Michael A. Rowe
Liberty Mutual Group, Inc. Opinion No. 2013 DNH 168
JOSEPH N. LAPLANTE, District Judge.
The central question in this case is whether the defendant, Liberty Mutual Group, Inc., fired the plaintiff, Michael A. Rowe, from his job as a director in its subrogation division because he refused to do something that he believed was against the law or, at least, was contrary to public policy. On April 7, 2011, Rowe was scheduled to meet with the managers at the company's office in Fenton, Missouri, to discuss a reduction-in-force ("RIF"), being announced that very day, which would result in the layoff of 37 employees. The meeting was scheduled for 9 a.m., but Rowe did not arrive until almost 10 a.m. The next morning, a senior vice president in Rowe's division initiated the process that led to his dismissal one week later for his "performance failure" on the RIF, including his late arrival to the meeting.
Rowe, through counsel, subsequently filed this action against Liberty Mutual. He claims that, in reality, the company fired him for performing acts that public policy would encourage and refusing to perform acts that public policy would condemn, in violation of New Hampshire common law, see Cloutier v. Great Atl. & Pac. Tea Co. , 121 N.H. 915, 920 (1981), as well as for "object[ing] to or refusing to participate in any activity that [he], in good faith, believes is a violation of the law, " in violation of the state's Whistleblowers' Protection Act, N.H. Rev. Stat. Ann. § 275-E:2.
Specifically, Rowe alleges that he was terminated "for refusing to pull... from the RIF" two employees whose depositions had been sought in a class-action lawsuit pending in a Montana court against Liberty Mutual's predecessor-in-interest, Ferguson v. Safeco Ins. Co. of Am., No. 04-628B (Mont. Dist. Ct. Sept. 23, 2004), and "refusing to tell them that [Liberty Mutual] was sparing them from the RIF because of [that] case." Rowe's complaint asserts that public policy would condemn these acts because "public policy discourages inducing someone to give false testimony" (which, Rowe claims, Liberty Mutual would have been doing by telling the employees it "was sparing them from the RIF because of the Ferguson case" in which they were scheduled to be deposed). Also playing a role in his firing, Rowe claims, was another act on his part that public policy would encourage: "raising concerns that Liberty Mutual could face exposure for failing to comply with made whole' statutes in jurisdictions other than Montana, " where the alleged violation of that state's "made-whole" law by the company's predecessor-in-interest was the gravamen of the Ferguson lawsuit.
The court has jurisdiction over this action between Rowe, a New Hampshire citizen, and Liberty Mutual, an out-of-state corporation, under 28 U.S.C. § 1332(a)(1) (diversity). Liberty Mutual has moved for summary judgment. See Fed.R.Civ.P. 56. It argues, among other things, that Rowe has no evidence of any causal connection between his termination and his allegedly protected conduct, i.e., his refusal to tell the employees whose depositions had been sought in the Ferguson case that, as a result, they were not being laid off, and his "raising concerns" about Liberty Mutual's made-whole practices outside of Montana. In particular, Liberty Mutual argues that there is no evidence that any of its personnel who were involved in the decision to terminate Rowe knew that he had allegedly refused (or even been asked) to tell the two employees that they were being spared from the RIF because of the Ferguson case, or raised concerns about the company's made-whole practices beyond Montana.
Though Rowe-who, around the time discovery closed in this case, chose to fire his counsel of record and proceed pro se-has filed a 63-page objection to Liberty Mutual's motion, he does not identify any record evidence from which a rational jury could conclude that the Liberty Mutual employees who played in a role in his termination knew of his allegedly protected activity. Instead, Rowe attempts to fill that gap by speculating as to the exchange of that information among Liberty Mutual employees. Speculation, however, cannot create a genuine issue of material fact sufficient to avoid summary judgment. See, e.g., Rivera-Colón v. Mills , 635 F.3d 9, 12 (1st Cir. 2011).
Rowe also accuses Liberty Mutual of the "obstruction of discovery" into what its employees told each other about his allegedly protected conduct. But that accusation ignores the fact that, although Liberty Mutual had objected to discovery into certain of those communications, this court overruled the objections and ordered Liberty Mutual to provide that discovery, including by producing (at its sole expense) two of its witnesses for re-opened depositions. Rowe, however, voluntarily chose not to proceed with the re-opened depositions, so he cannot complain now that the record remains undeveloped on this crucial issue. As explained more fully below, then, the court grants Liberty Mutual's motion for summary judgment.
This court's rules require that "[a] memorandum in opposition to a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists." L.R. 7.2(b)(2). As Liberty Mutual points out in its reply memorandum, Rowe's opposition memorandum does not comply with this rule. Instead, its 55-page "Statement of Material Facts" consists almost entirely of argument, much of it unaccompanied by any record citations (though it does incorporate numerous lengthy excerpts from deposition transcripts and documents produced in discovery). That approach does not comply with Local Rule 7.2(b)(2). See, e.g., Evans v. Taco Bell Corp. , 2005 DNH 132, 2-3 (DiClerico, J.) (citing cases). Rowe's announcement in his objection that he "expressly denies all of the allegations made against him in [Liberty Mutual's] motion for summary judgment" also does not suffice to state the material facts as to which Rowe contends a genuine issue exists. See, e.g., Traudt v. Roberts, 2013 DNH 094, at 4-5, appeal docketed, No. 13-1968 (1st Cir. Aug. 6, 2013).
As a result of Rowe's failure to "properly oppose" Liberty Mutual's motion for summary judgment, "[a]ll properly supported facts set forth in [its] factual statement shall be deemed admitted." L.R. 7.2(b)(2). This court has nevertheless endeavored, in light of Rowe's pro se status, to make a reasonable effort to identify the facts he purports to dispute, and the record evidence supporting those positions, from among the 55 pages of Rowe's "Statement of Material Facts." The following statement of facts reflects this approach.
A. Factual background
1. The Ferguson litigation
Rowe started working with Liberty Mutual in 2005, and, by 2010, held a director-level position in its subrogation division. In that job, Rowe worked out of Liberty Mutual's office in Portsmouth, New Hampshire, and earned, by his account, more than $207, 000 in annual salary.
Among Rowe's responsibilities was consulting with the company's attorneys on Ferguson, supra, a class-action lawsuit alleging that the business practices of a company Liberty Mutual had acquired, Safeco Insurance Company of America, violated Montana law. Specifically, the plaintiffs in Ferguson (which, so far as the record here reveals, is still pending) claim that, in violation of Montana's "made-whole" doctrine, see note 1, supra, Safeco had asserted its subrogation rights under its policies although its insureds had not yet been fully reimbursed for all losses, including "costs of recovery."
On March 31, 2011, Rowe sent an email to Nancy Brown, an in-house attorney for Liberty Mutual responsible for handling the Ferguson lawsuit. The body of the email stated, in its entirety,
At some point I'd like to speak with you about our posture toward made whole states nationally.
At one time we thought what we were doing in Montana was sufficient and though we've become much more stringent there, the old practices we followed in Montana are pretty much what we follow today in other made whole states. Who's to say that this couldn't spread?
If you have some preliminary thoughts you'd like to share as to how we might best consider our go forward strategy I'd appreciate them.
Brown responded, "I'll set up a call for next week, " and proceeded to offer April 13, 2011. Rowe did not respond until April 14, 2011, when he offered to speak with Brown on April 18, 2011, instead. Brown accepted that offer.
2. The Fenton RIF
Rowe's responsibilities also included managing the RIF at Liberty Mutual's offices in Fenton. As noted at the outset, he was scheduled to announce the RIF there on April 7, 2011, a Thursday. On Monday, April 4, 2011, Rowe met with other Liberty Mutual employees working on the RIF to review the "communication plan including the proposed timeline and talking points. After this session, Rowe was provided with a copy of the "communication plan" which indicated, among other things, that he was responsible for conducting a meeting with the "front-line managers" at the Fenton facility at 9 a.m. on the day of the RIF "to review talking points [and] next steps."
a. Brown calls Rowe
Also on Monday, April 4, Rowe received a telephone call from Brown. Brown informed Rowe that two employees in the subrogation division, Don Miller and Ned Steck, had been noticed for deposition in the Ferguson case. In response, Rowe told Brown that these employees were scheduled to be laid off as part of the RIF later that week.
According to Rowe's account of the balance of the call, set forth in his answer to an interrogatory propounded by Liberty Mutual, see Fed.R.Civ.P. 33,
Attorney Brown stated that they would have to be pulled from the RIF. I advised [her] that I did not have the authority to exclude employees from the RIF who met the criteria for the RIF and such authority would have to come from [human resources] and her counterparts in Liberty [Mutual's] Legal [Department] who approved the RIF criteria. Attorney Brown persisted in trying to persuade me to exclude Mr. Steck and Mr. Miller from the RIF, stating that Mr. Steck had testified very poorly in another case she was involved in and that we couldn't afford poor testimony in [the Ferguson] case. [She] asked me if I thought that, if I spoke with [Steck and Miller] about sparing them from the RIF, we might get better testimony from them. She added that the company could subject them to another RIF later. I again stated I lacked the authority to do what she asked, nor would I be comfortable connecting their sworn deposition testimony with sparing their jobs because doing so would give the distinct impression that we were trying to influence testimony. Attorney Brown was very unhappy and said she would call [Liberty Mutual's human resources department].
At his deposition, Rowe elaborated that he told Brown that "if [she] and whoever in human resources want[ed] to exclude [Steck and Miller] from the RIF, '" then he (Rowe) was "not going to complain or object to it. But... I don't have the authority to make that decision, and I'm not going to do anything that could appear to be illegal.'"
Rowe further testified that, at the end of his conversation with Brown, she said she would "get back to" him, and he "made it clear that [he] wasn't going to do anything... without authority" (though he denied that Brown told him that he should refrain from taking action). The "Employee Relations Situation Analysis" ("Situation Analysis") prepared prior to Rowe's termination, see infra Part I.A.2.e, paints a slightly different picture of his conversation with Brown. According to the Situation Analysis, Brown "directed Rowe not to communicate to two employees as they have been named as key witnesses in a class action lawsuit. Rowe advised he would update Brown shortly."
b. Brown confers with others
Two days after Brown's conversation with Rowe, she exchanged several e-mails with Tricia Rice, an in-house employment attorney at Liberty Mutual. Brown wrote that "[i]n a perfect world, we'd like the [two employees] not to be told about the RIF and to stay on... until their depos[itions] are taken" in June 2011. Rice responded, "[n]ot telling them about the RIF does ...