Bourque v. Town of Bow

• Decision Date: 02 May 1990
• Docket Number: No. C-88-340-L.,C-88-340-L.
• Citation: 736 F. Supp. 398
• Parties: Gerard J. BOURQUE v. The TOWN OF BOW, et al.
• Court: U.S. District Court — District of New Hampshire

736 F. Supp. 398

Gerard J. BOURQUE v. The TOWN OF BOW, et al.

No. C-88-340-L.

United States District Court, D. New Hampshire.

May 2, 1990.

Wiggin & Nourie by Diane M. Smith, Manchester, N.H., for plaintiff.

McLane, Graf, Raulerson & Middleton by Robert E. Jauron and Jack B. Middleton, Manchester, N.H., for defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

LOUGHLIN, Senior District Judge.

Plaintiff, Gerald T. Bourque, filed this civil rights action alleging the defendants unlawfully terminated him from his position as a town employee. Plaintiff sued the Town of Bow, New Hampshire, and its road agent, Leighton Cleverly. Also named as defendants are three selectmen for the Town of Bow: Eric E. Anderson, Alfred H. Ward, and Sara H. Swenson. The latter three defendants have been sued in their individual as well as their official capacities. The court's jurisdiction is based on 28 U.S.C. § 1331 and § 1343.

Plaintiff alleges the following facts. He was hired by the Town of Bow on February 20, 1985, as a mechanic, although he subsequently assumed additional duties that were not within his job description. Defendant Cleverly was plaintiff's supervisor.

Plaintiff alleges that his own work was performed satisfactorily and he was never reprimanded. Nevertheless,

during Gerard Bourque's term of employment he was regularly subjected to harassment by Leighton Cleverly, including but not limited to, criticizing the plaintiff's reliance on repair manuals when he knew it was necessary for proper completion of repairs, telling the plaintiff he had to do "perfect repairs" but that he was not allowed to spend money to do so, instructing the plaintiff's helper to break into the plaintiff's tool box while the plaintiff was on sick leave and setting off firecrackers behind the plaintiff while he was in the process of completing a welding job.

Complaint, ¶ 12.

Plaintiff discussed the alleged harassment with Defendant Anderson, who assured plaintiff "the problems would be addressed." Id., ¶ 13. Plaintiff also complained to Anderson of certain "shortcomings" of Cleverly, including plaintiff's allegations that Cleverly consumed alcoholic beverages while working, abused town vehicles, and failed in his duties as supervisor.

Elections for the Town of Bow were held on March 8, 1988. Prior to that day, plaintiff's political support was solicited by a campaign worker of defendant Swenson. The plaintiff declined to lend such support. Subsequently, Swenson was successful in her bid for a seat on the board of selectmen. Plaintiff alleges that defendant Cleverly, who was a supporter of Swenson, increased his harassment of plaintiff after the election.

Ultimately, plaintiff alleges his pre-existing heart condition was exacerbated by Cleverly's harassment. On April 1, 1988, plaintiff was hospitalized with severe angina pain. Plaintiff's physician wrote to defendant Anderson, stating "Cleverly's harassment of plaintiff constituted a threat to plaintiff's health and life." Id., ¶ 18. Plaintiff met with the Board of Selectmen on April 5, 1988, concerning his health condition and problems with Cleverly. Subsequently, plaintiff was advised by the selectmen that the town desired his continued employment but his job required working with defendant Cleverly. The selectmen also advised plaintiff that they were "willing to abide" by any decision plaintiff made concerning his employment.

In writing, plaintiff then requested "a few weeks sick leave." Id., ¶ 20. Two days after the selectmen received plaintiff's request, he was informed by the selectmen that his employment was terminated immediately due to his "expressed inability to work with Mr. Cleverly and the Board of Selectmen." Id., ¶ 21. Plaintiff's employment with the Town of Bow was terminated on April 14, 1988.

Plaintiff then filed this suit, claiming his termination by the Town of Bow was motivated by bad faith and malice and was based on retaliatory motives, that defendants Cleverly and Swenson intentionally and negligently caused plaintiff's severe emotional distress, and that the defendants have violated plaintiff's constitutionally secured rights by their actions. Plaintiff seeks recovery for economic and personal injuries he sustained as a result of the defendants' acts.

The defendants have moved for summary judgment on all of plaintiff's claims.

Summary judgment is proper only if, viewing the record in the light most favorable to the nonmoving party, the documents on file disclose no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988); Fed.R.Civ.P. 56(c). "Only disputes over facts that might affect the outcome of the suit" are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; Oliver, 846 F.2d at 105. The moving party initially must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party has made the required showing, the adverse party must "go beyond the pleadings" and designate specific facts to demonstrate the existence of a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553; Oliver, 846 F.2d at 105; Fed.R.Civ.P. 56(e). The federal rules "mandate the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552.

I. Wrongful Discharge

In his first claim, plaintiff alleges he was wrongfully discharged as a result of his complaints against his supervisor and his refusal to support the candidacy of defendant Swenson.

The legal theory of wrongful discharge, as it has developed in New Hampshire, was outlined by this court in Vandegrift v. American Brands Corporation, 572 F.Supp. 496 (D.N.H.1983):

In Monge v. Beebe Rubber Company, 114 N.H. 130, 133, 316 A.2d 549, 551 (1974), the Supreme Court held that termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not in the best interest of the economic system or the public good and constitutes a breach of the at-will employment contract....

The New Hampshire Supreme Court in Howard v. Dorr Woolen Company, 120 N.H. 295, 297, 414 A.2d 1273, 1274 (1980), construed Monge to apply only to a situation where an employee is discharged because he performed an act that public policy would encourage, or refused to do that which public policy would condemn.... Howard cast public policy into the limelight but drew bad faith, malice, and retaliation backstage.

Id. at 497-98; accord Brewer v. K.W. Thompson Tool Co., 647 F.Supp. 1562, 1564-65 (D.N.H.1986).

The following year, the New Hampshire Supreme Court dispelled any seeming inconsistencies resulting from its decisions in Monge and Howard, in Cloutier v. Great Atlantic & Pacific Tea Company, 121 N.H. 915, 436 A.2d 1140 (1981). In Cloutier, the court fashioned a two-part test. The plaintiff must first show his discharge was motivated by the defendant's bad faith, malice, or retaliation. Id. at 921, 436 A.2d 1140; Monge, 114 N.H. at 133, 316 A.2d 549. "Second, the plaintiff must demonstrate that he was discharged because he performed an act that public policy would encourage, or refused to do something that public policy would condemn." Cloutier, 121 N.H. at 922, 436 A.2d 1140; Howard, 120 N.H. at 297, 414 A.2d 1273.

With respect to the latter half of the Cloutier test, the court held that the public policy in issue need not be "enunciated in a statute." Cloutier, 121 N.H. at 292, 436 A.2d 1140. Nor is it required that the public policy be so strongly and clearly stated that its existence would "be established or not established as a matter of law...." Id. at 924, 436 A.2d 1140. Rather, the determination of whether such a public policy exists is usually an issue requiring jury determination. Id.

The defendants set forth several arguments in favor of their motion for summary judgment on Count I. First, defendants argue that the plaintiff has no claim against the defendants as individuals since the plaintiff was not employed by the defendants in their individual capacity. Plaintiff does not dispute that he was employed only by the Town of Bow. Since the existence of an employment contract is, perhaps, the most fundamental prerequisite to a claim of wrongful discharge, see, e.g., Vandegrift, 572 F.Supp. at 499, the court summarily grants judgment to the defendants on Count I insofar as it states a claim against the defendants in their individual capacity.

The defendants also argue that summary judgment is appropriate on Count I since there are no material issues of fact and the plaintiff has failed to make a prima facie showing that he was wrongfully discharged. The defendants contend that it is undisputed that the plaintiff was discharged as a result of his inability to get along with his supervisor, defendant Cleverly. In support of their argument, the defendants submit their own affidavits and deposition testimony, plaintiff's deposition testimony and his answers to the defendants' interrogatories, a sworn statement of a witness to an incident alleged by plaintiff, and several documents, including correspondence between the parties and copies of reports evaluating plaintiff's performance while employed by the Town of Bow. Viewing this evidence in the light most favorable to the plaintiff, the court is satisfied that the defendants have met their burden, under Rule 56, of establishing no material issue exists concerning pl...