Clark v. New Hampshire Dept. of Employment SecurityAnnotate this Case
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.