Court Holds Wrongful Discharge Is Action Based in Tort Law

Porter v. City of Manchester
Porter v. City of Manchester
No. 2003-009
Friday, May 14, 2004

This case stems from actions taken by the City of Manchester and its welfare commissioner Susan Lafond with respect to the treatment and termination of employee caseworker Michael Porter. The Court issued guidance on a number of issues of employment law.

Wrongful Discharge
In the past the Court has approached analysis of wrongful discharge claims with a two-prong test that was derived from both contract and tort law theories. Generally, “tort actions protect the interest in freedom from various kinds of harm [while] [c]ontract actions protect the interest in having promises performed.” In this case the Court decided to follow other courts in holding that wrongful termination is an action in tort since it is brought to remedy a wrong, independent of whether any enforceable promise has been made to the employee by the employer. Having found wrongful termination to be a tort action, the Court then found that the doctrine of respondeat superior, considered in tort actions, should apply to the present case. Under the doctrine of respondeat superior an employer may be held liable for the wrongful acts of an employee if that employee was acting in the scope of employment when the wrongful act occurred. In this case the trial court had found the city directly liable for the wrongful termination of Porter even though the city had requested its liability to be considered under the doctrine of respondeat superior. The Supreme Court agreed with the city that the doctrine should apply where Porter alleged that an intentional tort, wrongful termination, was committed by an employee of the city. The issue was sent back to the Superior Court for a new trial to include a jury instruction on respondeat superior.

Constructive Discharge
The city also argued that Porter could not maintain his discharge claim because he did not prove that he was constructively discharged. It also argued that the claim could not be maintained for procedural reasons. The Supreme Court found that Porter has presented sufficient evidence to maintain his action. Constructive discharge occurs when an employer creates adverse working conditions so pervasive, ongoing, repetitive and severe that a reasonable person would feel forced to resign. The following facts, considered in aggregate, were found to constitute sufficient evidence: Lafond’s comment when Porter returned from leave that “We’ll see how long you last”; Ignoring Porter at staff meetings; Lafond physically bumping into Porter in hallways; Lafond making snickering comments and glaring at Porter; Lafond physically preventing Porter from leaving the building. Based on the above, the Supreme Court upheld the trial court’s decision to allow a finding of constructive discharge.

Damages for Emotional Distress
Porter also made a claim for damages due to emotional distress. The city had argued that damages due to emotional distress, allowable under a tort theory, were not collectable in a wrongful discharge case since wrongful discharge is pursued under a contract theory of law. Since the Supreme Court has decided that wrongful discharge should, in fact, be analyzed under tort theory, it held that emotional distress damages are allowable in such cases.

Lost Future Earnings
The Court also decided that plaintiffs in a wrongful termination case may request lost future earnings to be awarded as damages even if the employee is an at-will employee. Evidence of projected future earnings must be proven with reasonable certainty, not mathematical certainty and expert testimony substantiating the amount requested is not required unless the subject presented is “so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson.”

Lafond Not Entitled to Qualified Immunity against Civil Rights Section 1983 Claim
The Court also analyzed the actions of Lafond pursuant to the accepted three-part test that is applied when a court reviews a claim that a public official is entitled to qualified immunity against a civil rights violation. In order to prove that the official is entitled to immunity the official must prove that either (1) the plaintiff did not suffer a violation of constitutional rights; OR (2) there was no clearly established constitutional right at the time of the violation; OR, (3) no similarly situated reasonable official would have understood that their actions would violated someone’s constitutional rights. In this case Porter claimed that Lafond violated his First Amendment right to free speech when she constructively terminated him because of comments he made to the city human resources department about the way Lafond was managing the city welfare department and administering welfare generally.

In April 2000 Porter told human resources that he was concerned that Lafond was frequently absent from work, discouraged reporting of welfare fraud and public safety threats and asked caseworkers to fill in at a non-profit shelter. The court found substantial evidence that Lafond threatened and intimidated Porter in an effort to make him leave his job as a caseworker. The 1983 claim raises the question of whether Lafond’s actions constituted a violation of Porter’s First Amendment rights.

The Court found that there was in fact a constitutional violation where (1) Porter’s comments involved a matter of public concern because they were directly related to the efficient administration of city government; (2) Porter’s interests in free speech outweigh the interests of the government in suppressing that speech especially since Porter was discrete enough in voicing his concerns not to have a disruptive effect on government, and (3) Porter’s comments were a substantial motivating factor in Lafond’s actions against him. The Court also found that Porter’s right to free speech was clearly established at the time of Lafond’s conduct and that Lafond should have been and was aware that her conduct would violate Porter’s right to free speech. Notably, evidence showed that Lafond had been warned by both human resources and her own attorney not to take action against Porter in response to his reports to human resources about her office practices.

Having not found in favor of Lafond on any of the three prongs of the qualified immunity test, the Court concluded that Lafond was not entitled to immunity as a public official from Porter’s first amendment claim.