Administrative Appeal

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

No. 2018-0296

May 10, 2019

Affirmed.

  • Whether defects in procedural notice requirements for termination of a State employee bar a subsequent termination proceeding with procedurally correct notice requirements

On appeal from the Personnel Appeals Board (PAB), the PAB upheld the decision of the respondent, the New Hampshire Department of Health and Human Services (DHHS), to suspend and subsequently terminate the petitioner’s employment.

The Court identified the relevant facts as follows. The petitioner started working at the New Hampshire Hospital in 1999. In 2015, he was terminated for violating the hospital‘s sexual harassment policy. The petitioner appealed the termination to the PAB. In 2016, the PAB found that the petitioner’s 2015 termination did not comply with the New Hampshire Administrative Rules because DHHS did not provide the petitioner with all of the evidence it relied upon to justify the termination prior to the termination, which deprived the petitioner of the opportunity to refute the evidence. PAB ordered to reinstate the petitioner retroactively and award him back pay and benefits. DHHS resumed paying the petitioner but suspended him so it could conduct an investigation. In 2017, after completing the investigation, DHHS terminated the petitioner again. The petitioner appealed his suspension and his 2017 termination to the PAB, and argued that the PAB cannot terminate or suspend him for the same conduct. After hearing, the PAB upheld the suspension and subsequent termination.

The Court noted it will not set aside a PAB decision except for errors of law, unless the petitioner demonstrates by a clear preponderance of the evidence that it is unjust or unreasonable. PAB’s rulings on issues of law are subject to a de novo review.

In reaching its conclusion, the Court noted that procedural, not substantive, protections are afforded to a petitioner when the PAB finds that a challenged action was taken in violation of an applicable rule. Specifically, the Court observed that the PAB correctly applied the law when it concluded that reinstatement of the petitioner was required. The Court observed that there is nothing that bars the State from correcting its procedural error and re-starting the termination proceeding for the same substantive conduct. The Court rejected the petitioner’s res judicata argument because there was no final judgment on the merits. The Court rejected the petitioner’s collateral estoppel arguments and noted that the five prerequisites were not satisfied.

 

Gary Snyder, SEIU Local 1984, Concord, for the petitioner. Gordon J. MacDonald, Attorney General, Concord, Jill A. Perlow (on the brief and orally), for the respondent.