Attard v . Benoit et a l . CV-06-355-PB 12/12/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas L . Attard
v. Civil N o . 06-cv-355-PB Opinion N o . 2007 DNH 155 Jean Benoit, et a l .
MEMORANDUM AND ORDER
Thomas Attard was hired as a tenure-track faculty member in
the civil engineering department at the University of New
Hampshire (“UNH”). After receiving a notice of non-
reappointment, Attard sued UNH and Jean Benoit, chairman of the
civil engineering department. He asserts claims for wrongful
termination, breach of contract, misrepresentation, and tortious
interference with a contractual relationship. UNH and Benoit
have moved for summary judgment. For the reasons that follow, I
grant the motion in part and deny it in part.
I. BACKGROUND1
A. Letter of Appointment
Attard accepted a tenure-track position as an Assistant
Professor of Civil Engineering at UNH in April 2003. His letter
1 I construe the facts in the light most favorable to Attard, the non-moving party. See Latin Am. Music C o . v . Archdiocese of San Juan of the Roman Catholic & Apostolic Church, 499 F.3d 3 2 , 38 (1st Cir. 2007). of appointment states that his job will begin on August 2 3 , 2003,
and that UNH will make a decision on tenure “no later than July
2009.” Attach. to Ex. 1 , Mot. for Summ. J. (June 2 7 , 2007)
(Letter from Jean Benoit to Thomas Attard, at ¶ 1 (May 1 , 2003)).
The letter also specifies that
You will also be provided with a start-up fund of $105,000, which you can use to support your research initiation efforts including the purchase of equipment, 2/9th of summer salary, summer graduate support and other related scholarly activities. An additional amount of $15,000 would be made available as matching money for a research grant proposal for external funding for the construction of a Ling machine. The use of the College of Engineering and Physical Sciences machine shop will also be provided at no-cost for the first three years towards the fabrication of the Ling machine. This start-up fund will be provided to you over a period of 2 to 3 years.
Id. The letter does not explicitly identify the length of
Attard’s employment contract. Nor does it provide any additional
details concerning his terms of employment. Instead, it states
that Attard’s employment will be “governed by the UNH American
AAUP Collective Bargaining Agreement.” Id. Article 14 of the
relevant Collective Bargaining Agreement provides:
Appointments of non-tenured bargaining unit members expire at the end of each appointment year (academic or fiscal). Notice of non-reappointment shall be given to faculty based on the faculty member’s length of service
-2- at the end of the appointment year: • One (1) year or less; notice by March 1 • Greater than one (1) year but less than two ( 2 ) ; notice by December 15 • Equal to or greater than two (2) years; notice twelve (12) months prior to the expiration of the appointment. (For purposes of this Article only, academic year appointments are assumed to expire on May 15 t h . Fiscal year appointments expire on June 30 th .)
Collective Bargaining Agreement, University of New Hampshire, and
University of New Hampshire Chapter of the American Association
of University Professors, § 141 (July 1 , 2003 - June 3 0 , 2006)
(“CBA”). The CBA also states
At the time of initial appointments, a tenure-track faculty member shall be notified in writing that a decision on tenure in his/her case will be reached no later than the end of a certain number of years of full-time service. A tenure decision may be reached before the time so stated, but it shall not be deferred beyond that time. An affirmative tenure decision shall lead to the award of tenure, effective the first day of the following appointment year. A negative tenure decision in the mandatory year shall be followed by a notice of non-reappointment effective at the end of the following appointment year.
2003 CBA at § 13.9.1.
B. Employment History
The relationship between Attard and Benoit became
increasingly tense during Attard’s employment. Beginning in the
fall of 2003, Benoit made inappropriate sexual comments about
-3- female students in Attard’s presence and suggested that one of
Attard’s foreign Ph.D. students looked like a terrorist. Attard
expressed disapproval of Benoit’s comments and later reported
them to the University’s Affirmative Action and Equity Office in
October 2005.
Benoit also interfered with Attard’s research and teaching.
In the fall of 2003, Benoit urged Attard to include two
department colleagues, Professors Bell and Cook, in Attard’s
research proposal for the development of a shaking table
facility. The inclusion of Bell and Cook slowed Attard’s
research significantly. Cook’s design for the table was faulty
and had to be changed in the summer of 2004. In addition, Bell
was on a year-long paid medical leave for the 2004-05 academic
year. Because of Bell’s absence, Benoit refused Attard’s
November 2004 and January 2005 requests for access to the start-
up funds required to purchase components for the project.
Benoit also asked Attard to teach an extra course in the
fall of 2004 because Bell was on medical leave. This added
responsibility took away from Attard’s research time. In
addition, both of the classes that Attard planned to teach in the
spring of 2005 were cancelled because he was required to teach
-4- another of Bell’s scheduled classes as well as a class that was
regularly taught by Cook. Attard asked Benoit to reconsider the
cancellations and submitted a letter and a list of petitioning
students, but his request was denied.
In the fall of 2004, Benoit disapproved of Attard’s decision
to allow a teaching assistant to cover two of Attard’s class
lectures and criticized Attard for missing too many faculty
meetings. In December 2004, Benoit directed Cook to re-
administer the student evaluations in one of Attard’s classes
because the original evaluations were given before Attard
announced that there would be an exam during the last week of
classes. Attard asked Benoit to reconsider and discussed the
situation with an AAUP representative, but the evaluations were
re-administered and no action was taken on Attard’s letter of
protest to Arthur Greenberg, the Dean of the College of
Engineering and Physical Sciences.
In February 2005, Benoit met with Attard and suggested that
UNH was “not a good fit” for Attard, telling Attard that his
research would be better served by a larger university with Ph.D.
students. Attard consulted with the AAUP in March 2005 to see if
the union could assist with the situation, but the union
-5- representative stated that the union could not help him resolve
the case and recommended that Attard contact an attorney. On May
1 0 , 2005, Attard was notified that Dean Greenberg had accepted
the Civil Engineering Department’s recommendation of non-
reappointment. Attard was instead given a one-year position that
concluded on May 1 5 , 2006.
II. STANDARD OF REVIEW
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). A party seeking summary judgment must first identify the
absence of a genuine issue of material fact. Celotex Corp. v .
Catrett, 477 U.S. 3 1 7 , 323 (1986). The burden then shifts to the
nonmoving party to “produce evidence on which a reasonable finder
of fact, under the appropriate proof burden, could base a verdict
for i t ; if that party cannot produce such evidence, the motion
must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co., 95
F.3d 8 6 , 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
-6- III. ANALYSIS
Attard asserts claims for wrongful termination against UNH2
(Count I ) , tortious interference with contractual relations
against Benoit (Count I I ) , misrepresentation against UNH and
Benoit (Count I I I ) , and breach of contract against UNH (Count
IV). Defendants seek summary judgment, arguing that: (1) Attard
is a contract employee and New Hampshire law only allows at-will
employees to sue for wrongful termination; (2) Section 301 of the
Labor Management Relations Act (LMRA), 29 U.S.C. § 185, preempts
Attard’s claims for tortious interference, misrepresentation, and
breach of contract; and (3) the evidence will not support viable
claims for tortious interference, misrepresentation, and breach
of contract even if the claims are not preempted. I address each
argument in turn.
A. Wrongful Termination
Attard alleges that he was wrongfully terminated because he
refused to condone Benoit’s habit of making inappropriate sexual
comments about female students. UNH argues that it is entitled
2 I previously granted judgment on the pleadings with respect to Attard’s wrongful discharge claim against Benoit. Attard v . Benoit, 2007 DNH 063, May 4 , 2007.
-7- to summary judgment on this claim because Attard was a contract
employee, and contract employees cannot bring wrongful
termination claims. I reject this argument because it is based
on the incorrect premise that New Hampshire law does not permit
contract employees to sue for wrongful termination.
The New Hampshire Supreme Court confirmed in 2004 that
wrongful termination is a cause of action in tort, not contract.
Porter v . City of Manchester, 151 N.H. 3 0 , 28 (2004). While the
New Hampshire Supreme Court has not yet explicitly held that
contract employees are entitled to bring wrongful discharge tort
actions, the court’s reasoning in Porter leaves little room for
the argument that an employee should be deprived of the ability
to seek relief for the tort of wrongful termination simply
because he also has the benefit of an employment contract.
Moreover, defendants have failed to point to any unusual facts in
this case that require such a result here. Accordingly, I reject
defendants’ argument that Attard is barred from suing for
wrongful discharge simply because he is a contract employee.
To succeed on his wrongful discharge claim, Attard must
establish that he was terminated for performing an act that
public policy would encourage or for refusing to do something
-8- that public policy would condemn. See Lacasse v . Spaulding Youth
Ctr., 154 N.H. 246, 248 (2006). In attempting to meet this
requirement, Attard has produced evidence that gives rise to a
genuine factual issue as to whether his termination was motivated
in part by his refusal to countenance Benoit’s “locker room talk”
concerning female students. The New Hampshire Supreme Court has
recognized that the question of whether or not a public policy
exists is ordinarily a jury question. Short v . Sch. Admin. Unit
N o . 1 6 , 136 N.H. 7 6 , 84 (1992). This is the case here. Thus, a
jury must also decide whether the public interest in encouraging
employees to object to a professor’s inappropriate sexual remarks
about students is sufficiently strong to serve as the basis for a
wrongful termination claim.
B. Labor-Management Relations Act Preemption
Defendants argue that Attard’s claims for breach of
contract, misrepresentation, and tortious interference with a
contractual relationship should be dismissed because they are
preempted by § 301 of the Labor-Management Relations Act
(“LMRA”). Section 301 of the LMRA provides in pertinent part:
(a) Venue, amount, and citizenship Suits for violation of contracts between an employer and a labor organization representing employees in an
-9- industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a).
The United States Supreme Court has interpreted § 301 to
preempt the application of state law in any case that depends on
the interpretation of a collective bargaining agreement. See,
e.g., Lingle v . Norge Div. of Magic Chef, 486 U.S. 399, 405-06
(1988). If a dispute only tangentially implicates a collective
bargaining agreement, however, the claim is not necessarily
preempted by § 301. See, e.g., Allis-Chalmers Corp. v . Lueck,
471 U.S. 2 0 2 , 211 (1985); Fant v . New Eng. Power Serv. Co., 239
F.3d 8 , 15 (1st Cir. 2001). For example, the Supreme Court has
held that claims involving a purely factual inquiry about the
conduct of an employee and the conduct and motivation of an
employer are not subject to § 301 preemption because they do not
turn on the meaning of any provision in a collective bargaining
agreement. See Lingle, 486 U.S. at 407.
1. Breach of Contract Claim
Attard alleges that UNH breached his contract in two main
-10- ways. First, Attard alleges that he had a six-year employment
contract with UNH that the university breached by prematurely
dismissing him before July 2009. Second, Attard alleges that UNH
breached his contract by denying him the use of a promised start-
up fund of $105,000. UNH responds by arguing that both aspects
of Attard’s breach of contract claim should be dismissed because
they are preempted by the LMRA. For the reasons discussed below,
I hold that the LMRA preempts Attard’s breach of contract claim
for premature dismissal, but does not bar his claim that UNH
breached his employment contract by refusing to provide him with
the start-up funds referenced in his letter of appointment.
(a) Breach of Contract – Dismissal
Attard alleges that he understood that his appointment was
to be for a minimum of six years because the letter of
appointment implied that his employment contract was for a six-
year position. In support of his allegation, Attard cites
language in the letter of appointment stating that a tenure
decision will be made no later than July 2009, that he will be
allowed to use the machine shop at no cost for the first three
years of his appointment, and that a start-up fund will be
provided over a period of 2 to 3 years. UNH points out, however,
-11- that the second sentence of the letter of appointment states that
the appointment is governed by the CBA. As quoted above, Article
14 of the 2003 CBA provides that appointments of non-tenured
bargaining unit members expire at the end of each appointment
year. CBA § 14.1. Attard responds by arguing that his
employment is governed by Article 13 rather than Article 14
because he is a tenure-track employee.
I cannot resolve Attard’s claim that UNH breached his
employment contract when it dismissed him without interpreting
the CBA. Accordingly, I hold that this claim is preempted by the
LMRA.
(b) Breach of Contract – Start-up Funds
Attard also alleges that UNH breached his employment
contract by failing to provide him with the start-up funds
promised in the letter of appointment. The CBA is silent on both
the issue of start-up funds and the university’s duty to provide
promised research funds to a faculty member. Therefore, Attard’s
claim for breach of contract based on UNH’s failure to provide
the promised start-up funds does not require interpretation of
the CBA and, thus, is not is preempted by the LMRA. Defendant’s
motion for summary judgment on Attard’s breach of contract claim
-12- is denied to the extent that Attard claims breach of contract
based on failure to provide start-up funds.
2. Misrepresentation
Attard alleges that UNH and Benoit misrepresented the nature
of his employment contract when they caused him to believe that
his appointment was for a minimum term of six years. Attard
argues that this misrepresentation induced him to accept the
employment contract with UNH. In contrast, UNH and Benoit argue
that they made no misrepresentation and contend that they are
entitled to summary judgment on Attard’s misrepresentation claim
because it is preempted by § 301 of the LMRA.
The elements of fraudulent misrepresentation3 in New
Hampshire require Attard to prove that: (1) the defendant
misrepresented a material fact to the plaintiff, (2) with
knowledge of its falsity, (3) with the fraudulent intent that
3 Attard pleads a claim for “misrepresentation” and discusses his claim as “misrepresentation in the inducement” in his memorandum in opposition to defendant’s motion for summary judgment. It is somewhat unclear whether Attard is seeking relief for fraudulent misrepresentation or negligent misrepresentation, but his claim is most appropriately characterized as a fraud claim because his complaint does not explicitly allege negligence by asserting that UNH and Benoit had a specific duty that was breached.
-13- plaintiff would rely upon i t , and that (4) plaintiff justifiably
relied on the misrepresentation without knowledge of its falsity.
Alternative Sys. Concepts, Inc. v . Synopsys, Inc., 374 F.3d 2 3 ,
30 n.5 (1st Cir. 2004); Snierson v . Scruton, 145 N.H. 7 3 , 77
(2000).
Attard does not base his misrepresentation claim on the 2003
CBA. Accordingly, Attard’s misrepresentation claim is not
preempted by § 301 of the LMRA. See Lingle, 486 U.S. at 407.
3. Tortious Interference with Contract
Attard alleges that Benoit tortiously interfered with his
contractual relationship with UNH by setting up conditions that
were contrary to the employment contract. Benoit denies the
allegations and argues that Attard’s claim is preempted by § 301
of the LMRA.
In New Hampshire, a claim for intentional interference with
contractual relations is established when plaintiff shows: (1)
plaintiff had an economic relationship with a third party; (2)
the defendant knew of this relationship, (3) the defendant
intentionally and improperly interfered with this relationship,
and 4 ) the plaintiff was damaged by such interference. Hughes v .
N.H. Div. of Aeronautics, 152 N.H. 3 0 , 40-41 (2005). Attard
-14- claims that Benoit interfered with his contractual relationship
with UNH by preventing Attard from drawing on the start-up funds
authorized by his contract, lying to the Promotion and Tenure
Committee, and undermining the student evaluation process.4
Attard’s claim does not require interpretation of the CBA
because the claims he raises merely involve questions of employee
and employer conduct. There is nothing in the CBA that governs
how student evaluations or start-up funds are to be handled,
other than § 13.1.4, which provides that “[m]embers of the
bargaining unit will be expected to participate in required
student evaluations of teaching.” CBA § 13.1.4. Similarly,
Attard’s claim that Benoit lied to the Promotions and Tenure
Committee involves only an inquiry into the conduct of the
parties, not an interpretation of the CBA. Thus, this claim is
not preempted by § 301 of the LMRA.
4 In his complaint, Attard also claims that Benoit tortiously interfered with his contractual relationship with UNH by “failing to follow the employment contract and the CBA by undertaking to recommend summary dismissal of Attard.” Compl. ¶ 6 5 . Failure to follow a contract and CBA gives rise to a breach of contract claim, not a tortious interference claim. Because Attard cannot recover for tortious interference based on this claim, I do not address it here.
-15- C. Evidentiary Deficiencies
Although Attard’s claims for tortious interference with a
contractual relationship and misrepresentation are not preempted
by the LMRA, they nevertheless fail because Attard has not
submitted enough evidence to demonstrate that he can succeed on
either claim.
1. Tortious interference with contractual relationship
Attard’s tortious interference claim against Benoit fails
because the undisputed evidence demonstrates that Benoit was
acting in the scope of his employment when he engaged in the
conduct that Attard claims interfered with his contractual
relationship with UNH. While the New Hampshire Supreme Court has
not yet addressed the issue of whether a co-employee can be
liable for tortious interference with a contract between a co-
employee and the employer, the majority of courts that have
addressed this issue have held that a co-employee cannot be a
third party for the purpose of interfering with the plaintiff’s
contractual relationships, if that co-employee is acting within
the scope of his employment. See, e.g., Albert v . Loksen, 239
F.3d 256, 274-75 (2d Cir. 2001); Fioriglio v . City of Atlantic
City, 996 F. Supp. 379, 392-93 (D.N.J. 1998), aff’d 185 F.3d 861
-16- (3d Cir. 1999); Alexander v . Fujitsu Bus. Commc’n Sys., 818 F.
Supp. 4 6 2 , 469 (D.N.H. 1993); Nordling v . N . States Power Co.,
478 N.W.2d 4 9 8 , 507 (Minn. 1991).
This general rule is premised on basic principles of agency.
For example, in New Jersey, courts support this general rule by
recognizing that employees acting within the scope of their
employment are generally immune from tort liability. Fioriglio,
996 F. Supp. at 392-93. Similarly, in New York, courts recognize
that an agent cannot be held liable for inducing a principal to
breach a contract with a third party when he is acting within the
scope of his authority on behalf of the principal. Kartiganer
Assoc., P.C. v . Town of New Windsor, 485 N.Y.S.2d 782 (N.Y. App.
1985).
In this case, the undisputed evidence demonstrates that
Benoit was acting within the scope of his employment when he
engaged in the relevant conduct. It was in his capacity as
chairman of the civil engineering department that Benoit
controlled Attard’s access to the start-up funds, administered
the student evaluations, and participated in the decision making
process that led to Attard’s non-reappointment. Benoit acted as
an agent of the university, and therefore he cannot be considered
-17- a “third party” with respect to this claim.5
The evidence submitted by Attard does not support an
actionable claim for fraudulent misrepresentation. Significantly,
Attard fails to allege that either UNH or Benoit ever actually
represented that they were hiring Attard for a minimum of six
years. At most, Attard suggests that there was an implied
misrepresentation, citing as evidence both an April 2003 e-mail
from Benoit to Attard stating that UNH was “interested in having
someone commit to this place for the long term” and references in
Attard’s letter of appointment to future events such as the
provision of start-up funds and a tenure decision. This is not
sufficient to permit a reasonable jury to conclude that either
Benoit or UNH made any actionable misrepresentations. In
addition, Attard has not submitted sufficient evidence to permit
a reasonable jury to conclude that he reasonably relied on any
misrepresentations that were made. See Snierson, 145 N.H. at 7 7 .
Essentially, Attard seeks to impose liability on UNH and Benoit
5 Attard’s allegations that Benoit acted in bad faith by retaliating against Attard for his disapproval of Benoit’s alleged lewd and sexist remarks are appropriately addressed in the context of Attard’s wrongful termination claim.
-18- for his own misunderstanding of his employment contract. Because
Attard has failed to allege enough evidence to permit a
reasonable jury to conclude that defendants committed the tort of
fraudulent misrepresentation, his claim fails as a matter of law.
IV. CONCLUSION
In summary, defendants’ motion for summary judgment (Doc.
N o . 19) granted in part and denied in part. The motion is denied
with respect to Attard’s wrongful termination claim and breach of
contract claim for failure to provide promised start-up funds.
Defendants’ motion is granted with respect to Attard’s breach of
contract claim for premature dismissal because that claim is
preempted by the LMRA, and granted with respect to Attard’s
misrepresentation and tortious interference claims because Attard
failed to proffer sufficient evidence to support those claims.
SO ORDERED.
/s/Paul Barbadoro ____ Paul Barbadoro United States District Judge December 1 2 , 2007
cc: Paul McEachern, Esq. Martha Van Oot, Esq.
-19-