Two claims in the lawsuit filed against the town of Peterborough by its former Recreation Director Jeff King were dismissed by a judge this week.
A motion to dismiss the third claim was denied.
King’s lawsuit alleges termination without cause, breach of the covenant of good faith and fair dealing, and forfeiture of vested benefits.
The town’s motion to dismiss the termination without cause and breach of the covenant of good faith and fair dealing claims were granted by Judge Amy B. Messer on Feb. 2, according to an order on file at the Hillsborough County Superior Court in Manchester. She denied the motion to dismiss King’s claims for forfeiture of vested benefits.
King filed the lawsuit against the town in October. The court “action arises out of the wrongful, unlawful and unwarranted termination” of King from his position by his employer, the town of Peterborough, the lawsuit states.
In a motion to dismiss filed on Nov. 18, town attorneys argue King’s employment was at-will and not by contract, therefore the town was free at any time to terminate his employment. The town’s motion also said despite King’s expectations, the town did not actually have to give cause or provide evidence of wrongdoing when firing him, and said, whatever his “subjective expectations may have been, such thoughts or feelings would not be sufficient to change the at-will nature of the employment relationship.”
In his rebuttal filed Nov. 27, King’s objection to the motion to dismiss agreed with the town that he was an “at-will” employee and therefore should not have been fired for cause.
“The employer may end that relationship at any time. In such cases the employer is not obligated to Provide its rationale for doing so or to defend its actions,” King’s objection says. “While the Town could have terminated King by simply informing him that his services were no longer needed, it did not. It terminated King for Cause. By terminating King for cause and especially the type of cause, the Town is obligated to provide King with both Due Process and substantiated reasons based upon fact. … Those obligations are particularly required when the alleged reason for termination involves inappropriate conduct.”
The town responded to King’s objection in a Dec. 11 filing with the court saying, King “fails to allege facts that could reasonably be construed to establish bad faith, malice or retaliation. Instead, Plaintiff suggests that bad faith can be inferred because the Town did not follow Plaintiff ‘s preferred, quasi-judicial termination process.”
In her Feb. 2 order, Messer wrote, the court agrees with the town of Peterborough. “The New Hampshire Supreme Court has ‘consistently recognized that the prevailing rule in employment law is that in the absence of an employment contract, both parties are free at any time to terminate the employment relationship, with or without cause.’”
On his claim of breach of the covenant of good faith and fair dealing, Messer said King did not make an argument or provide a town policy to back up his claim. “Not only does [King’s] complaint fail to explicitly identify a public policy argument, the facts in the complaint do not implicitly give rise to one.”
She added that, King “made no response to this argument in his objection. Therefore, [King] has failed to allege a claim for a breach of the implied covenant of good faith and fair dealing.”
But when she came to the final claim, Messer wrote, if the town is arguing that King was an at-will employee and that the town did not need a reason to terminate his employment, than it can’t argue he was fired “for cause” and that therefore not entitled to his accrued benefits.
Messer gave King 30 days to amend his first two claims.
“Should [King] fail to amend within the time frame allowed, the dismissal shall become final,”she wrote.
King was recreation director for two years. He oversaw two full-time staff members, three part-time staff members and 43 seasonal employees. His annual salary was $78,561.
On July 12, “King was notified that a complaint or complaints alleging harassment had been made against him by a member or members of the Recreation Department.”
King’s lawsuit alleges he was “not shown or provided with a copy of that complaint” and was told “he had been placed on administrative leave pending the outcome of an investigation.”
On July 23, Bartlett confirmed King was on paid leave. He said King would remain on leave throughout a review process into “concerns” that were brought to town officials about King. Citing it as a personnel matter he declined to comment further at that time.
After firing King on Aug. 19, the town released a statement regarding the matter on Aug. 20, “This action was taken after complaints made against Mr. King led to a Town investigation which uncovered failures to follow town procedures, protocols and training. This failure has undermined, in the Town’s opinion, his ability to manage employees, and as a result he is not in the position to lead the Peterborough Recreation Department.”
Along with a jury trial, King is demanding damages from the town as well as his attorneys’ fees. King has suffered damages, the lawsuit says, including “lost employment benefits, emotional suffering, loss of reputation, costs expenses and other damages.”