Dusel v. Factory Mutual Insurance Company

United States District Court

District of Massachusetts

)

Thomas Dusel, )

)

Plaintiff and Defendant )

in Counterclaim, )

)

v. ) Civil Action No.

) 19-11698-NMG

Factory Mutual Insurance Company, )

d/b/a FM Global, )

)

Defendant and Plaintiff )

in Counterclaim. )

)

MEMORANDUM & ORDER

GORTON, J.

This suit arises out of the termination of Thomas Dusel

(“Dusel” or “plaintiff”) from the employ of Factory Mutual

Insurance Company, d/b/a FM Global (“FM Global” or “defendant”).

Pending before the Court are cross motions for summary judgment,

plaintiff’s motion to dismiss Counterclaim I and numerous

related motions filed by plaintiff.

I. Background

A. The Parties

FM Global is a commercial property insurer with a principal

place of business in Rhode Island. Hobbs Brook Management

(“HBM”) is a wholly owned subsidiary of FM Global located in

Waltham, Massachusetts. HBM develops, owns and operates offices

and life science facilities in the greater Boston area and

provides real estate management services for properties owned by

FM Global.

Dusel is a resident of Boxford, Massachusetts. He was

hired by FM Global in 1983 and eventually became the President

and Chief Financial Officer (“CEO”) of HBM. He served in that

role until he was fired in September, 2018. As CEO, he had

several employees report directly to him including Kevin Casey,

Vice President of Leasing and Construction, and Michael Valli,

Vice President of Food Services and Facilities.

B. Human Resources Complaints About Mr. Casey

In 2015, Patricia Holland, an employee who reported to Mr.

Casey, filed a complaint with the Human Resources Department

(“HR”) at FM Global alleging that Mr. Casey had acted

inappropriately and had harassed her. HR conducted an

investigation and decided not to discipline Mr. Casey. Dusel

testified at his deposition that he disagreed with the findings

of the investigation and informed HR of his disagreement.

In February, 2018, Ms. Holland filed another complaint with

HR concerning Mr. Casey’s workplace behavior. Dusel claims to

have reported Ms. Holland’s concerns to his supervisor at the

parent corporation and to the Chief Financial Officer of FM

Global prior to the filing of the complaint. During the

subsequent investigation, Dusel was interviewed several times

and reported that he had observed Mr. Casey act aggressively

toward both male and female employees.

Corporate leadership concluded that Mr. Casey had not

violated workplace violence or discrimination policies but

decided to transfer the entire HBM senior management team to the

headquarters of FM Global in Johnston, Rhode Island. Defendant

asserts the transfer was necessary to ensure a positive work

environment but Dusel insists that it was an attempt to force

the members of the HBM management team to quit.

C. Investigation of HBM’s Verizon Account

In July, 2018, FM Global began an audit of the Verizon

account for HBM after Mr. Lalli asked to retain his cell phone

even though he was leaving the company. The audit led to the

discovery that several employees, including Dusel, had multiple

active cell phone numbers being charged to the company account.

Further investigation revealed that personal phones belonging to

Dusel’s wife and daughter had been charged to the company

account for years.

Dusel concedes that he never reimbursed HBM for the cell

phone service used by his family members for several years but

asserts that he intended to repay the company as soon as he was

billed. He also states that, once FM Global shared its concerns

about his family’s cell phone charges, he transferred the phone

lines to a personal account in order to comply with company

policy.

Approximately one month later, investigators asked Dusel

whether he had any family members on the HBM Verizon plan, to

which he responded in the negative. He later testified that he

did not inform investigators about the recent transfer of phone

lines because they did not explicitly ask about it.

In August, 2018, FM Global released a report in which it

concluded that Dusel had been charging the phone service of

multiple family members to HBM and that he had not been truthful

during the investigation. Dusel responds that he was not

untruthful but rather simply confused about the phone lines.

D. Alleged Theft of Company Property & Plaintiff’s

Termination

During the investigation into HBM’s Verizon Account, FM

Global learned that Dusel had frequently visited an office

building owned by HBM in Wakefield, Massachusetts (“the

Wakefield Facility”) during non-business hours. Security camera

footage captured plaintiff entering the building’s cafeteria

carrying an empty bag and leaving minutes later with what

appeared to be a full bag. Further investigation revealed that

plaintiff had entered the Wakefield Facility during non-business

hours on 87 occasions over a two-year period.

Defendant asserts that plaintiff had no reason to be in

that building because it was leased to a third party tenant and

HBM did not occupy any part of it. Defendant concluded that

Dusel had entered the building to steal food and/or other items

and consequently terminated his employment in September, 2018.

E. Procedural History

In July, 2019, Dusel filed a complaint in the Massachusetts

Superior Court for Middlesex County alleging age discrimination

(Count I) and retaliation (Count II) in violation of M.G.L. c.

151B, § 4(1B) and (4) against FM Global. Shortly thereafter,

defendant removed the action to this Court on the basis of

diversity jurisdiction.

In its answer, FM Global asserted counterclaims for

1) misappropriation, 2) waste of corporate assets, 3)

conversion, 4) unjust enrichment and 5) breach of fiduciary

duty.

In April, 2021, both parties moved for summary judgment.

FM Global seeks summary judgment with respect to each of

plaintiff’s claims under M.G.L. c. 151B, § 4 and Dusel seeks

summary judgment as to each of the counterclaims asserted by

defendant. Plaintiff also moved to dismiss the first of

defendant’s counterclaims for failure to state a claim and has

filed several other motions seeking to strike or exclude certain

evidence and facts proffered by defendant in support of its

motion for summary judgment.

II. Motions to Strike and Exclude Evidence

The Court will first address the five motions filed by

plaintiff requesting that certain evidence proffered by

defendant be stricken or excluded from all further proceedings.

A. Motion to Exclude

Plaintiff moves to exclude certain pornographic and

sexually explicit materials identified and produced by defendant

from being utilized in any further proceedings. Dusel contends

that such evidence, which was discovered after the termination

of his employment by FM Global, is irrelevant to his claims and

presents a significant risk of unfair prejudice. He also

submits that FM Global cannot show that it constitutes after-

acquired evidence. Defendant responds that the evidence is

highly relevant to all claims and counterclaims and does

constitute after-acquired evidence.

The after-acquired evidence doctrine

permits an employer to show that later-discovered but

legitimate reasons for taking adverse employment action

against an employee, if they had been known at the time,

would have justified or mitigated the employer’s otherwise

impermissibly discriminatory action (e.g., discharge)

relating to that employee, and can serve to limit the

employee’s recovery.

City of Springfield v. Civil Service Commission, 469 Mass. 370,

378 n.14 (2014). The doctrine serves to limit an employee’s

recovery by cutting off front and back pay at the time that the

employer discovers the evidence. Johnson v. Spencer Press of

Me., Inc., 364 F.3d 368, 382 n.14 (1st Cir. 2004).

Although Massachusetts law has neither expressly adopted

nor rejected the after-acquired evidence doctrine, the First

Circuit Court of Appeals has permitted such evidence to be

considered only to assess damages and not liability. See Heagney

v. Wong, 915 F.3d 805, 820-21 (1st Cir. 2019) (citing Nieves-

Villanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir. 1997)).

To rely on after-acquired evidence, an employer must establish

that the wrongdoing was sufficiently severe to warrant the

discharge of the employee “on those grounds alone” had the

employer known of it at the time of discharge. McKennon v.

Nashville Banner Pub. Co., 513 U.S. 352, 362-63 (1995).

Here, the evidence at issue qualifies as after-acquired

evidence. Dusel cannot seriously contend that FM Global would

not have been justified in terminating his employment had they

discovered that he had accessed and stored a large amount of

pornographic and other sexually explicit materials at work.

Even if FM Global did not explicitly prohibit viewing and

storing pornography on company property, a reasonable employee

would anticipate that such conduct could be grounds for

termination. In any event, defendant’s Preventing

Discrimination and Harassment Policy states that displaying

images of a sexual nature may constitute sexual harassment and

may subject offenders to discharge.

Furthermore, the evidence is clearly relevant to

plaintiff’s claims because it could have the effect of limiting

any potential damages suffered by Dusel for the alleged

discrimination and retaliation. Although summary judgment will

be entered in favor of FM Global on Dusel’s complaint (addressed

in detail below), the evidence is also clearly relevant to the

counterclaims because defendant alleges improper expenditure of

company funds due, in part, to the retention of a third party

vendor purportedly as a result of the download of pornography to

plaintiff’s computer.

Accordingly, the Court will not foreclose defendant from

offering such evidence at trial in support of its counterclaims.

Plaintiff’s motion to file a reply to the opposition of

defendant will be allowed but, because the Court understands and

has considered the arguments to be raised by Dusel based upon

the content of that motion, his motion to exclude the after-

acquired evidence will be denied.

B. Motions to Strike

Plaintiff has also filed four motions requesting that this

Court strike the affidavits of Robert Fitzpatrick, Kevin Ingram

and Erik Waal as well as certain paragraphs from defendant’s

statement of material facts.

The Court will not strike the affidavits proffered by FM

Global. Despite Dusel’s claims to the contrary, Mr. Fitzpatrick

was disclosed in the discovery responses of the defendant and

plaintiff has not demonstrated that the delayed disclosure was

harmful. See Cavanagh v. Taranto, 95 F. Supp. 3d 220, 230 (D.

Mass. 2015) (“[A]n unjustifiably delayed disclosure will merit

exclusion of the delayed evidence under Rule 37(c) only if the

delay also causes some harm or prejudice to the opposing

party.”). Nor does Mr. Fitzpatrick’s affidavit contain expert

opinions. With respect to the affidavits of Mr. Ingram and Mr.

Waal, defendant’s opposition to the motions to strike

demonstrates that Dusel’s arguments are without merit and the

challenged portions of the affidavits will not be striken.

The Court also finds that Dusel overreaches with his final

motion to strike. To the extent that plaintiff believes

defendant has included legal conclusions or facts unsupported by

the evidence in its statement of material facts, he has had the

opportunity to respond with his own statement of material facts

and to contest the facts proffered by defendant. For that

reason, the Court will not strike the requested portions of

defendant’s material facts.

III. Motion to Dismiss

A. Legal Standard

To survive a motion under Fed. R. Civ. P. 12(b)(6), the

subject pleading must contain sufficient factual matter to state

a claim for relief that is actionable as a matter of law and

“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible if, after accepting as

true all non-conclusory factual allegations, the court can draw

the reasonable inference that the defendant is liable for the

misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d

1, 12 (1st Cir. 2011).

When rendering that determination, a court may not look

beyond the facts alleged in the complaint, documents

incorporated by reference therein and facts susceptible to

judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011). A court also may not disregard properly pled

factual allegations even if actual proof of those facts is

improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the

relevant inquiry focuses on the reasonableness of the inference

of liability that the plaintiff is asking the court to draw. Id.

at 13.

B. Application

Plaintiff moves to dismiss Counterclaim I which alleges

that he misappropriated assets belonging to the company. He

contends that FM Global failed to state a claim upon which

relief can be granted because, according to Dusel, Massachusetts

law permits such claims only for misappropriation of trade

secrets or likeness. Because defendant has not alleged facts to

support a claim of misappropriation of trade secrets or

likeness, plaintiff submits that its counterclaim should be

dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

As a preliminary matter, a review of Massachusetts state

court decisions reveals that such courts routinely deal with

state law misappropriation claims outside of the two narrow

contexts noted by plaintiff. See, e.g., Our Lady of the Sea

Corp. v. Borges, 40 Mass. App. Ct. 484, 484-90 (1996) (affirming

damages awarded for claim of misappropriation of corporate

assets); Crosslight Org. v. Williams, No. CA BRCV2000-01135,

2001 Mass. Super. LEXIS 315, at *16 (July 30, 2001) (imposing a

constructive trust to remedy misappropriation of funds by

company’s former accountant); Custom Kits Company, Inc. v.

Tessier, 97 Mass. App. Ct. 385, (2020) (recognizing breach of

fiduciary duties based upon misappropriation of corporate

funds). Plaintiff cites no cases that suggest misappropriation

claims are subject to dismissal outside of the trade secrets and

likeness contexts.

Furthermore, FM Global has alleged facts sufficient to

state a claim for misappropriation which is defined as

[t]he application of another’s property or money

dishonestly to one’s own use.

Black’s Law Dictionary (11th ed. 2019). FM Global alleges, and

the Court accepts as true for the purpose of the pending motion,

that Dusel, inter alia, used company funds to pay for personal

cell phone plans and a DirectTV subscription, stole food and

other company property on multiple occasions and charged the

company for personal hotel and food expenses without a valid

business purpose. If proven, such allegations demonstrate that

Dusel misappropriated property and money belonging to FM Global

for his own personal use. As a result, plaintiff’s motion to

dismiss will be denied.

IV. Motions for Summary Judgment

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving

party to show, through the pleadings, discovery and affidavits,

“that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

A fact is material if it “might affect the outcome of the

suit under the governing law . . . .” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party satisfies its burden, the burden shifts

to the nonmoving party to set forth specific facts showing that

there is a genuine, triable issue. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). The Court must view the entire record in

the light most favorable to the non-moving party and make all

reasonable inferences in that party’s favor. O’Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is

appropriate if, after viewing the record in the non-moving

party’s favor, the Court determines that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

B. Defendant’s Motion for Summary Judgment

1. Age Discrimination (Count I)

Massachusetts law forbids employers from discriminating

against or terminating employees on the basis of age. See M.G.L.

c. 151B, § 4(1B). When direct evidence of age discrimination is

unavailable, Massachusetts courts apply the burden-shifting

framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Under this framework, the plaintiff must first

establish a prima facie case of discrimination by demonstrating

that he or she

(1) was a member of the class protected by G. L. c. 151B

(that is, over forty years of age); (2) had performed [his

or] her job at an acceptable level; (3) was terminated; and

(4) was replaced by a similarly or less qualified younger

person.

Knight v. Avon Prods., 438 Mass. 413, 420-21 (2003).

Once a prima facie case has been made, the burden shifts to

the defendant to rebut the presumption of discrimination by

offering a legitimate, nondiscriminatory reason for its

employment action. See Blare v. Husky Injection Molding Sys.

Boston, 419 Mass. 437, 441 (1995). If it does so, the plaintiff

must then produce evidence demonstrating that the defendant’s

stated reason was pretext. Id. at 443-45.

Defendant submits that summary judgment is proper as to

Count I of plaintiff’s complaint because 1) plaintiff cannot

establish a prima facie case of age discrimination, 2) FM Global

had legitimate, nondiscriminatory reasons for terminating

plaintiff’s employment, and 3) plaintiff cannot demonstrate

pretext.

a. Prima Facie Case

FM Global first contends that Dusel cannot succeed on his

age discrimination claim because he did not perform his job at

an acceptable level.

The evidence indicates that there is no genuine dispute as

to whether plaintiff can establish a prima facie case of age

discrimination. Defendant has offered investigative reports

showing that Dusel improperly charged HBM’s Verizon account for

personal phones and purportedly stole food items from the

Wakefield Facility, demonstrating that he engaged in “financial

malfeasance, theft and dishonesty.” The company has also

provided deposition testimony from several of Dusel’s

supervisors and the 2018 HR investigation report concluding that

there were systemic communication and support issues among

senior management of HBM to demonstrate that Dusel was unable to

manage his staff adequately.

Dusel has not met his burden in response. He highlights

years of positive performance reviews and the fact that he was

never formally investigated or disciplined until the final year

of his employment as evidence that he performed his job

adequately. Years of positive performance do not, however,

create a genuine dispute as to an employee’s performance at the

time of his termination. Dusel ignores the evidence that, in

his final year with the company, FM Global discovered 1) that he

had improperly charged the company for personal phone lines and

other expenses, 2) that he had problems managing his staff and

3) security camera footage of Dusel entering company-owned

property outside of business hours and for no legitimate

business purpose.

Dusel further declares that it is “simply nonlogical [sic]”

and “astonishing” for FM Global to claim that he did not perform

his job adequately considering that he was paid hundreds of

thousands of dollars in salary and even more in bonus

compensation. This Court fails to comprehend how plaintiff’s

compensation supports his position that he performed his job

adequately. Although the extent of an employee’s compensation

may reflect his general value to the employer, it bears little

relation to the day-to-day performance of his job. Employees

with larger salaries are not inherently less likely to

underperform than others.

b. Nondiscriminatory Reasons & Pretext

Even if plaintiff could establish a prima facie case of age

discrimination, defendant has articulated legitimate,

nondiscriminatory reasons to terminate his employment, shifting

the burden back to Dusel to demonstrate that such reasons are

pretextual. He has not met that burden either.

Dusel’s claim of age discrimination appears to rest

entirely on evidence that Mr. Casey, a younger employee, was not

fired despite charging personal phone lines to the company and

violating a policy against hiring relatives. Such evidence is

insufficient to permit a reasonable finder of fact to infer

discrimination on the basis of age. Aside from the fact that

Mr. Casey was not in the same position of authority as

plaintiff, Mr. Casey has not been accused of the kind of

misconduct which led to Dusel’s termination, such as the theft

of items from the Wakefield Facility. Furthermore, FM Global

has proffered evidence indicating that Mr. Casey hired his

relatives before the anti-nepotism policy of the company was put

in place and that those individuals were discharged immediately

after an investigation.

Based upon the evidence of record, no rational factfinder

could conclude that age was a determining factor in the decision

of FM Global to terminate Dusel’s employment. Accordingly,

defendant is entitled to summary judgment in its favor on Count

I of the complaint.

2. Retaliation (Count II)

Massachusetts law prohibits employers from retaliating

against employees who raise concerns about discriminatory

treatment. See M.G.L. c. 151B, § 4(4)-(4A). The burden-shifting

framework applicable to retaliation claims is identical to that

of age discrimination claims: plaintiff must demonstrate a prima

facie case of retaliation, after which defendant must articulate

a legitimate, nondiscriminatory reason for the adverse action

and, finally, plaintiff must show that the articulated reason is

pretextual. See Griffin v. Adams & Assocs., No. 14-12668-DJC,

2016 U.S. Dist. LEXIS 83760, at *23-24 (D. Mass. June 28, 2016).

To establish a prima facie case of retaliation, the

plaintiff must show that 1) he engaged in protected conduct, 2)

he suffered some adverse action and 3) a causal connection

exists between the protected conduct and the adverse action.

Psy-Ed Corp. v. Klein, 459 Mass. 697, 706–07 (2011).

FM Global contends that it is entitled to judgment as a

matter of law with respect to Dusel’s claim of retaliation

because plaintiff did not engage in protected activity by merely

participating in the internal investigations of alleged

misconduct. Even if he did engage in protected activity,

defendant asserts that there is no causal connection between

such activity and his termination.

a. Protected Activity

Under M.G.L. c. 151B, § 4(4), an individual has engaged in

protected activity if

he has opposed any practices forbidden under this chapter

or [if] he has filed a complaint, testified or assisted in

any proceeding under [the statute].

M.G.L. c. 151B, § 4(4). That description includes two kinds of

protected activity: “opposition” and “participation.” Morris v.

Boston Edison Co., 942 F. Supp. 65, 69 (D. Mass. 1996).

It is undisputed that Dusel did not engage in the latter

form of protected activity because the participation clause

applies solely to external or formal as opposed to internal

or informal investigations and proceedings.

Id. at 70. Instead, Dusel submits that he “opposed

discrimination and discriminatory practices” when supporting Ms.

Holland’s complaints and thus engaged in protected activity.

The Court is skeptical that Dusel did, in fact, engage in

protected activity but acknowledges that it is a close call.

Although plaintiff’s reporting of the concerns of Ms. Holland to

his supervisors in 2018 does not rise to the level of protected

activity, his voicing of disagreement with the outcome of the

investigation into the 2015 complaint likely qualifies as

opposition to practices forbidden by the Massachusetts

discrimination statute.

b. Causal Connection

Assuming arguendo that Dusel engaged in protected activity,

there is no causal link between that activity and his subsequent

discharge. A causal connection may be inferred where an adverse

action is taken against a satisfactorily performing employee

immediately after the employer becomes aware of his or her

protected activity. See Mole v. Univ. of Mass., 442 Mass. 582,

592 (2004). Even so, the temporal proximity between the

protected activity and the adverse action must be “very close”

to support such an inference. Id. at 595.

Here, Dusel’s alleged protected activity took place three

years before he was fired. Such an interval between the two

events will not support an inference of causation. See Oliver v.

Digital Equip. Corp., 846 F.2d 103, 110-11 (1st Cir. 1988)

(causation not shown where firing occurred more than two years

after protected activity). Even if plaintiff’s conduct with

respect to the 2018 complaint constituted protected activity,

the six-month hiatus between his report and his discharge is too

attenuated to infer a causal relationship, especially when the

intervening findings of misconduct are considered. See, e.g.,

Baker v. Coxe, 52 F. Supp. 2d 244, 252 (D. Mass. 1999)

(“[A]llegedly retaliatory acts separated by intervals of even

three to six months are not temporally close enough to support

an inference of causal connection.”) (internal quotation marks

omitted).

Dusel has not presented evidence from which a reasonable

jury could infer that FM Global’s articulated reasons for his

discharge did not form the real basis for its employment

decision. For that reason, defendant’s motion will be allowed

as to Count II of the complaint.

C. Plaintiff’s Motion for Summary Judgment

1. Misappropriation (Counterclaim I)

Plaintiff seeks summary judgment as to defendant’s claim of

misappropriation for the same reason raised in his motion to

dismiss, namely that there is no recognized general

misappropriation claim under Massachusetts law. That contention

has been addressed and rejected above with respect to

plaintiff’s motion to dismiss. Consequently, Dusel is not

entitled to summary judgment as to Counterclaim I on that

ground.

2. Waste of Corporate Assets (Counterclaim II)

An officer of director of a corporation is liable for waste

of corporate assets when that person removes or diverts

corporate assets for which the corporation receives no benefit.

Henderson v. Axiam, Inc., No. 96-2572-D, 1999 Mass. Super. LEXIS

580, at *162 (June 22, 1999).

Dusel contends that it was customary to expense hotel food

and beverages to the company. He also states that FM Global

failed to investigate similar expenses charged by other

employees and, compared to the actions of other employees,

plaintiff’s purported waste was minimal.

Plaintiff is not entitled to summary judgment. Even if the

hotel charges did not constitute waste, defendant alleges that

plaintiff used corporate asserts without benefit to FM Global in

a variety of other ways, including through personal cell phone

expenses, a DirectTV subscription, stolen food items and the

retention of a third party vendor to install a separate computer

server in his office. Furthermore, the failure of FM Global to

investigate other purported instances of waste and the extent of

plaintiff’s waste do not relieve him of potential liability as a

matter of law.

Accordingly, plaintiff’s motion will be denied as to

Counterclaim II.

3. Conversion (Counterclaim III)

To prevail on a claim of conversion, a claimant must

demonstrate that the opposing party

intentionally or wrongfully exercised acts of ownership,

control, or dominion over personal property to which he has

no right of possession at the time.

In re Brauer, 452 Mass. 56, 67 (2008).

Dusel claims entitlement to judgment as a matter of law on

FM Global’s conversion counterclaim because, according to him,

only physical property can be the subject of a conversion claim.

Although intangible property may not constitute the basis of a

conversion claim, see Fordham v. Boston Univ. Bd. of Trs., No.

15-P-1475, 2016 Mass. App. Unpub. LEXIS 1206, at *5 (Dec. 15,

2016), “[m]oney is personal property which may be converted.”

Independence Seaport Museum v. Carter, 2008 Mass. Super. LEXIS

338, at *18 (Aug. 15, 2008). Here, FM Global has demonstrated

that Dusel improperly appropriated specific items and funds from

it for personal use. Because Dusel has not proffered evidence

to establish a genuine dispute of material fact as to the claim

of conversion, his motion will be denied with respect to

Counterclaim III.

4. Unjust Enrichment (Counterclaim IV)

Under Massachusetts law, a claim of unjust enrichment

requires “unjust enrichment of one party and unjust

detriment to another party.” Mass. Eye & Ear Infirmary v.

QLT Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir.

2009). Specifically, a claimant must establish

(1) a benefit conferred upon the defendant by the

plaintiff; (2) an appreciation or knowledge by the

defendant of the benefit; and (3) acceptance or

retention by the defendant of the benefit under the

circumstances would be inequitable without payment for

its value.

Id.

In arguing for summary judgment, Dusel clearly

misinterprets the elements of a claim of unjust enrichment.

He asserts that FM Global cannot meet its burden because

the benefits conferred upon him were obtained without the

knowledge or consent of FM Global. Whether FM Global had

knowledge of a conferral of benefits is irrelevant,

however, because Dusel, as the defendant in counterclaim,

is the party who must have had an appreciation or knowledge

of the alleged benefit. FM Global has proffered evidence,

including Dusel’s own testimony, indicating that Dusel

understood that he had received benefits from FM Global

without compensation.

Dusel also repeats his argument that he cannot be held

liable for his own alleged misconduct because other

employees of FM Global engaged in even more serious

misconduct. The actions of other employees do not affect

whether Dusel unjustly enriched himself to the detriment of

FM Global. Plaintiff thus has not demonstrated that he is

entitled to summary judgment and his motion will be denied

as to Counterclaim IV.

5. Breach of Fiduciary Duty (Counterclaim V)

To prevail on a claim for breach of fiduciary duty, FM

Global must establish

(1) the existence of a fiduciary duty; (2) breach of

that duty; (3) damages; and (4) a causal connection

between breach of the duty and the damages.

Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass.

App. Ct. 835, 842 (2017). Dusel contends that FM Global

has not demonstrated that he acted as a fiduciary of

defendant and has thus failed to establish the requisite

prima facie case.

Plaintiff is not entitled to summary judgment on

defendant’s counterclaim for breach of fiduciary duty.

There is no serious debate that Dusel, as President and CEO

of HBM, acted as a fiduciary of defendant. See, e.g.,

Geller v. Allied-Lyons PLC, 42 Mass. App. Ct. 120, 122

(1997) (stating that officers and directors owe a fiduciary

duty to their corporations and that senior executives are

considered corporate fiduciaries). Dusel’s other arguments

in favor of summary judgment are conclusory and

unsubstantiated by the evidence of record.

Plaintiff’s motion, therefore, will be denied as to

Counterclaim V.

V. Motion to Bifurcate Trial

Finally, plaintiff moves to bifurcate trial into two

phases, one for determining liability and one for the

calculation of damages. He contends that the after-acquired

evidence to be presented by defendant, namely the pornographic

and sexually explicit materials allegedly found in Dusel’s

office, are relevant only for calculating damages and would be

unfairly prejudicial during the liability phase of the case.

In light of the above determinations by the Court to deny

Dusel’s motion to exclude the after-acquired evidence and to

allow the motion of FM Global for summary judgment, the

bifurcation of trial is unnecessary. The motion will,

therefore, be denied.

ORDER

For the foregoing reasons,

(a) the motion of plaintiff, Thomas M. Dusel (“Dusel”), to

exclude certain after-acquired evidence (Docket No.

102) is DENIED;

(b) the motion of Dusel for leave to file a reply (Docket

No. 106) is ALLOWED;

(c) the motions of Dusel to strike the affidavits of

Robert Fitzpatrick (Docket No. 111), Kevin Ingram

(Docket No. 112) and Erik Waal (Docket No. 113) as

well as certain paragraphs from defendant’s statement

of material facts (Docket No. 114) are DENIED;

(d) the motion of Dusel to dismiss Count I of the

counterclaims asserted by defendant, Factory Mutual

Insurance Company, d/b/a FM Global (“FM Global”), for

failure to state a claim (Docket No. 97) is DENIED;

(e) the motion of Dusel for summary judgment on FM

Global’s counterclaims (Docket No. 92) is DENIED;

(f) the motion of FM Global for summary judgment on

plaintiff’s affirmative claims (Docket No. 83) is

ALLOWED; and

(g) plaintiff’s motion to bifurcate trial (Docket No. 126)

is DENIED.

To the extent these rulings conflict with the Order

previously entered by this Court (Docket No. 129), this Order

controls.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated July 14, 2021