Former Staff Attorney States Claim

The Massachusetts Supreme Judicial Court revived a lawsuit brought by a former Appeals Court staff attorney against two of three defendants

In 2023, the plaintiff, Kenneth Bresler, a former Appeals Court staff attorney, commenced suit in the Superior Court, asserting a claim of intentional interference with advantageous relations against three Appeals Court employees — defendants Lynn Muster, Mary Bowe, and Gina DeRossi — in their individual capacities. Bresler alleged that the defendants engaged in a concerted campaign that ultimately led to his termination.

The suit was dismissed below

we conclude that the allegations in the complaint, when taken as true, along with the reasonable inferences in Bresler’s favor, plausibly suggest Muster and Bowe acted with “actual malice,” as necessary to  state an intentional interference claim and, by extension, also acted with “bad faith” or “malice,” as necessary to overcome their claim of common-law immunity. As to DeRossi, however, we hold that the complaint does not contain factual allegations adequate either to establish the “actual malice” element of the tort or to defeat her immunity. Accordingly, we affirm the judge’s order as to Muster and DeRossi and reverse as to Bowe.

Alleged facts

Bresler, a former trial and appellate prosecutor and legal educator, began his employment with the Appeals Court in January 2019 as a staff attorney. At that time, staff attorneys were divided into three categories: (1) writers, who wrote drafts of judicial opinions; (2) editors, who edited drafts of decisions, ensuring compliance with the court’s style manual; and (3) screeners, who prepared brief memoranda recommending whether cases should receive oral argument. Although Bresler was hired as a writer, the court soon consolidated all staff attorney duties, requiring each attorney to perform all three roles. In addressing the newly assigned editing responsibilities, Chief Staff Attorney Mary Bowe remarked that “[i]t takes a long time to learn these conventions.” Regarding screening memoranda, she instructed staff attorneys to “just make your best effort” and not to be concerned with formatting, as the court was considering whether to eliminate the practice of drafting these memoranda altogether.

Shortly after Bresler’s arrival, fellow staff attorney Lynn Muster became hostile toward him. Colleagues perceived her behavior as motivated by jealousy of Bresler’s background as a legal writer and teacher. In June 2019, after it was announced that Bresler would teach a legal writing seminar for the Social Law Library, another staff attorney overheard Muster accuse him of “trying to take over.” The following month, Muster was promoted to deputy chief staff attorney. Thereafter, she began conveying criticisms of Bresler’s writing to judges, staff attorneys, Bowe, and the Appeals Court administrator, Gina DeRossi. Muster also solicited negative feedback from two judges with whom she had personal relationships, including attending law school together. One staff attorney overheard Muster mocking Bresler in the company of one of the judges, even though he had never drafted an opinion for that judge. Muster further attempted to restrict staff attorney attendance at Bresler’s writing seminar and failed to promote it internally.

In June 2019, prior to Muster’s promotion, Bowe provided Bresler with a positive written evaluation…

When Muster was promoted in July 2019, Bresler expressed concern to Bowe about Muster’s “personal hostility” toward him and requested protection. Bowe assured Bresler that Muster would not be involved in evaluating his performance.

In October 2019, four days before Bresler’s nine-month probation was set to expire, he was summoned to a meeting with Bowe and Muster. At that meeting, Bowe told Bresler his writing was “deficient,” falsely claiming that a judge had found one of his drafts “unusable.” As a result, Bowe extended Bresler’s probation by six months and assigned Muster to supervise his editing –- marking the first time the Appeals Court had denied a staff attorney permanent employment. Soon afterward, a staff attorney serving as union steward reported to Bowe that Muster was bullying Bresler, had been “brutal” in her editorial reviews, and was subjecting him to scrutiny “no one could survive.” Bowe took no corrective action.

In December 2019, Bowe told Bresler that his future at the court “would not depend on his editing.”  One month later, she informed him that his annual pay increase would be withheld during his probationary period. In February 2020, Bowe, joined by Muster, gave Bresler an unfavorable oral evaluation and remarked that he was “unlikely to last as a [s]taff [a]ttorney.” Following this meeting, Bresler began experiencing anxiety, depression, and sleep disturbances.

In June 2020, Bowe gave Bresler a written evaluation, again in Muster’s presence. She criticized his writing, discontinued his writing assignments, and instructed him to stop teaching at the Social Law Library. The evaluation exacerbated Bresler’s mental health struggles. Bowe also began assigning criminal law opinions to a less experienced staff attorney and omitted from her evaluation of Bresler several positive assessments of Bresler’s editing from judges — assessments Bresler had forwarded to her.

In November 2020, DeRossi placed Bresler on administrative leave and sent him a letter outlining thirteen allegations against him, supplied by Bowe and Muster. Five of these had never been previously raised. Among the allegations were several previously repeated, exaggerated, and trivial claims: that Bresler had “misstated the standard of review” in an assignment; misidentified the number of indictments in a draft opinion; and submitted a draft opinion deemed “unusable” by a judge, even though the judge had expressly stated that the reassignment of that opinion to another employee was not due to Bresler’s writing. Although Bresler’s errors were minor and “comparable to those made by other [s]taff [a]ttorneys, judges, law clerks, and Defendant Muster,” he was held to a uniquely high standard. For example, a 2020 opinion containing multiple misspellings, including party names, resulted in no disciplinary action against its author.

To respond to the allegations, Bresler requested access to his “files.” In December 2020, DeRossi — who “was not familiar with the allegations” and “needed to consult with Defendants Bowe, Muster, or both” — denied the request, though she did provide partial information, failing to address all of Bresler’s questions. Bresler submitted a letter refuting the allegations, but DeRossi terminated his employment later that month at a meeting attended by Bowe. The termination deepened Bresler’s  mental health struggles. Afterward, Bowe confided to another 9 staff attorney that the campaign against Bresler “had taken on a life of its own.”

Holding

we hold that Bresler has alleged sufficient facts to establish the element of “actual malice” as to defendants Muster and Bowe, thereby stating a viable claim for intentional interference with advantageous relations. These same allegations are sufficient to defeat their entitlement to common-law immunity. In contrast, as to DeRossi, the complaint fails to allege facts sufficient to establish either “actual malice” or that she acted “in bad faith or with malice.” DeRossi is therefore entitled to immunity. Accordingly, we affirm the judge’s order as to Muster and DeRossi, and we reverse as to Bowe.

(Mike Frisch)