Bonczar v. Suburban Propane, et a l . CV-94-68-B 09/30/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Bonczar and Jo-Ann Bonczar

v. CV-94-68-B

Suburban Propane Gas Corporation, David Fehelev, Carl Richardson, Dennis Spina, and Glen Stec

O R D E R

Michael Bonczar brought suit against his employer. Suburban

Propane Gas Corporation ("Suburban"), and his supervisors after

he was demoted. His complaint alleges (1) age discrimination,

wrongful termination, and intentional infliction of emotional

distress against all defendants; (2) defamation against

defendants Suburban, Spina, Richardson, and Stec; (3) intentional

interference with contractual relations against defendant

Feheley; and (4) breach of contract and breach of the implied

covenant of good faith and fair dealing against defendant

Suburban. In addition, Jo-Ann Bonczar asserts a claim for loss

of consortium against all defendants. The defendants have moved for summary judgment on all

claims. I grant summary judgment in favor of the individual

defendants on all claims against them and in Suburban's favor on

the claims for age discrimination, intentional infliction of

emotional distress, and defamation. Bonczar's claims for

wrongful discharge, breach of contract, and breach of the duty of

good faith and fair dealing against Suburban, and part of Jo-Ann

Bonczar's loss of consortium claim, survive as is explained

below.

I. STANDARD OF REVIEW

Summary judgment is appropriate if the record, taken in the

light most favorable to the non-moving party, shows that no

genuine issues of material fact exist and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Commercial Union Ins. Co. v. Walbrook Ins. Co.,

(1st Cir. 1993). A "material fact" is one "that might affect the

outcome of the suit under the governing law," and a genuine

factual issue exists if "the evidence is such that a reasonable

jury could return a verdict for the nonmoving party." Anderson

v. Liberty Lobby, Inc.,

(1986).

2 Affidavits supporting or opposing a motion for summary

judgment " [must] be made on personal knowledge, [must] set forth

such facts as would be admissible in evidence, and [must] show

affirmatively that the affiant is competent to testify to the

matters stated therein." Fed. R. Civ. P. 56(e). The party

opposing consideration of an affidavit must specify the

objectionable portions and the grounds for objection. Casas

Office Machs. v. Mita Coovstar America,

(1st

Cir. 1994). I may disregard only inadmissible portions of an

affidavit. I state the background facts in accordance with the

standard of review.

II. BACKGROUND

Bonczar began working as a truck driver for defendant

Suburban Propane in 1972, and then worked his way up to a

regional manager position for Maine, New Hampshire, and Vermont

by 1989. David Feheley, the area vice president, was his

immediate supervisor. Feheley reported to Carl Richardson, a

senior vice president, who reported to Dennis Spina, president of

Suburban. Glen Stec was vice president of human resources.

One way in which Suburban's management attempted to evaluate

the company's financial health was by examining changes in its

3 ratio of customer losses to customer gains (the "loss-to-gain

ratio"). In February 1991, Feheley warned Bonczar and the other

regional managers that he expected each region to improve its

loss-to-gain ratio. Feheley followed up his warning with an

April 1991 memorandum in which he instructed his regional

managers:

Please advise your district managers of our decision regarding the management of customer removals. A district is not to perform what would eguate to a customer removal unless there is a corresponding installation to counteract the removal.

Bonczar and other regional managers interpreted this memorandum

as an instruction to falsify reports when necessary in order to

show an improving loss-to-gain ratio. As a result, Bonczar

allowed his district managers to submit false reports.

In the fall of 1991, Walt Wojewodzic, the credit and

collections manager for Bonczar's region, raised the issue of

false reports with Spina during a meeting of credit and

collections managers at Suburban's headguarters. This action

prompted Feheley to order Bonczar to fire Wojewodzic. Bonczar

refused to comply with Feheley's directive.

In February 1992, Bonczar held a series of meetings with his

district managers to address the false reports issue. During

these meetings, he informed his staff that he planned to meet

4 with Spina and request that Spina rescind Feheley's April 1991

directive. However, before Bonczar could meet with Spina,

Wojewodzic asked Spina to meet with all of the district managers

to discuss Feheley's policy. Spina held this meeting on February

19, 1992, but barred Bonczar from participating.

On February 24, 1992, Richardson called Bonczar and

suspended him. Bonczar began to suffer from extreme anxiety,

including bouts of hyperventilation, for which he sought

professional help. Stec ordered Bonczar to attend a meeting on

February 28 with him. Spina, and Richardson at the company

headquarters in Whippany, New Jersey. Bonczar was too upset to

drive, so his wife drove him to the meeting. It lasted about two

and one-half hours. Spina and Richardson criticized Bonczar

harshly for, inter alia, lacking leadership, blaming problems on

upper level management, falsifying reports, writing

unprofessional memoranda,1 and failing to complete required

evaluations of his district managers.

Several days after the February 28 meeting, Richardson and

Feheley informed Bonczar that he was no longer a regional

1 In one memorandum to his district managers, Bonczar stated, "the only difference between a brown-noser and a shit- head is depth perception." In another memorandum, he instructed his district managers to "cover thy posterior".

5 manager, but that he could continue to work for Suburban as a

District Manager for the same pay. Bonczar refused their offer,

and appealed through Suburban's Employee Appeal and Review System

("EARS"). Feheley considered and denied Bonczar's first appeal.

Suburban never considered Bonczar's second appeal because Bonczar

was unable to drive to New Jersey for another scheduled meeting.

He never returned to work.

During the same time period, Feheley and Spina made several

age-related comments. Feheley often bragged about having been

the youngest regional manager, and suggested that he was proud of

the general youth of his staff. At a meeting of the regional

managers in 1991, he referred to Bonczar, who was then forty-six,

and another manager as "old bucks." Spina told the district

managers at the February 19, 1992, meeting that he disliked the

"old" Suburban management style. Suburban filled Bonczar's

regional position with a thirty-five year-old employee.

III. DISCUSSION

A. COUNT I: AGE DISCRIMINATION

Bonczar alleges that defendants discriminated against him on

the basis of his age in violation of the Age Discrimination in

Employment Act of 1967,

, et seq. (West 1985 &

6 Supp. 1995) ("ADEA"). Under the ADEA, a plaintiff may establish

discrimination either by direct or by circumstantial evidence.

Direct evidence must be the "evidentiary equivalent of a smoking

gun," Smith v. F.W. Morse & Co.,

(1st Cir.

1996), such that, if believed, it would establish discrimination

without any inferences. Bodenheimer v. PPG Indus.,

(5th Cir. 1993). If a plaintiff produces direct evidence

that discrimination was a motivating factor in the adverse

employment decision, the burden shifts to the defendant to prove

that it would have made the same decision absent a discriminatory

motive. Smith,

; Jackson v. Harvard,

(1st Cir. 1990), cert, denied,

(1990).2

When, as is frequently the case, a plaintiff is forced to

rely on circumstantial evidence, the burden-shifting framework

announced in McDonnell Douglas Corp. v. Green,

(1973) and most recently explained in St. Mary's Honor Ctr. v.

Hicks,

(1993), applies. Paqes-Cahue v. Iberia

2 The Civil Rights Act of 1991 changed the law in Title VII cases to permit a plaintiff to recover declaratory relief, injunctive relief, costs, and attorneys' fees when the employee meets its burden of proof under Price Waterhouse v. Hopkins,

(1989) if discrimination nevertheless was a motivating factor in the employer's decision. See 42 U.S.C.A. § 2000e-2(a) (West 1994). However, this portion of the Civil Rights Act of 1991 does not apply to age discrimination claims. Thus, Price Waterhouse still applies to such claims.

7 Lineas Aereas de Espana,

(1st Cir. 1996);

LeBlanc v. Great American Ins. Co,

(1st Cir.

1993), cert, denied,

(1994). The plaintiff must

establish a prima facie case of discrimination by proving by a

preponderance of the evidence that (1) he was a member of a

protected class, (2) he performed his job adequately, (3) he was

nevertheless dismissed/demoted and (4) his employer either

replaced him with a younger person or otherwise did not treat age

neutrally. See Hicks

; Paqes-Cahue,

; Woodman v. Haemonetics Corp.,

(1st

Cir. 1995). While the burden of persuasion remains with the

plaintiff throughout the case, a presumption of discrimination

arises from proof of his prima facie case. Hicks,

. To rebut this presumption, the employer must produce

evidence which, "taken as true, would permit the conclusion that

there was a nondiscriminatory reason for the adverse action."

. If the employer meets its burden of production, the

presumption of discrimination "drops out of the picture." Hicks,

. Accord, Paqes-Cahue,

; Woodman,

; LeBlanc,

.

Though Hicks recognizes that an employee always remains

responsible for proving that her employer dismissed her because of her age, it also provides in dicta that:

The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, [sic] will permit the trier of fact to infer the ultimate fact of intentional discrimination.

(emphasis in original). At least one circuit

interprets this dicta to entitle a plaintiff to submit her claim

to the jury whenever she has proved her prima facie case and

demonstrated that the employer's reason for its action was false.

Anderson v. Baxter Healthcare Corp.,

(7th Cir.

1994) . The First Circuit, however, has determined that proof of

a prima facie case and evidence of pretext will suffice only if

the factfinder could reasonably conclude from all of the evidence

that the defendant intentionally discriminated against the

plaintiff. See Barbour v. Dynamics Research Corp.,

(1st Cir. 1995), cert, denied,

(1996); Udo v .

Tomes,

(1st Cir. 1995); Smith v. Stratus Computer,

(1st Cir. 1994), cert, denied,

(1995); Woods v. Friction Materials,

, 260-61 n.3 (1st

Cir. 1994). In other words, proof of a prima facie case plus

pretext will be enough to survive summary judgment in some but

not all cases. See, e.g.. Woods,

-61 n.3. I apply the First Circuit standard in evaluating Bonczar's claim.

Bonczar contends that he has produced sufficient direct

evidence of discrimination to qualify his claim as a direct

evidence case. I disagree. Bonczar supports his position with

the following: (1) Feheley once referred to Bonczar and another

older employee as "old bucks" at a meeting of regional managers

in 1991; (2) Feheley once boasted of the general youth of his

staff, often bragged about being the youngest regional manager in

Suburban, and once commented on his own relative youth around the

time of his birthday; (3) Spina was rumored to be eager to do

away with the "old" Suburban culture and employees; (4) when

Spina learned that Richardson, another employee, planned to

retire early, he told him that "he would F [Richardson] before

[Richardson] F'd him," (abbreviation in original) and that he

"didn't want people around him unless they were going to be there

for ten years or longer"; and (5) Richardson believed that he was

the victim of age discrimination because Spina fired him for

requesting an early retirement plan. While some of these

statements and actions arguably evidence age consciousness by

Bonczar's superior, they do not constitute direct evidence of

Bonczar's claim that he was demoted because of his age. As

Justice O'Connor observed in her concurring opinion in Price

10 Waterhouse, "[S]tray remarks in the workplace, while perhaps

probative of sexual harassment, . . . cannot justify requiring

the employer to prove that its hiring or promotion decisions were

based on legitimate criteria. Nor can statements by nondecision­

makers, or statements by decisionmakers unrelated to the

decisional process itself, suffice to satisfy the plaintiff's

burden in this regard." Price Waterhouse,

(internal citations omitted). Therefore, I will analyze his

claim under the McDonell-Douqlas framework.

Defendants do not dispute that Bonczar has made out a prima

facie case of age discrimination, and Bonczar does not dispute

that Suburban has articulated a legitimate, nondiscriminatory

reason for demoting him. As discussed above, in the First

Circuit, regardless of whether Suburban's reasons for demoting

Bonczar were pretextual, Bonczar cannot prevail unless a

reasonable jury could infer that, but for its discriminatory

animus. Suburban would not have demoted him. Mesnick v. General

Elec. C o .,

(1st Cir. 1991), cert, denied,

(1992). Therefore, I need decide only whether Bonczar

has produced evidence from which a reasonable jury could infer

that he was demoted because of his age.

11 Accordingly, pro-youth statements such as those attributed

to Feheley, without more, will not support an inference of age

discrimination. Id. at 826. For example, in Mesnick, the

statement by plaintiff's superior that he was "sad to lose the

youth of the workforce" could not sufficiently support an

inference of discriminatory animus. Id. (collecting cases).

Even assuming that Spina's reported statements concerning the

"old" Suburban culture and employees are admissible evidence,

they show at most only that Spina was biased against employees

who had been with Suburban for a long time, not that he was

biased against older employees. These statements, and the other

statements cited by Bonczar and discussed previously are simply

insufficient to permit a reasonable jury to conclude that Bonczar

was demoted because of his age. Therefore, I grant defendants'

motion for summary judgment as to plaintiffs' age discrimination

claim.

B. COUNT II: WRONGFUL DISCHARGE

To prevail on a claim of wrongful discharge under New

Hampshire law, Bonczar must show (1) that he was discharged out

of bad faith, malice, or in retaliation for (2) performing acts

which public policy would encourage or refusing to perform acts

which public policy would condemn. Short v. School Admin. Unit

12 N o . 16,

(1992).3 Essentially, Bonczar claims

that he was discharged for refusing to carry out a company policy

of falsifying customer gain/loss reports to make districts in his

region look more successful than they actually were. Defendants

argue that Bonczar's claim of wrongful discharge fails for three

reasons.

First, the defendants argue that Bonczar's claim is

precluded by New Hampshire's Whistleblowers' Protection Act, N.H.

Rev. Stat. Ann. ch. 275-E (Supp. 1995). However, the Act states

explicitly:

275-E:5 No Effect on Bargaining or Common Law Rights. This chapter shall not be construed to diminish or impair . . . any common law rights.

Therefore, regardless of whether Bonczar has complied with the

conditions for bringing a claim under the statute, it does not

preclude his claim for wrongful discharge.

Second, they argue that Bonczar cannot show that he was

demoted for performing acts which public policy would encourage

or refusing to perform acts which public policy would condemn.

According to the defendants, Bonczar's management errors caused

his demise after he misinterpreted several memoranda Feheley sent

3 The parties do not dispute that Bonczar was an at-will employee. Neither do they dispute that he was constructively discharged.

13 him. As a result, Bonczar allowed his district managers to

falsify their gain/loss records. As defendants see it, Bonczar

continued to force his subordinates to submit false reports until

they complained to Spina.

Bonczar, however, has provided evidence from which a

reasonable jury could infer guite a different story. According

to Bonczar's evidence, in early 1991, Feheley made clear to

Bonczar and other regional managers that the customer gain/loss

reports should be falsified if necessary to demonstrate a

positive trend. Bonczar was concerned about the policy, but also

concerned that he might be punished if he objected to it.

Wojewodzic was also concerned about the policy, and raised the

issue directly with Spina at a meeting in October, 1991. That

same day, Richardson reported Wojewodzic's comments to Feheley,

and Feheley ordered Bonczar to fire Wojewodzic, which Bonczar

refused to do.

Bonczar thereafter held two meetings with his district

managers to decide how to deal with the policy. On February 14,

1992, Wojewodzic faxed an emotional letter to Spina, reguesting a

meeting with Spina, Bonczar, Stec and all the region's district

managers to discuss Feheley's policy. Spina held the meeting,

but barred Bonczar, and made clear to the district managers that

14 he would continue to support Feheley. On February 24, Richardson

suspended Bonczar. After a meeting on February 28, 1992 with

Spina, Richardson, and Stec, Richardson and Feheley called

Bonczar and told him that he had been demoted to district

manager.

Defendants do not dispute that falsifying customer gain/loss

reports is an activity which public policy would condemn.

Bonczar has provided evidence from which a reasonable jury could

infer that he was demoted because he resisted Feheley's policy by

refusing to fire Wojewodzic and by holding meetings with his

district managers to discuss how best to solve the problem.

Therefore, Bonczar has satisfied the public policy reguirement of

a claim for wrongful discharge.

Third, defendants contend that Bonczar was not discharged

for resisting the falsification policy, but for circulating

unprofessional memoranda and for lowering the morale of the

district managers in his region by showing reluctance to comply

with the policies set by upper-level management and by siding

with lower-level employees.4 For example, in a memo dated May 1,

1991, titled "FIRESIDE CHAT," Bonczar wrote:

4 In addition, in a letter dated March 2, 1992, Spina, Richardson, and Stec explained that he was being demoted because he had ordered his district managers to falsify reports.

15 . . . any memos that I send out to you from Mr. D.R. Feheley's office, please read through the threats and intimidating verbiage (rhymes with garbage) and just try to get the simple point he is trying to get across. I really don't have time to rewrite all of his memos. . . . And remember those great words of Walt Wojewodzic, who once said the only difference between a brown-noser and a shit-head is depth perception.

In a memo entitled "Improve Your Bottom Line," headed by a

picture of a row of naked babies' bottoms, Bonczar expressed

"mixed emotions" about a trip to headguarters, and concluded:

I only half agree with Gerry Hendrickson when he says that bosses are like diapers. They are always on your ass and usually full of sh_t!!! Let's show them we can do what's needed.

Bonczar also gave Feheley a hat made to look like a condom at a

Christmas party in 1990 or 1991 "because of what we had thought

of him."

Notwithstanding the defendant's evidence, a reasonable jury

could infer from the evidence submitted that until it knew

Bonczar was resisting the falsification policy. Suburban thought

he was an excellent employee. In twenty years of employment with

Suburban, Bonczar had never been reprimanded. In October of

1990, he received a very favorable employee evaluation. One

month before his demotion, Bonczar received a silver pin for his

outstanding accomplishments. Therefore, a reasonable jury could

infer that Bonczar was constructively discharged for resisting

16 Feheley's policy of falsifying customer gain/loss reports, and

defendants would not be entitled to summary judgment on the

wrongful discharge claim.

Finally, individual defendants Spina, Richardson, Stec, and

Feheley argue that the wrongful discharge claim against them must

be dismissed because they did not employ Bonczar. Regardless of

whether a claim for wrongful discharge sounds in tort or in

contract, it rests on an employment relationship between the

parties. Miller v. CBC Companies, Inc.,

(D.N.H. 1995). It is undisputed that Spina, Richardson, Stec and

Feheley did not employ Bonczar. Therefore, I grant defendants'

motion regarding the wrongful discharge claim against individual

defendants.

C. COUNT III: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In Count III, Bonczar seeks to recover from Suburban and the

individual defendants for intentional infliction of emotional

distress. New Hampshire's Workers' Compensation Law provides, in

pertinent part:

281-A:8 Employees Presumed to Have Accepted. I. An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee, or the employee's personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:

17 (a) Against the employer or the employer's insurance carrier . . .; and

(b) Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier. . .

-A:8 (Supp. 1995). Therefore, Bonczar

is barred from suing Suburban, his employer, for the intentional

tort of intentional infliction of emotional distress. See Duquav

v. Androscoggin Valiev Hosp.,

, *2 (D.N.H. 1996);

Thompson v. Forest,

(19 92); O'Keefe v.

Associated Grocers of New England, Inc.,

(1980); Censullo v. Brenka Video, Inc.,

(1st Cir.

1993); Bourgue v. Town of Bow,

(D.N.H.

1990) .

Bonczar's claims of intentional infliction of emotional

distress against individual defendants Feheley, Richardson,

Spina, and Stec also fail. To maintain a claim for intentional

infliction of emotional distress, Bonczar must establish that the

defendants "by extreme and outrageous conduct intentionally or

recklessly cause[d] severe emotional distress [to him]." Morancy

v. Morancv,

(1991) (guoting Restatement

(Second) of Torts § 46 (1965)). Bonczar has submitted evidence

from which a reasonable jury could infer that he did in fact

18 suffer severe emotional distress. However, he has submitted no

evidence from which a reasonable jury could infer that

defendants' conduct went "beyond all possible bounds of decency,

and [would] be regarded as atrocious, and utterly intolerable in

a civilized community." Restatement (Second) of Torts § 46 cmt.

d; accord Jarvis v. Prudential Ins. Co.,

(1982) .

1. David Feheley

Bonczar submitted evidence indicating that Feheley forced

his regional and district managers to lie about their customer

losses and gains. Bonczar also submitted evidence that Feheley

participated in the decision to demote him for, inter alia,

encouraging district managers. Feheley also denied Bonczar's

first appeal in Suburban's disciplinary review system. Feheley

was not present at the February 19 meeting, he did not sign the

letter informing Bonczar of his demotion, and although he was on

the telephone, he did not speak while Richardson informed Bonczar

of the decision to demote him. Feheley's behavior, as reported

by Bonczar, though reprehensible, was not "extreme and

outrageous" enough to allow recovery. See Brewer v. K.W.

Thompson Tool Co.,

(D.N.H. 1986)

(no intentional infliction of emotional distress where defendant

19 refused to provide samples to plaintiff to help him investigate

work-related skin condition, thereby preventing plaintiff from

obtaining medical release from doctor, then refused to allow

plaintiff to return to work without medical release).

2. Carl Richardson and Glen Stec

After Spina met with the district managers, Richardson and

Stec called Bonczar to suspend him on February 24 without

explanation. Stec called Bonczar and ordered him to attend a

meeting at the company headguarters in Whippany, New Jersey on

February 28 to defend himself. Richardson, Stec, and Spina were

at the meeting. Richardson noticed that Bonczar was unusually

guiet. Stec observed that Bonczar was upset at the meeting and

"seemed to be a little disoriented in trying to understand what

was happening" when Stec met him in the lobby beforehand.

Richardson was loud and upset and fired guestions at Bonczar

without listening to his answers. Stec was guiet, and

interrupted only once to ask Richardson and Spina to allow

Bonczar to answer a guestion uninterrupted. Spina and Richardson

criticized Bonczar for falsifying budget numbers, failing to send

in performance appraisals for the district managers, thus

preventing the district managers from getting raises, and for

falsifying the customer gain/loss reports. Bonczar responded

20 that Feheley's office had forced him to do these things, and that

he had organized the February 19 meeting to decide what to do

about Feheley. Spina and Richardson also criticized Bonczar for

writing unprofessional memoranda. The meeting lasted

approximately two and one-half hours. Richardson and Feheley

called Bonczar several days later and Richardson told him that

they had decided to demote him and (erroneously) that the

decision could not be appealed. Bonczar then called Stec, who

told him that the decision was appealable.

Stec's conduct was by no means "extreme and outrageous"

Morancv,

. Though Richardson was perhaps

intimidating and insensitive at the February 28 meeting, his

conduct also was far from outrageous. C f . Miller v. CBC

Companies, Inc.,

(D.N.H. 1995) (plaintiff

"just barely" survived motion to dismiss where supervisors

persistently told her that women should stay home and care for

their children and guestioned her ability to work and to care for

her retarded son simultaneously); Sinqleterry v. Nashua Cartridge

Products,

, *6-7 (D.N.H. 1995) (plaintiff alleged

facts sufficient to support intentional infliction of emotional

distress where defendant supervisor called plaintiff "nigger,"

physically assaulted plaintiff, and humiliated plaintiff by

21 violating company policy and handing him a letter of warning in

front of his co-workers). Therefore, plaintiff's claims of

intentional infliction of emotional distress against Stec and

Richardson are dismissed.

3. Dennis Spina

In addition to berating Bonczar at the February 28 meeting.

Spina barred Bonczar from the February 19 meeting Bonczar had

organized with the district managers. According to a transcript

of the meeting submitted by plaintiff (assuming without deciding

that it is admissible). Spina called Bonczar "immature," and

criticized his leadership. Spina explained that he had excluded

middle-management, specifically Bonczar, from the meeting because

he wanted the district managers to speak freely. Bonczar has

submitted no evidence suggesting that Spina intended to torment

Bonczar by excluding him, or that Spina should have known that he

would cause Bonczar severe mental distress by excluding him.

Like Richardson, although Spina may have acted inappropriately by

insulting Bonczar at the February 19 meeting and by being angry

and insensitive at the February 28 meeting, his conduct was

neither extreme nor outrageous. The intentional infliction of

emotional distress claim against Spina is dismissed.

22 D. COUNT IV: DEFAMATION

Because both libel and slander are evaluated as defamatory

statements, I need not distinguish between them. See Morrissette

v. Cowette,

(1982); Restatement (Second) of

Torts § 568 (1977). To prove defamation under New Hampshire law,

a private individual plaintiff must show that the "defendant

failed to exercise reasonable care in publishing, without a valid

privilege, a false and defamatory statement of fact about the

plaintiff to a third party." Independent Mechanical Contractors,

Inc. v. Gordon T. Burke & Sons, Inc.,

(1993);

accord Duchesnave v. Munro Enterprises,

(1984) .

A statement is defamatory only if it "tends to lower the

plaintiff in the esteem of any substantial and respectable group

of people." Nash v. Keene Pub. Corp.,

(1985).

Statements that are substantially true are not actionable.

Simpkins v. Snow,

(1995) .

Opinions can serve as the basis for a defamation claim if

the opinion reasonably implies false and defamatory facts.

Milkovich v. Lorain Journal Co.,

(1990);

Duchesnave,

. However, a statement of opinion is

not actionable unless it is "sufficiently factual to be

susceptible of being proved true or false." Milkovich,

at 21; accord Phantom Touring, Inc. v. Affiliated Publications,

(1st Cir.),. cert, denied,

(1992). Further, an opinion cannot constitute defamation if it

is apparent from the surrounding context that the opinion is

based solely on disclosed non-defamatory facts. Standing

Committee on Discipline of the U. S. Dist. Court for Cent. Dist.

of Cal. v. Yagman,

(9th Cir. 1995); Nash,

; Restatement (Second) of Torts § 566 cmt. c (1977)

("A simple expression of opinion based on disclosed . . .

nondefamatory facts is not itself sufficient for an action of

defamation, no matter how unjustified and unreasonable the

opinion may be or how derogatory it is").

New Hampshire recognizes a conditional privilege for

statements that "although untrue, were published on a lawful

occasion, in good faith, for a justifiable purpose, and with a

belief, founded on reasonable grounds of its truth" as long as

the statements were not made with actual malice. Simpkins,

(internal guotation omitted). I examine the

challenged statements individually in light of the applicable

standard.

1. Spina's Statements at the February 19 Meeting

Bonczar contends that Spina defamed him at the February 19

24 meeting with district managers in the following exchange, and

specifically complains of the statements in bold:

Walt Wojewodzic: You mentioned the overtime figures are way out of whack from what budget was.

Dennis Spina: ah ah

Walt Wojewodzic: Ok well, Diane our regional coordinator faxed a . . . faxed to Mike Bonczar our Regional manager, and this is exactly what it said "the budgeted overtime figures we used where [sic] dictated by Dave Feheley"

Dennis Spina: Well I would say that ah . . that's a very poor memo and very immature of Mike Bonczar to do that.

Walt Wojewodzic: That was his regional coordinator it wasn't . . .

Dennis Spina: I don't care who it was . . Whoever did that he had to sign off on it or say something. That was very immature, and let me tell you something it sounds like we got management here passing the heat. That is not leadership. You do things because there [sic] right. Not because Mike Bonczar said, not because Dave Feheley said, not because ah. . [. . .] Any manager who says and I include you, that says "I'm doing this because my manager told me to do it", shouldn't be in that job.

Bonczar does not specify what he thinks the cited statements

mean or why he considers them to be defamatory. For the sake of

argument, I presume they mean that, assuming Bonczar blamed

Feheley for inflated or falsified figures, the memo in which he

did so was an example of poor management and indicated a lack of

maturity, and that a manager who blames upper-level management is

25 not performing his job adequately. Thus, Spina did not disclose

that Bonczar had passed the memo from the regional coordinator

straight to the district managers in an attempt to shift blame

for the overtime figures from himself to Feheley. That fact,

apparently, was already known to the district managers, or at

least to Walt Wojedzowic. Spina merely offered his opinion that

it was immature of Bonczar to blame Feheley without doing

anything to correct the problem. Even assuming that the second

statement refers to Bonczar, and is not just a general statement

of Spina's management philosophy, it is merely Spina's opinion of

the disclosed facts presented to him by the district managers.5

Therefore, I grant summary judgment in favor of defendants

regarding these statements.

2. The March 2, 1992 Letter

Bonczar also claims that the March 2, 1992 letter from

Richardson, Spina, and Stec explaining their reasons for demoting

him is defamatory. Bonczar does not specify which statements in

the letter are defamatory, but states generally that the letter

"attribut[es] to Bonczar conduct which he did not do, and

5 Plaintiffs argue that Spina's opinions are nevertheless defamatory because they were offered with actual malice. Plaintiffs misunderstand the law. See Simpkins v. Snow,

(1995) .

26 attribut[es] to him bad management for following the directions

of his own younger supervisor, Feheley." The letter states, in

pertinent part:

Mike, it is only fair to say that your failure in part to display these [leadership] traits has resulted in the loss of management focus within Region 16. Issues raised in the meeting with your managers ranged from being reguired to falsify customer gain and loss reports, not receiving performance appraisals, not understanding (or their perception of) how their budgets were approved, letters to your managers which were unprofessional, not supporting the priorities being directed by your superiors, and so forth.

Bonczar does not contend that the letter was published to

any third parties, but instead urges me to accept the "self­

publication" doctrine. Bonczar admits that New Hampshire has not

addressed the issue of self-publication. However, even if New

Hampshire law recognized defamation by self-publication, I would

not hold the above statements to be defamatory because Bonczar

has failed to offer sufficient evidence to permit a finding that

the statements are false. See Independent Mechanical

Contractors,

. The letter essentially states (1)

that Bonczar lacked leadership skills and (2) that at the

February 19 meeting with Spina, Bonczar's district managers

discussed various issues and complaints, including falsification

of reports. Bonczar has not presented evidence from which a

reasonable jury could infer that he did not in fact go along with

27 the policy of falsification, knowing it was wrong, and shift the

blame from himself to Feheley. When Spina, Stec and Richardson

charged Bonczar with a lack of leadership in their letter, they

referred to Bonczar's failure either to change or take

responsibility for the policy of falsification.

Bonczar has not presented evidence from which a reasonable

jury could infer that the issues listed were not raised at the

meeting between Spina, Stec and the district managers. The

transcript of the incomplete tape of that meeting submitted by

plaintiff suggests that such issues were raised at the meeting.

For example, it records the following exchange:

Judy Lowell: We had a regional meeting, I can't remember exactly where, but everyone in this room was there and I spoke upas I've been with Suburban for 17 years . . . we where [sic] taught never to lie, not to cheat, and I brought it up at the meeting and said that I didn't like lying and I didn't like cheating and I wasn't going to and I was told to lighten up and play the game.

Skip Walz: That's correct

Walt Wojedwozic: Exactly

Judy Lowell: North Conway

Skip Walz: That was in North Conway.

Dennis Spina: By whom?

Judy Lowell: Michael Bonczar.

Dennis Spina: Why is the focus on Dave Feheley then?

28 Walt Wojedwozic: Because this is being dictated by Dave Feheley to the Regional . . .

Finally, Bonczar does not deny that he reguired his district

managers to falsify reports, and the tape transcript he submitted

suggests that he in fact did so. Neither does he deny that he

failed to give his district managers performance appraisals. It

is also undisputed that he sent at least two unprofessional

memoranda. Bonczar argues vehemently that he did not fully

support Feheley's policy of falsifying numbers -- thus it is true

that he was not "supporting the priorities being directed by

[his] superiors." Because Bonczar has not provided evidence from

which a reasonable jury could conclude that any of the statements

in the March 2, 1992 letter are false, I grant summary judgment

on this point in favor of defendants.

3. Statements to Suburban employees that Bonczar was suspected of theft

Although not alleged in the complaint, Bonczar alleges in

his objection to defendants' motion for summary judgment that

sometime after he was suspended, "management" told unspecified

Suburban employees that Bonczar was suspected of theft.

Bonczar's only evidence is his own vague response to one of

Suburban's interrogatories in which he states: "it has come to

my attention that since I filed this lawsuit, certain Suburban

29 employees asked my old employees questions which questions [sic]

indicated that I was beinq accused and suspected of theft."

Because he failed to specify who said what to whom, he has failed

to notify the defendants of his claim aqainst them with the

requisite deqree of specificity. See Gendron v. St. Pierre,

(1903) (plaintiff claiminq slander must specify the

offensive lanquaqe); Bassett v. Spofford,

(1840)

(same). In sum, I qrant defendants' motions for summary judqment

on all of Bonczar's defamation claims.

E. COUNT V: INTERFERENCE WITH CONTRACTUAL RELATIONS

Bonczar alleqes that Feheley interfered with his contractual

relations with Suburban. To maintain this claim, Bonczar must

show: "(1) [he] 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) [Bonczar] was damaqed by such interference."

Demetracopoulos v. Wilson,

(1994) (quotinq

Jav Edwards, Inc. v. Baker,

(1987); Emery v.

Merrimack Valiev Wood Products, Inc.,

(1st Cir.

1983)). Whether an employer can be deemed a third party where

the defendant is an employee of the employer depends on whether

the individual defendant acted within the scope of her

30 employment. See Soltani v. Smith,

(D.N.H. 1993); see also Alexander v. Fujitsu Business

Communication Svs.,

(D.N.H. 1993) (employer

was not third party where plaintiff employee alleged that

defendant employee at all times acted as employer's agent).

_____ Bonczar contends that Feheley was acting outside the scope

of his employment when he ordered Bonczar to lie and then helped

to terminate him for resisting because Feheley was motivated in

part by a desire to better his own position within the company.6

However, Bonczar has produced no direct evidence of this

motivation. Instead, he would ask the jury to infer that Feheley

acted to benefit himself either because, as Feheley's

Bonczar also claims that Feheley was acting outside the scope of his employment because he was motivated by actual malice, citing Piekarski v. Home Owners Sav. Bank, F.S.B.,

(8th Cir.), cert, denied,

(1992). In Piekarski, interpreting the law of Minnesota, the Eighth Circuit Court of Appeals stated that the plaintiff's former superior could be held liable for tortious interference with contractual relations if he acted with "actual malice." The court cited a case in which the Minnesota Supreme Court stated that a superior may be held liable if she is "predominantly motivated by malice and bad faith, that is, by personal ill-will, spite, hostility, or a deliberate intent to harm the plaintiff employee." Nordlinq v. Northern States Power Co.,

(Minn. 1991). Assuming, without deciding, that the New Hampshire Supreme Court would recognize this doctrine, plaintiff has submitted no evidence from which a reasonable jury could infer that Feheley was predominantly motivated by malice. Cf. Soltani,

.

31 subordinate, Bonczar was a "thorn" in Feheley's side or because

Feheley stood to gain in some unspecified way if Bonczar was

demoted or discharged. Construing the evidence in the light most

favorable to Bonczar, I conclude that the evidence is simply

insufficient to permit a reasonable jury to conclude that Feheley

was acting solely for his own benefit when he took the action of

which Bonczar complains. Accordingly, Feheley was not a "third

party" to Bonczar's employment contract with Suburban and Feheley

is entitled to summary judgment on this claim.7

F. COUNT VI: BREACH OF CONTRACT

In Butler v. Walker Power, Inc.,

(1993),

the New Hampshire Supreme Court distinguished two ways in which

an employee handbook may modify at-will employment. First, the

handbook may constitute an employment contract, and set the

Even if Feheley acted partially to benefit himself and partially to further Suburban's interest in making the company more attractive for purchase, mixed motivation does not convert Suburban into a "third party" for purposes of this claim. See Restatement (Second) of Agency § 236 cmt. b ("The fact that the predominant motive of the servant is to benefit himself. . .does not prevent the act from being within the scope of employment"). See also Daigle v. City of Portsmouth,

(1987) (police officer's off-duty beating of suspect was within scope of employment where it was "actuated to some deqree by an object to discharge a law enforcement responsibility" (emphasis added)); Appeal of Griffin,

(1996) (in context of workers compensation, activity of mutual benefit to employer and employee may be within scope of employment).

32 duration of employment, so that the employee is no longer at-

will, but hired for a term. See

Additionally, the handbook

may offer "incidental benefits," including disciplinary

procedures which the employer must follow. See

In such a

case, the employee remains at-will, but is entitled to the

incidental benefits in return for her continued work for the

employer. See

Although the employer may terminate the

employee at any time, a failure to provide the promised

incidental benefits in the handbook may constitute a breach of

contract. See

The court further explained:

The [employee] well might make a case asserting damages from failure to follow the step discipline procedure as a contractual incident of employment, unrelated to any durational claim. The ultimate act of termination would be a thin reed for such a case, since the right to arbitrary termination, absent violation of public policy, remains in the hands of the employer. Damages must arise from failure to follow the procedure short of termination.

Id. at 437.

Bonczar does not dispute that he was an at-will employee,

and does not argue that the EARS handbook he received from

Suburban modified his status as an at-will employee by setting

the duration of his employment. Instead, he argues that the EARS

handbook is a contract between himself and Suburban in which

Suburban promises to follow certain disciplinary procedures.

33 Under New Hampshire law, an employee handbook is an

enforceable contract if the requirements of unilateral contract

formation are satisfied. Panto v. Moore Business Forms,

(1988). There must be a unilateral offer,

acceptance, and consideration.

. A communication from

the employer constitutes an offer if (1) it manifests an intent

to be bound,

, (2) is "so definite as to its material

terms or require[s] such definite terms in the acceptance that

the promises and performances to be rendered by each party are

reasonably certain," Chasan v. Village District of Eastman,

(1986), and (3) contains no effective disclaimer.

See Butler,

. The requirements of acceptance and

consideration are satisfied by the employee's continued work for

the employer. Panto,

.

Bonczar arques that Suburban breached its contract by

failinq (1) to provide an "ethical" and "humane" disciplinary

system, (2) to follow the specific procedures set out in the

handbook, and (3) to carry out the contract in qood faith.

1. Did Suburban make an enforceable promise to be ethical and humane?

Bonczar arques that Suburban breached its promise in the

handbook to deal with disciplinary matters in an ethical and

humane manner. The EARS handbook states, at the beqinninq of a

34 section entitled "EARS POLICY OVERVIEW":

Consistent with our values of being Ethical, Humane, and Demanding, we believe that our employees should have the right and the opportunity to get job related problems listened to and resolved - fairly and guickly. For that reason, we've implemented the EARS . . . Procedure.

This guoted passage merely explains, in very vague terms,

why Suburban is offering the EARS; it promises nothing. Thus, I

reject Bonczar's contention that Suburban contracted to provide

an ethical and humane disciplinary system. See Burr v. Melville

Corp.,

(D. Me. 1994) (interpreting New

Hampshire caselaw) (statement in employee handbook that

"[e]mployees released for inability to perform should have at

least two documented counselling sessions preceding the release"

did not manifest an intent to be bound) (emphasis in original).

2. Did Suburban deny Bonczar specific disciplinary procedures it contracted to provide?

Bonczar claims that Suburban was obligated to follow the

specific EARS procedures set forth in the handbook, and that it

failed to do so.8 The disciplinary procedures set out in

In their Objection, defendants state: "Plaintiff does not even allege that Suburban failed to follow the EARS process." The Complaint, however, alleges "Defendant Suburban breached its promise to . . . Plaintiff to provide an in-house progressive disciplinary system based on an ethical and humane set of procedures . . . ." Though perhaps poorly drafted, the Complaint does allege that defendant Suburban failed to follow the promised

35 definite terms how Suburban will handle disciplinary problems.

Furthermore, in the handbook Bonczar submitted, there is no

disclaimer.9 In Butler, the New Hampshire Supreme Court held

that a similar set of disciplinary procedures were enforceable.

See

. Therefore, a triable case exists as to

whether Suburban unilaterally offered to carry out the

disciplinary procedures stated in the EARS handbook submitted by

plaintiff. Bonczar satisfied the acceptance and consideration

requirements for unilateral contract formation by continuing to

work for Suburban. Therefore, viewing the evidence in the light

most favorable to the plaintiff, the procedures set out in the

EARS handbook constitute a contract.

The EARS handbook describes essentially a three-step process

for the review of adverse disciplinary decisions. Before the

employee may take advantage of this process, she must discuss the

problem with her immediate supervisor. If the problem remains

disciplinary procedures.

9 Defendants submitted a copy of a disclaimer which they refer to as "a preface to all of Suburban's employee policies." However, this disclaimer does not appear in the handbook submitted by plaintiff, and defendants provide no explanation of where it came from. At best, defendants have shown that there is a factual dispute as to whether the EARS handbook contained a disclaimer, thus they cannot prevail on this issue on summary judgment.

36 unresolved, the employee first submits a written complaint to her

supervisor, and the supervisor responds in writing. Second, the

employee submits a written rebuttal to the next two higher levels

of management. The reviewing authorities investigate the

problem, and either affirm or reverse the decision. Third, the

employee appeals in writing to the Area Human Resources Manager

and (for regional managers and above) an Executive Review Board

("ERB") reviews the disciplinary decision.

Bonczar claims that Suburban failed to follow the EARS

process by allowing Feheley to judge his step two appeal and by

putting his step three appeal on hold. Bonczar has submitted

evidence that Stec told him he could essentially skip to step two

of the appeals process.10 Bonczar appealed to Spina, Richardson

and Stec (presumably, the president and vice presidents at

headguarters were the next two levels of management above

Feheley), but Feheley considered and denied his appeal. Thus, a

triable case exists as to whether Suburban breached its promise

that upper level managers would consider and decide Bonczar's

step two appeal.

Suburban does not dispute that Bonczar complied with the

10 Thus, defendant waived its complaint that Mr. Bonczar failed to speak to Feheley and to complete step one of the process.

37 requirements for a step three review by an ERB, nor that it

denied him a step three review. According to Bonczar, Suburban

did so because Bonczar was unable to attend a meeting of the

Executive Review Board ("ERB") in Whippany, New Jersey. The EARS

handbook states that the ERB "will review all relevant

information, conduct any additional investigation deemed

necessary, and make a decision to uphold, overturn, or modify the

contested action." It does not require the employee to attend

any additional meetings. Furthermore, Stec testified at his

deposition that the step three appeal could have been completed

without meeting with Bonczar. Therefore, a reasonable jury could

find that Suburban breached its contract by denying Bonczar a

step three appeal.

3. Did Suburban breach the implied covenant of good faith and fair dealing?

Plaintiff argues that Suburban failed to carry out its

promise to provide the disciplinary system outlined in the EARS

handbook in good faith. In Centronics Corp. v. Genicom Corp.,

, (1989), the New Hampshire Supreme Court held:

[U]nder an agreement that appears by word or silence to invest one party with a degree of discretion in performance sufficient to deprive another party of a substantial proportion of the agreement's value, the parties' intent to be bound by an enforceable contract raises an implied obligation of good faith to observe reasonable limits in exercising that discretion,

38 consistent with the parties' purpose or purposes in contracting.

.

The court articulated the following four guestions to guide

courts deciding a claim for breach of the implied covenant of

good faith:

1. Does the agreement ostensibly allow to or confer upon the defendant a degree of discretion in performance tantamount to a power to deprive the plaintiff of a substantial portion of the agreement's value? . . .

2. If the ostensible discretion is of that reguisite scope, does competent evidence indicate that the parties intended by their agreement to make a legally enforceable contract? . . .

3. Assuming an intent to be bound, has the defendant's exercise of discretion exceeded the limits of reasonableness? . . .

4. Is the cause of the damage complained of the defendant's abuse of discretion, or does it result from events beyond the control of either party, against which the defendant has no obligation to protect the plaintiff? . . .

.

The EARS gave Suburban discretion sufficient to deprive

Bonczar of a substantial portion of the contract's value. I have

already held that the EARS handbook created a legally enforceable

contract. The damage complained of is the demotion, which

resulted from defendant's abuse of its discretion to decide

39 disciplinary appeals. Therefore, I need only decide whether

Suburban's exercise of discretion exceeded the limits of

reasonableness.

Suburban does not dispute that Feheley decided Bonczar's

step two EARS appeal. Because Bonczar blamed Feheley for his

employment problems, the likelihood that Feheley would agree with

Bonczar was very slim. Furthermore, Bonczar has submitted

evidence from which a reasonable jury could infer that Suburban

permanently replaced Bonczar before the EARS review process was

complete, and that Suburban had no other regional manager

positions available. Thus, a reasonable jury could find that

Suburban never intended to reconsider its decision to demote

Bonczar, but intended only to deny his appeal without review at

each stage of the EARS. Therefore, I deny defendant's motion for

summary judgment as to Bonczar's claim for breach of the implied

covenant of good faith and fair dealing. See Silva v. University

of New Hampshire,

(D.N.H. 1994)

(university's motion for summary judgment denied where plaintiff

claimed university breached implied covenant of good faith by

failing to follow its disciplinary policy).

In sum, I grant defendant Suburban's motion for summary

judgment as to plaintiff's claim that Suburban breached its

40 promise to be ethical and humane. I deny Suburban's motion as to

plaintiff's claims that Suburban failed to follow the specific

procedures outlined in the EARS and breached the implied covenant

of good faith.

G. COUNT VII: LOSS OF CONSORTIUM

Jo-Ann Bonczar brings a claim of loss of consortium. N.H.

Rev. Stat. Ann. 507:8-a (Supp. 1995) states:

. . . a wife or husband is entitled to recover damages for loss or impairment of right of consortium whether caused intentionally or by negligent interference. Where fault on the part of the claimant or the claimant's spouse is found to have caused, in whole or in part, the injury to the spouse on which the claim for loss or impairment of consortium is based, damages recoverable shall be subject to diminution to the extent and in the manner provided for in RSA 507:7-d.

Because I have granted summary judgment in favor of individual

defendants Spina, Richardson, Feheley, and Stec on all other

claims, I grant summary judgment in their favor on this claim as

well. I denied summary judgment to defendant Suburban, however,

on plaintiff's claims of wrongful discharge, breach of contract,

and breach of the duty of good faith and fair dealing.

Without citing any New Hampshire law, defendants argue only

that where injury to one spouse is purely pecuniary, the

uninjured spouse may not claim loss of consortium. Here,

however, plaintiff alleges that the wrongful discharge also

41 caused him mental anguish. Because defendants have presented no

other argument or caselaw to the contrary, their motion for

summary judgment on this point with respect to defendant Suburban

is denied.11

IV. CONCLUSION

For the foregoing reasons Richardson's motion for summary

judgment (document no. 40) is granted. Feheley, Spina, Stec, and

Suburban's motion for summary judgment (document no. 39) is

granted with respect to all claims against individual defendants

and the claims against Suburban for age discrimination,

intentional infliction of emotional distress, and defamation, but

denied with respect to the claims against Suburban for wrongful

discharge, breach of contract, breach of the duty of good faith

and fair dealing, and loss of consortium.

SO ORDERED.

Paul Barbadoro United States District Judge

September 30, 1996

11 Since it was not raised by the parties, I take no position on the issue of whether a wrongful discharge claim states a claim in contract or tort.

42 cc: Nancy Richards-Stower, Esq. Garry R. Lane, Esq. William B. Miller, Jr., Esq. Martha V. Gordon, Esq.

43