Birkmaier v. Rockingham Venture CV-94-429-SD 09/07/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

George James Birkmaier

v. Civil No. 94-429-SD

Rockingham Venture, Inc., d/b/a Rockingham Park; Robert DeStasio

O R D E R

In this diversity action, plaintiff George James Birkmaier

seeks recovery from his former employer, Rockingham Venture,

Inc., d/b/a Rockingham Park (Rockingham), and Robert DeStasio,

Rockingham's Director of Racing, for wrongful discharge and

asserts a companion claim against defendant DeStasio for tortious

interference with contractual relations.1

Presently before the court is defendants' motion for summary

judgment, to which plaintiff objects.

1Plaintiff originally filed a third claim for breach of implied contract (Count II), which the court now notes has been waived by plaintiff as of August 31, 1995. See Plaintiff's Pre- Trial Statement 5 M. Background

From approximately 1987 through the 1993 racing season,

Birkmaier was employed by Rockingham as the custodian of the

jockeys' room. In this position, plaintiff was responsible for

supervising ten valets, the individuals who saddle and unsaddle

the racehorses, and was himself supervised by, among others,

defendant DeStasio.

During the 1993 racing season,2 plaintiff alleges that

defendant Robert DeStasio would leave the racetrack early,

occasionally taking Steven Watson, one of Birkmaier's valets,

with him to play a round of golf. Affidavit of George James

Birkmaier 5 3 (attached to Plaintiff's Objection). When Watson

was absent, the remaining valets had to cover his

responsibilities, which resulted in "more work for everyone who

was left behind." Id. 5 4. Conseguently, Birkmaier asked

DeStasio to "at least give me some advance warning when he

planned to take Mr. Watson out to play golf, so that I could get

a substitute." Id. 5 6.

On an unspecified Monday in September 1993,3 DeStasio

2Since the 1992 racing season, Rockingham only runs live horse races between the months of April and October. Prior to this schedule change, Rockingham would run horse races throughout the year. See Defendants' Pretrial Statement 5 A.I.

3The court notes that all parties are unable to identify the particular day in guestion more precisely.

2 inquired of plaintiff whether he could take Watson out golfing.

Since plaintiff was "already short at least one valet," he

indicated that "it was not a good day." Id. 5 5. However, when

Birkmaier returned from lunch, the jockeys' room valets informed

him that DeStasio had in fact relieved Watson of his valet duties

and taken him out golfing. Id. 5 7.

Upon learning of this situation, plaintiff asserts that he

first went to DeStasio's office, but found same to be locked and

unoccupied. He thereafter discussed the situation with Leo

Pambianchi, the Racing Secretary; Edward Callahan, the General

Manager of Rockingham Park; and James Gigliotti, the Clerk of

Scales. Id. 5 9; Deposition of George James Birkmaier at 152-55

(attached to Defendants' Memorandum of Law). Birkmaier allegedly

told Callahan that the situation with DeStasio and Watson was

neither "right" nor "fair," and "that something needed to be

done." Birkmaier Affidavit 5 9. Callahan indicated that he

would speak to DeStasio about the situation. Id.

Since no live racing took place on Tuesdays, Birkmaier

returned to work on Wednesday and received an allegedly hostile

and profane telephone call from DeStasio. After inquiring

whether plaintiff had spoken with Callahan and the substance of

said conversation, plaintiff asserts that DeStasio told him, "One

of us will be back here next year, and I'm sure it won't be you.

3 This place isn't big enough for both of us. I'll show you who

runs this place." Id. 5 11.

The remainder of the 1993 racing season passed without

incident, and as had been the case at the end of the 1992 season,

plaintiff was laid off by Rockingham but "fully expected . . .

[to] be brought back for the 1994 season." Id. 5 15. However,

plaintiff received a letter from DeStasio, on behalf of

Rockingham, in February 1994 informing him that "Management has

decided to make some changes and we will no longer be in need of

your services." February 7, 1994, letter from DeStasio to

Birkmaier (attached as Exhibit A to Plaintiff's Memorandum of

Law).4 Birkmaier personally spoke with Callahan, Assistant

General Manager Leonard Dill, and DeStasio about the decision to

not rehire him for the 1994 season, but these efforts proved

unsuccessful. Birkmaier Affidavit 55 16-17.

Discussion

1. Summary Judgment Standard

Summary judgment shall be ordered when "there is no genuine

4The court notes that Gigliotti was likewise not rehired by Rockingham for the 1994 racing season. Deposition of Leo James Pambianchi at 35 (attached to Defendants' Memorandum of Law). Instead, former valet Watson was rehired by Rockingham to fill the Clerk of Scales position for 1994. Id. at 13 (attached to Plaintiff's Memorandum of Law).

4 issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law." Rule 56(c), Fed. R.

Civ. P. Since the purpose of summary judgment is issue finding,

not issue determination, the court's function at this stage "'is

not [] to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for

trial.'" Stone & Michaud Ins., Inc. v. Bank Five for Savings,

(D.N.H. 1992) (guoting Anderson v.

Liberty Lobby, Inc.,

(1986)).

Although "motions for summary judgment must be decided on

the record as it stands, not on litigants' visions of what the

facts might some day reveal, " Maldonado-Denis v. Castillo-

Rodriguez,

(1st Cir. 1994), the entire record

will be scrutinized in the light most favorable to the nonmovant,

with all reasonable inferences indulged in that party's favor.

Smith v. Stratus Computer, Inc.,

(1st Cir. 1994),

cert, denied, ___ U.S. ___ , 115 S. C t . 1958 (1995); see also

Woods v. Friction Materials, Inc.,

(1st Cir.

1994);

.

"In general . . . a party seeking summary judgment [is

reguired to] make a preliminary showing that no genuine issue of

material fact exists. Once the movant has made this showing, the

nonmovant must contradict the showing by pointing to specific

5 facts demonstrating that there is, indeed, a trialworthy issue."

National Amusements, Inc. v. Town of Dedham,

(1st Cir. 1995) (citing Celotex Corp. v. Catrett,

(1986)), cert, denied, U.S. , 115 S. C t . 2247 (1995).

A "genuine" issue is one that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either party. Maldonado-Denis,

. In other words, a genuine issue exists "if there is 'sufficient evidence supporting the claimed factual dispute' to reguire a choice between 'the parties' differing versions of the truth at trial.'"

(guoting Garside [v. Osco Drug, Inc.,1 895 F.2d [46,] 48 [(1st Cir. 1990))]. A "material" issue is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc.,

(1986).

Libertad v. Welch,

(1st Cir. 1995).

Although summary judgment is inappropriate when a

trialworthy issue is raised, "[t ]rialworthiness necessitates

'more than simply show[ing] that there is some metaphysical doubt

as to the material facts.'" National Amusements, supra,

(guoting Matsushida Elec. Indus. Co. v. Zenith Radio

Corp.,

(1986)) (alteration in National

Amusements). Thus, "' [t]he evidence illustrating the factual

controversy cannot be conjectural or problematic; it must have

substance in the sense that it limns differing versions of the

truth which a factfinder must resolve . . . .'"

(guoting

Mack v. Great Atl. & Pac. Tea Co.,

(1st Cir.

6 1989)). Accordingly, "purely conclusory allegations . . . rank

speculation . . . [or] improbable inferences" may be properly

discredited by the court,

(citing Medina-Munoz v. R.J.

Reynolds Tobacco Co.,

(1st Cir. 1990)), and "'are

insufficient to raise a genuine issue of material fact, '" Horta

v. Sullivan,

(1st Cir. 1993) (guoting August v.

Offices Unlimited, Inc.,

(1st Cir. 1992)).

2. Wrongful Termination

Plaintiff's primary allegation is that Rockingham's decision

not to rehire him for the 1994 racing season constituted a

wrongful termination. As applied in New Hampshire,

in order to establish a claim for wrongful termination an employee 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."

Kopf v. Chloride Power Elecs., Inc.,

(D.N.H. 1995) (guoting Short v. School Admin. Unit No. 16,

,

(1990) (citing Cloutier v. A & P

Tea Co.,

,

(1981))).

Defendant moves for summary judgment on the ground that the sum

of plaintiff's evidence is insufficient to prove that he was

7 terminated for performing acts which public policy would

encourage.

a. Bad Faith, Malice, or Retaliation

Insofar as "'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,'"

,

(guoting Monge v. Beebe Rubber Co.,

,

(1974)), "there is an implied covenant in every

contractual relationship that the parties will carry out their

obligations in good faith,"

(citations omitted).

Correspondingly, "the manner in which the plaintiff was

discharged" may serve as the underlying predicate for a finding

of bad faith.

,

.

By medium of sworn affidavit, plaintiff presents his

recollection of the telephone conversation that took place

between DeStasio and himself following his discussion with

Callahan. Plaintiff avers that at some point during said

conversation DeStasio threatened, "One of us will be back here

next year, and I'm sure it won't be you. This place isn't big

enough for both of us. I'll show you who runs this place." Birkmaier Affidavit 5 11.

In the view of the court, this evidence alone is sufficient

to create a genuine issue of material fact as to whether

Rockingham, by and through DeStasio, acted in bad faith in not

rehiring plaintiff.

b. The Public Policy Element

"Although the existence or nonexistence of a public policy

is ordinarily a guestion of fact for a jury, the court may, when

appropriate, rule as a matter of law whether a public policy does

or does not exist."

(citing

,

); accord Bourque v. Town of Bow,

(D.N.H. 1990) ("[w]here it is clear that plaintiff

cannot articulate an expression of public policy as a matter of

law, there is no fact guestion for the jury to decide") (internal

guotation omitted). However, because "[t]he existence of a

'public policy' . . . calls for the type of multifaceted

balancing process that is properly left to the jury in most

instances,"

,

,

the court will take this issue away from the jury only when no

reasonable juror could find the existence of a public policy

expression.

Moreover, any public policy determination must further take into account and balance an "'employer's interest in running his

business as he sees fit . . . [with] the interest of the employee

in maintaining his employment, and the public's interest in

maintaining a proper balance between the two . . .

,

(guoting

,

).

Although plaintiff casts about various purported public

policies,5 those so identified fall short of the governing

standard. However, plaintiff's burden on summary judgment is not

to conclusively prove his case, but rather simply to demonstrate

that a genuine issue remains over a fact that is material to the

outcome of the litigated issues. Plaintiff does raise the

inference that his termination was in retaliation for speaking

out about DeStasio's conduct. See Plaintiff's Objection at 7

("Mr. Birkmaier has unguestionably presented sufficient facts to

demonstrate that he was terminated in retaliation for voicing his

complaints about Mr. DeStasio to Edward Callahan, the general

manager of Rockingham Park."). It is clear to this court that

5Among those suggested by plaintiff are that DeStasio's conduct (1) undermined Birkmaier's authority over the valets; (2) constituted gross favoritism and preferential treatment for an employee; (3) created a legitimate safety concern when an already shorthanded valet staff had to accommodate Watson's absence; and (4) amounted to a falsification of records and misappropriation of company funds in that Watson was paid a full day's wages without actually working the hours.

10 were it to be demonstrated that Birkmaier was in fact discharged

as a consequence of his speaking out to an ultimate supervisor

about the questionable actions of a mid-level supervisor, then

such a discharge would not be "in the best interest of the

economic system or the public good . . . ." Vandegrift v.

American Brands Corp.,

(D.N.H. 1983)

(interpreting holding of

.

Citing two earlier cases decided by this court, e.g.,

Bourque, supra,and Mellitt v. Schraftt Candy Co., Civ. No. 80-

513-D,

(D.N.H. Dec. 21, 1981), defendant argues

that "plaintiff's disagreement with his supervisor's conduct does

not implicate a public policy." Defendant's Memorandum of Law at

8. Indeed, this court has previously recognized that,

[a]n employer is at liberty to determine that the continued employment of an individual who has expressed a sincere and good faith disagreement with a company policy is not in the best interests of his or her business. Under the circumstances, it is not the province of the Court to examine the wisdom of the employer's business practice.

Mellitt, supra,slip op. at 9-10 (emphasis added). Accord,

Bourque, supra,

("'a dischargefor business

reasons is not actionable'" (quoting

));

(recognizing that "although discharge may be harsh, unfair, or

without good cause," no action for wrongful termination will lie

11 "unless there is a sufficient showing to support a factual

finding that the management decision in guestion is contrary to a

public policy . . . .

The "management decisions" at issue in Mellitt, Bourque, and

Vandegrift--respectively, consolidation of two corporate

marketing divisions; Selectboard's failure to "appropriately"

investigate complaints about supervisor's harassment; and

discharge for purchasing promotional tobacco supplies from

wholesalers at discount prices while seeking reimbursement from

the employer at a higher wholesale price despite the employer's

instruction to do so--are arguably distinct from the management

decision implicated herein.

To be sure, the jury may find that Birkmaier was discharged

due to management's dual concerns about the cleanliness of the

jockeys' room and the alleged conflict between plaintiff and the

Clerk of Scales, James Gigliotti. Discharge under such

circumstances is grounded upon sound business reasons. However,

the jury may be egually inclined to find that defendant

discharged plaintiff in direct retaliation for his speaking out

about the DeStasio/Watson golf outings. Such retaliatory

discharge, when motivated by bad faith, contravenes sound public

policy principles.

Due to this general eguipoise, defendant's motion for

12 summary judgment on the issue of wrongful termination (Count I)

must be and herewith is denied.

3. Tortious Interference with Contractual Relations

Plaintiff finally contends that he had an advantageous

economic relationship with Rockingham, of which defendant

DeStasio was aware but nonetheless "intentionally and improperly

interfered with plaintiff's employment relationship . . . by

firing plaintiff from employment." Complaint 55 26-28.

Defendant asserts that such claim must fail as a matter of law

either because (1) plaintiff cannot establish that he had an

"economic relationship" with Rockingham or (2) as an employee of

Rockingham acting within the scope of his employment, DeStasio is

not a "third party" vis-a-vis plaintiff and Rockingham.

As previously recognized by this court,

"[t]he elements necessary successfully to plead a cause of action for tortious interference with contractual relations are 'that (1) the plaintiff had an economic relationship with a third party; (2) the defendant knew of this relationship; (3) the defendant intentionally and improperly interfered with this relationship; and (4) the plaintiff was damaged by such interference.'"

Soltani v. Smith,

(D.N.H. 1993) (guoting

Jav Edwards, Inc. v. Baker,

,

, 709

13 (1987) (quoting Emery v. Merrimack Valley Wood Prods.,

(1st Cir. 1983))); accord Roberts v. General Motors

Corp.,

,

(1994) ("In order

to bring a claim for tortious interference, the plaintiff must

show that he had a contractual relationship with [Rockingham] of

which [DeStasio] was aware; that [DeStasio] wrongfully induced

[Rockingham] to breach that contract; and that the damages

claimed were proximately caused by that interference." (citing

Montrone v. Maxfield,

,

(1982) ) .

Of the four requisite elements, the satisfaction of two are

undisputed--DeStasio certainly knew of the relationship between

plaintiff and Rockingham and, further, Birkmaier has suffered

some damages as a result of the alleged interference. Whether

DeStasio's conduct was "intentional and improper" is a matter the

resolution of which is better left to the jury. However,

plaintiff's tortious interference claim will not reach the jury

should the two-part threshold inquiry--whether "plaintiff had an

economic relationship with a third partv--proves insurmountable

in light of the instant facts.

a. Presence of an Economic Relationship

Defendant contends that plaintiff's economic relationship

14 with Rockingham terminated with the October 1993 personnel

action. Taking the fact that plaintiff filed a claim for

unemployment compensation as an acknowledgement that he was

unemployed as of October 1993, defendant concludes that

" [p]laintiff therefore had no 'economic relationship' with

Rockingham Park with which defendant DeStasio could interfere in

February 1994." Defendants' Memorandum of Law at 10.

However, plaintiff has submitted excerpts from the

depositions of Leo Pambianchi and Edward Callahan as well as a

copy of his Rockingham wage/salary history record, which, in

combination, raise a genuine issue concerning plaintiff's

"economic relationship" with Rockingham in the months after

October 1993. More specifically, Pambianchi and Callahan both

indicated that somewhere between 85 to 95 percent of Rockingham's

seasonal employees are rehired for the following season. See

Pambianchi Deposition at 13 (attached to Plaintiff's Objection);

Deposition of Edward M. Callahan at 20 (attached to Plaintiff's

Objection). Furthermore, plaintiff's "Confidential Wage-Salary

History" record indicates that Rockingham distinguished between a

lay-off and a termination. See Confidential Wage/Salary History

of George Birkmaier (attached to Plaintiff's Objection)

(indicating separate entries for October 9, 1993, lay-off and

February 7, 1994, termination).

15 In consequence thereof, the court is unable, as a matter of

law, to rule that no "economic relationship" existed between

plaintiff and Rockingham in the months between October 9, 1993,

and February 7, 1994.

b. Is DeStasio a Third Party?

Defendant correctly notes the general rule that "a co­

employee acting as an agent of the employer cannot be a third

party for the purposes of interfering with the contract between

the plaintiff and the corporate employer." Defendants'

Memorandum of Law at 11 (citing Alexander v. Fujitsu Business

Communication Svs., Inc.,

(D.N.H. 1993)

(DiClerico, J.)). However, DeStasio will not be found to have

been acting within the scope of his employment if his decision to

terminate Birkmaier "'was motivated by actual malice', where

'actual malice' is defined as 'bad faith, personal ill-will,

spite, hostility, or a deliberate intent to harm the plaintiff.'"

(quoting Piekarski v. Home

Owners Sav. Bank,

, 1495 (8th Cir.), cert, denied,

U.S. ___ , 113 S. C t . 206 (1992)) (other citation omitted)

(emphasis in Soltani) ; accord 8 S t u a r t M. S p e i s e r , et a l ., T he A m e r i c a n

La w of T orts § 31:41, at 1260 (1991) ("Dependent on many factors, .

16 . . [but principally stressing good faith and an individual's own

self interest], a director, officer, or an employee of a

corporation may be subject to liability for tortious interference

with the corporation's contract with a third person.").

In view of the authorities cited herein, and based on the

evidence the court has before it, the court finds that plaintiff

has presented evidence sufficient for a reasonable jury to find

that when DeStasio allegedly interfered with plaintiff's

contractual relations, he was motivated by "bad faith, personal

ill-will, spite, hostility, or a deliberate intent to harm the

plaintiff." Piekarski, supra, 956 F.2d at 1495 (citation

omitted). Accordingly, as in Soltani, "the court finds that,

under Piekarski, [Rockingham] was a third party with respect to

the relationship[] between plaintiff and . . . defendant

[DeStasio]."

. Defendant's

motion for summary judgment on plaintiff's claim for intentional

interference with contractual relations (Count III), therefore,

must be and herewith is denied.

17 Conclusion

For the reasons set forth herein, defendants' motion for

summary judgment (document 7) is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court September 7, 1995

cc: Andrew D. Wickwire, Esg. Mark T. Broth, Esg.

18