Managers May Be Liable to Fired Employee for Supposed "Unjustified Personal Vendetta"

In Bresler v. Muster, decided Thursday by the Massachusetts high court (in an opinion by Justice Serge Georges), a Massachusetts Appeals Court staff attorney (Bresler) who had been fired sued three managers—the deputy chief staff attorney (Muster), the chief staff attorney (Bowe), and the court administrator (DeRossi)—claiming the firing stemmed from their personal hostility to Bresler. The legal theory was tortious interference with advantageous relations, which under Massachusetts law requires a showing that

(1) [the plaintiff] had an advantageous relationship with a third party …; (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions.

The "improper … motive" portion of the third element has been understood as requiring "actual malice" in the sense of "a spiteful, malignant purpose, unrelated to the legitimate corporate interest." (This is not the way "actual malice" is used in libel law, where it refers to knowing or reckless falsehood.)

The court allowed Bresler's case to go forward against Muster and Bowe:

[I]t is reasonably inferable that Muster acted with a spiteful, malignant purpose unrelated to any legitimate interest of the Appeals Court—namely, to alienate Bresler from his superiors and peers out of resentment for his professional success. This improper motive is sufficiently supported by allegations that (i) other staff attorneys believed Muster was jealous of Bresler; (ii) Muster accused Bresler of attempting to "take over"; (iii) she solicited criticism of Bresler from judges and encouraged them to report those criticisms to Bowe; (iv) she ridiculed Bresler and belittled his writing to judges Bowe, DeRossi, and other staff attorneys; (v) she discouraged attendance at Bresler's seminars and failed to publicize them; (vi) a union steward reported that Muster was "brutal" in her review of Bresler's editing and subjected him to unfair scrutiny; (vii) Bresler's performance evaluations declined sharply after Muster became deputy chief staff attorney and began attending his performance meetings, supporting an inference that Muster contributed to that decline; and (viii) Muster provided at least some of the false or trivial allegations used by DeRossi as grounds for Bresler's termination. {Taken as true, Muster's alleged conduct plausibly … supports an inference of an "unjustified personal vendetta or ill will exceeding personal dislike."}

The court mentioned in passing some alleged falsehoods:

Bresler alleges that a November 2020 letter [by DeRossi] cited thirteen fabricated or exaggerated performance deficiencies—some of which were allegedly supplied by Muster…. It is reasonable to infer that Muster's broader treatment of Bresler, beyond what is documented in that letter, was consistent with those alleged instances. Such inferences, viewed in conjunction with the complaint's detailed allegations, are sufficient to support a plausible claim, especially given that actual malice need not be proved by direct evidence but may be derived from rational inferences from the facts.

But it didn't seem to understand the tort as requiring a finding of falsehood (and indeed some of these were presumably just "exaggerat[ions]" rather than "fabricat[ions]"), and Bresler's claim was not a defamation claim.

The court also added that,

[T]he allegations support an inference that Muster's conduct served no legitimate purpose of the Appeals Court. Muster's hostility toward Bresler allegedly predated her promotion and her involvement in his supervision. Her concerns and criticisms, as his peer, about his participation in writing and other seminars were not in any way within her responsibilities and provide a basis for concluding that she was motivated by personal jealousy and hostility. Also prior to Muster's promotion, Bresler had received a highly favorable performance evaluation. Only after Muster's elevation did he begin receiving negative evaluations, further supporting the inference that her actions were without basis and fueled by personal animus, not the Appeals Court's interests.

The court likewise allowed the case to go forward against Bowe:

In her initial June 2019 evaluation, Bowe praised Bresler's performance, stating that he had "so far … performed his duties … very well," received positive feedback from judges, "brought a great deal of energy and enthusiasm to the office," and was a "positive influence on staff attorney morale" who "generate[d] a professional image for the Appeals Court."

Yet, following Muster's promotion, Bresler's complaint describes a marked and troubling shift in Bowe's conduct. Specifically, Bowe (i) reneged on her promise to protect Bresler from Muster by assigning Muster to supervise his editing and allowing Muster to attend his performance meetings; (ii) issued three negative evaluations between October 2019 and June 2020—the first of which came just months after her glowing review—and falsely attributed certain mistakes to him; (iii) extended his probation for six months, the first time the Appeals Court had done so, and denied him his scheduled salary increase during that period; (iv) failed to act after being informed by the union steward that Muster was bullying Bresler and subjecting him to impossible scrutiny; (v) reversed course on her prior praise of Bresler's teaching at the Social Law Library by directing him to stop; (vi) assigned substantive work to less experienced attorneys over him; (vii) omitted numerous positive evaluations of Bresler's work from his reviews; (viii) held him to a stricter standard than others who committed similar errors; and (ix) participated in the submission of false or trivial allegations to DeRossi to justify Bresler's termination—despite knowing, at least in some instances (e.g., the computer synchronization issue), that Bresler bore no fault.

Moreover, Bowe admitted to another staff attorney that there was a "campaign" against Bresler—apparently initiated by Muster—which had "taken on a life of its own." This admission supports an inference that Bowe knowingly furthered a campaign separate and apart from any legitimate interest of the Appeals Court.

From these facts, it is reasonable to infer that Bowe's conduct was not merely negligent or misguided, but driven by actual malice. That is, when taking the allegations as true, it can be inferred that Bowe, like Muster, acted out of a spiteful, malignant purpose wholly unrelated to the court's legitimate interests. Her pattern of exaggerating performance issues, ignoring reports of harassment, reneging on protective assurances, omitting favorable evaluations, and reassigning his work to less experienced colleagues all indicate that her actions were not motivated by concerns about the "quality or usefulness" of Bresler's work, but by personal animus….

But the court threw out the claim against DeRossi:

[T]he complaint alleges that DeRossi (i) sent a letter to Bresler listing thirteen performance deficiencies provided by Bowe and Muster; (ii) failed to give Bresler an opportunity to understand or respond to those deficiencies; (iii) did not investigate the deficiency claims herself; and (iv) terminated Bresler for errors, "either knowing that some of them were false or with reckless disregard for their falsity."

The complaint does not plausibly suggest that DeRossi acted with "actual malice" as the controlling factor…. [A] supervisor's termination of an employee and failure to explain the reasons may reflect poor management but does not, without more, establish actual malice. The conduct must rise to the level of unjustified personal hostility or ill will "exceeding personal dislike." At most, the allegation that DeRossi, as the court administrator, failed to investigate the charges prepared by high-level managers suggests mismanagement, not malice….

I'm skeptical about such broad understandings of the interference with business relations tort, which allow punishment for otherwise legal behavior so long as it appears to be ill-motivated. I prefer the approach that many states have recently adopted, which requires a showing of an independent legal wrong (such as defamation, assault, etc.) for interference with business relations claims to go forward. Among other reasons, though the court stated that, "The actual malice requirement provides a measure of protection to corporate supervisors, who must necessarily make adverse employment decisions from time to time and who otherwise would be unduly exposed to the tortious interference claims of disgruntled former employees," this "measure of protection" seems limited: Many a fired employee can assert that this or that statement or action by a manager (or a coworker) bespeaks "personal jealousy and hostility."

But the Massachusetts high court obviously disagrees with me on this, and I thought the opinion was worth noting. I'm particularly interested in how this might play out with regard to politically motivated "cancellation" campaigns, whether by coworkers or by outsiders (because I'm working on an article related to that topic)—but of course this theory can also apply in many other employment contexts.