January 22, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1802
JOHN J. MACDONALD,
Plaintiff, Appellant,
v.
TANDY CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Francis J. Boyle,* U.S. District Judge]
Before
Selya, Circuit Judge,
Higginbotham,** Senior Circuit Judge,
and Cyr, Circuit Judge.
Andru H. Volinsky with whom Mary E. Davis, and Shaheen,
Cappiello, Stein & Gordon, P.A. were on brief for appellant.
Russell F. Hilliard with whom Ernest T. Smith, III, and Upton,
Sanders & Smith were on brief for appellee.
* Of the District of Rhode Island, sitting by designation.
** Of the Third Circuit, sitting by designation.
HIGGINBOTHAM, Senior Circuit Judge. This is an appeal
from a grant of a judgment n.o.v. in favor of defendant, Tandy
Corporation, and against plaintiff, John J. MacDonald. MacDonald
was fired from his job as a sales-trainee at a store owned by
Tandy in Manchester, New Hampshire because Tandy suspected that
MacDonald had stolen money from the store's cash register.
MacDonald brought an action against Tandy, alleging wrongful
discharge under New Hampshire law. MacDonald claimed that Tandy
fired him because he had cooperated with Tandy's theft
investigation. Cooperation with an employer's theft
investigation, according to MacDonald, is conduct protected by
New Hampshire public policy. Therefore, MacDonald argued his
firing was unlawful under New Hampshire law.
The action went to trial before a jury in the United
States District Court for the District of New Hampshire. The
jury returned a verdict in MacDonald's favor in the amount of
$101,000 damages. Tandy moved for a judgment n.o.v. and, in the
alternative, a new trial. The district court granted Tandy's
first motion, and entered a judgment n.o.v.. The court found
that MacDonald had failed to show that his conduct was protected
by public policy. The court also found that, even if MacDonald's
conduct was indeed protected by public policy, MacDonald had
failed to show that he was fired because of the protected
conduct.
MacDonald now appeals. Because we agree that MacDonald
failed to show that he was fired because of conduct protected by
New Hampshire public policy, we will affirm the district court's
grant of judgment n.o.v. in favor of Tandy.
I.
John J. MacDonald (MacDonald), who had been employed by
Tandy Corporation (owner of the Radio Shack stores) for six
years, was working as a trainee at the Radio Shack store located
in a shopping mall in Manchester, New Hampshire. On October 1,
1986, the store was closed at 9:43 p.m. by three Tandy employees,
David Jesperson (Jesperson), Al Aikens (Aikens), and Shirley
Cunningham (Cunningham). Jesperson, Aikens, and Cunningham left
the store together. As they left, the three employees set the
store's electronically controlled motion detection alarms.
At 9:47 p.m., Eastern Alarm, telephonically monitoring
the alarms from its offices in Portland, Maine, received a motion
alarm emanating from the Radio Shack store. Eastern Alarm called
the Manchester Radio Shack store by telephone but did not receive
an answer. Eastern Alarm received a second motion alarm two
minutes later. Eastern Alarm then called the Manchester Police
Department which dispatched a police unit to the store. Eastern
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Alarm also called the store manager, Brad Ackerman (Ackerman),
but was unable to reach him. Eastern Alarm therefore called
MacDonald, the second person on the Radio Shack list of employees
to be called. In response to the call, MacDonald left home and
came to the Radio Shack store, arriving at approximately 10:35
p.m. In his work with Tandy Corporation, MacDonald had
previously responded to over thirty such alarm calls.
When MacDonald arrived, he was met by mall security
personnel and informed that the doors to the store were secure
and that it was safe to enter. MacDonald used a key supplied to
him by the store manager and entered the store alone. He
remained alone in the store for approximately fifteen minutes.
MacDonald reset the alarm, put a few things in order for the next
day, locked the front door, and left.
On the morning of October 2, 1986, MacDonald also came
in alone to open up the store for the day's business. MacDonald
discovered $530.02, including $200.00 petty cash, missing from
one of two cash drawers. He immediately notified Ackerman.
MacDonald also informed Bill Hanlon (Hanlon), a loss prevention
manager for Tandy Corporation, of the missing funds.
The police arrived and questioned MacDonald. Later,
both Ackerman and Hanlon arrived and began a separate
interrogation. They questioned Jesperson, Aikens, Cunningham,
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and MacDonald individually. MacDonald stated that he did not
observe, either on the evening of October 1, 1986 or the morning
of October 2, 1986, when he opened the store, any signs of forced
entry, with respect to the rear or front doors or the cash
drawers. MacDonald also stated that he "did not notice if the
cash drawer was open when he went to the store on the night of
October 1, 1986."
During MacDonald's questioning, the subject of taking a
polygraph examination was raised. At trial, MacDonald testified
that he understood that Tandy wanted him to take the polygraph
and that Tandy planned to set up the polygraph exam. Further,
MacDonald understood that he would lose his career with Tandy if
he did not accede to the polygraph. On October 9, 1986,
MacDonald went to the Manchester Police Department for the
purpose of taking a polygraph examination with regard to the
missing funds. Officer Anthony Fowler conducted the examination
and scored it as a three chart cumulative total of -17 deceptive
and two chart cumulative total of -10 deceptive. In substance,
the conclusion was that MacDonald was not telling the truth.
MacDonald informed Radio Shack personnel of the polygraph
results.
On October 21, 1986, the home office of Tandy issued
orders that MacDonald was to be discharged. The reason for his
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separation was stated as follows: "failed to clear integrity
investigation. See Loss Prevention Report and Manchester, New
Hampshire Police Report for details." Tandy's Loss Prevention
Report, prepared by Hanlon, noted the circumstances of the
disappearance of the money and that MacDonald had failed to clear
the polygraph test.
As noted above, the action went to a jury trial, the
jury returned a verdict in MacDonald's favor in the amount of
$101,000 damages, and the defendant moved for a judgment n.o.v.
The district court then certified the following question to the
New Hampshire Supreme Court:
Do the facts and circumstances of this action
support a finding that public policy
encouraged the action of the plaintiff, or
does public policy condemn any action which
the plaintiff refused to take in connection
with the termination of his at-will
employment by the defendant?
After the New Hampshire Supreme Court declined to respond to this
certified question, the district court granted the motion for
judgment n.o.v..
The district court reasoned that the record failed to
show that Tandy decided to terminate MacDonald's employment
because he cooperated in Tandy's investigation of the missing
funds. The court also reasoned that MacDonald's action in taking
the polygraph was not in cooperation with an investigation being
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conducted by his employer but was rather in cooperation with an
investigation being conducted by the Manchester Police
Department.
II.
The district court had subject matter jurisdiction
pursuant to 28 U.S.C. 1332. We have appellate jurisdiction
prusuant to 28 U.S.C. 1291. In the First Circuit, a judgment
n.o.v. is reviewed under the same standard as a directed verdict:
[T]he evidence and all reasonable inferences
extractable therefrom must be examined in the
light most favorable to the nonmovant and a
judgment notwithstanding the verdict should
be granted only when the evidence, viewed
from this perspective, is such that
reasonable persons could reach but one
conclusion.
Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d
1364, 1383-84 (1st Cir. 1991).
New Hampshire law recognizes a wrongful discharge
exception to the common law rule of at-will employment as
follows:
[P]laintiffs must meet [a two-part test] 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. . . . Second, the
plaintiff must demonstrate that he was
discharged because he performed an act that
public policy would encourage, or refused to
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do something that public policy would
condemn.
Cloutier v. Great Atlantic & Pacific Tea Co., 436 A.2d 1140,
1143-44 (N.H. 1981); accord Short v. School Admin. Unit No. 16,
612 A.2d 364, 370 (N.H. 1992) ("To support a claim of wrongful
termination under State law, a plaintiff must establish two
elements: one, that the employer terminated the employment out
of bad faith, malice, or retaliation; and two, that the employer
terminated the employment because the employee performed acts
which public policy would encourage or because he refused to
perform acts which public policy would condemn.") (citation
omitted).
Resolution of the second prong of this test, whether
plaintiff's conduct for which he or she was discharged fell
within the parameters of public policy, is usually a question for
the jury:
[T]he existence of a `public policy' also
calls for the type of multifaceted balancing
process that is properly left to the jury in
most instances. . . . We believe it best to
allow the citizenry, through the institution
of the American jury, to strike the
appropriate balance in these difficult cases.
Cloutier, 436 A.2d at 1145. However, the jury's determination is
not entirely without bounds. "Although ordinarily the issue of
whether a public policy exists is a question for the jury, at
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times the presence or absence of such a public policy is so clear
that a court may rule on its existence as a matter of law and
take the question away from the jury." Short, 612 A.2d at 370.
Even if the alleged conduct is determined to be
protected by a public policy, a necessary element of the
plaintiff's case is to prove that he or she was actually
discharged because of such conduct. Thus, a causal link between
the conduct established to be protected by public policy and the
reason for the allegedly wrongful discharge is necessary to
satisfy the second prong of the New Hampshire test. As the New
Hampshire Supreme Court stated:
[T]he 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, 436 A.2d at 1144 (emphasis added). Where an employer
essentially penalized the employee for taking his regularly
scheduled day off, the court found "a sufficient nexus between
the public policy asserted by the plaintiff and the reasons for
his discharge." Id. at 1141; see also Cilley v. New Hampshire
Ball Bearings, Inc., 514 A.2d 818, 821 (N.H. 1986) (causation
element satisfied where plaintiff had alleged his termination
resulted from refusing to lie and that public policy supports
such truthfulness).
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In this case, we agree with the district court that
there is no evidence on this record to demonstrate that the
plaintiff was discharged because of conduct protected by a public
policy. The specific public policy asserted by MacDonald as a
justification for upholding the jury's verdict is that of
"cooperation with an employer's theft investigation."
Interpreted in the light most favorable to MacDonald, the record
shows that MacDonald was suspected of stealing money from his
employer, cooperated in the employer's investigation, was not
cleared by the investigation, and was terminated. MacDonald was
suspected of stealing the cash from Tandy because of the
circumstances under which the money was taken from the store.
MacDonald then cooperated with his employer's theft
investigation, the result of which did nothing to dispel his
employer's suspicions. We believe the district court drew the
only possible interpretation from these facts when it concluded
that MacDonald was dismissed because of the opportunity he had to
steal the money and because he was not cleared by the subsequent
investigation and not because he cooperated with his employer's
theft investigation. What is missing from the record is any
evidence to indicate that MacDonald was fired because he
cooperated with the employer's theft investigation.
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Without such causal linkage, MacDonald cannot assert an
exception to the at-will employment doctrine. We cannot accept
MacDonald's suggestion that his cooperation with his employer's
investigation immunizes him from the findings of the
investigation. It would defy logic if an employee by reason of
cooperation could be absolutely protected from the consequences
of the facts the cooperation yields. While it may not be the
best of business practice, a company is within its legal rights
to fire employees on such slender evidence indicating the
possibility of theft as is offered in the present case. See
Beery v. Maryland Medical Lab., Inc., 597 A.2d 516, 523-24 (Ct.
Md. Ct. Spec. App. 1991) (firing an employee on the basis of
unsubstantiated allegations can hardly be said to contravene any
clear mandate of public policy); Gillespie v. St. Joseph's Univ.,
513 A.2d 471, 472-73 (Pa. Super. 1986) (discharge of an employee
allegedly falsely accused of a crime of dishonesty not against a
clear mandate of public policy).
For the foregoing reasons, we will affirm the judgment
of the district court.
Affirmed.
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MacDonald v. Tandy Corporation
Combined Opinion