A federal appeals court affirmed a ruling in favor of FM Global on Tuesday in litigation filed by a fired longtime official who had charged age discrimination and retaliation.
The 1st U.S. Circuit Court of Appeals in Boston said in its ruling in Thomas Dusel v. Factory Mutual Insurance Co., d/b/a/FM Global that the insurer had presented legitimate, nondiscriminatory reasons for Mr. Dusel’s firing, which were improper cellphone use and the theft of food from a company facility.
Mr. Dusel was a 35-year employee of Factory Mutual, and at the time of his termination was president and CEO of Hobbs Brook Management, a Waltham, Massachusetts-based subsidiary that provides real estate management and services for FM Global’s properties.
In 2015, an HBM employee filed a complaint with FM Global’s human resources department alleging harassment and other inappropriate behavior by her then-supervisor.
Following two investigations, human resources concluded it did not have sufficient evidence to determine that the supervisor had violated FM Global’s policies.
Mr. Dusel said he had observed the supervisor acting inappropriately and that he had encouraged the employee to reach out to human resources.
After the second investigation, FM Global relocated HBM’s management to its Johnston, Rhode Island, company headquarters and had the employee and supervisor report directly to Mr. Dusel’s supervisor.
Mr. Dusel complained this substantially increased his commute and diminished his job responsibilities.
In July 2018, FM Global began an audit of HBM’s cellphone account after a departed employee sought to retain his cellphone, and learned that Mr. Dusel had three cellphone lines, two of which belonged to his wife and daughter, which had been charged to the company’s account for several years, and the company had never been reimbursed for these expenses.
Concurrently with the cellphone investigations, surveillance footage of an HBM-owned building indicated that Mr. Dusel had likely been stealing food from the facility during after-work hours or on weekends for several years.
Mr. Dusel was terminated in September 2018 on the grounds he had violated the company’s code of conduct and for misappropriation of company services and property.
Mr. Dusel filed suit against the company alleging age discrimination and retaliation. The U.S. District Court in Boston granted FM Global summary judgment and was affirmed by a three-judge appeals court panel.
FM Global “has proffered legitimate, nondiscriminatory reasons for Dusel’s termination, viz., Dusel’s violation of company policy vis-à-vis his use of the company’s cellphone lines, his apparent attempt to conceal said behavior from FM Global investigators, and his after-hours visits to company facilities which led FM Global to conclude he had been engaging in food theft,” the ruling said, in affirming the lower court.
Attorneys in the case did not respond to requests for comment.