2011-516, Susan Jeffery v. City of Nashua

The plaintiff, Susan Jeffery, appeals an order of the

Baker ___________________________ on the brief, and Ms. Baker orally), for the defendant. Jackson Lewis LLP and Elizabeth J. THE SUPREME COURT OF NEW HAMPSHIRE

brief, and John S. Krupski orally), for the plaintiff.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as these latest disciplinary actions, the plaintiff took a leave of absence under the

p. 2 risk manager to employee benefits specialist. Shortly after being notified of

one week unpaid disciplinary suspension. In addition, she was demoted from the City’s Cash Control and Handling Policy. As a result, she was placed on a million dollars were left unsecured in the plaintiff’s department, in violation of

In September 2006, the City learned that checks totaling almost one

improvement. Consequently, Lemieux denied the plaintiff a raise. plaintiff’s performance evaluation, wherein she noted several areas requiring

position of deputy risk manager. In June 2006, Lemieux conducted the

job duties and supervisory responsibilities were shifted to the newly created the risk management department was reorganized and some of the plaintiff’s twenty-nine years of employment with the City. Following the second warning,

from Lemieux. Prior to these warnings, she had never been “written up” in her

In February and March 2006, the plaintiff received two written warnings

she became fearful that she would be discharged. did “anything” to her, she contends that “things were very tense.” As a result,

Lemieux was becoming strained. Although she concedes Lemieux never said or

At some point in 2005, the plaintiff noticed that her relationship with

committee’s recommendations.

implement as risk manager. The plaintiff did not implement all of the

specific recommendations, some of which were the plaintiff’s responsibility to and educational opportunities for staff. In the report, the committee also made experience with self funded Health Insurance account” and its lack of training

the City’s budget shortfall was a consequence of its insufficient “long term

In November 2005, the committee issued its final report, concluding that

suggested that they “all share the blame,” but she refused his suggestion. others. The plaintiff also alleges that on a separate occasion, the mayor 2

she had tried to prevent the error by raising her concerns with Lemieux and

underfunded. Consequently, the Board of Aldermen convened an ad In April 2005, the City discovered that the health insurance line item was

budget shortfall. The plaintiff refused to accept responsibility, explaining that her whether she, as department manager, should be held responsible for the committee, she was summoned to a meeting with the mayor, at which he asked

the shortfall. The plaintiff alleges that between her two interviews with the

numbers.” “dozens of times,” but Lemieux responded that “she was comfortable with her 2005 fiscal year budget. The plaintiff raised her concerns with Lemieux

health care budget committee to investigate the circumstances leading up to

process because “she wanted to level fund the health line items” in the City’s her direct supervisor, Maureen Lemieux, did not understand the budgetary p. 3 Waterfield v. Meredith Corp.

drawn from them, in the light most favorable to the non-moving party.

we consider the affidavits and other evidence, and all inferences properly 491:8-a, III (2010). In reviewing the trial court’s grant of summary judgment, and that the moving party is entitled to judgment as a matter of law.” RSA

the affidavits filed, show that there is no genuine issue as to any material fact

depositions, answers to interrogatories, and admissions on file, together with A moving party is entitled to summary judgment “if the pleadings, personal actions. See this claim is barred by the three-year statute of limitations applicable to

Singer Asset Finance Co. v. Wyner year period, once all the elements necessary for such a claim are present. . . . .”). A cause of action arises, thereby triggering the running of the three- 3

granted the City’s motion, and this appeal followed. against her on her constructive discharge claim based upon its finding that intolerable that a reasonable person would feel forced to resign, Porter v. City of show that her employer rendered her working conditions so difficult and

libel, may be brought only within 3 years of the act or omission complained of

accrues. Manchester, 151 N.H. 30, 42 (2004), we have not decided when such a claim arguing, among other things, that her claims were untimely. The trial court The plaintiff first argues that the trial court erred by ordering judgment discharge and breach of contract. The City moved for summary judgment, resignation, the plaintiff brought suit against the City, alleging constructive have held that to establish liability for constructive discharge, a plaintiff must

We review the trial court’s application of the law to the facts de facts showing that there is a genuine issue for trial.” RSA 491:8-a, IV (2010). depositions, answers to interrogatories, or admissions, must set forth specific discovery rule exception, “all personal actions, except actions for slander or

I. Constructive Discharge On December 29, 2009, three years and eight days after her letter of Waterfield, 161 N.H. at 709.

denials of his pleadings, but his response, by affidavits or by reference to judgment. Id. “[T]he adverse party may not rest upon mere allegations or entitled to judgment as a matter of law, we will affirm the grant of summary evidence discloses no genuine issue of material fact, and if the moving party is

indicated that the effective date of her resignation was December 31, 2006. submitted a letter of resignation, stating her decision to retire early. The letter

Supp. 2011). On December 21, 2006, while still on FMLA leave, the plaintiff Family and Medical Leave Act (FMLA), see 29 U.S.C. §§ 2601 et seq. (2009 & have addressed this legal issue. See

p. 4 Though of first impression in New Hampshire, several other jurisdictions 4

they felt compelled to resign”).

Id UTMB v. Hohman

those dates, they were aware that conditions had become intolerable and that required to quit his or her job.” Id claims accrued on the dates they submitted their resignations because “[b]y franchise,’ except for an enumerated reason and after providing written notice.”, 6 S.W.3d 767, 774 (Tex. App. 1999) (holding employees’ employee tendered letter of resignation, not when resignation became effective); termination.” Id State consistent with the general understanding of the doctrine of constructive, 754 N.Y.S.2d 814, 817 (App. Div. 2003) (holding claim accrued when A.2d 718, 721-22 (N.J. Super. Ct. App. Div. 2001) (collecting cases); Clark v.

destroy.” Id discharge accrues when the legal relationship ends. We are not persuaded. on this dicta, the plaintiff contends that a cause of action for constructive In Mac’s Shell Service in both instances, the legal relationship has ended. See id. at 1258-59. Based

that “[t]o recover for constructive discharge, . . . an employee generally is analyzed the Act’s provision that “‘no franchisor . . . may . . . terminate any. at 1258. Drawing on the analogous doctrine, the Court noted

abandon their franchises before claiming constructive termination is also franchise.” Id. at 1255. The Court explained that “[r]equiring franchisees to constructively failing to renew franchise relationships. Mac’s Shell Service allegedly wrongful conduct did not compel the franchisee to abandon its cannot recover for constructive termination under the [Act] if the franchisor’s

. (quotations omitted). Thus, the Court concluded, “a franchisee

specifically incorporated into the term “termination,” means to “annul or term “terminate” means to “put an end to,” and that “cancel,” which the Act . at 1257 (quoting 15 U.S.C. § 2802(a)-(b)). The Court explained that the

Addressing the constructive termination claim first, the Supreme Court abandoned their franchises or rejected renewal agreements. Id. at 1254-55. S. Ct. at 1254. Despite their claims, however, none of the franchisees more than three years before filing suit. Nevertheless, citing Mac’s Shell, 130 (2009), by constructively terminating service-station franchises and intent to resign.” Here, the plaintiff gave such notice on December 21, 2006, violated the Petroleum Marketing Practices Act (Act), 15 U.S.C. §§ 2801 et seq.

constitutional mandate of access to justice.” serve . . . the purposes of the statute of limitations,” and “comport[] with the date of her resignation, December 31, 2006. She contends that this rule “will termination,” which she asserts here is the date she selected as the effective rule “that the statute of limitation begins to run on the actual date of Service v. Shell Oil Products, 130 S. Ct. 1251 (2010), she urges us to adopt a

the limitations period begins to run when the employee has given notice of The plaintiff acknowledges that “the majority of jurisdictions hold that p. 5 Whye

later than the date of resignation. Thus, by definition, the act of discrimination cannot occur any intolerable when the employee tenders his or her resignation.

reasonable employee cannot accept. The conditions become

retaliatory action is the creation of intolerable conditions which a separation from work. In a constructive discharge situation, the action which starts the running of the period of limitations is the

resign. In short, in an actual termination situation, the retaliatory

Patterson v. State, Dept. of Health, 256 P.3d 718, 725 (Idaho 2011) (plaintiff’s plaintiff tenders his or her resignation or announces a plan to retire.” Id.; see cause of action accrues and the statute of limitations begins to run when the The harm has been done when the employee feels compelled to employee must leave,” id, 102 P.3d at 387 (quotations omitted). Thus, the court concluded, “the

his claims as time-barred. Id act for which there is a distinct cause of action.” Id would feel forced to resign, then the resignation is a . . . distinct discriminatory

was not time-barred. Id

i.e. can know when the atmosphere has been made so intolerable . . . that the Jersey Superior Court in Daniels, 773 A.2d at 721, the court explained:

rejected the plaintiff’s argument and affirmed the district court’s dismissal of the effective date of his retirement. p. 5 Whye, 102 P.3d at 385. The supreme court makes the employee’s job conditions so intolerable that a reasonable person and 42 U.S.C. § 1983 (2000) claims, arguing that neither claim accrued until employee appealed the district court’s dismissal of his constructive discharge Council for the City of Topeka, 102 P.3d 384 (Kan. 2004). There, the plaintiff The Kansas Supreme Court reached a similar conclusion in Whye v. City claim did not accrue until “she gave definite notice of her intention to retire,” it date the employee gave definite notice of her intention to retire. Id. at 138-39.

“when [the plaintiff] was given definite notice of her impending termination,” Because “[i]n the case of constructive discharge, it is only the employee who

138, when “the employer discriminates against an employee and purposely generally not “a discrete, identifiable act” in constructive discharge cases, id. at

the Second Circuit vacated the district court’s order, holding that since her discriminatory acts” by her employer. Flaherty, 235 F.3d at 135. On appeal, , when she “received a warning letter following a series of allegedly

claim was time-barred. The district court concluded that the claim accrued judgment in the employer’s favor on the ground that her constructive discharge plaintiff employee appealed the district court’s order granting summary In Flaherty v. Metromail Corp. is, when the breach occurs. Coyle v. Battles p. 6 must be brought within three years of the time the cause of action arises – that nevertheless fails as untimely. Under New Hampshire law, a contract claim

enforceable employment contract between the plaintiff and the City, her claim

Assuming without deciding that the employee handbook created an

parties.

that the plaintiff had not established a contractual relationship between the

time-barred, the court did not address the timeliness issue, but ruled instead

to the trial court, as it does on appeal, that the plaintiff’s contract claim is also that contract when it constructively discharged her. Although the City argued contractual relationship” between her and the City, and that the City breached

when she submitted her December 21, 2006 resignation letter. Thus, the However, the alleged breach – the plaintiff’s constructive discharge – occurred she was “constructive[ly] terminat[ed] from employment on January 1, 2007.”

‘for cause’ and that it would follow a progressive discipline system, created a

statute of limitations.

508:4, I. Here, the plaintiff contends that the alleged breach occurred when which a reasonable employee cannot accept.” Daniels discharge claim began to run on December 21, 2006,, 147 N.H. 98, 100 (2001); see RSA Here, the three-year limitations period for the plaintiff’s constructive “employee handbook, which specifically states that the City may only terminate against her on her breach of contract claim. She argues that the City’s The plaintiff also contends that the trial court erred in ordering judgment

2009, more than three years later. Accordingly, the claim is barred by the

from work, here, “the retaliatory action is the creation of intolerable conditions

tenders the resignation or retirement notice.

cannot occur any later than the date of resignation.” Id

her resignation. She did not commence suit, however, until December 29,

We find the reasoning in these cases persuasive. Whereas in a wrongful

therefore, that an action for constructive discharge accrues when the employee claim accrues after the employee tenders a resignation.”). We conclude, “[t]here are no reported decisions that have held that a constructive discharge

action,” a constructive discharge has occurred, and “the act of discrimination once “a reasonable employee is compelled to resign due to the employer’s

of her intent to resign”). claim for constructive discharge arose “when she provided unequivocal notice p. 7 7

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

Affirmed

barred. plaintiff’s contract claim, asserted in her December 29, 2009 writ, is also time-