Workers safe to testify, but job protection isn't guaranteed
Published 10/04/07

New Hampshire employers cannot fire an employee because he has testified or assisted in any employment discrimination proceeding, yet that does not mean that an employee who has so testified or assisted in a proceeding has job protection.

While it is unlawful for the employer to retaliate against the employee because of the employee's assistance in another discrimination proceeding, the employer may still fire the employee for other non-discriminatory reasons such as poor job performance.

This point was illustrated in the September 24, 2007 decision from the New Hampshire federal court in the case of Richard Dennis v. Osram Sylvania, Inc . In that case, Richard Dennis was suing his former employer, Osram Sylvania, Inc., asserting that the company violated New Hampshire law by terminating his employment in retaliation for his having given deposition testimony critical of the company in another employment New Hampshire discrimination case brought by another former employee. Sylvania asked the Court to rule that there were no material facts at issue and that Dennis should not be permitted to go to a jury on his claim. The Court agreed.

Dennis was employed by Sylvania from August 1995 until he was terminated on March 24, 2004. He was employed in the Human Resource Department and his duties included investigating complaints made by Sylvania employees against other employees and managing the company's internship program.

On February 5, 2004, approximately six weeks before he was terminated Dennis was deposed in connection with a New Hampshire employment discrimination retaliation claim brought against Sylvania by a former employee, Nancy Green.

Dennis testified in the Green lawsuit deposition that he disagreed with the company's decision as to how to resolve Green's complaint and that he had expressed his disagreement to colleagues, calling the company's handling of Green's complaint, “the stupidest thing I've heard, stupidest idea I've heard.” However, Dennis also confirmed in the same deposition that Green had not been retaliated against and Sylvania was, after the deposition, successful in preventing the Green case from going to trial.

Sylvania stated they fired Dennis because of the human resource department was undergoing a reduction in force, and given the need to eliminate an employee, they preferred to retain another employee due to Dennis' history of inappropriate conduct.

The Court in scrutinizing the deposition testimony in the Dennis case found that, notwithstanding the six-week time frame from the deposition taken to his termination, those who may have been disappointed in his deposition testimony had no say in the decision to fire him.

This case shows that the New Hampshire federal court in employment discrimination cases will look carefully at all the evidence revealed in discovery including the employee's own deposition testimony to determine whether or not a reasonable jury could find in his favor based upon that evidence. If not, the Court will preclude him from being able to submit his evidence to a jury and rule in favor of the employer upon his employment discrimination claims.

For employees, this case emphasizes while you cannot be fired for participating in another employee's discrimination case, you can be fired for poor work performance or inappropriate conduct and you are not afforded any additional job protection by participating in those proceedings.

J. Daniel Marr is a director and shareholder of 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

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