Mackenzie v. Linehan

• Decision Date: 03 April 2009
• Docket Number: No. 2008–302.,2008–302.
• Citation: 158 N.H. 476,969 A.2d 385
• Court: New Hampshire Supreme Court
• Parties: Jay A. MacKENZIE v. Daniel LINEHAN and another.

158 N.H. 476

969 A.2d 385

Jay A. MacKENZIE

v.Daniel LINEHAN and another.

No. 2008–302.

Supreme Court of New Hampshire.

Argued: Feb. 12, 2009.

Opinion Issued: April 3, 2009.

Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Peter G. Callaghan on the brief and orally), for the plaintiff.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Stephen J. Schulthess and Jill A. DeMello on the brief, and Mr. Schulthess orally), for defendant Daniel Linehan, individually and as High Sheriff of Rockingham County.

DALIANIS, J.

The plaintiff, Jay A. MacKenzie, appeals the Superior Court (McGuire, J. ) order granting the motion for judgment notwithstanding the verdict (JNOV) or, alternatively, to set aside the verdict, filed by the defendants, Rockingham County Sheriff Daniel Linehan and Rockingham County. The trial court's decision overturned a $500,000 jury verdict award in favor of the plaintiff upon his claims for wrongful termination and false imprisonment. We affirm in part, reverse in part and remand.

The trial court recited the following facts in its order. The plaintiff was a deputy sheriff for Rockingham County. While off duty on the evening of April 23, 2004, the plaintiff went to a bar with Deputy Sheriff Christopher Stone. The plaintiff and Stone left the bar and, while in the parking lot, Stone stopped to urinate. A man, later identified as Anthony Kobelenz, approached the two deputies, demanding to use a cell phone. Kobelenz's face was bloody, he was not wearing a shirt, and he appeared mentally unstable. Kobelenz carried a bag, which the plaintiff and Stone feared might contain a gun. The plaintiff identified himself as a deputy sheriff and asked Kobelenz for identification. Kobelenz gave the plaintiff his identification, but then became agitated and tackled the plaintiff to the ground. Stone pulled Kobelenz off of the plaintiff, and Kobelenz left the area without his bag. As he left, he took photographs of both deputies. The plaintiff and Stone put the bag in some bushes so that Kobelenz could retrieve it and left the scene without contacting the police.

Shortly thereafter, Kobelenz pulled a fire alarm to which the Exeter Fire Department and Stratham Police Department responded. He told a Stratham police officer that he had been assaulted by two plain-clothed police officers. Kobelenz was placed in protective custody and taken to jail. Approximately an hour later, he was released to a family member. The next day, he went to the Stratham Police Department with the photographs he had taken of the plaintiff and Stone the previous night. Kobelenz told Stratham officers that the photographs were of the two plain-clothed police officers who had assaulted him. The Stratham officers consulted with members of the Exeter Police Department, who identified the photographed men as the plaintiff and Stone. Stratham Police Chief Michael Daley called defendant Linehan, informed him of Kobelenz's allegations, and told them that he intended to ask the Attorney General to investigate the matter.

Defendant Linehan also began an internal investigation, as a result of which the plaintiff, but not Stone, was suspended. When questioned about the incident, the plaintiff refused to acknowledge that his conduct violated the Rockingham County Sheriff Department's rules and regulations.

On May 26, 2004, defendant Linehan held a hearing during which the plaintiff was fired for violating the Rockingham County Sheriff Department's "personal behavior rule," which provides, in pertinent part:

Each Department Member shall, while on or off duty, conduct themselves [sic ] in a manner that will reflect credit on themselves [sic ] and the Rockingham County [S]heriff's Department. No employee shall engage in conduct which tends to bring the Department into disrepute or reflects discredit upon the employee as a member of the Department or which tends to impair the operation or efficiency of the Department or the employee. The conduct required includes but is in no sense limited to:

1. The civil and orderly performance of duties, at all times maintaining temper, patience and discretion.

2. Being scrupulously careful toward members of both sexes, and in such relations all employees are required to maintain a level of moral conduct in their personal and official affairs which is in keeping with the highest standards of the law enforcement profession. Department Members shall not participate in any incident involving immoral conduct which impairs their ability to perform as employees of the Rockingham County Sheriff's Department or causes the Rockingham County Sheriff's Department to be brought into disrepute.

After defendant Linehan informed the plaintiff that he was fired, he blocked the door for thirty seconds and did not allow the plaintiff to leave the room so that he could provide him with further instructions.

The April 2004 incident was not the first disciplinary incident in the plaintiff's record; he was previously reprimanded for assaulting a taxicab driver while off duty and intoxicated, and twice reprimanded for disobeying orders.

The plaintiff sued the defendants for wrongful discharge and false imprisonment. These claims were tried to a jury. At the close of evidence, the defendants moved for a directed verdict upon which the court deferred ruling. The jury found in the plaintiff's favor and awarded him $500,000 in damages. Thereafter, the defendants renewed their motion for directed verdict and moved as well for JNOV and to set aside the jury verdict. The trial court granted the motion, and this appeal followed.

I. Wrongful Discharge Claim

The plaintiff first argues that the trial court erred by granting the defendants' motion for JNOV upon his wrongful discharge claim. A motion for JNOV based upon the sufficiency of the evidence presents a question of law. Gowen v. Brothers, 121 N.H. 377, 380, 430 A.2d 159 (1981). A party is entitled to JNOV based upon the sufficiency of the evidence only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand. See Boynton v. Figueroa, 154 N.H. 592, 602, 913 A.2d 697 (2006). In deciding whether to grant the motion, the trial court cannot weigh the evidence or inquire into the credibility of witnesses. Id. If the evidence adduced at trial is conflicting, or if several reasonable inferences may be drawn, the court must deny the motion. Id. Here, in reviewing the trial court's grant of a motion for JNOV, we objectively review the record to determine whether any rational trier of fact could have found the essential elements of the plaintiff's claims, and will reinstate the jury's verdict unless no rational trier of fact could have ruled in the plaintiff's favor, considering the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff. See State v. Spinale, 156 N.H. 456, 464, 937 A.2d 938 (2006) ; State v. O'Neill, 134 N.H. 182, 184, 589 A.2d 999 (1991) (holding that similar standard of review applies in criminal and civil cases).

To prevail upon his wrongful discharge claim, the plaintiff had to establish that: (1) his termination was motivated by bad faith, retaliation or malice; and (2) that he was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn. Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248, 910 A.2d 1262 (2006). In its instructions, the trial court gave the jury the following examples:

As an example of a person doing some act which public policy encourages, let us say that an employee is discharged because he or she reports for Jury duty.

If the employer acted with malice or in bad faith or any retaliation, and because the employee performed Jury duty, an act which public policy would encourage, the employee is entitled to seek damages for wrongful termination.

As an example of a person refusing to do an act which public policy would condemn, let us say that an employee is requested by his employer to falsify records for the IRS. The employee refuses and is discharged for his refusal. Again, if the employer acted with malice and bad faith or in retaliation, the employee is entitled to recover his damages for wrongful termination because falsifying financial information for the IRS would certainly be an act which public policy would condemn.

The trial court concluded as a matter of law that the plaintiff failed to prove the second element of his wrongful discharge claim. While the court acknowledged that whether the discharge of an employee implicated a public policy is generally a question for the jury, the court reasoned, "[N]o rational fact finder could conclude that [the plaintiff] was fired for performing an act that public policy would encourage or for refusing to do something that public policy would condemn." See Cloutier v. A & P Tea Co., Inc., 121 N.H. 915, 924, 436 A.2d 1140 (1981) ; Short v. School Admin. Unit 16, 136 N.H. 76, 84, 612 A.2d 364 (1992).

The plaintiff argues that a rational fact finder reasonably could have found that defendant Linehan terminated him because he refused to concede that his off-duty conduct violated certain rules. His termination, he argues, implicates a public policy that favors truthfulness. As he states: "There was evidence from which the jury could reasonably have found that [he] was terminated for refusing to lie to save his job and that public policy supports such truthfulness." See Cilley v. N.H. Ball Bearings, Inc., 128 N.H. 401, 406, 514 A.2d 818 (1986). While we agree that public policy generally supports truthfulness and that terminating an employee for refusing to lie to protect his job could implicate this public policy, see id., we disagree with the plaintiff that a rational fact finder reasonably could have found that he was terminated for this...