Peck v. NGM Insurance CV-94-90-B 06/21/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kathleen Peck
v. Civil No. 94-90-B
NGM Insurance Co., et al
O R D E R
Plaintiff, Kathleen Peck, filed this action against the
defendants, NGM Insurance Company ("NGM") and several of its
employees, alleging violations of both federal and state law.
Peck alleges that NGM violated the Egual Pay Act, 29 U.S.C.A. §
206(d) (West 1978) and its New Hampshire counterpart, N.H. Rev.
Stat. Ann. § 275:37 (1987) (Count I), and the Fair Labor
Standards Act, 29 U.S.C.A. § 207(a) (West Supp. 1995) (Count II).
She also alleges that NGM is liable for wrongful discharge (Count
III) and negligent supervision (Count VI ) . Finally, she claims
that several NGM employees1 intentionally interfered with her
contractual relations with NGM (Count IV), and that NGM is
liable for the individual defendants' actions under the doctrine
1The individual defendants are Samuel DeYoung, Robert Buchholz, and John Schwartz. of respondeat superior (Count VII).2 Defendants filed a motion
for summary judgment with respect to all of Peck's allegations.
For the following reasons I grant defendants' motion in part and
deny it in part.
I. FACTUAL BACKGROUND3
NGM is an insurance company that underwrites both commercial
and personal insurance lines. Its Risk Inspection Department
performs inspections of commercial properties and verifies basic
information of insured parties' businesses. NGM hired Peck in
1977 as a secretary in the Risk Inspection Department. Samuel
DeYoung, a risk manager, was her initial supervisor.4 At that
time, the department included DeYoung, two male field inspectors
and Peck. In 1984, the department was downsized to include only
DeYoung, whose title was changed to risk inspection supervisor,
and Peck whose title was changed to risk inspection assistant.
2Peck withdrew Count V of her complaint, alleging intentional infliction of emotional distress, in her objection to defendants' motion for summary judgment.
31hese facts are stated in the light most favorable to Peck.
4DeYoung ceased to be Peck's supervisor in the mid-1980's and, as discussed infra, he later resumed a supervisory role over her.
2 DeYoung was categorized as a pay grade 22 while Peck was a grade
15.
As a risk inspection supervisor, DeYoung was responsible for
identifying liability exposures of applicants for commercial
lines insurance who operated their businesses from a specific
location (e.g., office buildings, light manufacturing plants,
apartments, stores, and restaurants). DeYoung performed this
responsibility both by making on-site inspections and by
interviewing business owners. After completing an investigation,
DeYoung prepared a detailed narrative report that included a
description of the site, the business's operations, and any
potential liability hazards. His reports also included diagrams,
photographs, and recommendations for corrective action.
Peck's duties as a risk inspection assistant changed during
the time she was employed at NGM. Initially, she was responsible
for (i) acting as liaison between NGM and independent contractors
who performed risk inspections for NGM; (ii) assisting DeYoung
with his field inspections; (iii) using information obtained by
DeYoung to determine the value of an insured's buildings; and
(iv) providing clerical and technical support to underwriters.
At some point, she also began to perform "telephone inspections"
of contracting operations such as plumbers, electricians, general
3 contractors, or landscapers who were seeking to purchase
insurance from NGM. By 1989, she was performing telephone
inspections almost exclusively. At that time, she was assigned a
split shift of four hours in the morning and four hours in the
evening. In 1989, she was allowed to perform the telephone
inspections from her home.
Peck's telephone inspections were essentially interviews of
the business owners that followed a prescribed format. She was
reguired to determine the nature and extent of an applicant's
business by collecting information such as: (i) a description of
the business; (ii) its yearly sales figures and annual payroll
numbers; (iii) the names and numbers of its employees; (iv) a
description of the business's eguipment; (v) the average price of
a job; (vi) whether the insured used subcontractors; (vii) the
number of vehicles used by the business; (ix) any risks
associated with the business's buildings; (x) whether the
business had underground storage tanks on its premises; (xi)
whether the business performed any ultra-hazardous activities;
and (xii) whether the business had suffered any losses within the
previous three years. Peck recorded the information she obtained
on a one-page form and used additional pages to supplement the
form where necessary.
4 Peck prepared approximately thirty-five to forty reports per
week and it took her approximately forty-five minutes to conduct
each interview and prepare a report. Although she spent most of
her time conducting telephone interviews. Peck was also reguired
to attend six staff meetings per year and to assist NGM's
underwriters with "rush" jobs at a minimum of once per week. If
Peck was not on the telephone performing these other tasks or at
company meetings, she considered herself to be actively waiting
for work. Peck estimated that her typical work day lasted from
6:00 a.m. until 8:00 p.m. if this waiting-to-work time were
included.
Peck's flexibility in responding to calls during off hours
was considered a major strength by NGM. Further, a supervisor
indicated that she was doing an excellent job and that NGM's
insureds were fortunate because she was available at their
convenience. She was also cited as having a good work ethic and
"a passion for doing everything right."
Peck inguired about becoming a field inspector several times
during her employment. She was told both that due to downsizing
there were no positions available and that she lacked the
reguisite experience and training. DeYoung indicated to her that
he did not think it would be appropriate for a woman to perform
5 field inspections because of the areas where the inspections were
conducted. Peck also applied for other positions, including mail
room supervisor, but was unsuccessful in securing a new position.
In January 1993, Peck expressed to Thomas Aldrich, a human
resources representative, that she felt overwhelmed and that she
was working all the time, fourteen hours per day. Previously,
Peck had expressed similar concerns to other supervisors and
managers at NGM. According to Peck, no one at NGM ever told her
she should not be working those hours. She also did not believe
she could work a split shift since she was reguired to be
available during business hours to underwriters and agents.
Peck, however, never indicated on her time slips or evaluations
that she worked any overtime.
In February 1993, Robert Buchholz became the New England
Regional Underwriting Manager and managed both DeYoung and Peck.
At this time. Peck began working part-time at Friendly's in
addition to her work for NGM. During a conversation with
Buchholz after he became one of her supervisors. Peck stated that
she was "burnt out" and she did not like being in the house all
day waiting for insured parties to call her back. Thereafter,
Buchholz assigned a task force to reformulate the verification
6 forms Peck was using and after Peck left NGM, the forms were
revised so that they could be sent directly to insureds.
Buchholz also expressed concern about Peck's hours in a memo to
DeYoung and instructed him to monitor Peck's phone activity to
determine when she was experiencing the most "no hits" in order
to revise her schedule.
Pursuant to Buchholz's instructions, DeYoung reguested the
master pages of Peck's phone bill to verify that she was
deducting all her personal calls from the bill. He asked more
than once for the pages and Peck explained to him each time why
she could not give him past pages. Peck felt that his repeated
reguests were "nit-picky." After completing his review, DeYoung
made recommendations to Buchholz as to the most productive times
for making calls. Previously, Peck had been told to take Friday
afternoons off, but beyond that modification, no one assisted
Peck in restructuring her schedule.
On September 22, 1993, at 9:25 a.m., DeYoung again asked
Peck for the master page of her phone bill. Peck again explained
why she could not provide the master page and again asked DeYoung
why he was being so "nit-picky" lately. She also asked him if he
7 was doing to her what another worker used to do to his "girls."5
She further asked whether NGM wanted her to resign. DeYoung told
Peck that he would find out for her and get back to her that day.
At this time, DeYoung had no authority to accept a resignation,
hire, or fire employees. Peck called DeYoung back at 11:30 a.m.,
but he told her he had not yet spoken to Buchholz.
Eventually DeYoung told Buchholz that Peck had resigned.
Specifically, DeYoung stated that Peck became upset and said:
"Just take the phone out of my house, I quit." Two meetings took
place concerning Peck's alleged resignation and whether a verbal
resignation was valid. After consulting with his manager, John
Schwartz, Buchholz determined that he had the discretion to
accept a resignation over the phone and declined to discuss the
issue with Peck at all. At about 2:00 p.m., DeYoung, at
Buchholz's direction, called Peck to confirm her resignation
which Peck continued to deny making. Peck called the Human
Resources Department twice that day contesting her "resignation."
Later, Aldrich called Peck to inform her that the resignation was
effective at the end of the day. No one followed up on Peck's
5 Another worker at NGM apparently had the reputation of harassing his employees to the point that they would quit. allegations that she had not resigned.
II. DISCUSSION
A. Standard of Review
It is axiomatic that a court does not find facts in ruling
on a motion for summary judgment. Instead, the court construes
the evidence in the light most favorable to the nonmovant and
determines whether the moving party is entitled to judgment as a
matter of law. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988); accord National Amusements, Inc. v. City of
Dedham, No. 91-1176, slip op. at 27 (1st Cir. Jan. 4, 1995)
(reasonable inferences are those that indicate an acceptable
level of probability based on common sense and human experience).
Where the nonmovant bears the burden of proof at trial, summary
judgment should be denied if the nonmovant produces "more than a
scintilla" of supporting evidence which, if believed, would be
sufficient to convince a reasonable fact finder that the
nonmovant's claim has been proved. Milton v. VanDorn Co., 961
F.2d 965, 969 (1st Cir. 1992). Similarly, when the moving party
bears the burden of proof at trial, summary judgment is warranted
only if the movant is entitled to judgment as a matter of law on
the undisputed material facts. Fitzpatrick, 2 F.2d at 1116.
With these standards in mind I address the defendants' motion. B. The Equal Pay Act Claim
To establish a violation of the Equal Pay Act ("EPA") a
plaintiff must prove that
(1) she was performing work which was substantially equal to that of the male employees considering the skills, duties, supervision, effort, and responsibilities of the jobs; (2) the conditions where the work was performed were basically the same; and (3) the male employees were paid more under such circumstances.6
Tidwell v. Fort Howard Corp., 989 F.2d 406, 408 (10th Cir. 1993);
Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797,
799 (11th Cir. 1989) (per curiam) (quoting Corning Glass Works v.
Brennan, 417 U.S. 188, 195 (1974)); Brownlee v. Gav & Tavlor,
Inc., 642 F. Supp. 347, 361 (D. Kan. 1985), aff'd , 861 F.2d 1222
(10th Cir. 1988). While the compared jobs need not be identical,
the plaintiff must prove that the jobs require substantially
equal skill, duties, supervision, effort, and responsibilities.
Forsberq v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1414,
6 The New Hampshire statute uses similar language as the EPA. See N.H. Rev. Stat. Ann. § 275:27. Although there are no cases from the New Hampshire Supreme Court indicating the standard to be used under the statute, both parties rely on federal law as it is developed under the EPA. Because the parties do not argue that the state law standards differ from the federal precedents cited, I assume that state law provides no greater protection. See Mesnick v. General Flee. Co., 950 F.2d 816, 829 n.ll (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).
10 modified, 46 Empl. Prac. Dec. (CCH) 5 37,996 (9th Cir. 1988);
accord Corning Glass, 417 U.S. at 196; Lex K. Larson, Employment
Discrimination, § T51.42 (2d ed. 1995). Further, in assessing
whether the jobs are substantially equal [t]he controlling
factor ... is job content--the actual duties of the respective
employees are called upon to perform'" Waters, 874 F.2d at 799
(quoting Pearce v. Wichita City, 590 F.2d 128, 133 (5th Cir.
1979)). This inquiry is a fact based determination and therefore
should be assessed on a case-by-case basis. Forsberq, 840 F.2d
at 1414. But c f . Smith v. Stratus Computer, Inc., 40 F.3d 11, 12
(1st Cir. 1994) (failure of proof of essential element by
nonmovant renders all other facts immaterial and summary judgment
should be granted), cert. denied, 63 U.S.L.W. 3817 (U.S. 1995).
If a plaintiff proves her prima facie case, the defendant
may escape liability by proving that the unequal pay is caused
by: (1) a seniority system; (2) a merit system; (3) a system
which measures earnings by quantity or quality of production; or
(4) a differential based on any other factor other than sex. 29
U.S.C.A. §206(d)(1); Winkes v. Brown Univ., 747 F.2d 792, 793
(1st Cir. 1984) (citing Corning Glass, 417 U.S. at 196-97).
Peck bases her Equal Pay Act claim on the disparity between
her pay and DeYoung's pay. NGM argues that it is entitled to
11 summary judgment on the claim both because Peck has not offered
enough evidence to support her claim that the compared jobs
involve substantially egual work, and because the undisputed
facts establish that the pay differential was due to factors
other than sex. Reviewing the evidence in the light most
favorable to Peck, I find that neither argument entitles NGM to
the relief it seeks. First, while Peck's evidence that the
compared jobs involve substantially the same skill, duties,
supervision, effort, and responsibility is far from compelling,
it is not so weak that it falls below the "more than a scintilla"
standard that this circuit employs when reviewing summary
judgment claims against the party with the burden of proof. See
Milton, 961 F.2d at 969. Second, I agree with Peck that the
facts material to NGM's claim that the differential is based on
factors other than sex remain sufficiently murky so as to
preclude summary judgment on that basis. Thus, I deny
defendants' motion for summary judgment on the Egual Pay Act
claim.7
7 NGM remains free to renew its summary judgment arguments in a motion for judgment as a matter of law at the conclusion of the plaintiff's case. See Fed. R. Civ. P. 50.
12 C. The Fair Labor Standards Act Claim
Peck claims that she is entitled to relief under the Fair
Labor Standards Act ("FLSA") because she was required to work
uncompensated overtime. The FLSA provides in pertinent part that
no employer shall employ an employee for more than forty hours
per week unless the employee receives compensation for the
overtime at a rate of one and one half times their regular rate.
29 U.S.C.A. § 207(a). To prove that an employer has violated the
FLSA, an employee must show that: (1) she actually worked
overtime; (2) the amount and extent of overtime was shown by
justifiable and reasonable inference; and (3) the defendant had
knowledge, actual or constructive, of her work. Davis v. Food
Lion, 792 F.2d 1274, 1276 (4th Cir. 1986) . NGM argues that
summary judgment should be granted because Peck cannot meet her
burden on any of these elements.
1. Whether Peck actually worked the overtime
An employee is entitled to overtime pay under the FLSA only
if she actually worked the overtime and not if she merely was
waiting to be engaged in work.8 Kelly v. Hines-Rinaldi Funeral
At oral argument. Peck agreed that the time necessary to fill out her reports would amount only to twenty to thirty hours per week. Therefore, as counsel agreed at oral argument, in
13 Home, Inc., 847 F.2d 147, 148 (4th Cir. 1988) (no overtime for
waiting time), cert. denied, 493 U.S. 835 (1989). "Work" means
"physical or mental exertion (whether burdensome or not)
controlled or required by the employer and pursued necessarily
and primarily for the benefit of the employer ... ." Tennessee
Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598
(1944). Waiting or down time may be work because " [r]efraining
from other activity often is a factor of instant readiness to
serve ..." an employer. Armour & Co. v. Wantock, 323 U.S. 126,
133 (1944). Therefore, whether an employee is actually working
or is merely waiting to be engaged in work depends upon whether
the time in question is spent for the employer's rather than the
employee's benefit. Id.; accord Martin v. Ohio Turnpike Comm'n,
968 F.2d 606, 609 (6th Cir. 1992) (per curiam), cert. denied, 113
S. C t . 979 (1993); Shamblin v. City of Colchester, 793 F. Supp.
834, 835 (C.D. 111. 1992); 29 C.F.R. § 785.15. If an employee
could not utilize her spare time effectively for normal pursuits,
then the time is compensable and is not waiting time. 29 C.F.R.
§ 785.15. This does not mean, however, that an employee's
order for Peck to show she actually worked the overtime, she must demonstrate that she was engaged to wait, not merely waiting, during the time she was not completing forms or performing the other tasks.
14 flexibility during waiting time must be identical to that during
non-waiting time because to allow such a rule would enable nearly
all waiting time to be compensable. Owens v. Local No. 169, 971
F.2d 347, 350-51 (guoting Brown v. Houston N.W. Medical Ctr.
Survivor, Inc., 934 F.2d 671, 677 (5th Cir. 1991) (en banc),
cert. denied, 502 U.S. 1036 (1992)), modified, 30 Wage & Hour
Cas. (BNA) 1728 (9th Cir. 1992). There is no bright line test;
rather the determination is a guestion of degree, taking into
account all the circumstances. Armour, 323 U.S. at 133; accord
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Berry v.
County of Sonoma, 30 F.3d 1174, 1180 (9th Cir. 1994) (predominant
factors are agreement between parties and freedom to engage in
personal activities), cert. denied, 115 S. C t . 1100 (1995);
Owens, 971 F.2d at 351 (same); Birdwell v. City of Gadsen, 970
F.2d 802, 808 (11th Cir. 1992) (same plus practical agreement of
parties by conduct and relation of nature of services to waiting
time).
Peck contends that she could not leave her house from 6 a.m.
until 8 p.m. because she was reguired to be available to
underwriters and agents during regular business hours as well as
to insureds who may need to return her calls either before or
after regular business hours. Further, she alleges that she was
15 required to remain in her home in order to keep her "no hit"
ratio below one percent, a fact she was commended for by NGM.
Drawing all reasonable inferences in her favor and accepting her
testimony as true. Peck was unable to leave her home during
periods of inactivity, which is an indication that she was
engaged to wait rather than merely waiting to be engaged. See
Lurvev v. Metropolitan Dade Ctv. , 870 F. Supp. 1570, 1579 (S.D.
Fla. 1994); 29 C.F.R. § 785.25
Peck also received rush requests quite often, at least once,
but sometimes three to four times per week. Her ability to
respond quickly to these requests was cited as a strength on her
evaluations. The frequency of these requests and NGM's
requirement that she respond to the rush requests immediately
restricted her ability to utilize the waiting time for her own
pursuits. Compare Kelly, 847 F.2d at 148 (three calls per month
not frequent enough to be unduly restrictive on employee's time)
with Renfro v. City of Emporia, 948 F.2d 1529, 1538 (10th Cir.
1991) (four to five calls per day unduly restricted fire fighters
waiting time), cert. dismissed, 503 U.S. 915 (1992).
In addition, because Peck was the only person doing
telephone inspections on a regular basis, these responsibilities
could not easily be shifted or traded to other employees at NGM.
16 See Miner v. B & C Equip., Inc., No. 93-35401, 1994 WL 198692,
**3 (9th Cir. May 18, 1994) (even though plaintiff did not often
trade, because he could have traded on call time easily, he was
not entitled to overtime compensation); Kelly, 847 F.2d at 148
(plaintiff not entitled to overtime where phone would be answered
by others if plaintiff did not respond). But see Bright, 934
F.2d at 672 (employee not entitled to overtime where only on-call
employee and required to respond to all calls because could go
anywhere while on-call with pager). In fact. Peck attempted to
have DeYoung do several telephone inspections to aid her in
dealing with her backlog, but most of these inspections were
returned to Peck incomplete.
Finally, Peck states that she did not engage in any personal
activities from 6 a.m. through 8 p.m. Instead, she claims that
she did all her grocery shopping, cleaning, eating, sleeping and
socializing on the weekends and after 8 p.m. during the week,
except for occasionally loading the dishwasher. She also stated
that if the phone rang while she was eating she would interrupt
her meal to answer the call. A reasonable jury, based on all of
the surrounding circumstances, could find that Peck's waiting
time was primarily for NGM's benefit. See, e.g., Kelly, 847 F.2d
at 148 (employee effectively used waiting time because slept); 29
17 C.F.R. § 785.19 (not off duty if required to perform duties while
eating). Thus, Peck has offered sufficient evidence that she
actually worked overtime to overcome NGM's summary judgment
motion on this issue.
2. Whether the amount of overtime was shown by justifiable and reasonable inference
NGM argues that, based on plaintiff's production level and
the nature of her additional tasks, there is no reasonable basis
to infer that her job required any overtime. They point to
DeYoung's June 1993 report which indicated that the bulk of
Peck's calling occurred in the morning and in the late afternoon
leaving large gaps in her day unaccounted for. Absent a showing
that she was continuously working during this time, the
defendants contend that there is no basis for drawing the
reasonable inference that she actually worked the overtime.
In evaluations, however. Peck was lauded for her flexibility
in reaching insureds at off times and for maintaining a no hit
ratio of less than one percent. At the time of these
evaluations, the evaluator knew the Peck was concerned about the
amount of hours she spent working. Further, Peck informed NGM
staff that she was available to insured parties from 6:00 a.m.
until 8:00 p.m. and management confirmed this availability.
18 Finally, Peck's backlog and the managing of that backlog were of
great concern to NGM. Therefore, a reasonable jury could find
that Peck's proof demonstrates through justifiable and reasonable
inference that she worked uncompensated overtime. See Pforr v.
Food Lion, Inc., 851 F.2d 106, 108 (4th Cir. 1988) (need only
show amount of uncompensated overtime by just and reasonable
inference) .
3. Whether NGM had actual or constructive knowledge that Peck was working the overtime
An employee must also demonstrate that her employer had
actual or constructive knowledge of the overtime. Newton v. City
of Henderson, 47 F.3d 746, 748 (5th Cir. 1995); Davis, 792 F.2d
at 127 6 (where employer suffer or permits the overtime, it acts
with knowledge of the overtime) (citing 29 U.S.C.A. § 203(g)).
In meeting this reguirement, an employee need not make a
contemporaneous reguest for overtime so long as the employee
establishes that the employer knows and permits the employee to
work the overtime. Forrester v. Roth's IGA Foodliner, Inc., 64 6
F.2d 413, 414 (9th Cir. 1981). Alternatively, even if the
employer has knowledge of the overtime, the employer may be
relieved of liability if it repeatedly instructs the employee not
to work the overtime. See Lindow v. United States, 738 F.2d
19 1057, 1062 n.3 (9th Cir. 1984). Nevertheless, "[t]he mere
promulgation of a rule against such work is not enough.
Management has the power to enforce the rule and must make every
effort to do so." 29 C.F.R. § 785.13.
Peck contends that NGM had actual knowledge of her overtime
because she told several supervisors and managers, including
Aldrich, Buchholz, and DeYoung, that she was working all day and
felt burnt out from the hours and her inability to leave her
home. In a memo to his files, Buchholz acknowledged that Peck
had made these comments. Both Mary Graves and Deborah Hannon,
Peck's former supervisors, also acknowledged that Peck had made
the comments. Drawing all reasonable inferences in Peck's favor,
a reasonable jury could find that NGM had knowledge of her
overtime hours.
Furthermore, Peck denies that anyone at NGM instructed her
not to work those hours, although NGM contends that several
individuals instructed her to only work a split shift. In
addition, despite some recommendations as to how to more
effectively organize her day, no one at NGM implemented or
enforced these recommendations. Thus, there are genuine issues
of material fact as to whether NGM promulgated a rule prohibiting
Peck from working the overtime and whether, even if they did, it
20 was enforced. Therefore, I deny NGM's motion for summary
judgment with respect to this claim. See Fed. R. Civ. P. 56.
D. The Wrongful Discharge Claim
To prevail on a claim for wrongful discharge, an employee
must prove that the employer (1) terminated the employment (2)
out of bad faith, malice or retaliation and (3) because the
employee performed acts which public policy would encourage or
because the employee refused to perform acts prohibited by public
policy. Short v. School Admin, Unit No. 16, 136 N.H. 76, 84, 612
A.2d 364, 370 (1992). NGM argues that it is entitled to summary
judgment on Peck's wrongful discharge claim because Peck has not
established that NGM acted with malice directed at her and
because the acts Peck claims are encouraged by public policy
amount to nothing more than the guestioning of managerial policy.
1. Bad faith
Bad faith is the eguivalent of malice in the context of a
wrongful discharge claim. Centronics Corp. v. Genicom Corp., 132
N.H. 133, 140, 562 A.2d 187, 191 (1989); accord MacDonald v.
Tandy Corp., 796 F. Supp. 623, 627 (D.N.H. 1992) (bad faith where
company knew that termination was unreasonable and still decided
to terminate employee), aff'd , 983 F.2d 1046 (1st Cir. 1993);
Godfrey v. Perkin-Elmer Corp., 794 F. Supp. 1179, 1187, 1187 n.7
21 (D.N.H. 1992) (company's failure to investigate employee's sexual
harassment complaint or remedy discriminatory practices
sufficient evidence of bad faith). Specifically, the manner in
which an at will employee is discharged may support a conclusion
that the employer was motivated by bad faith or malice. Cloutier
v. Great Atl. & Pac. Tea Co., 121 N.H. 915, 921, 436 A.2d 1140,
1144 (1981) (employee of 36 years suspended after five minute
meeting and terminated in cursory manner supported conclusion
employer acted in bad faith). Peck worked for NGM for nearly
twenty years and received excellent evaluations. Despite many
years of good service. Peck was terminated after two short phone
calls with her supervisor regarding an issue that had already
been resolved the previous month. Further, Buchholz refused to
acknowledge her dispute with DeYoung's story despite learning she
had called human resources to dispute that she had resigned.
Under these circumstances. Peck has offered sufficient evidence
to survive a motion for summary judgment claiming the sufficiency
of her proof of bad faith.
2. Public Policy
"'Unless an employee at will identifies a specific
expression of public policy, he [or she] may be discharged with
or without cause.'" Id. at 920, 436 A.2d at 1143 (citations
22 omitted). Although a specific public policy must be identified,
the expression of that policy need not be found in a statute nor
must it be "so strongly stated that its existence would be
established ... as a matter of law." Bourque v. Town of Bow, 736
F. Supp. 398, 401 (D.N.H. 1990) (citing Cloutier, 121 N.H. at
922, 924). Nevertheless, "an employee's expression of
disagreement with a management decision is not an act protected
by public policy." Short, 136 N.H. at 85, 612 A.2d at 370
(business reasons exception to prohibition against retaliatory
discharge in violation of public policy); accord Miesowicz v.
Essex Group, Inc., Civil No. 91-667-JD, slip op. at 4 (D.N.H.
Apr. 12, 1994) (termination for disagreement with management
policy not actionable even if discharge is harsh or unfair).
Whether a public policy exists is usually a guestion for the jury
unless the absence of a policy is so clear that the court can
rule as a matter of law. Short, 136 N.H. at 86, 612 A.2d at 371;
Cloutier, 121 N.H. at 924, 436 A.2d at 1145 (existence of public
policy reguires multifaceted balancing test properly left to
jury's determination).
Peck cites two acts that public policy would encourage: (1)
guestioning her status with NGM after becoming suspicious that
NGM was attempting to fire her; and (2) attempting to obtain
23 relief from her overtime obligations. Whether either of these
alleged public policies are sufficient to support her wrongful
termination claim involves a guestion of fact that must be left
to the jury to resolve. Therefore, I deny defendant's motion for
summary judgment on this claim. See Fed. R. Civ. P. 56(c) .
E. The Intentional Interference with Contractual Relations Claim
Peck claims that the individual defendants intentionally
interfered with her employment relationship with NGM. In order
to prove intentional interference with contractual relations, the
plaintiff must show: (1) the existence of an economic
relationship with a third party; (2) the defendant knew of that
relationship; (3) the defendant intentionally and improperly
interfered with this relationship; and (4) the plaintiff was
damaged by such interference. Soltani v. Smith, 812 F. Supp.
1280, 1296 (D.N.H. 1993). Whether an employer can be deemed a
third party where the defendants are employees of the employer,
depends upon whether the individual defendants acted within the
scope of their employment. See id. at 12 97; see also Alexander
v. Fujitsu Business Communication Svs., Inc., 818 F. Supp. 4 62,
470 (D.N.H. 1993); Gram v. Liberty Mutual Ins. Co., 384 Mass.
659, 663, 429 N.E.2d 21, 24 (1981) (freedom to effect corporate
24 purpose should not be curtailed by fear of individual liability).
" [A]n individual [is] not acting within the scope of his
employment if his decision 'was motivated by actual malice',
where 'actual malice' is defined as 'bad faith, personal ill-
will, spite, hostility, or a deliberate intent to harm the
plaintiff.'" Soltani, 812 F. Supp. at 1297 (emphasis omitted);
see also Daigle v. City of Portsmouth, 129 N.H. 561, 580, 534
A.2d 689, 699 (1987) (act performed in furtherance of business is
within scope of employment).
Defendants argue that plaintiff's claim must fail because
the individual defendants were acting within the scope of their
employment, and therefore, NGM cannot be considered a third
party.9 In response. Peck contends that whether the individual
defendants were acting within the scope of their employment is a
factual determination for the jury.
9 Defendants also argue that this claim is deficient because plaintiff inconsistently contends in her respondeat superior count (Count VII) that the individual defendants were acting within the scope of their employment. I agree with plaintiff with respect to this portion of the defendants' argument. The statements in Count VII with respect to vicarious liability, although inconsistent with this count, are permissible under Fed. R.Civ. P. 8 (e) (2) .
25 1. DeYoung
Peck asserts that DeYoung acted in bad faith in fabricating
the story about her resignation in order to avoid his
responsibilities as her supervisor. In support of her claim.
Peck offers evidence that DeYoung's evaluations and raises
suffered because of his failure to properly undertake his
supervisory responsibilities and that he demonstrated an
unwillingness to either supervise or communicate with Peck. She
argues that a reasonable jury could infer from this evidence that
DeYoung acted with spite or hostility towards Peck in relaying
the false story that she had guit. I agree. Thus, DeYoung is
not entitled to summary judgment with respect to this claim.
2. Buchholz and Schwartz
Peck has failed to identify any evidence to support her
claim that Buchholz and Schwartz acted beyond the scope of their
employment. Thus, both defendants are entitled to summary
judgment with respect to these claims.
F. Other Claims
1. Negligent Supervision
Peck argues that NGM and Buchholz negligently failed to
supervise NGM's employees in such a way as to prevent them from
(1) unreasonably terminating other employees; (2) discriminating
26 against other employees; and (3) causing other employees to work
excessive hours without compensation. Although the New Hampshire
Supreme Court has recognized a tort of negligent supervision in
limited circumstances, see Cutter v. Town of Farmington, 126 N.H.
836 (1985), plaintiff concedes that the court has never extended
the tort in the manner plaintiff suggests. Moreover, several
other jurisdictions have rejected efforts to expand the tort to
cover claims such as those that plaintiff seeks to raise. See,
e.g., Pulson v. Davis, 895 F.2d 705, 710 (10th Cir. 1990); Maxev
v. M.H.M., Inc., 828 F. Supp. 376, 378 (D. Md. 1993); Chesapeake
& Potomac Tel. Co. v. Dowdy, 365 S.E.2d 751, 754 (Va. 1988); .
In the face of this conflicting precedent, I decline to recognize
a right of action that has not yet been authorized by the New
Hampshire Supreme Court. See Putnam Resources v. Pateman, 958
F.2d 448, 470 (1st Cir. 1992); Public Serv. Co. v. Hudson Light &
Power Dept., 938 F.2d 338, 346 (1st Cir. 1991) . Accordingly, I
grant defendants' summary judgment motion with respect to this
claim.
2. Respondeat Superior/Vicarious Liability
In Count VII, Peck asserts that NGM is liable for the
actions of the individual employees based on the theory of
respondeat superior. Trahan-Laroche, slip op. at 3 (citations
27 omitted). Plaintiff's remaining claims do not assert that the
individual defendants engaged in any actionable conduct for which
NGM can be vicariously liable.10 Therefore, resort to theories
of indirect liability to recover from NGM are inapposite. Thus,
I grant defendants' motion for summary judgment with respect to
this claim.
III. CONCLUSION
For the foregoing reasons I grant in part (Counts IV
(against Buchholz and Schwartz), VI, and VII), and deny in part
(Counts I, II, III, IV (against DeYoung) defendants' Motion for
Summary Judgment (document no. 18).
SO ORDERED.
Paul Barbadoro United States District Judge June 21, 1995 cc: Gordon Rehnborg Joseph Hoppock
10 While Peck's claim against DeYoung for intentional interference with contractual relations survives, the basis for that claim is that DeYoung acted outside the scope of his employment. Therefore, even if respondeat superior liability were applicable in this case, it is not a basis to hold an employer liable if the employee acts outside the scope of his or her employment.