Cloutier v. Great Atl. & Pac. Tea Co. - 121 N.H. 915, 436 A.2d 1140 (1981)

Rule:

An employee must meet a two-part test to establish a wrongful discharge cause of action. First, the employee must show that the employer was motivated by bad faith, malice, or retaliation in terminating his employment. Second, the employee 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.

Facts:

Plaintiff David Cloutier was employed by the defendant Great Atlantic and Pacific Tea Company (A&P) from 1939 to 1977. In  1975, plaintiff was assigned as the manager of A&P’s new store in Tilton. Plaintiff was provided with police protection because of the safety issues in the area. Approximately five to six months later, A&P notified plaintiff that the police protection would be terminated, consistent with its company policy. After the termination of the police protection, the company policy required two daily deposits to be made by store employees. The evidence indicated that the plaintiff himself continued to make regular deposits, although there was testimony that some of the weekend deposits were not always being made. Plaintiff’s supervisors told plaintiff to lock up any funds for deposit in the safe located in the store if any of the employees working under the plaintiff were afraid to go to the bank at night or during the weekend. On December 1976, the store had been broken and the safe was burglarized. Plaintiff learned that no deposits had been made that day, and the loss amounted to approximately $30,000. The funds had not been placed in a "barrel safe" as was required by company policy.

After an investigation, A&P suspended plaintiff. Plaintiff was subsequently discharged because of violation of company bookkeeping procedure. Plaintiff then brought a wrongful discharge action against A&P. After the trial court denied A&P’s pretrial motion to dismiss, subsequent motion for non-suit, and motion for a directed verdict, the case was submitted to the jury, which returned a verdict for the plaintiff in the amount of $92,000. A&P appealed, arguing that the trial court erred in denying its motion for a directed verdict at the close of all the evidence because the plaintiff did not aver a specific, statutory public policy protecting his conduct and giving rise to a wrongful discharge action.

Issue:

Did plaintiff sufficiently establish a specific, statutory public policy to satisfy the test for the wrongful discharge of an employee set forth in Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273 (1980)?

Answer:

Yes.

Conclusion:

The Court upheld the trial court's decision denying the employer's motion for a directed verdict. The court found that there was sufficient evidence to enable the jury to find for the employee. The Court held that an employee at will could establish a cause of action for wrongful discharge by proving that the employer was motivated by bad faith, malice, or retaliation in terminating the employee's employment, and by demonstrating that he was discharged because he performed an act that public policy would encourage, or refused to do something that public policy would condemn. Applying these standards to the facts of the present case, the Court held that the employer's conduct in discharging the employee because a burglary occurred, when the employer's loss resulted from actions it condoned, could be found to involve bad faith and malice. It also found that malice might be inferred from the employer's cursory discharge of the employee, after 36 years of service.