O'Brien v. Papa Gino's of America, Inc., 85-1231
| Decision Date | 02 January 1986 |
| Docket Number | No. 85-1231,85-1231 |
| Citation | 780 F.2d 1067 |
| Parties | 121 L.R.R.M. (BNA) 2321, 39 Empl. Prac. Dec. P 36,034, 104 Lab.Cas. P 55,547, 1 Indiv.Empl.Rts.Cas. 458, 20 Fed. R. Evid. Serv. 448 John J. O'BRIEN, Plaintiff, Appellee, v. PAPA GINO'S OF AMERICA, INC., Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Sterling H. Schoen, Jr. with whom Wiggin & Nourie and Edward L. Cross, Manchester, N.H., were on brief, for defendant, appellant.
Randolph J. Reis with whom Brown & Nixon and Jill A. Gonya, Manchester, N.H., were on brief, for plaintiff, appellee.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.
This is an appeal from a jury verdict awarding plaintiff/appellee $448,200 in damages arising from his dismissal from the defendant/appellant's employment. The appellant claims error in the district court's refusal to direct a verdict in its favor, grant a judgment notwithstanding the verdict, or allow a new trial.
The lawsuit arose from the following set of facts. In 1973 appellee John O'Brien was hired by appellant Papa Gino's of America, Inc., a "fast food" restaurant chain. O'Brien continued working there for approximately nine and a half years, up until September 1982. At that time O'Brien was an area supervisor for 28 stores and 450-550 employees, and was earning a salary of approximately $37,000.
Sometime during 1982 O'Brien had a falling out with higher level management which ultimately led to his discharge on September 7, 1982. Testimony by the parties and their witnesses was sharply contrasting in regard to the events leading to O'Brien's dismissal. O'Brien contended he was fired for failing to promote an employee under his supervision who was the son of one of plaintiff's superiors, and godson to the president of Papa Gino's. The appellee on the other hand contended that O'Brien was dismissed solely for poor job performance and for violating a company policy prohibiting employees from using illegal drugs.
After O'Brien was confronted by a superior with rumors that he had been seen using drugs outside of work, O'Brien took a polygraph examination and answered questions relating to his alleged drug use. O'Brien later claimed he was forced to take the test under the threat of losing his job. He also stated that during the examination he was asked about matters that were unrelated to his employment and which he was entitled to keep private. Appellant on the other hand claimed that O'Brien took the polygraph examination completely voluntarily to dispell the suspicion that he used drugs. When the examiner's report from the polygraph test indicated that he believed O'Brien was lying about using drugs, O'Brien was dismissed.
O'Brien filed a complaint in the Hillsborough County Superior Court of the State of New Hampshire, and the defendant requested removal to federal court. Following a week-long trial, the jury answered seven special verdict questions, finding in favor of O'Brien on his claims of defamation and invasion of privacy, and in favor of Papa Gino's on the wrongful discharge claim.
Papa Gino's appeals the verdicts on several grounds. First, it argues that the jury's answers to two of the seven special verdict questions are "hopelessly inconsistent" with each other, thus requiring a remand for clarification of the jury's findings. See Andrasko v. Chamberlain Mfg. Corp., 608 F.2d 944, 947 (3d Cir.1979). Appellant refers to the following two special verdict questions:
Based on a preponderance of the evidence, do you find that the discharge of the plaintiff O'Brien was in violation of public policy in that Mr. O'Brien was discharged for either performing an act which public policy favors or for refusing to perform an act which public policy condemns?
Answer : No.
Based on a preponderance of the evidence, do you find that the actions of the defendant, Papa Gino's of America, Inc., with reference to allegations of drug abuse by plaintiff O'Brien and the methods adopted by the defendant in its investigation of such allegations would be highly offensive to a reasonable person and were invasive of the plaintiff's privacy?
Answer : Yes.
Appellant engages in an exercise of analytical acrobatics to construe these answers in a manner that will make them contradict each other. Our inquiry with respect to potentially conflicting special verdicts, however, is not whether any possible construction exists that would tend to show jury confusion. The court must attempt to harmonize the jury's answers if it is possible to do so under a fair reading of them. Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963); Andrasko, supra at 947.
Special verdict question number two was posited by the court to determine whether the necessary elements for a claim of wrongful discharge had been established. Under New Hampshire law, a plaintiff must show, first, that the defendant was motivated by bad faith, malice, or retaliation and, second, that the plaintiff was discharged because he performed an act that public policy would encourage, or refused to do something that public policy would condemn. Cloutier v. Great Atlantic & Pacific Tea Co., Inc., 121 N.H. 915, 436 A.2d 1140, 1143, 1144 (1981). At trial, the plaintiff's attorney tried to prove this second element by arguing to the jury that O'Brien had acted in accordance with public policy when he resisted taking and answering truthfully an invasive polygraph test. The defense, on the other hand, argued that O'Brien's attempt to deceive the polygraph examiner by visiting a hypnotist beforehand was actually against public policy.
In its answer to special verdict question one, the jury found that O'Brien's discharge was motivated by bad faith, malice, or retaliation. 1 This satisfied the first element of the Cloutier test for wrongful discharge. In its answer to special verdict question two, however, the jury indicated that O'Brien had failed to establish the second, public policy element. Thus, in effect the jury held for defendant on the wrongful discharge issue.
Special verdict question three related to a separate cause of action, O'Brien's invasion of privacy claim. Here the jury was asked to state whether Papa Gino's investigative techniques "would be highly offensive to a reasonable person and were invasive of plaintiff's privacy." This question received an affirmative answer, indicating the jury's belief that O'Brien had been coerced into taking the polygraph examination. We see no logical difficulty in accepting together the jury's findings that O'Brien's action regarding the polygraph was not favored by public policy while at the same time the defendant had improperly pressured O'Brien into taking the examination. Consequently we decline to rule these special verdict questions irreconcilable.
Papa Gino's second claim of error is that it was entitled to a directed verdict because the plaintiff presented no evidence at all that he was discharged for a retaliatory motive, which was essential to proving all his claims. The transcript belies such an assertion. At least two witnesses, Michael Valerio and William Kindler, gave testimony from which a jury could infer that O'Brien was fired for his failure to promote the particular Papa Gino's employee mentioned above. If the jury chose to give this testimony full credence, it was well within its province to do so. Oxford Shipping Co., Ltd. v. New Hampshire Trading Corp., 697 F.2d 1, 5 (1st Cir.1982).
Papa Gino's third claim is that O'Brien's right to privacy could not have been invaded since he essentially contracted away such rights with regard to his use of drugs. Because the company personnel manual forbids drug use by employees, the appellant reasons that O'Brien impliedly gave permission in his employment contract for the company to make whatever investigations it deemed necessary, including the polygraph examination. Even if we were to read O'Brien's agreement with Papa Gino's so broadly as to give implied permission for polygraph examinations generally, it would not negate the jury's finding that the particular investigation conducted was "highly offensive" and invasive of plaintiff's privacy. Such a finding of egregious offensiveness in the particular case would indicate that the defendant's conduct exceeded the scope of any consent O'Brien had arguably given by accepting employment at Papa Gino's.
Appellant's fourth argument relates to the requirement of proximate cause for a finding of liability. It asserts that the report from the polygraph examination was not the proximate cause of O'Brien's damages, because, by O'Brien's own allegation, he was fired not for failing the polygraph test, but rather for not promoting the son of his supervisor. O'Brien responds that the promotion issue was indeed the motive for his dismissal, but it was the results of the offensive polygraph test that ultimately convinced the executive committee to vote to dismiss him. Papa Gino's own witnesses testified that the committee's decision was made very shortly after O'Brien failed the test. In this context, it was a factual question for the jury to decide whether, according to proximate cause analysis, the polygraph results were a "substantial factor" in the committee's decision to terminate O'Brien. Such findings by the jury are conclusive unless they are clearly against the weight of the evidence. We do not find them to be so here and, therefore, reject appellant's argument on this issue. See Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 11 (1st Cir.1982) (); Tullgren v. Amoskeag Manufacturing Co., 82 N.H. 268, 133 A. 4 (1926) (same). 2
Appellant's fifth claim is that it cannot be held liable under the defamation charge because (i) the statement "O'Brien was terminated for drug use" was...
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