2016-0122, Beverly A. Cluff-Landry v. Roman Catholic Bishop of Manchester

School (the s chool). We affirm. defendant, Roman Catholic Bishop of Manchester d/b/a St. Christopher the Superior Court (Garfunkel, J.) granting the motion to dismiss of the CONBOY, J. The plaintiff, Beverly A. Cluff - Landry, appeals an order of

defendant. and Gregory L. Silverman on the brief, and Mr. Callaghan orally), for the Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Peter G. Callaghan

(Ellen Purcell on the brief), for the plaintiff. Johnson on the brief and orally), and Purcell Law Office, PLLC, of Portsmouth Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H.

No. 2016 - 0122 Hillsboro ugh - southern judicial district

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 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, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

gave the plaintiff her “L esson Observation” report in which sh e stated that the began observing the plaintiff teach in the classroom. On April 13, the principal placed the plaintiff on a “Teacher Improvement Plan.” In March, the principal insubord ination” for the events on January p. 2 27. On February 22, the principal “escalated.” O n February 3, the principal issued the plaintiff a “letter of student. Thereafter, the principal’s alleged retaliation toward the plaintiff defiant student was bullying their daughter, the principal expelled the defiant Later that month, after the parents of a student complain ed that the

teacher to replace her for the day. normally report to work, she was told that the principal had called a substitute to sit in her car; upon returning to the classroom at the time she would to get to the bottom of this.” (Quotations omitted.) The plaintiff left an d went principal “continued to talk in a loud voice” to the plaintiff repeating, “I’ve got the plaintiff telling the principal that she was not present for the incident, the incident that occurr ed the previous day involving the defiant stude nt. Despite was readying the room, and “began talking in a very loud voice” about an approximately 45 minutes before the start of the school day, while the plaintiff January p. 2 27, 2012 incident, when the principal entered the plaintiff’s classroom characterizes as retaliation against her. For example, the plaintiff describes a Thereafter, the principal began taking actions that the plaintiff

just very you ng and simply needed to repeat P re - K.” principal took no action. The principal “insisted that the defiant student was plaintiff continued to complain to the principal about the student, but the response to the plaintiff’s concerns, the principal “simply laughed.” The that the behavior was in violation of the stud ent - parent handbook.” In unsafe behaviors and the school’s inability to keep the other students safe, and that the school was not adequately set up to handle [the student] due to his In November p. 2 2011, th e plaintiff reported to the principal “her concerns

p. 2 2011, but the other student remained in the Pre - K program. things, and verbal abuse.” One of the se students left the s chool in October “daily kicking, hitting, slapping, punching, spitting, biting, screaming, throwing 2011 - 2012 academic year, each of whom exhibited defiant behavi ors, including Tw o new students enrolled in the P re - K program at the beginning of the

principal. the p. 2 2010 - 2011 school year, and in August 2011, the s chool hired a new annually in 2009, 2010, and 2011. The principal left the s chool at the end of K) teacher and a teacher of visual arts. Her teaching contract was renewed work at the s chool for the 2008 - 2009 academic year as a pre - kindergarten (Pre be true. In 2008, t he plaintiff was hired by the s chool’s former principal to We assume the following facts, as alleged in the plaintiff’s complaint, to

I. Background p. 3 3

to grant the motion to dismiss. Id. allegations constitute a basis for legal relief, we must hold that it was improper tests the facts in the complaint against the applicable law, and if the merely conclusions of law. Id. We then engage in a threshold inquiry that need not assume the truth of statements in the plaintiff’s pleadings that are all reasonable inferences in the light most favorable to her. Id. However, w e 644, 645 (201 p. 3 3). We assume the plaintiff’s pleadings to be true and construe of a construction that would permit recovery.” Sanguedolce v. Wolfe, 164 N.H. “whether the allegations in the plaintiff’s pleadings are reasonably susceptible In reviewing a trial court’s grant of a motion to dismiss, we consider

II. Standard of Review

followed. motion. The plaintiff unsuccessfully sought reconsideration, and this appeal their publication. Following a hearing, the trial court granted the s chool’s defamatory statements a re not actionable because the plaintiff consented to employment was governed by a one - year contract; and ( p. 3 3) the alleged barred by the statute of limitations, and also fails because the plaintiff’s insufficient to support a violation of the Act; (2) the wrongful discharge claim is s chool moved to dismiss, arguing that: (1) the plaintiff’s factual allegations are contract; and (3) slander, based upon the principal’s comments to A&T. The of school and public policies; (2) wrongful discharge, for failing to renew her Supp. 2016) (Act), by failing to renew her contract after she reported violations New Hampshire Whistleblowers’ Protection Act, RSA chapter 275 - E:2 (2010 & In May 2015, the plaintiff sued the s chool, alleging: (1) a violation of the

her contract was n ot renewed. (Quotations omitted.) peers and had trouble in the classroom,” “was put on a plan in the end” and the plaintiff: “didn’t really leave on good terms,” “didn’t get along with her contacted the principal. During the conversation, the principal told A&T that Taylor, Inc. (A&T), “to do a reference check.” On August 5, 2014, A &T [she] was applying for jobs,” the plaintiff hired a “reference company,” Allison & Thereafter, “c oncerned [the s chool] was giving her a bad reference when

Her last day of work was on June 15, 2012. plaintiff continued to work for the remainder of the 2011 - 2012 academic year. contractual teaching obligations will expire on or before June p. 3 30, 2012.” The School for the school year 2012 - 2013. Accordingly, any and all mutual be advised that I am unable to offer you a teaching position at S t. Christopher On April 15, the principal sent the plaintiff a letter that stat ed: “Please

teacher aids when they are in her classroom.” (Quotations omitted.) as far as student behavior,” and “has difficulty working with other teachers and behavior issues,” “must t ake responsibility for what happens in her classroom, plaintiff: “needs to work on her ability to develop strategies for student p. 4 4

employee’s complaint concerne d a change in her employer’s management Independent Living, 50 F.3d 51 p. 4 4, 517 (8th Cir. 1995) (explaining that an purposes of a whistleblower claim. See, e.g., Nichols v. Metro. Center for “law or rule” adopted under the laws of a state or the United States for A private employer’s internal policies or procedures do not constitu te a

omitted). unlawfully.” Appeal of Osram Sylvania, 1 p. 4 42 N.H. 612, 618 (1998) (quotation reasonable person might have believed that the employer was acting had ‘ reasonable cause to believe’ is an objec tive question; namely, whether a Appeal of Smithfield Dodge, 145 N.H. 23, 26 (2000). “Whether an employee only that an employee reasonably believe that such a violation has occurred.” (2001). RSA 275 - E:2 “does not require an actual violation of a law or rule but employment action.” Appeal of Seacoast Fire Equip. Co., 146 N.H. 605, 608 was a causal connection between the protected [conduct] and the proscribed (2) she “suffered an employment action proscribed by” th e Act; and (3) “there her complaint that show that: (1) she “engaged in an act protected by” the Act; To survive the motion to dismiss, the plaintiff must have alleged facts in

RSA 275 - E:2, I(a) (emphasis added).

Sta tes. laws of this state, a political subdivision of this state, or the United cause to believe is a violation of any law or rule adopted under the reported, verbally or in writing, what the employee has reasonable (a) The emplo yee, in good faith, reports or causes to be

employment because: compensation, terms, conditions, location, or privileges of threaten, or otherwise discriminate against any employee regarding No employer shall harass, abuse, intimidate, discharge,

The Act provides in pertinent part:

was violated by the four - year - old or the school.” ... allegation. . . suggesting that the Plaintiff believed any actual law or rule law or rule but focused solely on the school’s policies,” and that “[t]here was no s chool counters that, in her complaint, th e plaintiff “made no mention of any and prevent assaults, bullying, and injuries to staff.” (Bolding omitted.) The “covers such reports, particularly where the Defendant has a duty to step in teachers, an unsafe wo rkplace that was unsafe for students,” and that the Act alleged violations” of the Act because she “reported assault s of students and whistleblower claim under the Act. The plaintiff a sserts that she “sufficiently The plaintiff first argues that the trial court erred in dismissing her

III. Whistleblowers’ Protection Act p. 5 5

that the employee was reciting a violation of law”). As the trial court reasoned, “if a reasonable employer would have understood from an employee’s complaint Co., 144 N.H. at 6 11 (we consider a “report” under the Act to have been made the simple as sault statute, RSA 631:2 - a (201 6). See Appeal of Fred Fuller Oil understood her complaint to constitute a “report” that the child had violated is based upon her report of an “assault,” a reasonable employer would not have We also agree with the trial court that, to the extent the plaintiff’s claim

were excessive in violation of the federal Occupational Safety and Health Act). filed a safety complaint th at temperatures at the employe r’s production plan t driver may work); Appeal of Osram Sylvania, 142 N.H. at 614 - 1 p. 5 5 (employee violation of statutes and regulations limiting the number of hours a commercial Fred Fuller Oil Co., 144 N.H. 607, 609 (2000) (employee reported employer’s illegal dumping of fire extinguisher residue and wage law violations); Appeal of Appeal of Seacoast Fire Equip. Co., 146 N.H. at 606 - 07 (employee reported to allege facts that show that she engaged in an act protected by the Act. Cf. internal policies, such as the s chool’s student - parent handbook, she has failed whistleblower claim is based upon her reports of violations of the s chool’s W e agree with the trial court that, to the extent the plaintiff’s

due to the defian t student’s behavior.” principal] about the disruption in the classroom and the unsafe environment complaint further alleges that the plaintiff “continued to complain to [the that the behavior was in violation of the student - parent handbook.” The unsafe behaviors and the school’s inability to keep the other stude nts safe, and school was not adequately set up to handle [the defiant student] due to his November 2011, the plaintiff reported to the principal “her concerns that the “other public policies such as assault.” According to her allegations, in report ed violations of the “school’s policies and procedures” and violations of T he plaintiff ’s complaint alleges that she “reasonabl y belie ved” that she

termination against public policy). policy” were insufficient to establish a common law claim for w rongful (explaining that employee’s allegations in his writ of “violations of Company state’s statute); cf. Frevert v. Ford Motor Co., p. 6 614 F.3d 466, 474 (8th Cir. 2010) employer’s internal procedures and policies wil l not support a claim under the 182, 188 (Tex. App. 2012) (stating that complaints alleging violations of an brackets omitted)); Mullins v. Dallas Independent School Dist., 3 p. 5 57 S.W.3d under a statute” a s required by the Texas Whistleblower Act (quotation and the basis for a report of a violation of law because they are not “rules adopted 2013) (holding that a university’s internal administrative policies cannot form b rackets omitted)); University of Houston v. Barth, 403 S.W.3d 851, 856 (Tex. interest in a business’s internal management problems” (quotation and whistleblower retaliatory discharge statute; “the public does not have an policies, not a violation of the law within the meaning of Minnesota’s 6

violation of the Workers’ Compensation Statute.” reasonable employer would believe that the plaintiff was complaining of a the safety of other employees,” and that “under the pleaded facts, no complaint that “the four - year - old student’s ‘assaults’ jeopardized her safety or Workers’ Compensation Statute,” that the plaintiff did not allege in her complaint that the plaintiff believed she was reporting a violation of the trial court correctly reasoned that it “cannot infer from the face of her create safety protocols to combat inherently unsafe working conditions.” The employers to provide employees with proper equipment and attire, as well as to trial court explained that “[t]he general purpose of RSA 281 - A: p. 6 64, I [,] is to force life, health, and safety of the employees.” RS A 281 - A:64, I (Supp. 2016). The safeguards” and “adopting work methods and procedures which will protect the including “furnishing personal protective equipment, safety appliances and A:64, I, requires that employers provide employees with “safe e mployment,” she was reporting a violation of the Workers’ Compensation Law. RSA 281 - We, likewise, reject the plaintiff’s contention that she reasonably believed

case, the plaintiff does not argue that the s chool failed to comply with it. N.H. Admin. R., Ed 403.01(a)(2)(o)(1). Even assuming that rule appli es in this policy including . . . procedures to address complaints” concerning bullying. of intent that includes, among other things, a “copy of the school’s grievance non - public school for attendance purposes, an applicant must provide a letter rule simply requires that, as part of the application for initial approval as a Administrative Rules, Ed 403.01(a)(2)(o)(1). (Bolding omitted.) However, that policies” concerning bullying, citing, specifically, New Hampshire of Education rules” require non - public accredited schools “to adopt grievance 193 - F applies only to public schools, she contends that “New Hampshire Board 201 p. 6 6). (Bolding omitted.) Although the plaintiff concedes that RSA chapter 2016), and the Workers’ C ompensation Law, see RSA ch. 281 - A (2010 & Supp. Safety and Violence Prevention statute, see RSA ch. 193 - F (20 0 8 & Supp. to encompass violations of “Department of Edu cation r egulations,” the Pupil violated,” her “reports should reasonably have been understood” by the s chool violation, an employee is not required to expressly identify the law allegedly The plaintiff further a ssert s that because, “[w]hen reporting an alleged

criminal code — when she made the complaints. parent handbook and the school’s internal policies — and not the complaint, the plaintiff states that she only referenced the student be construed as a report of a violation of the law. In fact, in the complaints of a four - year - old student’s disruptive behavior should principal would not believe that an experienced teacher’s was a violation of a criminal statute. Simply put, a reasonable clear to [the principal] that she believed the four - year old’s conduct The complaint does not suggest in any way t hat the plaintiff made [t]he disruptive student at issue in this case was four years old. p. 7 7

extent she ever had one, accrued. April 15, [2012], t he plaintiff’s wrongful discharge claim, to the decision to report the behavior of the disruptive s tudent. Thus, on the School’s decision was in bad - faith and was based on her kne w, or, based upon her complaint, had reason to believe, that renewed for the 201 2 - 2013 school year. On that date, she also was notified on April 15, 2012, that her contract would not be on the School’s decision not to renew her contract. The plaintiff [i]n this case, the plaintiff’s wrongful discharge claim is premised

court, in dismissing her claim, reason ed that (i.e. discharged) from her employment on or about June 30, 2012.” The trial actions, and refusals to act contrary to policy and law, [she] was non - renewed following academic year and into the future,” but that “[a]s a result of [her] the s chool because her “teaching contract should have been rene wed for the The plaintiff’s complaint alleges that she was wrongfully discharged by

necessary for that claim are present. Id. thereb y triggering the running of the three - year period, once all of the elements N.H. p. 7 708, 712 (2010) (quotation and ellips i s omitted). A cause of action arises, bring suit after a cause of action accrues.” Beane v. Dana S. Beane & Co., 160 “Statutes of limitation place a limit on the time in which a plaintiff may

claim on May 13, 2015.” 15, 2012 when she was separated from work, and therefore she timely filed her She asserts that her cause of action “did not begin to accr ue until at least June . . . may be brought only within 3 years of the act or omission complained of”). three - year statute of limitations. See RSA 508:4, I (2010) (“all personal actions motion to dismiss her wrongful discharge claim because it is barred by the The plaintiff next argues that the trial court erred in granting the s chool’s

IV. Wrongful Discharge

Fire Equip. Co., 146 N.H. at 60 p. 8 8. e stablish that she “engaged in an act protected by” the Act. Appeal of Seacoast (2013), we conclude that the facts she alleged do not, as a matter of law, inferences from the m in her favor, see Ojo v. Lorenzo, 164 N.H. p. 7 717, 724 allegations of fact in the plaintiff’s complaint, and construing all reasonable declined to do so. Accordingly, l imiting our review to the well - pleaded or to correct deficiencies before dismissal has preclusive effect,” but she gave the plaintiff an opportunity to amend her complaint “to clarify [her] claims has alleged issues related to internal management matter s. T he trial court procedures” and “other public policies such as assault.” At most, the plaintiff reporting a violation of anything other than the s chool’s “policies and argument that a reasonable employer would have understood that she was The plaintiff did not plead any facts in her complaint to support her 8

she procures statements made to her agent that she cons iders defamatory.” As supporting her position that she should be permitted to bring an action whe n The s chool argues that the plaintiff “[does] not cite to one decision

actionable as s lander because they were invited by the plaintiff.” concluded that “any statements made by [the principal] to A&T are not that the plaintiff directed A&T to contact the s chool.” Thus, the trial court and, “[a]lthough not explicitly stated in the complaint, one can infer from it plaintiff admits in her complaint that she hired A&T to ‘do a refere nce check’,” actionable.” (Quotation omitted.) The court reasoned that, “i n this case, the wherein the injured party precipitated the statement’s release, is not axiomatic that ‘ invited defamation, ’ or th e issuance of a defamatory statement The trial court dismissed the plaintiff’s claim, explaining that “[i]t is

understood the statements’ defamatory meaning.” statements were, she claims, “made to one or more third parties, who was not renewed. (Quotations omitted.) T hese allegedly defamatory had trouble in the classroom,” “was put on a plan in the end” and her contract plaintiff “didn’t really leave on good terms,” “didn’t get along with her peers and reference check” and that A&T spoke with the principal, who stated that the The plaintiff alleges in her complaint that she “hired. . . [A&T] to do a

N.H. at 645 - 46 (quotation omitted). defamatory statement of fact about [her] to a third party.” Sanguedolce, 164 the defendant failed to exercise reasonable c are in publishing a false and motion to dismiss, the plaintiff must have alleged facts that would show that ‘invited’ slander in New Hampshire law.” (Bolding omitted.) “To survive the about her,” because, ac cording to the plaintiff, “[t] here is no exception for slander by hiring a reference company to find out what the [s chool] was stating s chool’s motion to dismiss her slander claim on the basis that she “invited the Finally, the plaintiff argues that the trial court erred in granting the

V. Slander

that her claim was time - barred. month after the limitations period had run, the trial court correctly concluded plaintiff did not initiate her action until May 13, 2015, approximately one claim accrues upon the employee’s separation from employment). B ecause the employee tenders his or her resignation, in a wrongful termination action, the constructive discharge claim as to which the cause of action accrues when the City of Nashua, 163 N.H. 6 p. 8 83, 688 (2012) (noti ng in dicta that, in contrast to a characterization of her claim as one for wrongful termination. See Jeffery v. were present. See Beane, 16 0 N.H. at 712. We are not persuaded by her accrued on April 15, 2012, when all of the elements necessary for the claim contract being “non - renewed” by the s chool. Her cause of action, therefore, We agree. The plaintiff’s claim, as framed in her complaint, i s based upon her p. 9 9

b rackets omitted.) Here, because “[t]he complaint only makes sufficiently third parties to whom the statements were published.” (Quotation and who made the statements, the time when the statements were made, and the complaint adequately identify the allegedly defamatory statements, the person evaluating the sufficiency of claims of slander, courts have required that the omitted.) The trial court rejected this argument, explaining that “[i]n principal] made similar statements to others.” (Capitalization and bolding the inference, based on facts [she] alleged,” that it was “likely that [the The plaintiff also argues that the trial court erred when it “failed to draw

properly dismissed her slander claim. as she admits in her complaint, she hired A&T to obtain them, the trial court principal’s allegedly defamatory statements were invited by the plaintiff in that, We agree with these authorities and conclude that, because the

for defamation”). libel, procured or invited by the plaintiff, is not sufficient to sup port an action Inc., 250 S.E.2d 676, 678 (N.C. Ct. App. 1 p. 9 979) (stating that “[a] p ublica tion of a cause to suspect will be unfavorable to hi m”); Pressley v. Continental Can Co., party and solicits the publication of matter which he knows or has reasonable is enough that the complainant requests or consents to the presence of a third 514, 515 (Ga. 1982) (holdin g that there can be no recovery for invited libel; “[i]t (quotation and brackets omitted)); Georgia Power Co. v. Busbin, 289 S.E.2d “plaintiff should not be permitted to sue for the injury he . . . invited” plai ntiff’s slander claim whe n plaintiff’s friends posed as prospective employers; Div. 1998) (concluding that the trial court did not erroneously dismiss seeking references); Beck v. Tribert, 711 A.2d 951, 959 - 60 (N.J. Super. Ct. App. defendant’s statements by having a friend pose as a prospective employer defendant on plaintiff’s defamation claim in par t because she invited the Supp. 2d 257, 263, 269 (D. Mass. 2004) (granting summary judgment to the p. 10 103 (2d Cir. 2015); Martinez v. New England Medical Center Hospitals, 307 F. statement’s release, is not actionable” (quotation omitted)), aff’d, 590 F. App’x issuance of a defamatory statement wherein the injured party precipitated the WL 1795156, at *7 (D. Vt. 2014) (explaining that “‘ invited defamation, ’ or the Florida law); Long v. Quorum Health Resources, LLC, No. 2:13 - C V - 189, 2014 invited the alleged defamation, the statement is not a “publication” under Mut. Life Ins. Co., 739 F.2d 1549, 1560 (11th Cir. 1984) (when the plaintiff statements were solicited by agents of the plaintiff”); Litman v. Massachusetts statements . . . cannot form the basis of a def amation suit because the posing as a prospective employer, the defendant’s “allegedly defamatory plaintiff requested his stepson and a friend each telephone the defendant Chevrolet, Inc., 952 F.2d 1052, 1054, 1055 (8th Cir. 1992) (holding that when statements that form the basis of the claim.” See, e.g., Kelewae v. Jim Meagher may not bring a claim for slander when she invites or procures the very from state and federal courts across the country uniformly holding a plaintiff the sc hool correctly states, the trial court’s decision is supported by “decisions 10

DALIANIS, C.J.