Dusel v. Factory Mutual Insurance Company

Filing 132

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND 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 l eave 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 defendants stat ement 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 Globals counterclaims (Docket No. 92) is DENIED;(f) the motion of FM Global for summary judgment on plaintiffs affirmative claims (Docket No. 83) is ALLOWED; and(g) plaintiffs 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."(Lima, Christine)

Case 1:19-cv-11698-NMG Document 132 Filed 07/14/21 Page 1 of 28

United States District Court
District of Massachusetts
)
)
)
Plaintiff and Defendant )
in Counterclaim,
)
)
v.
)
)
Factory Mutual Insurance Company, )
d/b/a FM Global,
)
)
Defendant and Plaintiff )
in Counterclaim.
)
)
Thomas Dusel,

Civil Action No.
19-11698-NMG

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

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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

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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.

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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.

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Security camera

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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.

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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 afteracquired evidence.

Defendant responds that the evidence is

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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 NievesVillanueva 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).
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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.

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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 afteracquired 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
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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).

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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
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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

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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

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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
(that is, over forty years of age); (2)
or] her job at an acceptable level; (3)
(4) was replaced by a similarly or less
person.

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by G. L. c. 151B
had performed [his
was terminated; and
qualified younger

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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

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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
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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
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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).

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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

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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.

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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.

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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.

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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

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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.
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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

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(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

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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;

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(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

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