Roselle v. Fitzgerald ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________





        No. 96-2224



                                   ALBERT ROSELLE,



                                Plaintiff, Appellant,



                                          v.



                   KEVIN J. FITZGERALD, FITZ-INN AUTO PARKS, INC.,

                             & BOSTON POLICE DEPARTMENT,



                                Defendants, Appellees.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Douglas P. Woodlock, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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                                 ____________________



            Damon Scarano on brief for appellant.
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            John  J. McArdle on  brief for  appellees Kevin  J. Fitzgerald and
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        Fitz-Inn Auto Parks, Inc.





                                 ____________________



                                     May 8, 1997

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                      Per Curiam.  We have carefully reviewed the record,
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            the district  court  opinion and  the  parties' briefs.    We



            summarily affirm the district court judgment essentially  for



            the reasons stated in its Memorandum and Order dated December



            8, 1995. We add only the following comments.



                 Appellant argues that the  termination of his employment



            violated the  state policy  which presumes  an accused to  be



            innocent  until  proven guilty.   This  presumption, however,



            serves to focus a jury on what a prosecutor must establish so



            as to obtain a conviction in a criminal case. Commonwealth v.
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            Boyd, 367 Mass. 169, 188, 326 N.E.2d 320, 332 (1975).  It has
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            no applicability in the employment context and, consequently,



            does not warrant invocation of the public policy exception to



            the employment-at-will  rule. See Borschel v.  City of Perry,
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            512  N.W.2d  565, 568  (Iowa  1994)(presumption  of innocence



            "limited to criminal  procedures" and is not "a public policy



            applicable  in  the  employment  context");  Cisco  v. United
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            Parcel  Services, Inc.,  328 Pa.  Super. 300, 476  A.2d 1340,
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            1344 (1984) (presumption of innocence applies to trial and is



            not   "superimposed   into   an   accused's   remaining  life



            experiences");  cf.  King v.  Driscoll,  418  Mass. 576,  584
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            (1994)(statutory  right "must  relate  to or  arise from  the



            employee's status  as an  employee" to warrant  invocation of



            public policy exception).











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                 The district  court judgment dated December  11, 1995 is



            affirmed. See Loc. R. 27.1.
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