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Guarino v. The MGH Institute of Health Professions, Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

January 16, 2019

Anthony J. GUARINO, Ph.D.


          Kenneth W. Salinger, Justice of the Superior Court

          Anthony J. Guarino worked as a faculty member at The MGH Institute of Health Professions, Inc. ("IHP") for a number of years. Dr. Guarino claims that IHP’s decision not to renew his faculty appointment constitutes a breach of contract and wrongful termination in violation of public policy, that Alex Johnson (IHP’s Provost) unlawfully interfered with Guarino’s employment contract, and that both IHP and Johnson defamed Guarino. Defendants have moved for summary judgment on all claims. At the motion hearing, Guarino made an oral motion to amend his complaint to add a claim that IHP’s subsequent termination of his employment before the end of Guarino’s five-year appointment constitutes a further breach of contract.

          The Court concludes that Defendants are entitled to summary judgment in their favor on all facts and that the proposed amendment to the complaint would be futile. The undisputed facts show that Guarino engaged in a pattern of disruptive and insubordinate conduct. IHP’s decisions not to renew and then to terminate Guarino’s employment because of that unprofessional conduct did not violate the parties’ contract. Guarino cannot assert a claim for wrongful discharge in violation of public policy because he was employed for a term of years, not at-will; in any case, firing Guarino in part for publicly criticizing IHP did not violate public policy. Since IHP did not breach its contract with Guarino, Johnson cannot be liable for interfering with that contract; in any case there is no evidence that Johnson acted with a legally improper motive or used improper means in firing Guarino. The defamation claim regarding allegations against Guarino in the written statement of cause for dismissal is barred by Defendants’ conditional privilege to disclose negative allegations in connection with determining whether an employee should be fired, and Guarino has not mustered any competent evidence that Defendants made any other defamatory statement about him. The Court will therefore ALLOW Defendants’ motion for summary judgment and DENY Plaintiff’s oral motion to amend his complaint.

          1. Factual Background

         The following are undisputed facts, as demonstrated in the evidentiary materials submitted by the parties or reasonable inferences that one could draw from those facts. The Court "must ... draw all reasonable inferences" from the evidence presented "in favor of the nonmoving party," as a jury or judicial fact finder would be free to do at trial. Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119 (2010). It has done so.

          1.1. Terms of Employment

          IHP is a private, non-profit charitable institution of higher learning that offers post-secondary degrees in several health professions. IHP describes itself on its official stationary as "A graduate school founded by Massachusetts General Hospital." Dr. Johnson is and at all relevant times was the Provost of IHP, which means that he oversees and is responsible for academic affairs at IHP.

          IHP first hired Dr. Guarino as a Professor in 2009 for a three-year term. In 2012 IHP renewed Guarino’s faculty appointment for a five-year term of employment starting September 1, 2012 and expiring on August 31, 2017. Guarino’s reappointment was as a Professor in the Center for Interprofessional Studies and Innovations. His direct supervisor was Associate Provost Peter Cahn.

          The letter of reappointment signed by IHP and Guarino states that "[t]he benefits and responsibilities" of Guarino’s faculty appointment "are outlined in and are subject to the policies and terms in the MGH Institute of Health Profession’s Faculty Handbook."

          This Handbook provides that all IHP faculty members must "collectively commit" to act in accord with a list of the school’s "core values in all we do." Those values include maintaining an "inclusive and welcoming environment where every person is treated with dignity and respect," fostering "mutual trust and collegiality," and building "productive partnerships among faculty, staff, and students that support learning and work and foster interprofessional and global collaboration."

          Like all IHP professors, Guarino never had tenure. Nor did he have any contractual right to have his faculty appointment renewed at the end of its term.[1]

          It is up to the Provost to decide whether to recommend that a faculty member be reappointed. If the Provost recommends reappointment to a five-year term, which is offered to all faculty members with the rank of Professor, that recommendation must be approved by the Trustees. If the Provost chooses not to recommend reappointment, then the faculty member’s employment by IHP will not continue beyond the existing appointment. The Trustees do not and need not review decisions by the Provost not to recommend reappointment.

          The Handbook provides that the Provost’s decision as to whether to recommend a faculty member for reappointment must be based on whether there is continuing demand for the particular faculty member in the program where they have been working, whether the faculty member has been successful at meeting the goals of that program and the Institute as a whole, and whether the faculty member’s supervisor recommends that they be reappointed. The Handbook also indicates that a faculty member’s annual review is "a valid and useful indicator of academic productivity and performance," and that it should therefore be used "to inform the reappointment decision."

          Although the Handbook’s "guidelines for faculty reappointment" state that any faculty member not being recommended for reappointment must be informed "of their rights of appeal," nothing else in the Handbook or in any other IHP policy establishes any appeal process or right.

          Faculty members like Guarino can be fired for cause before the end of their term of appointment. The Handbook provides that cause for dismissal "includes, but is not limited to," (i) "substantial failure to discharge the responsibilities and duties of a faculty member," and (ii) engaging in "unprofessional conduct which seriously and detrimentally affects the educational goals of the Institute or which might cause the Institute to be held in disrepute or legal consequences."

          Decisions as to whether to dismiss a faculty member for cause must be made pursuant to the "Problem Resolution Procedure" specified in the Handbook. The Procedure provides that formal proceedings, including those concerning the possible dismissal of a faculty member for cause, must be commenced by the delivery of a "statement of cause" by the Provost to the affected faculty member and to the faculty Hearing Committee, which will then review the matter.

          1.2. Dr. Guarino’s Performance

          As a Professor at IHP, Dr. Guarino taught classes in statistics and biostatistics and served as the methodologist and a statistical consultant for faculty and student research projects and grants.

          Dr. Guarino consistently received high marks for his teaching and scholarship. In 2011 Guarino received an award for excellence in teaching. And in subsequent annual reviews his supervisor, Dr. Cahn, repeatedly praised Guarino’s professional contributions to IHP as a teacher and consulting statistician.

          However, Guarino became involved in a series of interpersonal conflicts at IHP that eventually led to his faculty appointment not being renewed and then to the early termination of Guarino’s employment by IHP.

          1.2.1. Conflict with Student

          One such conflict involved a student. In September 2013, an IHP student sent an email, from her personal Gmail account, asking Guarino and another faculty member to reschedule a meeting about her doctoral program capstone project. The student worked at a university in another state. She explained she could not attend the scheduled meeting because her university dean had imposed a mandatory commitment. Guarino responded to the student at her work email account, copied the student’s dean at her place of employment without the student’s prior knowledge or authorization, and revealed to the student’s employer that the student’s capstone project had been rejected. The student was very upset and lodged a formal complaint at IHP.

          1.2.2. Conflicts with Colleagues

          Other such conflicts involved IHP faculty and staff. In December 2013, a female faculty colleague had trouble getting Guarino to finish statistical work she needed for a paper she was trying to complete and have published. The colleague asked Guarino either to finish his work and get credit for co-authorship, or to "release authorship" and let the colleague "find another statistician to finish the project." Guarino refused to do either, asserting that he "cannot be deleted as an author because you refuse to meet with me" and accusing the colleague of being "habitually ill prepared." The colleague was upset and turned to the Provost for help. Johnson resolved the matter by helping the faculty colleague recruit an outside consultant to finish the statistical work and convincing Guarino to withdraw his demand for authorship credit.

          In January 2014 a different female faculty member complained to IHP’s Director of Research Programs that Guarino had repeatedly made her uncomfortable by engaging in unpredictable and unprofessional behavior. The faculty member requested confidentiality and said she did not want to go forward with a formal investigation.

          In March 2014 a female staff member complained about Guarino to the human resources department. According to the staff member, Guarino told her that he recently saw someone from behind that looked like the staff member, and that Guarino wanted to get that woman into bed until he realized it was not the staff member. The staff member said that this was not the first time Guarino had made unwelcome sexual comments to her. The staff member said she did not want to participate in a formal investigation and preferred to speak to Guarino herself.[2]

          1.2.3. Formal Warning

          Dr. Cahn warned Dr. Guarino in his 2014 annual evaluation that although Guarino continued to excel in teaching and research, Guarino’s repeated conflicts with others at IHP, as summarized above, were a troubling "pattern of unprofessionalism" that "threaten to undermine" IHP’s "collegial working and learning environment."

          1.2.4. Communication with Student

          In July 2015, Guarino complained about Johnson to an IHP student. After the student sent an email thanking Guarino for his teaching and positive contributions to the student’s education, Guarino responded in an email that he copied to Johnson. In that response Guarino said he was "always arguing" with Johnson about the student’s program, asserted that Johnson "thinks I’m a puntz" [sic], and asked the student to send positive feedback about Guarino to Johnson because Guarino believed that would give him "more leverage to argue for funding."

          Johnson followed up in writing with Guarino. Johnson explained that Guarino’s communication with this student "was unprofessional and demonstrated poor judgment," that it was "inconsistent with the core values of the IHP," and that any further unprofessional conduct by Guarino "will lead to disciplinary action up to and including dismissal from employment at the IHP."

          Guarino did not react well to this letter. He responded in writing, telling Johnson that his letter was "another example of your pattern of capricious, baseless accusations, which has now created a hostile environment." Guarino asserted that "these allegations are ... groundless and a gross violation of my rights."

          Johnson and Cahn then met with Guarino and discussed the incidents and complaints summarized above. During this meeting Guarino said that Johnson was a bully and that Guarino felt sorry for Johnson because so many students and colleagues had complained about him.

          1.2.5. Criticism of IHP Annual Report

          At around the same time, also in July 2015, Guarino sent an email to Johnson questioning a statistic in the IHP’s 2014 Annual Report. In that document IHP reported that the number of students receiving scholarships had increased by 61 percent over the past two years. Guarino said that this was misleading because one could calculate, based on other figures in the annual report, that over the same period the average aid award per student had decreased by 14 percent from $ 18, 055 to $ 15, 501 per student. The other figures indicated that the total amount of financial aid had increased by 38 percent from $ 3.25 million to $ 4.48 million over these two years, and that the total number of students receiving financial aid had increased by 61 percent from 109 to 180.

          In Guarino’s view increases in the number of students receiving financial aid and in the total amount of financial aid awarded by IHP were irrelevant if the average student aid award had decreased because the total number of financial aid recipients had gone up. Guarino asserted in his email to Johnson that reporting the increase in the number of students receiving aid was a form of "duplicity" because it used "the wrong unit of measure."

          Johnson responded by email, copying the IHP President, Dr. Jan Bellack. Johnson asked to meet with Guarino to discuss the concern he had raised about the annual report. In response, Guarino said "I really see no reason to ...

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