holding, as a matter of law, that loyalty to one’s supervisor “does not form the basis of a public policy because a countervailing public policy supports the [employer’s] exercise of its employment and management responsibilities”
How later courts described this case
- holding, as a matter of law, that loyalty to one’s supervisor “does not form the basis of a public policy because a countervailing public policy supports the [employer’s] exercise of its employment and management responsibilities”
- noting that “ordinarily the issue of whether a public policy exists is a question for the jury,” but acknowledging that “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 and take the question away from the jury.”
- holding that “an employee's expression of disagreement with a management decision is not an act protected by public policy”
- holding that an employee's refusal to criticize his superior could not form the basis of a public policy
Written by the judges who cited it.
The opinion
Batchelder, J.,
concurring in part and dissenting in part: I agree with the majority with respect to the claim under 42 U.S.C. § 1983 . Absent a statutory or express contractual provision giving him an expectation of continued employment, the plaintiff had to prove an implied contract for continued employment in order to establish a constitutionally protected property interest, and his testimony failed to do so.
As for the State wrongful termination claim, however, I believe that the majority obfuscates the current state of the law in New Hampshire and that the opinion marks at least a subtle shift from prior law. In Cloutier v. A. & P. Tea Co., Inc., 121 N.H. 915, 924 , 436 A.2d 1140, 1145 (1981), the court held that “[t]he existence of a ‘public policy’... calls for the type of multifaceted balancing process that is properly left to the jury in most instances.” The court went on to hold that the public policy question there was properly one of fact for the jury, while stating that “a public policy could conceivably be so clear as to be established or not established as a matter of law ....” Id. (emphasis added).
Here, the jury found (1) that the plaintiff was fired for refusing to criticize his supervisor, and (2) that such loyalty was a basis for a cognizable public policy prohibiting his retaliatory firing therefor. The evidence supports the first finding. To set the verdict aside requires holding that the second was incorrect as a matter of law. The majority reaches this holding in reliance on a legal theory that was rejected by this court in Cloutier .
The majority states:
“Further, an employee’s expression of disagreement with a management decision is not an act protected by public policy. See Newman v. Legal Services Corp., 628 F. Supp. 535, *87 539 (D.D.C. 1986) (no clear mandate of public policy prevents termination of employee who disagrees with organizational or managerial ideology of employer) . . . .”
(Emphasis added.) The emphasized language from this foreign case is in conflict with Cloutier , where this court explained that our prior cases had not restricted the standard to situations involving statutory enunciations of public policy, “[n]or did we use the test now advocated by the dissent of a ‘strong and clear public policy.’” Cloutier, 121 N.H. at 922 , 436 A.2d at 1144 . Indeed, the Newman case, relied on by the majority, expressly adopts its “clear mandate” test after citing contrary case law, including that of New Hampshire, stating, “Other courts [than New Hampshire, inter alia] have held that they will recognize the [public policy] exception only where a clear mandate of public policy is involved.” Newman, 628 F. Supp. at 539 . Thus, the majority purports to apply settled law when in fact it is departing from the spirit of our prior cases, which allows the jury to find public policy absent a “clear mandate.”
Not only does the majority alter the law in this manner, but it decides the State claim on the basis of an issue that had not been accepted for briefing by the court. In the defendant’s original notice of appeal, fifteen questions were presented for review. The public policy question was included. Upon order of the court following a prehearing evaluation conference, the defendants filed an amended notice of appeal reducing the questions presented to six in number. The public policy question was not among them. This court accepted the case on five of the six questions raised in the amended notice of appeal.
Notwithstanding that we accepted the appeal on the basis of the amended notice, the defendant briefed the public policy issue. Our rules and decisions make clear that issues not raised in the notice of appeal are waived. Sup. Ct. R. 16(3)(b); State v. Peterson, 135 N.H. 713, 714-15 , 609 A.2d 749, 750-51 (1992); In re “K”, 132 N.H. 4, 16-17 , 561 A.2d 1063, 1071 (1989).
The majority thus deviates from both our established substantive and procedural law, covertly and without providing an explanation for its newly chosen path. I therefore respectfully dissent from that portion of the opinion that reverses the judgment on the State claim of wrongful discharge.
Johnson, J., joins in the opinion of Batchelder, J.