Labor and Employment

An associate with Ford & McPartlin in Portsmouth, NH

No. 2017-0658
January 11, 2019
Affirmed in part, reversed in part, and remanded.

  • Whether there was legal error in granting summary judgment on claims alleging a violation of Whistleblower’s Protection Act, Public Employee Freedom of Expression Act, and wrongful discharge/demotion.

Plaintiff and the individual defendants were all current or former employees of the New Hampshire Department of Employment Security (DES). In 2010, plaintiff was promoted to a supervisor position, overseeing 15 employees, including three interns, two of whom were children of some of the defendants. Plaintiff soon received her first performance evaluation, which was positive and included a promise of promotion. Prior to promotion, plaintiff grew concerned about the interns’ behaviors. She expressed these concerns to her supervisor and director. Months later, plaintiff received her second performance evaluation, which was negative, and was not promoted. In August 2011, plaintiff was informed she would be laid off on August 18, 2011, pursuant to a mandatory workforce reduction. Plaintiff accepted a demotion in lieu of the layoff.

Plaintiff appealed her demotion to the Personnel Appeals Board (PAB) on the grounds that it was in retaliation for raising concerns about the interns and alleged other forms of retaliation. She filed a complaint against the DES commissioner with the Executive Branch Ethics Committee for failing to address nepotism and harassment and a whistleblower complaint with the Department of Labor against DES on similar grounds.

In February 2013, the interim commissioner of the DES wrote that he intended to, inter alia, reinstate plaintiff to a position of similar status prior to her demotion. Plaintiff subsequently withdrew her PAB appeal and whistleblower complaint.

In May 2014, plaintiff alleged she was still facing retaliation. She filed an action against defendants alleging violation of the Whistleblowers’ Protection Act, wrongful discharge/demotion, violation of the Public Employee Freedom of Expression Act, intentional infliction of emotional distress (IIED), contractual interference and violation of her rights under the state Constitution and the First Amendment.

Defendants moved to dismiss all claims for failure to state a claim on which relief may be granted and argued that various theories of immunity barred the claims. The trial court granted dismissal as to the wrongful discharge/demotion claim and found the defendants were entitled to immunity on the IIED, contractual interference and state and federal constitutional claims. The trial court granted defendants’ motion for summary judgment on whistleblower and freedom of expression claims. Plaintiff appealed.

On appeal, plaintiff argued the wrongful discharge/demotion claim should not have been dismissed because her employment was terminated when she received notice she would be laid off. The court disagreed on the grounds that any cause of action became moot when she accepted the demotion prior to being laid off.

Plaintiff argued the trial court erred in granting summary judgment to defendants on her freedom of expression claim and holding that public discourse was a requirement for this claim. Plaintiff disagreed, but asserted she had spoken publicly. The court found speaking publicly was a requirement, but found a dispute of material facts regarding public discourse, and concluded the trial court erred in granting summary judgment on the freedom of expression claim and remanded for further proceedings.

Plaintiff argued the trial court erred in granting summary judgment to the defendants on her whistleblower claim. The trial court found that the state Whistleblower’s Protection Act limits relief to equitable remedies and does not authorize compensatory damages and plaintiff had already been provided with proper statutory remedies. Plaintiff argued that the Act cannot be read to preclude compensatory damages as the use of the term “civil suit” broadens the scope of damages, and even if the Act does not authorize compensatory damages, she was entitled to remedies she had not yet received. The court found that the use of the term “civil suit” does not broaden the scope of damages to compensatory damages and plaintiff had not asserted specific facts to show issue for a trial regarding whether the plaintiff received the remedies set forth in the statute.

Plaintiff argued she was entitled to injunctive relief and the trial court erred in finding she had failed to request such relief. The court found the language of RSA 275-E:2, II does not authorize the court to order injunctive relief as a remedy. The court found that the plaintiff was barred from seeking injunctive relief against DES and may only do so against individual defendants under the superior court’s general equity jurisdiction.

Plaintiff argued the trial erred when it rejected her claim that she may pursue a finding of wrongdoing and reasonable attorney’s fees. The court did not address this matter because of the finding that the plaintiff is entitled to pursue injunctive relief.

Plaintiff argued the trial court wrongly dismissed her request for other remedies. The plaintiff failed to provide legal argument sufficient to warrant judicial review.

The court concluded plaintiff was entitled to seek injunctive relief against ongoing retaliation by individual defendants, and remanded the whistleblower protection and freedom of expression claims to the trial court.

 

Leslie H. Johnson, Law Office of Leslie H. Johnson, Center Sandwich, for the plaintiff. Gordon J. MacDonald, attorney general (Lynmarie C. Cusack, senior assistant attorney general), for the defendants.