Professional Documents
Culture Documents
No. 95-1931
Plaintiffs, Appellants,
v.
Defendants, Appellees.
____________________
____________________
Before
____________________
brief
appellants.
Arthur G. Telegen with whom Amy B.G. Katz, Charles S. Cohen,
_________________
______________ _________________
David G. Cohen were on brief for appellees.
______________
____________________
COFFIN,
Plaintiff-appellant George
Serafino brought
a lawsuit
("Hasbro") and
they unlawfully
his employment
to alleged improprieties
invoking
his
Fifth
incrimination.
Amendment
privilege
arrangements,
against
self-
In
this
constitutes
constitutional
appeal,
an
we
must
impermissible
right
consideration, we
against
determine
whether
dismissal
infringement
on
Serafino's
self-incrimination.
After
due
its
power and
discretion in
dismissing Serafino's
claims, and
affirm.
BACKGROUND1
From 1972
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
granting a motion to
PHC, Inc. v.
_________
-2-
and
Then,
reconditioned batteries
performed
Finally,
used
in
1985,
ground maintenance
he
vehicles.
in
Milton Bradley
assumed
responsibility
for supervising
Milton Bradley.
co-worker
had
sexually
Serafinos
filed a
with the
harassed
complaint in
her.
In
July
Hampden Superior
1993,
both
Court against
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
-3-
Mass.
Gen. L.
quantum meruit,
_______ ______
and intentional
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
1994.
and Peckham
ventures.
Serafino,
to answer most
12 of
George
Serafino
December 1994.
complaint
to
was
discharged
from
include
this
Milton
Bradley
in
termination
as
further act
of
____________________
Chapter
151B
protects
people
against
unlawful
discrimination.
Discrimination,
______________
371
Serafino accused
which makes it
threaten
Mass.
130,
137, 355
N.E.2d
309
(1976).
151B,
4(4A),
intimidate,
of any
-4-
retaliation.
court, on
consideration of the
discharge would
bringing
Serafino's
claim
within
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
sued
to
recover.
Defendants
asserted
that
the
questions
If .
Bradley
Serafino
paid criminal
employees to maintain
overtime
services,
arrangement,
then he
is
battery
in no
bribes
to
Milton
cleaning
to claim
that
benefits away
In
rebuttal,
questions,
Serafino
district
prejudice
court.
the
relevance
of
the
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
____________________
A few days
against
Serafino,
Gulluni
and
conduct
involving
kickbacks,
Peckham alleging
overcharging
activity.
-5-
and
complaint
course
other
of
illegal
that
power to
the court
abused
its discretion
defendants.
A.
in
second, he
contends
concluding that
his
to
to remain silent
unless he
of a civil claim
chooses to speak
in the
unfettered
silence."
Spevack v. Klein,
_______
_____
Malloy v. Hogan,
______
_____
378 U.S.
1, 8 (1964))
(emphasis added).
The
concept
of "penalty"
includes "the
imposition of
any sanction
Id.
___
at 515
(quoting Griffin
_______
v. California,
__________
380 U.S.
609, 614
(1965)).
Unconstitutional
of
the
385
U.S.
v.
penalties
for
the
invocation
Men Ass'n
_________
(1968);
Lefkowitz
_________
v. Commissioner of Sanitation,
___________________________
and imposition
of substantial
284-85
economic sanctions,
see
___
While automatic
dismissal
of
civil
category,
see Wehling
___ _______
action
could fall
neatly
within
this
608 F.2d
-6-
1084,
always impermissible.
is
not precluded
from using
dismissal as
a remedy
______
to prevent
The
privilege may
sometimes disadvantage
assertion of the
a party.
See Baxter
___ ______
v.
to be drawn
from a
of the
privilege);
("[N]ot every
privilege
penalty.").
We
think
that
party's
assertion
obliterate
of
his
in
are on a
the
be characterized
civil
context,
as a
where,
constitutional
right
should
one
not
In other
Fifth
903 F.2d
36, 44 (1st
Cir. 1990), it
opposing
party
is not
unduly
Rodriguez
_________
v.
Cartagena,
_________
882
disadvantaged.
F.2d 553,
577
See
___
(1st
that the
Gutierrez__________
Cir.
1989)
at
trial
discovery).
when
he
asserted Fifth
Amendment
privilege
during
Though dismissal
number of courts
even in the
affirmed, a
to dismiss
-7-
it
should be no
more than
safeguard
is necessary
to prevent
unfair and
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
privilege should
be upheld
unless
information and
there is
no other less
of obtaining
it."
See Black Panther Party v. Smith, 661 F.2d 1243, 1272 (D.C.
___ ___________________
_____
Cir.
1981),
vacated mem.,
____________
458
court
it
U.S.
the
proper
(enunciating
utilized
1118 (1982)
balancing test,
of discretion.
we
now
evaluate the
B.
The
concluding
district
that 1)
court
dismissed
the alleged
Serafino's
illegal conduct
claims
upon
underlying the
there was
____________________
1979); Lyons v.
_____
540, 542
(9th Cir. 1969); Mt. Vernon Sav. & Loan v. Partridge Assocs., 679
______________________
_________________
F. Supp. 522,
Cigar Co.,
_________
F. Supp. 213,
v.
227 (D.
Hess, 65
____
-8-
v. B. C.
_____
512
157-58, 478
no
adequate alternative
hotly disputes
remedy to
dismissal.
Though Serafino
-9-
1.
First, defendants
belief
justify their
discharge of Serafino
on their
which
1994),
if defendants
propose
30 F.3d 255,
a nonretaliatory
263 (1st
Cir.
reason for
the
Mental Health, 419 Mass. 356, 362-63, 645 N.E.2d 1159 (1995).
_____________
In
Second,
then
fact the
defendants could
entitled to
need
if in
not,
benefits were
effectively
argue that
determine
whether
his
illegally obtained,
Serafino is
Though we do
alleged
misconduct
not
not, and
would
that, at the
Cf. McKennon
___ ________
v. Nashville Banner Pub. Co., 115 S. Ct. 879, 886 (1995) (holding
_________________________
bar
determining
an
appropriate remedy).
Without
the ability
to
____________________
In
discontinuation
seeks
emotional
addition
of
and
the
to
seeking
three business
exemplary
damages,
compensation
arrangements,
attorneys'
-10-
for
the
Serafino
fees
and
investigate
a matter
that
goes to
the
heart of
the
damages
2.
Alternative Means
_________________
or
other Hasbro
substitute
for
employees
poor
employees,
whose information
responses from
agree. Even if a
is
proxy
George
Serafino
for
Serafino's
could effectively
testimony.
himself."
We
irregularities, it
As
for
other
illegal conduct,
Amendment
privilege.
defendants
would be
If,
back
instead,
at square
they denied
involvement,
one, handicapped
in their
3.
We
have
Alternative Remedies
____________________
sufficed.
At
oral argument
matter, allowing an
on
the motion
adverse inference to be
the court's
the
court
could
In any
have ordered
at 1087.
dismiss,
testimony --
doubt that
to
motion to compel.
Serafino
to
We
answer
suggest that
reasonable alternative.
-11-
Though he
court could
Wehling,
_______
never requested
that the
the Fifth
Circuit reversed
the denial
In
of plaintiff's
motion for a
proceedings
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
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
that
privilege, in
significant
not
stake, we
abuse its
affirm its