Parker v . MVM 05-CV-380-SM 05/22/07 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Richard Parker, Plaintiff

v. Civil N o . 05-cv-380-SM Opinion N o .

MVM, Inc., Defendant

O R D E R

Richard Parker brings this action against his former

employer, MVM, Inc., claiming it unlawfully terminated his

employment. In his amended complaint, Parker advances state

common law claims for breach of contract, as well as state and

federal statutory claims for age discrimination. MVM moves for

summary judgment asserting that, as to each of Parker’s claims,

it is entitled to judgment as a matter of law. Parker objects.

For the reasons set forth below, MVM’s motion is granted.

Standard of Review

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v . Smith,

1 2 , 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Int’l Ass’n of

Machinists & Aerospace Workers v . Winship Green Nursing Ctr.,

(1st Cir. 1996) (citations omitted).

Nevertheless, if the non-moving party’s “evidence is merely

colorable, or is not significantly probative,” no genuine dispute

as to a material fact has been proved, and “summary judgment may

be granted.” Anderson v . Liberty Lobby, Inc.,

4 2 , 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the non-

movant’s ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(e). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore bald

assertions, unsupported conclusions, and mere speculation. See

Serapion v . Martinez,

8 2 , 987 (1st Cir. 1997).

2 Background

In March of 1997, at the age of 5 5 , Parker was hired by MVM

as a full-time Quality Assurance Manager (“QAM”). After serving

in that role for approximately seven years, Parker expressed an

interest in switching to part-time employment. Because he had

reached the age of 62 and was eligible for Social Security

benefits, he informed MVM that he did not want to jeopardize his

receipt of those benefits. He also told MVM that he was no

longer interested in the substantial amount of travel that was an

essential element of his job (i.e., performing quality control

inspections at sites in Vermont and New Hampshire). Accordingly,

Parker proposed that his position - that of QAM - be converted to

a part-time position and suggested that MVM hire another person

to assume the role of “Quality Control Monitor,” who would

perform the inspections that Parker had been doing in New

Hampshire and Vermont.

MVM accommodated Parker’s request and, in January of 2005,

its Director of Federal Security Services, Michael Hahn, approved

his change in status from full-time to part-time employment. See

Exhibit 9 to plaintiff’s memorandum, Change of Status Form

(document n o . 28-11). Shortly thereafter, however, MVM had a

change of heart. First, it appears not to have hired the Quality

3 Control Monitor Parker had requested/recommended to perform the

inspections in Vermont and New Hampshire. Accordingly, in

February of 2005, it asked Parker to resume those inspections.

He refused, saying it would require more than the 11 hours of

work his new part-time position involved. MVM was not pleased.

Then, MVM says it received word that it was not performing

to expectations under its contract with the GSA. In response,

MVM undertook a review of that contract and realized that it was

required under the contract to employ a full-time QAM. See,

e.g., Exhibit I to defendant’s memorandum, Affidavit of Ty

Richards, MVM’s Operations Coordinator for the Federal Protective

Service Contract (document n o . 23-11) at 2 . But, according to

MVM, because of the performance issues under the GSA contract and

what it perceived as Parker’s poor attitude, it did not want to

bring Parker back as the full-time QAM. See Exhibit I to

defendant’s reply memorandum, E-mail from Michael Hahn, MVM’s

Director of Federal Security Services, dated March 2 4 , 2005

(document n o . 30-10) at para. 3 .

Nevertheless, MVM decided to honor its commitment to provide

Parker with part-time employment and, on March 2 5 , 2005, offered

to create a part-time position for him as an Administrative

4 Assistant I I , reporting to the new QAM, at Parker’s then-current

rate of pay. To fill the vacant full-time QAM position, MVM

promoted an existing MVM employee (a man in his fifties), who had

previously reported to Parker.

Despite the fact that he would be working in the same office

and receiving the same pay, Parker was not happy. He saw MVM’s

decision as a demotion to the newly created position and he

refused to come to work. Shortly thereafter, in April of 2005,

Parker’s attorney wrote to MVM, stating that Parker viewed its

treatment of him as amounting to a constructive discharge. In

September of 2005, Parker filed suit in state court, which MVM

removed to this court.1

By order dated June 2 0 , 2006, the court granted MVM’s motion

to dismiss count one of Parker’s complaint (wrongful

termination). What remain, then, are the following claims:

1 For purposes of ruling on MVM’s pending motion for summary judgment, the court has assumed that Parker’s transfer amounted to a constructive discharge. Based upon the factual allegations set forth in Parker’s affidavit (document n o . 2 8 - 3 ) , however, it is unlikely that transfer would result in “work so arduous or unappealing, or working conditions so intolerable, that a reasonable person would feel compelled to forsake his job rather than to submit to looming indignities.” Vega v . Kodak Caribbean, Ltd.,

(1st Cir. 1993). See also Porter v . City of Manchester,

0 , 42 (2004).

5 breach of contract (count 2 ) ; breach of the implied duty of good

faith and fair dealing (count 3 ) ; age discrimination, in

violation of New Hampshire’s Law Against Discrimination, N.H.

Rev. Stat. Ann. (“RSA”) ch. 354-A (count 4 ) ; and age

discrimination, in violation of the Age Discrimination in

Employment Act (“ADEA”),

, et seq. (count 5 ) . MVM

moves for summary judgment as to each of the remaining claims,

saying there are no genuinely disputed material facts and

claiming entitlement to judgment as a matter of law. Parker

objects.

Discussion

I. Counts Two and Three - Common Law Employment Claims

Before addressing counts two and three of Parker’s

complaint, it is probably appropriate to first consider the

nature of his employment relationship with MVM. “Under the

governing law of New Hampshire, employees fall into two classes:

contract employees and at-will employees.” Censullo v . Brenka

Video, Inc.,

0 , 42 (1st Cir. 1993). That status

dictates which legal remedies are available to an employee. In

this case, Parker asserts that he was a contract employee and,

beyond that, says MVM could not fire him except for good cause.

He is incorrect.

6 Absent some express provision that an individual’s

employment is for a specific period of time, he or she is

presumed to be an at-will employee.

Under [New Hampshire] law, the at-will status of an employment relationship is one of prima facie construction. That is to say, unless an employment relationship explicitly provides for a definite duration, it is presumed to be at-will. This is critically important when an employee challenges her ouster; an employer can give an at-will employee - even one who has been a stellar performer - her walking papers at any time, for any reason or no reason, unless a statute, a collective bargaining agreement, or some aspect of public policy proscribes firing the employee on a particular basis.

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

(1st Cir. 1996)

(citations and internal punctuation omitted). Here, nothing in

the written offer of employment MVM extended to Parker suggests

that, if he accepted that offer, he would be anything other than

an employee at-will. See Exhibit 3 to plaintiff’s objection,

March 2 8 , 1997 offer of employment (“Parker’s Employment

Contract”) (document n o . 2 8 - 4 ) .

Although Parker is certainly correct in describing that

document as a “contract” between himself and MVM (i.e., an offer

that was accepted and supported by adequate consideration), it

did not, without more, make him a “contract employee,” as that

7 term of art is understood. A “contract employee” - perhaps more

accurately described as a “tenured employee” - is one who is

employed for a specific period of time. And, absent contrary

provisions in his of her employment contract or collective

bargaining agreement, an employee hired for a fixed time period

cannot be fired during that agreed-upon period except for good

cause.

The provisions of MVM’s employee handbook reinforce the

point that MVM did not, and never intended t o , hire Parker as a

tenured employee. Among other things, the employee handbook

provides:

Employment Offers. The employment offered by MVM, if accepted, is employment-at-will (see next section for an explanation of “employment-at-will”). . . . .

Employment at Will. MVM and its employees have an employment relationship known as “Employment at Will,” in which both MVM and the employee have the right to terminate the employment relationship at any time - for any reason or for no reason at all. No contract or other enforceable obligation is intended. Unless there is an executed contract duly signed by an authorized officer of MVM, employment with MVM is “at-will.” NOTHING HEREIN (NOR ANY OTHER STATEMENT OF POLICY) SHOULD BE INTERPRETED AS AN EXPRESS OR IMPLIED CONTRACT BETWEEN MVM AND AN EMPLOYEE. Statements made by supervisors or managers that contradict the employee’s at-will status are not binding on MVM. Only MVM Executive Staff can alter the at-will employment relationship.

8 Exhibit H to defendant’s memorandum, MVM Employee Handbook

(document n o . 23-10) at 6 (emphasis supplied, capitalization in

original). See also Id. at 19 (“Termination of Employment. MVM

reserves the right to terminate any employee at any time, with or

without cause. The decision to terminate employment rests solely

with MVM executive staff.”).

In support of his claim that he was a tenured (or

“contract”) employee, Parker points to the fact that his written

job offer from MVM was signed by MVM’s senior vice president,

Karen M . Marquez. Thus, says Parker, he had a written contract

for employment, signed by a duly authorized officer of MVM. And,

invoking the highlighted terms of the employee handbook quoted

above, he asserts that his employment falls squarely within the

exception to employment at-will.

Parker i s , perhaps understandably, confusing concepts. The

mere fact that an employee has a written employment contract does

not compel the conclusion that he or she is a “contract

employee.” Again, the phrase “contract employee” i s , no doubt,

the source of that confusion. The critical aspect of the

relationship between employer and employee that distinguishes at-

will employment from tenured employment is not the existence (or

9 non-existence) of a written employment contract. Instead, it is

the establishment (or absence) of a definite term of employment.

In this case, nothing in either Parker’s Employment Contract or

MVM’s employee handbook suggests that he was hired for a specific

term.

But, Parker counters, he was hired for a specific period of

time. Parker’s Employment Contract provides that he was employed

as “Quality Assurance Manager for the GSA New England contract.”

Id. at para. 1 . As Parker points out, the GSA New England

contract was for a five year period. Thus, Parker concludes that

he was hired (albeit implicitly) to act as Quality Assurance

Manager for the duration of MVM’s contract with the GSA. But,

even assuming that argument is sound, it fails to advance

Parker’s cause. The GSA contract expired well before Parker

sought part-time status and long before he says he was

constructively discharged. Even accepting Parker’s argument,

when the five-year GSA contract expired and he remained an

employee of MVM, his employment status would have changed to

employment at-will.

Consequently, when MVM allegedly constructively discharged

Parker, he was an employee-at-will and MVM could terminate his

10 employment for any reason or no reason at all (directly or

constructively) - provided, of course, that termination did not

implicate public policy concerns. And, as noted above, Parker’s

status as an at-will employee dictates the legal remedies that

are available to him.

A. Count Two - “Breach of Employment Contract”

In count two of his amended complaint, Parker asserts that

MVM breached the terms of his employment contract by demoting him

without offering him the opportunity to resume his former full-

time position as QAM - wrongful treatment he says was designed to

induce his resignation and which amounted to a constructive

discharge.

As an at-will employee, Parker’s cause of action against MVM

arising out of his alleged constructive firing is limited to a

claim for wrongful discharge; he has no claim for breach of

contract. See Brenka Video,

(“Contract employees

[i.e., “tenured” employees] are limited in their remedies for

breach by the terms of the contract. In contrast, at-will

employees are limited in their remedies to claims for wrongful

termination.”) (citations omitted). In other words, tenured or

“contract” employees may pursue a claim sounding in contract,

11 while at-will employees must pursue a claim sounding in tort.

See generally Porter v . City of Manchester,

0 , 38-39

(2004). Consequently, as a matter of New Hampshire law, Parker

has no viable claim against MVM for having allegedly engaged in

conduct toward him that “constituted a breach of the employment

contract.” Amended complaint at para. 3 8 . As to count two of

Parker’s amended complaint, MVM is entitled to judgment as a

matter of law.

B. Count Three - “Breach of Employment Contract (At-Will)”

In count three of his amended complaint, Parker asserts that

even if the court determines that he was an employee-at-will, he

still has a viable claim against MVM for having breached its

implied duty to deal with him fairly and in good faith when it

constructively discharged him. Again, however, the court

disagrees.

As noted above, as an employee-at-will, Parker’s remedies

for an alleged constructive discharge are limited to a tort claim

for wrongful discharge. To prevail on such a claim, Parker must

demonstrate two things. First, he must prove that MVM’s decision

to constructively terminate his employment was motivated by bad

faith, malice, or retaliation. See Cloutier v . The Great

12 Atlantic & Pacific Tea Co.,

(1981). Next, he

must show that he was constructively discharged because he

performed an act that public policy would encourage, or refused

to perform an act that public policy would condemn.

.

Here, even if it were assumed that Parker has identified

sufficient facts to suggest that MVM acted in bad faith or with

malice (a stretch), he has failed to point to any evidence

suggesting that it constructively discharged him because he

engaged in conduct that public policy would applaud, or because

he refused to engage in conduct that public policy would condemn.

As to that issue, all Parker says is that MVM constructively

terminated his employment because he refused to perform a task

(i.e., the site inspections in New Hampshire and Vermont) that

could not have been performed within the few hours he worked each

week. He argues (erroneously) that public policy would encourage

such a refusal:

It is clear that Parker was terminated for failing to carry out certain job functions that were not his responsibility and which [another employee of MVM] acknowledges could not be performed within his 11 hour work week. Public policy does not permit a termination of employment based on a failure to perform an order from a superior to carry out duties that cannot be performed within the work week as defined by the employee’s part time work status.

13 Plaintiff’s objection at 1 2 . See also Exhibit 1 to plaintiff’s

memorandum, Affidavit of Richard F. Parker (document n o . 28-3) at

para. 1 5 . Parker’s arguments and attempts to find support for

that theory in New Hampshire precedent are unpersuasive.

Accordingly, the court concludes that MVM is entitled to judgment

as a matter of law as to count three of plaintiff’s amended

complaint.2

II. Counts Four and Five - Age Discrimination Claims.

Finally, in counts four and five of his amended complaint,

Parker alleges that his constructive discharge violated both

state and federal statutes prohibiting workplace discrimination

on the basis of age. In response, MVM asserts that there is

simply no evidence in the record to support a claim that it

2 Parenthetically, the court notes that, in its prior order, it dismissed count one of Parker’s amended complaint (wrongful termination) on similar grounds. As to that claim, however, Parker failed to allege that he was discharged because he engaged in conduct that public policy would encourage or because he refused to engage in conduct that public policy would condemn. Instead, he said MVM violated public policy by constructively discharging him because of his age. But, as the court noted in that order, because there is a statutory remedy available to employees who believe they have been victims of age- based discrimination, New Hampshire common law does not recognize a wrongful discharge claim arising out of that conduct.

14 violated either state or federal anti-discrimination legislation.3

In cases such as this, where the plaintiff has no direct

evidence of unlawful age-based discrimination, the court employs

the now-familiar McDonnell Douglas burden-shifting framework.

See McDonnell Douglas Corp. v . Green,

(1973).

See also Reeves v . Sanderson Plumbing Prods., Inc.,

(2000) (applying the McDonnell Douglas paradigm to claims

advanced under the ADEA); Sheppard v . River Valley Fitness One,

L.P.,

8 , 49 (D.N.H. 2002) (noting that the same

standard applies to claims brought pursuant to New Hampshire’s

Law Against Discrimination). S o , to carry his initial burden as

3 As to Parker’s claim that MVM’s treatment of him ran afoul of New Hampshire’s Law Against Discrimination, it is unclear whether Parker has properly exhausted available state administrative remedies. Until recently, that statute provided no private right of action for alleged acts of discrimination. In 2000, however, it was amended to provide a private cause of action. But, the statute expressly requires that such suits be filed only “at the expiration of 180 days after the timely filing of a complaint with the [New Hampshire Commission for Human Rights], or sooner if the commission assents in writing.” RSA 354-A:21-a, I (emphasis supplied). Here, the record is devoid of any suggestion that Parker ever filed a complaint with the Commission for Human Rights. Accordingly, it is unclear whether he may properly pursue a claim that his employer violated the provisions of RSA ch. 354-A. Nevertheless, because MVM does not raise the issue, the court will assume that he has complied with the statutory prerequisites to filing this suit.

15 to both his state and federal statutory claims, Parker must

establish a prima facie case of age-based discrimination. To do

s o , he must show that: (1) he was discharged; (2) at the time, he

was a member of a statutorily protected class (here, those who

are at least 40 years o l d ) ; (3) he was otherwise qualified for

the position he held; and (4) MVM filled the vacancy created by

his discharge.

For the purpose of addressing MVM’s motion, the court will

assume that Parker has carried his initial burden of making out a

prima facie case of age discrimination (again, liberally assuming

he has alleged sufficient facts to warrant the conclusion that he

was constructively discharged). In response, MVM says its

decision to transfer Parker from the part-time QAM position to

Administrative Assistant II (at the same salary) was justified by

legitimate, non-discriminatory, business concerns. First, it

points out that Parker repeatedly discussed his desire to work

only part-time, so as not to interfere with his receipt of Social

Security benefits. Additionally, Parker clearly expressed his

unwillingness to do the traveling necessary to perform

inspections in New Hampshire and Vermont that were required by

the GSA contract. Moreover, according to MVM, when it reviewed

its contract with GSA, it realized that it was obligated to

16 provide a full-time QAM. S o , while it had agreed to allow Parker

to hold the QAM position as a part-time employee, it eventually

realized it could not honor that commitment consistently with its

contractual obligations to GSA.4

MVM says it decided not to return Parker to his former full-

time position as QAM after he steadfastly refused its request to

perform the February inspections and insisted that MVM was

obligated to provide him with the part-time employment it had

initially approved - a defiant, if not insubordinate attitude

that MVM plainly did not appreciate. See, e.g., Affidavit of

Richard Parker at para. 20 (“In discussions that followed[,] I

was insistent that the change to a part-time Quality Control

Manager had been approved and that I was entitled to continue on

that basis.”); Exhibit I to defendant’s memorandum, Affidavit of

Ty Richards at 2 (“Mr. Parker refused to complete the [February]

4 Parker denies that MVM’s contract with GSA required it to provide a full-time QAM. But, the specific requirements of the contract are not critical. What is important is MVM’s belief that it was required to provide a full-time employee in that position and its desire not to return Parker to that position. Shortly after Parker assumed his part-time status, it became clear that someone had to perform the monthly inspections in Vermont and New Hampshire. When Parker refused, citing his part- time status, MVM understandably realized that it would have to hire someone to perform those duties - that i s , a full-time employee (or at least someone working more than 11 hours a week), who was willing to travel.

17 inspections. He was basically sabotaging the very program he

helped to create and in which he previously had taken such

pride.”). See also E-mail from Michael Hahn (document n o . 30-10)

at paras. 2-3 (“[Parker’s] tone was such that he felt he was

entitled to the position and wanted to dictate to management his

return based on his own conditions/terms. His tone during the

conversation was somewhat confrontational. He kept saying he had

a COS [change of status form] and opined that the COS somehow

endorsed his entitlement to the PT [part-time] QC position or his

return to a FT [full time] slot. He seems to want what he

want[s] when he wants it[,] which is part of the problem. I do

not want to bring him back as the full time QC Manager.”).

Finally, MVM says that although Parker had created the

quality control program for the GSA contract and had ably run

that program for several years, the program was no longer meeting

the client’s expectations. Michael Hahn opined that the

performance problems stemmed from “the lack of a robust [quality

control] program,” and suggested that it was time for a “change

in leadership in this position.”

at para. 2 .

In response to MVM’s articulation of various legitimate,

non-discriminatory reasons for his (alleged) constructive

18 discharge, Parker has remained silent. Despite the fact that MVM

has met its burden of production under the McDonnell Douglas

framework, Parker has not acknowledged (nor has he attempted to

carry) his burden of demonstrating that MVM’s proffered reasons

for his transfer/demotion are merely pretextual for unlawful age-

based discrimination. Instead, he simply rests on the claim that

he has “establish[ed] a prima facie case for age discrimination

[and] MVM has not provided legitimate, non-discriminatory reasons

for its adverse actions relating to [him].” Plaintiff’s

memorandum (document n o . 28-2) at 1 4 .

Parker’s general assertion that MVM has not articulated a

legitimate, non-discriminatory basis for his alleged constructive

discharge is without merit. As noted above, Parker was an

employee-at-will. Consequently, it would have been sufficient

for MVM to simply say that the animosity Parker engendered when

he refused to perform the February inspections motivated it to

transfer (i.e., allegedly constructively discharge) him. An

employee’s attitude, even if it does not rise to the level of

insubordination, can provide a lawful basis upon which to

discharge an employee-at-will (again, assuming no public policy

implications). But, MVM provided several other legitimate

reasons for its decision as well. Bearing in mind that MVM’s

19 burden is one of production, rather than persuasion, it has more

than carried that burden. Consequently, under McDonnell Douglas,

Parker was obligated to present argument and evidence from which

a reasonable trier of fact could conclude that the reasons

offered by MVM for his constructive discharge were merely a

pretext for unlawful age-based discrimination. He did not.

Nevertheless, even viewing the record in the light most

favorable to Parker, and assuming he attempted to fashion that

evidence into an argument that MVM’s stated reasons for his

constructive discharge were pretextual, he would still fail. The

primary source of support for Parker’s claim that his alleged

constructive discharge was motivated by age discrimination is the

e-mail authored by Michael Hahn. According to Parker,

Hahn’s words in his March 2 4 , 2005 e-mail that he wanted a more “robust NE program” smack[] of age discrimination in a circumstance where there was a complete lack of any documented record tending to demonstrate that there were any legitimate issues with Parker’s job performance during the time he held the full time Quality Assurance Manager position from March 1997 through January, 2005.

Plaintiff’s memorandum at 1 4 . The court disagrees. As a matter

of law, under the circumstances, no properly instructed jury

could reasonably conclude that Hahn’s expressed desire to seek a

20 more “robust” quality control program for the GSA contract was in

fact a proxy for age-based discrimination, or that it

demonstrated that MVM’s articulated reasons for transferring

Parker were pretextual.

In short, Parker’s memorandum of law fails to point to facts

or advance arguments sufficient to undermine the credibility of

MVM’s explanation for its actions. Even if Parker’s memorandum

had discussed other language in Hahn’s e-mail (i.e., his desire

to “avoid any legal action/claim by Richie” or his statement that

“this course of action would limit the company’s liability if

Richie wanted to somehow seek redress”), that, too, would be

legally insufficient to cast doubt on MVM’s proffered explanation

for transferring Parker. Hahn’s desire to avoid o r , at a

minimum, minimize the company’s potential legal exposure reflects

his understanding of the risks facing employers who terminate (or

arguably constructively discharge) individuals who fall within a

protected class. As the court of appeals has noted, “we think it

likely that the potential for legal action is routinely addressed

when company officials meet to consider terminating an employee.”

Wallace v . O.C. Tanner Recognition Co.,

6 , 101 (1st

Cir. 2002). Similarly, stray remarks about an employee’s age

and/or inquiries related to his or her potential retirement plans

21 of the sort identified in Parker’s amended complaint are, without

more, insufficient to call into question an employer’s otherwise

credible non-discriminatory explanation for its actions.

.

Because Parker has failed to point to any trial-worthy

issues that might undermine MVM’s articulated reasons for having

(allegedly) constructively discharged him, MVM is entitled to

judgment as a matter of law as to Parker’s ADEA claim (count

five), as well as his claim under New Hampshire’s Law Against

Discrimination (count four).

Conclusion

No one appears to doubt that while he worked for MVM Parker

was a solid, contributing employee who received positive

employment reviews. S o , when he informed MVM that he was no

longer interested in the travel his job required and would prefer

to switch to a part-time schedule involving no more than 11 hours

each week (so he could begin collecting Social Security

benefits), MVM accommodated that request. If it had been

motivated by some discriminatory age-based animus to encourage

Parker to retire, MVM could have taken that opportunity to simply

refuse his request. It did not.

22 Very soon thereafter, however, MVM decided that it needed,

or wanted, a full-time employee acting as its QAM (whether it

based that decision, as Parker says, on an erroneous reading of

its contract with GSA is not relevant). Again, however, it

decided that, rather than fire Parker, it would attempt to

accommodate his desire to remain a part-time employee. S o , it

created a new position specifically for Parker, and offered him

that job, at his then-current rate of pay. For whatever

reason(s), Parker was displeased with that decision and,

erroneously believing that MVM was legally obligated to either

keep him in the part-time QAM position or restore him to his

former full-time position, elected not to accept the offer MVM

extended to him.

At that point, rather than retire, Parker challenged MVM’s

management decisions as amounting to a constructive discharge -

one he believed was unlawfully motivated by age-based

discrimination, in breach of his employment contract, contrary to

established New Hampshire public policy, and in violation of both

state and federal anti-discrimination statutes. But, for the

reasons discussed above, MVM has demonstrated that there are no

genuinely disputed material facts and it is entitled to judgment

23 as a matter of law as to all remaining claims in Parker’s amended

complaint.

MVM’s motion for summary judgment (document no. 23) is

granted. The Clerk of Court shall enter judgment in favor of MVM

and close the case.

SO ORDERED.

Steven J __McAuliffe /Chief Judge

May 22, 2007

cc: Arthur G. Greene, Esq. David W. McGrath, Esq, Christopher Cole, Esq.

24