2008-302, JAY A. MACKENZIE v. DANIEL LINEHAN & a.

No. 2008-302

Hillsborough-northern judicial district

Court (McGuire DALIANIS, J. The plaintiff, Jay A. MacKenzie, appeals the Superior

Getman, Stacey, Schulthess & Steere, P.A.

imprisonment. We affirm in part, reverse in part and remand. Preti, Flaherty, Beliveau & Pachios, PLLP favor of the plaintiff upon his claims for wrongful termination and false County. The trial court’s decision overturned a $500,000 jury verdict award in defendants, Rockingham County Sheriff Daniel Linehan and Rockingham the verdict (JNOV) or, alternatively, to set aside the verdict, filed by the

, J.) order granting the motion for judgment notwithstanding

County. defendant Daniel Linehan, individually and as High Sheriff of Rockingham Schulthess and Jill A. DeMello on the brief, and Mr. Schulthess orally), for THE SUPREME COURT OF NEW HAMPSHIRE , of Bedford (Stephen J.

on the brief and orally), for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as themselves [sic p. 2 Each Department Member shall, while on or off duty, conduct

“personal behavior rule,” which provides, in pertinent part: plaintiff was fired for violating the Rockingham County Sheriff Department’s On May 26, 2004, defendant Linehan held a hearing during which the conduct required includes but is in no sense limited to: operation or efficiency of the Department or the employee. The

Rockingham County Sheriff Department’s rules and regulations. as a member of the Department or which tends to impair the incident, the plaintiff refused to acknowledge that his conduct violated the which the plaintiff, but not Stone, was suspended. When questioned about the Defendant Linehan also began an internal investigation, as a result of

Department into disrepute or reflects discredit upon the employee

employee shall engage in conduct which tends to bring the [sic] and the Rockingham County [S]heriff’s Department. No

General to investigate the matter. Kobelenz’s allegations, and told them that he intended to ask the Attorney Stratham Police Chief Michael Daley called defendant Linehan, informed him of Department, who identified the photographed men as the plaintiff and Stone. him. The Stratham officers consulted with members of the Exeter Police photographs were of the two plain-clothed police officers who had assaulted and Stone the previous night. Kobelenz told Stratham officers that the Stratham Police Department with the photographs he had taken of the plaintiff hour later, he was released to a family member. The next day, he went to the Kobelenz was placed in protective custody and taken to jail. Approximately an police officer that he had been assaulted by two plain-clothed police officers. Department and Stratham Police Department responded. He told a Stratham Shortly thereafter, Kobelenz pulled a fire alarm to which the Exeter Fire

Kobelenz could retrieve it and left the scene without contacting the police. both deputies. The plaintiff and Stone put the bag in some bushes so that and Kobelenz left the area without his bag. As he left, he took photographs of tackled the plaintiff to the ground. Stone pulled Kobelenz off of the plaintiff, Kobelenz gave the plaintiff his identification, but then became agitated and identified himself as a deputy sheriff and asked Kobelenz for identification. bag, which the plaintiff and Stone feared might contain a gun. The plaintiff not wearing a shirt, and he appeared mentally unstable. Kobelenz carried a deputies, demanding to use a cell phone. Kobelenz’s face was bloody, he was to urinate. A man, later identified as Anthony Kobelenz, approached the two The plaintiff and Stone left the bar and, while in the parking lot, Stone stopped 23, 2004, the plaintiff went to a bar with Deputy Sheriff Christopher Stone. deputy sheriff for Rockingham County. While off duty on the evening of April The trial court recited the following facts in its order. The plaintiff was a p. 3 I. Wrongful Discharge Claim

motion, and this appeal followed. as well for JNOV and to set aside the jury verdict. The trial court granted the Thereafter, the defendants renewed their motion for directed verdict and moved The jury found in the plaintiff’s favor and awarded him $500,000 in damages. defendants moved for a directed verdict upon which the court deferred ruling. imprisonment. These claims were tried to a jury. At the close of evidence, the The plaintiff sued the defendants for wrongful discharge and false

while off duty and intoxicated, and twice reprimanded for disobeying orders. plaintiff’s record; he was previously reprimanded for assaulting a taxicab driver The April 2004 incident was not the first disciplinary incident in the

he could provide him with further instructions. door for thirty seconds and did not allow the plaintiff to leave the room so that After defendant Linehan informed the plaintiff that he was fired, he blocked the

brought into disrepute.

the Rockingham County Sheriff’s Department to be

Rockingham County Sheriff’s Department or causes

their ability to perform as employees of the

incident involving immoral conduct which impairs

Department Members shall not participate in any

standards of the law enforcement profession.

and official affairs which is in keeping with the highest

Gowen v. Brothers 3 JNOV based upon the sufficiency of the evidence presents a question of law. defendants’ motion for JNOV upon his wrongful discharge claim. A motion for The plaintiff first argues that the trial court erred by granting the reasonable inferences may be drawn, the court must deny the motion. Id. witnesses. Id. If the evidence adduced at trial is conflicting, or if several the trial court cannot weigh the evidence or inquire into the credibility of Figueroa, 154 N.H. 592, 602 (2006). In deciding whether to grant the motion, the moving party that no contrary verdict could stand. See Boynton v. light most favorable to the nonmoving party, is so overwhelmingly in favor of to maintain a level of moral conduct in their personal inference that may be drawn from the evidence, which must be viewed in the based upon the sufficiency of the evidence only when the sole reasonable

sexes, and in such relations all employees are required 2. Being scrupulously careful toward members of both

times maintaining temper, patience and discretion. 1. The civil and orderly performance of duties, at all policy would condemn.” See p. 4 public policy would encourage or for refusing to do something that public finder could conclude that [the plaintiff] was fired for performing an act that policy is generally a question for the jury, the court reasoned, “[N]o rational fact acknowledged that whether the discharge of an employee implicated a public prove the second element of his wrongful discharge claim. While the court The trial court concluded as a matter of law that the plaintiff failed to

public policy would condemn. financial information for the IRS would certainly be an act which

recover his damages for wrongful termination because falsifying malice and bad faith or in retaliation, the employee is entitled to and is discharged for his refusal. Again, if the employer acted with his employer to falsify records for the IRS. The employee refuses policy would condemn, let us say that an employee is requested by As an example of a person refusing to do an act which public

evidence from which the jury could reasonably have found that [he] was implicates a public policy that favors truthfulness. As he states: “There was that his off-duty conduct violated certain rules. His termination, he argues, the employee is entitled to seek damages for wrongful termination. found that defendant Linehan terminated him because he refused to concede performed Jury duty, an act which public policy would encourage, The plaintiff argues that a rational fact finder reasonably could have malice or in bad faith or any retaliation, and because the employee because he or she reports for Jury duty. If the employer acted with

(1981); Short v. School Admin. Unit 16 policy encourages, let us say that an employee is discharged, 136 N.H. 76, 84 (1992).

condemn. Lacasse v. Spaulding Youth Ctr. would encourage or for refusing to do something that public policy would malice; and (2) that he was terminated for performing an act that public policy establish that: (1) his termination was motivated by bad faith, retaliation or To prevail upon his wrongful discharge claim, the plaintiff had to

As an example of a person doing some act which public

instructions, the trial court gave the jury the following examples:

of review applies in criminal and civil cases). (2006); State v. O’Neill, 134 N.H. 182, 184 (1991) (holding that similar standard light most favorable to the plaintiff. p. 5 See State v. Spinale, 156 N.H. 456, 464 favor, considering the evidence and all reasonable inferences therefrom in the jury’s verdict unless no rational trier of fact could have ruled in the plaintiff’s found the essential elements of the plaintiff’s claims, and will reinstate the review the record to determine whether any rational trier of fact could have Here, in reviewing the trial court’s grant of a motion for JNOV, we objectively See court that this disagreement was not an act that public policy would protect. whether his conduct violated the personal conduct rule, we agree with the trial the plaintiff was fired because he disagreed with defendant Linehan about To the extent that a rational fact finder could have reasonably found that

that favors an employee “protecting his off-duty time,” we conclude that a Even if we were to assume, without deciding, that there is a public policy

time.” p. 5 See implicated a public policy that supports an employee “protecting his off-duty plaintiff violated, applied to off-duty conduct. His termination, he contends, certain other rules, which defendant Linehan had originally claimed the have found that defendant Linehan terminated him for refusing to concede that Alternatively, the plaintiff asserts that a rational juror reasonably could 5

Cloutier, 121 N.H. at 923-24.

protect his job. have reasonably found that the plaintiff was, at any point, required to “lie” to evidence in the light most favorable to the plaintiff, a rational juror could not terminated him to punish him for refusing to “admit those things.” Viewing the expression of disagreement with a management decision.” Id and admit to everything that they were saying,” and that defendant Linehan. it was his impression that defendant Linehan wanted him to “go in his office Short, 136 N.H. at 85. Public policy does not protect “an employee’s do with [his] job,” he “did nothing wrong that night.” The plaintiff testified that and . . . left [the] scene as a civilian” and because the incident “had nothing to Even so, the plaintiff testified that because he “entered [the] scene as a civilian Department . . . . That was a judgment call and I regret that judgment call.” about the incident. As he testified: “I didn’t call the Stratham Police police. He also admitted that, in retrospect, he should have called the police the bushes; and (11) he and Stone both left the scene without calling the bag, which he had left behind, contained a gun; (10) he put Kobelenz’s bag in Kobelenz left the area; (9) the plaintiff and Stone both feared that Kobelenz’s help him; (7) Kobelenz accosted him; (8) after Stone pulled Kobelenz off of him, Kobelenz for identification, asked him some other questions, and offered to (5) the plaintiff identified himself as a deputy sheriff; (6) the plaintiff asked and mentally unstable: (4) Kobelenz angrily asked for the plaintiff’s cell phone; drinking; (2) they were approached by Kobelenz; (3) Kobelenz appeared bloody which he was fired. He conceded that: (1) he and Stone had been out At trial, the plaintiff admitted to having engaged in the very conduct for

fact finder reasonably could have found that he was terminated for this reason. implicate this public policy, see id., we disagree with the plaintiff that a rational that terminating an employee for refusing to lie to protect his job could (1986). While we agree that public policy generally supports truthfulness and such truthfulness.” p. 5 See Cilley v. N. H. Ball Bearings, Inc., 128 N.H. 401, 406 terminated for refusing to lie to save his job and that public policy supports held against his will, moved to cross the table and offered to shake the hands p. 6 shove me out of the way[?]” The plaintiff, feeling shocked that he was being to move, defendant Linehan said something like: “[W]hat are you going to do and prevented him from doing so. When the plaintiff asked defendant Linehan defendant Linehan stood in front of the door, with his hand on the doorknob, the plaintiff, established that when he attempted to leave the hearing room, In the instant case, the evidence, viewed in the light most favorable to

of or harmed by the confinement; and (4) defendant Linehan acted without indirectly resulted in the plaintiff’s confinement; (3) the plaintiff was conscious boundaries fixed by defendant Linehan; (2) defendant Linehan’s act directly or show that: (1) defendant Linehan acted with the intent of confining him within To prevail upon his claim for false imprisonment, the plaintiff had to

N.H. at 181.

pleasure. See because he was a public employee whom the sheriff appointed to serve at his general rule that employees are employed at will does not apply to the plaintiff Hickox v. J. B. Morin Agency, Inc. need not address their contention that the public policy exception to the imprisonment is the unlawful restraint of an individual’s personal freedom. defendants’ motion for JNOV upon the plaintiff’s wrongful discharge claim, we defendants’ motion for JNOV upon his false imprisonment claim. False Bergeron Because we conclude that the trial court did not err by granting the The plaintiff next argues that the trial court erred when it granted the, 115 N.H. 179, 181 (1975). the absence of valid legal authority for the restraint imposed.” Welch v. to recognize the illegal restraint.” Id II. False Imprisonment Claim. “An essential element of the offense is element of false imprisonment is proven, if enough time elapses for the plaintiff sufficient.” Id. “Even if no ‘appreciable’ length of time elapses, the necessary “Confinement for an appreciable length of time, however short, . . . may be imprisonment.” 32 Am. Jur. 2d False Imprisonment § 15 (2007). unlawful confinement, however brief, may result in liability for false

claim for wrongful discharge in violation of public policy). (1980) (public employee appointed by Governor by statute could not state a

RSA 104:3 (2001); Tice v. Thomson, 120 N.H. 313, 318-19

are governed by the personal conduct rule. employee “protecting his off-duty time,” it does not apply to deputy sheriffs who conduct. Thus, to the extent that there is a public policy that favors an subject to the personal conduct rule, which he conceded applied to off-duty terminated for this reason. The undisputed evidence was that the plaintiff was rational juror could not reasonably have determined that the plaintiff was attendance at the hearing. See this error is to reverse and remand. See p. 7 had the legal authority to block the door to ensure the plaintiff’s continued Because the jury in this case returned a general verdict, the remedy for court ruled that defendant Linehan was liable for the plaintiff’s conduct and physically blocked the door. Until the plaintiff was officially terminated, the employee and subject to defendant Linehan’s control when defendant Linehan imprisonment claim based upon its finding that the plaintiff was still an The trial court ruled for the defendants upon the plaintiff’s false

Randall’s Food Markets, Inc. v. Johnson employees perform certain tasks in certain locations at certain times,” jurisdictions have held that an employer may “suggest, and even insist, that its in the hearing room by physically blocking the door. While courts in other this would not have given defendant Linehan the legal authority to detain him plaintiff were still an employee and subject to defendant Linehan’s supervision, 7 The plaintiff argues that this was error, and we agree. Even if the

(2002). While some jurisdictions have adopted the “general verdict rule,” see 5 N.H. 532, 537 (1986); Vachon v. New England Towing, 148 N.H. 429, 435

imprisonment claim. erred when it granted JNOV to the defendants upon the plaintiff’s false physically blocking the door. Accordingly, we conclude that the trial court employer the right to detain an employee in a disciplinary hearing room by unaware of, any court that has held that the mere fact of employment gives the block the door as he did. (Ohio Ct. App. Oct. 21, 2004), the defendants have not cited, and we are aware of any legal authority that would have allowed defendant Linehan to interview, see Branan v. Mac Tools, No. 03AP-1096, 2004 WL 2361568, at *8 have found that defendant Linehan acted without legal authority. We are not 872 P.2d 559, 572 (Cal. 1994), or decline to terminate an investigative that the plaintiff was conscious of being confined. A rational juror could also reasonably detain an employee suspected of theft, see Fermino v. Fedco, Inc., his hand on the knob resulted in the plaintiff’s confinement to the room and, 891 S.W.2d 640, 646 (Tex. 1995), plaintiff in the hearing room, that his act of standing in front of the door with reasonably could have found that defendant Linehan intended to confine the found for the plaintiff upon his false imprisonment claim. A rational juror Based upon this evidence, a rational fact finder reasonably could have

104:27 (2001). deputy’s conduct continues until the sheriff records deputy’s discharge); RSA

and the plaintiff left the room. move away from it. Defendant Linehan eventually moved away from the door, plaintiff walked back to the door and once again asked defendant Linehan to of the officers present. When none of the officers would shake his hand, the p. 8 8

BRODERICK, C.J.