William Casey v. St. Mary's Bank

Concord, New Hampshire employment law lawyer represented Plaintiff who sued defendant on a breach of contract theory.





Casey is a member of the Massachusetts National Guard who began working at SMB as a sales and service representative in December 2019. Doc. 1 at 2. That same month, Casey was provided with an "Employee Electronic Manual” (Manual). Doc. 8-1 at 10. The Manual included an acknowledgement form, signed by Casey, which stated:



I understand that neither this Manual nor any other SMB policy or procedure is intended to provide any contractual obligations related to continued employment, compensation or employment contract . . . Since the information and policies described herein are subject to change at any time, I acknowledge that revisions to the manual may occur . . . My signature below indicates that I have read and agree to abide by the electronic Employee Manual and any revisions, am bound by the provision contained within and am responsible for knowing and understanding its contents.



The Manual included various policies, two of which are relevant here. The "Anti-Discrimination and Harassment Prevention Policy” (EEO Policy) provides:



It is the policy of St. Mary's Bank to promote a positive and productive work environment. St. Mary's Bank does not tolerate discrimination or harassment on the basis of race, religion, color, gender, age, marital status, national origin, sexual orientation, veteran status, disability, or any other protected status.



Doc. 9-1 at 2. The Manual also includes a "Military Policy,” which contains two provisions concerning pay for employees on military-related leave. Doc. 9 2 at 2. The first provision (Training Provision) states:



Regular employees serving in the Military Reserves or National Guard will be granted military leave to enable them to attend training as reservists or guard members. In this case, eligible employees will be paid the difference between their military pay and their regular straight-time pay for up to ten days of training leave each calendar year (assuming their military pay is less than their regular pay from the Credit Union).



The second provision (Active Duty Provision) states:



Regular employees who are military reservists or National Guard members and who are called to active duty, will be paid the difference between their military pay and their regular straight-time pay for up to 12 months (assuming that their military pay is less than their regular pay from the Credit Union).



About six months into his employment with SMB, Casey was called to active duty for a one-year period to respond to the then-emerging COVID-19 pandemic. Doc. 1 at 2-3. Following his return from active duty, Casey was required to attend periodic training with the Guard. Id. at 5. SMB did not pay Casey the difference between his military pay and regular pay while he was at training or on active duty. Id. at 8.



Moreover, towards the end of his tenure at SMB, Casey was subjected to unfavorable treatment because of his military service. For example, Casey's colleagues made "snide comments about his military service” and supervisors would "openly favor[] other employees when assigning loans[.]” Id. at 5. Additionally, Casey's supervisors did not prorate his sales goals to account for the time he was out on military leave, which negatively impacted his ability to obtain promotions and pay increases. Id. at 4-5. Finding the working conditions intolerable, Casey resigned in December 2021.



Casey filed suit in this court, asserting three claims for breach of contract based on SMB's alleged failure to comply with the policies outlined in its Manual.[1] Id. at 12-14. Two of the claims are based on the Military v



Casey claims that, by failing to pay him the difference between his military pay and his regular pay while he was on active duty and participating in mandatory training, SMB breached both the Active Duty Provision and the Training Provision. Id. The remaining claim is based on the EEO Policy, which Casey claims SMB breached by discriminating against him on the basis of his military service. Id. at 12. SMB moves to dismiss all three breach of contract claims, arguing that Casey fails to state a claim because the Manual did not create any contractual obligations. Doc. 8-1 at 4.



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The New Hampshire Supreme Court has recognized that a company's policies may be constitute a unilateral contract if the standard elements of contract formation-offer, acceptance, and consideration-are satisfied. See Panto v. Moore Bus. Forms, Inc., 130 N.H. 730, 737 (1988). Thus, policies "may be treated as an offer subject to an employee's acceptance, to be expressed by the continued performance of his duties, upon which an enforceable unilateral contract term will be formed.” Id. at 735.



Nonetheless, "[a]n employer who seeks to avoid creating an employment contract can do so via a written disclaimer in the handbook or policy that indicates that the document will not create contractual obligations.” Balsamo v. Univ. Sys. of N.H., 2012 DNH 048, 2012 WL 683491, at *8 (D.N.H. Mar. 2, 2012). But a certain level of specificity is required in order for a disclaimer to preclude the creation of a contract based on explicit policies in the handbook. See Butler v. Walker Power, Inc., 137 N.H. 432, 436 (1993). A general disclaimer that merely "indicat[es] that a handbook is not a 'contract of employment'” will effectively disclaim "the employer's intent to create a tenured employment relationship,” but not the concomitant incidents of employment contained in the handbook. See Riesgo v. Heidelberg Harris, Inc., 36 F.Supp.2d 53, 60 (D.N.H. 1997). "[T]o disclaim an intent to be bound

by policies included in a handbook that are not related to the fact or duration of employment, an employer must specifically state such an intent.” Id. I apply these principles first to the Military Policy, and then to the EEO Policy.

Defendant's motion for summary judgment grants.