
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1245                                 STEPHEN R. MARQUES,                                Plaintiff, Appellant,                                          v.                                 KEVIN J. FITZGERALD,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Tauro,* District Judge.                                         ______________                                 ____________________               Thomas S. Brown with whom Stephen A. Rodio  was on brief for               _______________           ________________          appellant.               Kathleen M. Powers with  whom Marc DeSisto was on  brief for               __________________            ____________          appellee.                                 ____________________                                   October 28, 1996                                 ____________________                                        ____________________               *Of the District of Massachusetts, sitting by designation.               COFFIN, Senior  Circuit Judge.   This case  concerns several                       _____________________          claims  brought  by  plaintiff-appellant,  Stephen   R.  Marques,          against the city of  East Providence, Rhode Island, based  on his          discharge while a  probationary employee of  the city.   Marques,          who had refused to continue a work assignment on a boat at a city          pond  due  to  his   fear  of  capsizing  and  was   subsequently          terminated, sued the city  under both state and federal  law; the          city  removed  the case  to federal  court.   The  district court          granted directed verdicts for the city on all claims.   We affirm          on two claims,  and vacate as to  Marques' claim under  the Rhode          Island Whistleblowers' Act.                                        BACKGROUND               Marques was hired as a laborer by the city of East          Providence in June 1993.1  On December 22, 1993, several days          before the expiration of his six-month probationary period,          Marques was assigned to work at Jones Pond, cutting weeds in the          pond from an aluminum row boat.  Marques, who is unable to swim,          expressed some concerns about the assignment to Gregory Gammell          ("Gammell"), the Superintendent of the Parks Department, but was          told by Gammell not to worry about it.  On his arrival at Jones          Pond, Marques noticed that there were no life preservers in the          boat, and asked Gammell for one.  Gammell initially questioned          Marques' need for the life preserver, but told him he would get                                        ____________________               1    We  take the  facts  from the  pleadings  and from  the          testimony at trial.   See PHC, Inc. v. Pioneer  Healthcare, Inc.,                                ___ _________    _________________________          75 F.3d 75, 77 (1st Cir. 1996).                                         -2-          one; however, this life preserver was not forthcoming.2  Marques          nevertheless performed the assignment.               On the following day, December 23, 1993, Marques, who had          again been assigned to duty in the boat cutting reeds, told lead          worker Robert Barlow ("Barlow") that he was nervous about working          in the boat, that he would like a life preserver, and that he had          asked for one on the prior day but not received it.  Barlow          questioned the need for a life preserver, given the depth of the          water, but said he would call Gammell.  Gammell arrived, but sans          life preserver, and subsequently left the site.  Marques          testified that he began to feel nauseous during the morning while          working on the boat, which he attributed to motion sickness.  At          the morning break, he therefore told Barlow that he wasn't going          back in the boat because he was feeling sick.  Barlow indicated          that if Marques didn't return to the boat, Barlow would call          Gammell.  During subsequent general conversation between workers          at the pond site about the safety of the project, Marques and          others expressed concerns about the lack of life preservers and          other safety devices.  Gammell returned to the pond, and                                        ____________________               2    Testimony  was  presented by  city  witnesses  at trial          indicating  that the depth of  Jones Pond varied  between two and          five  feet.  The Pond  was created artificially  by dredging, and          measures  approximately  300 feet  by  250  feet, with  retaining          cement walls.  We also note that Paul Lemont, the City Manager of          East Providence, who gave the original order for the work project          at Jones Pond, testified that the weed cutting project could have          been  performed by laborers in  a boat, as  actually occurred, or          alternatively by laborers wearing boots.                      On the other hand, Marques testified  that at one point          during the December  23rd session, he  lost hold of  a five  foot          rake he  was using; when he grabbed it, the rake was almost fully          submerged in the water, and had not yet touched bottom.                                           -3-          instructed Marques and Barlow to get in his car.  On their          arrival at Gammell's office, Gammell instructed Marques to "punch          out" and then terminated him.3  Marques did not discuss his          safety concerns with Gammell during the car trip or at his          termination.  Gammell informed Marques that he was being          terminated because he wouldn't get back in the boat and because          of his attitude.                 Marques subsequently met with City Manager Lemont to discuss          his firing.   At this meeting, Marques explained his concerns          about safety and his physical ills to Lemont; however, Lemont          later wrote Marques a letter informing him that the decision to          terminate Marques would stand.               Shortly after his termination, Marques began experiencing          physical symptoms such as tightness in his chest and difficulty          breathing, which his physician attributed to situational anxiety          brought on by his firing.  His doctor prescribed medications and          counseling.  Marques also began experiencing marital          difficulties.                 Marques sued the city in state court, alleging violations of          a number of state statutes, including the Rhode Island          Whistleblowers' Act, as well as federal claims including the          Americans with Disabilities Act.  He also claimed that the city's          actions constituted negligent or intentional infliction of          emotional distress, and that the city had violated the Rhode                                        ____________________               3    During the probationary period, city employees could be          fired for any reason,  with or without cause, and  also could not          file a grievance with the city regarding a discharge.                                         -4-          Island Regulation of Boats law.4  The city removed the case to          federal court on the basis of federal question jurisdiction.  At          the close of the evidence, the district court granted a directed          verdict for the city on all counts.5   This appeal on three of          the claims followed.                                       DISCUSSION               Our review of the directed verdicts on the appealed claims          is plenary; as such we must apply the same criteria used by the          district court, with all proof and inferences reasonably drawn          therefrom viewed in the light most favorable to the non-movant.           Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994).  To          ______    ________________          affirm, we must find that the evidence on each count would permit          thoughtful factfinders to reach but one conclusion.  Fashion                                                               _______          House v. K Mart Corp., 892 F.2d 1076, 1088 (1st Cir. 1989).           _____    ____________          After a thorough review of the record, we affirm the district          court on the intentional infliction of emotional distress and                                        ____________________               4    The specific statutes under which Marques'  claims were          brought  are as  follows:  the Rhode  Island Whistleblowers'  Act          (R.I.  Gen. Laws    28-50-1 - 9); the Americans With Disabilities          Act (on the grounds that the city saw him as disabled) (42 U.S.C.             12100 et seq.); the Rhode Island Fair Employment Practices Act          (R.I. Gen. Laws     28-50-1  - 28-50-9); the  Rhode Island  Civil          Rights  Act  (R.I.  Gen. Laws     42-112-1  et  seq.); and  Rhode          Island's Regulation of Boats law (R.I. Gen. Laws   46-22-1 - 19).               5    Marques voluntarily  dismissed a claim  that the city's          actions  violated Rhode  Island's safe  boating practices  public          policy.  After the  trial court had granted directed  verdicts on          all the  other claims,  Marques moved  to  reinstate this  count;          however,  the district  court denied  this motion.   We  need not          address  this  issue because  appellant did  not  brief it.   See                                                                        ___          Playboy Enterprises, Inc. v. Public Service Com'n of Puerto Rico,          _________________________    ___________________________________          906 F.2d 25, 40 (1990) (appellant waives any issue not adequately          raised in initial brief).                                         -5-          Rhode Island Regulation of Boats claims, but vacate on the          appellant's claim under the Rhode Island Whistleblowers' Act.  We          deal first with the most significant claim.          A.   Rhode Island Whistleblowers' Act Claim               ______________________________________               The Rhode Island Whistleblowers' Act provides in relevant          part that:                    An employer shall not discharge, threaten, or               otherwise discriminate against an employee regarding               the employee's compensation, terms, location, or               privileges of employment                    (1)  because the employee [...] reports or is               about to report to a public body, verbally or in               writing, a violation which the employee knows or               reasonably believes has occurred or is about to occur,               of a law or regulation, or rule promulgated under the               law of this state, a political subdivision of this               state, or the United States, unless the employee knows               or has reason to know that the report is false....6          Accordingly, an employee must demonstrate that there was a causal          connection between the report and the termination.               The statute does not explicitly define what constitutes a          "report" or "reporting" a suspected or known violation.  However,          it does define "public body" as follows:                    (4)  "Public body" means all of the               following:[...]                    (iii) A county, city, town, or regional governing               body, a council, school district, or a board,               department, commission, agency, or any member or               employee thereof.7                                        ____________________               6    R.I. Gen. Laws   28-50-3(1) (1995).  The current  Rhode          Island Whistleblowers' Act was  enacted in 1995, and replaced  an          earlier  version  of  the  Whistleblowers'  Act  that  carried  a          different  statutory  number, (R.I.  Gen. Laws    36-15-1  - 10);          however, the terms of this section were unchanged.                 7    R.I. Gen. Laws   28-50-2(4)(iii) (1995).                                         -6-               The district court concluded that this statute is          inapplicable in the circumstances of this case because Marques'          statements could not be construed as "reports" to a "public          body."  The district court reasoned that the statute contemplates          a situation in which an employee reports or threatens to report a          violation of a law to a third party with jurisdiction over the          violation.  For the district court, Marques' statements were          merely explanations for his refusal to return to the boat, rather          than reports to an appropriate individual or body of known or          suspected violations.                 Marques argues on appeal that the district court gave an          overly narrow interpretation to the statute's provisions.  He          claims that his statements to Barlow could fall within the          statute and that both caselaw (albeit from other jurisdictions)          and public policy support his view.  The city, on the other hand,          contends that the district court properly construed the          provision; it maintains that Marques made no statements to Barlow          or other supervisors that reasonably could be construed as          reports of violations to a public body.                 Our task is complicated by the lack of guideposts.  There is          no relevant legislative history indicating the intent of Rhode          Island lawmakers concerning the interpretation of these terms.           Furthermore, Rhode Island courts have not directly interpreted          "report" or "public body" under the statute.  We do, however,          have the statutory language, which must be construed consistently          with its purpose.  Our review of the language of the statute,                                         -7-          together with an examination of similar statutes from other          jurisdictions, with an eye to the public policy underlying such          whistleblowers' statutes, counsels a broader view of the statute          than that adopted by the district court.                 We begin with principles of statutory construction.  Where          the terms of a statute are clear, a court must give the words          their plain and obvious meaning.  See Ellis v. Rhode Island                                            ___ _____    ____________          Public Transit Authority, 586 A.2d 1055, 57 (R.I. 1991);          ________________________          O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir. 1996) (courts          _________    _______          are bound to give statutes a practical, commonsense reading).            Furthermore, a statute may not be construed in a manner that          results in absurdities or defeats its underlying purpose.  In re                                                                     _____          Falstaff Brewing Corp., 637 A.2d 1047, 1050 (R.I. 1994).  As          ______________________          noted, the statute explicitly includes municipal employees in the          definition of "public body"; however, the boundaries of the          definition of "report" are still unclear.  Therefore, we turn to          Rhode Island's sister states in search of further clarification.8               Similar whistleblowers' statutes are found in Massachusetts,          Maine, New Hampshire, and Connecticut.  Of these, the Connecticut          statute bears the closest resemblance to the Rhode Island statute          at hand, although it, too, has not been the focus of relevant          caselaw.9  Generally, these whistleblowers' statutes appear to                                        ____________________               8    We look  first to those states within  our own circuit,          and  then to the state  (Connecticut) with the  statute that most          resembles the one at issue here.                   9    Conn.  Gen.  Stat.  Ann.      31-51m  (West   1987)("No          employer shall  discharge, discipline, or otherwise  penalize any                                         -8-          fall into two broad categories:  statutes like Rhode Island's and          Connecticut's, which are broadly drafted, and do not explicitly          include statements to an employee's supervisor within the rubric          of reports to a public body, and more detailed statutes like          those of Massachusetts, Maine and New Hampshire.  The statutes in          this second category are considerably more complex than those of          the first type; these explicitly include statements to a          supervisor within protected behavior, and indeed, require it as a          preliminary reporting step.10  Clearly, under this type of          statute, Marques' statements to Barlow would come under the          umbrella of protected actions.  Such is not as clearly the case          here, where we must deal with a more broadly drafted statute.                 Marques, confronted with a paucity of Rhode Island          authorities on this issue, points to two cases from other          jurisdictions dealing with whistleblowers to support his          assertion that public policy supports a broad reading of the          Rhode Island Whistleblowers' Act.  Appeal of Bio Energy Corp.,                                             __________________________          607 A.2d 606 (N.H. 1992), concerned an employee who was          terminated after bringing to her supervisor's attention a                                        ____________________          employee  because  the  employee  ...  reports,  verbally  or  in          writing, a violation  or a  suspected violation of  any state  or          federal  law   or  regulation  or  any   municipal  ordinance  or          regulation to a public body ....").                 10   See, e.g., N.H. Rev.  Stat. Ann.   275-E (1987  & Supp.                    ___  ____          1995)  ("[the protections of this section] shall not apply to any          employee unless the employee  first brought the alleged violation          to the  attention of a  person having supervisory  authority with          the  employer,  and  then   allowed  the  employer  a  reasonable          opportunity to  correct that  violation...."); Mass. Gen.  L. ch.          149,   185(b)(1) et seq. (West 1996); Me. Rev. Stat. Ann. tit. 26            831(1) -  833(2) (West 1988).                                         -9-          violation of State Department of Labor rules regarding payment of          wages.  Id. at 607.  The court there found that the New Hampshire                  ___          statute, which mandates an initial report to a supervisor,          applies to employees from the point of this initial report.  Id.                                                                       ___          at 608-09.  The court noted the dual purposes of the New          Hampshire Act:  "to encourage employees to come forward and          report violations without fear of losing their jobs and to ensure          that as many alleged violations as possible are resolved          informally within the workplace."  Id. at 609.  Similar purposes,                                             ___          Marques argues, undergird the Rhode Island statute.  The city,          however, distinguishes Bio Energy from our case on the grounds                                 __________          that the Rhode Island statute, unlike the New Hampshire one, does          not contain specific language including supervisors within the          group to whom reports may be made, and that no intent to do so          should be inferred.                 Bechtel Construction Co. v. Labor Sec'y, 50 F.3d 926, 931-32               ________________________    ___________          (11th Cir. 1995), concerned an internal complaint made pursuant          to the whistleblowers' provisions of the Energy Reorganization          Act, rather than to a state whistleblowers' Act.  There, the          court broadly construed the Act's terms (which prohibited          discharging or discriminating against employees who assisted with          or participated in "proceedings") to encompass the actions of an          employee who called violations of procedures for handling          radiation-contaminated tools at a nuclear power plant to the                                         -10-          attention of his supervisor.  Id. at 931-32.11  Marques argues                                        ___          that public policy counsels a similarly broad reading of the          Rhode Island statute.  The city, however, maintains that the          Energy Reorganization Act's inclusion of the "catchall" phrase          "or any other action" at the end of the whistleblowers' section          in question indicated an intent not present in the Rhode Island          statute to extend the protections afforded employees beyond          "proceedings" to include internal complaints.                 As the whistleblowers' provisions at issue in Bechtel do not                                                             _______          mirror those at issue in this case, the comparison of the Rhode          Island Whistleblowers' Act to the Energy Reorganization Act,          while informative, is not dispositive.  But, we take from both          this case and Bio Energy an important and applicable public                        __________          policy consideration -- that employees should not be discouraged          from reporting suspected violations initially to supervisors.  We          see no significant policy served by extending whistleblower          protection only to those who carry a complaint beyond the          institutional wall, denying it to the employee who seeks to          improve operations from within the organization.  The latter          course appears to us as more likely to lead to prompt resolution          of issues related to suspected violations of laws or regulations.                                        ____________________               11   The court partially based this finding on the fact that          whistleblowers' provisions in other regulations such as the Clean          Air Act and  the Federal  Water Pollution Control  Act have  been          deemed  to include internal complaints.  Bechtel, 50 F.3d at 932.                                                   _______          The court  also noted that  deference is given  to administrative          interpretation of regulations under Chevron v. Natural  Resources                                              _______    __________________          Defense Counsel, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).          _____________________                                         -11-               We therefore conclude that a jury permissibly could find the          Rhode Island Whistleblowers' Act applicable to statements made by          an employee to a supervisor concerning known or suspected          violations of the law.  The terms of the statute specifically          define a "public body" as including "[a]...city...governing          body...or any...employee thereof."  We do not read this language          as covering all municipal employees, such as a co-worker, but as          including a superior charged with carrying out the policies and          decisions of the city.  While the Act does not explicitly address          statements to supervisors, as do other states' whistleblowers'          statutes, the public policy behind these statutes is surely          similar: to encourage the prompt reporting and early, amicable          resolution of potentially dangerous workplace situations, and to          protect those employees who do report such violations from          retaliatory action by employers.                 We do not, of course, hold that a verdict for Marques is          therefore mandated; the jury must decide whether the statements          he made fall under a more expansive reading of the statute than          that allowed by the district court, and then whether Marques was          actually fired as a result of his statements to Barlow.  However,          we think that the question of whether Marques' statements bring          him within the protection of the Rhode Island Whistleblowers' Act          was one for the jury, and not a proper subject for a directed          verdict.                 Marques raised concerns about the project twice with Gammell          on December 22nd:  first, when he initially received the                                         -12-          assignment to work in the boat on Jones Pond, and then again, at          the Pond, where he fruitlessly asked Gammell for a life          preserver.  Furthermore, Marques testified on direct examination          that on December 23rd, after the morning break, he told Barlow he          did not want to go back in the boat because he felt sick, that he          did not feel conditions in the pond were safe, and that he still          had not gotten a life preserver.  On cross examination, Marques          again testified that he had told Barlow he was not feeling well,          that he was not going back in the boat, and that during general          conversation on the shore, he and others discussed the safety of          the project.  Moreover, as we have observed in note 2, supra, the                                                                 _____          evidence of the depth of the pond was not so clear that Marques'          fear was completely unfounded.  We do not feel that a reasoned          factfinder could have reached but one conclusion on the issue          whether these statements constituted a report of a violation          covered by the Rhode Island Act and whether Marques' termination          was the result of his statements.            Accordingly, we vacate the directed verdict on the Rhode Island          Whistleblowers' Act claim and remand it for retrial.          B.   Negligent/Intentional Infliction of Emotional Distress Claim               ____________________________________________________________               Marques also appeals the district court's grant of a          directed verdict for the city on his claim that the city's          actions either negligently or intentionally caused him emotional          distress.  Under Rhode Island law, a plaintiff, to succeed, must          show that 1) the defendant's conduct was intentional or in          reckless disregard of the probability of causing emotional                                         -13-          distress, 2) the conduct was extreme and outrageous, 3) there was          a causal connection between the wrongful conduct and the          emotional distress, and 4) the emotional distress in question was          severe.  See Champlin v. Washington Trust Co., 478 A.2d 985, 989                   ___ ________    ____________________          (R.I. 1984) (adopting standard of Restatement (Second) of Torts                                              _____________________________          46).  Additionally, Rhode Island requires a physical          manifestation of the emotional distress.  Id. at 990.  The                                                    ___          district court rejected this claim on the ground that the          evidence presented was insufficient to warrant a finding that the          city's actions in terminating Marques were extreme and          outrageous.12  We agree.  While being terminated several days shy          of the end of his probation period may not have been pleasant for          Marques, we do not believe that a jury would properly have found          on the evidence presented that the conduct of Barlow, Gammell,          and Lemont was sufficient to make an "average member of the          community ... exclaim 'Outrageous'."  Borden v. Paul Revere Life                                                ______    ________________          Ins. Co., 935 F.2d 370, 380 (1st Cir. 1991) (quoting Restatement          ________                                             ___________          (Second) of Torts   46, comment (d)).13           _________________                                        ____________________               12   In assessing whether conduct is extreme and outrageous,          Rhode  Island courts  have used  three factors:   1)  the conduct          itself; 2) the particular relationship of the parties; and 3) the          known  or  knowable  susceptibility   of  the  plaintiff  to  the          emotional  injury.  Russell v. Salve Regina College, 649 F. Supp.                              _______    ____________________          391, 401 (D.R.I. 1986), aff'd, 890 F.2d 484 (R.I. 1989).                                  _____               13   Both  parties note that  in Moniodis v.  Cook, 494 A.2d                                                ________     ____          212  (Md. 1985), the court  found an employee  who was discharged          after  her refusal  to  submit  to  a  polygraph  test  stated  a          colorable claim  for intentional infliction of emotional distress          on  the  grounds that  the  employer's actions  were  extreme and          outrageous because  the employer knew the  employee was dedicated          to her work, that  she had a pre-existing nervous  condition, and          she  was emotionally debilitated as  a result of the termination.                                         -14-          C.   Rhode Island Boating Law               ________________________               Finally, Marques appeals the directed verdict on the Rhode          Island Boating Laws claim.                 R.I. Gen. Laws   46-22-15 provides that                the owner of a vessel shall be liable for any injury or               damage occasioned by the negligent operation of the               vessel, whether the negligence consists of a violation               of the provisions of the statutes of this state, or               neglecting to observe such ordinary care and such               operation as the rules of the common law require.               This statute therefore requires "negligent operation" of a          vessel and that a plaintiff's injuries be proximately caused by          this negligent operation.  Even were negligent operation of the          boat in question to be found, as to which we express some doubt,          this claim would nevertheless founder on the proximate cause          requirement: the connection between Marques' injuries, including          his discharge and resulting alleged damages, and the city's          operation of the boat on Jones Pond is too attenuated.  We          therefore affirm the district court's ruling on this claim too.                                        CONCLUSION               The Rhode Island Whistleblowers' Act properly may be          construed to encompass statements made by an employee to a          supervisor concerning known or suspected violations of the law.           This accords with the terms of the statute itself, and with the          public policies underlying this type of statute.  As a jury could          have inferred that Marques' statements to Barlow constituted such                                        ____________________          We find the facts of that  case as they related to the employer's          actions clearly  distinguishable in nature and  degree from those          alleged here.                                           -15-          "reports" to a "public body" under this broader construction of          the statute, and that he was fired as a result of these          statements, we vacate the district court's directed verdict on          this claim.  However, we affirm the district court's judgments on          the negligent/intentional infliction of emotional distress claim          and on the violation of the Rhode Island Boating Safety Act          claim.            Affirmed in part and vacated and remanded in part.  One half          _________________________________________________   ________          costs to appellant.          ___________________                                         -16-
