Gavin v . Liberty Mutual 11-cv-159-LM 9/5/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Linda Gavin
v. Civil N o . 11-cv-159-LM Opinion N o . 2012 DNH 154 Liberty Mutual Group Inc.
O R D E R
In a case that has been removed from the New Hampshire
Superior Court, Linda Gavin is suing her former employer,
Liberty Mutual Group Inc. (“Liberty Mutual”), in three counts,
asserting claims for constructive discharge (Count I ) , wrongful
termination (Count I I ) , and enhanced compensatory damages (Count
III). 1 Before the court are: (1) Liberty Mutual’s motion for
summary judgment; and (2) its motion to strike portions of
Gavin’s memorandum of law in opposition to summary judgment and
her affidavit in support thereof.2 Gavin objects to both
motions. For the reasons that follow, Liberty Mutual’s motion
1 Gavin makes her request for enhanced compensatory damages in a separate count, but both parties appear to agree that her complaint actually asserts only two claims: one for constructive discharge and one for wrongful termination. The court agrees with the parties. See Minion Inc. v . Burdin, 929 F. Supp. 5 2 1 , 523 (D.N.H. 1996) (“Under New Hampshire law, a claim for enhanced damages is not a separate cause of action; it is a request for a particular remedy.”). 2 Also filed, but not yet ripe for decision, is Liberty Mutual’s motion to compel. for summary judgment is granted and, as a result, its motion to
strike is denied as moot.
Summary Judgment Standard
“To prevail on summary judgment, the moving party must show
that ‘there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’”
Markel Am. Ins. C o . v . Díaz-Santiago, 674 F.3d 2 1 , 29 (1st Cir.
2012) (quoting Fed. R. Civ. P. 56(a)). “[A]n issue of fact is
genuine if ‘a reasonable jury could resolve it in favor of
either party.’” Markel, 674 F.3d at 29-30 (quoting Basic
Controlex Corp. v . Klockner Moeller Corp., 202 F.3d 4 5 0 , 453
(1st Cir. 2000)). “In determining whether a genuine issue of
material fact exists, [the court] construe[s] the evidence in
the light most favorable to the non-moving party and make[s] all
reasonable inferences in that party’s favor.” Markel, 674 F.3d
at 30 (citing Flowers v . Fiore, 359 F.3d 2 4 , 29 (1st Cir.
2004)).
“The object of summary judgment is to ‘pierce the
boilerplate of the pleadings and assay the parties’ proof in
order to determine whether trial is actually required.’” Dávila
v . Corporación de P.R. para la Diffusión Pública, 498 F.3d 9, 12
(1st Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc., 386
F.3d 5 , 7 (1st Cir. 2004)). “[T]he court’s task is not to weigh
2 the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Noonan
v . Staples, Inc., 556 F.3d 2 0 , 25 (1st Cir. 2009) (citations and
internal quotation marks omitted).
“The nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.” Sánchez-Rodríguez v . AT&T
Mobility P.R., Inc., 673 F.3d 1 , 9 (1st Cir. 2012) (quoting
Iverson v . City of Boston, 452 F.3d 9 4 , 98 (1st Cir. 2006)).
“However, ‘a conglomeration of conclusory allegations,
improbable inferences, and unsupported speculation is
insufficient to discharge the nonmovant’s burden.’” Sánchez-
Rodríguez, 673 F.3d at 9 (quoting DePoutot v . Raffaelly, 424
F.3d 1 1 2 , 117 (1st Cir. 2005)). “Rather, the party seeking to
avoid summary judgment must be able to point to specific,
competent evidence to support his [or her] claim.” Sánchez-
Rodríguez, 673 F.3d at 9 (quoting Soto-Ocasio v . Fed. Ex. Corp.,
150 F.3d 1 4 , 18 (1st Cir. 1998)) (internal quotation marks
omitted).
Background
The following factual recitation is drawn largely from the
statement of undisputed material facts in Liberty Mutual’s
memorandum of law. While Gavin devotes a considerable portion
3 of her memorandum to a host of factual issues, she challenges
only two of the facts from Liberty Mutual’s statement in the
manner required by the Local Rules of this district. That i s ,
she does not respond to Liberty Mutual’s factual statement by
incorporating into her memorandum “a short and concise statement
of material facts, supported by appropriate record citations, as
to which [she] contends a genuine dispute exists so as to
require a trial.” LR 7.2(b)(2). That said, the court turns to
the basic facts of this case.
Gavin began working for Liberty Mutual in 2002. In 2004,
she was promoted to the position of assistant controller in the
cash-management department. Her immediate superior was John
Salmon. “In November of 2007, M r . Salmon . . . met with [Gavin]
regarding her job performance and provided her a detailed
memorandum regarding her shortcomings with regard to
communication and other issues.” Def.’s Mem. of Law (doc. no
2 6 - 1 ) , at 3 . Liberty Mutual supports that statement with a copy
of the memorandum Salmon gave Gavin. Gavin attempts to create a
triable issue regarding the November 2007 meeting in the
following way:
Liberty [Mutual] now also claims in its Motion for Summary Judgment (“Motion”) that Salmon had discussions with Gavin in late 2007 detailing instances of Gavin’s communication problems. This flies in the face of the draft warning prepared by Salmon as to [a] January 1 6 , 2008 meeting, and attached hereto as Exhibit O. No reasons for a performance warning are set out in Exhibit O , and the reasons are simply marked with three (3) x’s.
4 More significantly, Exhibit O states after the three (3) x’s “how do you feel about this/Are you surprised by it?” If Salmon had met with Gavin and had given her detailed instances of Gavin’s communication problems or other issues prior to the January 1 6 , 2008 meeting, it would make no sense to ask her “how do you feel about this/Are you surprised by it?”
Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 15 (emphasis in the
original). While Gavin appears to suggest that Salmon did not
meet with her in November of 2007 or did not talk to her about
communication problems, she did not deny either the fact of the
November discussion or its content in the affidavit she
submitted in support of her objection to summary judgment. In
any event, Gavin’s speculation and inferences, see Sánchez-
Rodríguez, 673 F.3d at 9, are insufficient to create a factual
basis from which a reasonable jury could find either that Salmon
did not meet with her in November of 2007, or that he did not
discuss her job performance with her, which are the relevant
factual statements she appears to challenge, see Markel, 674
F.3d at 29-30 (describing the dimensions of a genuine issue of
fact, for purposes of summary judgment).
On January 4 , 2008, Gavin sent an e-mail containing
confidential information about another employee by using the
“reply all” button rather than the “reply” button, which
resulted in the transmission of that information to people who
should not have received i t . Salmon got the e-mail and went to
5 Gavin’s office to speak with her about i t . When he saw how
upset she was, he told her to go home.
Gavin did go home, and reported to Liberty Mutual that she
was ill and would be out of work for some time. She returned to
work on January 1 6 , having used approximately eight days of
flexible time off (“FTO”), which was one of her employment
benefits. The day Gavin returned to work, Salmon met with her
to discuss her performance. At that meeting, Salmon gave Gavin
two options. The first was to continue as an assistant
controller in the cash-management department and receive a
written warning concerning her job performance. The second was
to take a six- to nine-month assignment in the treasury
department, while receiving her full compensation and benefits.
Salmon told Gavin that if she took the second option, and did
not obtain another position at Liberty Mutual before the
temporary position expired, she would be eligible for severance
pay. “During the January 1 6 , 2008 meeting, [Gavin] informed M r .
Salmon that she would accept the temporary position in the
Treasury Department.” Def.’s Mem. of Law (doc. n o . 2 6 - 1 ) , at 5 .
Although Gavin disputes the voluntariness of her acceptance of
the temporary position, she does not dispute the fact that she
accepted the position, on whatever terms it was offered.
On March 1 9 , Gavin sent a letter to Salmon that stated, in
pertinent part: “I hereby submit my resignation from my position
6 at Liberty Mutual effective April 4 , 2008.” Def.’s Mot. Summ.
J., Ex. D (doc. n o . 2 6 - 5 ) . At her deposition, Gavin was asked
why she did not stay at Liberty Mutual through the end of her
temporary assignment. She explained her early departure this
way:
I did what any reasonable person would do under the circumstances. I had a family. I had a kid in college. I was in a temporary position that I knew . . . would end. It was a poor economy. I mitigated my losses by looking [for] and obtaining a full-time permanent job.
Def.’s Mot. Summ. J., Ex. A (Gavin Dep., doc. n o . 2 6 - 2 ) , at 4 3 .
Based on the foregoing, Gavin asserts claims for
constructive discharge and wrongful termination.
Discussion
A . Constructive Discharge
In Count I , Gavin asserts that Liberty Mutual is liable for
constructive discharge because it made her working conditions so
intolerable that she was forced to leave her job. While Count I
incorporates by reference the factual allegations in the thirty-
one paragraphs of the complaint that precede i t , the four
paragraphs of Count I do not specify the working conditions on
which the constructive-discharge claim is based. Liberty Mutual
argues that it is entitled to summary judgment on Count I
because: (1) Gavin abandoned her constructive-discharge claim
7 during her deposition;3 and (2) she has not alleged treatment
sufficiently egregious to state a claim for constructive
discharge.4 Gavin disagrees. There i s , however, a more
fundamental problem with Count I .
Both Gavin and Liberty Mutual treat Count I as if it
asserts a free-standing claim. It does not. Rather, in the
context of this case, constructive discharge is a way of
satisfying the termination element of Gavin’s wrongful-
termination claim. See Lacasse v . Spaulding Youth Ctr., 154
N.H. 246, 248-49 (2006) (“[t]he termination element of [the
plaintiff’s wrongful-termination] claim may be satisfied by
proof of a constructive discharge”); see also Porter v . City of
Manchester, 151 N.H. 3 0 , 37 (2004) (constructive discharge
alleged to satisfy element of constitutional claims); Karch v .
BayBank FSB, 147 N.H. 525, 536 (2002) (“We hold that properly
3 Liberty Mutual’s argument is based on Gavin’s repeated testimony that she was terminated on January 1 6 , 2008. See Def.’s Mot. Summ. J., Ex. A (doc. n o . 2 6 - 2 ) , at 4 , 8 . 4 Liberty Mutual’s argument is not without merit, given the complaint’s vagueness and thinness on this point and the high bar for demonstrating working conditions sufficiently intolerable to result in a constructive discharge, see Porter v . City of Manchester, 151 N.H. 3 0 , 42 (2004) (“the adverse working conditions must generally be ongoing, repetitive, pervasive, and severe”) (quoting 2 M . Rothstein et a l . , Employment Law § 8.7, at 258 (1999)); Marrero v . Goya of P.R., Inc., 304 F.3d 7 , 28 (1st Cir. 2002) (“To prove constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment.”) (quoting Landgraf v . USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992)).
8 alleging constructive discharge satisfies the termination
component of a wrongful discharge claim.”).
In Jeffery v . City of Nashua, the New Hampshire Supreme
Court held “that an action for constructive discharge accrues
when the employee tenders the resignation or retirement notice,”
___ N.H. ___, ___, N o . 2011-516, 2012 WL 2094404, at *4 (June
1 2 , 2012), which might suggest that New Hampshire recognizes a
free-standing cause of action for constructive discharge. But,
in Lacasse, Porter, and Karch, the New Hampshire Supreme Court’s
three principal constructive-discharge opinions, constructive
discharge was not a free-standing claim, but was a method of
proving an element of another claim.
The same holds true for most the opinions from other
jurisdictions on which the court relied in Jeffery. See Whye v .
City Council, 102 P.3d 3 8 4 , 385 (Kan. 2004) (plaintiff alleged
constructive discharge as an element of a wrongful-termination
claim); Daniels v . Mut. Life Ins. Co., 773 A.2d 7 1 8 , 719 (N.J.
Super. C t . App. Div. 2001) (plaintiff alleged constructive
discharge in violation of two New Jersey statutes); Flaherty v .
Metromail Corp., 235 F.3d 133, 136 (2d Cir. 2000) (plaintiff
alleged constructive discharge as an element of claims under
federal, state, and local gender- and age-discrimination laws);
Univ. of Tex. Med. Branch v . Hohman, 6 S.W.3d 7 6 7 , 772-73 (Tex.
App. 1999) (holding that constructive discharge is termination
9 for purposes of Texas Whistleblower A c t ) ; Patterson v . Idaho
Dep’t of Health & Welfare, 256 P.3d 7 1 8 , 721 (Idaho 2011)
(plaintiff alleged constructive discharge in violation of two
Idaho statutes).
The judges of this district have also routinely held that
constructive discharge is not a cause of action. See, e.g.,
Taite v . Peake, N o . 08-cv-258-SM, 2009 WL 81137, at *4 n.4
(D.N.H. Jan. 1 2 , 2009) (“Count IV is captioned ‘constructive
discharge,’ but there is no such cause of action under the
common law of New Hampshire.”); Parker v . MVM, Inc., N o . 05-cv-
380-SM, 2007 WL 1489612, at *5 (D.N.H. May 2 2 , 2007) (“[A]s an
employee-at-will, Parker’s remedies for an alleged constructive
discharge are limited to a tort claim for wrongful discharge.”);
Scannell v . Sears Roebuck & Co., N o . 06-cv-227-JD, 2006 WL
2570601, at *2 (D.N.H. Sept. 6, 2006) (“In her complaint,
Scannell characterizes her claims as constructive discharge.
For purposes of the present motion . . . both parties understand
her claim to allege wrongful termination.”).
To conclude, this court is confident that if the New
Hampshire Supreme Court were to be presented directly with the
question, it would rule that “constructive discharge is not in
itself a cause of action [but] is a defense against the argument
that no suit should lie in a specific case because the plaintiff
left the job voluntarily.” Bohn v . Herald Publ’g Co., N o . 11-
10 10618, 2012 WL 1802621, at *7 (E.D. Mich. May 1 7 , 2012) (quoting
Vagts v . Perry Drug Stores, Inc., 516 N.W.2d 1 0 2 , 104 (Mich. C t .
App. 1994)). That i s , based on the New Hampshire Supreme
Court’s own constructive-discharge jurisprudence, there is every
reason to believe that court would agree with Judge Anderson’s
recent explication:
[C]onstructive discharge is not a cause of action even though it is routinely alleged as a separate count in complaints for wrongful discharge. Because constructive discharge is not an independent cause of action, an underlying cause of action for wrongful termination from employment must exist for the claim to be valid.
Hogwood v . Town of Oakland, N o . 11-2396-STA-dvk, 2012 WL
1414000, at *3 (W.D. Tenn. Apr. 2 3 , 2012) (footnotes omitted).
Because constructive discharge is not a cause of action,5 Liberty
Mutual is entitled to judgment as a matter of law on Count I .
The unavailability of constructive discharge as a cause of
action, however, does not preclude Gavin from alleging and
proving constructive discharge to establish the termination
element of her wrongful-termination claim.
5 Gavin’s decision to assert a claim for constructive discharge may have been influenced by her erroneous belief that an “employee has the right not to be discharged . . . unless the employer has a reasonable cause to do so.” Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 2 2 . Gavin has alleged no facts to suggest that she was anything other than an employee at will, and her claim for wrongful termination, is based on a cause of action created specifically to protect the rights of employees at will. As an employee at will, Gavin was subject to termination without cause. See Cloutier v . Great Atl. & Pac. Tea Co., 121 N.H. 915, 919 (1981).
11 B . Wrongful Termination
In Count II of her complaint, Gavin alleges that Liberty
Mutual terminated her in bad faith, retaliation and/or malice,
and further accuses Liberty Mutual of terminating her for
performing four acts that public policy would encourage and
refusing to perform one act that public policy would condemn.
Specifically, she alleges that she was terminated for:
making reasonable use of [her] sick/vacation or paid time off which was a promised benefit of [her] employment with Liberty [Mutual];
taking advantage of procedures in the Liberty [Mutual] Employee Handbook such as confidentially reporting the treatment of a supervisor to the Human Resources Department;
insisting on being provided with a warning that her performance was unsatisfactory and that she would be counseled about specific changes that were required to bring her performance to satisfactory levels and that she would then be placed on probation pursuant to the Liberty [Mutual] Employee Handbook;
doing her job and working hard; and
refusing [to] sign a so-called “Severance Agreement and General Release” under duress.
Compl. (doc. n o . 1-1) ¶ 3 8 . Liberty Mutual moves for summary
judgment on Count I I , arguing that: (1) Gavin was not
terminated; (2) her claim is untimely; and (3) even if she can
establish that she was terminated, she cannot satisfy the
public-policy element of a wrongful-termination claim. Liberty
Mutual’s third argument carries the day.
12 1 . Gavin’s Theory of the Case
Gavin’s position regarding the timing of her discharge is
somewhat difficult to discern. She alleges in her complaint
that she was terminated and/or constructively discharged on
March 2 8 , 2008, but does not indicate the significance of that
particular date. See Compl. (doc. n o . 1-1) ¶ 6. At her
deposition, she testified, rather emphatically, that she was
terminated on January 1 6 , 2008, the day on which she returned
from FTO leave and met with Salmon. See Def.’s Mot. Summ. J.,
Ex. A (doc. n o . 2 6 - 2 ) , at 4 , 8 . In her affidavit and in her
objection to summary judgment, Gavin says she was terminated on
April 4 , the effective date of her resignation. See Pl.’s Mem.
of Law (doc. n o . 2 8 - 1 ) , at 1 3 ; Pl.’s O b j . , Ex. A (doc. n o . 28-2)
¶ 3.
Gavin’s position on how she was discharged is even more
difficult to discern. She appears to rely on the doctrine of
constructive discharge. But, she is not as clear as she might
be about how, precisely, “her employer rendered her working
conditions so difficult and intolerable that a reasonable person
would [have felt] forced to resign,” Jeffery, 2012 WL 2094404,
at *2 (citation omitted). In her complaint, she refers to the
imposition of an unreasonable workload beginning in 2007, see
Compl. (doc. n o . 1-1) ¶¶ 12-13, and to hostile treatment from
Liberty Mutual’s human resources department (“HR”) and from
13 Salmon after she attempted to address her workload issues with
HR, see id. ¶ 14-15. She also alleges that Salmon treated her
with “public disrespect and scorn,” gave her “dirty looks,” and
spoken to her “harshly . . . in front of other employees,
including [her] subordinates.” Id. ¶ 1 3 . She does not allege
when Salmon subjected her to that treatment, but the context of
her complaint suggests that she is alleging that it occurred
before January 1 6 . The complaint appears to include no
allegations about the way Salmon or anyone else from Liberty
Mutual treated Gavin after January 1 6 .
In her affidavit, Gavin avers that while performing the
duties of the temporary position, i.e., after January 1 6 ,
“Salmon . . . ignored [her] and he rendered the working
conditions of her employment so difficult that [she] felt [she]
had no reasonable choice but to leave Liberty Mutual.” Doc. n o .
28-2 ¶ 2 4 . She also says that Salmon made her working
conditions intolerable by having her perform both her old job
and her new one simultaneously. See id. ¶ 2 3 .
In her memorandum of law, in a discussion of her
constructive-discharge claim, Garvin says that Liberty Mutual
made her working conditions intolerable by: (1) criticizing her,
with no basis, for communication and other performance problems;
(2) threatening her with a performance warning; (3) denying her
the opportunity to take advantage of the company’s employment
14 policies and procedures; and (4) forcing her to take the
temporary position and, for a time, requiring her to perform
both her old job and the new one at the same time. See doc. n o .
28-1, at 22-23. She continues:
After the January 1 6 , 2008 meeting, Salmon essentially ignored Gavin, rendering her working conditions intolerable.
Finally, Gavin was forced to accept the temporary position and was told it would only last six to nine months and she then would be “terminated”. Clearly, that put Gavin in an intolerable position knowing that she would be terminated anywhere from six to nine months after being given the temporary position.
Id. at 23 (emphasis in the original).
As noted above, Gavin argues in her memorandum of law that
she “was terminated by being forced to accept the temporary
position,” Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 2 1 , and that
“[Janna] Mullane and Salmon, in essences [sic], terminated Gavin
by forcing her to take the temporary position, which in essence
resulted in the termination of her employment,” id. That sounds
more like an actual termination than a constructive discharge,
and i f , indeed, Gavin means to argue that she was terminated
during her January 1 6 , 2008, meeting with Salmon, then there
could be some merit to Liberty Mutual’s argument that Gavin’s
claim is time-barred, given that her complaint is dated February
2 4 , 2011. Moreover, if Liberty Mutual made Gavin’s working
conditions intolerable by forcing her to take the temporary
15 position on January 1 6 , which is a fair inference from her
reliance on the theory of constructive discharge, it would be
legitimate to wonder why she did not submit her resignation for
another two months, but the court need not resolve that
conundrum. At the very least, Gavin is not especially
consistent about identifying what, precisely, constituted her
termination.
Notwithstanding Gavin’s failure to clearly articulate a
theory regarding when and how she was terminated, the court will
give Gavin every possible benefit of the doubt. For the purpose
of ruling on Liberty Mutual’s motion for summary judgment, the
court will assume that Gavin was constructively discharged by
Liberty Mutual on March 1 9 , 2008, 6 for: (1) taking FTO leave in
January of 2008; 7 and (2) “insisting . . . that she be provided
with the benefits of the applicable Liberty [Mutual]
6 Because “an action for constructive discharge accrues when the employee tenders the resignation or retirement notice,” Jeffery, 2012 WL 2094404, at * 4 , the court cannot assume that Gavin was discharged on April 4 , 2008, the date on which her resignation became effective. 7 Because Gavin returned from her FTO leave on January 1 6 , only conduct by Liberty Mutual after that date could have contributed to a constructive discharge in retaliation for taking that leave. As the complaint makes few if any allegations about conduct directed toward Gavin after January 1 6 , it is not at all clear that Gavin’s claim that she was constructively discharged for using FTO leave could survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
16 [employment] policies and procedures,”8 Pl.’s Mem. of Law (doc.
n o . 2 8 - 1 ) , at 2 6 . These two acts, which are a subset of those
alleged in the complaint, are the only ones Gavin discusses in
her objection to summary judgment.
2 . The Law of Wrongful Termination
In New Hampshire, to prevail on a claim for wrongful
termination, or wrongful discharge, as the cause of action is
also known, a plaintiff must establish that: “(1) [her]
termination was motivated by bad faith, retaliation or malice;
and (2) that [she] was terminated for performing an act that
public policy would encourage or for refusing to do something
that public policy would condemn.” MacKenzie v . Linehan, 158
N.H. 476, 480 (2009) (citation omitted). Thus, “[t]he first
prong focusses on the nature of the employer’s actions, while
the public policy prong pertains to the employee’s acts.” Duhy
v . Concord Gen. Mut. Ins. Co., N o . 1:08-cv-00192-JL, 2009 WL
1650024 (D.N.H. June 1 0 , 2009) (quoting Antonis v . Elecs. for
Imaging, Inc., N o . 07-cv-163-JL, 2008 WL 5083979, at *3 (D.N.H.
Nov. 2 5 , 2008; citing Porter, 151 N.H. at 3 9 ) ) . “[O]rdinarily
the issue of whether a public policy exists is a question for
8 Given the lack of specificity in the complaint concerning the manner in which Gavin asserted her rights under Liberty Mutual’s policies and procedures, it is not at all clear that her claim that she was constructively discharged for asserting her rights under company policies could survive a motion to dismiss under Rule 12(b)(6).
17 the jury, [but] at times the presence or absence of such a
public policy is so clear that a court may rule on its existence
as a matter of law.” Short v . Sch. Admin. Unit N o . 1 6 , 136 N.H.
7 6 , 84 (1992) (citing Cloutier v . Great Atl. & Pac. Tea Co., 121
N.H. 915, 924 1981)); see also MacKenzie, 158 N.H. at 480. This
is one of those times.
3 . Use of Leave Time
In reliance on Duhy, Liberty Mutual argues that “the ‘act’
of taking sick or vacation days does not constitute an
actionable public policy.” Def.’s Mem. of Law (doc. n o . 2 6 - 1 ) ,
at 9. Liberty Mutual’s point is well taken. In Duhy, the
plaintiff contended that her former employer “wrongfully
terminated her employment in retaliation for her obtaining
medical treatment, taking time off for illness, and allowed use
of vacation, sick and other time . . .” 2009 WL 1650024, at *10
(internal quotation marks omitted). Judge Laplante rejected
that argument:
Duhy’s wrongful discharge claim ultimately founders because she fails to persuade the court that New Hampshire law recognizes the public policies she has suggested. . . . Duhy presents no authority — under New Hampshire law or elsewhere — or convincing argument supporting her claim that, as a broad proposition, public policy encourages employees to take vacation days . . . . While there undoubtedly are specific circumstances where public policy could encourage employees to engage in the activities offered by Duhy (e.g., obtaining medical treatment to address a highly contagious virus), there are myriad
18 scenarios where public policy would not (e.g., malingering, taking excessive vacation, filing bogus insurance claims). Based on a review of all the evidence in this case, viewed in the light most favorable to Duhy, the court cannot conclude, and New Hampshire law has not held, that there is a public policy encouraging employees to engage in the sort of conduct for which Duhy alleges she was fired.
Id. at *10-11.
Duhy is on point and persuasive.9 Gavin has presented
legal authority stating a public policy that would encourage
employees to take sick leave. Her argument, such is it i s ,
consists of nothing more than a bare statement that her use of
FTO leave “under these circumstances was an act public policy
would encourage.” Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 2 5 .
Based on the persuasive reasoning of Duhy, this court has little
difficulty concluding, as a matter of law, that Gavin did not
perform an act that public policy would encourage when she took
sick leave. See Henderson v . NutriSystem, Inc., 634 F. Supp. 2d
521, 536 (E.D. P a . 2009) (rejecting plaintiff’s reliance on “a
‘right under the state’s law protecting employees’ medical leave
of absence’” where plaintiff did “not provide references to any
state laws, regulations or opinions of the Pennsylvania courts
9 Gavin attempts to distinguish Duhy, noting that she has not asserted a claim that “she was terminated related to FMLA issues.” Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 2 5 . Gavin’s argument misses the mark because Judge Laplante’s analysis of the Duhy plaintiff’s wrongful-termination claim focused on her use of employer-granted vacation time, not FMLA leave. See 2009 WL 1650024, at * 1 0 .
19 that would establish a ‘clear mandate’ of public policy
sufficient to override the at-will employment relationship”).
It is clear from the New Hampshire Supreme Court’s
wrongful-termination jurisprudence that for a viable wrongful-
termination claim to lie, the plaintiff’s action or inaction
must have been consistent with the dictates of public policy.
See MacKenzie, 158 N.H. at 480; Lacasse, 154 N.H. at 248. In
Cloutier, for example, public policy in the form of federal
work-safety statutes supported a store manager’s decision not to
force a subordinate to pass through a “very dangerous” area to
make bank deposits. See 121 N.H. at 922-23. Similarly, public
policy in the form of state wage-and-hour laws supported the
same store manager’s decision not to come in on his statutorily
mandated day off to make the bank deposits he did not force his
subordinate to make. See id. at 923-24. Here, by contrast, the
public has no interest in Gavin’s use of the FTO leave Liberty
Mutual made available to her.
4 . Insistence on Adherence to Company Policies
The second part of Gavin’s public-policy argument falls
just as flat as the first. In reliance on Melvin v . NextEra
Energy Seabrook, LLC, N o . 09-cv-249-JD, 2010 WL 99095 (D.N.H.
Jan. 6, 2010), Liberty Mutual argues that “complaints that an
employer did not follow its internal policies, or that it did so
20 inconsistently, do not satisfy the public policy element of a
wrongful termination claim.” Def.’s Mem. of Law (doc. n o . 26-
1 ) , at 1 2 . Gavin responds:
Gavin asserts she was discharged for asserting all of the rights provided to her by the Liberty policies and as set out above. Specifically, these rights include looking for assistance from the Human Resources department, asking to be placed within the discipline process after being threatened with a written warning, asking for a written explanation of the basis for the performance warning, and demanding that she be treated fairly and honestly. As testified to by Augusta, Mullane, Salmon, these are all policies that Liberty was obligated to follow and provide to Gavin. After moving forward to assert her rights to these Liberty policies and procedures, Gavin was in fact, forced to take the temporary position, resulting in her termination. As a result, Gavin asserts she was terminated for insisting, as public policy would dictate, that she be provided with the benefits of the applicable Liberty policies and procedures.10
Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 25-26. That, however, is
quite literally all Gavin has to say about the public policy
that purportedly encouraged her to press Liberty Mutual to abide
by its policies. Beyond flatly asserting that public policy
supports her actions, Gavin neither articulates any public
policy that encouraged her actions nor identifies the source(s)
of any such policy. For that reason alone, Liberty Mutual is
10 Of the four attempts to assert her rights that Gavin mentions in her memorandum of law, only the first one is mentioned in her complaint. See doc. n o . 1-1 ¶ 1 4 . Only the first and the third are mentioned in her affidavit. See doc. n o . 28-2 ¶¶ 1 1 , 19-20. Beyond that, the court notes that Gavin’s complaint says nothing about her being threatened with a written warning.
21 entitled to summary judgment. See Short, 136 N.H. at 86 (“a
plaintiff must articulate a public policy in order to make out a
claim for wrongful termination under State law”).
Further support for Liberty Mutual’s position comes from
Melvin. In that case, the plaintiff contended “that his
employment was terminated because he disagreed with [his
employer]’s allegedly selective enforcement of its policies or
its management of his supervisory role.” 2010 WL 99095, at * 3 .
Judge DiClerico rejected that argument:
[T]hose matters, as alleged, also would not implicate a public policy. See, e.g., MacKenzie, 158 N.H. at 481 (holding that an employee’s disagreement “about whether his conduct violated [his employer’s] rule . . . [is] not an act that public policy would protect”); Short, 136 N.H. at 84 (“[A]n employee’s expression of disagreement with a management decision is not an act protected by public policy.”)
Id. (parallel citations omitted).
The analysis Judge DiClerico employed in Melvin would seem
to foreclose a wrongful-termination claim based on Gavin’s
alleged assertion of her rights under Liberty Mutual’s policies.
Moreover, Gavin does not even attempt to distinguish Melvin,
MacKenzie, or Short. In sum, as with Gavin’s use of FTO leave,
the public has no interest in Gavin’s attempt to compel Liberty
Mutual to comply with its internal policies and procedures.
22 Conclusion
Because Gavin has failed to articulate a public policy that
would encourage any of the acts for which she says she was
constructively discharged, Liberty Mutual’s motion for summary
judgment, document no. 26, is granted. In light of that ruling,
Liberty Mutual’s motion to compel, document no. 33, its motion
to strike, document no. 36, and its motion for leave to file a
reply memorandum, document no. 40, are all denied as moot. The
clerk of the court shall enter judgment in accordance with this
order and close the case.
SO ORDERED.
Landya MccjEiferty United StaSfs Magistrate Judge
September 5 , 2012
cc: Debra Weiss Ford, Esq. Douglas J. Hoffman, Esq. John E . Lyons, Jr., Esq. Daniel P. Schwarz, Esq. K. Joshua Scott, Esq.