$______ VERDICT - EMPLOYMENT DISCRIMINATION - WRONGFUL TERMINATION - PLAINTIFF DISMISSED AFTER EXPRESSING DISAGREEMENT WITH CHAIRMAN OVER SECURITY POLICY - JURY AWARDS NO DAMAGES.

• Pages: 9-9

no warning or loud words between the parties before

the fight erupted. A member of the defendant’s staff

testified that there was nothing to indicate that the

other party was intoxicated, that he threw just one

punch without warning, and that the defendant’s em-

ployees immediately moved to separate the parties,

but could not contain the plaintiff. The defendant

pointed out that even the plaintiff’s witness confirmed

that the other patron had just arrived and that he

struck the plaintiff without warning. The defendant as-

serted that its staff acted appropriately in separating

the combatants and that the plaintiff refused to be

restrained and continued to fight.

The jury found no negligence by the defendant and

returned a verdict in favor of the defendant.

REFERENCE

Grant v. JTJ Corporation d/b/a Daisy Buchanan’s.

Attorney for defendant: John Galvin of Galvin &

Ames in Boston, MA.

COMMENTARY

A key component of this case involved the plaintiff’s claimed dam-

ages. The plaintiff initially listed his profession as real estate devel-

oper. He later referred to himself as a professional basketball

player. Clearly the plaintiff’s damages would be significantly

greater if his lost income was predicated on his playing in the NBA

as opposed to developing real estate. The plaintiff was unable to es-

tablish his employment as a professional basketball player because

defense counsel pointed to the fact that he had last played profes-

sionally nearly a year before the subject incident and even that

playing time was only under a short term, several game contract.

Defense counsel also presented numerous records of real estate

transactions in the plaintiff’s name that had been transacted in the

time leading up to the subject incident. It was clear from the defen-

dant’s evidence that the plaintiff was no longer a professional bas-

ketball player and had not been for some time but was, as he had

stated initially, a real estate developer.

The plaintiff had similar difficulty in establishing causation of his in-

jury due to the fact that he had twice reported to hospital staff that

his injury occurred as the result of a fight. When he claimed, in this

cause of action, that his injury happened at the hands of the defen-

dant, it was a contradiction of his spontaneous statements immedi-

ately following the incident. Both medical records introduced at trial

contained statements by the plaintiff that he had probably hurt his

wrist when punching the other combatant in the head.

$0 VERDICT – EMPLOYMENT DISCRIMINATION – WRONGFUL TERMINATION –

PLAINTIFF DISMISSED AFTER EXPRESSING DISAGREEMENT WITH CHAIRMAN OVER

SECURITY POLICY – JURY AWARDS NO DAMAGES.

Suffolk County, MA

The plaintiff, an executive working for a

subsidiary of Fidelity Investments, brought this

wrongful termination action against the defendant

company and its agents. The defendants denied

wrongfully terminating the plaintiff and argued

that he was dismissed for insubordination.

The plaintiff, in the course of his employment with the

defendant, was responsible for the operations of the

World Trade Center Boston facility. In the course of his

employment, the plaintiff became aware of planned

changes to security measures at the facility imple-

mented by the defendant’s chairman. The plaintiff

opposed these changes and expressed his opposi-

tion. The plaintiff was told by the defendants not to

put his opposition in writing or he would be fired. The

plaintiff was told that he could express his opposition

verbally, but not in writing except to the defendant’s

attorneys.

The plaintiff outlined, in writing, his opposition to

changes in security measures at the World Trade Cen-

ter anyway as, he claimed, was his right. The plaintiff

was subsequently terminated. The plaintiff argued that

he was dismissed because he opposed the chair-

man’s security policies. The plaintiff had an eight year

unblemished record of employment with the defen-

dant prior to his termination.

The plaintiff claimed tortuous interference against his

two supervisors, claiming they acted maliciously in fir-

ing him. The plaintiff maintained that it was against

public policy to fire him for writing down his opinion.

The plaintiff made a claim against the defendant

company for wrongful termination.

The defendants argued that it was reasonable for

them to tell the plaintiff not to write his opposition and

that, when he did so, he was fired for insubordination.

The defendant also claimed that it had a policy of

only talking about disagreements, not writing them, as

they felt it encouraged discussion of the issue.

The plaintiff’s case as to the company was dismissed

on a motion. The plaintiff’s claim against the two indi-

vidual supervisors went ahead. The jury found in favor

of the plaintiff, but awarded no damages.

REFERENCE

Circo v. Drew, et al. Case no. SUCV2004-02813.

Attorney for plaintiff: Leonard H. Kesten of Brody,

Hardoon, Perkins & Kesten, LLP in Boston, MA.

COMMENTARY

The jury found in favor of the plaintiff on his claim of tortuous inter-

ference against the two defendant supervisors, but awarded no

damages. Plaintiff’s counsel was able to talk to the jury and discov-

ered that the jury felt the defendant company was at fault, but could

not award damages against the company because it had been previ-

ously released from the case. The jury asked why the defendant

company was not involved in the subject action. The case is currently

on appeal. The plaintiff’s appeal is based on the theory that it was

impossible for the jury to award no damages if the plaintiff was

found to have been wrongfully terminated. Post-trial motions are

pending.

SUMMARIES WITH TRIAL ANALYSIS 9

New England Jury Verdict Review & Analysis