
USCA1 Opinion

	




          January 22, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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 & Gordon, P.A. were on brief for appellant.        _______________________________            Russell  F. Hilliard with  whom Ernest  T. Smith,  III, and Upton,            ____________________            ______________________      ______        Sanders & 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                                         -3-                                          3          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,                                         -4-                                          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                                         -5-                                          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                                         -6-                                          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                                         -7-                                          7                    do   something   that  public   policy  would                    condemn.          Cloutier  v. Great  Atlantic &  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                                         -8-                                          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).                                         -9-                                          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.                                         -10-                                          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.          ________                                         -11-                                          11
