New Hampshire Department of Labor
August 22, 2019
The petitioner filed a complaint against an attorney arising out of an alleged incident between the attorney and the town police department. The complaint included, among other things, unredacted data relating to the attorney and his family in the police department’s computer database such as Social Security numbers, addresses, and birthdates. Subsequently, the town disciplined the petitioner by suspending him for one week without pay and requiring him to attend training. The petitioner filed a complaint with New Hampshire Department of Labor (DOL) arguing that the town wrongfully retaliated against him for reporting the attorney in violation of the Whistleblowers’ Protection Act. The petitioner appealed the DOL’s decision that he failed to prove that the town violated the New Hampshire Whistleblowers’ Protection Act. The petitioner argued that the DOL erred by failing to acknowledge that he produced direct evidence of retaliation, and that had the DOL correctly found that he produced such evidence, the petitioner argues it would have been required to apply the mixed motive analysis to his claim rather than the pretext analysis, which it actually applied.
The Supreme Court held that the DOL did not err by applying the pretext analysis nor in ruling that the petitioner failed to prove that the town violated the Whistleblowers’ Protection Act. Under the “pretext” analysis, the employee bears the initial burden to make a prima facie showing of unlawful conduct for retaliation which then creates a presumption that the employer unlawfully retaliated against the employee. If the employer satisfies its burden of production, the presumption raised by the prima facie case is rebutted and the employee then has the opportunity to show by either direct or indirect evidence that the employer’s proffered reason was not the true reason for the adverse employment action. The employee retains the ultimate burden of persuasion that he or she was the victim of unlawful retaliation. If the employee produces direct evidence that retaliation played a substantial role in a particular employment decision, then the “mixed motive” approach applies. If the fact finder believes the employee’s direct evidence, the burden of persuasion shifts to the employer to show that despite the retaliatory animus, it would have made the same adverse employment decision for legitimate reasons. Evidence is considered to be direct if it consists of statements by a decision maker that directly reflect the alleged animus and bears squarely on the contested employment decision. Thus, so long as the employee can meet the evidentiary burden required by the “mixed motive” approach, the burden of persuasion remains with the employer.
The Supreme Court held that the threshold question was whether there was direct evidence that retaliation played a substantial role in the challenged discipline. The DOL found the petitioner had not produced evidence, direct or otherwise, that the intent to retaliate against the petitioner played a substantial role in the town’s decision to discipline him. Instead, the DOL found that the town’s concerns regarding the potential impropriety of the petitioner’s inclusion of private information obtained from the town’s confidential database with the complaint was the primary motivation for the discipline.
Rath, Young and Pignatelli, PC, of Concord (Michael S. Lewis on the brief and orally), for the petitioner. Getman, Schulthess, Steere & Poulin, P.A., of Manchester (Stephen J. Schulthess on the brief and orally), for the respondent.