2005-529, APPEAL OF ALAN HARDY

The petitioner, Alan Hardy, appeals a decision of the

orally), for the respondent. Hebert & Uchida, P.L.L.C., of Concord (Donald F. Hebert on the brief and to press. Errors may be reported by E-mail at the following address:

the brief and orally), for the petitioner. Backus, Meyer, Solomon & Branch, LLP, of Manchester (Jon Meyer on

(New Hampshire Department of Labor) APPEAL OF ALAN HARDY

editorial errors in order that corrections may be made before the opinion goes No. 2005-529 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Department of Labor Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 22 as however, met with virtually no success. p. 2 generate a policy detailing how the Association would comply with the statute,

number of disinterested directors on the board. He closed his email by stating:

indirect financial interest in the Fair. members and that by 2004, ten of the eleven board members had a direct or

Association’s attorney. Hardy’s efforts to persuade the board to require comply with RSA 7:19-a. Hardy communicated his concerns to the auditor expressed her concern to Hardy about the Association’s failure to issues — statutory compliance on pecuniary benefit transactions and the 7:19-a. Hardy detailed that he had been trying to work with the board on two average” to describe his job performance. trusts expressing concern about the Association’s noncompliance with RSA only annual performance review in 2003 repeatedly used the term “above On November 8, 2004, Hardy sent an email to the office of charitable

fielded inquiries from board members about securing employment for family

pecuniary benefit transactions equaling $5,000 or more. Association must publish in a newspaper of general circulation a notice of any interest policy,” but the board was not responsive. In 2003, the Association’s disinterested members of the board who comprise a quorum, and the In 1997, Hardy began to work with the board to adopt a “conflict-of-

with the Association does not indicate any significant issues or problems; his

the DOL hearing, Hardy testified that during the course of his employment, he charitable trust has a direct or indirect financial interest. The Association did not comply with these statutory requirements. At

and (d).

a, II(c). In addition, all such transactions must receive a two-thirds vote of the and annually report the list to the director of charitable trusts. See RSA 7:19requires the Association to maintain a list of all pecuniary benefit transactions and members of their immediate families. 200-300 seasonal employees and contractors. Hardy’s employment history See RSA 7:19-a, I(b). The statute Indirect financial interests arise in transactions involving members of the board the Association’s only full-time employee, responsible for the supervision of 1991, he was hired as the general manager of the Association. As such, he was See RSA 7:19-a, I(c). “Pecuniary benefit transactions” include those in which a director of the pecuniary benefit transactions and conflicts of interest.” RSA 7:19-a, IV. which provides that “[e]very charitable trust shall adopt policies pertaining to As a charitable trust, the Association is subject to RSA 7:19-a (2003),

a board of directors (board), on which Hardy served from 1987 to 1991. In Fair Grounds, but produced by other organizations. The Association is run by was inappropriate due to the presence of direct evidence, stating: p. 3 Association’s motion for rehearing on the basis that use of the pretext analysis

award. The DOL denied Hardy’s motion for rehearing, but granted the

not

for attorney’s fees and expenses, which he concluded he was not authorized to found in Hardy’s favor on the merits and granted the requested relief, except In May 2005, the hearing officer conducted a “pretext analysis” of the evidence, testimony. Because of this direct evidence of retaliation, there was was some direct evidence of retaliation, specifically through Jones’

part” to play in the elimination of Hardy’s job.

only circumstantial evidence available, although there was contract, lost back pay and fringe benefits, and attorney’s fees and expenses.”

the Whistleblowers’ Protection Act, evidence available. You are correct in your assertion that there The “pretext” analysis is used if there is only circumstantial

to be complete as part of this years [ that Hardy’s report to the Attorney General “disturbed” him and had a “small guidance regarding [RSA] 7:19-a compliance. This process needs consideration had been given to eliminating the general manager position, and eliminated.” Jones also testified that, prior to the November 8 meeting, no

“reinstatement to his job on the same terms as set forth in his employment

Hardy filed a claim with the DOL, alleging that the Association violated

gross income. I have also asked the Department of Justice for

position known as The Hopkinton State Fair General Manager has been By a letter dated November 10, 2004, the board notified Hardy “that the

to the other members of the board. Jones testified that he distributed both Hardy’s email and cover memorandum

statute enacted this last summer.

new requirements for non-profits who have more than 1 Million in interest policy established and working. You can see that there are It is now more important than ever that there be a conflict of

board at its meeting that evening. In a cover memorandum, Hardy wrote: president, for inclusion with the packet of documents to be given to the entire That same day, Hardy gave a copy of his email to David Jones, the board’s

come up with a solution which complies with [RSA] 7:19-a. I guess at this point, I am asking for your advice as I cannot

of interest policy and to follow it is now more important than ever. I believe that the need for my Board of Directors to have a conflict appeal and the Association’s cross-appeal followed.

the order, specifying in the motion all grounds for rehearing. determined in the action or proceeding, or covered or included in it is claimed that the Decision is unlawful or unreasonable. the date of this Decision, specifying fully the grounds upon which

Hardy filed a timely motion for rehearing, which was denied. The record does and granted the requested relief other than attorney’s fees and expenses. filed its cross-appeal directly with this court. analysis, the hearing officer issued a second decision finding in Hardy’s favor, December 15 decision was now “final.” On January 13, 2006, the Association RSA 5 p. 4 41:4 (1997), however, states:

commission . . . may apply for a rehearing in respect to any matter the commission, any party to the action or proceeding before the rehearing to the Commissioner of Labor within thirty (30) days of Within 30 days after any order or decision has been made by

RSA 5 p. 4 41:3 (1997) states, in pertinent part:

clear to both parties that:

his original decision. In December 2005, after utilizing the “mixed motive” denied. On January 12, 2006, the DOL informed both parties that the On December 21, 2005, Hardy timely filed a motion for rehearing, which was

manner specified by RSA 5 p. 4 41:3, by applying in writing for a Any party aggrieved by this Decision may appeal in the

2005 decision. The decision’s cover letter, dated December 15, 2005, made Association filed a motion for rehearing subsequent to the DOL’s December submit briefs with regard to the substantive analysis he employed in rendering raised the issue, the record on appeal does not demonstrate that the We first address the Association’s cross-appeal. Although neither party

that he would not receive new testimony or evidence, but that the parties could After an informal prehearing conference, the hearing officer determined

The decision utilized the “pretext analysis” when it should

evidence. significantly more circumstantial evidence than there was direct claim for workers’ compensation benefits. After a DOL hearing officer found

dental practice. The respondent insurance company denied his subsequent

nor . . . the winning party [was] reversed.”

requirements of RSA p. 5 541:4 and :6, and Supreme Court Rule 10(1). In its basis that the record did not demonstrate that it had complied with the

petitioning dentist developed carpal tunnel syndrome and ceased his specialty The Association’s reliance on Kruzel is misplaced. In that case, the

the ultimate issue on appeal, whether [Hardy] met his required burden of proof, circumstances of this case. Specifically, the Association argues that “neither contends that a second motion for rehearing was not necessary under the

memorandum addressing whether we should dismiss its cross-appeal on the After oral argument, we ordered the Association to file a brief

12 p. 5 5 N.H. at 775. RSA 541:4 before appealing to this court.” Appeal of White Mts. Educ. Ass’n, losing party must apply for a further rehearing and satisfy the requirements of held that “[w]hen a decision on any issue is reversed on rehearing, the newly petition to the supreme court. (Emphasis added.) In after the decision on such rehearing, the applicant may appeal by Appeal of White Mountains Education Association, we

Association, 12 p. 5 5 N.H. 771 (1984). See RSA 541:4 and Appeal of White Mountains Education have timely filed for a rehearing with the administrative agency. administrative agency under RSA 541, the appealing party must specify additional grounds. NOTE: To appeal to the supreme court from an unless the court for good cause shown shall allow the appellant to Finally, New Hampshire Supreme Court Rule 10(1) states: shall be urged, relied on, or given any consideration by the court,

denied, or, if the application is granted, then within thirty days Within thirty days after the application for a rehearing is

(Emphasis added.) RSA p. 5 541:6 (1997) states:

application shall have been made, no ground not set forth therein application for rehearing as herein provided, and when such commission shall be taken unless the appellant shall have made unreasonable. No appeal from any order or decision of the is claimed that the decision or order complained of is unlawful or Such motion shall set forth fully every ground upon which it the merits under the new analysis.

p. 6 filed a second motion for rehearing challenging the hearing officer’s decision on party and Hardy was the newly winning party. The Association should have Following the use of the different analysis, the Association was the newly losing

Hardy remained the same, in the subsequent order, is not controlling.

reversed on rehearing. The fact that the ultimate decision on the merits for More correctly, the hearing officer’s decision to use the pretext analysis was of the Hearing Officer was reversed on the basis of the analysis to be applied.”

merits. As noted by the Association in its memorandum, “the original decision

and, based upon the new mixed motive analysis, issued a new decision on the the subsequent order, the hearing officer rejected his earlier pretext analysis should have used the mixed motive analysis and not the pretext analysis. In

hand, however, the DOL agreed with the Association that the hearing officer

petitioner a newly losing party. dismissed because the dentist did not file a second motion for rehearing. the board’s decision on this issue was not reversed; nor was the petitioner was not totally disabled from practicing dentistry. Thus,

been identical to his first, with presumably the same result. In the case at

subsequent appeal, the insurance company argued that the appeal should be he was totally disabled from functioning as a dentist. In the dentist’s The board’s subsequent order affirmed its finding that the CAB found that the dentist had not produced enough evidence to establish that

reasoning. Had the dentist p. 6 filed a second motion for rehearing, it would have Kruzel, the CAB’s second order was equivalent to a rejection of the dentist’s Id. at 684. The difference between Kruzel and the case at hand is clear. In

proved that he was totally disabled from the practice of dentistry. was not totally disabled from the practice of dentistry. In a second order, the rehearing, arguing that the uncontroverted medical evidence totally disabled from practicing dentistry. The petitioner moved for The board’s initial decision found that the petitioner was not

We disagreed, stating: dentistry; he was totally disabled only from his specialty dental practice. 683. that he was not totally disabled from gainful employment or from practicing CAB concluded that the dentist’s injury was compensable to some extent, but Id. at

a motion for rehearing, requesting the CAB to reconsider its decision that he The insurance company filed a motion for rehearing; the dentist also filed

Kruzel, 143 N.H. at 682-83.

insurance company appealed to the Compensation Appeals Board (CAB). The that the petitioner was entitled to temporary total disability benefits, the motive analysis.

p. 7 approach.”

motive analysis under on a limited basis, however, to clarify the triggering mechanism for the mixed opportunity to correct his alleged error in the actual application of the mixed appeal, we need not address these arguments substantively. We turn to them for rehearing, however, the Association failed to afford the hearing officer the pretext analysis over the mixed motive analysis. By not filing a second motion

employee to prove retaliation: the ‘pretext’ approach and the ‘mixed motive’

elimination of his position. Because we have dismissed the Association’s cross-

the hearing officer the opportunity to correct his alleged error of applying the

under RSA chapter 275-E. Under federal law, there are two basic ways for an

under, the two approaches as follows: satisfy his burden of showing that retaliation played a substantial role in the Montplaisir, we outlined in detail the characteristics of, and the burdens

Montplaisir, 147 N.H. at 300 (quotation and citation omitted). In in hearing the appeal”). Here, the Association’s first motion for rehearing gave

claims under Title VII [of the Civil Rights Act] are useful in resolving claims from them.” We have noted that “the federal standards used to evaluate retaliation

employment decision; and (2) the direct evidence was insufficient for Hardy to the presence of direct evidence that retaliation played a role in the Association’s in its decisions so that the court may have the benefit of the board’s judgment hearing officer erred because: (1) the pretext analysis was inappropriate due to In its June 2005 motion for rehearing, the Association argued that the

a chance to correct their own alleged mistakes before time is spent appealing III

rehearing with board to preserve appeal).

544 (“board should have the first opportunity to pass upon any alleged errors

Appeal of White Mts., 125 N.H. at 774; see Dziama, 140 N.H. at

scheme and of our rule, specifically that “administrative agencies should have Our decision is made in furtherance of the purpose of the statutory

merits based upon new second issue, aggrieved party had to file new motion for rehearing, board admitted error as to that issue but denied petition upon decision was denial upon merits based upon one issue, and, following of Portsmouth, 140 N.H. 542, 545 (1995) (when board of adjustment’s original we will refuse the appeal or dismiss it on our own motion”); cf. Dziama v. City demonstrate that the appealing party has met the requirements of [RSA 541:4] See Appeal of White Mts., 125 N.H. at 775 (“when a record does not 541:4 and :6, and Rule 10(1), we dismiss its cross-appeal on our own motion. Because the Association did not comply with the requirements of RSA have made the same adverse employment decision for legitimate,

p. 8 the victim of unlawful retaliation. ultimate burden of persuading the trier of fact that he or she was

the employer to show that despite the retaliatory animus, it would

the employee’s direct evidence, the burden of persuasion shifts to the “mixed motive” approach applies. If the trier of fact believes

that the adverse employment action was more likely motivated by employer’s stated reasons were not credible, or directly by showing employee may do this either indirectly by showing that the

that the employer’s proferred [ played a substantial role in a particular employment decision, then If the employee produces direct evidence that retaliation

burden of persuasion. employer is only a burden of production; the employee retains the legitimate, non-retaliatory reasons. The burden placed upon the

for the adverse employment action and that retaliation was. The

the proffered evidence, the hearing officer or trial court channels presumption raised by the prima facie case is rebutted and drops employment action. If the employer satisfies its burden of production, the causal connection between the protected act and the proscribed action proscribed by [RSA chapter 275-E]; and (3) there was a

evidence that the adverse employment action was taken for to rebut the prima facie case — i.e., the burden to produce employee. This presumption places a burden upon the employer presumption that the employer unlawfully retaliated against the Establishing a prima facie case of retaliation creates a

both approaches. Based upon the availability or unavailability of

protected by [RSA chapter 275-E]; (2) [he] suffered an employment employee must demonstrate that: (1) [he] engaged in an act conduct. To establish a prima facie case of retaliation, the initial burden of establishing a prima facie case of unlawful . . . Under the “pretext” . . . scheme, the employee bears the

approach applies. An employee may proceed simultaneously on there is direct evidence of retaliation, then the “mixed motive” evidence of retaliation, then the “pretext” approach applies. If a “mixed motive” analysis applies. If there is only circumstantial The quality of the evidence determines whether a “pretext” or p. 9 9

because Hardy introduced

produces

‘mixed motive approach’ applies.” Hardy’s position. reason was a “substantial factor” in the Association’s decision to eliminate

analysis would not apply. we would still affirm the DOL’s finding for Hardy on the merits. Simply met the threshold test of playing a substantial role, then the mixed motive at 301 (emphasis added). Thus, if Hardy did not produce direct evidence that particular employment decision, then the ‘mixed motive’ approach applies.” Id.

direct evidence that retaliation played a substantial role in a

amplification of that statement, however, we explained, “If the employee

In that case, we stated, “If there is direct evidence of retaliation, then the argument is based upon an incomplete reading of our decision in Montplaisir. non-retaliatory reason for Hardy’s initial burden of showing that the retaliatory necessarily precluded from applying the pretext analysis. The Association’s elimination of his position does not mean that the hearing officer was

even if we were to assume that the Association was correct in those arguments, If we were to consider the merits of the Association’s arguments, and DOL granted the Association’s motion for rehearing. of persuasion remains with the employer. should have applied the mixed motive analysis over the pretext analysis, the U.S.C. §§ 2000e et seq.) (O’Connor, J., concurring). Association that, given the presence of some direct evidence, the hearing officer 265, 277-78 (1 p. 9 989) (superseded in part by the Civil Rights Act of 1991, 42

See id. at 301; Price Waterhouse v. Hopkins, 4 p. 9 90 U.S. 228,

misapplied the mixed motive analysis by substituting the absence of a proffered dismissed cross-appeal, the Association contended that the hearing officer detailed the direct evidence of retaliation and again found for Hardy. In its now In subsequently applying the mixed motive analysis, the hearing officer

burden required by the “mixed motive” approach, then the burden decision. Thus, so long as the employee can meet the evidentiary the presumption of unlawful conduct or retaliation. Agreeing with the alleged animus and bear squarely on the contested employment of unlawful conduct by the Association and that the Association failed to rebut evidence alleged by Hardy, found that Hardy had established a prima facie case pretext analysis was appropriate due to the circumstantial nature of the After the initial hearing in this case, the hearing officer determined that a

Id. at 300-02 (quotations and citations omitted).

consists of statements by a decisionmaker that directly reflect the non-retaliatory reasons. Evidence is considered to be direct if it p. 10 10 retaliation than did the first petitioner. We decline to read

employer to rebut the

that the second petitioner actually produced more overall evidence of evidence. Consequently, the employer would face no burden, despite the fact Desert Palace, Inc. v. Costa, 539 U.S. at 99- p. 10 100 (quotation omitted). meet his burden of persuasion based exclusively upon that same piece of direct than direct evidence. sufficient, but may also be more certain, satisfying and persuasive persuasion under the pretext analysis and the burden would shift to the in discrimination cases. . . . Circumstantial evidence is not only Under the Association’s argument, the first petitioner would meet his burden of We have often acknowledged the utility of circumstantial evidence direct evidence of retaliation, which does not meet the substantial factor test. ascribe a level of confidence in direct evidence that is not always justified: manner that would permit such an absurd result. Such a reading would also evidence and are able to establish a mutual employer. Both petitioners produce overwhelming circumstantial Montplaisir in a litigation, will channel the case into one format or the other. cognizant that the trial court, at an appropriate stage of the simultaneously on both fronts (mixed-motive and pretext), determination, however, the case proceeds under the pretext analysis. a mixed motive analysis by the single piece of direct evidence, would fail to substantial role in the particular employment decision. Absent that prima facie case. The second petitioner, now forced into

Indeed, occurs, not when there is simply

of the employer. In addition, the second petitioner produces a single piece of

example, two petitioners file identical whistleblower claims against their To accept the Association’s argument would lead to absurd results. For

judge will react to certain proffers, may elect to proceed

the hearing officer determines there is direct evidence that retaliation played a

this level of mutual exclusivity of the pretext and mixed motive approaches. 147 N.H. at 300. The channeling of a case into the mixed motive format abrogated by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); see Montplaisir, Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999),

A plaintiff, uncertain of what discovery will yield or how a

The Association has cited no authority, and we know of none, that supports presumably the Association would argue that the claim must be dismissed. that direct evidence does not rise to the level of playing a substantial role, retaliation is introduced, the case is channeled into a mixed motive analysis. If The Association essentially argues that as soon as any direct evidence of under RSA chapter 275-E that effectuates the purposes of the statute. Both

p. 11 would have been in absent the employer’s unlawful acts.”

and expenses is an appropriate exercise of the DOL’s injunctive relief authority

each is a distinct equitable remedy.” any combination of these remedies. is to ensure that employees are made whole and restored to the position they benefits and seniority rights, any appropriate injunctive relief, or

report violations without fear of losing their jobs and to ensure that as many [RSA chapter 275-E]; namely, to encourage employees to come forward and

We agree with Hardy that ordering the reimbursement of attorney’s fees evidence and to the exclusion of a pretext analysis. quality, mandates a mixed motive analysis based solely upon that direct omitted). position that the introduction of any direct evidence, without regard to its cannot be interpreted to encompass the authority to award attorney’s fees, as Id. at 619 (quotation

omitted). Further, “[t]he goal of the remedial provisions of [RSA chapter 275-E] reinstatement of the employee, the payment of back pay, fringe Appeal of Osram Sylvania, 142 N.H. 612, 617 (1998) (citations and quotation

law will be resolved in a way which best effectuates the manifest purposes of Franklin Lodge of Elks, 151 N.H. 565, 567 (2004). In addition, “[q]uestions of We review the DOL’s interpretation of a statute de novo. See Appeal of

interrelationship between the two analyses and undermines the Association’s authority to award attorney’s fees” and “the power to grant injunctive relief Association counters that “[t]here is no mention in [RSA 275-E:4] of a grant of that RSA 275-E:4 authorizes such an award to a prevailing claimant. The order, as the commissioner or his designee considers appropriate, commissioner shall render a judgment on such matter, and shall [T]he labor commissioner or the designee appointed by such

expenses, the DOL construed RSA 275-E:4, I, which reads, in pertinent part: In deciding Hardy’s request for reimbursement of attorney’s fees and

E, we believe the Supreme Court’s decision underscores the close

does not authorize the award of attorney’s fees and expenses. Hardy contends We next address Hardy’s appeal of the DOL’s ruling that RSA 275-E:4, I,

the same should hold true in our resolution of claims under RSA chapter 275- VII discrimination cases. Id. at 92, 101-02. While we need not decide here if direct evidence is no longer required to trigger a mixed motive analysis in Title Finally, we note that the United States Supreme Court has decided that employment actually begins.

p. 12 the date on which the unlawful discrimination occurred until

discrimination is made whole when she is awarded back pay from vindication of public rights is not an award of damages. A victim of award. An award of back pay given in the public interest in

amount awarded, but upon the purposes that motivated the for the time she was unemployed.”

back pay was properly within the DOL’s broad injunctive powers, we stated: permitted under the terms of RSA 275-E:4, I. In deciding that the award of

characterization of the back pay award depends not upon the relief in the form of a mandatory injunction requiring payment of . . . back pay would have been in absent unlawful discrimination. The

legislative purpose behind the statute.” granted the commission in fashioning equitable remedies in view of the of the back pay award, arguing that back pay was a form of damages, and not award of attorney’s fees “in appropriate cases is consistent with the discretion

chapter 275-E. The DOL agreed and awarded the office worker “injunctive unlawful discrimination whole by putting her in the position she

The purpose of a back pay award is to make a victim of

payment of back pay). On appeal, Bio Energy challenged the characterization statute did not expressly authorize award of the same. We stated that the cf. Laws 1992, 72:1 (amending RSA 275-E:4, I, to include provision for the statute did not expressly provide for the payment of back pay. Id. at 521;

authorized by the statute were equitable in nature, and declining to interpret alleging that the employer had terminated her position in violation of RSA In Bio Energy, an office coordinator filed a complaint with the DOL,

commission to award reasonable attorney’s fees, in spite of the fact that the to attorney’s fees, however, we held that the statute did empower the

compensatory damages, finding that the varied examples of relief expressly powers. Id. at 407-08. We upheld the superior court decision with regard to damages and attorney’s fees as being in excess of the commission’s statutory unlawful discrimination, but set aside the award of both compensatory Swett, 124 N.H. at 411. The superior court upheld the commission’s finding of damages nor attorney’s fees were expressly authorized by the statute at issue. pay, compensatory damages and attorney’s fees. Neither compensatory employer. The commission found in favor of the worker and awarded him back hiring with the commission for human rights against Swett, his former In Swett, a construction worker filed a charge of racial discrimination in

decision. 404 (1983), and Appeal of Bio Energy, 135 N.H. 517 (1992), support our E.D. Swett, Inc. v. New Hampshire Commission for Human Rights, 124 N.H. statute to make the employee whole.

p. 13 the [Whistleblowers’ Protection] Act.

face of mounting attorney’s fees, thus negating the remedial purpose of the

deter employees from going forward and frustrate the purpose of

wrongfully discharged employee. the Act if it knows that the DOL can order back pay to the award of back pay, such an award could prove to be of little significance in the Similarly, an employer is more likely to take pains to comply with are not reimbursed. Although RSA 275-E:4, I, now expressly provides for an been in absent the prohibited employment action, if his legal fees and expenses 13

be settled immediately. Reluctance to suffer such hardship would without pay since administrative resolution of the dispute will not she will inevitably suffer a substantial period of unemployment encouraging employees to report violations.

she will not only be reinstated, but will also receive back pay.

Hardy will neither be made whole, nor placed in the position he would have

authority to order reimbursement of attorney’s fees and expenses strengthens employee who blows the whistle will know that if she is discharged, See id. at 617. In addition, the Such a situation could frustrate the Whistleblowers’ Protection Act’s purpose of prospect of future reinstatement of an employee. . . .

likely to report violations if she knows that should she lose her job, furthers the legislative purpose of the Act. An employee is more applies, with regard to the reimbursement of attorney’s fees and expenses. position she would have been in had the employer acted lawfully We believe that these same concerns are present, and the same logic

Bio Energy, 135 N.H. at 521-22 (citations and quotations omitted). an award of back pay is part of the injunctive remedy, any have assurance that they will not be punished monetarily. Unless have little incentive to comply with the Act if they faced only the employees are to be encouraged to report illegal acts, they must

rights by putting a wrongfully discharged employee in the same On the other hand, authorizing the DOL to vindicate public

deterrent effect of the Act vis-a-vis employers. Employers would employee as the prospect of losing one’s job altogether. If The lack of a back pay remedy also would weaken the

unemployment without pay may be just as daunting to an DOL’s injunctive power. The prospect of several months of us to the conclusion that back pay is an indispensable facet of the Moreover, the evident purpose of [RSA chapter 275-E] leads order, as the commissioner or his designee considers appropriate,

commissioner shall render a judgment on such matter, and shall effectuates the manifest purposes of the statute. fees. Instead, we simply construe RSA 275-E:4, I, in the way that best

the award of attorney’s fees and expenses.

the majority’s decision to dismiss the Association’s cross-appeal and clarify the

DALIANIS, J., joined, concurred in part and dissented in part. [T]he labor commissioner or the designee appointed by such

not based upon any alleged “inherent authority” of the DOL to award attorney’s RSA 275-E:4, I, provides, in pertinent part:

would uphold the DOL’s ruling that RSA 275-E:4, I (1999) does not authorize Montplaisir, p. 14 147 N.H. 297, 300 (2001). I write separately, however, because I

DUGGAN, J., concurring in part and dissenting in part. I concur with

GALWAY and HICKS, JJ., concurred; DUGGAN, J., with whom

B:9 contained no comparable provision. Furthermore, our decision today is and expenses reversed; and remanded.

proceedings in accordance with this opinion. language of RSA 71-B:9. reimbursement of Hardy’s attorney’s fees and expenses and remand for further We reverse the DOL’s decision that it lacks authority to award

N.H. at 617.

issue in E:4, I, authorizes the DOL to award “any appropriate injunctive relief”; RSA 71- The Association’s reliance upon Land Acquisition is misplaced. RSA 275-

had the “inherent authority” to award such fees, because of the limiting of attorney’s fees and disagreed with the respondent’s assertion that the BTLA payment of attorney’s fees in addition to costs). We reversed the BTLA’s award p. 14 145 N.H. at 497; cf. Laws 2003, 133:2 (amending RSA 71-B:9 to authorize award “costs” only; there was no mention of attorney’s fees. Land Acquisition, appeals. At that time, the applicable statute, RSA 71-B:9, allowed the BTLA to and Land Appeals (BTLA) to award attorney’s fees in property tax abatement

Land Acquisition was the authority of the New Hampshire Board of Tax

p. 14 145 N.H. 492 (2000), to support the denial of attorney’s fees and expenses. At The Association relies upon our decision in Appeal of Land Acquisition,

rights. See Bio Energy, 135 N.H. at 522. the statute’s deterrent effect as well as the DOL’s ability to vindicate public as that conferred by RSA 354-A:9, II, the p. 15 remedies.” Because the authority conferred by RSA 275-E:4, I, is not as broad restricts the DOL to a list of specific remedies or “any combination of these

purposes of this chapter.” Indeed, the language of RSA 275-E:4, I, narrowly

limited to),” nor does it explicitly permit remedies that “will effectuate the

purpose of this chapter . . . . commission to award compensatory damages.” persons, as in the judgment of the commission will effectuate the indication from the legislature that its intent is indeed to authorize the compensatory damages, stating: “[W]e prefer to await a more express petitioner’s argument.

expansive language authorizing “such affirmative action, including (but not Unlike the statute at issue in Swett, RSA 275-E:4, I, does not contain

refused, however, to hold that the statute authorized the commission to award

cases to argue that, notwithstanding this omission, the statute nonetheless On appeal, we held that the commission could award attorney’s fees as

either compensatory damages or attorney’s fees. Id. (1966), which expressly authorized back pay, but did not expressly authorize

organization, or the extension of full, equal and unsegregated back pay, restoration to membership in any respondent labor hiring, reinstatement or upgrading of employees, with or without to take such affirmative action, including (but not limited to)

attorney’s fees. However, both the petitioner and the majority rely upon two portion of RSA 354-A:9, II (1966) authorized the commission

damages and attorney’s fees. The commission relied upon RSA 354-A:9, II any combination of these remedies. entered an order against an employer that included back pay, compensatory In E.D. Swett, Inc., 124 N.H. at 407, the commission for human rights

(1983). (1992); E. D. Swett, Inc. v. N.H. Comm. for Human Rights, 124 N.H. 404

The statute does not by its plain language authorize an award of

benefits and seniority rights, any appropriate injunctive relief, or reinstatement of the employee, the payment of back pay, fringe p. 16 “injunctive relief.”

remedies and inconsistent with the common understanding of the scope of

circumscribe the authority of the agencies they create. administrative agencies and infringing on the legislative prerogative to

attorney’s fees is to add a remedy that is incongruous with the express seniority rights. By contrast, to construe “any injunctive relief” to include remedies in RSA 275-E:4, I, such as reinstatement, fringe benefits and remedies in view of the legislative purpose behind the statute,” “consistent with the discretion granted the commission in fashioning equitable

risk creating uncertainty as to the scope of remedies generally available from

[the agency’s] injunctive power.” rather whether a remedy not expressly authorized is “an indispensable fact of DALIANIS, J., joins in the opinion of DUGGAN, J.

respect to attorney’s fees. Consequently, I respectfully dissent. injunctive relief” to include back pay is consistent with the other express For the foregoing reasons, I would uphold the DOL’s decision with

remedy that is not expressly authorized by the statute, because such remedy is

have upheld the award of compensatory damages. By broadening the test, we

whether the new remedy is consistent with the purpose of the statute, but Energy, 135 N.H. at 522. In my view, however, the test cannot simply be 124 N.H. at 412, or “furthers the legislative purpose of the Act,” Appeal of Bio

concerning the desirability of authorizing administrative agencies to impose a prospect of future reinstatement of an employee.” To be sure, both Swett and Bio Energy contain broad language

The same cannot be said of attorney’s fees. Unlike back pay, attorney’s

would have little incentive to comply with the Act if they faced only the assurance that they will not be punished monetarily,” and that “[e]mployers that “if employees are to be encouraged to report illegal acts, they must have an indispensable facet of the DOL’s injunctive power.” Id. The court also noted E:4, I, authorized “any appropriate injunctive relief,” and held that “back pay is Energy, 135 N.H. at 521. In Bio Energy, the court emphasized that RSA 275was whether the statute authorized the DOL to award back pay. Appeal of Bio this case, but does not concern attorney’s fees. Rather, the issue in Bio Energy The second case – Appeal of Bio Energy – involves the statute at issue in