United States District Court, D. New Hampshire
Elizabeth B. Olcott, Esq.
B. Klein, Esq.
M. Wilson, Esq.
L. Michaelis, Esq.
CORRECTED MEMORANDUM ORDER
N. Laplane, United States District Judge.
state-law employment action, the court is asked to decide at
the summary judgment stage, as it often is in cases of this
type,  why the defendant fired the plaintiff. In
a number of cases, the summary judgment record is not
sufficiently conclusive to permit that decision. In this
case, however, it is.
Kertanis claims that defendant Georgia-Pacific Gypsum, LLC
(GP) fired him from GP’s Newington, New Hampshire,
plant because he was critical of the plant's human
resources manager and after he responded to what he perceived
to be a co-worker’s dangerous work habits. GP claims it
fired Kertanis for verbally abusing and harassing the
co-worker. This court has diversity jurisdiction over this
action between Kertanis, a New Hampshire citizen, and the
defendant, an out-of-state corporation. See 28
U.S.C. § 1332(a)(1).
the court is GP’s motion for summary judgment, in which
it argues that the undisputed record lacks any evidence of
either the bad faith or the public policy rationale necessary
to support Kertanis’s claims. After oral argument and
review of the parties’ submissions, the court finds
that the undisputed facts show that GP fired Kertanis because
he verbally abused the co-worker, an action that public
policy does not condone. GP’s motion is therefore
Applicable legal standard
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute is “genuine” if it
could reasonably be resolved in either party’s favor at
trial. See Estrada v. Rhode Island, 594 F.3d 56, 62
(1st Cir. 2010) (citing Meuser v. Fed. Express
Corp., 564 F.3d 507, 515 (1st Cir. 2009)). A fact is
“material” if it could sway the outcome under
applicable law. Id. (citing Vineberg v.
Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)).
analyzing a summary judgment motion, the court “views
all facts and draws all reasonable inferences in the light
most favorable to the non-moving party.” Id.
The court will not credit conclusory allegations or
speculation. See Meuser, 564 F.3d at 515; Sea
Shore Corp. v. Sullivan, 158 F.3d 51, 54 (1st Cir.
1998). With this standard in place, the court turns to the
facts of the case, highlighting only those necessary to the
resolution of the instant motion.
started working there at GP’s Newington plant in
September 1998. The plant produces wall board and drywall by
processing raw gypsum ore. Kertanis filled a variety of roles
at the plant during his time there. At the time of his
termination, Kertanis was working an overnight (11:00 PM to
7:30 AM) shift.
employees such as Kertanis at the Newington plant work on
self-directed teams without direct supervisors. Each team is
responsible for assigning work to its members, ensuring
quality standards and managing all other aspects of the
team’s performance. Some team members act as
“coordinators” responsible for certain
administrative functions, including human resources, safety,
environmental, quality, and business. The Newington plant
also has a Resource Team which consists of management-level
employees overseeing production and other aspects of the
business. Finally, the Newington Plant has a Plant Management
Team (“PMT”) that typically consists of the Plant
Manager, the Human Resources Manager, and other management
personnel. Each production team is responsible for addressing
employee discipline issues. When an employee discipline issue
arises, the employee’s team meets to discuss the issue.
The team then decides on the disciplinary action to be taken.
Most discipline, including verbal or written warnings, can be
issued by the team. If the team believes an employee should
be terminated, the team’s recommendation is forwarded
to the PMT for consideration. The PMT can affirm, reject, or
modify the team’s recommendation. At the time relevant
to this litigation, Kertanis was working on Team 3.
Hired Nick Philbrook as a machine operator in October 2010.
Philbrook was soon working on Team 3 with Kertanis, Team 3
human resources coordinator Jim Michalski, and the team's
production coordinator, Shane Stevens. The trio was
responsible for training Philbrook. Initially, Philbrook
performed well. According to Kertanis, however,
Philbrook’s performance began faltering in January
2011, when he began working the overnight shift. After
discussion with Philbrook, Kertanis determined that Philbrook
was having sleep issues that interfered with his work. On
January 4, 2011, Philbrook was disciplined. Eventually,
Philbrook's training on all equipment other than the
forklift was suspended. As a result, Team 3 workers were
questioning whether Philbrook would have to be transferred to
a different area within GP.
in March 2011, Kertanis got into a dispute with the
plant’s human resources manager, Sandra Heald, over
unrelated issues that involved neither Philbrook nor safety
concerns: the firing of a manager and the later re-hiring of
an employee whom Kertanis believed was ineligible for
re-hire. When Kertanis raised these issues with Heald, she
told him that he “should look for work elsewhere”
if he ...