As a supervisor, she was responsible for supervising approximately fifteen employees, including three interns, two of whom were children of two named defendants. In March 2011, the plaintiff received her first performance evaluation for the period of October 2010 through January 2011. The performance evaluation was positive and, according to the plaintiff, her supervisor, Timmons, promised her that she would be promoted to labor grade 24 "in a few weeks."
During this timeframe, the plaintiff became concerned about issues relating to her interns' hours and responsibilities and their behavior in the workplace. The plaintiff communicated some of these concerns to Timmons and Carpenter, the director of the Unemployment Compensation Bureau. According to the plaintiff, she sought to address her concerns regarding the interns with her union representatives, but Timmons and Carpenter tried to prevent her from doing so.
At some point, the plaintiff also suspected that her supervisors had altered a review she had prepared for an employee under her supervision because the employee had complained about the interns and Timmons' management. The plaintiff alleges that a state senator was going to attend the employee's review, but Timmons ordered the plaintiff not to speak to the senator. The plaintiff contends that she was therefore not permitted to attend the employee's review or speak to the senator.
In July 2011, the plaintiff received her second performance evaluation for the period covering January through April 2011. The second evaluation was negative, and she did not receive her promised promotion. Shortly thereafter, on August 2, 2011, the plaintiff received a letter from a DES Human Resources Administrator, informing her that she would be laid off on August 18, 2011. Pursuant to a mandatory reduction in force, the other employees in her unit were also laid off. However, prior to her layoff date,
In September 2011, the plaintiff appealed her demotion to the New Hampshire Personnel Appeals Board (PAB) through a grievance representative from her union. In her appeal, she alleged that she was unlawfully demoted in response to raising concerns about the hours and behavior of the interns. During the pendency of the appeal, she was represented by counsel provided by her union and discussed issues relating to the interns with other representatives from her union, including the union president.
The plaintiff alleges that she experienced various forms of harassment during this period, which she contends was for the purpose of retaliation: her car was "egged" in the DES parking lot, her home mailbox was smashed, and she received anonymous phone calls and mail at home and at work. As a result of distress from these incidents, the plaintiff went on medical leave from December 2011 to February 2012.
In addition to her PAB appeal, the plaintiff communicated with other state agencies about the intern issues and the harassment she was experiencing: in May 2012, she filed a complaint with the New Hampshire Executive Branch Ethics Committee against Reardon for failing to address misuse of the hiring system, nepotism, and harassment; in June 2012, she filed a whistleblower complaint with the New Hampshire Department of Labor against DES on similar grounds; and, at some point, she participated in an investigation of DES by the New Hampshire Attorney General's Office.
In July 2012, the Governor and Executive Council appointed George Copadis as interim commissioner of DES. A few weeks later, Copadis met with the plaintiff to discuss the issues she had with the agency. Subsequently, by letter dated February 6, 2013, Copadis informed the plaintiff that he intended to reinstate her to a position of "like seniority, status and pay equal to that which [she] had" prior to her demotion, provide her with back pay from her date of demotion through February 7, 2013, and remove the negative performance evaluation from her personnel file. The letter stated that the plaintiff would "continue in [her] role as a Quality Control Investigator," a position in labor grade 21, which the plaintiff obtained in November 2012, but would be moved from step 1 to step 7. Copadis also recommended her for the Level 1, Public Supervisor Program in the 2013 Certified Public Manager Course, which would allow her to "enhance management skills and increase knowledge of government practices."
Following this decision, the plaintiff received back pay and Medicare and retirement benefits, and she withdrew her PAB appeal. At some point, she also withdrew her whistleblower complaint.
The plaintiff currently holds the position of Quality Control Investigator at step 8, the highest step in labor grade 21. According to the plaintiff, she does not have any supervisory duties and cannot receive a wage increase unless she becomes a supervisor. She has applied unsuccessfully for supervisory positions, and contends that she continues to experience harassment by certain unknown DES employees.
The defendants moved to dismiss all of the plaintiff's claims for failure to state a claim for which relief may be granted. The defendants also argued that various theories of immunity bar the plaintiff's action. The Trial Court (Smukler, J.) granted the motion as to the plaintiff's wrongful discharge/demotion claim, ruling that her complaint failed to state a claim for which relief may be granted because: (1) she accepted a different position with DES when her unit was subject to the layoff and therefore remained employed with DES; and (2) New Hampshire does not recognize a cause of action for wrongful demotion. With respect to the remaining claims, the trial court ruled that her complaint was "susceptible of a construction that would permit recovery" but denied the motion without prejudice to allow the court to hold an evidentiary hearing to determine whether the remaining claims were barred by immunity. Following a six-day evidentiary hearing, the Trial Court (Mangones, J.) ruled that the defendants were
The defendants then moved for summary judgment on the plaintiff's remaining whistleblower and freedom of expression claims. The Trial Court (McNamara, J.) granted the motion, finding that: (1) the plaintiff has already received the statutory remedies available to her under RSA chapter 275-E; and (2) the plaintiff failed to establish that she "engaged in public discourse" on issues relating to DES, which the trial court ruled was required under RSA chapter 98-E. The plaintiff unsuccessfully moved for reconsideration of the trial court's summary judgment order, and this appeal followed.
I. Motion to Dismiss
We first address the plaintiff's arguments challenging the trial court's dismissal of her wrongful discharge/demotion claim. We note that the plaintiff does not appeal the trial court's dismissal of her IIED and interference with contractual relations claims or her state and federal constitutional claims.
In reviewing a trial court's grant of a motion to dismiss, we consider whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery. Cluff-Landry v. Roman Catholic Bishop of Manchester,
We assume, without deciding, that a wrongful discharge claim by a classified employee may be brought against the State. In dismissing the defendant's wrongful discharge claim, the trial court determined that, based upon the facts in the complaint, the plaintiff's employment with DES did not end because she took another position with DES when her unit was subject to the layoff. Therefore, the trial court concluded that she failed to state a claim for which relief may be granted "[b]ecause a wrongful termination case necessarily requires a plaintiff to be terminated from employment." As to the plaintiff's claim that she was wrongfully demoted, the trial court ruled that "New Hampshire does not recognize a cause of action for 'wrongful demotion,' " and declined her invitation to adopt such a cause of action.
In Cluff-Landry, we held that the plaintiff's cause of action for wrongful discharge began to accrue, for statute of limitations purposes, when she received notice that her contract would not be renewed, rather than on her last day of employment, which was over two months later. Cluff-Landry,
Here, the plaintiff's wrongful discharge claim is based upon DES's decision to lay her off. However, unlike the employer in Cluff-Landry, DES offered the plaintiff a different position within the agency in lieu of the layoff. By extending this offer, DES, in effect, withdrew its decision to lay her off. Therefore, to the extent that the plaintiff may have had a cause of action for wrongful discharge at the time she received notice of the impending layoff, that cause of action became moot when DES offered her a demotion before the layoff took effect. See Sullivan v. Town of Hampton Bd. of Selectmen,
The plaintiff argues that we should consider her acceptance of the demotion as if she had applied for a job elsewhere because she accepted the demotion only to
The plaintiff next argues that "[t]he theory behind wrongful discharge" supports extending it to encompass circumstances in which an employer has demoted, but not terminated, an employee for retaliatory purposes. Raising an issue of first impression for this court, the plaintiff invites us to recognize a cause of action for wrongful demotion. We decline her invitation.
As in any case in which we are asked to recognize a new cause of action, it is a question of policy whether it would be wise to provide the relief that the plaintiff seeks. Aranson v. Schroeder,
We begin by addressing the first step: whether an employee's interest in maintaining her position without fear of demotion based on bad faith, malice, or retaliation should receive legal recognition. Aranson,
In balancing these same interests, we acknowledge an employee's interest in maintaining his or her position without
Moreover, we agree with the Illinois Supreme Court that replacing the element of "discharge" with "demotion" has the potential to render an otherwise narrow cause of action into an "ill-defined, and potentially all-encompassing concept of retaliatory conduct or discrimination."
Although the term "demotion" may appear amenable to clear definition, many questions arise: Is a demotion in title or status, but not salary, actionable? Could a transfer from one department to another be considered a demotion? Would it be fair to characterize as a demotion a significant increase in an employee's duties without an increase in salary?
The plaintiff urges us to consider cases from two other jurisdictions that have extended wrongful discharge to encompass claims of retaliatory demotion. See Trosper v. Bag 'N Save,
Accordingly, in balancing the employee's interest in employment stability and the employer's interest in running its business as it sees fit, we conclude that adopting wrongful demotion as a cause of action would interfere with the employer's right to manage its workplace, including its decisions relating to the duties, responsibilities, and pay of its employees. Because we determine that the interest that the plaintiff asserts should not receive legal recognition in the common law, we need not address the second step in this inquiry. Aranson,
Because we conclude that there is no common law cause of action for a wrongful demotion, we need not address the State's argument that common law employment claims are limited to "at-will" employees and are not available to public employees in classified, merit-based systems.
We turn next to the plaintiff's arguments that the trial court erred in granting summary judgment to the defendants on her freedom of expression and whistleblower claims.
In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Weaver v. Stewart,
A. Freedom of Expression Act
Pursuant to RSA chapter 98-E (2013), New Hampshire's Public Employee Freedom of Expression Act, every public employee has "a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies." RSA 98-E:1. The stated intention of this chapter is "to balance the rights of expression of the employee with the need of the employer to protect legitimate confidential records, communications, and proceedings."
In granting summary judgment to the defendants on this claim, the trial court determined that the plaintiff failed to demonstrate that she "engaged in public discourse" on matters concerning DES because she provided no evidence "that she discussed matters with anyone outside the State government" and raised concerns only with "the people to whom she would be expected to raise her concerns as a State employee." As for the plaintiff's attempt to speak with the state senator, the trial court found that, had the plaintiff spoken with her, the discussion would not have fallen under the statute because she would have spoken to the senator in a
The plaintiff argues that the trial court erred in granting summary judgment on her freedom of expression claim because the statute does not require her to speak publicly. She further asserts that she nonetheless has, "at times," spoken publicly.
The plaintiff's argument requires that we interpret the language of the statute. Statutory interpretation is a question of law, which we review de novo. Roy v. Quality Pro Auto, LLC,
We have previously held that RSA 98-E:1 provides broader protections to public employees than does federal law because the statute protects expression on all matters relating to the public employer and its policies except for matters that are confidential or privileged in nature. Booker,
The statute does not define the word "publicly," and thus we look to its common usage, using the dictionary for guidance. State v. Brawley,
The plaintiff points to language in RSA 98-E:2 to assert that the statute does not require expression to occur in "a particular forum" because the freedom of "disclosure" and "full criticism" are "expansive." See RSA 98-E:2 ("No person shall interfere in any way with the right of freedom of speech, full criticism, or disclosure by any public employee."). These words, however, refer to the types of expression that are protected by the statute; they do not have any bearing on whether such disclosures or full criticism
Our inquiry does not end here, however, because the plaintiff contends that she did, "at times," speak publicly. In granting summary judgment to the defendants on this claim, the trial court concluded that the plaintiff failed to provide evidence that she "engaged in public discourse" based only on the fact that she communicated with state employees to whom she would have been expected to speak; the trial court did not determine whether those communications occurred "publicly" within the meaning of the statute. Construing "publicly" in light of the broad protections of the statute, see Booker,
Here, the plaintiff asserts that all of her conversations are protected by the statute, including her conversations with her own supervisors. Based on the plain meaning of "publicly," we cannot conclude that the expression protected by the statute was intended to include private conversations behind closed doors, as such conversations would not be accessible to the public unless a public record of the meeting was created and published. To interpret the statute otherwise would require us to treat the word "publicly" as if it were superfluous. See Duran,
We also must consider the plaintiff's assertion that she was barred from speaking with a state senator about an allegedly falsified review of one of her subordinates. The trial court concluded that any discussion with the senator would have been confidential and conducted only in the plaintiff's capacity as a supervisor. However, our review of the record reveals a genuine dispute of material fact as to this issue. In the plaintiff's affidavit, she states:
Timmons ordered me not to speak to [the state senator], who was going to [the employee's] review, as Timmons did not want me to tell [the employee] thather review had been altered from what I, [as the employee's] supervisor had written. It was altered because of [the employee's] complaints about interns, and Timmons' management. I refused to sign [the employee's] falsified review and was not allowed to attend the review, or talk to the Senator.
Based on this allegation, viewed in the light most favorable to the plaintiff, Timmons' order not to speak with the senator was not limited to the review; rather, her order prohibited the plaintiff from speaking to the state senator generally. Furthermore, according to the plaintiff, Timmons gave this order for the purpose of prohibiting the plaintiff from discussing the agency's allegedly retaliatory actions toward another employee. Thus, even assuming the review that the plaintiff sought to attend was "confidential," Timmons' directive to the plaintiff was not limited to the review or to confidential information that may have been discussed at the review. Instead, Timmons' order barred her from speaking to the state senator at all.
Moreover, the fact that the plaintiff was the employee's supervisor at the time she attempted to speak to the state senator does not, in and of itself, suggest that the plaintiff was speaking solely on behalf of her employer. See Booker,
For these reasons, we conclude that the trial court erred in granting summary judgment to the defendants on the plaintiff's freedom of expression claim and accordingly remand for further proceedings consistent with this opinion.
B. Whistleblowers' Protection Act
We now turn to the plaintiff's challenge to the trial court's granting of summary judgment to the defendants on her whistleblower claim. New Hampshire's Whistleblowers' Protection Act (the Act) prohibits employers from retaliating against an employee for reporting or refusing to participate in what he or she reasonably believes is a violation of the law, or for participating in an investigation into allegations that the employer has violated the law. RSA 275-E:2, I(a)-(c); Appeal of N.H. Dept. of Employment Security,
The statute expressly authorizes equitable remedies. RSA 275-E:2, II; RSA 275-E:4, I. When an employee brings a civil suit under RSA 275-E:2, II, "[t]he court may order reinstatement and back-pay, as
Though the plaintiff filed a whistleblower complaint with the Department of Labor, she withdrew her complaint and later brought her whistleblower claim to superior court under RSA 275-E:2, II. In doing so, she sought numerous forms of relief, including compensatory damages, back pay, fringe benefits, front pay, reinstatement to her former position or one that is "comparable or better," mileage reimbursements, replacement of depleted sick and annual leave balances, counseling costs, reasonable attorney's fees, and injunctive relief. Granting summary judgment in favor of the defendants, the trial court made no determination as to whether there was
The plaintiff does not dispute that she was reinstated to a position in the same labor grade and pay rate as the position she held before she accepted the demotion, nor does she dispute that she received an amount in back pay from DES equal to the amount she would have earned had she remained in labor grade 21, step 7. However, she argues that the trial court erred in granting summary judgment, because: (1) the Act cannot be construed to preclude compensatory damages based on its plain language and remedial nature; and (2) even if the Act does not authorize compensatory damages, she is entitled to seek a number of equitable remedies authorized by the Act that she has not received. We begin with the plaintiff's argument on compensatory damages.
In viewing the statute as a whole, it expressly authorizes only equitable remedies. RSA 275-E:2, II; RSA 275-E:4, I; see also Appeal of Bio Energy,
Although the statute does not expressly authorize compensatory damages, the plaintiff argues that the phrase "civil suit" in RSA 275-E:2, II was "intended to broaden the scope of [the] relief" to include damages that
Next, the plaintiff argues that, even if the Act does not authorize compensatory damages, the trial court erred in determining that she already received the equitable remedies available under the Act. The plaintiff first asserts that she should be allowed to pursue reinstatement to a higher labor grade and back pay consistent with that labor grade, because there is a genuine dispute of material fact as to whether she would have been promoted to labor grade 24 if the defendants had not unlawfully retaliated against her. As support for this argument, the plaintiff relies upon Timmons' verbal promise that she would be promoted to labor grade 24 and the labor grade 24 classification of other supervisors in the department, who she claimed to be "outperforming."
To defeat a motion for summary judgment, the opposing party's affidavit must contain more than general allegations or denials, and instead must set forth specific facts showing a genuine issue for trial. Hill-Grant Living Trust v. Kearsarge Lighting Precinct,
New Hampshire has a complex, merit-based state employee classification system that requires adherence to specific procedures to reclassify a position or promote an employee. See generally N.H. Admin. R., Per ch. 300. In this context, a verbal promise made by Timmons, an intermediate supervisor, that the plaintiff would be promoted to a higher labor grade
Similarly, whether other employees in the plaintiff's unit held supervisory positions classified in labor grade 24 does not alone provide a basis for a fact-finder to determine that she would have been assigned to a higher labor grade because she provides no evidence to show that she was performing the same duties or had the same responsibilities as the employees who held those positions. Classifications within the state employee classified service must be "based upon similarity of duties performed and responsibilities assumed so that the same qualifications may reasonably be required for, and the same schedule of pay may be equitably applied to, all positions in the same classification." RSA 21-I:42, II (Supp. 2018). Thus, while other supervisory positions in her unit may have been classified in labor grade 24, the plaintiff provides no support for her conclusory assertion that she was "outperforming" other supervisors. See N.H. Admin. R., Per 303.01(b) (setting forth factors the Director of Personnel must consider in determining whether a position in the classified service might be improperly allocated or classified). Therefore, the trial court properly determined that there was no genuine issue of material fact as to whether the plaintiff received the remedies - reinstatement and back pay - set forth in the statute.
Next, the plaintiff argues that she is entitled to injunctive relief under the statute and challenges the trial court's determination that she failed to request injunctive relief in her complaint. In denying reconsideration of its order granting summary judgment to the defendants, the trial court concluded that the plaintiff failed to request injunctive relief in her complaint. Contrary to this finding, however, the plaintiff's complaint expressly requests this equitable relief.
Nevertheless, the defendants argue that the plaintiff is not entitled to an injunction as a remedy because she chose to bring her claim in superior court under RSA 275-E:2, II, which does not expressly authorize injunctive relief, rather than maintain her whistleblower claim with the Department of Labor under RSA 275-E:4, I. The plaintiff argues that "[i]t defies common sense" that the Department of Labor could provide greater relief in proceedings than the superior court.
The express remedies authorized in RSA 275-E:2, II - reinstatement, back pay, and reasonable attorney's fees - allow the superior court to
Given the Act's purpose to encourage employees to come forward, see Bio Energy,
Nevertheless, the superior court is a court of general jurisdiction with authority to entertain equitable actions where no adequate remedy at law exists. Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman,
The defendants nonetheless argue that any claim for injunctive relief against DES is barred by sovereign immunity because the Act does not expressly authorize the court to issue injunctive relief. In New Hampshire courts, a state agency is immune from suit unless there is an applicable statute waiving the State's sovereign immunity.
Our conclusion that the plaintiff may seek injunctive relief against ongoing forms of retaliation is based upon the superior court's general equity jurisdiction rather than an applicable statute. Although RSA 275-E:2, II may constitute a waiver of DES's immunity from suit under the Act, the terms and conditions on which the State consents to be sued include only three remedies: reinstatement, back pay, and reasonable attorney's fees. Therefore, we agree with the defendants that the plaintiff is barred from seeking injunctive relief against DES and may only seek such relief against the individual defendants.
The plaintiff next argues that the trial court erred when it rejected her claim that she may pursue a finding of wrongdoing and reasonable attorney's fees. Because we conclude that the plaintiff is entitled to pursue injunctive relief based upon the court's general equity jurisdiction which requires a finding on the merits, at least as to the alleged ongoing retaliation, we need not address the trial court's ruling on this issue at this time.
Finally, the plaintiff identifies several other remedies she requested in her complaint that the trial court dismissed as unavailable to her under RSA chapter 275-E. These remedies address "lost benefits," loss of future earning capacity, depletion of
Because we conclude that the plaintiff is entitled to seek injunctive relief against ongoing retaliation by the individual defendants based upon the court's general equity jurisdiction, we remand the plaintiff's whistleblower
All arguments the plaintiff raised in her notice of appeal, but did not brief, are deemed waived. In re Estate of King,
Affirmed in part; reversed in part; and remanded.
LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
Notes
"Labor grade" represents the salary range established for each class of positions in the state classified service for state employees. N.H. Admin. R., Per 102.13, 102.17, 102.37, 102.57, 102.65. At the time of this appeal, the 35 labor grades each contain eight "steps." RSA 99:1-a (Supp. 2018). But see Laws 2018, 162:6 (eff. Jan. 4, 2019) (setting forth nine steps). The steps represent "the intervals between the minimum and the maximum range of pay established for each [labor] grade." N.H. Admin. R., Per 102.66. Step 1 has the lowest salary of each labor grade and step 8 has the highest. RSA 99:1-a.
We note that there is nothing in the record before us that indicates that any of the individual defendants have been dismissed from the plaintiff's whistleblower protection and freedom of expression claims.