Katherine E. Hedges
An associate at Hage Hodes in Manchester practicing civil litigation and corporate law.

No. 2017-0295
Oct. 16, 2018

  • The Court considered whether an improperly captioned notice of appeal deprived it of subject matter jurisdiction. Finding it had jurisdiction, the Court considered whether letters of warning and the final termination were for the same or substantially similar type of conduct or offense as required pursuant to N.H. Admin. R, Per 1002.08 & Per. 1002.04.


The New Hampshire Personnel Appeals Board (PAB) upheld the termination of James Cole from the New Hampshire Department of Information Technology (DOIT). On appeal, Cole alleged that his termination did not comply with N.H. Admin. R., Per. 1002.08 and Per. 1002.04, which required the DOIT to provide at least two prior written warnings for the same or substantially similar conduct as the one the employee was terminated for. The DOIT argued that the termination was permissible, but the Supreme Court also lacked jurisdiction to decide the appeal.

The DOIT argued the appeal should be dismissed because The State Employees’ Association of New Hampshire (SEA/SEIU), which had represented the petitioner before the PAB, named itself as the petitioner on the notice of appeal. The Supreme Court considered whether it had subject matter jurisdiction pursuant to RSA 541. The Court found while an untimely filing would have deprived the Court of jurisdiction, a defect in the caption did not. This was true even when it was necessary to substitute a plaintiff without standing for a plaintiff with standing. The substitution of a plaintiff is given retroactive effect to the timely date of filing, unless there was prejudice to the defendant. There was no prejudice to the defendant in this case. As a result, the Court had jurisdiction to decide the case. The Court also held that Cole did not waive his ability to address the jurisdictional issues when he only included the arguments in a reply brief because the DOIT was the one raising the issue, and Cole was properly responding.

The Court found the following facts. The petitioner was a DOIT employee for 15 years when he was transferred to a new department. The petitioner’s work on assignments was substandard, and his supervisor issued a memorandum memorializing the issues with the projects and corrective steps to be taken. There continued to be many issues with the projects that Cole was working on, and his manager issued Cole a letter of warning. A couple of months later, Cole’s manager issued another letter of warning related to continued deficiencies with the project, and the DOIT Commissioner issued a third letter of warning a short time later, related to Cole being found doing a crossword puzzle at his desk when not on break. Cole was dismissed from employment a short time later.

The petitioner argued that although the first two letters of warning were likely the same or substantially similar conduct, the final letter and termination was not for the same or substantially similar offense as the first two, as was required by N.H. Admin. R, Per. 1002.04 &.08. The Court noted that prior case law on the issue was decided when the rule required warnings for the “same offense” rather than the same or a similar violation. Because the rule was now broader, it was not unjust or unreasonable or an error as a matter of law for the PAB to find all three letters related to the petitioner’s poor-quality work, reflected by an inability to complete assignments in a timely fashion. They were also deemed properly grouped as letters documenting “failure to meet any work standard” rather than “disruptive, disorderly, or disrespectful conduct” under another part of the rule. The Court affirmed the dismissal.


Gary Snyder (on the brief) and John S. Krupski (orally), Concord, for the petitioner. Gordon J. MacDonald, attorney general (Scott E. Sakowski, assistant attorney general), for the respondent, New Hampshire Department of Information Technology.