Wrongful Termination Cases

John E. Mole vs. University of Massachusetts & others. Suffolk. November 6, 2003. September 1, 2004. Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ. Civil Rights, Termination of employment. Employment, Discrimination, Retaliation, Termination. Anti-Discrimination Law, Termination of employment, Prima facie case. Public Employment, Termination. Practice, Civil, Prima facie case. In a civil action brought by a tenured university professor against the defendant university and individual defendants, alleging that the plaintiffs support of charges of sexual harassment charges lodged by his wife (also a faculty member) led to unlawful retaliation against him and violation of his civil rights under 42 U.S.C. § 1983, the judge properly granted directed verdicts in favor of all defendants where the plaintiff had not introduced sufficient evidence to establish a causal link between his support for his wife’s charge and the actions taken against him for purposes of the retaliation claim [591-602] or his claim under 42 U.S.C. § 1983 [602-603]. Civil action commenced in the Superior Court Department on August 5, 1994. A motion for summary judgment was heard by Barbara J. Rouse, J., and the case was tried before Charles T. Spurlock, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Christopher J. Campbell (Andrew C. Pickett with him) for the defendant. John Foskett for the plaintiff. Michael P. Czech, Frank J. Chlapowski, and Michael A. Bratt. Sosman, J. The plaintiff, John Mole, a former tenured professor at the University of Massachusetts Medical Center (UMMC), appeals from the granting of a directed verdict in favor of all defendants on his claims of retaliation (under G. L. c. 151B, § 4 [4] and [4A], and Title VII, 42 U.S.C. § 2000e-3 [2000]) and violation of civil rights (42 U.S.C. § 1983 [2000]). The Appeals Court, with one Justice dissenting, reversed and remanded the case for a new trial. Mole v. University of Mass., 58 Mass. App. Ct. 29, 48 (2003). We granted the defendants’ application for further appellate review. We conclude that the plaintiff failed to introduce sufficient evidence to establish the requisite causal connection between his protected activity (supporting his wife’s claim of sexual harassment) and the adverse personnel actions of which he complains. We therefore affirm the judgment. 1. Facts. Viewed in the light most favorable to the plaintiff, the evidence at trial was as follows. Professor Mole and his wife, Jacqueline Anderson, were both employed at UMMC as faculty members in the biochemistry and molecular biology department (department). Michael Czech was the chair of the department, and Frank Chlapowski was the acting chair during periods when Czech was on leave of absence. With the full support of Czech, Mole had joined the faculty in 1981, been granted tenure in 1984, and attained the rank of full professor in 1987. Anderson was not in a tenure track position. Mole and Anderson were the founders and directors of a research laboratory at UMMC known as the Protein Chemistry Core Facility (PCF), which supported the research of other scientists at UMMC (as well as scientists from outside the university) by isolating and sequencing proteins and amino acids. Funding for the PCF was provided by two sources, the Diabetes and Endocrinology Research Center (DERC), a group of research scientists at UMMC that in turn was funded by Federal grants, and the Scientific Council, another group of UMMC scientists comprised of one member from each department at UMMC. In 1988, Czech criticized Mole with respect to certain fees that the PCF was charging, alleging that the fees were “flagrantly excessive.” Czech expressed dismay about the fees in light of the support the PCF received from the Scientific Council, and disappointment that the imposition of such fees “reflects a lack of cooperative spirit and collegiality.” In response to this criticism, Mole and Anderson wrote to Czech, opining that it was “clear” that Czech had “embarked on a course of action that is intended to damage us personally and professionally” and accusing Czech of making “misleading and false accusations” against them. They indicated that, unless their concerns were resolved, they would file a formal grievance. Dissatisfied with Czech’s response, they pursued that grievance, seeking to remove from their respective personnel files Czech’s correspondence containing the alleged “false and misleading information.” The grievance was resolved in August, 1988, with Czech agreeing that his letter was a “private communication” that was not intended to be placed in their personnel files. Beginning in the late 1980’s, the Scientific Council questioned the advisability of its support of the PCF. At the time, various researchers voiced concerns about difficulties they had encountered working with Mole, and some researchers were opting to have samples analyzed by other facilities instead of using the PCF. A subcommittee of the Scientific Council, formed to review alternative proposals to the PCF, rendered its report on February 8, 1990, recommending that the PCF be merged with another nearby facility and that a new director be recruited for the new combined laboratory. Three weeks later, on February 28, 1990, Anderson submitted an informal complaint to the university’s equal employment opportunity office, alleging that Czech had made sexually offensive remarks. In some unspecified manner, Mole had supported or encouraged his wife’s decision to make that complaint. It is unclear how soon thereafter Czech or Chlapowski learned of Anderson’s complaint, or when they learned of Mole’s own involvement in supporting his wife’s pursuit of that complaint, but, by sometime in August, 1990, both Czech and Chlapowski were aware of the pending complaint. Meanwhile, back in the late spring of 1990, Mole’s teaching assignments had been curtailed, after receiving negative comments from student evaluations. Some negative comments concerning Mole’s teaching had emerged in student evaluations in prior years, but Czech had until that time discounted those negative evaluations for various reasons. On October 4, 1990, Czech and Chlapowski gave Mole his evaluation for the academic year July, 1989, through June, 1990. Whereas the prior year’s evaluation had praised his teaching as “very helpful to the department” and noted improvement in his lectures, the 1990 evaluation referenced the negative evaluations from students and reflected the fact that Mole had been relieved of his teaching duties. With regard to Mole’s research, the prior year’s evaluation had noted that one of Mole’s outside grants had ended, and that he was in his final year of another grant. That 1989 evaluation had urged Mole “to go forward with strong efforts to ensure continuation of his research funding.” The 1990 evaluation noted that the one remaining grant had not been renewed, but that Mole had pending one grant application to two other organizations. The evaluation referenced the urgency of Mole’s finding new funding for the PCF, because the Scientific Council’s withdrawal of support meant that the PCF had lost nearly one-half of its customary funding. The evaluation expressed disappointment that the Scientific Council had “lost confidence” in Mole’s direction of the PCF, and advised Mole that his “primary focus and concern” for the coming year should be to seek out new sources of research funding. In January, 1991, Anderson lodged a formal complaint of sexual harassment against Czech. Chlapowski was under the impression (ultimately shown to be mistaken) that he had also been named in the complaint. On April 24, 1991, Chlapowski filed a charge of “scientific misconduct” against Mole based on Mole’s inaccurate listing of certain papers as “accepted for publication” or “in press.” Amongst research scientists, a charge of “scientific misconduct” is extremely serious, and potentially ruinous to one’s career. After investigation by UMMC officials, it was determined that Mole’s misreporting of the status of his publications was “sloppy and inappropriate,” and deserving of reprimand, but that it did not amount to “scientific misconduct.” Mole was reprimanded but, in the opinion of one of the investigators, it had been “ridiculous” for Chlapowski to escalate the charge to one of “scientific misconduct.” In May, 1991, DERC voted to cease its funding of the PCF as of November, 1991. Chlapowski then contacted the Scientific Council, asking that it finalize its position with respect to its own funding of the PCF. The Scientific Council formally voted to terminate its financial support of the PCF. Shortly thereafter, Mole submitted a request that the department fund the PCF. Chlapowski responded with a list of questions concerning Mole’s request, while making clear that there was no commitment to provide department funding. The questions included requests for factual data (e.g., information on the PCF’s past finances), but also probed the merits of whether support from the department was warranted (e.g., asking why the department should fund the PCF when support “has been discontinued by two of the major scientific programs of the Medical School”). Mole, not wishing to expend the considerable time it would take to gather the information necessary to respond and doubtful that his request for support would be granted, did not supply the requested information. In December, 1991, Czech and Chlapowski completed Mole’s annual evaluation for the 1990-1991 academic year. That evaluation reflected the fact that Mole had lost all outside sources of funding, and that his funding from DERC and the Scientific Council was at an end. It also recited the history leading to the reprimand for the inaccurate reporting of the publication status of his research, and noted that Mole had no new papers either published or accepted for publication. The evaluation went on to list complaints from postdoctoral students who had worked in Mole’s laboratory. In that evaluation, Czech and Chlapowski expressed concern over the fact that Mole had refused to meet with Chlapowski to discuss his evaluation, necessitating resort to purely written communications, and that Mole had similarly alienated other colleagues. In light of these problems, the evaluation concluded that Mole’s “behavior and poor performance are totally inconsistent with his appointment as a tenured Professor,” and that it was “difficult for [Czech and Chlapowski] to understand how Dr. Mole can hope to continue as a faculty member.” In light of these developments, they advised Mole that the laboratory space for the former PCF and Mole’s own laboratory space might be devoted to other uses. On February 10, 1993, Chlapowski completed the next annual evaluation of Mole, and the jury could infer that Czech (despite being on a leave of absence) had been consulted with respect to that evaluation and concurred in it. The evaluation again reflected that Mole had lost all sources of outside funding, and noted that prior evaluations had advised him to concentrate his efforts on obtaining such funding. Chlapowski recounted that Mole had proposed to submit a grant application that included Anderson as one of the principal investigators, but that he (Chlapowski) had declined to approve it because Anderson would not be a member of the faculty during the time period of the grant. Mole had not prepared any other grant applications since May, 1991. The evaluation also criticized Mole for not following through with respect to the correction of his curriculum vitae (a recommendation that had stemmed from the prior accusation of “scientific misconduct”), and for not coming forward with any new publications or research papers. The evaluation cited Mole’s absence from weekly department seminars, indicative of “a further lack of interest on his part in developing a credible research program.” Ongoing problems with his teaching performance were noted, with the conclusion that it would be “inappropriate” to increase his teaching load. The evaluation concluded that Mole had failed to address any of the concerns raised in the prior year’s evaluation, and that his “overall productivity” remained “consistently poor.” As a result, Chlapowski advised that Mole’s assigned laboratory space would be consolidated into a single laboratory. Finally, Chlapowski announced his intention to recommend to the dean that, unless Mole demonstrated improvement in the coming year, Mole’s salary should be reduced by 17.5 per cent. On May 2, 1993, Mole filed a charge with the Massachusetts Commission Against Discrimination complaining of alleged retaliation on account of his support for his wife’s charge of sexual harassment. With respect to the negative performance evaluation he had received in February, 1993, Mole also filed a grievance, claiming that Chlapowski was biased against him and could not evaluate him fairly. The grievance committee recommended that, instead of Chlapowski performing Mole’s evaluation, a committee should be established to perform that task, with the department electing one member of the committee, Mole selecting a second member, and those two members selecting the third member. Mole, of the view that the entire department was biased against him, refused to select anyone from his department to serve on the committee. Lacking any nominee from Mole, the department, at a faculty meeting, voted for two members of the committee, and those two members selected the third member. Neither Czech nor Chlapowski was on the newly formed evaluation committee, nor did Mole present any evidence that Czech or Chlapowski had influenced the faculty vote. On November 8, 1993, nine faculty members (comprising approximately one-half of the department) signed a letter to the chancellor of UMMC complaining about Mole’s lack of productivity, and protesting that he was occupying laboratory space and receiving a salary “without making any contribution” to the department. The signatories to the letter noted that Mole’s research remained without funding “because, for some years now, he has refused to write grant applications. In short, Dr. Mole is a deliberately unproductive faculty member who should be asked to leave.” The letter opined that there were grounds for Mole’s dismissal, suggested that Mole be requested to leave, and, if he did not leave voluntarily, “that a formal investigation into his behavior be initiated.” Neither Czech nor Chlapowski signed this letter, and Mole adduced no evidence suggesting that either Czech or Chlapowski had encouraged faculty members to author or sign the letter. On June 9, 1994, the evaluation committee elected by the department faculty rendered its first evaluation of Mole. Mole, while protesting that the committee was biased against him, submitted to the three evaluators his version of events, explaining why, in his view, he had been unfairly treated by Chlapowski and unfairly denied opportunities to teach and to serve on committees. The evaluators noted that there were “irreconcilable differences of opinion” between Chlapowski and Mole, but concluded that there were grounds for reducing Mole’s teaching and declining to appoint him to committees. Specifically, the evaluation committee noted that there had been “repeated poor performance evaluations” by students in one course, and that Mole had become “a source of general dissatisfaction with the course by students.” With regard to committee assignments, the evaluators recited Mole’s “severely strained relations” with the department faculty, such that “a majority of [department] faculty members would not be willing to be represented by Dr. Mole on any committee.” The evaluation reflected that Mole had no “significant research funding” since 1991, that he had misrepresented the current status of one grant application, an infraction that they viewed as comparable to the prior misstatements about the status of his publications. The committee expressed the view that Mole was “not making serious attempts at regaining significant research support.” Concluding that Mole was “not an effective faculty member,” the committee recommended that Mole’s salary be decreased by 17.5 per cent, with a further reduction the following year if he did not present “significant evidence of research productivity.” They also recommended that, if Mole did not secure any research funding in the coming year, his laboratory space should be “eliminated” effective July 1, 1995. When the same committee evaluated Mole again in June, 1995, the evaluators found no improvement. Mole’s only new publication was a paper that had been completed the previous year. Although Mole had submitted two “small” grant applications, neither had been funded, and the committee was of the view that Mole had deliberately sabotaged one of the applications. The committee opined that Mole “has not presented any evidence of significant research productivity or made concerted or serious attempts to obtain funding.” Accordingly, consistent with their recommendations in the previous evaluation, they recommended that Mole’s salary should be reduced by another 17.5 per cent and that his laboratory space be assigned to other uses. No evaluation of Mole was performed the following year. The committee resigned, expressing the view that there was no point in evaluating the work of a faculty member who was doing no work. Mole’s own self-evaluation reflected that he had no new grants or publications, but attached his explanation that the department was denying him “any opportunities to teach, perform service or maintain a credible research program.” In 1997, the chancellor of UMMC commenced proceedings to terminate Mole. At the termination hearings, both Czech and Chlapowski testified and, at the chancellor’s request, Czech reviewed and responded to testimony in the hearing transcripts. The chancellor recommended to the board of trustees that Mole be terminated, and the board adopted his recommendation. Mole’s appointment was terminated as of May 5, 1999. 2. Discussion, a. Retaliation. Mole contends that UMMC, Czech, and Chlapowski took the above recited actions against him in retaliation for his support of Anderson’s charge of sexual harassment against Czech. See G. L. c. 151B, § 4(4) and (4A); Title VII, 42 U.S.C. § 2000e-3. Lacking any direct evidence of a retaliatory motive, Mole had the burden of establishing a prima facie case of retaliation, and, in the wake of the defendants’ introduction of nonretaliatory reasons for the various actions taken, the burden of proving that the articulated nonretaliatory reasons were pretext. See McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 309 (1st Cir. 1998), cert. denied, 525 U.S. 1104 (1999); Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992). To make out his prima facie case, Mole had to show that he engaged in protected conduct, that he suffered some adverse action, and that “a causal connection existed between the protected conduct and the adverse action.” Mesnick v. General Elec. Co., supra. The defendants contended in their motions for directed verdict, and the judge agreed, that Mole had not introduced sufficient evidence to establish a causal link between his support of his wife’s charge and the actions taken against him, and thus had insufficient evidence to permit an inference of retaliation. Mole contends that the causal relationship between his support of Anderson’s complaint and the adverse employment actions taken can be inferred from the timing and sequence of events. Of course, “[t]he mere fact that one event followed another is not sufficient to make out a causal link.” MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996), citing Prader v. Leading Edge Prods., Inc., 39 Mas

<bold>1. Public Officers and Employees — university coach —</bold> <bold>jurisdiction to hear petition to reinstate duties</bold> <block_quote> The superior court did not err by concluding that the Office of Administrative Hearings (OAH) and State Personnel Commission (SPC) had jurisdiction to hear the petition seeking to reinstate petitioner's duties as Assistant Football Coach and Head Women's Softball Coach at Winston-Salem State University, because: (1) an employee petition filed with the OAH that alleges the employee has been dismissed, demoted, or suspended without just cause is sufficient to invoke the jurisdiction of the OAH and SPC; and (2) in this case petitioner alleged he had been discharged without just cause or reassigned without just cause when he was relieved of his athletic duties and privileges by respondent's Athletics Director, thus alleging a discharge or demotion.</block_quote> <bold>2. Public Officers and Employees — university coach — demotion</bold> <bold>or discharge</bold> <block_quote> The superior court erred by concluding petitioner had been demoted or discharged from his coaching duties in violation of N.C.G.S. § <cross_reference>126-34.1</cross_reference>(a)(1), because: (1) at most, the evidence shows a reassignment as petitioner claims to have lost his more significant coaching responsibilities; (2) a demotion is defined as a lowering in rank, position, or pay, and in the instant case petitioner's paygrade remained the same; and (3) as the promised raise in salary had not yet come into effect at the time of his reassignment, petitioner has also failed to show a demotion through a decrease in pay.</block_quote>