January 22, 1993
                      [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1802

                        JOHN J. MACDONALD,

                      Plaintiff, Appellant,

                                v.

                        TANDY CORPORATION,

                       Defendant, Appellee.
                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Francis J. Boyle,* U.S. District Judge]
                                                      

                                           

                              Before

                       Selya, Circuit Judge,
                                           
              Higginbotham,** Senior Circuit Judge,
                                                  
                     and Cyr, Circuit Judge.
                                           

                                           

  Andru  H.  Volinsky  with  whom  Mary   E.  Davis,  and   Shaheen,
                                                                    
Cappiello, Stein &amp; Gordon, P.A. were on brief for appellant.
                             
  Russell  F. Hilliard with  whom Ernest  T. Smith,  III, and Upton,
                                                                    
Sanders &amp; Smith were on brief for appellee.
             

                                           

                                           

                   

*  Of the District of Rhode Island, sitting by designation.
** Of the Third Circuit, sitting by designation.

          HIGGINBOTHAM, Senior Circuit Judge.   This is an appeal
                                            

from a grant  of a judgment  n.o.v. in favor of  defendant, Tandy

Corporation, and against plaintiff, John J. MacDonald.  MacDonald

was fired from  his job as  a sales-trainee at  a store owned  by

Tandy in  Manchester, New Hampshire because  Tandy suspected that

MacDonald  had  stolen  money  from the  store's  cash  register.

MacDonald  brought an  action  against Tandy,  alleging  wrongful

discharge under New Hampshire law.  MacDonald  claimed that Tandy

fired  him   because  he   had  cooperated  with   Tandy's  theft

investigation.       Cooperation   with   an   employer's   theft

investigation, according  to MacDonald,  is conduct  protected by

New  Hampshire public  policy.   Therefore, MacDonald  argued his

firing was unlawful under New Hampshire law.

          The  action went to trial  before a jury  in the United

States District Court  for the  District of New  Hampshire.   The

jury returned a  verdict in  MacDonald's favor in  the amount  of

$101,000 damages.  Tandy  moved for a judgment n.o.v. and, in the

alternative,  a new  trial.   The district court  granted Tandy's

first motion, and  entered a  judgment n.o.v..   The court  found

that  MacDonald had failed to show that his conduct was protected

by public policy.  The court also found that, even if MacDonald's

conduct  was indeed  protected  by public  policy, MacDonald  had

failed  to  show  that he  was  fired  because  of the  protected

conduct.  

          MacDonald now appeals.  Because we agree that MacDonald

failed to show that he was fired because of conduct  protected by

New Hampshire public policy, we  will affirm the district court's

grant of judgment n.o.v. in favor of Tandy.

                                I.

          John J. MacDonald (MacDonald), who had been employed by

Tandy  Corporation (owner  of  the Radio  Shack  stores) for  six

years, was working as a trainee at the Radio  Shack store located

in a shopping mall in  Manchester, New Hampshire.  On  October 1,

1986, the store was closed at 9:43 p.m. by three Tandy employees,

David Jesperson  (Jesperson),  Al Aikens  (Aikens),  and  Shirley

Cunningham (Cunningham).  Jesperson, Aikens, and Cunningham  left

the store together.   As they left,  the three employees set  the

store's electronically controlled motion detection alarms.

          At 9:47 p.m., Eastern Alarm,  telephonically monitoring

the alarms from its offices in Portland, Maine, received a motion

alarm emanating from the Radio Shack store.  Eastern Alarm called

the Manchester Radio Shack store by telephone but did not receive

an  answer.   Eastern Alarm  received a  second motion  alarm two

minutes later.   Eastern Alarm then called  the Manchester Police

Department  which dispatched a police unit to the store.  Eastern

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Alarm also  called the  store manager, Brad  Ackerman (Ackerman),

but  was unable  to reach  him.   Eastern Alarm  therefore called

MacDonald, the second person on the Radio Shack list of employees

to  be called.  In response to  the call, MacDonald left home and

came to  the Radio Shack  store, arriving at  approximately 10:35

p.m.    In  his  work  with  Tandy  Corporation,   MacDonald  had

previously responded to over thirty such alarm calls.

          When  MacDonald arrived,  he was  met by  mall security

personnel  and informed that the  doors to the  store were secure

and that it was safe  to enter.  MacDonald used a key supplied to

him  by the  store  manager  and entered  the  store alone.    He

remained alone in  the store for approximately  fifteen minutes. 

MacDonald reset the alarm, put a few things in order for the next

day, locked the front door, and left.

          On the morning of October 2, 1986, MacDonald  also came

in alone to open up the store for the day's  business.  MacDonald

discovered $530.02,  including $200.00  petty cash,  missing from

one  of two  cash  drawers.   He  immediately notified  Ackerman.

MacDonald also  informed Bill Hanlon (Hanlon),  a loss prevention

manager for Tandy Corporation, of the missing funds.

          The police  arrived and questioned  MacDonald.   Later,

both   Ackerman  and   Hanlon  arrived   and  began   a  separate

interrogation.   They  questioned Jesperson,  Aikens, Cunningham,

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                                4

and MacDonald individually.   MacDonald  stated that  he did  not

observe, either on the evening of October 1, 1986 or  the morning

of October 2, 1986, when he opened the store, any signs of forced

entry,  with  respect to  the  rear or  front doors  or  the cash

drawers.  MacDonald also  stated that he  "did not notice if  the

cash drawer was open  when he went to  the store on the night  of

October 1, 1986."  

          During MacDonald's questioning, the subject of taking a

polygraph examination was raised.   At trial, MacDonald testified

that  he understood that Tandy  wanted him to  take the polygraph

and that  Tandy planned to set  up the polygraph  exam.  Further,

MacDonald  understood that he would lose his career with Tandy if

he  did not  accede  to  the  polygraph.   On  October  9,  1986,

MacDonald  went  to  the  Manchester Police  Department  for  the

purpose  of taking  a  polygraph examination  with regard  to the

missing funds.  Officer  Anthony Fowler conducted the examination

and scored it as  a three chart cumulative total of -17 deceptive

and two chart cumulative  total of -10 deceptive.   In substance,

the  conclusion  was that  MacDonald was  not telling  the truth.

MacDonald  informed  Radio  Shack  personnel  of   the  polygraph

results.

          On October 21,  1986, the home  office of Tandy  issued

orders that MacDonald  was to be discharged.  The  reason for his

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                                5

separation was stated  as follows:   "failed  to clear  integrity

investigation.   See Loss  Prevention Report and  Manchester, New

Hampshire Police  Report for  details."  Tandy's  Loss Prevention

Report,  prepared  by  Hanlon,  noted the  circumstances  of  the

disappearance of the money and that MacDonald had failed to clear

the polygraph test.  

          As  noted above, the action  went to a  jury trial, the

jury returned a  verdict in  MacDonald's favor in  the amount  of

$101,000 damages, and the  defendant moved for a judgment  n.o.v.

The district court then  certified the following question  to the

New Hampshire Supreme Court:  

          Do the facts and circumstances of this action
          support   a   finding   that  public   policy
          encouraged  the action  of the  plaintiff, or
          does public  policy condemn any  action which
          the  plaintiff refused to  take in connection
          with   the   termination   of   his   at-will
          employment by the defendant?

After the New Hampshire Supreme Court declined to respond to this

certified  question, the  district court  granted the  motion for

judgment n.o.v..

          The district  court reasoned that the  record failed to

show  that  Tandy  decided  to  terminate MacDonald's  employment

because  he cooperated  in Tandy's  investigation of  the missing

funds.  The court also reasoned that MacDonald's action in taking

the polygraph was not in  cooperation with an investigation being

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                                6

conducted by his employer  but was rather in cooperation  with an

investigation   being   conducted   by   the   Manchester  Police

Department.

                               II.

          The  district  court  had subject  matter  jurisdiction

pursuant  to 28  U.S.C.  1332.   We  have  appellate jurisdiction

prusuant  to 28 U.S.C.  1291.   In the  First Circuit, a judgment

n.o.v. is reviewed under the same standard as a directed verdict:

          [T]he evidence and all  reasonable inferences
          extractable therefrom must be examined in the
          light most  favorable to the nonmovant  and a
          judgment  notwithstanding the  verdict should
          be  granted only  when  the evidence,  viewed
          from   this   perspective,   is   such   that
          reasonable  persons  could   reach  but   one
          conclusion.

Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d
                                                       

1364, 1383-84 (1st Cir. 1991).

          New  Hampshire  law  recognizes  a  wrongful  discharge

exception  to  the  common  law  rule  of  at-will  employment as

follows:

          [P]laintiffs must  meet [a two-part  test] to
          establish  a  wrongful  discharge   cause  of
          action.  First, the  plaintiff must show that
          the  defendant was  motivated  by bad  faith,
          malice,  or  retaliation  in terminating  the
          plaintiff's  employment.  . .  .  Second, the
          plaintiff  must  demonstrate   that  he   was
          discharged  because he performed  an act that
          public  policy would encourage, or refused to

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                                7

          do   something   that  public   policy  would
          condemn.

Cloutier  v. Great  Atlantic &amp;  Pacific Tea  Co., 436  A.2d 1140,
                                                

1143-44 (N.H. 1981); accord  Short v. School Admin. Unit  No. 16,
                                                                

612 A.2d  364, 370 (N.H.  1992) ("To support a  claim of wrongful

termination  under  State law,  a  plaintiff  must establish  two

elements:  one,  that the employer terminated the  employment out

of  bad faith, malice, or retaliation; and two, that the employer

terminated  the  employment because  the employee  performed acts

which  public policy  would encourage  or because  he refused  to

perform  acts  which  public  policy  would  condemn.") (citation

omitted).

          Resolution of  the second  prong of this  test, whether

plaintiff's  conduct for  which  he or  she  was discharged  fell

within the parameters of public policy, is usually a question for

the jury:

          [T]he  existence of  a  `public policy'  also
          calls for the type of  multifaceted balancing
          process that is properly  left to the jury in
          most  instances. . . .  We believe it best to
          allow the citizenry, through  the institution
          of   the   American  jury,   to   strike  the
          appropriate balance in these difficult cases.

Cloutier, 436 A.2d at 1145.  However, the jury's determination is
        

not entirely  without bounds.  "Although ordinarily  the issue of

whether a  public policy exists  is a  question for the  jury, at

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                                8

times the presence or absence of such a public policy is so clear

that  a court may rule  on its existence  as a matter  of law and

take the question away from the jury."  Short, 612 A.2d at 370.
                                             

          Even  if  the  alleged  conduct  is  determined  to  be

protected  by  a  public  policy,  a  necessary  element  of  the

plaintiff's  case is  to  prove  that  he  or  she  was  actually

discharged  because of such conduct.  Thus, a causal link between

the  conduct established to be protected by public policy and the

reason  for  the allegedly  wrongful  discharge  is necessary  to

satisfy  the second prong of the New  Hampshire test.  As the New

Hampshire Supreme Court stated:  

          [T]he plaintiff must  demonstrate that he was
          discharged  because he performed  an act that
                             
          public  policy would encourage, or refused to
          do   something   that  public   policy  would
          condemn.  

Cloutier, 436 A.2d at  1144 (emphasis added).  Where  an employer
        

essentially  penalized the  employee  for  taking  his  regularly

scheduled  day off, the  court found "a  sufficient nexus between

the public policy asserted  by the plaintiff and the  reasons for

his  discharge."  Id. at  1141; see also  Cilley v. New Hampshire
                                                                 

Ball Bearings,  Inc., 514  A.2d 818, 821  (N.H. 1986)  (causation
                    

element  satisfied where  plaintiff  had alleged  his termination

resulted  from refusing  to lie and  that public  policy supports

such truthfulness).

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                                9

          In this case,  we agree  with the  district court  that

there  is  no evidence  on this  record  to demonstrate  that the

plaintiff was discharged because of conduct protected by a public

policy.   The specific public  policy asserted by  MacDonald as a

justification  for  upholding  the  jury's  verdict  is  that  of

"cooperation   with   an   employer's  theft   investigation."   

Interpreted in the  light most favorable to MacDonald, the record

shows  that MacDonald was  suspected of  stealing money  from his

employer,  cooperated in  the employer's  investigation,  was not

cleared by the investigation, and was  terminated.  MacDonald was

suspected  of  stealing  the  cash  from  Tandy  because  of  the

circumstances under  which the  money was  taken from  the store.

MacDonald   then   cooperated    with   his   employer's    theft

investigation,  the result  of which  did nothing  to dispel  his

employer's suspicions.   We believe  the district court  drew the

only possible  interpretation from these facts  when it concluded

that MacDonald was dismissed because of the opportunity he had to

steal the money and because he was not  cleared by the subsequent

investigation and  not because he cooperated  with his employer's

theft  investigation.   What is  missing from  the record  is any

evidence  to  indicate  that   MacDonald  was  fired  because  he

cooperated with the employer's theft investigation.

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                                10

          Without such causal linkage, MacDonald cannot assert an

exception to the  at-will employment doctrine.  We  cannot accept

MacDonald's suggestion  that his cooperation with  his employer's

investigation   immunizes   him   from  the   findings   of   the

investigation.  It  would defy logic if an  employee by reason of

cooperation  could be absolutely  protected from the consequences

of the facts  the cooperation yields.   While it  may not be  the

best of business practice,  a company is within its  legal rights

to  fire  employees  on  such  slender  evidence  indicating  the

possibility of  theft as is  offered in  the present  case.   See
                                                                 

Beery v. Maryland Medical  Lab., Inc., 597 A.2d 516,  523-24 (Ct.
                                     

Md. Ct.  Spec. App.  1991) (firing  an employee  on the  basis of

unsubstantiated allegations can hardly  be said to contravene any

clear mandate of public policy); Gillespie v. St. Joseph's Univ.,
                                                                

513  A.2d 471, 472-73 (Pa. Super. 1986) (discharge of an employee

allegedly  falsely accused of a crime of dishonesty not against a

clear mandate of public policy).

          For the foregoing reasons,  we will affirm the judgment

of the district court.

Affirmed.
        

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