Defazio v. Delta Air Lines ( 1994 )

USCA1 Opinion

          August 24, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


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        No. 94-1486


                                JOHN J. DEFAZIO, JR.,
                                Plaintiff, Appellant,

                                          v.

                         DELTA AIR LINES, INC. EDWARD KAHLER,
                        EDWARD M. CHEROF, AND W. WHITT HAWKINS
                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Reginald C. Lindsay, U.S.District Judge]
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                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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                                 ____________________

            George E. Kersey on brief for appellant.
            ________________
            Wilfred J.  Benoit Jr. and  Goodwin, Procter &  Hoar on brief  for
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        appellee.


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                 Per Curiam.  We have reviewed  carefully the record, the
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            district court opinion, and the parties' briefs in this case.

            We summarily  affirm the district  court judgment essentially

            for the reasons  stated in its  memorandum of decision  dated

            March 29, 1994.  See  1st Cir. Loc. R. 27.1.  We add only the
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            following.

                 Even if we assume  that appellant properly raised before

            the  district  court  a  claim that  he  had  been wrongfully

            terminated  in violation  of  a state  public policy  against

            dismissal of an  employee who  has only been  charged with  a

            crime, we  find no merit in  the claim.  The  general rule in

            Massachusetts is that "[e]mployment  at will is terminable by

            either  the  employee or  the  employer  without notice,  for

            almost  any reason  or for  no reason  at all."   Jackson  v.
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            Action for  Boston Community Development, Inc.,  403 Mass. 8,
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            9,  525 N.E.2d 411, 412  (1988).  Although  a "public policy"

            exception  to the  employment  at will  doctrine exists,  the

            exception is  "interpreted . . . narrowly," King v. Driscoll,
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            1994  Mass. LEXIS  474,  at 11  (Mass.  Aug. 11,  1994),  and

            requires  a showing  that the  dismissal violated  a "clearly

            established public policy," id. at 10. 
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                 Appellant asserts that his dismissal  violated the state

            policy which presumes an accused  to be innocent until proven

            guilty.  This presumption, however, serves to focus a jury on

            what a prosecutor must establish so as to obtain a conviction



















            in a criminal  case.   Commonwealth v. Boyd,  367 Mass.  169,
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            188, 326  N.E.2d 320, 332 (1975) (emphasis added).  It has no

            applicability  in the  employment context  and, consequently,

            does not  warrant invocation of the  public policy exception.

            See  Borschel v.  City of  Perry, 512  N.W.2d 565,  568 (Iowa
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            1994)   (presumption  of   innocence  "limited   to  criminal

            procedures" and  is not  "a public  policy applicable in  the

            employment context"); Cisco v. United  Parcel Services, Inc.,
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            328 Pa. Super. 300,  476 A.2d 1340, 1344 (1984)  (presumption

            of innocence applies to  trial and is not  "superimposed into

            an accused's  remaining life  experiences");  see also  King,
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            supra, at 15 (statutory  right "must relate to or  arise from
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            the employee's  status as an employee"  to warrant invocation

            of public policy exception).  Furthermore,           although

            Massachusetts does not appear  to have directly addressed the

            question of whether a  dismissal of an employee on  the basis

            of a mere accusation  is a violation of public  policy, other

            states  which have  addressed similar  claims have  held that

            such a dismissal is  not a violation of  public policy.   See
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            Beery v. Maryland  Medical Laboratory, Inc., 89 Md.  App. 81,
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            597 A.2d 516,  523 (1991) (firing based  on fellow employee's

            unsubstantiated  allegations does  not "contravene  any clear

            mandate of  public policy"), cert.  denied, 325 Md.  329, 600
                                         ____   ______

            A.2d 850  (1992); Cisco 476  A.2d at  1344 (rejecting  public
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            policy   claim  based   upon  dismissal   following  criminal



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            accusation); Borschel, 512 N.W.2d (discharge after accusation
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            of  sexual abuse  not violation  of public  policy).   We are

            aware  of nothing  which  suggests that  Massachusetts  would

            decide otherwise.  

                 Appellee's  request   for  sanctions  is  denied.    The
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            judgment of the district court is affirmed.
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