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USCA1 Opinion

United States Court of Appeals


For the First Circuit
____________________

No. 95-1931

GEORGE J. SERAFINO AND ANITA M. SERAFINO,

Plaintiffs, Appellants,

v.

HASBRO, INC., ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________

____________________

Morris M. Goldings with


___________________

whom Ellen S. Shapiro was on


_________________

brief

appellants.
Arthur G. Telegen with whom Amy B.G. Katz, Charles S. Cohen,
_________________
______________ _________________
David G. Cohen were on brief for appellees.
______________

____________________

April 23, 1996


____________________

COFFIN,

Senior Circuit Judge.


_____________________

Plaintiff-appellant George

Serafino brought

a lawsuit

against Hasbro, Inc.

("Hasbro") and

its CEO, George R. Ditomassi, Jr., claiming that

they unlawfully

terminated certain business arrangements and then

his employment

because his daughter filed

a discrimination action against them.

During discovery, Serafino refused to answer questions pertaining

to alleged improprieties

invoking

his

Fifth

incrimination.

surrounding the business

Amendment

privilege

arrangements,

against

self-

Upon determining that Serafino's silence on these

matters unfairly hampered defendants' ability to mount a defense,

the district court dismissed Serafino's claims with prejudice.

In

this

constitutes

constitutional

appeal,

an

we

must

impermissible

right

consideration, we

against

determine

whether

dismissal

infringement

on

Serafino's

self-incrimination.

conclude that the district

After

due

court acted within

its

power and

discretion in

dismissing Serafino's

claims, and

affirm.

BACKGROUND1

From 1972

until his termination in

December 1994, Serafino

worked as a mechanic and then group leader for the Milton Bradley

Company

("Milton Bradley"),

located

in

regular

employment,

arrangements

Springfield,

division of

Massachusetts.

Serafino

with Milton

had

Bradley.

In

three

In

Hasbro since

addition

unusual

1976, Serafino

1985,

to

his

business

created

____________________

1
dismiss,

Since

this appeal is from an order

we derive the facts

granting a motion to

from the pleadings.

PHC, Inc. v.
_________

Pioneer Healthcare, Inc., 75 F.3d 75, 77 (1st Cir. 1996).


________________________

-2-

Hampden Battery Service, Inc. ("Hampden Battery"), which serviced

and

Then,

reconditioned batteries

in 1984, he formed ABC

performed

Finally,

used

in

1985,

ground maintenance

he

vehicles.

Janitorial Services ("ABC"), which

nightly cleaning service

in

Milton Bradley

assumed

at Milton Bradley buildings.

responsibility

for supervising

at the company's facilities, for which he was

guaranteed 20 hours a week of overtime.

Anita Serafino,2 George Serafino's

daughter, also worked at

Milton Bradley.

In January 1992, she filed a complaint

Massachusetts Commission Against

co-worker

had

sexually

Serafinos

filed a

with the

Discrimination alleging that

harassed

complaint in

her.

In

July

Hampden Superior

1993,

both

Court against

Hasbro and Ditomassi alleging sex discrimination and retaliation.

In

particular,

retaliatory

George Serafino

measure,

employees, Joseph

three

instructed

Gulluni and

extracurricular

arrangement

alleged

business

was discontinued

high-ranking

ventures.

on January

with

Hampden Battery

relationship

with

ABC in

advanced three

Ditomassi, as

Arthur Peckham, to

relationship

Serafino

two

that

in

mid-1994.

theories

1, 1993,

company

terminate the

The

overtime

the business

April of

1993,

and the

Based on

these

events,

of liability:

violation

of

____________________

To

referred

avoid

confusion,

Anita

Serafino

will always

be

to by her full name; George Serafino, at times, will be

referred to only as "Serafino."

-3-

Mass.

Gen. L.

Ann. ch. 151B3,

quantum meruit,
_______ ______

and intentional

interference with advantageous relationship.

Serafino was

pursued

surrounding

focusing,

might have

deposed

line

of

Hampden

in

the

fall of

questioning

Battery,

in particular,

ABC

on how

the Massachusetts

Defendants

concerning

and

the

improprieties

overtime benefits,

Serafino, Gulluni

illegally benefitted from these

invoking his rights under

1994.

and Peckham

ventures.

Serafino,

the Fifth Amendment and Article

Declaration of Rights, refused

questions relating to these matters.

to answer most

Such questions included:

Did you give money to other people

as a condition for doing

business with Milton Bradley?

[Did] Mr. Peckham ever get any financial benefit from


ABC Cleaning Services?

Why did [Mr. Gulluni] have you report to his office


every day?

12 of

Do you have any financial relations with Mr. Peckham?

Were you involved in criminal activity together?

Isn't it true that Mr. Peckham got financial benefit


from your companies that was illegal?

George

Serafino

December 1994.

complaint

to

was

discharged

from

Shortly thereafter, the

include

this

Milton

Bradley

in

Serafinos amended their

termination

as

further act

of

____________________

Chapter

151B

protects

people

against

unlawful

discrimination.

Wheelock College v. Massachusetts Comm'n Against


________________
____________________________

Discrimination,
______________

371

Serafino accused
which makes it
threaten

Mass.

130,

137, 355

N.E.2d

defendants of violating chapter


unlawful for any

309

(1976).

151B,

4(4A),

person "to coerce,

intimidate,

or interfere with such other person for having aided or

encouraged any other person

in the exercise or enjoyment

such right granted or protected by this chapter."

of any

-4-

retaliation.

court, on

In response, defendants removed the case to federal

the ground that

consideration of the

discharge would

require the court to interpret a collective bargaining agreement,

bringing

Serafino's

claim

within

Management Relations Act, 29 U.S.C.

On

dismiss

March

31,

Serafino's

1995,4

claims.

Section

301

of

the

Labor

185.

defendants

submitted

They claimed

that by

motion

to

refusing to

respond

to their

questions,

Serafino had

prevented them

from

discovering important information about the very benefits that he

sued

to

recover.

Defendants

asserted

that

the

questions

surrounding the benefits were central to the case:

If .

Bradley

Serafino

paid criminal

employees to maintain

overtime
services,

arrangement,
then he

is

battery
in no

bribes

to

Milton

his unusually favorable


business and
position

cleaning

to claim

defendants somehow wrongfully took these

that

benefits away

. . . [or that] his termination was [not] proper.

In

rebuttal,

questions,

Serafino

district

prejudice

court.

the

relevance

of

the

suggesting that defendants were instead attempting to

garner information for their

the

disputed

and

court

RICO complaint.

dismissed

remanded Anita

all of

On July

Serafino's

Serafino's

claims

28, 1995,

claims

to the

with

state

DISCUSSION

Serafino

fronts:

attacks

the

district

court's

decision

on

two

first, he argues that, as a matter of law, the court did

____________________

A few days

earlier, Hasbro filed a civil RICO

against

Serafino,

Gulluni

and

conduct

involving

kickbacks,

Peckham alleging
overcharging

activity.

-5-

and

complaint
course

other

of

illegal

not have the

that

power to

the court

abused

dismiss his claims;

its discretion

constitutional interest was

defendants.

A.

in

second, he

contends

concluding that

outweighed by possible prejudice

his

to

We address these issues in turn.

The District Court's Power to Dismiss


_____________________________________

Serafino argues that the

legitimate exercise of one's Fifth

Amendment privilege can never justify dismissal

-- a contention not without force.

The Supreme Court has stated

that the Fifth Amendment "guarantees .

to remain silent

unless he

of a civil claim

. . the right of a person

chooses to speak

in the

unfettered

exercise of his own will, and to suffer no penalty . . . for such


_______

silence."

Spevack v. Klein,
_______
_____

Malloy v. Hogan,
______
_____

378 U.S.

385 U.S. 511,

1, 8 (1964))

514 (1967) (quoting

(emphasis added).

The

concept

of "penalty"

includes "the

imposition of

any sanction

which makes assertion of the Fifth Amendment privilege 'costly.'"

Id.
___

at 515

(quoting Griffin
_______

v. California,
__________

380 U.S.

609, 614

(1965)).

Unconstitutional

of

the

privilege have included disbarment of a lawyer, see Spevack,


___ _______

385

U.S.

v.

penalties

for

the

invocation

at 516; forfeiture of jobs by public employees, see Gardner


___ _______

Broderick, 392 U.S. 273, 278


_________

Men Ass'n
_________

(1968);

Lefkowitz
_________

(1968) and Uniformed Sanitation


____________________

v. Commissioner of Sanitation,
___________________________

and imposition

of substantial

392 U.S. 280,

284-85

economic sanctions,

v. Turley, 414 U.S. 70, 82-83 (1973).


______

see
___

While automatic

dismissal

of

civil

category,

see Wehling
___ _______

action

could fall

neatly

within

v. Columbia Broadcasting Sys.,


___________________________

this

608 F.2d

-6-

1084,

1087-88 (5th Cir. 1979), we cannot agree that dismissal is

always impermissible.

is

not precluded

See id. at 1087 n.6 ("[T]he district court


___ ___

from using

unfairness to the defendant.").

dismissal as

a remedy
______

to prevent

The

Supreme Court has

privilege may

indicated that the

sometimes disadvantage

assertion of the

a party.

See Baxter
___ ______

v.

Palmigiano, 425 U.S. 308, 318 (1976) (allowing adverse inferences


__________

to be drawn

from a

civil party's assertion


_____

of the

Flint v. Mullen, 499 F.2d 100, 104 (1st Cir. 1974)


_____
______

privilege);

("[N]ot every

undesirable consequence which may follow from the exercise of the

privilege

against self-incrimination can

penalty.").

We

think

that

systemically, the parties

party's

assertion

obliterate

of

his

in

are on a

the

be characterized

civil

context,

as a

where,

somewhat equal footing,

constitutional

right

should

another party's right to a fair proceeding.

one

not

In other

words, while a trial court should strive to accommodate a party's

Fifth

Amendment interests, see United States v. Parcels of Land,


___ _____________
_______________

903 F.2d

36, 44 (1st

Cir. 1990), it

opposing

party

is not

unduly

Rodriguez
_________

v.

Cartagena,
_________

882

also must ensure

disadvantaged.

F.2d 553,

577

See
___

(1st

that the

Gutierrez__________

Cir.

1989)

(affirming district court's refusal to allow defendant to testify

at

trial

discovery).

when

he

asserted Fifth

Amendment

privilege

during

After balancing the conflicting interests, dismissal

may be the only viable alternative.5


____________________

Though dismissal

number of courts
even in the

has rarely been imposed or

have acknowledged the court's power

affirmed, a

to dismiss

face of a party's proper assertion of the privilege.

-7-

We reiterate that the balance must be weighted to

the Fifth Amendment privilege:

it

should be no

more than

safeguard

the burden on the party asserting

is necessary

unnecessary prejudice to the other side.

to prevent

unfair and

See S.E.C. v. Graystone


___ ______
_________

Nash, Inc., 25 F.3d at 187, 192 (3d Cir. 1994); Wehling, 608 F.2d
__________
_______

at

1088.

case,

As correctly delineated

"the Fifth

defendants have

Amendment

by the district court in this

privilege should

substantial need for particular

be upheld

unless

information and

there is

no other less

burdensome effective means

of obtaining

it."

See Black Panther Party v. Smith, 661 F.2d 1243, 1272 (D.C.
___ ___________________
_____

Cir.

1981),

vacated mem.,
____________

458

similar balancing approach).

court

it

U.S.

the

proper

balancing itself for abuse

(enunciating

Having determined that the district

could, within its discretion,

utilized

1118 (1982)

dismiss this case, and that

balancing test,

of discretion.

we

now

evaluate the

See Parcels of Land,


___ ________________

903 F.2d at 44.

B.

The Court's Balancing Test


__________________________

The

concluding

district

that 1)

court

dismissed

the alleged

Serafino's

illegal conduct

claims

upon

underlying the

outside benefits was central to defendants' defense; 2) there was

no effective substitute for Serafino's answers; and 3)

there was

____________________

See, e.g., Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084,


___ ____ _______
___________________________
1087

n.6 (5th Cir.

1979); Lyons v.
_____

Johnson, 415 F.2d


_______

540, 542

(9th Cir. 1969); Mt. Vernon Sav. & Loan v. Partridge Assocs., 679
______________________
_________________
F. Supp. 522,
Cigar Co.,
_________

529 (D. Md. 1987); Stop & Shop Cos. v. Interstate


_________________
__________

110 F.R.D. 105, 108

Christopher & Co., 466


__________________

(D. Mass. 1986); Jones


_____

F. Supp. 213,

Communications Specialties, Inc.


_________________________________
(E.D. Pa. 1975); Wansong
_______

v.

227 (D.
Hess, 65
____

Kan. 1979); Penn


____
F.R.D. 510,

v. Wansong, 395 Mass. 154,


_______

N.E.2d 1270 (1985).

-8-

v. B. C.
_____

512

157-58, 478

no

adequate alternative

hotly disputes

remedy to

dismissal.

each premise, our more

Though Serafino

detailed analysis compels

us to agree with the court's conclusions.

-9-

1.

Importance of the Information


_____________________________

Serafino's alleged illegal conduct

First, defendants

belief

justify their

is relevant in two ways.

discharge of Serafino

that he conspired to defraud Hasbro.

on their

Under the framework

of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973),


_______________________
_____

which

generally guides claims under Mass. Gen. L. Ann. ch. 151B,

Woods v. Friction Materials, Inc.,


_____
_________________________

1994),

if defendants

propose

30 F.3d 255,

a nonretaliatory

263 (1st

Cir.

reason for

the

termination and present facts in support, Serafino cannot prevail

unless he proves that the reason is pretext, see Tate v. Dep't of


___ ____
________

Mental Health, 419 Mass. 356, 362-63, 645 N.E.2d 1159 (1995).
_____________

this context, the significance

In

of information that goes directly

to the nonretaliatory justification is self-evident.

Second,

then

fact the

defendants could

entitled to

need

if in

not,

benefits were

effectively

argue that

compensation based on them.

determine

foreclose all possible

whether

his

illegally obtained,

Serafino is

Though we do

alleged

misconduct

relief,6 we easily conclude

not

not, and

would

that, at the

very least, it would greatly diminish his recovery.

Cf. McKennon
___ ________

v. Nashville Banner Pub. Co., 115 S. Ct. 879, 886 (1995) (holding
_________________________

that after-acquired evidence of an employee's misconduct does not

bar

all relief under the ADEA but

determining

an

must be taken into account in

appropriate remedy).

Without

the ability

to

____________________

In

discontinuation
seeks

emotional

addition
of
and

the

to

seeking

three business

exemplary

damages,

compensation
arrangements,
attorneys'

injunctive relief against further retaliation.

-10-

for

the

Serafino
fees

and

investigate

a matter

that

goes to

the

heart of

the

damages

sought, defendants would be substantially prejudiced.

2.

Alternative Means
_________________

The district court

or

other Hasbro

substitute

for

employees

poor

employees,

whose information

responses from

agree. Even if a

is

found that "there are no company records

proxy

George

Serafino

paper trail might show some

for

Serafino's

could effectively

testimony.

himself."

We

irregularities, it

As

for

other

such as Peckham and Gulluni, if they were involved in

illegal conduct,

they would almost certainly

assert their Fifth

Amendment

privilege.

defendants

would be

If,

back

instead,

at square

they denied

involvement,

one, handicapped

in their

defense by Serafino's silence.

3.

We

have

Alternative Remedies
____________________

are left to consider whether a less drastic remedy would

sufficed.

At

oral argument

counsel for Serafino listed

matter, allowing an

on

the motion

adverse inference to be

but did not recommend one,

the court's

first alternative should be a

the

court

could

In any

drawn, and striking

suggesting instead that

have ordered

questions to which the privilege attached.

at 1087.

dismiss,

several possibilities -- staying the

testimony --

doubt that

to

motion to compel.

Serafino

to

We

answer

See Wehling, 608 F.2d


___ _______

event, since counsel did not even

suggest that

Serafino would waive his

privilege, a motion to compel was not a

reasonable alternative.

-11-

Though he

court could

Wehling,
_______

never requested

one, Serafino contends

that the

have issued a stay and cites Wehling in support.


_______

the Fifth

Circuit reversed

the denial

In

of plaintiff's

motion for a

protective order and

stayed the civil

proceedings

for three years, until the expiration of the criminal limitations

period.

608

failure

to

F.2d at

file a

1089.

motion, and

impose

on defendants, the

impose

stay.

Here,

We

upon considering

Serafino's

hardship that

delay would

the

district court refused

cannot say

this

to sua sponte
___ ______

constitutes an

abuse of

discretion.

CONCLUSION

Information

connection

with

defendants'

regarding

the

ability

three

to

uniquely

within

absolute

constitutional

potential

illegal

business ventures

mount

an effective

plaintiff's control.

right

not to

While

reveal

was

conduct

crucial

defense,

and

Serafino had

any

in

to

was

an

potentially

incriminating

these

material,

circumstances,

his invocation

placed

disadvantage.

Because the

discretion in

balancing the

of

defendants

district

Affirmed.
________

-12-

at

court did

interests at

decision to dismiss Serafino's claims.

that

privilege, in

significant

not

stake, we

abuse its

affirm its

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