Justia Labor & Employment Law Opinion Summaries

Articles Posted in New Hampshire Supreme Court

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Petitioner Wayne Preve appealed a New Hampshire Department of Labor (DOL) ruling that he failed to prove that respondent Town of Epsom (Town) violated the New Hampshire Whistleblowers’ Protection Act. Petitioner worked for the Town’s Police Department since 1997, and served as the Chief of Police since 2004. In 2017, an incident occurred between an attorney and a Town police officer at the Circuit Court in Concord. Specifically, the attorney made a comment to the officer that insinuated the officer was a “sex offender.” The officer later informed petitioner of the attorney’s comment. Petitioner testified at the DOL hearing that, as a result of this incident, as well as additional alleged incidents between the attorney and the Town’s Police Department, petitioner believed that the attorney posed an “officer safety” issue. Petitioner decided to file a complaint against the attorney: he collected all of the data relating to the attorney in the police department’s computer database, and sent these materials to the Judicial Conduct Committee (JCC), rather than the disciplinary body that oversees attorneys, the Professional Conduct Committee (PCC). A copy was also sent to the attorney. The attorney complained to the Town about petitioner’s conduct, threatening to sue the Town as a result of, among other things, petitioner’s disclosure of private information regarding the attorney and his family. The JCC returned the materials to the Town, stating that the JCC was not the correct entity with which to file a complaint regarding an attorney. The Town engaged Municipal Resources Inc. (MRI) to investigate petitioner’s conduct. The Town also instructed petitioner not to re-file the materials with the PCC. MRI issued a report concluding that some of petitioner’s actions were improper and may have violated certain statutes. The Town subsequently disciplined petitioner by suspending him for one week without pay and requiring him to attend training. After appealing this disciplinary action through the Town’s internal procedures, the petitioner filed a complaint with the DOL, arguing that the Town wrongfully retaliated against him for reporting the attorney in violation of the Whistleblowers’ Protection Act. The DOL essentially found that the petitioner had not produced “direct evidence that retaliation played a substantial role” in the Town’s decision to discipline him. The New Hampshire Supreme Court found the record supported the DOL’s conclusion. “As the DOL emphasized, the Town did not immediately discipline the petitioner upon learning that he filed a complaint regarding the attorney with the JCC; rather, the Town engaged a third-party, MRI, to conduct an investigation into the petitioner’s actions before imposing discipline. . . . Thus, we cannot say the DOL erred …in ruling petitioner failed to prove that the Town violated the Whistleblowers’ Protection Act.” View "Appeal of Preve" on Justia Law

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Petitioner Steven Silva appealed a New Hampshire Personnel Appeals Board (PAB) decision that upheld decisions of respondent, the New Hampshire Department of Health and Human Services (DHHS), to suspend and subsequently terminate the petitioner’s employment. Petitioner began working at the New Hampshire Hospital in 1999. He was terminated from employment in 2015 for violating the hospital’s sexual harassment policy. In 2016, the PAB found that the petitioner’s 2015 termination did not comply with New Hampshire Administrative Rules, Per 1002.08(d) because DHHS did not provide the petitioner, prior to termination, with all of the evidence it relied upon to justify his termination, and, consequently, he was not given an opportunity to refute the evidence that led to his dismissal. For that reason, the PAB ordered DHHS to reinstate the petitioner retroactively to the date of his termination and award him back pay and benefits. Following the PAB’s order, DHHS resumed paying the petitioner but simultaneously placed him on suspension so that it could conduct a new investigation into the same sexual harassment allegations that formed the basis for the 2015 termination. In 2017, after completing its investigation, DHHS terminated the petitioner again. The petitioner appealed his suspension as well as his 2017 termination to the PAB, arguing that the PAB’s decision overturning his prior termination prevents DHHS from terminating or suspending him for the same conduct. After a hearing on the merits, the PAB upheld the suspension and subsequent termination. On appeal, petitioner argued the statutory reinstatement requirement in the Administrative Rules precluded DHHS from terminating him a second time for the same conduct which gave rise to his 2015 termination. The New Hampshire Supreme Court found that because the PAB’s decision overturning the 2015 termination was based upon DHHS’s failure to satisfy the requirements of Per 1002.08(d) prior to termination, it was not a final judgment on the merits for res judicata purposes. Therefore Silva's argument failed and the Supreme Court affirmed the PAB's decision. View "Appeal of Steven Silva" on Justia Law

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Plaintiff Michelle Clark appealed a superior court order granting summary judgment to defendants the New Hampshire Department of Employment Security (DES), Dianne Carpenter, Darrell Gates, Sandra Jamak, Colleen O’Neill, Tara Reardon, and Gloria Timmons, on plaintiff’s claims alleging a violation of the Whistleblowers’ Protection Act, and the Public Employee Freedom of Expression Act. She also appealed an order dismissing her claim of wrongful discharge/demotion against DES. As a supervisor, plaintiff was responsible for supervising approximately fifteen employees, including three interns, two of whom were children of two named defendants. Plaintiff became concerned about issues relating to her interns’ hours and responsibilities and their behavior in the workplace. Notwithstanding receiving positive performance evaluations, after voicing concerns, plaintiff became concerned her supervisors altered a review she had prepared for an employee under her supervision because the employee had complained about the interns and Timmons’ management. A second evaluation was negative, and she did not receive a promised promotion. Shortly thereafter, plaintiff received a letter from a DES Human Resources Administrator, informing her that she would be laid off pursuant to a mandatory reduction in force. Prior to her layoff date, plaintiff accepted a demotion to the position of Program Assistant I in lieu of a layoff. Thereafter, 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. In this case before the New Hampshire Supreme Court, plaintiff alleged she experienced various forms of harassment in retaliation for voicing her concerns while she was supervisor: 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, plaintiff went on medical leave from December 2011 to February 2012. In addition to her PAB appeal, 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. The Supreme Court reversed the trial court's order relating to plaintiff's ongoing-retaliation claim, and remanded the whistleblower protection claim. Plaintiff’s claim under RSA 98- E:4, I, expressly entitled her to injunctive relief as part of her freedom of expression claim, which was also remanded to the trial court. The Court affirmed as to all other respects of the trial court's order. View "Clark v. New Hampshire Dept. of Employment Security" on Justia Law

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Petitioner Kyle Guillemette challenged a determination by the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services (DHHS) that the notice requirements set forth in RSA 171-A:8, III (2014) and New Hampshire Administrative Rules, He-M 310.07 did not apply when Monadnock Worksource notified Monadnock Developmental Services of its intent to discontinue providing services to petitioner because that act did not constitute a “termination” of services within the meaning of the applicable rules. Petitioner received developmental disability services funded by the developmental disability Medicaid waiver program. MDS was the “area agency,” which coordinated and developed petitioner’s individual service plan. Worksource provides services to disabled individuals pursuant to a “Master Agreement” with MDS. Worksource began providing day services to the petitioner in August 2012. On March 31, 2017, Worksource notified MDS, in writing, that Worksource was terminating services to petitioner “as of midnight on April 30.” The letter to MDS stated that “[t]he Board of Directors and administration of . . . Worksource feel this action is in the best interest of [the petitioner] and of [Worksource].” Petitioner’s mother, who served as his guardian, was informed by MDS of Worksource’s decision on April 3. The mother asked for reconsideration, but the Board declined, writing that because the mother “repeatedly and recently expressed such deep dissatisfaction with our services to your son, the Board and I feel that you and [petitioner] would be better served by another agency . . . .” Thereafter, petitioner filed a complaint with the Office of Client and Legal Services alleging that his services had been terminated improperly and requesting that they remain in place pending the outcome of the investigation of his complaint. Because the New Hampshire Supreme Court concluded that the AAU’s ruling was not erroneous, it affirmed. View "Petition of Kyle Guillemette" on Justia Law

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Petitioners the New England Police Benevolent Association, Inc. (NEPBA) and the State Employees’ Association of New Hampshire, Inc., SEIU, Local 1984 (SEA), appealed a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) dismissing their unfair labor practice complaints filed against respondent State of New Hampshire. After several bargaining sessions, the State rejected all wage proposals, explaining that “the Governor was not offering any wage increases . . . given anticipated increases in prescription drug costs in the healthcare market.” As a result, the Teamsters and the NHTA declared an impasse. Although no other unions declared an impasse, the State took the position that all five unions must proceed to impasse mediation. The SEA challenged the State on this position, and subsequently, petitioners each filed complaints with the PELRB. During the pendency of these complaints, the State advised all five unions that it would select a mediator and continued to assert that all of the unions must participate in impasse mediation “because the issues to be resolved affected all bargaining units.” The PELRB consolidated the petitioners’ complaints and found in a 2-1 vote that RSA 273-A:9, I, “requires all five unions to utilize the Union Committee format at the bargaining table and during impasse resolution proceedings until such time as the common terms and condition[s] of employment are settled.” The PELRB, therefore, dismissed the complaints and ordered the petitioners to coordinate with the other unions “to determine the forum in which negotiations will go forward.” Petitioners unsuccessfully moved for rehearing, and this appeal followed. Finding no reversible error in the trial court's dismissal of petitioners' complaints, the New Hampshire Supreme Court affirmed the PELRB. View "Appeal of New England Police Benevolent Association, Inc." on Justia Law

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This case arose out of the termination of petitioner James Cole by the New Hampshire Department of Information Technology (DOIT). One of Cole’s initial assignments was overhauling an Account Security Form (ASF). This was intended to be a short-term project. Although some aspects of Cole’s work on this project were satisfactory, his incorrect processing of other aspects of the overhaul resulted in audits being conducted on the forms to ensure accuracy. Cole was also initially assigned a “Wireless Access Point” Project (WAP). This project required communication with customers who were requesting installation of a WAP, and coordination with the persons who were to install the WAPs. However, Cole’s communications were inadequate. This resulted in customers not knowing how to use the WAPs after they were installed, or even that the WAPs had been installed. Cole was given three warnings over the course of his employment. The New Hampshire Personnel Appeals Board (PAB) upheld Cole’s termination. On appeal, Cole argued his termination did not comply with New Hampshire Administrative Rules, Per 1002.08 because he did not receive the three letters in accordance with New Hampshire Administrative Rules, Per 1002.04 for the same or substantially similar conduct or offense. DOIT argued the New Hampshire Supreme Court lacked subject matter jurisdiction to decide this case, and, in the alternative, that Cole’s termination complied with Per 1002.08 and Per 1002.04. Finding that it had jurisdiction, the Supreme Court affirmed the PAB’s decision. View "Appeal of James Cole" on Justia Law

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Petitioner State Employees’ Association of New Hampshire, Inc., SEIU, Local 1984 (Union), appealed a New Hampshire Public Employee Labor Relations Board (PELRB) order finding respondent State of New Hampshire did not commit an unfair labor practice by prospectively eliminating salary enhancements for newly hired Sununu Youth Services Center (SYSC) employees under the parties’ collective bargaining agreement (CBA). Based on its review of the PELRB record, the New Hampshire Supreme Court concluded that, as a matter of law, the Union’s withdrawal of a proposal during the mediation phase that led to the adoption of the 2015-2017 CBA established that elimination of the salary enhancements was a bargained-for result of the new CBA. View "Appeal of State Employees' Association of New Hampshire, Inc., SEIU, Local 1984" on Justia Law

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Petitioners Northern New England Telephone Operations, LLC and FairPoint Logistics, Inc. (collectively, “FairPoint”), appealed the final decision of the New Hampshire Department of Employment Security (NHES), claiming that it erred in rulings that: (1) upheld the decision of the commissioner of NHES to reopen the ruling of the appeal tribunal which found (a) certain unionized employees of FairPoint (claimants) were not entitled to collect unemployment benefits during the period they were on strike against the company because the strike resulted in a “stoppage of work” and (b) strike pay received by some of the workers constituted income deductible from their benefits; (2) affirmed a subsequent order of a second appeal tribunal which found that benefits were payable because the strike did not result in a stoppage of work; and (3) reversed the second tribunal’s determination that strike pay was deductible from benefits. After review, the New Hampshire Supreme Court reversed the appellate board’s decision, reinstated in part the order of the first appeal tribunal, and found it unnecessary to address the issue of strike pay. The Court found the commissioner erred in his determination that the first tribunal’s decision resulted from a mistake of law. Contrary to the commissioner’s view that the tribunal based its decision merely on what he described (but did not define) as a “negative impact” analysis, the Court concluded the tribunal had sufficient evidence before it from which it could find that the strike resulted in a substantial curtailment of FairPoint’s operations and thus constituted a stoppage of work under RSA 282-A:36. For the same reason, the Court also concluded the appellate board erred as a matter of law insofar as it ultimately upheld the commissioner’s decision to reopen and did not affirm the decision of the first tribunal with respect to the stoppage of work issue. Because the stoppage of work disqualified claimants from receiving unemployment benefits during the period when they were on strike, it was unnecessary to address the issue of whether the strike pay received by some of the claimants constituted deductible wages. View "Appeal of FairPoint Logistics, Inc." on Justia Law

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This appeal stemmed from respondent’s, the New Hampshire Division of State Police (Division), termination of petitioner State Trooper David Appleby, based on petitioner’s abandonment of his extra-duty detail escorting an oversized truck and his conduct in the subsequent investigations of that incident. Petitioner worked an extra-duty detail in which he was assigned to escort an oversized truck from Claremont to the Massachusetts border in Plaistow. The truck’s departure was delayed due to mechanical problems, and petitioner became concerned that he would not be able to complete the escort and also arrive on time for his regularly scheduled duties at Troop F, located in northern New Hampshire. After unsuccessfully seeking substitute coverage, petitioner escorted the truck to exit 7 on Route 101. In order to arrive on time for his regular duties, petitioner abandoned the detail before the truck reached the Massachusetts border. Petitioner appealed his termination to the New Hampshire Personnel Appeals Board (PAB), which reinstated him. The Division appealed, arguing that the PAB’s decision to reinstate petitioner was unjust and unreasonable because: (1) the standard set forth in RSA 21-I:58, I (2012) did not permit the PAB to substitute its judgment for that of the appointing authority; and (2) the PAB failed to consider the factors provided for in the applicable personnel rule and relied upon by the Division in reaching its termination decision, including the petitioner’s prior disciplinary history. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Appeal of New Hampshire Division of State Police" on Justia Law

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Plaintiff Steven Grady appealed a superior court order granting summary judgment to defendants, Jones Lang LaSalle Construction Company, Inc. (Jones Lang), and Liberty Mutual Insurance Company and Liberty Mutual Group, Inc. (collectively, “Liberty Mutual”), in this tort action for damages on the ground that defendants did not owe plaintiff a duty of care to provide supervision, training, or safety equipment. In 2012, Liberty Mutual contracted with Jones Lang to complete a construction project on premises owned by Liberty Mutual in Dover (the general contract). In January 2013, Jones Lang subcontracted the roofing work for the project (the subcontract) to A&M Roofing and Sheet Metal Company, Inc. (A&M). Plaintiff was an A&M employee when A&M began working on the project. On a cold, windy February 21, 2013, plaintiff began to perform flashing and insulation work on the roof. Because of the cold weather, plaintiff wore cotton gloves to keep his hands warm while he worked. After igniting a torch a few times with a lighter without incident, he lit the torch again as a gust of wind came, and the glove on his right hand ignited. As a result, plaintiff was injured. Sometime thereafter, plaintiff received workers’ compensation benefits from A&M for his injuries. In February 2016, he brought the present action for negligence against defendants. In May 2017, the trial court granted summary judgment to the defendants, ruling that they did not owe a duty of care to the plaintiff. Finding no reversible error in that judgment, the New Hampshire Supreme Court affirmed. View "Grady v. Jones Lang Lasalle Construction Co., Inc." on Justia Law