2005-686, GLORIA JEAN LACASSE v. SPAULDING YOUTH CENTER

The plaintiff, Gloria Jean Lacasse, appeals an order of the

Nancy E. Boudreau on the brief, and Mr. Broth orally), for the defendant. Devine, Millimet & Branch, P.A., of Manchester (Mark T. Broth and

James W. Kennedy on the brief, and Mr. Lafrance orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Normandin, Cheney & O'Neil, PLLC, of Laconia (James F. Lafrance and

editorial errors in order that corrections may be made before the opinion goes No. 2005-686 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Belknap Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

two-week paid leave. that an investigation could take longer than two weeks. The plaintiff took the

disclosed her performance evaluation to Wendy.

she attributed to stress. attorney and would not return to work. Her attorney then asked Spaulding to plaintiff also consulted a doctor that day regarding various physical symptoms On October 1 p. 2 2, the plaintiff informed Spaulding that she had hired an resources, informed the plaintiff that an investigation was underway. The served. the next day. On September 20, Darnell Pestana, the director of human

and that additional time might be available. She also informed the plaintiff Pestana told the plaintiff she could take two weeks paid administrative leave reconsider resigning and give Spaulding a chance to investigate her complaint. afternoons. The next day, another employee told the plaintiff that Couto had weeks notice. The next day, Pestana called the plaintiff and asked her to addition, Couto told the plaintiff she could no longer leave early on Friday On October 1, the plaintiff tendered her letter of resignation, giving two her written review was less satisfactory than it had been in previous years. In

and employees and yelled at her “for several minutes” about a snack she had September 18 that she was having a problem with Couto, and filed a complaint The plaintiff informed Spaulding’s human resources department on

sandwich wrong,” and gave her the cold shoulder. review from Couto. Couto was critical of the plaintiff’s job performance, and That same day, Couto “yelled at the plaintiff for making a peanut butter On September 17, p. 2 2001, the plaintiff received her annual performance

she left the task for Couto’s return on August p. 2 27, 2001. Thereafter, Couto chastised the plaintiff while she was serving food to residents the next two days and failed to provide her with specific work assignments. taking food home from the kitchen. Couto again treated the plaintiff gruffly for September 6, however, the plaintiff relayed to Couto a concern about Wendy The next day, Couto’s treatment of the plaintiff returned to normal. On

filled out, in her view, inaccurately. The plaintiff voiced her concerns to Couto. On September 4, the plaintiff noticed that Michelle’s time sheet had been

payroll because she questioned Michelle and Wendy Couto’s hours. Instead, p. 2 2001, while filling in for Couto, the plaintiff refused to submit time sheets to Couto and good working relations with the other kitchen staff. On August 24, August 2001, the plaintiff had an excellent relationship with Spaulding and From the commencement of her employment in September 1999 through p. 3 3 facts decision. We review the trial court’s application of the law to the

refusing to do something that public policy would condemn.” that no reasonable person in the plaintiff’s position would have felt compelled judgment as a matter of law, we will affirm the trial court’s terminated for performing an act that public policy would encourage or for The plaintiff argues that the trial court erred in ruling as a matter of law was motivated by bad faith, retaliation or malice; and (2) that she was Manchester, 151 N.H. p. 3 30, 42 (2004) (quotations omitted). must generally be ongoing, repetitive, pervasive, and severe.” Porter v. City of minor abuse of an employee[;] . . . [r]ather, the adverse working conditions omitted). Constructive discharge is not established by showing “[r]elatively intolerable that a reasonable person would feel forced to resign,” id. (quotation when an employer renders an employee’s working conditions so difficult and statute. may be satisfied by proof of a constructive discharge, see id., which “occurs BayBank FSB, 147 N.H. 525, 536 (2002). The termination element of the claim

moving party. If our review of the evidence does not reveal a such a claim, a plaintiff must prove: “(1) [that] the termination of employment properly drawn from them, in the light most favorable to the non- We first address the plaintiff’s wrongful discharge claim. To succeed on

omitted). effective immediately because her doctor had advised her not to return to work. White v. Asplundh Tree Expert Co., 151 N.H. 544, 547 (2004) (citations

de novo. negligent supervision claim, finding it barred by the workers’ compensation

constructive discharge.” The court also granted summary judgment on the incidents of mistreatment alleged by the plaintiff “do not rise to the level of granted summary judgment on the wrongful discharge claim, finding that the

consider the affidavits and other evidence, and all inferences When reviewing a trial court’s grant of summary judgment, we

October 26, the plaintiff informed Spaulding that her resignation would be Our standard of review is well established: her to provide a medical release as a condition of returning to work. On the plaintiff until October 26, 2001, to rescind her resignation, but requiring See RSA 281-A:8 (Supp. 2005). The plaintiff appeals.

negligent supervision. Spaulding moved for summary judgment. The court The plaintiff sued for, among other things, wrongful discharge and

claims and clarification regarding her state of health. Spaulding agreed, giving stay the plaintiff’s resignation, with or without pay, pending investigation of her mistreatment.

p. 4 person would resign at that point rather than endure the continued

that would continue until she quit. A jury could further find that a reasonable

had stopped and that Ms. Couto was now ignoring her completely. time, [the plaintiff] had reported that the more abusive behaviors short period of mistreatment was only the beginning of a campaign of abuse to her claim, the plaintiff resigned eight business days later. At the would conclude that Couto was trying to drive her out, and that the relatively performance review. Notwithstanding [Spaulding’s] receptiveness reasonable jury might find that a reasonable person in the plaintiff’s position

this evidence.

contacted human resources immediately after her negative employee] to quit,” however, these incidents could have greater significance. A

claimed had been driven out by Couto. The trial court’s order fails to mention

[Spaulding] took [the plaintiff’s] claims seriously when she resign.” Viewed in light of Couto’s threat to “make[] it miserable enough for [an working condition that would force a reasonable person in the same position to response to the plaintiff’s complaint, stating: three times in two weeks does not rise to the level of creating an intolerable The trial court also appears to have based its ruling upon Spaulding’s

the kitchen because of Couto’s mistreatment and who named others she the plaintiff’s complaint, spoke to a former kitchen employee who said she left resigned due to their treatment by Couto. Pestana, during her investigation of While working at Spaulding, the plaintiff heard about other employees who had

plaintiff] were not ideal, being ignored by one’s supervisor and being yelled at The court concluded that “[w]hile the working conditions faced by [the her interview for the job, that “with everybody she hires, she let’s [

the constructive discharge found in to the veiled threat that was identified by the [Supreme] Court as an element of plaintiff’s inquiry as to why the prior assistant director had left the position. court “failed to address or even mention important evidence similar in nature does not fire anyone.” Moreover, that comment was Couto’s response to the person or persons, she makes it miserable enough for them to quit, that she know right away that if she comes across anything she dislikes about the . . .

In the case before us, the plaintiff testified that Couto told her, during

human resources (quotation omitted)). “We’ll see how long you last” after plaintiff expressed concerns about her to

court’s analysis of the evidence, we need only address one; namely, that the to resign from Spaulding. Although she cites a number of alleged errors in the p. 5 5

“[b]ad day, negative attitude, and I did nothing right in [Couto’s] eyes.”

other state or otherwise:

former employee may have under common law or other statute to III. Nothing in this chapter shall derogate from any rights a Pestana, “still harsh remarks,” “[c]old shoulder and sharp tongue all day,” ordinary meanings to the words used.”. . . . whole. We first examine the language of the statute and ascribe the plain and (a) Against the employer . . .

drawn from the evidence.” at common law or by statute or provided under the laws of any or legal representatives, to have waived all rights of action whether chapter and, on behalf of the employee or the employee’s personal be conclusively presumed to have accepted the provisions of this I. An employee of an employer subject to this chapter shall

provides, in pertinent part, as follows: Greenland, 1 p. 5 52 N.H. 617, 620 (2005) (quotation omitted). RSA 281-A:8

administration, Ms. Couto was no longer hostile toward [the plaintiff],” the legislative intent as expressed in the words of the statute considered as a characterization that “[f]ollowing the intervention of [Spaulding’s] “In matters of statutory interpretation, we are the final arbiter of giving that party the benefit of all favorable inferences that may be reasonably light most favorable to the party opposing the motion [for summary judgment], claim was permitted under paragraph III of that section. things miserable for them, the trial court failed to “consider the evidence in the workers’ compensation statute, RSA 281-A:8. Specifically, she argues that the negligent supervision claim was barred by the exclusive remedy provision of the The plaintiff next argues that the trial court erred in ruling that her

discharge. Spaulding, we reverse the grant of summary judgment on the claim of wrongful reasonable person in the plaintiff’s position would feel compelled to resign from (2000) (quotation omitted). Because we cannot say as a matter of law that no

disclosure of the plaintiff’s name. particularly her alleged comment about forcing employees to quit by making We conclude that in apparently failing to consider Couto’s prior behavior,

However, a reasonable jury could conclude from the evidence that

that Couto “had been counseled regarding the allegations,” without the In addition, the court noted the plaintiff was informed, prior to her resignation, termination or discharge. p. 6 under this chapter for compensation allegedly caused by such discharge, the employee shall be deemed to have waived claims

recover damages for such wrongful termination or constructive

a claim for constructive discharge. Thus, it is barred by RSA 281-A:8, I(a). barred. The plaintiff’s separate claim for negligent supervision, however, is not

employee brings an action under common law or other statute to under common law or other statute. Similarly, if a former damages for such wrongful termination or constructive discharge

compensation claim. Thus, the plaintiff’s claim for wrongful discharge is not former employee elect to pursue such a claim instead of a workers’ termination of, or constructive discharge from, employment,” should the compensation bar from an action to “recover damages for wrongful concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ., remedies of this chapter, and to have waived rights to recover

The plain language of RSA 281-A:8, III removes the workers’

agree. wrongful termination claim and therefore was barred under RSA 281-A:8. We discharge, the employee shall be deemed to have elected the The trial court held that the claim for negligent supervision was not a allegedly caused by such wrongful termination or constructive makes a claim p. 6 under this chapter for compensation for injuries

discharge from, employment. However, if a former employee recover damages for wrongful termination of, or constructive