Solt v. Seiler Corp. CV-92-572-SD 01/23/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gail Solt

v. Civil No. 92-572-SD

The Seiler Corporation

O R D E R

In this diversity action, plaintiff Gail Solt seeks recovery

for wrongful termination against her former employer, defendant

Seiler Corporation. Presently before the court is defendant's

renewed motion for summary judgment, to which plaintiff objects.

Background

Seiler Corporation is in the business of providing food

services to various facilities such as hospitals and

universities. At all times relevant to this action, Seiler was

under contract to provide food services and food service

management to the New Hampshire Hospital.1

xNew Hampshire Hospital is part of New Hampshire's Division of Mental Health and Developmental Services. See generally New Hampshire Revised Statutes Annotated (RSA) 135-C:1 to C:67 (1990 & Supp. 19 93). Gail Solt was hired by Seiler as Chief Clinical Dietician

for the New Hampshire Hospital in January of 1989. In this

capacity, plaintiff had the authority to hire and fire the

dieticians and diet assistants who worked under her at the

hospital.

In December of 1990, plaintiff hired Ann O'Bara as a

dietician for the hospital.2 Plaintiff experienced "ongoing

problems" with O'Bara's job performance. Deposition of Gail Solt

at 35. Specifically, O'Bara "had incomplete charts. She was

late on following patients. She had misinformation . . . in

files, incomplete information." Id. As a result of these

ongoing problems, a decision was made to terminate O'Bara's

employment with the hospital. Dana Lancaster, Food Service

Director at the hospital and plaintiff's immediate supervisor,

states that the decision to terminate O'Bara "was a mutual

agreement between administration, personnel, Gail [Solt] and

myself." New Hampshire Department of Employment Security Hearing

Transcript (hereinafter DES Transcript) at 33. See also

Deposition of Dana Lancaster at 23. Plaintiff asserts she was

advised and directed by the hospital administration and the

Seiler management staff to terminate O'Bara's employment.

2In this position, O'Bara was an employee of the State of New Hampshire.

2 On December 4, 1991, with the knowledge and consent of her

supervisors, plaintiff terminated O'Bara's employment at the

hospital.Following O'Bara's termination, plaintiff found

herself to be the object of increasing animosity and hatred from

the hospital staff. See Solt Deposition at 55-56, 58. Plaintiff

states that "[t]here was a tremendous level of hostility and hate

out onthe wards that I had never had to deal with from a wide

range of staff." Solt Deposition at 58.

For example, plaintiff states that after the firing certain

staff members refused to meet with her or to do work for her.

Solt Deposition at 58, 73. Plaintiff further states,

I had charts that I didn't have availability to. I would call or try and get charts that all of a sudden didn't exist. . . .

I would ask for a chart and be told that it wasn't available. And I would call down for the chart and be told it was available. And I'd go down, and it was gone, or, "Oh, we must have been wrong," or, "It wasn't there," you know, when they knew I was coming to get the chart. Or I'd say, "Put a hold on it," or "I'm on my way down," situations like that.

Id. at 73, 147. This problem of getting access to patient charts

was "ongoing." Id. at 147-48.

Plaintiff also experienced problems with the hospital's

physicians and physician-assistants reguiring her to do

unnecessary patient consults. Solt Deposition at 70; DES

3 Transcript at 15, 42, 50-51.

In addition, letters from members of the hospital staff and

from the physicians calling for O'Bara's reinstatement were being

circulated around the hospital. Solt Deposition at 62; Lancaster

Deposition at 14; DES Transcript at 8, 33, 49-50. Signs or

posters soliciting donations for the O'Bara family were also

placed around the hospital. Lancaster Deposition at 14, 26; DES

Transcript at 43.

Plaintiff maintains that she was unable to perform her job

under these hostile conditions.

Dana Lancaster acknowledges that plaintiff "was stressed

out" following O'Bara's termination, Lancaster Deposition at 17,

and that the state employees were blaming her for O'Bara's

termination, id. at 31. Lancaster further states that Chet

Batchelder, the hospital's administrator, was "concerned" about

"whether or not [plaintiff] was going to be able to continue

handling the situation" because "there was still a lot of

animosity at the hospital" toward her. Id. at 29.

Plaintiff asserts that she made repeated reguests for some

show of support from Seiler and the hospital for O'Bara's

termination, but that her reguests were either turned down or

ignored. For example, plaintiff maintains that she asked Donna

4 Jones and Dave Giroux3 to be present at the hospital on the day

of O'Bara's termination, but "[t]hey both refused." Solt

Deposition at 56-57. Plaintiff further asserts that she asked

Giroux and Lancaster to put out a memo "that listed all of the

people who were involved in the decision" to terminate O'Bara,

but her requests were denied. Id. at 56-57, 61-62.

Plaintiff also asked Lancaster to follow up on several of

the problems she had been experiencing with the hospital staff,

but asserts that he never followed up on those problems or

responded to her concerns. Id. at 61-63.

Plaintiff maintains she became sick from the stress she was

under following O'Bara's termination. DES Transcript at 6. As a

result thereof, plaintiff took a medical leave of absence from

December 20, 1991, through January 3, 1992. Solt Deposition at

97 .

On July 13, 1992, plaintiff terminated her employment with

Seiler at New Hampshire Hospital, citing "many previous months of

relentless harassment, hostility and 'hate directed at me.'"

Solt Letter of Resignation (attached to Plaintiff's Objection to

Defendant's First Motion for Summary Judgment as Exhibit C ) . The

3At all times relevant to this action, Donna Jones was Seiler's Regional Clinical Manager and David Giroux was Seiler's Regional Operations Manager. Deposition of Donna Jones at 12; Deposition of David Giroux at 6.

5 "furor" over O'Bara's termination "dissipated" following

plaintiff's resignation. Lancaster Deposition at 40-41.

Discussion

1. Summary Judgment Standard

Under Rule 56(c), Fed. R. Civ. P., summary judgment is

appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law."

Summary judgment is a procedure that involves shifting burdens between the moving and the nonmoving parties. Initially, the onus falls upon the moving party to aver "'an absence of evidence to support the nonmoving party's case.'" Garside v. Osco Drug, Inc.,

(1st Cir. 1990) (guoting Celotex Corp. v. Catrett,

(1986)). Once the moving party satisfies this reguirement, the pendulum swings back to the nonmoving party, who must oppose the motion by presenting facts that show that there is a "genuine issue for trial." Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)) . . . .

LeBlanc v. Great American Ins. Co.,

(1st Cir.

1993), cert, denied, ___ U.S. , 114 S. C t . 1398 (1994). In

determining whether summary judgment is appropriate, the court

construes the evidence and draws all justifiable inferences in

6 the nonmoving party's favor.

.

2. Wrongful Termination

In order to assert a claim for wrongful termination under

New Hampshire 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." Short v. School Admin. Unit

N o . 16,

,

(1992) (citing

Cloutier v. A & P Tea Co., Inc.,

,

(1981) ) .

Defendant moves for summary judgment on the ground that

plaintiff's evidence is insufficient to prove (1) that she was

constructively discharged and (2) that she was terminated out of

bad faith and for performing acts which public policy would

encourage.

a. Constructive Discharge

"'Constructive discharge occurs when an employer renders an

employee's working conditions so difficult and intolerable that a

reasonable person would feel forced to resign.'" Godfrey v.

7 Perkin-Elmer Corp.,

(D.N.H. 1992)

(quoting Seery v. Yale-New Haven Hospital, 17 Conn. Ap p . C t . 532,

(1979)). "'Through the use of constructive

discharge, the law recognizes that an employee's "voluntary"

resignation may be, in reality, a dismissal by the employer.'"

(quoting

(citation omitted)).

In order to find that an employee has been constructively

discharged, "'"the trier of fact must be satisfied that the . . .

working conditions would have been so difficult or unpleasant

that a reasonable person in the employee's shoes would have felt

compelled to resign."'"

(quoting Calhoun v. Acme Cleveland

Corp.,

(1st Cir. 1986) (quoting Alicea Rosado

v. Garcia Santiago,

(1st Cir. 1977))). "This

standard is an objective one which focuses upon the reasonable

state of mind of the employee."

(citing Calhoun, supra, 7 98

F .2d at 5 61).

In her deposition, plaintiff details the circumstances which

led to her allegedly constructive discharge. She asserts that

all of the anger of the hospital staff over O'Bara's termination

was directed at her. In addition, plaintiff experienced numerous

difficulties in her day-to-day dealings with the hospital staff

following O'Bara's termination. Plaintiff further maintains that

she made repeated requests for some showing of support for the termination from Seiler and the hospital administration.

However, these requests were denied. Plaintiff contends that the

combination of all of these factors made her job unbearable and

forced her to resign.

On the basis of the evidence before it, the court finds that

a trier of fact could conclude that, under the circumstances

described by plaintiff, a reasonable person in her shoes would

have felt compelled to resign.

b. Bad Faith, Malice, or Retaliation

"' [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 or the public good and constitutes a breach of the

employment contract.'"

,

(quoting Monge v. Beebe Rubber Co.,

,

(1974)). The rationale underlying this

principle "is that there is an implied covenant in every

contractual relationship that the parties will carry out their

obligations in good faith."

(citations omitted). The

existence of bad faith can "be concluded from the manner in which

the plaintiff was discharged."

,

.

9 The evidence presented by plaintiff reveals that, as Chief

Clinical Dietician, she carried out the decision made by Seiler

and New Hampshire Hospital to terminate O'Bara's employment.

Said termination caused a backlash by the hospital staff directed

at plaintiff. Plaintiff complained repeatedly about the problems

she was experiencing with the hospital staff, but defendant

failed or refused to take any action.

The court finds that the evidence of defendant's failure to

remediate the hostile environment created as a result of O'Bara's

termination is sufficient to create a genuine issue of material

fact as to whether defendant acted in bad faith. C f . Godfrey,

supra,

(finding that an employer's "lack of

investigation" of an employee's claims of harassment "and its

failure to remediate the discriminatory practices, would seem

sufficient to meet" the bad faith element of the wrongful

discharge test).

c. The Public Policy Element

The public policy allegedly contravened by an employee's

wrongful discharge "can be based on statutory or nonstatutory

policy." Cillev v. New Hampshire Ball Bearings, Inc.,

,

(1986).

"[0]rdinarily the issue of whether a public policy exists is

10 a question for the jury."

,

(citing

,

) . See also Cillev, supra,

,

("In most instances, it is a question for the jury whether the

alleged public policy exists.");

,

("The existence of a 'public policy' . . .

calls for the type of multifaceted balancing process that is

properly left to the jury in most instances."). However, "at

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."

,

(citing

,

) .

Plaintiff was employed by Seiler at New Hampshire Hospital

as one of several managerial employees Seilerwas obligated to

provide under its contract with the hospital. She asserts that

her termination of O'Bara was an act required for the proper

performance of said contract. Plaintiff further asserts that she

terminated O'Bara on Seiler's behalf and with its knowledge and

consent. Plaintiff maintains that defendant violated public

policy by terminating her for performing her job as directed and

for performing an act that was required for proper performance of

Seiler's contract with the hospital.

11 Seiler argues that no public policy has been contravened

here because plaintiff's termination resulted from her

disagreement with Seiler's alleged managerial decision not to

support "her" decision to fire O'Bara.

The discharge of an at-will employee "for business reasons

is not actionable" under New Hampshire law "unless there is

sufficient showing to support a factual finding that the

management decision in guestion is contrary to public policy."

Vandegrift v. American Brands Corp.,

(D.N.H. 1983) .

This court is of the opinion that a reasonable jury could

find that Seiler's refusal to publicly support plaintiff's

termination of O'Bara was a business or management decision.

However, such a jury could also find that a countervailing public

policy exists that reguired Seiler to publicly support the

termination of O'Bara where Seiler was involved in making the

decision to terminate O'Bara and that termination was carried out

by plaintiff on Seiler's behalf and for its benefit.

The court finds that the weighing of all of these factors in

an effort to strike the appropriate balance between the interests

of the defendant as an employer and the interests of the

plaintiff as an at-will employee is a task properly left to a

jury.

12 Conclusion

For the reasons set forth herein, the court finds that the

plaintiff has met her burden of presenting sufficient evidence to

establish a genuine issue as to whether she was wrongfully

terminated by defendant. Defendant's renewed motion for summary

judgment (document 34) is therefore denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court January 23, 1995

cc: Matthew J. Lahey, Esg. Robert S. Molloy, Esg.

13