Would Chris Bosio Win a Wrongful Termination Suit?

Last week, Detroit Tigers pitching coach Chris Bosio was fired by GM Al Avila for what was then described as “making an insensitive comment directed at a team employee.” Though he didn’t disclose the nature of the insensitive comment at the time, Avila said that the team has a “zero tolerance” policy for the conduct in question, adding that he holds team employees “to the highest standards of personal conduct on and off the field.”

Later, however, ESPN reported that Bosio was fired for calling someone a “spider monkey.”  The Tigers and Bosio differ, however, on the person to whom Bosio was referring. Bosio insists that “Spider Monkey” is a nickname for Tigers LOOGY Daniel Stumpf, currently on the disabled list. Per USA Today’s Bob Nightengale:

Bosio insists he was not using the word in a racial and disparaging context, and that it was not directed toward the clubhouse attendant. He says he referring to injured pitcher Daniel Stumpf, a white pitcher from Humble, Texas.

“Someone in our coaches’ room asked me (Monday afternoon) about Stumpf,” Bosio said. “And I said, “Oh, you mean, ‘Spider Monkey.’ That’s his nickname. He’s a skinny little white kid who makes all of these funny faces when he works out.

“The kid thought we were talking about him. He got all upset. He assumed we were talking about him. I said, “No, no, no. We’re talking about Stumpf.’

“And that was it. I swear on my mom and dad’s graves, there was nothing else to it.”

But other witnesses relayed to Ken Rosenthal and Katie Strang of the Athletic a very different story:

Bosio called the attendant, who is African-American, a “monkey,” according to four team sources. The remark was directed toward the young man, who was collecting towels from the coaches’ room at the time, during a post-game gripe session in which Bosio was lamenting about a pitcher.

During this exchange, Bosio made a derogatory comment about one of the Tigers pitchers and then gestured toward the attendant before adding, “like this monkey here,” the sources said. The attendant pushed back at Bosio for the comment, and an additional team employee witnessed the exchange. Bosio was provided an opportunity to apologize to the attendant after his outburst but declined to do so, according to multiple sources.

And Stumpf himself didn’t back up Bosio, either.

“‘Spider Monkey’ is not a nickname I have been called or I’m familiar with,” Daniel Stumpf said. https://t.co/0iEXzDxyvu

— anthony fenech (@anthonyfenech) June 29, 2018

Bosio is insistent that he was wrongfully terminated — so much so, in fact, that he has threatened to sue the team for wrongful termination. To make out a claim for wrongful termination, a plaintiff generally has to prove that they were fired for an impermissible reason. Most often, that impermissible reason relates to whether the fired employee was terminated for being a member of what’s called a “protected class.” Depending on the state, that includes things like race, gender, gender identity, religion, national origin, disability, and citizenship or immigration status. But Bosio, as a straight, cisgender, white male, doesn’t appear to be a member of a protected class, and there’s no evidence he was terminated for being any of those things in any event.

Michigan law also provides for other bases to bring wrongful termination claims.

Written Contracts: Any written contracts that cover employment and termination will be considered according to both contract law and employment law. Generally, the written contract will govern the terms of the employment and the employment will not be considered “at-will.” Violations of contract terms may form the basis of a wrongful discharge lawsuit.

Oral Promises: Michigan will also consider whether your employer made any oral promises regarding your termination procedures. For example, if they told you that they would not fire you within the next six months, and you relied on this promise to your detriment, it may be considered wrongful termination. However, the oral promise exception is very difficult to prove and will be subject to rigorous analysis in court.

Public Policy Violations: Employers in Michigan may not terminate at-will employees if the termination violates public policy. Examples of public policy violation include firing an employee in retaliation for reporting health and safety violations or for firing an employee who refuses to commit an illegal act.

Legitimate Expectations: If your employer has created an environment that causes an employee to believe that certain practices are applicable to all employees, this may create a “legitimate expectation” in the mind of the employee. For example, language contained in an employee handbook can cause an employee to reasonably expect their employer to follow certain termination procedures.

In practice, oral promises are incredibly hard to prove, and don’t seem applicable here anyway. “Public policy” is hard to define, but lawyers generally use it to denote what we, as a society, have decided is the Right Thing to Do. So, for instance, requiring an employee to sell cocaine or kill business rivals would violate public policy. That doesn’t seem to apply here, either. The other options are for breach of a written contract and breach of “legitimate expectations,” which in some states is also known as “reasonable reliance.”

Bosio’s strongest claim would probably be for breach of a written contract. Michigan is an at-will employment state, which generally means that an employer can legally fire an employee at any time for almost any reason. But at-will employment doesn’t apply to contract employees, and Bosio, like nearly all other major-lkeague managers and coaches, worked for the Tigers pursuant to a written contract. When the Tigers fired Bosio, they terminated his contract.

In a vacuum, terminating an employee under contract before the end of the term (length) of that contract would be a breach of that contract. That’s because, when an employer signs a contract with an employee, the employer is promising to employ, and pay, the employee for the entirety of the contract term. It’s similar to a lease, where you agree to pay rent for a certain period of time. But there are reasons, called affirmative defenses, which excuse performance of a contract. And one of them is that the other party breached first. In other words, if you and I agree that I’ll pay you $10 for a ticket to a Yankees-Red Sox game, you are excused from giving me the ticket if I don’t give you the money. And the same applies to Bosio’s situation: if Bosio’s comment breached his contract with the Tigers, then the club was legally excused from continuing to employ him and could legally end his contract before the term was up.

Coaches’ written contracts aren’t publicly available. But players’ contracts have clauses requiring certain standards of personal conduct like this:

And this:

Most written employment contracts have similar language, requiring employees to comply with employer rules and generally not do anything to bring disrepute upon the employer. The phrase “high standards of personal conduct” is obviously pretty vague, but if the team really does have rules against racial epithets as Avila says, Bosio’s statement is almost certainly covered. And — assuming Bosio isn’t telling the truth — calling an African-American clubhouse attendant a “monkey” almost certainly violates even the vague “personal conduct” language.

If Bosio is telling the truth, however, and if there aren’t specific written rules, Bosio may have a claim under those “legitimate expectations.” In other words, an employee can’t be terminated for reasonably relying on those written and oral policies that an employer made them aware of, and for not following rules they weren’t aware of. But that seems a stretch, for a few reasons. Multiple reports have indicated that Detroit does, in fact, have a personal conduct policy. And, from a practical perspective, reports indicate that there seem to be far more witnesses supporting the Tigers’ version of events than Bosio’s. In fact, Des Bieler at the Washington Post relayed that this one incident may have been just the tip of the iceberg.

There was more to it for the Tigers, who said they included legal counsel in interviewing people involved in the incident before the team’s general manager, Al Avila, decided to terminate Bosio’s contract. “We know what we did, and why we did it, and we’ll see where it goes from there,” Avila told Nightengale.

Similarly, The Detroit News‘ Lynn Henning passed this along:

Bosio had been a problem since the start of spring training, not because of any serious flaws on the pitching or tutorial side, but because of the occasionally abusive way in which he treated people.

Although pitchers generally liked his approach and his style, it was his demeanor outside of a narrow pitching construct that had made him increasingly a problem, particularly with fellow coaches who disliked him, the source told The Detroit News.

And, while it may be entirely unconnected, it’s also worth noting that Bosio had a surprising and unceremonious exit from Chicago’s North Side late last year.

Ultimately, we weren’t there and we don’t know what happened. But based on the reports we do have, Bosio has an uphill climb here. Whereas Bosio may have a prima facie case for wrongful termination, it does not seem as though it would be a winning one. And he runs a significant risk of making this worse for himself depending on what comes out in discovery and at trial in any case he brings. On the surface, at least, it seems that the Tigers made the right decision.