2012-599, Lawrence Leeds v. BAE Systems

The plaintiff, Lawrence Leeds, appeals an order of the

McClead on the brief, and Mr. Will orally), for the defendant. Devine, Millimet & Branch, of Manchester (Daniel E. Will and Laurel A.V.

and orally), for the plaintiff.

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 p. 2 BAE investigator, which Leeds states lasted approximately five minutes, Leeds

who had indirect knowledge of the incident. In an April 30 interview with a the driver, interviewing both parties, and speaking with several BAE employees BAE conducted an internal investigation by obtaining a statement from

exchange. not dispute that he swore at the driver and raised his voice during their words, to “squeeze” past the driver’s car and enter the BAE facility. Leeds does

involving obscenities for at least thirty seconds before Leeds was able, in his

from his face, causing part of it to break. The two engaged in a shouting match cell phone and thought it may have been a weapon, swatted the phone away pictures of Leeds’s license plate. Leeds, who did not recognize the object as a

cell phone out of the window and pointed it at Leeds,” purportedly to take

his path to the BAE facility. While remaining in her car, the driver “stuck her

parked, the driver pulled up and stopped perpendicular to Leeds’s car, blocking him into the BAE parking lot even though she did not work there. After Leeds lane. The driver then tailgated Leeds, gestured obscenely at him, and followed

while driving to work, Leeds passed a female driver as the road merged into one

directed toward “[a]ny other person on [BAE] premises.” On April 28, 2009, threatening language” provision of MDP 22:20, which also applied to language that BAE determined was a second “major violation” of the same “abusive or

Approximately three months later, Leeds was involved in an altercation

disciplinary action up to and including termination of your employment.” your conduct in the workplace. Failure to do so will result in further

Leeds a directive: “There must be an immediate and sustained improvement in

“abusive or threatening language” toward a co-worker. The warning also gave

particular, BAE determined that Leeds had violated a provision against using “major violation of MDP 22:20: Standards of Conduct” (MDP 22:20). In The warning informed Leeds that his conduct was, in BAE’s view, a

his “voice level was a little bit higher” during the exchange. by criticizing the employee for a deficient work product and admits only that he “[d]ispute[d] swearing.” Instead, Leeds maintains that he was doing his job

but denied BAE’s version of events. Specifically, Leeds wrote on the form that

“yelled” obscenities. Leeds signed a form acknowledging receipt of the warning, approached” the employee about her work and, while pointing a finger at her, worker who witnessed the incident, BAE determined that Leeds had “angrily

policy. After interviewing Leeds, the employee, her supervisor, and another co-

engaging in “abusive” behavior toward another employee in violation of BAE On February 17, 2009, BAE issued Leeds a “written warning” for

these incidents, he had never been involved in disciplinary action at BAE. incidents at the company’s Hudson facility. Leeds represents that, prior to facts de novo. p. 3 decision. We review the trial court's application of the law to the judgment as a matter of law, we will affirm the trial court’s

genuine issue of material fact, and if the moving party is entitled to

moving party. If our review of the evidence does not reveal a properly drawn from them, in the light most favorable to the nonconsider the affidavits and other evidence, and all inferences

When reviewing a trial court’s grant of summary judgment, we

Our standard of review is well established:

BAE.

as a matter of law. Leeds appeals the grant of summary judgment in favor of

After reconsideration, the court again ruled that BAE was entitled to judgment drawn inferences more liberally in favor of the defendant than it should have.” denying the motion, the court acknowledged that it “may have inadvertently

court erred in its application of the summary judgment standard. In an order

judgment. Leeds filed a motion for reconsideration, arguing in part that the summary judgment and denied Leeds’s cross-motion for partial summary other things, wrongful discharge. The trial court granted BAE’s motion for

After an unsuccessful internal BAE appeal, Leeds sued BAE for, among

Leeds had violated BAE’s “Workplace Violence Policy.” written warning against using abusive language. The letter also stated that proper instructions issued by [a] supervisor or other authority” in light of the

parking lot of the Hudson, NH, facility” and (b) “[d]isobeying [BAE] policies or

individual that involved abusive & threatening actions and language in the free at any time to terminate the employment relationship, with or without a “major violation” of MDP 22:20 by (a) “engag[ing] in an altercation with an Leeds’s discharge letter, dated April 30, indicated that he had committed

contrary, employment contracts are “at-will,” meaning that “both parties are

The prevailing rule in New Hampshire is that, absent an agreement to the by telephone that day and by letter. incident and the prior written warning. Leeds received notice of his discharge discharge Leeds that same day, after taking into account both the parking lot

Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248 (2006) (quotation omitted).

investigator’s recommendation, a BAE management team made the decision to

turn over his employee badge and to leave the premises. Upon the Following her interview with Leeds, the investigator asked for Leeds to

acknowledged that he “got caught up in the moment.” portrayed the driver as the aggressor, yet, according to the investigator, he determine whether Leeds could rely upon RSA 627:4 were he to face criminal

p. 4 constitute an act that public policy would encourage. Moreover, we need not

for certain actions that would otherwise be criminal. See RSA 627:4 (2007)

We need not opine whether an employee’s use of self-defense could ever

of force.”

Leeds relies upon RSA 627:4, which provides that self-defense is a justification

defense statute, Leeds argues that public policy must support his “justified use

statute meets the employee’s burden, especially on summary judgment.” Here, protecting the employees who worked under him.”), “then surely pointing to a plaintiff was discharged for furthering the laudable public policy objective of

See id. at 78.

. . used [by Leeds] was appropriate,” implying that it would fall under the self-

be based on statutory or nonstatutory policy.” Cilley v. N.H. Ball Bearings, recognizing that “[t]he public policy contravened by the wrongful discharge can

1970, 29 U.S.C. § 654(a)], the facts before us support the conclusion that the

public policy would condemn.” Karch v. BayBank FSB, 147 N.H. 525, 536 truthfulness”); Cloutier v. A. & P. Tea Co., Inc., 121 N.H. 915, 923 (1981) an act that public policy would encourage or for refusing to do something that policy prong, we need not address the bad faith, retaliation, or malice prong. “discharged for refusing to lie and that public policy supports such

(amended 2010, 2011). Because the trial court assumed that “whatever force .

self-defense. As support for his argument, Leeds points to our case law

(“[W]ith or without the existence of [the Occupational Safety and Health Act of

retaliation or malice”; and (2) that the plaintiff was discharged “for performing that the trial court did not err in granting summary judgment on the public- judgment in favor of employer because a jury could conclude plaintiff was favor of BAE on each of the two wrongful-discharge prongs. Because we hold established on nonstatutory grounds, see id. at 406 (reversing summary Leeds argues that the trial court erred in granting summary judgment in Inc., 128 N.H. 401, 406 (1986). Leeds argues that, if a public policy can be

the question away from the jury.” Short v. School Admin. Unit 16, 136 N.H. is so clear that a court may rule on its existence as a matter of law, and take whether public policy would encourage his conduct, which he characterizes as Leeds argues that the trial court should have allowed a jury to determine

establish two elements: (1) that the discharge was “motivated by bad faith,

76, 84 (1992) (citation omitted). cause.” Porter v. City of Manchester, 151 N.H. 30, 37 (2004) (quotation and

question for the jury, at times the presence or absence of such a public policy (2002). “Although ordinarily the issue of whether a public policy exists is a

at 37-39. In order to succeed on a wrongful discharge claim, a plaintiff must employees may pursue a cause of action in tort for wrongful discharge. See id. brackets omitted). An exception to the “at-will” rule is that even at-will workplace. See Short, 136 N.H. at 84-85 (holding, as a matter of law, that

p. 5 them over BAE’s policy prohibiting abusive language and behavior in the

public policy would encourage his actions. See Lacasse, 154 N.H. at 248.

matter of law, that public policy neither encourages Leeds’s actions nor favors conduct on company property was not self-defense. We therefore hold, as a act of self-defense in response to unprovoked aggression, the remainder of his conclude that the trial court did not err in ruling that Leeds cannot show that After examining all material facts in the light most favorable to him, we

assuming, without deciding, that Leeds’s contact with the cell phone was an

employment and management responsibilities”).

as a matter of law. Id. and both prongs are required in order to succeed, BAE is entitled to judgment

mistook the cell phone for a gun, are immaterial considerations. Even Whether the other driver was the primary aggressor, and whether Leeds DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred. countervailing public policy supports the [employer’s] exercise of its Affirmed.

Because Leeds fails on the public-policy prong of his wrongful discharge claim,

would encourage the conduct which led to his discharge. loyalty to one’s supervisor “does not form the basis of a public policy because a charges. Rather, we hold that Leeds has failed to articulate a public policy that