Cloutier v. Great Atlantic & Pac. Tea Co., Inc.

• Court: New Hampshire Supreme Court
• Writing for the Court: DOUGLAS; BOIS
• Citation: Cloutier v. Great Atlantic & Pac. Tea Co., Inc., 436 A.2d 1140, 121 N.H. 915 (N.H. 1981)
• Decision Date: 30 October 1981
• Docket Number: No. 80-305,80-305
• Parties: , 115 L.R.R.M. (BNA) 4329, 96 Lab.Cas. P 55,378, 11 O.S.H. Cas. (BNA) 1149 David J. CLOUTIER v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

Page 1140

436 A.2d 1140

121 N.H. 915, 115 L.R.R.M. (BNA) 4329, 96 Lab.Cas. P 55,378,

11 O.S.H. Cas. (BNA) 1149

David J. CLOUTIER v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

No. 80-305.

Supreme Court of New Hampshire.

Oct. 30, 1981.

Gallagher, Callahan & Gartrell, P. A., Concord (Edward E. Shumaker, III, Concord, on the brief and orally), for plaintiff.

Sulloway, Hollis & Soden, Concord (Robert M. Larsen, Concord, on the brief and orally), for defendant.

DOUGLAS, Justice.

In this appeal we essentially are asked to decide whether the plaintiff sufficiently established a public policy to satisfy the test for the wrongful discharge of an employee set forth in Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273 (1980). Our review of the record reveals that there was a sufficient nexus between the public policy asserted by the plaintiff and the reasons for his discharge. Accordingly, we affirm the trial court.

From 1939 until his termination on January 13, 1977, with the exception of three years out for military service, David Cloutier, the plaintiff, was employed by the Great Atlantic and Pacific Tea Company (A & P), the defendant. During this period he held a variety of positions, rising from a clerk to a store manager. Evidence was presented at trial that he had been an exemplary employee who had received several awards and commendations, in addition to numerous increases in salary.

In July 1975, A & P opened a new store in Tilton and awarded the position of manager to the plaintiff. Although the employees of the store were covered by a collective bargaining agreement, the plaintiff, because of his managerial position, was excluded from coverage under the agreement. See 29 U.S.C. §§ 152(11) and 164(a) (1976). Based on the plaintiff's assertion that "it was very dangerous up here," the defendant gave permission to the plaintiff to secure protection for company employees making cash deposits on their way from the new store to the bank. Soon thereafter, this protection was provided by local police at a charge of $3 per trip. Approximately five to six months later, the defendant notified the plaintiff that the police protection would be terminated. It appears from the testimony at trial that termination of protection at that time was consistent with company policy.

The testimony of the plaintiff and of Mr. Cote, the assistant manager of the store, indicated that both men had complained to their supervisors about the discontinuance of police protection. The plaintiff testified that his supervisors had told him to lock up any funds for deposit in the safe located in the store if any of the employees working under the plaintiff were afraid to go to the bank at night or during the weekend. An A & P superintendent stated that company policy after the termination of police protection required two daily deposits to be made by two store employees. The evidence indicated that the plaintiff himself continued to make regular deposits, although there was testimony that some of the weekend deposits were not always being made. Additionally, the collective bargaining agreement stated that store employees could not be required to use their vehicles to conduct employer business.

On the evening of Saturday, December 18, 1976, the plaintiff completed his seventh straight day of work at the store, taking a deposit to the bank before returning home. The next day, Sunday, was his scheduled day off. At midnight on Sunday, December 19, the plaintiff was called and informed that the store had been broken into and the safe burglarized. At the scene he learned that no deposits had been made that day and that the loss had totalled approximately $30,000. The funds had not been placed in a "barrel safe" as was required by company policy.

After an investigation, the defendant suspended the plaintiff, Mr. Cote, and the store bookkeeper. On January 17, 1977, the plaintiff was discharged because of his "violation of company bookkeeping procedure." The plaintiff then brought a wrongful discharge action against the defendant. After the Trial Court (Cann, J.) had denied the defendant's pretrial motion to dismiss, subsequent motion for non-suit, and motion for a directed verdict, the case was submitted to the jury, which returned a verdict for the plaintiff in the amount of $92,000 from which the defendant now appeals. The defendant argues that the trial court erred in denying its motion for a directed verdict at the close of all the evidence because the plaintiff did not aver a specific, statutory public policy protecting his conduct and giving rise to a wrongful discharge action.

The prevailing rule in the early nineteenth century presumed that an indefinite private hiring carried with it duties and responsibilities for both the master and servant. These early "customary obligations were (subsequently) recast in terms of the emerging theory of contract." Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L.Rev. 1816, 1824 (1980). Common law then evolved to the point where, in the absence of an employment contract, both parties were free at any time to terminate the employment relationship, with or without cause. American jurisprudence adopted what is commonly referred to as the "at-will" rule:

"With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. A hiring at so much a day, week, month or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but only at the rate fixed for whatever time the party may serve.... (I)t is an indefinite hiring and is determinable at the will of either party, and in this respect there is no distinction between domestic and other servants."

H. G. Wood, A Treatise on the Law of Master and Servant § 136, at 283-84 (2d ed. 1886); see Monge v. Beebe Rubber Co., 114 N.H. 130, 136, 316 A.2d 549, 553 (1974) (Grimes, J., dissenting). Although "the new climate prevailing generally in the relationship of employer and employee," Monge v. Beebe Rubber Co., 114 N.H. at 133, 316 A.2d at 551, has led to substantial qualifications to the "at-will" rule, e. g., Petermann v. Teamsters Local 396, 174 Cal.App.2d 184, 344 P.2d 25 (1959); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973); Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); Civil Rights Act of 1964, tit. VII, 42 U.S.C. § 2000e et seq. (1976), the rule retains its vitality in circumstances other than those carved out by legislative and judicial exception and those in which collective bargaining agreements apply.

Seven years ago, in Monge v. Beebe Rubber Co., 114 N.H. at 133, 316 A.2d at 551, the majority noted that "the employer's interest in running his business as he sees fit must be balanced against the interest of the employee in maintaining his employment, and the public's interest in maintaining a proper balance between the two," concluding that "a 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 of the public good and constitutes a breach of the employment contract." The rationale underlying Monge is that there is an implied covenant in every contractual relationship that the parties will carry out their obligations in good faith. Bursey v. Clement, 118 N.H. 412, 414, 387 A.2d 346, 347-48 (1978); Seaward Construction Co. v. City of Rochester, 118 N.H. 128, 129, 383 A.2d 707, 708 (1978). In Howard v. Dorr Woolen Company, 120 N.H. 295, 297, 414 A.2d 1273, 1274 (1980), "(w)e construe(d) 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," thereby limiting the Monge holding to the "public policy" exception. "(U)nless an employee at will identifies a specific expression of public policy, he may be discharged with or without cause." Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (1980). Id. at 72, 417 A.2d at 512. Accordingly, we must determine whether the plaintiff has articulated a public policy sufficient to give rise to a cause of action in tort under Howard and, therefore, sufficient to withstand the defendant's motion for a directed verdict. It is here that we part company with the dissent.

A trial court may grant a directed verdict "only when the evidence and all reasonable inferences therefrom, construed most favorably to the party opposing the motion, would not enable a jury to find for that party." London v. Perreault, 118 N.H. 392, 394, 387 A.2d 342, 344 (1978); Amabello v. Colonial Motors, 117 N.H. 556, 561, 374 A.2d 1182, 1185 (1977). The defendant's motion could only have been granted if the trial court found that the plaintiff's claim was completely without merit. This stringent test has not been met. Because we conclude that sufficient evidence was presented to enable the jury to find for the plaintiff, we affirm the trial court's decision denying the defendant's motion for a directed verdict.

The plaintiff has articulated a public policy sufficient to give rise to a cause of action under Howard. Howard and Monge together impose a two-part test which plaintiffs must meet to establish a wrongful discharge cause of action. First, the plaintiff must show that the defendant was motivated by bad faith, malice, or retaliation in terminating the plaintiff's employment. Monge v. Beebe Rubber Co., 114 N.H. at 133, 316 A.2d at 551. The plaintiff presented evidence from which reasonable persons could find that the defendant acted with bad faith, malice or retaliation.

The defendant's...