AARON GOODALE v. TOWN OF UPTON & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-497
AARON GOODALE
vs.
TOWN OF UPTON & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following his termination as the fire chief of the town of
Upton, the plaintiff, Aaron Goodale, filed suit against the
town, the town manager, and members of the town selectboard
alleging breach of contract, defamation, whistle blower
retaliation, and age and disability discrimination. A judge of
the Superior Court allowed the defendants' motion for summary
judgment, and this appeal ensued. We affirm.
Discussion. "We review a grant of summary judgment de
novo," Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC,
471 Mass. 248, 252-253 (2015), to determine "whether, viewing
the evidence in the light most favorable to the nonmoving party,
all material facts have been established and the nonmoving party
1 Derek Brindisi, Gary Daugherty, Robert Fleming, Stephen
Matellian, and James Brochu.
is entitled to judgment as a matter of law" (citation omitted).
Molina v. State Garden, Inc., 88 Mass. App. Ct., 173, 177
(2015).
"It is . . . the plaintiff's burden in this case, as the
nonmoving party, to show, through his submissions, specific
facts that demonstrate that there is a genuine issue for trial."
Cole v. New England Mut. Life Ins. Co., 49 Mass. App. Ct. 296,
297 (2000). A party may not rely on the allegations of an
unverified complaint to defeat summary judgment. See Green v.
Zoning Bd. of Appeals of Southborough, 96 Mass. App. Ct. 126,
132 (2019), quoting LaLonde v. Eissner, 405 Mass. 207, 209
(1989) ("[T]he opposing party cannot rest on his or her
pleadings and mere assertions of disputed facts to defeat the
motion for summary judgment"). Here, even though "[e]ach
statement of fact shall be supported by" an appropriate and
accurate record reference, Mass. R. A. P. 16 (a) (7) and 16 (e),
as appearing in 481 Mass. 1628 (2019), the plaintiff has relied
primarily on the allegations of the unverified amended complaint
on appeal, referring only occasionally to selected portions of
the transcript, the record, and the judge's memorandum. In the
absence of appropriate citation to the record, we may (and do)
affirm the judgment on the basis of the appeal as presented.
However, while "we are not obliged to read the entire [record]
in search of testimony that may support arguments in the brief,"
2
Cole, supra, we have, in our discretion, also conducted a de
novo review of the record, and likewise find no reason to
disturb the judgment. We therefore summarily address the
arguments as they have been made to us.
1. Breach of contract. Under the provisions of the so-
called "weak chief" statute, G. L. c. 48, § 42A, the town
entered into a contract with the plaintiff in 2010 that
permitted the town to terminate his contract either with cause,
or in the alternative, without cause if it provided severance
equal to six months' salary, as well as payment of accrued but
unused vacation, and health insurance for the same six month
period. On January 3, 2018, the town manager gave the plaintiff
a letter of reprimand regarding certain aspects of his
performance. The plaintiff attempted to grieve the reprimand
under the town's personnel bylaws (initial grievance), which he
claimed were incorporated into his contract by reference. The
town's counsel responded by stating that the grievance procedure
was inapplicable to the plaintiff, and that even if it was
applicable, the initial grievance was denied. The plaintiff did
not pursue the next steps of the grievance procedure. The town
subsequently terminated his employment in 2018 but did not
pursue a cause-based termination. Instead, the town terminated
his contract without cause, paying the requisite severance and
vacation pay. The plaintiff did not grieve his termination.
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The plaintiff argues on appeal, as he did in the Superior
Court, that the town breached the contract by failing to process
his initial grievance, by depriving him of a hearing before the
personnel board, and by terminating his employment. On appeal
(and in the Superior Court) the town argued that the breach of
contract claim should be dismissed because, even if it applied
to him, the plaintiff failed to exhaust the grievance procedure.
The judge dismissed the breach of contract claim on this basis.
We agree that the breach of contract claim (and associated
request for declaratory judgment) was properly dismissed.
Assuming without deciding that the grievance procedure in
the town bylaws was incorporated by reference in his employment
agreement, the plaintiff was required to exhaust -- or at least
attempt to exhaust -- the grievance procedure. While the town's
letter to the plaintiff claimed the grievance procedure did not
apply to him, the letter also stated in the alternative that to
the extent the grievance procedure applied, the grievance was
denied. Thus, the town denied the initial grievance on the
merits, placing the plaintiff on notice of the necessity of
advancing the grievance to the next step of the procedure, and
also placing the plaintiff on notice that the town may have
considered a termination grievance on the merits. However, the
plaintiff "did not follow the grievance procedure, and that
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omission, as a matter of law, is fatal to [his] claim." O'Brien
v. New England Tel. & Tel. Co., 422 Mass. 686, 695 (1996).
Without citation to authority, the plaintiff contends that
any further attempt to grieve would have been futile. The
plaintiff has not, however, placed facts in evidence to create a
genuine dispute about the futility of pursuing either the
initial grievance or a potential second grievance based on the
termination. Cf. Balsavich v. Local Union 170, Int'l Bhd. of
Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 371 Mass.
283, 286 (1976) (employee may bypass grievance procedures and
seek judicial remedies only when employer "repudiates or
otherwise nullifies" grievance procedure). Given that the town
also rejected the initial grievance on substantive grounds, we
cannot say that it would have been futile for the plaintiff to
have advanced that grievance to the next step, or to grieve his
termination. Put another way, in the absence of (1) an effort
by the plaintiff to process grievance(s) through the steps of
the grievance procedure, and (2) a refusal by the town to
process the grievance(s), the plaintiff has not placed facts in
dispute as to a breach or repudiation of the grievance
procedure. See Azzi v. Western Elec. Co., 19 Mass. App. Ct.
406, 409 (1985) (no showing that company "repudiated or
otherwise nullified the grievance . . . procedures"). To the
extent that the plaintiff relies on the facts that it was a
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small town and the town manager or personnel board were unlikely
to change their minds, he has offered no facts to support the
allegations, nor any legal authority to suggest that the
allegations, if supported, would rise to the level of futility
or repudiation.
Alternatively, and even if the grievance procedure did not
apply to the plaintiff, the plaintiff failed to place facts in
evidence to create a genuine dispute whether he was harmed by
the claimed breach of the contract. See Vacca v. Brigham &
Women's Hosp., Inc., 98 Mass. App. Ct. 463, 467 (2020). Under
the employment agreement, the town was permitted to terminate
the plaintiff without cause so long as he was appropriately
compensated. The plaintiff received all contractual severance
and vacation pay following his termination. Thus, he suffered
no harm, and summary judgment on the count for breach of
contract was properly granted as a matter of law. See id. at
467.
2. Defamation. "In order to state a claim of defamation,
a plaintiff must allege facts indicating that (1) the defendant
published a false statement regarding the plaintiff –- that is,
the defendant communicated the statement concerning the
plaintiff to a third party; (2) the statement could damage the
plaintiff's reputation in the community; and (3) the statement
caused economic loss or is otherwise actionable without proof of
6
economic loss." Flagg v. AliMed, Inc., 466 Mass. 23, 37 (2013).
On appeal as he did in the Superior Court, the plaintiff points
to deposition testimony to show that he was defamed by the
defendants because unnamed people spread unspecified
"scuttlebutt" about him.
While the plaintiff claims that his reputation in the
community has been damaged, he has failed to place facts in
dispute to show that damage to his reputation was caused by
actionable statements improperly communicated to a third party
by any one of the defendants. The town is immune from suit for
intentional torts. G. L. c. 258, § 10 (c); Barrows v. Wareham
Fire Dist., 82 Mass. App. Ct. 623, 626 (2012). As to statements
allegedly attributable to the individual defendants, the
plaintiff has not articulated on appeal what the statements
forming "scuttlebutt" were, who spread them, or to whom the
"scuttlebutt" was communicated. The chair of the selectboard
said in a deposition that there had been "scuttlebutt," but he
also stated that he had no idea which individuals were talking
about the plaintiff.
The town relies on this evidence to show that there were no
facts in dispute that the named defendants made or published
defamatory statements, and thus no reasonable likelihood of
success at trial as to this issue. Once this showing was made,
the burden on summary judgment shifted to the plaintiff to
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submit admissible evidence to support an inference that the
individual defendants each published defamatory statements to
third parties. See generally Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 711-712 (1991); Green, 96 Mass. App. Ct.
at 132. However, absent evidence in the summary judgment record
that any of the individual defendants disclosed false
information (or indeed any information) about the plaintiff to
others in the town, 2 the motion for summary judgment was properly
allowed. See McCone v. New England Tel.& Tel., 393 Mass 231,
235-236 (1984). Compare Bratt v. International Business Machs.
Corp., 392 Mass. 508, 509 (1984).
To the extent that the plaintiff claims that the town
manager defamed him by issuing the letter of reprimand, placing
him on administrative leave (and issuing a letter to that
2 The plaintiff's brief on appeal relies only on the
"scuttlebutt" statement. We have nonetheless reviewed certain
portions of the record. In his answers to interrogatories and
his deposition testimony, the plaintiff stated that third
parties told him that the town manager called a meeting and
informed the employees that the plaintiff had been terminated
due to financial improprieties. The statement is arguably
multilevel hearsay. See Mass. G. Evid. § 805 (2023). Cf.
Wingate v. Emery Air Freight Corp., 385 Mass. 402, 405 (1982).
The town manager's statement would be admissible both as an
admission and for its nonhearsay purpose to show that the
statement was made, but what a third party told the plaintiff is
inadmissible hearsay, not based on personal knowledge. See
Mass. G. Evid. § 801(a) (2023); Madsen v. Erwin, 395 Mass. 715,
721 (1985) ("Hearsay in an affidavit is unacceptable to defeat
summary judgment"); Whirty v. Lynch, 27 Mass. App. Ct. 498, 499-
500 (1989) (assertions "based on hearsay or supposition"
properly disregarded on summary judgment).
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effect), and terminating his employment, the town manager
enjoyed a qualified privilege to do so, and to share that
information with those with a need to know. 3 See Foley v.
Polaroid Corp., 400 Mass. 82, 94-95 (1987). For purposes of the
defamation claim, the issue is not whether the town was correct
in its assessment of the plaintiff's performance, but whether it
acted within the scope of its qualified privilege. 4 Id. On the
basis of the arguments as presented, 5 the town manager's
disclosure to the board fell within the ambit of "the employer's
legitimate interest in the fitness of an employee to perform his
or her job," McCone, supra at 235, quoting Bratt, supra, and
summary judgment was properly granted as a matter of law. Cf.
Mulgrew v. Taunton, 410 Mass. 631, 634-635 (1991).
3. Whistleblower claims. The plaintiff also asserts that
the town violated the Whistleblower Act by terminating him for
reporting fraud. See G. L. c. 149, § 185 (a) (5). To prevail
3 The letter of reprimand was carbon copied to town counsel. The
chair of the selectboard was informed of the town manager's
dissatisfaction with the plaintiff's performance and the town
manager's desire to terminate the plaintiff's contract without
cause.
4 The parties relied on facts not presented in the factual record
at oral argument to support their claims regarding the propriety
of the discharge. We do not consider these arguments.
5 The plaintiff has not addressed qualified privilege either on
appeal or in the Superior Court, and the issue is waived. See
Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464
Mass. 38, 55 (2013); Carey v. New England Organ Bank, 446 Mass.
270, 285 (2006).
9
on this statutory claim, the plaintiff must establish that (1)
he "engaged in an activity protected by the act; (2) the
protected activity was the cause of an adverse employment
action, such that the employment action was retaliatory; and (3)
the retaliatory action caused [him] damages." Edwards v.
Commonwealth, 488 Mass. 555, 568-569 (2021).
The plaintiff reported in 2016 that an employee was plowing
while out of work on medical leave, and reported in March of
2017 that a building inspector gave preferential treatment in
awarding an occupancy permit. Reporting fraud is conduct
protected under the Whistleblower Act. See G. L. c. 149, § 185
(b) (3); Trychon v. Massachusetts Bay Transp. Auth., 90 Mass.
App. Ct. 250, 256-257 (2016). Even assuming these reports rose
to that level, the reports predated the town manager's tenure, 6
and the town manager disclaimed any knowledge of them in his
deposition. On appeal, the plaintiff has not brought to our
attention any admissible evidence to show that the town manager
knew of the reports, and our review of the record discloses
none. The act requires that "the employer knew of the protected
activity before undertaking the retaliatory action." Edwards,
488 Mass. at 573. See Mole v. University of Mass., 442 Mass.
582, 592 (2004) (where "adverse action is taken against a
6 Derek Brindisi became town manager on July 31, 2017.
10
satisfactorily performing employee in the immediate aftermath of
the employer's becoming aware of the employee's protected
activity, an inference of causation is permissible"). Because
the plaintiff has not placed facts in dispute to show a causal
connection between protected activity and his subsequent
termination, his whistleblower claim was properly dismissed on
summary judgment.
4. Discrimination. The plaintiff brought claims of
employment discrimination based on age and disability. "To
prove a claim of employment discrimination under the statute, a
plaintiff must show 'that he or she is a member of a protected
class; that he or she was subject to an adverse employment
action; that the employer bore discriminatory animus in taking
that action; and that that animus was the reason for the action
(causation)'" (quotation and citation omitted). Adams v.
Schneider Elec. USA, 492 Mass. 271, 280 (2023). On summary
judgment, the moving party must show that there was a
legitimate, nondiscriminatory reason for its action, and the
plaintiff must then place facts in dispute to show that the
employer's stated reasons were pretextual. Id. at 281.
The summary judgment record is devoid of evidence
demonstrating a genuine dispute of fact regarding discrimination
of either type. The parties' Superior Court Rule 9A (b) (5)
statements of undisputed facts do not directly address the
11
discrimination count of the complaint. However, the defendants'
rule 9A (b) (5) statement contains the assertion, admitted by
the plaintiff, see Godfrey v. Globe Newspaper Co., 457 Mass.
113, 121 (2010), that the person who replaced the plaintiff was
older than the plaintiff. See O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 311-312 (1996) (replacement of
plaintiff by person in protected age class but substantially
younger permits inference of age discrimination, but no
inference drawn from replacement by one insignificantly
younger). No other reference to age may be found in either the
rule 9A (b) (5) statements or the verified charge filed with the
Massachusetts Commission against Discrimination. 7 Instead, the
verified charge contains only assertions of a breach of the
covenant of good faith and fair dealing, retaliation for the
exercise contractual rights, and requests a declaratory judgment
regarding contractual obligations.
Although the parties hotly contest the plaintiff's
performance, there must be some articulated claim and basis for
an inference of age discrimination. See O'Connor, 517 U.S. at
311-312. Contrast Adams, 492 Mass. at 282. None has been
advanced here. Similarly, the plaintiff has failed to
7 The verified charge was incorporated by reference into the
amended complaint. The plaintiff relies on the amended
complaint on appeal.
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articulate any basis for his assertion that he was terminated on
account of a disability. 8 The "plaintiff was required to respond
by 'set[ting] forth specific facts showing that there is a
genuine issue for trial.' Mass. R. Civ. P. 56 (e), 365 Mass.
824 (1974). As a result of the plaintiff's failure in this
8 With respect to the disability claim, we note that the
plaintiff offered evidence that he suffered from hypertension in
2016 when he was working under prior town manager Blythe
Robinson. The defendants submitted evidence on summary judgment
that plaintiff took leave without incident, and was paid in
accordance with the selectmen's emergency leave bylaw. Two
years later, on April 2, 2018, the current town manager
initiated the process for placing the plaintiff on leave without
pay. See Mole, 442 Mass. at 595 (no inference of discrimination
or retaliation where passage of time substantial). The town
manager delivered the notice of administrative leave without pay
on April 3, 2018. However, it was not until the afternoon of
April 3, 2018, that the plaintiff sent a letter stating that he
had high blood pressure and requesting medical leave. Thus, the
plaintiff has not placed facts in dispute to show that the
defendants were aware of a recurrence of his medical condition
or his request for medical leave before the town manager made
the decision to place him on administrative leave. The only
evidence in the record is that the plaintiff did not inform the
town of his medical condition until after the town manager
obtained approval to place him on administrative leave.
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regard, the grant of summary judgment to the defendants was
appropriate." Kourouvacilis, 410 Mass. at 716.
Judgment affirmed.
By the Court (Green, C.J.,
Wolohojian &
Sullivan, JJ. 9),
Clerk
Entered: August 8, 2023.
9 The panelists are listed in order of seniority.
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