McGuinness v . Federal Express CV-95-124-B 03/04/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin McGuinness
v. 95-CV-00124-B
Federal Express
O R D E R
Kevin McGuinness sued Federal Express for wrongful discharge, negligent supervision, and breach of contract. Federal Express moved for summary judgment. For reasons discussed below, I grant Federal Express’s motion in part.
I. STANDARD OF REVIEW
Summary judgment is appropriate if the record taken in the
light most favorable to the nonmoving party shows that no genuine
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Commercial
Union Ins. C o . v . Walbrook Ins. Co., 7 F.3d 1047, 1049 (1st Cir.
1993). If the nonmoving party bears the burden of proof, the
moving party initially need allege only the lack of evidence to
support the nonmoving party’s case. Celotex Corp. v . Catrett,
1 477 U.S. 3 1 7 , 325 (1986). The nonmoving party cannot rely on the
pleadings alone to oppose summary judgment, but must come forward
with properly supported facts to demonstrate that “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 ,
248 (1986).
II. BACKGROUND
The following facts are undisputed. McGuinness began working as a part-time courier on October 5 , 1985. Throughout his employment, McGuinness had shoulder-length or longer hair which he tucked under company-issued hats to comply with Federal Express’s requirements for personal appearance.1 Prior to October, 1993, McGuinness was never reprimanded due to the length of his hair, or warned in any way that the length of his hair was a problem.
Sometime in 1993, McGuinness complained to Robert Appis, Managing Director of the Northeast District, that Cynthia Warner, the Senior Manager of the Laconia Station where McGuinness worked, was requiring him to work more than thirty hours per
1 The extent to which McGuinness’s hair was visible as a bulge in his hat is disputed, but I need not decide that fact.
2 week. The employee handbook, called the “PEOPLE manual,” states
that management should schedule part-time employees to work 20
hours per week if possible, but otherwise no less than 17.5 hours
per week and no more than thirty hours per week. In a memo dated
October 6, 1993, responding to McGuinness’s complaint, Appis
instructed McGuinness to pursue his complaint through Federal
Express’s Open Door Process.
On October 1 3 , 1993, one week later, Warner told McGuinness
that he had to cut his hair because it did not comply with
Federal Express’s Personal Appearance Policy. The policy states,
in pertinent part: All employees must maintain a businesslike appearance . . . . Employees are expected to dress in a businesslike manner and are to avoid extremes in personal appearance at all times. . . . All employees are required to keep their hair clean and well-groomed in a reasonable style. Mustaches and sideburns must be kept neat and trimmed to a moderate length. . . . All male employees who have positions requiring customer contact as a regular part of their job junctions are prohibited from wearing beards, ponytails, braids, or earrings of any kind.
Warner told McGuinness to cut his hair to shirt-collar length.
McGuinness had a three-week vacation from October 1 4 , 1993
to November 7 , 1993. When he returned to work on November 8 ,
Warner ordered McGuinness to go to her office and take off his
hat so that she could check the length of his hair. McGuinness
went to Warner’s office, but refused to remove his hat. Warner
3 suspended McGuinness that day, and Susan Tacovsky, McGuiness’s
immediate supervisor, terminated him the following day.
III. DISCUSSION
A. Wrongful Discharge
McGuinness does not dispute that he was an at-will employee.
Therefore, to succeed on a claim of wrongful discharge, he must
prove that (1) Federal Express discharged him “out of bad faith,
malice, or retaliation,” and (2) Federal Express discharged him
for performing “acts which public policy would encourage or
because he refused to perform acts which public policy would
condemn.” Wenners v . Great State Beverages, 140 N.H. 1 0 0 , 103
(1995), cert. denied, 116 S . C t . 926 (1996) (quoting Short v .
School Admin. Unit N o . 1 6 , 136 N.H. 7 6 , 84 (1992)); Cloutier v .
Great Atl. & Pac. Tea Co., 121 N.H. 915, 921-22 (1981).
McGuinness bears the burden of articulating the public policy or
policies Federal Express offended. “Although ordinarily the
issue of whether a public policy exists is a question for the
jury, 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, 136 N.H. at 8 4 .
McGuinness asserts that his discharge offended public policy
in three ways. First, he claims that his privacy would have
4 been invaded if he had carried out Warner’s order to remove his
hat so that she could check the length of his hair. McGuinness
relies on O’Brien v . Papa Gino’s of America, Inc., 780 F.2d 1067,
1071 (1st Cir. 1986). In O’Brien, plaintiff claimed that Papa
Gino’s forced him to take a polygraph test to determine whether
he had ingested illegal drugs. Id. at 1073. The First Circuit
affirmed the jury’s special verdict that Papa Gino’s had not
offended public policy, and consequently affirmed the trial
court’s decision that O’Brien was not wrongfully discharged. Id.
at 1072. Thus, O’Brien undermines McGuinness’s contention that
removal of his hat, which is far less intrusive than a polygraph
test concerning the ingestion of illegal drugs, would have been
an invasion of privacy against public policy. McGuinness also
relies on the fact that New Hampshire recognizes a tort for
invasion of privacy to show that removal of his hat would have
been against public policy. In Hamberger v . Eastman, 106 N.H.
107, 111 (1964), however, the New Hampshire Supreme Court
explained that an intrusion is actionable “‘only where [it] has
gone beyond the limits of decency.’” (quoting Restatement of
Torts § 867 cmt. d ) . Warner was well within the limits of
decency when she asked McGuinness to remove his hat. Asking
5 McGuinness to remove his hat was clearly not so serious an
invasion of McGuinness’s privacy that public policy would condemn
it.
Second, McGuinness claims that his refusal to remove his hat
or to cut his hair was condoned by public policy because it was
unlawful for Federal Express to require him to cut his hair.
McGuinness provides no support for the proposition that an
employer may not legally require its employees to comply with
reasonable standards of personal grooming. Therefore, he has
failed to show that Federal Express acted illegally and that his
resistance was condoned by public policy. C f . Planchet v . New
Hampshire Hosp., 115 N.H. 3 6 1 , 362-63 (1975) (discharging male
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McGuinness v . Federal Express CV-95-124-B 03/04/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin McGuinness
v. 95-CV-00124-B
Federal Express
O R D E R
Kevin McGuinness sued Federal Express for wrongful discharge, negligent supervision, and breach of contract. Federal Express moved for summary judgment. For reasons discussed below, I grant Federal Express’s motion in part.
I. STANDARD OF REVIEW
Summary judgment is appropriate if the record taken in the
light most favorable to the nonmoving party shows that no genuine
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Commercial
Union Ins. C o . v . Walbrook Ins. Co., 7 F.3d 1047, 1049 (1st Cir.
1993). If the nonmoving party bears the burden of proof, the
moving party initially need allege only the lack of evidence to
support the nonmoving party’s case. Celotex Corp. v . Catrett,
1 477 U.S. 3 1 7 , 325 (1986). The nonmoving party cannot rely on the
pleadings alone to oppose summary judgment, but must come forward
with properly supported facts to demonstrate that “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 ,
248 (1986).
II. BACKGROUND
The following facts are undisputed. McGuinness began working as a part-time courier on October 5 , 1985. Throughout his employment, McGuinness had shoulder-length or longer hair which he tucked under company-issued hats to comply with Federal Express’s requirements for personal appearance.1 Prior to October, 1993, McGuinness was never reprimanded due to the length of his hair, or warned in any way that the length of his hair was a problem.
Sometime in 1993, McGuinness complained to Robert Appis, Managing Director of the Northeast District, that Cynthia Warner, the Senior Manager of the Laconia Station where McGuinness worked, was requiring him to work more than thirty hours per
1 The extent to which McGuinness’s hair was visible as a bulge in his hat is disputed, but I need not decide that fact.
2 week. The employee handbook, called the “PEOPLE manual,” states
that management should schedule part-time employees to work 20
hours per week if possible, but otherwise no less than 17.5 hours
per week and no more than thirty hours per week. In a memo dated
October 6, 1993, responding to McGuinness’s complaint, Appis
instructed McGuinness to pursue his complaint through Federal
Express’s Open Door Process.
On October 1 3 , 1993, one week later, Warner told McGuinness
that he had to cut his hair because it did not comply with
Federal Express’s Personal Appearance Policy. The policy states,
in pertinent part: All employees must maintain a businesslike appearance . . . . Employees are expected to dress in a businesslike manner and are to avoid extremes in personal appearance at all times. . . . All employees are required to keep their hair clean and well-groomed in a reasonable style. Mustaches and sideburns must be kept neat and trimmed to a moderate length. . . . All male employees who have positions requiring customer contact as a regular part of their job junctions are prohibited from wearing beards, ponytails, braids, or earrings of any kind.
Warner told McGuinness to cut his hair to shirt-collar length.
McGuinness had a three-week vacation from October 1 4 , 1993
to November 7 , 1993. When he returned to work on November 8 ,
Warner ordered McGuinness to go to her office and take off his
hat so that she could check the length of his hair. McGuinness
went to Warner’s office, but refused to remove his hat. Warner
3 suspended McGuinness that day, and Susan Tacovsky, McGuiness’s
immediate supervisor, terminated him the following day.
III. DISCUSSION
A. Wrongful Discharge
McGuinness does not dispute that he was an at-will employee.
Therefore, to succeed on a claim of wrongful discharge, he must
prove that (1) Federal Express discharged him “out of bad faith,
malice, or retaliation,” and (2) Federal Express discharged him
for performing “acts which public policy would encourage or
because he refused to perform acts which public policy would
condemn.” Wenners v . Great State Beverages, 140 N.H. 1 0 0 , 103
(1995), cert. denied, 116 S . C t . 926 (1996) (quoting Short v .
School Admin. Unit N o . 1 6 , 136 N.H. 7 6 , 84 (1992)); Cloutier v .
Great Atl. & Pac. Tea Co., 121 N.H. 915, 921-22 (1981).
McGuinness bears the burden of articulating the public policy or
policies Federal Express offended. “Although ordinarily the
issue of whether a public policy exists is a question for the
jury, 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, 136 N.H. at 8 4 .
McGuinness asserts that his discharge offended public policy
in three ways. First, he claims that his privacy would have
4 been invaded if he had carried out Warner’s order to remove his
hat so that she could check the length of his hair. McGuinness
relies on O’Brien v . Papa Gino’s of America, Inc., 780 F.2d 1067,
1071 (1st Cir. 1986). In O’Brien, plaintiff claimed that Papa
Gino’s forced him to take a polygraph test to determine whether
he had ingested illegal drugs. Id. at 1073. The First Circuit
affirmed the jury’s special verdict that Papa Gino’s had not
offended public policy, and consequently affirmed the trial
court’s decision that O’Brien was not wrongfully discharged. Id.
at 1072. Thus, O’Brien undermines McGuinness’s contention that
removal of his hat, which is far less intrusive than a polygraph
test concerning the ingestion of illegal drugs, would have been
an invasion of privacy against public policy. McGuinness also
relies on the fact that New Hampshire recognizes a tort for
invasion of privacy to show that removal of his hat would have
been against public policy. In Hamberger v . Eastman, 106 N.H.
107, 111 (1964), however, the New Hampshire Supreme Court
explained that an intrusion is actionable “‘only where [it] has
gone beyond the limits of decency.’” (quoting Restatement of
Torts § 867 cmt. d ) . Warner was well within the limits of
decency when she asked McGuinness to remove his hat. Asking
5 McGuinness to remove his hat was clearly not so serious an
invasion of McGuinness’s privacy that public policy would condemn
it.
Second, McGuinness claims that his refusal to remove his hat
or to cut his hair was condoned by public policy because it was
unlawful for Federal Express to require him to cut his hair.
McGuinness provides no support for the proposition that an
employer may not legally require its employees to comply with
reasonable standards of personal grooming. Therefore, he has
failed to show that Federal Express acted illegally and that his
resistance was condoned by public policy. C f . Planchet v . New
Hampshire Hosp., 115 N.H. 3 6 1 , 362-63 (1975) (discharging male
security guard for refusing to cut his hair not unlawful sex
discrimination).
Third, McGuinness claims that he was fired not for
insubordination or refusing to cut his hair, but rather because
he complained about being required to work more than the 30-hour
per week maximum established for part-time workers. To support
his claim, McGuinness notes that he had shoulder-length or longer
hair during the entire eight-year period he was employed at
Federal Express and no one asked him to cut his hair until a week
6 after he complained about having to work too many hours.
Although this claim is weak, it is minimally sufficient to
survive a motion for summary judgment. Accordingly, I will
permit McGuinness to proceed with his claim that he was
wrongfully discharged in retaliation for complaining about having
to work more than the 30-hour per week maximum established for
part-time employees by the employee handbook.2
B. Negligent Supervision
McGuinness’s negligent supervision claim is a poorly
conceived attempt to redefine a wrongful termination claim as a
negligence tort that has not and would not be recognized as a
separate cause of action by the New Hampshire Supreme Court.
Accordingly, I grant Federal Express’s motion with respect to
this count.
C. Breach of Contract
Count III also essentially restates McGuinness’s wrongful
discharge claim. As I previously noted, McGuinness does not
dispute that he was an at-will employee, and has submitted no
evidence to the contrary. Furthermore, Federal Express produced
2 I reserve the right to reassess the sufficiency of McGuinness’s evidence if Federal Express moves for judgment as a matter of law at the conclusion of the plaintiff’s case in chief.
7 McGuinness’s “Record of Receipt” of the employee handbook, signed by McGuinness, which states:
Employee: Please read the following statement, sign below, and return this document to your manager.
I , Kevin McGuinness, have received the Federal Express Handbook on 9-9, 1989.I understand that it is not acontract and that the information provided may need to be changed by the Company from time to time.
(emphasis added). An at-will employee has no contractual right to any duration
of employment, therefore an employer does not breach any contract
by discharging an at-will employee. Butler v . Walker Power,
Inc., 137 N.H. 4 3 2 , 436-37 (1993). An at-will employee may,
however, maintain a breach of contract action for damages flowing
from the employer’s failure to comply with other agreed terms of
employment. Id. at 436. McGuinness does not claim damages for
anything but his discharge. Therefore, his breach of contract claim must also fail.
IV. CONCLUSION
For the foregoing reasons defendant’s motion for summary
judgment (document n o . 12) is granted in part.
8 SO ORDERED.
Paul Barbadoro United States District Judge March 4 , 1997
cc: Matthew J. Lahey, Esq. Claudia Damon, Esq. Colby Morgan, Jr., Esq.