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Lawsuit against Symphony NH remains in court

Former music director alleges ‘wrongful termination’ from job

CONCORD – Last year, former Symphony NH music director Jonathan McPhee filed a wrongful termination lawsuit against the organization. He alleged he was fired for expressing concerns about financial issues to his superiors, including “an unexplained loss of $80,000.”

The back-and-forth filing of motions in McPhee’s lawsuit against the organization now focuses on whether McPhee’s attorneys will be granted an extra 2 1/2 hours to depose a key witness.

Symphony NH, the Nashua-based orchestra founded in 1923, last month filed an additional reply to its earlier objection to McPhee’s lawyers’ request that they be granted an additional 2 1/2 hours to depose Symphony NH board of trustees President Dr. Robert Oot.

Typically, lawyers are allowed 7 1/2 hours to take depositions from each potential witness. Symphony NH, through its lead attorney Thomas Pappas of Manchester, argues McPhee’s lawyers “do not show good cause to justify continuing Dr. Oot’s deposition beyond 7 1/2 hours.”

McPhee’s lawyers had ample time to interview numerous witnesses, including Symphony NH board members at the time, the orchestra claims in the motion. The organization strongly disagrees with McPhee’s contention that “the amount (of money) in controversy could exceed $1 million,” the motion states. “Plaintiff is mistaken,” Symphony NH responded, adding that a significant amount of the money “in controversy” are tied to alleged potential damages that, the organization argues, are not recoverable.

But McPhee, in his reply to Symphony NH’s objection to the additional 2 1/2 hours of deposition time, alleges the organization is promoting “a misleading oversimplification of this case.”

The “oversimplication” appears to refer to Symphony NH’s argument that McPhee was fired “because of problems with (his) working relationship with Oot and (then-executive director) Marc Thayer.”

McPhee’s lawyers argued, however, that there is “substantial evidence that it was McPhee’s acts of raising concerns about Symphony NH’s finances and financial management that caused his termination.”

Further, McPhee’s lawyers argue, McPhee “repeatedly reported his concerns” over the finances to Oot, eventually reaching the point that Oot allegedly told McPhee “that he did not want to discuss the issues any further.”

By voicing his concerns about the organization’s finances, his lawyers wrote in the motion, McPhee allegedly encountered retaliation from Symphony NH leaders, who also allegedly “defamed him to others.”

Finally, McPhee’s lawyers wrote, he is allowed to “recover emotional distress damages for the wrongful termination, and damages for the (alleged) defamation … harm to his reputation, loss of business and future employment,” along with “any other damages that are the natural consequence” of those alleged acts.

The suit, initially filed in Hillsborough County Superior Court-South in Nashua, was transferred to U.S. District Court last year.

It continues to move forward, albeit in tiny steps, as Symphony NH celebrates its next chapter with the naming of a new music director.

Roger Kalia, 34, was introduced a week ago at Symphony NH’s annual Maestro Dinner. He was chosen after an 18-month search, which began shortly after McPhee was fired.

McPhee, meanwhile, was hired by Symphony NH in 2008. By 2016, he said in his suit, he began noticing “unexplained expenses” and other problems with the organization’s budget.

Several months later, McPhee said, he brought to Oot his concerns about “what appeared to be a $10,000 error reported in the budget.”

The figures were later revised, but, according to the suit, McPhee continued to notice alleged irregularities in the organization’s finances – one of which involved “an unexplained loss of $80,000.”

At a board meeting in summer 2017, Thayer, produced new financial reports that, according to the suit, detailed lines of credit and other debts.

It also showed that Oot had loaned Symphony NH $40,000, which, the suit states, was news to board members, including the treasurer.

In late August, McPhee, pushing for a full audit, contacted Oot laying out his concerns and again asking him to “get to the bottom of the financial issues,” the suit states.

About a week later, in early September, the board voted to fire McPhee, according to the suit. It’s not known whether an audit was ever performed.

Symphony NH, in its response to the suit, denied any wrongdoing, and stated McPhee lost his job through his own actions or inactions – not because the board punished him for speaking out about the organization’s financial

issues.

The response, however, gives no specific reasons for McPhee’s firing.