Court ruling may lower bar on wrongful termination

A supervisor berates a food service worker for making a peanut butter sandwich incorrectly. The same supervisor treats the employee gruffly for several days, ignores her altogether, then gives her a substandard performance appraisal.

Are these actions sufficient to substantiate a claim for wrongful termination? They may be in New Hampshire, following a recent ruling by the State Supreme Court.

In Lacasse v. Spaulding Youth Center, the employee in question was a food service employee in a residential facility for autistic children. While filling in for her supervisor, the plaintiff refused to submit time cards she believed to have been inaccurately completed by two co-workers, who happened also to be the supervisor’s daughters. Subsequent to this incident, the plaintiff became the subject of her supervisor’s criticism, including negative comments about the snacks she prepared. Soon after, the plaintiff expressed concern about one of the daughters taking home food from the facility; the supervisor then treated her gruffly and subsequently ignored her.

As a result of this treatment, the plaintiff complained to human resources. Despite the employer’s swift action in counseling the supervisor and investigating the allegations, the plaintiff quit her job and filed a claim for wrongful termination, asserting that the treatment she received from her supervisor made her working conditions intolerable.

At trial, the plaintiff testified that her supervisor had told her during the pre-employment interview that she never fired her employees but instead made conditions “miserable enough for them to quit.”

Wrongful termination

Under New Hampshire law, employment is generally “at-will” unless governed by an employment contract, meaning that the relationship may be terminated at any time, by either party, for any lawful reason.

In addition to specific statutory laws protecting employees from discharge based upon an employer’s illegal motives (such as discrimination), employees may be able to make a legal claim for wrongful termination under certain other circumstances.

To prove an allegation of wrongful termination in New Hampshire, the discharged employee must prove that:

• The employment termination was based upon bad faith, retaliation or malice

• That the employee was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would discourage

Bases for termination that violate public policy generally include refusal to engage in an illegal act on behalf of the employer, exercising a legal right or complaining of or reporting illegal acts of the employer.

To prove that the termination occurred, the employee may demonstrate a “constructive discharge,” which occurs when the employer makes working conditions so intolerable that a reasonable employee would feel forced to resign.

Still, New Hampshire law will not permit such a claim in the face of relatively minor abuse of the employee. Furthermore, the adverse working conditions generally must be ongoing, pervasive, and severe to substantiate such a claim.

In Lacasse, the trial court dismissed the case, concluding that the plaintiff’s treatment at the hands of the supervisor did not create working conditions so intolerable as to force a reasonable person to quit. The Supreme Court disagreed. Despite indicating that the treatment of the employee alone was not sufficient to support a wrongful discharge claim, the court noted that the plaintiff’s testimony regarding the supervisor’s comments during the pre-employment interview could lead a reasonable jury to find that the supervisor was trying to force her to quit.

Based on the court’s ruling, the case was sent back to the trial court for a determination on whether constructive discharge had occurred.

Practical implications

Upon a careful examination, the impact of the Lacasse case may seem somewhat limited.

The supervisor apparently confessed her previous treatment of other employees during the plaintiff’s pre-employment interview. Still, the court was willing to say that a reasonable jury might find constructive discharge, despite the fact that the conduct was not ongoing, severe or pervasive in the court’s eyes. Rather, the court thought the short duration of the mistreatment could be seen as an indication that the treatment might continue until the plaintiff chose to voluntarily terminate her employment.

Lacasse serves as a reminder to employers to remain vigilant in training supervisors and adopting effective workplace policies. Accordingly, the following tips can help a careful employer to avoid wrongful termination claims:

• Promptly investigate allegations of wrongful conduct in the workplace. Many times such investigation and prompt remedial action will prevent or reduce an employer’s liability.

• Train supervisors on proper interviewing and performance appraisal techniques. Periodically revisit these processes to ensure that the company’s procedures are followed.

• Ensure that supervisors are properly trained in procedures for hiring and terminating employees.

• Make sure termination and disciplinary policies are enforced in a fair and consistent manner.

• Work with an attorney to ensure that all employment policies are clearly written and properly disseminated.

Beth DeSimone is an attorney in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton. She may be reached at 628-1339 or at

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