Gavin v . Liberty Mutual 11-cv-159-LM 9/5/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Linda Gavin

v. Civil N o . 11-cv-159-LM Opinion N o .

Liberty Mutual Group Inc.

O R D E R

In a case that has been removed from the New Hampshire

Superior Court, Linda Gavin is suing her former employer,

Liberty Mutual Group Inc. (“Liberty Mutual”), in three counts,

asserting claims for constructive discharge (Count I ) , wrongful

termination (Count I I ) , and enhanced compensatory damages (Count

III). 1 Before the court are: (1) Liberty Mutual’s motion for

summary judgment; and (2) its motion to strike portions of

Gavin’s memorandum of law in opposition to summary judgment and

her affidavit in support thereof.2 Gavin objects to both

motions. For the reasons that follow, Liberty Mutual’s motion

1 Gavin makes her request for enhanced compensatory damages in a separate count, but both parties appear to agree that her complaint actually asserts only two claims: one for constructive discharge and one for wrongful termination. The court agrees with the parties. See Minion Inc. v . Burdin,

2 1 , 523 (D.N.H. 1996) (“Under New Hampshire law, a claim for enhanced damages is not a separate cause of action; it is a request for a particular remedy.”). 2 Also filed, but not yet ripe for decision, is Liberty Mutual’s motion to compel. for summary judgment is granted and, as a result, its motion to

strike is denied as moot.

Summary Judgment Standard

“To prevail on summary judgment, the moving party must show

that ‘there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.’”

Markel Am. Ins. C o . v . Díaz-Santiago,

1 , 29 (1st Cir.

2012) (quoting Fed. R. Civ. P. 56(a)). “[A]n issue of fact is

genuine if ‘a reasonable jury could resolve it in favor of

either party.’” Markel,

-30 (quoting Basic

Controlex Corp. v . Klockner Moeller Corp.,

5 0 , 453

(1st Cir. 2000)). “In determining whether a genuine issue of

material fact exists, [the court] construe[s] the evidence in

the light most favorable to the non-moving party and make[s] all

reasonable inferences in that party’s favor.” Markel,

(citing Flowers v . Fiore,

4 , 29 (1st Cir.

2004)).

“The object of summary judgment is to ‘pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’” Dávila

v . Corporación de P.R. para la Diffusión Pública,

(1st Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc.,

, 7 (1st Cir. 2004)). “[T]he court’s task is not to weigh

2 the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Noonan

v . Staples, Inc.,

0 , 25 (1st Cir. 2009) (citations and

internal quotation marks omitted).

“The nonmovant may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that

a trialworthy issue persists.” Sánchez-Rodríguez v . AT&T

Mobility P.R., Inc.,

, 9 (1st Cir. 2012) (quoting

Iverson v . City of Boston,

4 , 98 (1st Cir. 2006)).

“However, ‘a conglomeration of conclusory allegations,

improbable inferences, and unsupported speculation is

insufficient to discharge the nonmovant’s burden.’” Sánchez-

Rodríguez,

(quoting DePoutot v . Raffaelly,

1 2 , 117 (1st Cir. 2005)). “Rather, the party seeking to

avoid summary judgment must be able to point to specific,

competent evidence to support his [or her] claim.” Sánchez-

Rodríguez,

(quoting Soto-Ocasio v . Fed. Ex. Corp.,

4 , 18 (1st Cir. 1998)) (internal quotation marks

omitted).

Background

The following factual recitation is drawn largely from the

statement of undisputed material facts in Liberty Mutual’s

memorandum of law. While Gavin devotes a considerable portion

3 of her memorandum to a host of factual issues, she challenges

only two of the facts from Liberty Mutual’s statement in the

manner required by the Local Rules of this district. That i s ,

she does not respond to Liberty Mutual’s factual statement by

incorporating into her memorandum “a short and concise statement

of material facts, supported by appropriate record citations, as

to which [she] contends a genuine dispute exists so as to

require a trial.” LR 7.2(b)(2). That said, the court turns to

the basic facts of this case.

Gavin began working for Liberty Mutual in 2002. In 2004,

she was promoted to the position of assistant controller in the

cash-management department. Her immediate superior was John

Salmon. “In November of 2007, M r . Salmon . . . met with [Gavin]

regarding her job performance and provided her a detailed

memorandum regarding her shortcomings with regard to

communication and other issues.” Def.’s Mem. of Law (doc. no

2 6 - 1 ) , at 3 . Liberty Mutual supports that statement with a copy

of the memorandum Salmon gave Gavin. Gavin attempts to create a

triable issue regarding the November 2007 meeting in the

following way:

Liberty [Mutual] now also claims in its Motion for Summary Judgment (“Motion”) that Salmon had discussions with Gavin in late 2007 detailing instances of Gavin’s communication problems. This flies in the face of the draft warning prepared by Salmon as to [a] January 1 6 , 2008 meeting, and attached hereto as Exhibit O. No reasons for a performance warning are set out in Exhibit O , and the reasons are simply marked with three (3) x’s.

4 More significantly, Exhibit O states after the three (3) x’s “how do you feel about this/Are you surprised by it?” If Salmon had met with Gavin and had given her detailed instances of Gavin’s communication problems or other issues prior to the January 1 6 , 2008 meeting, it would make no sense to ask her “how do you feel about this/Are you surprised by it?”

Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 15 (emphasis in the

original). While Gavin appears to suggest that Salmon did not

meet with her in November of 2007 or did not talk to her about

communication problems, she did not deny either the fact of the

November discussion or its content in the affidavit she

submitted in support of her objection to summary judgment. In

any event, Gavin’s speculation and inferences, see Sánchez-

Rodríguez,

, are insufficient to create a factual

basis from which a reasonable jury could find either that Salmon

did not meet with her in November of 2007, or that he did not

discuss her job performance with her, which are the relevant

factual statements she appears to challenge, see Markel,

(describing the dimensions of a genuine issue of

fact, for purposes of summary judgment).

On January 4 , 2008, Gavin sent an e-mail containing

confidential information about another employee by using the

“reply all” button rather than the “reply” button, which

resulted in the transmission of that information to people who

should not have received i t . Salmon got the e-mail and went to

5 Gavin’s office to speak with her about i t . When he saw how

upset she was, he told her to go home.

Gavin did go home, and reported to Liberty Mutual that she

was ill and would be out of work for some time. She returned to

work on January 1 6 , having used approximately eight days of

flexible time off (“FTO”), which was one of her employment

benefits. The day Gavin returned to work, Salmon met with her

to discuss her performance. At that meeting, Salmon gave Gavin

two options. The first was to continue as an assistant

controller in the cash-management department and receive a

written warning concerning her job performance. The second was

to take a six- to nine-month assignment in the treasury

department, while receiving her full compensation and benefits.

Salmon told Gavin that if she took the second option, and did

not obtain another position at Liberty Mutual before the

temporary position expired, she would be eligible for severance

pay. “During the January 1 6 , 2008 meeting, [Gavin] informed M r .

Salmon that she would accept the temporary position in the

Treasury Department.” Def.’s Mem. of Law (doc. n o . 2 6 - 1 ) , at 5 .

Although Gavin disputes the voluntariness of her acceptance of

the temporary position, she does not dispute the fact that she

accepted the position, on whatever terms it was offered.

On March 1 9 , Gavin sent a letter to Salmon that stated, in

pertinent part: “I hereby submit my resignation from my position

6 at Liberty Mutual effective April 4 , 2008.” Def.’s Mot. Summ.

J., Ex. D (doc. n o . 2 6 - 5 ) . At her deposition, Gavin was asked

why she did not stay at Liberty Mutual through the end of her

temporary assignment. She explained her early departure this

way:

I did what any reasonable person would do under the circumstances. I had a family. I had a kid in college. I was in a temporary position that I knew . . . would end. It was a poor economy. I mitigated my losses by looking [for] and obtaining a full-time permanent job.

Def.’s Mot. Summ. J., Ex. A (Gavin Dep., doc. n o . 2 6 - 2 ) , at 4 3 .

Based on the foregoing, Gavin asserts claims for

constructive discharge and wrongful termination.

Discussion

A . Constructive Discharge

In Count I , Gavin asserts that Liberty Mutual is liable for

constructive discharge because it made her working conditions so

intolerable that she was forced to leave her job. While Count I

incorporates by reference the factual allegations in the thirty-

one paragraphs of the complaint that precede i t , the four

paragraphs of Count I do not specify the working conditions on

which the constructive-discharge claim is based. Liberty Mutual

argues that it is entitled to summary judgment on Count I

because: (1) Gavin abandoned her constructive-discharge claim

7 during her deposition;3 and (2) she has not alleged treatment

sufficiently egregious to state a claim for constructive

discharge.4 Gavin disagrees. There i s , however, a more

fundamental problem with Count I .

Both Gavin and Liberty Mutual treat Count I as if it

asserts a free-standing claim. It does not. Rather, in the

context of this case, constructive discharge is a way of

satisfying the termination element of Gavin’s wrongful-

termination claim. See Lacasse v . Spaulding Youth Ctr.,

(2006) (“[t]he termination element of [the

plaintiff’s wrongful-termination] claim may be satisfied by

proof of a constructive discharge”); see also Porter v . City of

Manchester,

0 , 37 (2004) (constructive discharge

alleged to satisfy element of constitutional claims); Karch v .

BayBank FSB,

(2002) (“We hold that properly

3 Liberty Mutual’s argument is based on Gavin’s repeated testimony that she was terminated on January 1 6 , 2008. See Def.’s Mot. Summ. J., Ex. A (doc. n o . 2 6 - 2 ) , at 4 , 8 . 4 Liberty Mutual’s argument is not without merit, given the complaint’s vagueness and thinness on this point and the high bar for demonstrating working conditions sufficiently intolerable to result in a constructive discharge, see Porter v . City of Manchester,

0 , 42 (2004) (“the adverse working conditions must generally be ongoing, repetitive, pervasive, and severe”) (quoting 2 M . Rothstein et a l . , Employment Law § 8.7, at 258 (1999)); Marrero v . Goya of P.R., Inc.,

, 28 (1st Cir. 2002) (“To prove constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment.”) (quoting Landgraf v . USI Film Prods.,

, 430 (5th Cir. 1992)).

8 alleging constructive discharge satisfies the termination

component of a wrongful discharge claim.”).

In Jeffery v . City of Nashua, the New Hampshire Supreme

Court held “that an action for constructive discharge accrues

when the employee tenders the resignation or retirement notice,”

___ N.H. ___, ___, N o . 2011-516,

, at *4 (June

1 2 , 2012), which might suggest that New Hampshire recognizes a

free-standing cause of action for constructive discharge. But,

in Lacasse, Porter, and Karch, the New Hampshire Supreme Court’s

three principal constructive-discharge opinions, constructive

discharge was not a free-standing claim, but was a method of

proving an element of another claim.

The same holds true for most the opinions from other

jurisdictions on which the court relied in Jeffery. See Whye v .

City Council,

8 4 , 385 (Kan. 2004) (plaintiff alleged

constructive discharge as an element of a wrongful-termination

claim); Daniels v . Mut. Life Ins. Co.,

1 8 , 719 (N.J.

Super. C t . App. Div. 2001) (plaintiff alleged constructive

discharge in violation of two New Jersey statutes); Flaherty v .

Metromail Corp.,

(2d Cir. 2000) (plaintiff

alleged constructive discharge as an element of claims under

federal, state, and local gender- and age-discrimination laws);

Univ. of Tex. Med. Branch v . Hohman,

6 7 , 772-73 (Tex.

App. 1999) (holding that constructive discharge is termination

9 for purposes of Texas Whistleblower A c t ) ; Patterson v . Idaho

Dep’t of Health & Welfare,

1 8 , 721 (Idaho 2011)

(plaintiff alleged constructive discharge in violation of two

Idaho statutes).

The judges of this district have also routinely held that

constructive discharge is not a cause of action. See, e.g.,

Taite v . Peake, N o . 08-cv-258-SM,

, at *4 n.4

(D.N.H. Jan. 1 2 , 2009) (“Count IV is captioned ‘constructive

discharge,’ but there is no such cause of action under the

common law of New Hampshire.”); Parker v . MVM, Inc., N o . 05-cv-

380-SM,

, at *5 (D.N.H. May 2 2 , 2007) (“[A]s an

employee-at-will, Parker’s remedies for an alleged constructive

discharge are limited to a tort claim for wrongful discharge.”);

Scannell v . Sears Roebuck & Co., N o . 06-cv-227-JD,

, at *2 (D.N.H. Sept. 6, 2006) (“In her complaint,

Scannell characterizes her claims as constructive discharge.

For purposes of the present motion . . . both parties understand

her claim to allege wrongful termination.”).

To conclude, this court is confident that if the New

Hampshire Supreme Court were to be presented directly with the

question, it would rule that “constructive discharge is not in

itself a cause of action [but] is a defense against the argument

that no suit should lie in a specific case because the plaintiff

left the job voluntarily.” Bohn v . Herald Publ’g Co., N o . 11-

10 10618,

, at *7 (E.D. Mich. May 1 7 , 2012) (quoting

Vagts v . Perry Drug Stores, Inc.,

0 2 , 104 (Mich. C t .

App. 1994)). That i s , based on the New Hampshire Supreme

Court’s own constructive-discharge jurisprudence, there is every

reason to believe that court would agree with Judge Anderson’s

recent explication:

[C]onstructive discharge is not a cause of action even though it is routinely alleged as a separate count in complaints for wrongful discharge. Because constructive discharge is not an independent cause of action, an underlying cause of action for wrongful termination from employment must exist for the claim to be valid.

Hogwood v . Town of Oakland, N o . 11-2396-STA-dvk,

, at *3 (W.D. Tenn. Apr. 2 3 , 2012) (footnotes omitted).

Because constructive discharge is not a cause of action,5 Liberty

Mutual is entitled to judgment as a matter of law on Count I .

The unavailability of constructive discharge as a cause of

action, however, does not preclude Gavin from alleging and

proving constructive discharge to establish the termination

element of her wrongful-termination claim.

5 Gavin’s decision to assert a claim for constructive discharge may have been influenced by her erroneous belief that an “employee has the right not to be discharged . . . unless the employer has a reasonable cause to do so.” Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 2 2 . Gavin has alleged no facts to suggest that she was anything other than an employee at will, and her claim for wrongful termination, is based on a cause of action created specifically to protect the rights of employees at will. As an employee at will, Gavin was subject to termination without cause. See Cloutier v . Great Atl. & Pac. Tea Co.,

(1981).

11 B . Wrongful Termination

In Count II of her complaint, Gavin alleges that Liberty

Mutual terminated her in bad faith, retaliation and/or malice,

and further accuses Liberty Mutual of terminating her for

performing four acts that public policy would encourage and

refusing to perform one act that public policy would condemn.

Specifically, she alleges that she was terminated for:

making reasonable use of [her] sick/vacation or paid time off which was a promised benefit of [her] employment with Liberty [Mutual];

taking advantage of procedures in the Liberty [Mutual] Employee Handbook such as confidentially reporting the treatment of a supervisor to the Human Resources Department;

insisting on being provided with a warning that her performance was unsatisfactory and that she would be counseled about specific changes that were required to bring her performance to satisfactory levels and that she would then be placed on probation pursuant to the Liberty [Mutual] Employee Handbook;

doing her job and working hard; and

refusing [to] sign a so-called “Severance Agreement and General Release” under duress.

Compl. (doc. n o . 1-1) ¶ 3 8 . Liberty Mutual moves for summary

judgment on Count I I , arguing that: (1) Gavin was not

terminated; (2) her claim is untimely; and (3) even if she can

establish that she was terminated, she cannot satisfy the

public-policy element of a wrongful-termination claim. Liberty

Mutual’s third argument carries the day.

12 1 . Gavin’s Theory of the Case

Gavin’s position regarding the timing of her discharge is

somewhat difficult to discern. She alleges in her complaint

that she was terminated and/or constructively discharged on

March 2 8 , 2008, but does not indicate the significance of that

particular date. See Compl. (doc. n o . 1-1) ¶ 6. At her

deposition, she testified, rather emphatically, that she was

terminated on January 1 6 , 2008, the day on which she returned

from FTO leave and met with Salmon. See Def.’s Mot. Summ. J.,

Ex. A (doc. n o . 2 6 - 2 ) , at 4 , 8 . In her affidavit and in her

objection to summary judgment, Gavin says she was terminated on

April 4 , the effective date of her resignation. See Pl.’s Mem.

of Law (doc. n o . 2 8 - 1 ) , at 1 3 ; Pl.’s O b j . , Ex. A (doc. n o . 28-2)

¶ 3.

Gavin’s position on how she was discharged is even more

difficult to discern. She appears to rely on the doctrine of

constructive discharge. But, she is not as clear as she might

be about how, precisely, “her employer rendered her working

conditions so difficult and intolerable that a reasonable person

would [have felt] forced to resign,” Jeffery,

,

at *2 (citation omitted). In her complaint, she refers to the

imposition of an unreasonable workload beginning in 2007, see

Compl. (doc. n o . 1-1) ¶¶ 12-13, and to hostile treatment from

Liberty Mutual’s human resources department (“HR”) and from

13 Salmon after she attempted to address her workload issues with

HR, see id. ¶ 14-15. She also alleges that Salmon treated her

with “public disrespect and scorn,” gave her “dirty looks,” and

spoken to her “harshly . . . in front of other employees,

including [her] subordinates.” Id. ¶ 1 3 . She does not allege

when Salmon subjected her to that treatment, but the context of

her complaint suggests that she is alleging that it occurred

before January 1 6 . The complaint appears to include no

allegations about the way Salmon or anyone else from Liberty

Mutual treated Gavin after January 1 6 .

In her affidavit, Gavin avers that while performing the

duties of the temporary position, i.e., after January 1 6 ,

“Salmon . . . ignored [her] and he rendered the working

conditions of her employment so difficult that [she] felt [she]

had no reasonable choice but to leave Liberty Mutual.” Doc. n o .

28-2 ¶ 2 4 . She also says that Salmon made her working

conditions intolerable by having her perform both her old job

and her new one simultaneously. See id. ¶ 2 3 .

In her memorandum of law, in a discussion of her

constructive-discharge claim, Garvin says that Liberty Mutual

made her working conditions intolerable by: (1) criticizing her,

with no basis, for communication and other performance problems;

(2) threatening her with a performance warning; (3) denying her

the opportunity to take advantage of the company’s employment

14 policies and procedures; and (4) forcing her to take the

temporary position and, for a time, requiring her to perform

both her old job and the new one at the same time. See doc. n o .

28-1, at 22-23. She continues:

After the January 1 6 , 2008 meeting, Salmon essentially ignored Gavin, rendering her working conditions intolerable.

Finally, Gavin was forced to accept the temporary position and was told it would only last six to nine months and she then would be “terminated”. Clearly, that put Gavin in an intolerable position knowing that she would be terminated anywhere from six to nine months after being given the temporary position.

Id. at 23 (emphasis in the original).

As noted above, Gavin argues in her memorandum of law that

she “was terminated by being forced to accept the temporary

position,” Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 2 1 , and that

“[Janna] Mullane and Salmon, in essences [sic], terminated Gavin

by forcing her to take the temporary position, which in essence

resulted in the termination of her employment,” id. That sounds

more like an actual termination than a constructive discharge,

and i f , indeed, Gavin means to argue that she was terminated

during her January 1 6 , 2008, meeting with Salmon, then there

could be some merit to Liberty Mutual’s argument that Gavin’s

claim is time-barred, given that her complaint is dated February

2 4 , 2011. Moreover, if Liberty Mutual made Gavin’s working

conditions intolerable by forcing her to take the temporary

15 position on January 1 6 , which is a fair inference from her

reliance on the theory of constructive discharge, it would be

legitimate to wonder why she did not submit her resignation for

another two months, but the court need not resolve that

conundrum. At the very least, Gavin is not especially

consistent about identifying what, precisely, constituted her

termination.

Notwithstanding Gavin’s failure to clearly articulate a

theory regarding when and how she was terminated, the court will

give Gavin every possible benefit of the doubt. For the purpose

of ruling on Liberty Mutual’s motion for summary judgment, the

court will assume that Gavin was constructively discharged by

Liberty Mutual on March 1 9 , 2008, 6 for: (1) taking FTO leave in

January of 2008; 7 and (2) “insisting . . . that she be provided

with the benefits of the applicable Liberty [Mutual]

6 Because “an action for constructive discharge accrues when the employee tenders the resignation or retirement notice,” Jeffery,

, at * 4 , the court cannot assume that Gavin was discharged on April 4 , 2008, the date on which her resignation became effective. 7 Because Gavin returned from her FTO leave on January 1 6 , only conduct by Liberty Mutual after that date could have contributed to a constructive discharge in retaliation for taking that leave. As the complaint makes few if any allegations about conduct directed toward Gavin after January 1 6 , it is not at all clear that Gavin’s claim that she was constructively discharged for using FTO leave could survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

16 [employment] policies and procedures,”8 Pl.’s Mem. of Law (doc.

n o . 2 8 - 1 ) , at 2 6 . These two acts, which are a subset of those

alleged in the complaint, are the only ones Gavin discusses in

her objection to summary judgment.

2 . The Law of Wrongful Termination

In New Hampshire, to prevail on a claim for wrongful

termination, or wrongful discharge, as the cause of action is

also known, a plaintiff must establish that: “(1) [her]

termination was motivated by bad faith, retaliation or malice;

and (2) that [she] was terminated for performing an act that

public policy would encourage or for refusing to do something

that public policy would condemn.” MacKenzie v . Linehan,

(2009) (citation omitted). Thus, “[t]he first

prong focusses on the nature of the employer’s actions, while

the public policy prong pertains to the employee’s acts.” Duhy

v . Concord Gen. Mut. Ins. Co., N o . 1:08-cv-00192-JL,

(D.N.H. June 1 0 , 2009) (quoting Antonis v . Elecs. for

Imaging, Inc., N o . 07-cv-163-JL,

, at *3 (D.N.H.

Nov. 2 5 , 2008; citing Porter,

9 ) ) . “[O]rdinarily

the issue of whether a public policy exists is a question for

8 Given the lack of specificity in the complaint concerning the manner in which Gavin asserted her rights under Liberty Mutual’s policies and procedures, it is not at all clear that her claim that she was constructively discharged for asserting her rights under company policies could survive a motion to dismiss under Rule 12(b)(6).

17 the jury, [but] at times the presence or absence of such a

public policy is so clear that a court may rule on its existence

as a matter of law.” Short v . Sch. Admin. Unit N o . 1 6 ,

6 , 84 (1992) (citing Cloutier v . Great Atl. & Pac. Tea Co.,

, 924 1981)); see also MacKenzie,

. This

is one of those times.

3 . Use of Leave Time

In reliance on Duhy, Liberty Mutual argues that “the ‘act’

of taking sick or vacation days does not constitute an

actionable public policy.” Def.’s Mem. of Law (doc. n o . 2 6 - 1 ) ,

at 9. Liberty Mutual’s point is well taken. In Duhy, the

plaintiff contended that her former employer “wrongfully

terminated her employment in retaliation for her obtaining

medical treatment, taking time off for illness, and allowed use

of vacation, sick and other time . . .”

, at *10

(internal quotation marks omitted). Judge Laplante rejected

that argument:

Duhy’s wrongful discharge claim ultimately founders because she fails to persuade the court that New Hampshire law recognizes the public policies she has suggested. . . . Duhy presents no authority — under New Hampshire law or elsewhere — or convincing argument supporting her claim that, as a broad proposition, public policy encourages employees to take vacation days . . . . While there undoubtedly are specific circumstances where public policy could encourage employees to engage in the activities offered by Duhy (e.g., obtaining medical treatment to address a highly contagious virus), there are myriad

18 scenarios where public policy would not (e.g., malingering, taking excessive vacation, filing bogus insurance claims). Based on a review of all the evidence in this case, viewed in the light most favorable to Duhy, the court cannot conclude, and New Hampshire law has not held, that there is a public policy encouraging employees to engage in the sort of conduct for which Duhy alleges she was fired.

Id. at *10-11.

Duhy is on point and persuasive.9 Gavin has presented

legal authority stating a public policy that would encourage

employees to take sick leave. Her argument, such is it i s ,

consists of nothing more than a bare statement that her use of

FTO leave “under these circumstances was an act public policy

would encourage.” Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 2 5 .

Based on the persuasive reasoning of Duhy, this court has little

difficulty concluding, as a matter of law, that Gavin did not

perform an act that public policy would encourage when she took

sick leave. See Henderson v . NutriSystem, Inc.,

(E.D. P a . 2009) (rejecting plaintiff’s reliance on “a

‘right under the state’s law protecting employees’ medical leave

of absence’” where plaintiff did “not provide references to any

state laws, regulations or opinions of the Pennsylvania courts

9 Gavin attempts to distinguish Duhy, noting that she has not asserted a claim that “she was terminated related to FMLA issues.” Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 2 5 . Gavin’s argument misses the mark because Judge Laplante’s analysis of the Duhy plaintiff’s wrongful-termination claim focused on her use of employer-granted vacation time, not FMLA leave. See

, at * 1 0 .

19 that would establish a ‘clear mandate’ of public policy

sufficient to override the at-will employment relationship”).

It is clear from the New Hampshire Supreme Court’s

wrongful-termination jurisprudence that for a viable wrongful-

termination claim to lie, the plaintiff’s action or inaction

must have been consistent with the dictates of public policy.

See MacKenzie,

; Lacasse,

. In

Cloutier, for example, public policy in the form of federal

work-safety statutes supported a store manager’s decision not to

force a subordinate to pass through a “very dangerous” area to

make bank deposits. See

. Similarly, public

policy in the form of state wage-and-hour laws supported the

same store manager’s decision not to come in on his statutorily

mandated day off to make the bank deposits he did not force his

subordinate to make. See

. Here, by contrast, the

public has no interest in Gavin’s use of the FTO leave Liberty

Mutual made available to her.

4 . Insistence on Adherence to Company Policies

The second part of Gavin’s public-policy argument falls

just as flat as the first. In reliance on Melvin v . NextEra

Energy Seabrook, LLC, N o . 09-cv-249-JD,

(D.N.H.

Jan. 6, 2010), Liberty Mutual argues that “complaints that an

employer did not follow its internal policies, or that it did so

20 inconsistently, do not satisfy the public policy element of a

wrongful termination claim.” Def.’s Mem. of Law (doc. n o . 26-

1 ) , at 1 2 . Gavin responds:

Gavin asserts she was discharged for asserting all of the rights provided to her by the Liberty policies and as set out above. Specifically, these rights include looking for assistance from the Human Resources department, asking to be placed within the discipline process after being threatened with a written warning, asking for a written explanation of the basis for the performance warning, and demanding that she be treated fairly and honestly. As testified to by Augusta, Mullane, Salmon, these are all policies that Liberty was obligated to follow and provide to Gavin. After moving forward to assert her rights to these Liberty policies and procedures, Gavin was in fact, forced to take the temporary position, resulting in her termination. As a result, Gavin asserts she was terminated for insisting, as public policy would dictate, that she be provided with the benefits of the applicable Liberty policies and procedures.10

Pl.’s Mem. of Law (doc. n o . 2 8 - 1 ) , at 25-26. That, however, is

quite literally all Gavin has to say about the public policy

that purportedly encouraged her to press Liberty Mutual to abide

by its policies. Beyond flatly asserting that public policy

supports her actions, Gavin neither articulates any public

policy that encouraged her actions nor identifies the source(s)

of any such policy. For that reason alone, Liberty Mutual is

10 Of the four attempts to assert her rights that Gavin mentions in her memorandum of law, only the first one is mentioned in her complaint. See doc. n o . 1-1 ¶ 1 4 . Only the first and the third are mentioned in her affidavit. See doc. n o . 28-2 ¶¶ 1 1 , 19-20. Beyond that, the court notes that Gavin’s complaint says nothing about her being threatened with a written warning.

21 entitled to summary judgment. See Short,

(“a

plaintiff must articulate a public policy in order to make out a

claim for wrongful termination under State law”).

Further support for Liberty Mutual’s position comes from

Melvin. In that case, the plaintiff contended “that his

employment was terminated because he disagreed with [his

employer]’s allegedly selective enforcement of its policies or

its management of his supervisory role.”

, at * 3 .

Judge DiClerico rejected that argument:

[T]hose matters, as alleged, also would not implicate a public policy. See, e.g., MacKenzie,

(holding that an employee’s disagreement “about whether his conduct violated [his employer’s] rule . . . [is] not an act that public policy would protect”); Short,

(“[A]n employee’s expression of disagreement with a management decision is not an act protected by public policy.”)

(parallel citations omitted).

The analysis Judge DiClerico employed in Melvin would seem

to foreclose a wrongful-termination claim based on Gavin’s

alleged assertion of her rights under Liberty Mutual’s policies.

Moreover, Gavin does not even attempt to distinguish Melvin,

MacKenzie, or Short. In sum, as with Gavin’s use of FTO leave,

the public has no interest in Gavin’s attempt to compel Liberty

Mutual to comply with its internal policies and procedures.

22 Conclusion

Because Gavin has failed to articulate a public policy that

would encourage any of the acts for which she says she was

constructively discharged, Liberty Mutual’s motion for summary

judgment, document no. 26, is granted. In light of that ruling,

Liberty Mutual’s motion to compel, document no. 33, its motion

to strike, document no. 36, and its motion for leave to file a

reply memorandum, document no. 40, are all denied as moot. The

clerk of the court shall enter judgment in accordance with this

order and close the case.

SO ORDERED.

Landya MccjEiferty United StaSfs Magistrate Judge

September 5 , 2012

cc: Debra Weiss Ford, Esq. Douglas J. Hoffman, Esq. John E . Lyons, Jr., Esq. Daniel P. Schwarz, Esq. K. Joshua Scott, Esq.

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