On May 26, 2016, a New Hampshire federal trial judge ruled against former employee Joseph Kertanis and in favor of his previous employer Georgia-Pacific Gypsum, LLC. In that case Kertanis claimed that his former employer fired him from its Newington, New Hampshire plant because he was critical of the plant’s human resource manager and after he responded to what he perceived to be a co-worker’s dangerous work habits. However, Georgia-Pacific claimed that it fired Kertanis for verbally abusing and harassing a co-worker. Ultimately the Court found the latter and ruled that Kertanis is not entitled to go to a jury trial and summary judgment was granted in favor of Georgia-Pacific.
Kertanis began working in the Newington plant in September 1998 which produced wallboard and drywall by processing raw gypsum ore. At the time of his termination, he was working the 11:00 pm to 7:30 am shift. In 2010 Kertanis began working with Nick Philbrook who he would yell and swear at based upon performance issues. Ultimately Georgia-Pacific fired Kertanis and he sued for wrongful termination.
In New Hampshire you are an employee at will absent being part of a union and therefore subject to a collectively bargaining agreement or if you actually have an employment agreement that prohibits you from being fired except for certain reasons. Generally most employment agreements expressly state that they do not alter the employee-at-will relationship or permits the employer to fire with cause and not provide any severance or fire without cause and provide certain severance with benefits to the employee. For an employee at will to prevail on a wrongful termination claim, the employee must establish two elements: (1) the employer terminated the employment out of bad faith, malice, or retaliation; and (2) the employment was terminated because the employee performed acts which public policy would encourage or refuse to perform acts which public policy would condemn.
Since Kertanis was not claiming he had a contract, was a member of a union, nor protected under a certain statute such as claiming he was fired because of gender, race, or disability, but instead stated he was fired for raising certain safety concerns and disagreeing with the Human Resource Manager. His argument was that he was wrongfully terminated. The Judge noted that under the first element for wrongful termination that bad faith or malice on the part of the employer may be established under New Hampshire law where: (i) an employee is discharged for pursuing policies condoned by the employer; (ii) the record does not support the stated reasons for the discharge; or (iii) disparaged treatment was administered to a similarly situated employee. While Kertanis argued that the Human Resource Manager’s role in his termination was motivated by malice and retaliation in response to his earlier criticism of her, the Judge noted that he would still have to show that he performed acts which public would encourage or refuse to perform acts which public policy would condemn. The Judge noted that criticizing human resource manager’s decisions as to handling other employees, even if it can be argued that part of Kertanis’ job was to discuss such personnel issues with the Human Resource Manager, does not show that he was doing something public policy would encourage rather than just doing something that the company would encourage. Further, Kertanis states that he had some safety concerns as to Philbrick. The record was clear that his last verbal abusive behavior that resulted in his termination was unrelated to safety issues about Philbrick. While Kertanis disputes his treatment of Philbrook as bullying or harassing as Georgia-Pacific alleges, he does not dispute that it was a verbal confrontation.
This decision does not in any way suggest that employers should or should not fire employees who have verbal confrontations with their co-workers or to insist upon a swear-free workplace; that is within the employer’s prerogative. However, such policies promoting the respect between the co-workers can help with employee morale and therefore productivity and prevent other potentially illegal harassment in the workplace such as sexual or racial harassment.
While this case is a good example for employers that the federal courts will look at what really happened and not what was alleged by the employee of what happened in determining whether or not the case goes to trial, it is also appears to be a good lesson for employers to encourage employees to come forward early on with problems and address those problems forthright letting employees know what is expected of them and what can happen if they continue on with what is perceived to be bad conduct. In reading the decision it would appear that better communication by Georgia-Pacific with Kertanis may have avoided this litigation that is expensive both in time and money.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].