right to contract for personal employment. The cases in which he purports to find such a constitutional right date from 1929 and earlier. Whatever may be the validity of those cases today, see, e.g., Wyeth v. Cambridge Bd. of Health, 200 Mass. 474 (1909) (relying on Lochner v. New York, 198 U.S. 45 [1905]),

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they do not support the contention that Flesner has a secured constitutional right to retain his at-will employment contract. He has failed to identify a secured right within the meaning of the MCRA. Summary judgment was properly granted. [Note 13] See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 417-418 & n.6 (1988).

8. Conclusion. The judgment is affirmed with respect to Flesner's claims of invasion of privacy and violation of the Massachusetts Civil Rights Act. It is reversed with respect to the wrongful discharge and misrepresentation claims.

So ordered.