201 A.3d 652
N.H.2019Background
- Clark, a long‑time DES employee, was promoted to a supervisor (labor grade 21, step 7) in Oct 2010, later received a negative evaluation, and accepted a demotion (Program Assistant I, grade 12) in Aug 2011 to avoid layoff.
- Clark raised concerns about interns (including nepotism and misuse of hiring), sought union involvement, filed complaints with Executive Ethics Committee and Dept. of Labor, and participated in an AG investigation; she also alleged workplace harassment and anonymous attacks leading to medical leave.
- In Nov 2012–Feb 2013 interim DES leadership offered reinstatement to a grade‑21 position, restored pay/back benefits, removed negative evaluation, and Clark withdrew her PAB and whistleblower complaints.
- Clark sued (May 2014) alleging whistleblower Act violations (RSA ch. 275‑E), wrongful discharge/demotion, RSA ch. 98‑E (public employee freedom of expression), IIED, interference with contract, state/federal constitutional claims, and sought equitable and compensatory relief.
- Trial court dismissed wrongful discharge/demotion and several other claims on motion to dismiss and immunity grounds, then granted summary judgment for defendants on RSA 98‑E (finding no “public” speech) and on the whistleblower claim (finding Clark had received statutory remedies and that compensatory damages are not authorized by RSA 275‑E:2, II).
- Supreme Court: affirmed dismissal of wrongful demotion/discharge claim; reversed summary judgment on RSA 98‑E (genuine issues whether some communications were "publicly" made); remanded whistleblower claim limitedly: Clark may seek injunctive relief against individual defendants under court equity jurisdiction, but not injunctive relief against State agency due to sovereign immunity; compensatory damages under the Act denied as not authorized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wrongful demotion/discharge cause exists/common‑law wrongful demotion | Clark: demotion for retaliatory reasons should be actionable like wrongful discharge | DES: employment continued (acceptance of demotion), NH doesn't recognize wrongful demotion | Court: no common‑law wrongful demotion; wrongful discharge requires termination; affirmed dismissal |
| Whether RSA 98‑E protects Clark's communications (requirement of "publicly") | Clark: statute doesn't require public forum; some of her communications were public | DES: Clark spoke only to internal state employees, not publicly | Court: "publicly" means observable or accessible to public; genuine issues exist whether certain complaints/filings and barred contact with a senator were "public"; reversed summary judgment and remanded |
| Whether RSA 275‑E authorizes compensatory damages or other unavailable remedies | Clark: "civil suit" implies damages and broader relief; she seeks compensatory/front pay, benefits, etc. | DES: statute authorizes only equitable remedies enumerated (reinstatement, back pay, attorney fees); compensatory damages not authorized | Court: RSA 275‑E:2, II authorizes only equitable remedies listed; compensatory damages not available; summary judgment on damages affirmed |
| Whether plaintiff may obtain injunctive relief and against whom (sovereign immunity) | Clark: seeks injunctions for ongoing harassment and other relief despite bringing suit in superior court | DES: superior court lacks authority under statute to award injunctive relief here; sovereign immunity bars injunctions against State agency | Court: superior court may enjoin ongoing retaliation under its general equity power, but sovereign immunity bars injunctive relief against State agency — injunctive relief may proceed against individual defendants; remanded |
Key Cases Cited
- Cluff‑Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670, 156 A.3d 147 (N.H. 2017) (accrual of wrongful discharge claim upon notice of nonrenewal when all elements present)
- Pickering v. Board of Education, 391 U.S. 563 (U.S. 1968) (First Amendment balances public employee speech on matters of public concern)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (speech pursuant to official duties may not receive First Amendment protection)
- Givhan v. Western Line Consolidated School District, 439 U.S. 410 (U.S. 1979) (private speech to officials can be constitutionally protected)
- Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (N.H. 1974) (recognition of wrongful discharge cause of action balancing employer and employee interests)
- Karch v. BayBank FSB, 147 N.H. 525, 794 A.2d 763 (N.H. 2002) (constructive discharge doctrine and limits of wrongful discharge)
- Trosper v. Bag 'N Save, 273 Neb. 855, 734 N.W.2d 704 (Neb. 2007) (jurisdictions extending wrongful discharge principles to retaliatory demotion)
- Brigham v. Dillon Companies, Inc., 262 Kan. 12, 935 P.2d 1054 (Kan. 1997) (consideration of retaliatory demotion claims and policy concerns)