Don't waste time with discrimination lawsuits
Published 07/06/06

If a New Hampshire employee believes they were fired due to discrimination, they should seek legal counsel promptly to determine what action to take. There can be very short deadlines in which to file claims under federal or state employment discrimination statutes and a fired employee will not be able to avoid these deadlines by just calling his firing a wrongful termination rather than a violation of the employment discrimination statute. This point was illustrated in a recent New Hampshire federal court decision.

On June 20, 2006, the United States District Court for the District of New Hampshire in the case of Richard Parker v. MVM, Inc . reaffirmed that when an employee claims he was fired as a result of discrimination, he does not have a non-statutory (also known as common law) wrongful termination claim.

In that case, Richard Parker brought a claim that he was wrongfully terminated because of age discrimination and his former employer, MVM, Inc., successfully got the Court to dismiss the common law wrongful termination claim. Mr. Parker still preserved his statutory age discrimination claim and a breach of contract claim. Had he only relied on a common law wrongful discharge claim, his case would have been over.

The Court noted that to state a viable claim for wrongful termination under New Hampshire's common law, a worker must allege two things: (1) that the employer terminated the employment out of bad faith, malice, or retaliation; and (2) that the employer terminated the employment because the employee performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn. Since an employee who was fired because of discrimination cannot claim that he was fired because he performed acts which public policy would encourage or refused to perform acts which public policy would condemn, he cannot have a viable wrongful discharge claim.

Simply put, an employee's protected class, whether it be age, religion, race, gender, or otherwise does not constitute an act by him or refusal to perform an act by him and therefore there can be no common wrongful discharge claim under New Hampshire law. Furthermore, the United States Courts of Appeals for the First Circuit which hears appeals from the New Hampshire federal court has interpreted New Hampshire common law to preclude a cause of action for wrongful termination when the employee has a statutory claim cause of action under the same conduct. In other words, if an employee could have brought a state or federal statutory claim for employment discrimination but did not do so by the deadline or otherwise did not meet the procedural statutory prerequisites, he is later barred from bringing a wrongful discharge claim under New Hampshire 's common law.

In this case, Parker still has his other claims against the employer remaining, yet this decision is an important reminder for both employers and employees that generally employment discrimination claims have to be brought pursuant to the federal or state statutes that apply and all the pre-requisites under those statutes must be met. The failure of an employee to comply with those pre-requites will result in the employee's claim being forever barred.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.