Retaliation Cases

Ruth Service vs. Newburyport Housing Authority. No. 04-P-296. Essex. December 7, 2004. April 15, 2005. Present: Armstrong, C.J., Brown, & Berry, JJ. Employment, Termination. Housing Authority. Civil Service, Termination of employment. Public Employment, Termination. Public Policy. A Superior Court judge properly granted summary judgment in favor of an employer on a terminated employee’s claim of a violation of G. L. 149, § 185, the Massachusetts public employee whistleblower statute, where the personnel policy that the employee claimed her supervisor contravened did not constitute a rule or regulation promulgated pursuant to law, and where there could be no reasonable determination that the supervisor’s conduct placed the public health or safety at risk. [282-284] Civil action commenced in the Superior Court Department on October 18, 2002. The case was heard by David A. Lowy, J., on a motion for summary judgment. Joseph G. Sandulli for the plaintiff. Peter J. McQuillan for the defendant. Brown, J. The plaintiff, Ruth Service, was an employee of the Newburyport Housing Authority (authority) for almost fifteen years. Prior to her termination, she was employed as the authority’s rental assistance and systems administrator. Service was terminated by the authority for making false statements against the executive director of the housing authority, Robert Cox. Upon termination, Service sought and received a hearing pursuant to G. L. c. 31, § 41. The hearing officer held that the termination complied with the personnel policy of the authority. Service then instituted an action in Superior Court against the authority pursuant to G. L. c. 149, § 185, the Massachusetts public employee whistleblower statute (whistleblower statute). She now appeals from a summary judgment in favor of the defendant. 1. Background. We review the record on summary judgment in the light most favorable to the plaintiff. See Costa v. Boston Red Sox Baseball Club, 61 Mass. App. Ct. 299, 300 (2004), and cases cited. On March 6, 2002, Cox allegedly used profane language in a private meeting with an individual on the custodial staff, in violation of the authority’s personnel policy. Service was not present at the meeting, nor was she present in the office at the time of the meeting. Her complaint alleged that this incident left the office staff shaken and upset. On May 2, 2002, Service set up a staff meeting with Cox about the incident. The staff meeting occurred on May 8, 2002. At this staff meeting, Service disclosed to all present that the board of commissioners of the authority, in an executive session of its regular meeting, had not taken any action against Cox for the incident in question. On May 7, 2002, five days after the staff meeting, Cox gave Service a letter suspending her for two days. He stated in the letter that she was not suspended for possessing the information regarding what had occurred at the executive session, but rather for disclosing the information in a manner meant to humiliate him, and to “cast [him] in a negative light, threaten [him] and/or intimidate [him] in front of the staff.” When she received her suspension notice, Service called her husband and told him that she had been suspended. She stated that Cox was outside her office and that she was afraid to leave as he was blocking her way. Cox heard the conversation. It was the content of this conversation that caused Cox to terminate Service, as set forth in the termination notice to Service, where Cox stated, “[y]ou fabricated a situation whereby you began accusing me of preventing you from leaving the office. This is a potentially criminal accusation you knew to be untrue and false. Your conduct was outrageous, unprofessional and indicates you are unable to perform your job duties in a professional manner.” After a hearing pursuant to G. L. c. 31, § 41, Service’s termination was upheld. In a written decision, the hearing officer stated that she found “Mr. Cox’s statements to be credible and Ms. Service not to be credible. To falsely accuse her supervisor of preventing her from leaving the office is extremely unprofessional and unethical, and warrants termination. ... I find that the termination of Ms. Service was done in compliance with [G. L. c. 31, § 41,] and the [authority] personnel policy. I find that the termination warranted by the facts as presented. I therefore uphold the decision to terminate Ms. Service’s employment effective May 14, 2002.” Service then opted not to pursue her rights pursuant to G. L. c. 31, §§ 41-45, and instead filed this action pursuant to G. L. c. 149, § 185(d) and (f). 2. Discussion. In her complaint, Service alleged that Cox’s profane language contravened the personnel policies of the authority, that her termination after calling to Cox’s attention his violation of those policies was in retaliation for her objection, and that her termination thus violated the whistleblower statute. “We are constrained to follow the plain language of a statute when its language is plain and unambiguous and its application would not lead to an absurd result, or contravene the Legislature’s clear intent.” Johnson Lumber Co. v. Woodscape Homes, Inc., 51 Mass. App. Ct. 323, 325 (2001), quoting from Commissioner of Rev. v. Cargill, Inc., 429 Mass. 79, 82 (1999). See Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 537 (1992) (“It is a well-established canon of construction that, where the statutory language is clear, the courts must impart to the language its plain and ordinary meaning”). The pertinent language of G. L. c. 149, § 185, that Service relies upon in support of her argument is as follows: “(b) An employer[] shall not take any retaliatory action against an employee because the employee does any of the following: “(3) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.” Service argues that the protections offered to public employees by the whistleblower statute are broader than the common-law protections to at-will employees. See Shea v. Emmanuel College, 425 Mass. 761 (1997) (at-will employee entitled to protection for “whistleblowing” where she reported criminal conduct to superiors). Contrast Mistishen v. Falcone Piano Co. Inc., 36 Mass. App. Ct. 243, 245-246 (1994) (at-will employee not entitled to “whistleblowing” protections for reporting employer violations of G. L. c. 93A). Despite Service’s argument to the contrary, the common-law protections afforded to a whistleblower are instructive on the breadth of the statute. As in Shea v. Emmanuel College, supra at 762-763, “[t]he distinction of importance is between a discharge for an employee’s internal complaint about company policies or the violation of company rules, for which liability may not be imposed, and an internal complaint made about the alleged violation of the criminal law for which we now decide that liability may be imposed.” General Laws c. 149, § 185(b)(3), provides protection not just for reporting a violation of the criminal law, but also for the reporting of a “violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.” A judge of the Superior Court entered judgment for the authority. We agree and affirm the judgment. a. Personnel policy as a rule or regulation of the authority. The authority conceded that the alleged conduct would be grounds for an action against it, if the public employee whistle-blower statute applied. However, the alleged facts, even if true, do not place Service’s conduct and resulting termination within the protections afforded by the statute. Service argues that the authority’s personnel policy expressly prohibited the profane language used by Cox in the meeting with another employee. The pertinent personnel policy provision states: “Staff are not at any time to use abusive or sexist language, nor engage in inappropriate joking relationships with unwilling individuals. Violation of any of the above will result in disciplinary action. Comments of a sexual or derogatory manner will not be tolerated and are potential grounds for termination as they are disrespectful and create an improper professional environment.” Service asserts that the personnel policy is a rule of the authority that is promulgated pursuant to the authority’s statutory authority to promulgate rules and regulations. Thus, when Service objected to Cox’s use of profane language, she objected to a behavior that she reasonably believed violated that rule. She points to G. L. c. 121B, § ll(ra), in support of her argument that the authority has the statutory authority to promulgate rules and regulations. Section 11 (m), as amended by St. 1984, c. 189, § 97, provides that the authority may “make, and from time to time amend or repeal, subject to the approval of the [Department of Housing and Community Development], by-laws, rules and regulations, not inconsistent with pertinent rules and regulations of the department to govern its proceedings and effectuate the purposes of this chapter.” Service points to nothing more than this provision to support her argument. There is nothing in the personnel policy manual that would tend to demonstrate that it was promulgated in accordance with this statute. Simply because the authority has the power to promulgate regulations does not render a personnel policy manual such a rule or regulation. Compare Tinkham v. Department of Pub. Welfare, 11 Mass. App. Ct. 505, 514 (1981). Service’s argument fails as matter of law because the manual could not reasonably be construed as a “rule or regulation promulgated pursuant to law.” b. Conduct not a risk to public health or safety. Service argues in the alternative that Cox’s behavior in the private meeting with the maintenance employee posed a risk to the public health and safety. She points to her answers to interrogatories to establish that she reasonably believed that Cox’s “words and actions were a threat to the physical health and an impairment of the mental health of all who heard him and all who learned of what he said and did; . . . Cox’s words and actions were a present and continuing threat to the safety of all who heard him and all who learned of what he said and did.” Public health is defined as “[t]he health of the community at large . . . [t]he healthful or sanitary condition of the general body of people or the community en masse; especially] the methods of maintaining the health of the community, as by preventive medicine and organized care for the sick.” Black’s Law Dictionary 737 (8th ed. 2004). Similarly, public safety is defined as “[t]he welfare and protection of the general public, usu[ally] expressed as a governmental responsibility.” Id. at 1268. Service’s argument here fails, as she urges the court to adopt an interpretation of G. L. c. 149, § 185, that conflicts with the plain and ordinary meaning of the whistleblower statute. Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. at 537. Her argument proceeds along the path that an office dispute may be interpreted as detrimental to the public health as it upset the individuals who were in a position to overhear the dispute. There is nothing here that lends itself to a reasonable determination that the alleged behavior placed the public health or safety at risk. Judgment affirmed. Among other things, § 41 of the civil service law, G. L. c. 31, entitles an employee to a hearing before a hearing officer designated by the appointing authority concerning the reason or reasons for the discharge. Among other things, G. L. c. 149, § 185(4), provides for the filing of claims in Superior Court and for a two-year statute of limitations. Section 185(f) of G. L. c. 149, as inserted by St. 1993, c. 471, provides: “Nothing in this section shall be deemed to diminish the rights, privileges or remedies of any employee under any other federal or state law or regulation, or under any collective bargaining agreement or employment contract; except that the institution of a private action in accordance with subsection (d) shall be deemed a waiver by the plaintiff of the rights and remedies available to him, for the actions of the employer, under any other contract, collective bargaining agreement, state law, rule or regulation, or under common law.” An employer is defined as “the Commonwealth, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof.” G. L. c. 149, § 185(a)(2). As we conclude that Service’s conduct is not protected by the whistle-blower statute, we have no occasion to reach any of the various other arguments presented by the parties regarding different elements required by the statute. The plaintiff’s argument is unusual in our employment law cases. A review of the relevant case law establishes that most individuals who have sought damages for wrongful termination have asserted that a personnel policy manual is an employment contract that is enforceable. See, e.g., Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 13 (1988) (“on proper proof, a personnel manual can be shown to form the basis of an express or an implied contract”); Ferguson v. Host Intl. Inc., 53 Mass. App. Ct. 96, 103 (2001). In addition, G. L. c. 121B, § 26, which enumerates the powers of a housing authority, establishes that the authority must enforce the rules and regulations of the Department of Housing and Community Development. All other powers of a housing authority relate to the purchase and development of land and housing within the community. Service waived any claim that Cox’s behavior posed a risk to the environment in both her opposition to the motion for summary judgment and in her answers to interrogatories. Nor is there occasion (particularly absent a claim by Service) to consider application of the rule that a public employer, like the authority, may not discharge an employee on a basis that infringes the latter’s constitutionally protected interest in free speech. See Pereira v. Commissioner of Social Servs., 432 Mass. 251, 256 (2000).

MAGEE v DAIMLERCHRYSLER CORPORATION Docket No. 126219. Decided March 8, 2005. On application by the defendant for leave to appeal, the Supreme Court, after hearing oral argument on whether the application should he granted and in lieu of granting leave, reversed part of the judgment of the Court of Appeals and remanded the case to the circuit court for reinstatement of the order of summary disposition for the defendant. Jacquelyn V Magee brought an action in the Macomb Circuit Court against DaimlerChrysler Corporation, alleging sexual harassment, sex and age discrimination, retaliation, and constructive discharge from employment. The defendant moved for summary disposition, arguing that the action was barred by the statute of limitations because it was not brought within three years of any of the alleged acts of discrimination or retaliation. The trial court, James M. Biernat, Sr., J., granted the defendant’s motion. The Court of Appeals, Schdette, EJ, and Meter and Owens, JJ., affirmed the grant of summary disposition with regard to the constructive discharge claim and reversed the grant of summary disposition with regard to the other claims. Unpublished memorandum opinion, issued March 2,2004 (Docket No. 243847). The Court’s decision was based on the fact that the action was brought within three years of the date that the plaintiff resigned her employment. The defendant sought leave to appeal. In an opinion per curiam, signed by Chief Justice Taylor, and Justices Corrigan, Young, and Markman, the Supreme Court held,-. The Court of Appeals erred in concluding that the plaintiffs claims accrued on the date she terminated her employment as opposed to her last day of work. No discriminatory conduct is alleged to have occurred after the plaintiffs last day of work. The claims were not timely filed within three years of that date. The part of the Court of Appeals judgment that reversed part of the judgment of the trial court must be reversed and the case must be remanded to the trial court for reinstatement of the order granting summary disposition in favor of the defendant with regard to all the claims brought by the plaintiff. Justice Weaver, concurring, stated that she concurs in the result of the opinion per curiam because the applicable three-year period of limitations began to run when the plaintiff went on medical leave on September 12, 1998, and the plaintiffs claims were not filed within three years of that date. The trial court correctly granted summary disposition in favor of the defendant. Affirmed in part, reversed in part, and remanded to the circuit court. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that the defendant’s failure to stop the harassment after the plaintiff made repeated complaints was discriminatory conduct. The conduct occurred during the three years that preceded the filing of the complaint; therefore, the complaint was timely filed. Tucker & Hughes, PC. (by Juanita Gavin Hughes), for the plaintiff. Cattel, Tuyn & Rudzewicz, PLLC (by Tomas A. Cattel and Debra A. Colby), for the defendant. PER CURIAM. In this case involving the Civil Rights Act, the Court of Appeals held that plaintiffs claims of sexual harassment, sex and age discrimination, and retaliation were timely filed, because the lawsuit was brought within three years of the date she resigned her employment with defendant. We conclude that plaintiffs claims were not filed within the limitations period because none of the alleged discriminatory or retaliatory conduct occurred within the three years that preceded the fifing of the complaint. We therefore reverse that part of the judgment of the Court of Appeals and remand the matter to the trial court for reinstatement of the trial court’s grant of summary disposition to defendant. i Plaintiff Jacquelyn Magee was an hourly production employee who began work for defendant Daimler-Chrysler in 1976. She went on medical leave for emotional distress on September 12, 1998, and, without first returning to work, resigned her job on February 2, 1999. On February 1, 2002, Magee filed a lawsuit under the Civil Rights Act, MCL 37.2101 et seq., claiming that she had been unlawfully discriminated against and harassed during most of her twenty-two years at Daimler-Chrysler. Magee’s complaint lists separate counts for sex harassment based on hostile work environment, sex harassment based on quid pro quo harassment, retaliation, sex discrimination, and age discrimination. In her complaint, Magee alleges that she suffered harassment from the 1980s until her last day of work on September 12, 1998, and that her supervisors periodically retaliated against her during this period as a result of her resistance to the harassment. Magee alleges that this constant harassment caused her to leave her job at DaimlerChrysler on September 12, 1998, and that she decided to resign on February 2, 1999, because she anticipated that the harassment would continue if she returned. DaimlerChrysler moved for summary disposition, asserting that Magee’s February 1, 2002, complaint failed to allege any discriminatory acts after September 12,1998, and that the complaint was therefore not filed within the three-year period of limitations applicable to Civil Rights Act claims, MCL 600.5805(10). The trial court initially denied DaimlerChrysler’s motion without prejudice, allowing Magee to amend her complaint to allege harassment or retaliation occurring up to her February 2, 1999, resignation. However, because Magee’s amended complaint continued to allege only harassment and retaliation through September 12, 1998, her last day of work, the trial court granted DaimlerChrysler’s motion and dismissed Magee’s complaint. Magee appealed the trial court’s ruling to the Court of Appeals, which relied on this Court’s recent decision in Collins v Comerica Bank, 468 Mich 628; 664 NW2d 713 (2003), to reverse the lower court’s dismissal of the harassment, retaliation, and discrimination claims. The Court of Appeals concluded that these claims were timely, because they were filed within three years of the date of Magee’s resignation. DaimlerChrysler then sought leave to appeal to this Court. After hearing oral argument from both parties on the application, this Court has now determined that the Court of Appeals misapplied Collins and erroneously reinstated Magee’s Civil Rights Act claims. ii In the absence of disputed facts, whether a cause of action is barred by the applicable statute of limitations is a question of law, which this Court reviews de novo. Boyle v Gen Motors Corp, 468 Mich 226, 229-230; 661 NW2d 557 (2003). Likewise, this Court reviews de novo rulings on summary disposition motions. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). hi In Collins, supra at 633, this Court held that a cause of action for discriminatory termination does not accrue until the date of termination. The plaintiff employee, Gwendolyn Collins, was suspended pending an investígation; when the investigation was completed several weeks later, her employment was terminated. Within three years of her termination, Collins filed a complaint alleging that her termination was the result of race and gender discrimination. The Court of Appeals ruled that Collins’s suit was not timely under the three-year period of limitations because her causes of action accrued on the last day that she actually performed employment duties (as opposed to her later termination date). This Court disagreed with the Court of Appeals last-day-worked analysis and reversed, holding that a claim for discriminatory discharge cannot arise until a claimant has actually been discharged. Id. Relying on Collins, the Court of Appeals in this case reasoned that Magee’s claim also accrued on her termination date as opposed to her last day of work. The Court acknowledged that Magee resigned, and was not terminated. But it found significant that “her last day of work was followed by a period in which she was on a medical leave of absence” and that she was employed by DaimlerChrysler while on leave. Accordingly, it concluded that her causes of action, if any, arose on February 2, 1999. The Court of Appeals reliance on Collins to reinstate Magee’s claims of sexual harassment, sex and age discrimination, and retaliation is misplaced. Magee was never terminated from her employment and does not allege discriminatory termination. She bases her Civil Rights Act claims on alleged discriminatory conduct that occurred before her leave of absence. Indeed, when given a chance to amend her complaint to plead claims falling within the period of limitations, Magee was unable to do so. Collins, a discriminatory termination case, simply does not apply in this situation. To determine whether Magee’s claims were timely filed, we look to MCL 600.5805(10), which establishes that the applicable period of limitations is three years from the date of injury. Because Magee alleged no discriminatory conduct occurring after September 12, 1998, the period of limitations on Magee’s claims expired, at the latest, three years from that date, or by September 12, 2001. Accordingly, as the trial court held, Magee’s February 1, 2002, complaint was not timely filed. The dissent argues that the defendant violated the Civil Rights Act within the three years preceding the filing of plaintiffs claim by failing to “prevent future harassment.. ..” Post at 115. This interpretation of the Civil Rights Act amounts to a continuing violations doctrine in which an employer is continuously liable from the time it or its agent violates the act until the time that violation is remedied by the employer. Thus, in Justice CAVANAGH’s view, a plaintiff subjected to a hostile work environment on December 31, 2005, may file a timely complaint in December 2030 if the employer has failed to remedy the sexual harassment in the ensuing twenty-five years. This theory renders nugatory the period of limitations established by the Legislature in MCL 600.5805(10). It is therefore a theory we must reject. For these reasons, we reverse the relevant part of the judgment of the Court of Appeals and remand this case to the Macomb Circuit Court for reinstatement of the order granting DaimlerChrysler’s motion for summary disposition. Taylor, C. J., and Corrigan, Young, and Markman, JJ., concurred. Unpublished memorandum opinion, issued March 2, 2004 (Docket No. 243847). Magee’s complaint also includes a separate count alleging constructive discharge. The trial court dismissed this count, and the Court of Appeals affirmed the trial court’s ruling. Magee did not appeal, and the dismissal of that claim is not before this Court. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). WEAVEE, J. (concurring). I concur in the result of the opinion per curiam that reverses the Court of Appeals judgment in part and remands the matter to the trial court for reinstatement of the trial court’s grant of summary disposition to defendant. Under the facts pleaded by plaintiff, the three-year period of limitations began to run when plaintiff went on medical leave on September 12, 1998, for emotional distress. Plaintiffs claims were required to be filed within three years of September 12, 1998. Because they were not, the trial court was correct to grant summary disposition to defendant. Therefore, I concur in the result of the opinion per curiam. MCL 600.5805(10). CAVANAGH, J. (dissenting). I disagree with the majority’s contention that defendant engaged in no discriminatory conduct during the three years that preceded the filing of plaintiffs complaint. Therefore, I must respectfully dissent. Plaintiff began working for defendant in 1976. Over the years, plaintiff complained of various incidents of harassment. Plaintiff complained that her foreman was making sexual advances toward her. When plaintiff was assigned to a different supervisor, her former foreman still worked in the same complex and continued to harass her. Because of the harassment, plaintiff was ordered by her psychiatrist to take an approximately four-month medical leave. When plaintiff returned from her medical leave, her former foreman was still working in the same complex as plaintiff. A subsequent foreman of plaintiffs also made sexual advances toward her, including intentionally touching plaintiffs breast. For an entire year, plaintiff also complained to defendant about a sign in the men’s restroom that referred to plaintiff in a derogatory and sexually suggestive manner. Because of the stress of the harassment she continued to suffer, plaintiff was ordered to take another medical leave of absence. While she was employed by defendant, plaintiffs union steward also made sexually suggestive comments about plaintiffs “ass” and touched her in an inappropriate manner. Plaintiffs coworkers made sexually suggestive comments about her body and began hitting her with cardboard sticks. When plaintiff asked her union steward to intercede, he just laughed and said, “Yea, hit that ass.” Plaintiff repeatedly complained to defendant, yet nothing was done. When plaintiff requested a transfer, her union steward told her that she could transfer if she had sex with him. Once plaintiff was transferred, the union steward told her that she “owed” him and he wanted her to have sex with him. He later stopped plaintiff from training for another position because she was not having sex with him. Plaintiff again complained to a foreman, but he said there was nothing he could do. Because of the stress plaintiff was suffering as a result of the harassment, plaintiff was then ordered to take a third medical leave. Because defendant took no steps to stop the harassment while plaintiff was on her third medical leave, she was forced to decide not to return to the harassing environment. Defendant’s discriminatory conduct in failing to take steps to prevent future harassment continued throughout plaintiffs medical leave. Requiring plaintiff to return to the harassing setting to work in the unchanged environment would be unreasonable and possibly dangerous to plaintiffs health, considering that her doctor had ordered three medical leaves because of the stress of the harassment. As plaintiff explained, in order to have even been considered for a possible transfer to another plant after having been out on her third harassment-related medical leave, she would have had to return to the plant she left and hope for a transfer, despite that her multiple complaints had garnered no response before or during her medical leave. Thus, for plaintiff to be able to try and leave the harassing environment, she would have had to return to work with the same men who harassed her and whose conduct necessitated that plaintiff take medical leaves in the first place, without any assurance that defendant would protect her. This case presents a unique set of circumstances because plaintiffs doctor-ordered medical leave was directly related to the harassment. Plaintiffs final medical leave was actually her third leave related to the stress of the harassment she suffered. Defendant maintained a hostile work environment despite plaintiffs repeated complaints. Defendant’s failure to stop the harassment after these complaints is, under the facts of this case, discriminatory conduct. Because this conduct occurred during the three years that preceded the filing of plaintiffs lawsuit, I find that her complaint was timely filed. Accordingly, I respectfully dissent. Kelly, J., concurred with Cavanagh, J.

Ruthlyn Commodore vs. Genesis Health Ventures, Inc., & another. No. 03-P-1623. Suffolk. November 10, 2004. March 2, 2005. Present: Beck, Celinas, & Kafker, JJ. Further appellate review granted, 445 Mass. 1101 (2005). Anti-Discrimination Law, Termination of employment. Nursing Home. Department of Public Health. Contract, Employment. Health Care Facility. Public Health, Health care facility. Joint and Several Obligation. In an action for unlawful employment termination brought by a high-level employee against the owner and licensee of a nursing home as well as the independent company with which the nursing home owner contracted to provide health care services at that facility, the judge erred in granting summary judgment to the defendant nursing home owner on the plaintiff’s employment discrimination claim under G. L. c. 151B, where a genuine issue of material fact existed as to the nursing home owner’s status as a joint employer with the health care services provider, given the nursing home owner’s contract rights, the ambiguities in the contract, the nondelegable responsibilities set by the relevant Department of Public Health regulation, the gaps in the record, and the fact-sensitive nature of the joint employer determination [61-65]; further, this court remanded for consideration on a fuller record the issue whether the plaintiff’s equal rights claim under G. L. c. 93, § 102, was barred by the G. L. c. 151B claim [65]. This court concluded that the definition of health care facility set out in G. L. c. 149, § 187(a), encompassed the licensee of a health care facility for purposes of determining violations of G. L. c. 149, § 187(b), the health care whistleblower statute (whistleblower statute) [65-67], and that the requirement that the licensee be jointly and severally responsible for the direction of personnel and the establishment of policies, practices, and procedures that encourage good patient or resident care, included oversight responsibility for violations of the whistleblower statute and was nondelegable. [67] Civil action commenced in the Superior Court Department on December 21, 2000. The case was heard by Peter W. Agnes, Jr., J., on a motion for summary judgment. Paul F. Wood for the plaintiff. A. Lauren Carpenter for the defendants. Doing business as Genesis ElderCare. Omega, Inc., doing business as Center for Optimum Care-Winthrop. Kafker, J. The plaintiff, Ruthlyn Commodore, is a black woman of West Indian origin who alleged that she was unlawfully terminated from her position as director of nursing at the Center for Optimum Care-Winthrop (COC-Winthrop), a nursing home, (1) because of her race, color, and national origin; (2) in retaliation for complaining about unlawful discrimination against herself and other employees; and (3) for objecting to new patient admissions and inadequate staffing that, she said, endangered care and safety at the home. Commodore sought relief under the antidiscrimination statutes, G. L. c. 151B and G. L. c. 93, § 102, and the health care whistleblower statute, G. L. c. 149, § 187. She brought her action against the owner and licensee of the nursing home, Omega, Inc. (Omega), and Genesis Health Ventures, Inc. (Genesis), an independent company selected to provide health care services at the facility. The trial court judge granted Commodore’s motion to dismiss Genesis from her action because Genesis was involved in proceedings under Chapter 11 of the Bankruptcy Act. Thereafter, Omega filed a motion for judgment on the pleadings under Mass.R.Civ.P. 12(c), 365 Mass. 765 (1974), on the ground that Omega was not the employer of Commodore or the other employees at COC-Winthrop. Omega based its motion primarily on the management agreement between Omega and Genesis, which Omega had attached to its answer. Commodore opposed the motion, and requested that, if the judge converted the motion into a motion for summary judgment under Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974), he allow her to engage in further discovery to establish that Omega was her employer. At a hearing held five months later, Omega urged the judge to convert the motion for judgment on the pleadings to one for summary judgment. The judge allowed the summary judgment motion four months after that hearing. Commodore then filed a motion under Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), to alter or amend the judgment, claiming that she had not been given notice of the conversion or a reasonable opportunity to present evidence. The judge denied that motion. Commodore contends on appeal that (1) the conversion of the rule 12(c) motion into a rule 56(b) motion was improper; and (2) even if it were proper, she had raised a genuine issue of material fact regarding whether Omega was her joint employer. We reverse the judge’s decision allowing the motion for summary judgment. Background. Omega owned and was licensed to operate nursing homes in the Commonwealth. Omega entered into an agreement with Genesis, a Pennsylvania-based health care management corporation, to manage COC-Winthrop and other health care facilities. According to the management agreement, the “Manager,” Genesis, would “select, employ and compensate as an operating expense ... a licensed Facility Administrator and a Director of Nursing for the Facilities.” The administrator and director of nursing would be employees of Genesis, but provide services exclusively to COC-Winthrop and other facilities owned and licensed by Omega and managed by Genesis. The agreement also provided that Genesis would “[hjire, as employees of [Genesis], and discharge, maintain, supervise, and reheve from its employ (as may be necessary in [Genesis’s] discretion) an adequate staff of nurses.” The agreement further provided that Genesis would establish employee benefits and “all personnel policies and procedures,” including “rates of compensation,” “hours of employment,” and “job classifications.” Genesis would also “cause compliance with ah apphcable governmental laws and regulations, specifically including the regulations pertaining to . . . non-discrimination.” The management agreement required the “Owner,” Omega, to provide money to pay for capital and operating expenses, including funding the payroll account. Omega was to be consulted by Genesis on a monthly basis about operational decisions affecting the facility. Omega also had the right to inspect the facihty on twenty-four hours’ notice. The agreement further stated that “[Omega] shall perform those obligations and responsibilities which must be performed by the party hcensed to operate the [facilities.” As the hcensee of the nursing home, Omega was required by the agreement and Department of Pubhc Health regulations to “be responsible for compliance with all applicable laws and regulations of legally authorized agencies.” 105 Code Mass. Regs. § 150.002(A)(2) (1994). In addition, the regulations provide that the licensee “shall be responsible for procurement of competent personnel, and the hcensee and the administrator shall be jointly and severally responsible for the direction of such personnel and for establishing and maintaining current written personnel policies, and personnel practices and procedures that encourage good patient or resident care.” 105 Code Mass. Regs. § 150.002(D) (1994). Commodore began working at COC-Winthrop in August, 1999, as the director of nursing. She alleged in her amended complaint that, despite her superior performance, she and “other black, African and West Indian employees of COC-Winthrop/ Genesis [were] treated differently on account of [their] race, color, and national origin.” She alleged that white employees at COC-Winthrop were paid at a higher rate than their black colleagues and disciplined less harshly than black employees for similar conduct. She alleged that she complained to the “COC Winthrop/Genesis” administrator about the discrimination in July, 2000. In May, 2000, another Omega-owned and Genesis-managed facility closed, and its patients were transferred to COC-Winthrop. Commodore alleged that her complaints to COC-Winthrop/Genesis administrators and Genesis managers about understaffing and patient overcrowding resulting from the transfer — in addition to unlawful discrimination — eventually led to the termination of her employment in August, 2000. Standard of review. “[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). 1. Joint employer status under G. L. c. 151B. a. It is unlawful for an “employer” or his or her agent to discriminate against an individual because of race or national origin or to retaliate against an individual for objecting to such discrimination. G. L. c. 151B, § 4(1) & (4). It is also unlawful for any person “to aid, abet, incite, compel, or coerce” such discrimination. G. L. c. 151B, § 4(5), as amended by St. 1989, c. 272, § 14. Commodore alleges (1) that there was enough evidence to create a triable issue of fact on her claim that Omega — together with Genesis — was her joint employer; and (2) that, if she established a genuine issue of material fact regarding Omega’s status as a joint employer, then the judge improperly allowed summary judgment on her G. L. c. 151B claim, as well as on her G. L. c. 93, § 102, and G. L. c. 149, § 187, claims. The seminal decision on joint employment is Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964), a case involving a bus company that had contracted with a maintenance company to service its terminals. The Supreme Court defined the concept of a “joint-employer” as a company possessing “sufficient control over the work of the employees” of another company. The Court described the joint employer determination as “essentially a factual issue.” Ibid. “The basis of [a joint employer] finding is simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 n.4 (6th Cir. 1997), quoting from NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3rd Cir. 1982). See Schlei & Grossman, Employment Discrimination Law 1312 (3d ed. 1996). Since Boire, Federal courts have applied joint employer principles to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq., and to the Age Discrimination Employment Act of 1967, 29 U.S.C. §§ 621 et seq. Swallows, supra. The Massachusetts Commission Against Discrimination and the Commonwealth’s trial courts have also applied joint employer analysis in G. L. c. 151B cases. Here, we do the same. b. Commodore argues that the requirements imposed on the licensee by 105 Code Mass. Regs. 150.002 (A)(2) and (D) were sufficient to raise a genuine issue of fact regarding Omega’s status as a joint employer. In heavily regulated environments, issues of joint employment are particularly complicated. As we noted earlier, the Department of Public Health regulation, 105 Code Mass. Regs. § 150.002(D), states, in relevant part, that the licensee “shall be responsible for procurement of competent personnel, and the licensee and the administrator shall be jointly and severally responsible for the direction of such personnel and for establishing and maintaining current written personnel policies, and personnel practices and procedures that encourage good patient or resident care" (emphasis supplied). The purpose of this regulation, however, is to protect patients, not to define the employment relationships at the nursing home. The regulation does not expressly require that the licensee be the employer of the employees providing the health care. Nor does it preclude the licensee from contracting with an independent company to provide such services, as was done here. Cf. Reida v. Cape Cod Hosp., 36 Mass. App. Ct. 553, 554 (1994) (no error in allowance of summary judgment for hospital as emergency room physician being sued for institutionalizing patient was “part of an incorporated emergency room physicians’ group which provided service to hospital as an independent contractor”). The licensee’s responsibility, as defined by the regulation, is to “procure,” not employ, competent personnel. Nevertheless, even if it exercises its right to contract out health care services, the licensee retains certain residual responsibilities regarding the selection and direction of health care personnel to satisfy its licensing obligation to the Department of Public Health. It also cannot contract away responsibility for the development of policies, practices, and procedures that encourage “quality” patient care. Despite these nondelegable responsibilities, however, we do not interpret this regulation as dictating, as a matter of law, that all licensees are joint employers for the purposes of G. L. c. 151B. It is c. 151B, not the Department of Public Health’s regulation, that provides the “detailed framework . . . [for] employment discrimination” claims. Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994). The regulatory requirements do not displace the multi-factor analysis of joint employer status under current antidiscrimination statutes and case law. Rather, the regulatory requirements must be integrated into that analysis. Consideration of the regulation, the management agreement, and the other evidence contained in the record leads us to conclude that the allowance of Omega’s summary judgment motion was error. Omega negotiated for the creation of the director of nursing position in the agreement. It provided the money to pay Commodore’s and all other employees’ salaries. Also, the extent to which Omega contracted away the employment function while still being able to fulfil its obligations as a licensee is unclear from the record. The contract language obscures the issue both by broadly delegating responsibility for the employment relationship to Genesis and leaving Omega the responsibilities required by law and regulation. Those requirements, however, preclude the contracting away of responsibility over personnel issues related to quality patient care. In this regard, the agreement is ambiguous. See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002) (“If a contract ... is unambiguous, its interpretation is a question of law that is appropriate for a judge to decide on summary judgment .... Where, however, the contract . . . has terms that are ambiguous, uncertain, or equivocal in meaning,” the parties’ intentions may depend on disputed material facts). See also Affiliated FM Ins. Co. v. Constitution Reinsurance Corp., 416 Mass. 839, 845-846 (1994) (summary judgment inappropriate where contract language ambiguous, and evidence of trade usage was necessary to interpret contract); Cardone v. Boston Regional Med. Center, Inc., 60 Mass. App. Ct. 179, 186-187 (2003). Neither party has submitted evidence regarding the parties’ actual application of the agreement. See Restatement (Second) of Contracts § 202 comment g, at 90 (1981) (“The parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning”). Moreover, Omega, as owner-licensee, retained in the agreement substantial financial control, as well as the right to inspection and the right to monthly consultation regarding operational decisions. However, the record reveals next to nothing about how those rights were exercised under this agreement and what their impact was on Commodore, whose high-level position as director of nursing would have involved her in decisions that would have concerned the owner-licensee of the facility as well as the manager. In sum, given Omega’s contract rights, the ambiguities in the contract, the nondelegable responsibilities set by the Department of Public Health regulation, the gaps in the record, and the fact-sensitive nature of the joint employer determination, it is not correct to conclude that Commodore has no reasonable expectation of proving that Omega was a joint employer. Kourouvacilis, 410 Mass. at 716. 2. General Laws c. 93, § 102, claim. The motion judge also allowed summary judgment on the claim arising under G. L. c. 93, § 102 (also known as the Massachusetts Equal Rights Act), on the sole ground that Omega could not be liable as a joint employer. In so doing, he declined to consider whether that claim was barred by the G. L. c. 151B claim. As we have concluded that (1) summary judgment should not have been allowed at this stage on the joint employer question, and (2) neither party has briefed the issue of the interrelationship between G. L. c. 151B and G. L. c. 93, § 102, we also reverse the allowance of summary judgment on the equal rights claim. The issue whether the G. L. c. 93, § 102, claim is barred by the c. 151B claim is better considered on a fuller record after briefing. 3. General Laws c. 149, § 187, claim. The plaintiff also claims that Omega violated G. L. c. 149, § 187(b), the health care whistleblower statute, which provides as follows: “[A] health care facility shall not refuse to hire, terminate ... or take any retaliatory action against a health care provider because the health care provider . . . disclose[s] to a manager ... an activity ... of the health care facility .. . that the health care provider reasonably believes is in violation of a law or rule or regulation ... or [in] violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” There is no question that Commodore is a health care provider. At issue is whether Omega is liable in these circumstances as a health care facility. Omega successfully argued to the motion judge that it was not a health care facility because it did not “employ health care providers.” We conclude that this statute does not call for an analysis precisely parallel to G. L. c. 151B. The focus of G. L. c. 149, § 187, is broader than the determination of employer status, and Omega, as owner-licensee of the health care facility, may be held responsible for G. L. c. 149, § 187, violations, even if it is not a joint employer pursuant to G. L. c. 151B. As provided in c. 149, § 187(a), a “[h]ealth care facility” is defined as follows: “[A]n individual, partnership, association, corporation or trust or any person or group of persons that employs health care providers, including any hospital clinic, convalescent or nursing home ... or other provider of health care services licensed, or subject to licensing by . . . the department of public health; any facility as defined in section 3 of chapter 111B;[] any private county or municipal facility .. . which is licensed or subject to licensing by the department of mental health ... or the department of mental retardation; any facility as defined in section 1 of chapter 123[]...." The statute is specific to the health care industry and is designed to safeguard patient care by protecting the rights of health care providers who expose deficiencies in care that violate laws or regulations or professional standards that endanger public health. The term “health care facility” in G. L. c. 149, § 187, is directed at the facility providing the care, i.e., the hospital, clinic, nursing home, or other health care center. The term is broadly defined. To insure its inclusiveness, and therefore its applicability outside the institutional setting, the definition encompasses any “individual, partnership, association, corporation, or any person or group of persons that employs health care pr

Lois J. Ayash vs. Dana-Farber Cancer Institute & others. Suffolk. October 6, 2004. February 9, 2005. Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ. Privacy. Doctor, Employment. Hospital, Peer review, Appointment to staff. Contract, Implied covenant of good faith and fair dealing, Physician, Employment, Interference with contractual relations. Employment, Retaliation. Charity. Corporation, Charitable corporation, Non-profit corporation. Damages, Employment contract, Libel. Libel and Slander. Contempt. A doctor seeking damages against a hospital (her former employer), among others, in connection with a series of events that occurred in the aftermath of the discovery that two patients at the hospital had been administered an overdose of a highly toxic chemotherapy drug, which resulted in the death of one of the patients, was not entitled to relief under G. L. c. 214, § IB, on the ground that her right to privacy had been invaded by the hospital’s public disclosure that peer review action was proceeding against the plaintiff or by the hospital’s actions in providing to a newspaper reporter confidential peer review documents that suggested some responsibility on the plaintiff’s part for the overdoses, where the disclosures were limited to the plaintiff’s professional involvement in a matter that already was the focus of a high degree of public scrutiny and interest and were not, in any event, of an exceedingly personal or intimate nature [382-385]; further, even assuming that the hospital breached its implied covenant of good faith and fair dealing by failing to follow the procedure described in its bylaws before restricting the plaintiff’s clinical privileges following the overdoses, the plaintiff failed to demonstrate that she suffered compensable loss as a result of the breach [385-388]; however, where a reasonable jury could conclude that the hospital’s decision not to renew the plaintiff’s appointment was motivated by retaliatory animus fueled by the plaintiff’s filing of a lawsuit against the hospital alleging gender discrimination, judgment in favor of the plaintiff on her claim of retaliation in violation of G. L. c. 151B, § 4 (4), was warranted [388-389]. This court concluded, based on the legislative history and plain language of the statutes in question, that the charitable cap on damages under G. L. c. 231, § 85K, limiting the tort liability of a charitable entity to $20,000, was not applicable to limit damages awarded pursuant to a successful claim of unlawful retaliation in the employment context under G. L. c. 151B, § 4 (4). [389-392] In an action where undifferentiated lump sum damages were awarded against a hospital for invasion of privacy, breach of the implied covenant of good faith and fair dealing, and retaliation, but where the verdicts on the first two claims were vacated on appeal, this court remanded the issue of damages for a new trial. [392-393] In an action brought by a doctor seeking damages against a hospital’s physician-in-chief (defendant), among others, claiming that the defendant intentionally interfered with the contractual relationship between the plaintiff and the hospital by wrongfully inducing the hospital not to extend the plaintiff’s employment in the aftermath of the discovery that two patients at the hospital had been administered an overdose of a highly toxic chemotherapy drug, which resulted in the death of one of the patients, the judge erred in denying the defendant’s motion for judgment notwithstanding the verdict, where the verdict against the defendant was tainted by the improper admission in evidence of confidential peer review documents protected under G. L. c. Ill, § 204 (a), and where, in the absence of such evidence, the defendant’s challenged conduct could not be said to be improper in motive or means. [393-399] A Superior Court judge did not abuse his discretion in finding that the ongoing refusal of certain defendants (a newspaper and a newspaper reporter) to comply with a discovery order directing them to disclose certain confidential sources to the plaintiff warranted, as a sanction pursuant to Mass. R. Civ. R 37 (b) (2), that judgments of liability enter in favor of the plaintiff on all of her remaining claims against the defendants, where the defendants’ refusal to comply resulted in the plaintiff’s inability to proceed against other defendants on certain claims, and where the judge left open to the defendants the option to remove the default by complying with the discovery order [399-404]; further, the jury’s award of damages on those default judgments was not clearly excessive in relation to what the plaintiff’s evidence had demonstrated damages to be [404-407]. Civil action commenced in the Superior Court Department on February 1, 1996. After certain discovery matters were heard by Peter M. Lauriat, J., the case was tried before Catherine A. White, J. The Supreme Judicial Court granted an application for direct appellate review. Kenneth W. Salinger (Steven L. Schreckinger with him) for Dana-Farber Cancer Institute & another. Joan A. Lukey (Gabrielle R. Wolohojian with her) for the plaintiff. Jonathan M. Albano (George Freeman, of New York, & Martin F. Murphy with him) for Globe Newspaper Company, Inc., & another. The following submitted briefs for amici curiae: Carl Valvo for Professional Liability Foundation, Ltd., & others. Steven S. Locke for Massachusetts Commission Against Discrimination. Robert S. Mantell, Jonathan J. Margolis, & James E. Fitzgerald for Massachusetts Employment Lawyers Association. Laura R. Handman & Jeffrey L. Fisher, of the District of Columbia, for ABC, Inc., & others. David M. Livingston, Globe Newspaper Company, Inc., and Richard A. Knox (the latter two collectively referred to as the Globe defendants). Greaney, J. The plaintiff, Dr. Lois J. Ayash, commenced this action in the Superior Court against the defendants, the DanaFarber Cancer Institute (Dana-Farber or the hospital); Dr. David M. Livingston; Globe Newspaper Company, Inc., publisher of the Boston Globe (Globe); and Globe reporter Richard A. Knox, seeking damages in connection with a series of events that occurred in the aftermath of the discovery that two patients enrolled in an experimental breast cancer treatment study at Dana-Farber had mistakenly been administered a four-fold overdose of a highly toxic chemotherapy drug. One of the patients, Globe health columnist Betsy A. Lehman, died as a result of the overdose. In her complaint, the plaintiff accused the Globe and Knox (together, Globe defendants) of publishing a series of scathing and inaccurate articles about the overdoses and an alleged coverup by Dana-Farber that erroneously attributed culpability to the plaintiff, thereby destroying her reputation and her well-being. The plaintiff’s complaint also accused Dana-Farber and Livingston (who was physician-in-chief at Dana-Farber at the time of the overdoses and their discovery) of inappropriately focusing public attention on her, by issuing press releases containing confidential peer review information and by secretly providing to Knox other confidential peer review information. This was done, the plaintiff alleges, in order to deflect attention from widespread deficiencies in the hospital that led to the overdoses and in order to protect other physicians at the hospital. The plaintiff’s amended complaint, as far as now relevant, states claims against (1) Dana-Farber for invasion of privacy, breach of the implied covenant of good faith and fair dealing, and unlawful retaliation in violation of G. L. c. 151B, § 4 (4); (2) Livingston for intentional interference with contractual relations; (3) the Globe defendants for libel and defamation; and (4) Knox for intentional interference with contractual relations and for intentional or negligent infliction of emotional distress. During the discovery stage of the litigation, the plaintiff sought the identities of sources consulted by Knox before writing articles, subsequently published in the Globe, that formed, at least in part, the basis of the plaintiff’s lawsuit. After the Globe defendants’ steadfast refusal to provide information that would lead to the identities of Knox’s confidential sources, despite a court order to disclose their identities, a judgment of civil contempt was entered in the Superior Court against the Globe defendants. The Appeals Court vacated the order to disclose and the contempt order, concluding that the defendants had made “some showing” that disclosure of Knox’s confidential sources presented a danger to the free flow of information that was more than theoretical or speculative. See Ayash v. Dana-Farber Cancer Inst., 46 Mass. App. Ct. 384 (1999). On remand, the judge allowed the plaintiff’s renewed motion to compel the Globe defendants to disclose the identities of their confidential sources. When the Globe defendants continued to refuse, the judge ultimately entered, as a sanction pursuant to Mass. R. Civ. P. 37 (b) (2), as amended, 390 Mass. 1208 (1984), pretrial default judgments of liability in favor of the plaintiff on her claims against the Globe defendants. After five weeks of trial (presided over by a different judge than the judge who had dealt with discovery), a jury in the Superior Court found Dana-Farber liable for (1) violation of the plaintiff’s statutory right to privacy under G. L. c. 214, § 1B; (2) breach of the covenant of good faith and fair dealing implied in its employment contract with the plaintiff; and (3) unlawful retaliation in violation of G. L. c. 151B, § 4. The jury also returned a verdict in favor of the plaintiff on her claim that Livingston intentionally had interfered with her employment relationship with Dana-Farber. The jury awarded damages against Dana-Farber in the amount of $180,000 for lost compensation and injury to business reputation, $1,080,000 for emotional distress, and $5,000 in punitive damages; the jury also awarded damages against Livingston in the amount of $120,000 for lost compensation and injury to business reputation, and $720,000 for emotional distress. For the plaintiff’s defaulted claims against the Globe defendants, the jury awarded her the sum of $1,680,000 against the Globe (reflecting $240,000 in economic damages and $1,440,000 in emotional distress damages) and $420,000 against Knox (reflecting $60,000 in economic damages and $360,000 in emotional distress damages). The judge heard motions filed by Dana-Farber and Livingston for the entry of judgment notwithstanding the verdicts; a motion filed by Dana-Farber requesting that the charitable cap, G. L. c. 231, § 85K, be applied to the judgment against it; a motion filed by the Globe defendants challenging the default judgments; and motions for a new trial (or, alternatively, for remittitur) based on excessive damages submitted by all of the defendants. The judge upheld the verdicts against Dana-Farber and Livingston, but agreed that the charitable cap applied to the damages awarded against Dana-Farber. The judge declined to revisit the default judgment (which, as noted, had been entered by another judge). Finally, the judge concluded that damages awarded by the jury, although high, were not excessive and denied all of the defendants’ motions for remittitur. An amended judgment was entered allowing the plaintiff to recover the sum of $20,000 (plus costs and interest) from Dana-Farber. The case is before us on cross appeals. The plaintiff appeals the judge’s application of the charitable cap. Dana-Farber appeals the denial of its motion for judgment notwithstanding the verdicts on the retaliation, privacy and implied contract claims. Livingston appeals the denial of his motion for judgment notwithstanding the verdict on the intentional interference claim. The Globe defendants appeal the imposition of the sanction of default judgment against them. All of the defendants appeal the denial of their motions for remittitur, or for a new trial, on the issue of excessive damages. We granted the parties’ applications for direct appellate review. For reasons that follow, we vacate the judgments against Dana-Farber for invasion of privacy and for breach of the implied covenant of good faith and fair dealing, and against Livingston for interference with employment relations, and direct the entry of judgments for Dana-Farber and Livingston on those claims. We affirm the verdict against Dana-Farber for the G. L. c. 151B unlawful retaliation claim and conclude that the charitable cap set forth in G. L. c. 231, § 85K, does not apply to damage awards for unlawful retaliation under G. L. c. 151B. We affirm the default judgments, and the corresponding damage awards, against the Globe defendants. Vacating the judgments against Dana-Farber for invasion of privacy and breach of the implied covenant creates a defect in the damages awarded against Dana-Farber that necessitates a retrial on damages. Accordingly, we remand the case to the Superior court for a new trial on the damages to be awarded against Dana-Farber. 1. We begin with an overview of the facts in the light most favorable to the plaintiff. See Situation Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 876 (2000); Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438 (1992). Additional facts will be discussed as they relate to the parties’ claims of error. a. The overdoses and the immediate aftermath of their discovery. In November, 1994, a research fellow at Dana-Farber, Dr. James Foran, accidentally ordered four-fold overdoses of cyclophosphamide, a powerful chemotherapy drug with well known heart toxicity, for two patients in an experimental protocol for breast cancer patients (protocol 94-060) administered under the auspices of Dana-Farber’s Solid Tumor Autologous Marrow Program (STAMP). The plaintiff was protocol chair and principal investigator for protocol 94-060. The overdoses were separately administered to two patients, Betsy Lehman and Maureen Bateman, over the course of four days beginning on November 14 and November 16, respectively. The attending physician on duty at the time the orders were written, and the overdose administered to Lehman, was Dr. Gary N. Schwartz. The attending physician on duty at the time the overdose was administered to Bateman was Dr. Anthony Elias, the director of STAMP. Both patients suffered almost immediate adverse reactions to the cyclophosphamide treatment. Bateman survived the overdose but experienced severe cardiac damage. Lehman died on December 3 as a result of the overdose. An autopsy failed to uncover the cause of her death. The plaintiff began a rotation as the attending physician for Lehman and Bateman on December 1. On the morning after Lehman’s death, the plaintiff inquired of another STAMP team physician, Dr. Richardson, whether the correct chemotherapy dose had been administered to Lehman. Richardson responded in the affirmative. As protocol chair and co-director of the STAMP team, the plaintiff informed the director of protocol administration at Dana-Farber of Lehman’s death and provided him with pharmacological data about the blood levels of cyclophosphamide and its metabolite in Lehman and in other patients participating in protocol 94-060. To the plaintiff, and to other STAMP team physicians, the data appeared inconclusive. At a meeting approximately two weeks later, the plaintiff, based on her earlier conversation with Richardson, informed a group of STAMP team physicians and members of Dana-Farber’s pharmacology department that the cyclophosphamide administered to Lehman had been the correct dosage. During a medical staff retreat, the plaintiff presented the pharmacological data and clinical scenario of all four patients who had undergone protocol 94-060 and stated her view that Lehman’s death most probably reflected a modulation of cyclophosphamide. Those present voiced no disagreement. It was not until on or about February 8, 1995, that a Dana-Farber data manager discovered the overdosing errors. The plaintiff reported the errors to Dana-Farber’s human protection committee on the following day. The hospital immediately notified both patients’ families of the tragic error and suspended all clinical work under protocol 94-060. Livingston, as the hospital’s physician-in-chief, began his own informal investigation into the incident by inquiring of other physicians, including Dr. Schwartz and Dr. Foran, as to their version of events. Livingston, however, did not seek the plaintiff’s view as to what had occurred. Dana-Farber established three committees to investigate the circumstances of the overdoses and the hospital’s subsequent failure to discover them. First, it convened an internal peer review committee, chaired by Dr. Steven E. Sallan (Sallan committee), to focus on how the overdoses occurred and to recommend steps to prevent a similar tragedy in the future. Dana-Farber also appointed an external peer review committee (Devita committee), headed by Dr. Vincent T. Devita, a national leader in oncology and former director of the National Cancer Institute, to review the Sallan committee report and, if necessary, independently investigate circumstances leading to the overdose. Finally, an internal Dana-Farber audit team was established to perform an in-depth investigation of protocol 94-060 itself. On March 22, 1995, Livingston issued two statements. First, in a statement to hospital staff, he described the overdose incidents and the steps that had been, or would be, taken by Dana-Farber in response. Second, in a statement to the news media, Livingston admitted that the overdoses resulted from “human error” and announced that Dana-Farber had “taken additional precautions to ensure that they do not happen again,” including the establishment of “two internal review committees and an external review committee” that had been “asked to examine all issues related to this situation.” Livingston stated that “once all the facts have been fully analyzed, and the causes of the errors identified,” Dana-Farber would “make available to the public the conclusions and recommendations of the committees.” The next day, two physicians and three pharmacists were placed on administrative duty and restricted from clinical practice. The plaintiff was not one of those whose clinical privileges were restricted. b. Reporting of the overdoses by the Globe. The discovery of the overdoses was of considerable public interest. Dana-Farber became the subject of intense media coverage, including that in the Globe. On March 23, 1995, the day after Livingston issued the hospital’s first press release on the overdoses, the Globe published a front page article, authored by Knox, entitled “Doctor’s orders killed cancer patient.” With respect to the overdose administered to Lehman, the article ascribed the erroneous order to a “physician working as a research fellow,” but noted that “[f]ive or six other doctors and nurses countersigned the mistaken order, including Dr. Lois J. Ayash, leader of the team.” The plaintiff was the only physician named in the article as having any connection to the overdose. Moreover, contrary to what was stated in the article, the plaintiff had not countersigned the overdose order, nor was she the “leader of the team.” Despite this error in reporting, no effort was made by Dana-Farber, or by Livingston, to correct the impression that the plaintiff shared responsibility for the overdose error. On March 24, 1995, the Globe published an editorial concerning the overdoses. The editorial characterized the overdose error as “so glaring that any first-year medical student should have spotted it.” The following day, the Globe published an article written by another Globe columnist, Bella English. The column did not mention the plaintiff by name, but described the overdoses as “an appalling series of errors that would make The Three Stooges look like brain surgeons” and stated tha