2017-0658, Michelle Clark v. New Hampshire Department of Employment Security & a.

and remand. wrongful discharge /demotion against DES. We affirm in part, reverse in part, appeals an order of the Superior Court (Smukler, J.) dismissing her claim of Public Employee Freedom of Expression Act, see RSA 98 - E:1 (2013). She also the Whistleblower s’ Protection Act, see RSA 275 - E:2, II (Supp. 201 8), and the Reardon, and Gl oria J. Ti mmons, on the plaintiff’s claims alleging a violation of Carpenter, Darrell L. Gates, Sandra Jamak, Colleen S. O’Neill, Tara G. the New Hampshire Dep artment of Employment Security, Dianne M. Superior Court (McNamara, J.) granting summary judgment to the defendants, DONOVAN, J. The plaintiff, Michelle Clark, appeals an order of the

assistant attorney general, on the brief and orally), for the defendant s. Gordon J. MacDonald, attorney general (Lynmarie C. Cusack, senior

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

NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY & a.

No. 2017 - 0658 Merrimack

address of the court's home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by E - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well as 2

and step 8 has the highest. RSA 99:1 - a. each [labor] grade.” N.H. Admin. R., Per 10 p. 2 2.66. S tep 1 has the lowest salary of each labor grade represent “the interva ls between the minimum and the maximum range of pay established for (Supp. 2018). B ut see Laws 2018, 162:6 (eff. Jan. 4, 2019) (setting forth nine steps). The steps 102.65. At the time of this appeal, t he 35 labor grades each contain eight “steps.” RSA 99:1 - a classified service for state employees. N.H. Admin. R., Per 102.13, 102.17, 102.37, 102.57, “Labor grade” represents the salary range established for each class of positions in the state 1

were also laid off. Howe ver, prior to her layoff date, the plaintiff accepted a Pursuant to a mandatory reduction in force, the other employees in her unit Administrator, informing her that she would be laid off on August 18, p. 2 2011. on August 2, 2011, t he plaintiff received a lette r from a DES Human Resources negative, and she did not receive her promised promotion. Shortly thereafter, the period covering January through April 2011. T he second evaluation was I n July 2011, the plaintiff received her second performance evaluation for

the employee’s review o r speak to the senator. senator. The pl aintiff contends that she was therefore not permitted to attend employee’s review, but Timmons ordered the plaintiff not to speak to the management. T he plaintiff alleges that a state senator was going to attend the because the employee had complained about the intern s and Timmons’ altered a review she had prepared for an employee under her supervision At some point, the plaintiff also suspected that her supervisors had

prevent her from doing so. interns with her union representatives, but Timmons and Carpenter tried to According to the plaintiff, she sought to address her concerns regarding the and Carpenter, the director of the Unemployment Compensation Bureau. workplace. The plaintif f communicated some of these concerns to Timmons relating to her interns’ hours and responsibilities and their behavior in the During this timeframe, the plaintiff became concerned about issues

p. 2 24 “in a few weeks.” supervisor, Timmons, promised her that she would be promoted to l abor g rade performance evaluation was positive and, a cc ording to the plaintiff, her evaluation for the period of O ctober 2010 through January 2011. The named defendants. In March 2011, t he plaintiff received her first performance fifteen employees, including three interns, two of whom were children of two As a supervisor, she was responsible for supervising approximately

of $ p. 2 25.01 and worked in Manchester. was a position in l abor g rade 21, s tep 7. At step 7, she received an hourly rate 1 Benefit Support Unit in DES’s Unemployment Compensation Bureau, which mid - 1990s. I n October 2010, she was promoted to a supervisor position in the or former employees of DES. The plaintiff has been employed by DES since the the following facts. The plaintiff and the individual defend ants are all current The record, viewed in the light most favorable to the plaintiff, supports p. 3 3

to work in Manchester rather than Concord “until the Tobey Building is ready knowledge of government practices.” Finally, Copadis arranged for the plaintiff Course, which would allow her to “enhance management skills and increase Level 1, Public Supervisor Program in the 201 p. 3 3 Certified Public Manager would be moved from step 1 to step 7. Copadis also recommended her for the position in labor grade 21, which the plaintiff obtained in November 2012, but plaintiff would “continue in [her] role as a Quality Control Investigator,” a performance evaluation from her personnel file. T he letter stated that the date o f demotion through February 7, 2013, and remove the negative which [she] had” prior to her demotion, provide her with back pay from her to reinstate her to a position of “like seniority, status and pay equal to that letter dated February 6, 2013, Copadis informed the plaintiff that he intend ed the plaintiff to discuss the issues she had with the agency. Subsequently, by Copadis as interim commissioner of DES. A few weeks later, Copadis met with In July 2012, the Governor and Executive C ouncil appointed George

investigation of DES by the New Hampshire Attorney General’s O ffice. against DES on similar grounds; and, a t some point, she participated in an filed a whistleblower complai nt with the New Hampshire Department of Labor misuse of the hiring system, nepotism, and harassment; in June 2012, she Executive Branch Ethics Committee against Reardon for failing to address experiencing: in May 2012, she filed a complaint with the New Hampshire s tate agencies about the intern issues and the harassment she was In addition to her PAB appeal, the plaintiff communicated with other

December 2011 to February 2012. result of distress from these incidents, the plaintiff went on medical leave from she received anonymous phone calls and mail at home and at work. As a car was “egged” in the DES parking lot, her home mailbox was smashed, and during this period, which she contends wa s for the purpose of retaliation: her The plaintiff alleges that she experienced various forms of harassment

representatives from her union, including the union president. by her union and discussed issue s relating to the interns with other During the pendency of the appeal, she was represented by counsel provided response to raising concerns about the hours and behavior of the interns. from her union. In her appeal, she alleged that she was un lawfully demoted in Hampshire Personnel Appeals Board (PAB) through a grievance representative In September 2011, the plaintiff appealed her demotion t o the New

intern. of DES, and discussed, among other things, issues pertaining to at least one during that month, the plaintiff met with Reardon, who was the commissioner hourly rate of $17.88, and required her to commute to Concord. At some time on August 19, 2011. This new position was in labor grade 12, s tep 8, with an demotion to the position of Program Assistant I in lieu of a layoff, which bega n p. 4 4

federal constitutional claims, and dismissed those claims. and interference with contract ual relations claims, as well as her state and J.) ruled that the defendants were entitled to immunity on the plaintiff’s IIED immunity. Following a six - day evidentiary hearing, the Trial C ourt (Mangones, evidentiary hearing to determine whether the remaining cl aims were barred by recovery” but denied the motion without prejudice to allow the court to hold an that her complaint was “susceptible of a construction that would permit wrongful demotion. With respect to the remaining claims, t he trial court ruled with DES; and (2) New Hampshire does not recognize a cause of action for DES when her unit was subject to the layoff and therefore remained employed which relief may be granted because: (1) she accepted a different position with discharge/demotion claim, ruling that her complaint failed to state a claim for (Smukler, J.) granted the motion as to the plaintiff’s wrongful var ious theories of immunity bar the plaintiff ’ s action. The Trial C ourt state a claim for which relief may be granted. The d efendants also argued that The d efendants moved to dismiss all of the plaintiff’s claims for failure to

injunctive relief. capacity, attorney’s fees and costs, reinstatement to her former position, and compensatory damages, back pay, fringe benefits, future wages, loss of earning several remedies, including, inter alia, compensatory and enhanced First Amendment to the United States Constitution. Her complaint seeks Hampshire Constitution; and (7) violation of the plaintiff’s rights under the violation of the plaintiff’s rights under Part I, Articles 22 and 32 of the New infliction of emotional distress (IIED); (5) interference with a contract; (6) Employee Freedom of Exp ression Act under RSA chapter 98 - E; ( p. 4 4) intentional chapter 275 - E; (2) wrongful discharge/demotion; (3) violation of the Public several claims: (1) violation of the Whistleblower s’ Protection Act under RSA In May 2014, t he plaintiff filed this action against the defendants alleging

harassment by certain unknown DES employees. supervisory positions, and contends that she continues to experience unless she becomes a supervisor. S he has applied unsuccessfully for does not have any supervisory duties and cannot receive a wage increase at s tep 8, the highest step in labor grade 21. According to t he plaintiff, she The plaintiff currently holds the position of Quality Control Investigator

withdrew her whistleblower complaint. retirement benefits, and she withdrew h er PAB appeal. At some point, she also Following this decision, t he plaintiff received back pay and Medicare and

Manchester office.” regarding the drive to Concord where [she] had formerly been assigned to the to be occupied by the department,” citing the plaintiff’s “continued concerns p. 5 5

disagree. employment occurred when she received notice that she would be laid off. W e the trial court erred in dismissing her claim because termination of her However, r elying up on our decision in Cluff - Landry, the plaintiff argues that employment with DES did not end despite her receipt of the layoff lett er. The plaintiff does not dispute th e trial court’s finding that her

and declined her invitation to adopt such a cause of action. “New Hampshire does n ot recognize a cause of action for ‘wrongful demotion, ’” plaintiff’s claim that she was wrongfully demoted, the trial court ruled that necessarily requires a plaintiff to be terminated from employment.” A s to the for which relief may be granted “[b]ecause a wrongful termination case the layoff. Therefore, the trial court concluded that she failed to state a claim end because she took another position with DES when her unit was subject to up on the facts in the complaint, the plaintiff’s employment with DES did not defendant’s wrongful discharge claim, the trial court determined that, based classified employee may be brought against the State. In dismissing the We assume, without deciding, that a wrongful discharge claim by a

N.H. State Prison, 169 N.H. 6 p. 5 57, 658 (2017). if the facts pleaded do not constitute a basis for legal relief. Ramos v. Warden, applicable law. Id. We will uphold the trial court’s grant of a motion to dismiss engage in a threshold inquiry that tests the facts in the complaint against the the plaintiff’s pleadings that are merely conclusions of law. Id. We then favorable to her. Id. However, we need not assume the truth of statements in pleadings to be true and construe all reasonable inferences in the light most Bishop of Manchester, 169 N.H. 670, 673 (2 017). We assume the plaintiff’s a construction that would permit recovery. Cluff - Landry v. Roman Catholic whether the allegations in the plaintiff’s pleadings are reasonably susceptible of In reviewing a trial court’s grant of a motion to dismiss, we consider

contract ual relations claims or her state and federal constitutional claims. does not appeal the trial court’s dismissal of her IIED and interference with dismissal of her wrongful discharge/demotion claim. We note that the plaintiff We first address the plaintiff’s arguments challenging the trial court ’s

I. Motion to Dismiss

trial court’s summary judgment order, and t his appeal followed. chapter 98 - E. The plaintiff unsuccessfully moved for reconsideration of the issues relating to DES, which the trial court ruled was required under RSA (2) the plaintiff failed to establish that she “engaged in public discourse” on received the statutory remedies available to her under RSA chapter 27 p. 5 5 - E; and (McNamara, J.) granted the motion, finding that: (1) the plaintiff has already remaining whistleblower and freedom of expression claims. T he Trial C ourt The defendants then moved for summary judgment on the plaintiff’s p. 6 6

of action for wrongful discharge. with the trial court’s conclusion that the plaintiff has failed to establish a cause discharge when the employm ent did not come to an end. Accordingly, we agree employer’s retaliatory actions, we have not r ecognized a claim for wrongful e ven if an employee experiences difficult working conditions due to an omitted)). In both cases, the employment relationship is discontinued. But, “satisfies the termination component of a wrongful discharge claim.” (quota tion intolerable that a reasonable person would feel forced to resign,” whic h an employer renders an employee’s working conditions so difficult and resignation rather than termination. Id. (“Constructive discharge occurs when we recognized in Karc h, the end of the plaintiff’s employment resulted from BayBank FSB, 147 N.H. 525, 53 p. 6 6 (2002). In the constructive discharge context to the termination component of a wrongful discharge claim. See Karch v. disagree. We have recognized only one exception — constructive discharge — demotion only to mitigate the damages she would incur from terminatio n. We demotion as if she had applied for a job elsewhere because she accepted the The plaintiff argues that we should consider her acceptance of the

have become academic or dead.” (quotation omitted)). p. 6 692 (2006) (“The doctrine of mootness is designed to avoid deciding issues th at took effect. See Sullivan v. Town of Hampton Bd. of Selectmen, 153 N.H. 690, cause of action became moot when DES offered her a demotion before the layoff wrongful discharge at the time she received notice of the impending layo ff, that Therefore, to the extent that the plaintiff may have had a cause of action for By extending this offer, DES, in effect, withdrew its decision to lay her off. offered the plaintiff a different position within the agency in lieu of the layoff. decision to lay her off. However, u nlike the employer in Cluff - Landry, DES Here, the plaintiff’s wrongful discharge claim is based up on DES’s

capacity; rather, she was “non - re newed.” Cluff - Landry, 1 p. 6 69 N.H at 6 p. 7 78. plaintiff in Cluff - Landry was not subsequently retained by the employer in any resignation, rather than the last day of her employment). Moreover, the a ccrue for statute of limitations purposes on the date she tendered her 688 (2012) (holding that the plaintiff’s constructive discharge claim began to public policy would condemn); see also Jeffe r y v. City of Nashua, 163 N.H. 683, an act that public policy would encourage or for refusing to do something that faith, retaliation, or malice; and (2) the plaintiff was discharge d for performing (wrongful discharge requires proof that: (1) the discharge was motivated by ba d discharge were present. Id.; Leeds v. BAE Sys., 165 N.H. 376, 379 (2013) time she received the notice, all of the elements required to prove wrongful was based on her employer’s decision not to renew her contract, and, a t the at 67 7 - 7 8. W e reached this conclusion because her wrongful discharge claim day of employment, which was over two months later. Cluff - Landry, 169 N.H. received notice that her contract would not be renewed, rather than on her last discharge began to accrue, for statute of limitations purposes, when she In Cluff - Landry, we held that the plaintiff’s cause of action for wrongful 7

employee to its right to manage it s employees’ duties and responsibilities in the the reach of this judicial intervention from an employer’s right to discharge an employment. A cause of action for wrongful demotion, however, would extend pay and bene fits and may adversely affect the employee’s ability to find new discharging an employee, which results in the termination of the employee’s permits judicial intervention only where an employer takes the serious action of and profitably” than that of wrongful discharge. Id. Wrongful discharge risks of interfering with an employer’s ability to “operate his business efficiently review to an employer’s decision to demote carries with it significantly greater by his or her employer. However, the consequences of expanding judicial interest in maintaining his or her position without fear of retaliatory demo tion In balancing these same interests, w e acknowledge an employee’s

necessary to permit him to operate his business efficiently and profitably.” Id. with the employer’s normal exercise of h is right to discharge, which is affords the employee a certain stability of employment and does not interfere the economic system or the public good.” Id. We reasoned that “[s]uch a rule contract based on bad fai th, malice, or retaliation “is not in the best interest of balancing these interests, we held that termination of an at - will employment public’s interest in maintaining a proper balance between the two.” Id. In against the interest of the employee in maintaining his employment, and the balanced “the employer’s interest in running h is business as he sees fit... 114 N.H. at 133. In determining whether to recognize this cause of action, we recognized for the first time a cause of action for wrongful discharge. Monge, also Monge v. Beebe Rubber Co., 114 N.H. 130, 133 (19 p. 7 74). In Monge, we or retaliation should receive legal recognition. Aranson, 140 N.H. at 364; see maintaining her position without fear of demotion ba sed on bad faith, malice, We begin by addressing the first step: whether an employee’s interest in

character....” N.H. CONST. pt. I, art. 14; see Aranson, 140 N.H. at 364. recourse to the laws, for all i njuries he may receive in his person, property, or Constitution entitles every subject of this state “to a certain remedy, by having omitted). In deciding this question, we keep in mind that the New Hampshire be an appropria te way to recognize the asserted interest. Id. at 364 (quotation legal recognition and, if so, whether the relief that the plaintiff request s would determine whether the interest that the plaintiff asserts should receive any Answering this question requires us to take two separate steps: we must plaintiff seek s. Aranson v. Schroeder, 140 N.H. 359, 363 - 64 (1995). it is a question of policy whether it would be wise to provid e the relief that the As in any case in which we are asked to recognize a new cause of action,

cause of action for wrongful d emotion. We decline her invitation. issu e of first impression for this c ourt, the plaintiff invites us to recognize a demoted, but not terminated, an employee for retaliatory purposes. Raising an supports extending it to encompass circumstances in which an employer has The plaintiff next argues that “[t]he theory behind wrongful discharge” p. 8 8

commissioner for same, after the employee has made a reasonable effort to aggrieved employee the ability to request a hearing with the labor retaliation for whistleblower activity); RSA 275 - E:4, I (2010) (providing an compensation, terms, conditions, location, or privileges of employment” in discriminate[d] against” an employee “regarding [such employee’s] “harass[e d], abuse[d], intim i date[d], discharge[d], threaten[ed], or otherwise an employee the ability to pursue a civil suit where an employer has an employer’s unlawful activity. See, e.g., RSA 275 - E:2 (Supp. 201 p. 8 8) (providing employees who experience retaliation for disclosing or refusing to participate in 935 P.2d at 1059 - 60, as New Hampshire law provides statutory protections to than discharging, the employee, see Trosper, 734 N.W. 2d at 711; Brigham, escape consequences for retaliating against an employee by demoting, rather agree with their reasoning th at holding otherwise would allow employers to Dillon Cos., Inc., 935 P.2d 1054, 1059 - 60 (Kan. 1997). However, we do not See Trosper v. Bag ‘N Save, 734 N.W. 2d 704, 711 (Neb. 2007); Brigham v. have extended wrongful discharge to encompass claims of retaliatory demo tion. The plaintiff urges us to consider cases from two other jurisdictions that

wrongful discharge as a cause of action. See Monge, 114 N.H. at 133. an employer’s management of its business that we allowed when we recognized Opening the door to these questions would expand the limited interference into alterations in job duties, and disciplinary hearings (quotation omitted)). vexatious suits,” which could involve not only demotions but also transfers, action because it “could subject employers to torrents of unwarranted and Ct. App. 1995) (declining to recognize wrongful failure - to - promote as a cause of Id.; see also Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 56 2 (Ariz.

duties without an increase in salary? characterize as a demotion a signi ficant increase in an employee’s to another be considered a demotion? Would it be fair to but not salary, actionable? Could a transfer from one department definition, many questions arise: Is a demotion in title or status, Although the ter m “demotion” may appear amenable to clear

retaliatory demotion, the c ourt noted: concept of retaliatory conduct or discrimination.” Id. In rejecting a claim of narrow cause of action into an “ill - defined, and potentially all - encompassing element of “discharge” with “demotion” has the potent ial to render an otherwise Moreover, we agree with the Illinois Supreme Court that replacing the

for employees than a discharge. p. 8 882 (Ill. 1 p. 9 994), which involve decisions that result in less serious consequences workplace disputes,” Zimmerman v. Buchheit of Sparta, Inc., 645 N.E. 2d 877, would require courts to become “increasingly involved in the resolution of workplace. Therefore, r ecognizing wrongful demotion as a cause of action 9

disclosure by any public employee,” RSA p. 9 98 - E:2 (2013), as long as the content interfering “in a ny way with the right of freedom of speech, full criticism, or proceedings.” Id. Accordingly, t his chapter prohibits any person from the employer to protect legitimate confidential records, communications, and chapter is “to balance the rights of expression of the employee with the need of government entity and its policies.” RSA 98 - E:1. The stated intention of this discuss and give opinions as an individual on all matters concerning any Freedom of Expression Act, every public employee has “a full right to publicly Pursuant to RSA chapter 98 - E (2013), New Hampshire’s Public Employee

A. Freedom of Expression Act

court’s application of the law to the facts de novo. Id. law, we will affirm the grant of summary judgment. Id. We review the trial of material fact, and if the moving party is entitled to judgment as a matter of N.H. 420, 425 (2016). If our review of that evidence discloses no genuine issue in the light most favorable to the non - moving party. Weaver v. Stewart, 16 p. 9 9 the affidavits and other e vidence, and all inferences properly drawn from them, In reviewing the trial court’s grant of summary judgment, we consider

and whistleblower claims. granting summary judgment to the defendants on her freedom of expression We turn next to the plaintiff’s arguments that the trial court erred in

II. Motion for Summary Judgment

public employees in classified, merit - based systems. employment claims are limited to “at - will” employees and are not available to wrongful demotion, we need not address the State’s argument that com mon law Because we conclude that there is no common law cause of action for a

dismissal of the plaintiff’s wrongful discharge/demotion claim. common law cause of action for wrongful demotion and affirm the trial court’s appropriate way to recognize it). Accordingly, we decline to recognize a 140 N.H. at 364 (whether the relief that the plaintiff requests would be an common law, we need not address the second step in this inquiry. Aranson, the interest that the plaintiff asserts should not receive l egal recognition in the duties, responsibilities, and pay of its employees. Because we determine that employer’s right to manage its workplace, including its decisions relating to the that adopting wrongful demotion as a cause of action would interfere with the and the employer’s interest in running its business as it sees fit, we conclude Accordingly, in balancing the employee’s interest in employment stability

simil ar process available at his or her place of employment). maintain and restore his or her rights through any grievance procedure or p. 10 10

school’s principal was not “beyond [federa l] constitutional protection”). 4 p. 10 10, 413 (1979) (public school teacher’s private expression of her opinion to the expressions made at wor k.”), and Givhan v. W. Line Consol. Sch. Dist., 439 U.S. (2006) (“Employees in some cases may receive First Amendment protection for g ive opinions” (emphasis added)), with Garcetti v. Ceballos, 547 U.S. 410, 420 RSA 98 - E:1 (providing the right of public employees to “publicly discuss and RSA 98 - E:1 limit s its protection to expression discussed “publicly.” Compare 453, 458 - 59 (1976) (applying Pickering standard). However, unlike federal law, employer’s speech on matters of public concern); Bennett v. Thomson, 116 N.H. Pickering v. Board of Education, 391 U.S. 563, 568 (1968) (protecting a public that are confidential or privileged in nature. Booker, 139 N.H. at 340 - 41; cf. on all matters relating to the public employer and its policies except for matters public employee s than does federal law because the statute protects expression W e have previously held that RSA 98 - E:1 pr ovides broader protections to

statute itself for further evidence of legislative intent. Id. language of a statute is plain and u nambiguous, we need not look beyond the to include. Olson v. Town of Grafton, 168 N.H. 563, 566 (2016). When the legislature might have said or add language that the legislature did not see fit legislative int ent from the statute as written, and will not consider what the language according to its plain and ordinary meaning. Id. We interpret look to the language of the statute itself, and, if possible, construe that as expressed in the words of the statute considered as a whole. Id. We first statutory interpretation, we are the final arbiters of the intent of the legislature Roy v. Quality Pro Auto, LLC, 168 N.H. 517, 519 (2016). In matters of statute. Statutory interpretation is a question of law, which we review de novo. The plaintiff’s argument requires that we interpret the language of the

times,” spoken publicly. require her to speak publicly. S he further asserts that she nonetheless has, “at judgment on her freedom of expression claim because the statute does not The plaintiff argues that the trial c ourt erred in granting summary

and only in her role as a supervisor. statute because she would have spoken to the senator in a confidential setting plaintiff spoken with her, the discussion would not have fall en under the attempt to speak with the state senator, the trial court found that, had the expected to raise her concerns as a State employee.” A s for the plaintiff’s government” and raised concerns only with “the people to whom she would be evidence “that she discussed matters with any one outside the State public discourse” on matters concerning DES because she provided no court determined that the plaintiff failed to demonstrate that she “engaged in I n granting summary judgment to the defendants on this claim, the trial

records, RSA 98 - E:3 (2013). of that expression is not subject to laws relating to confidential or privileged p. 11 11

public. if the communication s could not be observed or accessed by members of the excludes a public employee’s communications with other public em ployees only employees from protection under the statute. Rather, the word “publicly” categorically exclude a public employee’s communications with other public Booker, 139 N.H. at 340 - 41, we cannot conclude that it was intended to Construing “publicly” in light of the broad protections of the statute, see communications occurred “publicly” within the meaning of the statute. expected to speak; the trial court did not determine whether those that she communicated with state employees to whom she wou ld have been provide evidence that she “engaged in public discourse” based only on the fact defendants on this claim, the trial court concluded that the plaintiff failed to that she did, “at times,” speak publicly. In granting summary judgment to the Our inquiry does not end here, however, because the plaintiff contends

statute. See RSA 98 - E:1 -: 3. privileged content must be discussed “publicly” to receive protection under the that the speech, disclosure, and full criticism of non - confidential and non superfluous language, State v. Duran, 158 N.H. 146, 155 (2008), we conclude interpret the statute as a whole and presume that the legislature does not use confidential and privileged records or communications.”). Beca use we must 98 - E:3 (“Nothing in this chapter shall suspend or affect any law relating to on the requirement under RSA 98 - E:1 that expression be made “publicly.” RSA confidential or privileged records from the statute’s protection; it has no effect privileged. See RSA 98 - E:3. RSA 98 - E:3, however, excludes expression on “publicly” merely refers to any expression that is not considered confidential or “publicly.” Addition ally, the plaintiff points to RSA 98 - E:3 to assert that any bearing on whether such disclosures or full criticism must be made to the types of expression that are protected by the statute; they do not have criticism, or disclosure by any public employee.”). T hese words, however, refer (“No person shall interfere in any way with the right of freedom of speech, f ull freedom of “disclosure” and “full criticism” are “expansive.” See RSA 98 - E:2 does not require expression to occur in “a particular forum” because the The plaintiff points to language in RSA 98 - E:2 to assert that the statute

See RSA 98 - E:1. limit s that protection to expressions that the public may observe or access. statute expands the scope of the subject matter that rec eives protection, it International Dictionary 1836 (unabridged ed. 2002). Therefore, while the place accessible to the public: openly, obviously.” Webster’s Third International Dictionary defines “publicly” as: “in a manner observable by or a _ _ _, _ __ (decided September 1 8, 2018) (slip op. at 8). Webster’s Third common usage, using the dictionary for guidance. State v. Brawley, 171 N.H. The statute does not define the word “publ icly,” and thus we look to its p. 12 12

suggest that the plaintiff was speaking solely on behalf of her employer. See time she attempted to speak to the state senator does not, in and of itself, Moreover, the fact that the plaintiff was the employee’s supervisor at th e

speaking to the state senator at all. have been discussed at the review. Instead, Timmons’ order barred her from plaintiff was not limited to the review or to conf idential information that may that the plaintiff sought to attend was “confidential,” Timmons’ directive to the retaliatory actions toward another employee. Thus, even assuming the review the purpose of prohibit ing the plaintiff from discussing the agency’s allegedly generally. Furthermore, according to the plaintiff, Timmons gave this order for rather, her order prohibited the plaintiff from speaking to the state senator Timmons’ order not to speak with the senator was not limited to the review; Based on this allegation, viewed in the light most favorabl e to the plaintiff,

was not allowed to attend the review, or talk to the Senator. management. I refused to sign [the employee’s] falsified review and [the employee’s] complaints about interns, and Timmons’ the employee’s] supervisor had written. It was altered be cause of tell [the employee] that her review had been altered from what I, [as going to [the employee’s] review, as Timmons did not want me to Timmons ordered me not to speak to [the state senator], who was

material fact as to th is issue. In the plaintiff’s affidavit, she states: supervisor. However, o ur review of the record reveals a genuine dispute of would h ave been confidential and conducted only in the plaintiff’s capacity as a subordinates. T he trial court concluded that any discussion with the senator speaking with a state senator about an allegedly falsified review of one of her We also must consider the plaintiff’s assertion that she was barred from

complaints, could be observed or accessed by the public. whether these communications, such as her ethics and whistleblower employees, it did not determine if a genuine issue of material fact exists as to While the trial court correctly concluded that she spoke only with state complaints with the Executive Ethics Committee and the Department of Labor. Attorney General’s O ffice and her union representatives. The plaintiff also filed inside and outside of DES, about the issues within the agency, including the demonstrates that the plaintiff communicated with numerous individuals, superfluous. See Duran, 158 N.H. at 155. Nevertheless, the record the statute otherwise would require us to treat the word “publicly” as if it were unless a public record of the meeting was created and published. T o interpret closed doors, as s uch conversations would not be accessible to the public protected by the statute was intended to include private co nversations behind the p lain meaning of “publicly,” we cannot conclude that the expression the statute, including her conversations with her own supervisors. Based on Here, the plaintiff asserts that all of her conversations are protected by p. 13 13

remedies.” seniority rights, any appropriate injunctive relief, or any combination of these reinstatement of the employee, the payment of back pay, fringe benefits and “shall order, as the commissioner or his designee considers appropriate, with the labor commissioner under RSA 275 - E:4, I, the labor commissioner attorney fees and costs, to the prevailing party.” Similarly, f ollowing a hearing “[t] he court may order reinstatement and back - pay, as well as reasonable RSA 275 - E:4, I. When an employee brings a civil suit under RSA 275 - E:2, II, The statute expressly authorize s equitable remedies. RSA 275 - E:2, II;

employm ent.” grievance procedure or similar process available at such employee’s place of reasonable effort to maintain or restore such employee’s rights through any designe e appointed by the commissioner” after the employee “has first made a E:4, I, an employee may “obtain a hearing with the commissi oner of labor or a “may bring a civil suit within 3 years of the alleged violation.” Under RSA 275 obtain relief for a whistleblower violation. Under RSA 275 - E:2, II, the employee (1996). T he Act provides two avenues b y which an aggrieved employee may E:2, I(a) - (c); Appeal of N.H. Dept. of Employment Security, 140 N.H. 703, 708 investigation into allegations that the employer has violated the law. RSA 275 he or she reasonably beli eves is a violation of the law, or for participating in an retaliating against an employee for reporting or refusing to participate in what Hampshire’s Whistleblowers’ Protection Act (the Act) prohibits employers from summary judgment to the defendants on her whistleblower claim. New We now turn to the plaintiff’s challenge to the trial court’s granting of

B. Whistleblowers’ Protection Act

opinion. claim and accordingly remand for further proceedings consistent with this summary judg ment to the defendants on the plaintiff’s freedom of expression For these reasons, we conclude that the trial court erred in granting

supervisor. have been either confidential in nature or only conducted in her capacity as to whether the plaintiff’s anticipated discussion with the state senator would Therefore, the record demonstrates that genuine issues of material fact exist as speak as an individual, not as a spokesperson on behalf of her employer. allegations of wrongdoing by DES employees demonstrates that she sought to to be an employee of [the agency]”). To the contra ry, her desire to speak about agency], rather than whether he spoke as a citizen or as a citizen who happens “whether the petitioner spoke as an individual or as a spokesperson for [the “individual” capacity under RSA 98 - E:1 and professional capacity to be Booker, p. 13 139 N.H. at 341 (considering the relevant distinction between one’s p. 14 14

enumerates only equitable remedies also authorizes compensatory damages). Human Rts., 124 N.H. 404, 411 - 12 (1983) (declining to hold that a statute that include. Olson, 168 N.H. at 566; see E.D. Swett, Inc. v. N.H. Comm. f or have said or add language to the statute that the legislature did not see fit to it did not do so, and, therefore, we will not consider what the legislature might the enumerated remedies if it intended to authorize such an award. However, T he legislature c ould have expressly included compensatory damages within enumerating specific forms of equitable relief. RSA 275 - E:2, II; RSA 275 - E:4, I. Moreover, the statute limits the type of equitable remedies available by under prior law that did not explicitly include back pay as a remedy). damages, because it seeks to make the aggrieved employee “whole”) (decided N.H. 517, 52 1 - 22 (1992) (back pay is part of the injunctive remedy, rather than remedies. RSA 275 - E:2, II; RSA 275 - E:4, I; see also Appeal of Bio Energy, 135 In viewing the statute as a whole, it expressly authorizes only equitable

received. We begin with the plaintiff’s argument on compensatory damages. seek a number of equitable remedies authorized by the Act tha t she has not (2) even if the Act does not authorize compensatory damages, she is entitled to compensatory damages based on its plain language and remedial nature; and summary judgment, because: (1) the Act cannot be construed to preclude grade 21, step 7. However, she argues that the trial court erred in granting DES equal to the amount she would have earned had she remained in labor demotion, nor does she dispute that she received an amount in back pay from same labor grade and pay rate as the position she held before she accepted the The plaintiff does not dispute that she was reinstated to a position in the

granted summary judgment in favor of the defendants. been provided [with] the statutory remedie s available to her,” the trial court authorize compensatory damages. Determining that the plaintiff “ha s already determined that the Act limits relief to equitable remedies and does not would have rece ived if she had not been demoted. Furthermore, the trial court to her demotion and received back pay to reimburse her for the income she because she was reinstated to the same labor grade and pay rate she held prior that the plaintiff had already received all of the equitable remedies available light of all forms of relief available in RSA chapter 275 - E, the trial cour t found focused on the remedies she sought. After analyzing her requested remedies in material fact on the merits of the plaintiff’s claim. Instead, the trial court trial court made no determinati on as to whether there was a genuine dispute of injunctive relief. Granting summary judgment in favor of the defendants, the and annual leave balances, counseling costs, reasonable attorney’s fees, and “comparable or better,” mileage reimbursements, r eplacement of depleted sick benefits, front pay, reinstatement to her former position or one that is numerous forms of relief, including compensatory damages, back pay, fringe claim to superior court under RSA 275 - E:2, II. In doing so, she sought of Labor, she withdrew her complaint and later brought her whistleblower Though the plaintiff filed a whistleblower complaint with the Department p. 15 15

on which a reasonable fact - finder could determine that the plaintiff would have the plaintiff would be promoted to a higher labor grade does not provide a basis context, a verbal promise made by Timmons, an intermediate supervisor, that promote an employee. See generally N.H. Admin. R., Per ch. 300. In this system that requires adherence to specific procedures to reclassify a position or New Hampshire has a complex, merit - based state employee classification

therefore insufficient to defeat the defendant s’ motion for summary judgment. the plaintiff on this issue do not establish a genuine issue for trial and are Kearsarge Lighting Preci nct, p. 15 159 N.H. 529, 535 (2009). Here, the facts cited by forth specific facts showing a genuine issue for trial. Hill - Gra nt Living Trust v. must contain more than general allegations or denials, and instead must set To defeat a motion for summary judgment, the opposing party’s affidavit

“outperforming.” classification of other supervisors in the department, who she claimed to be that she would be promoted to labor grade 24 and the labor gr ade 24 As support for this argument, the plaintiff relies upon Ti mmons’ verbal promise to labor grade 24 if the defendants had not unlawfully retaliated against her. genuine dispute of material fact as to whether she would have been promoted grade and back pay consistent with that labor grade, because there is a asserts that she should be allowed to pursue reinstatement to a higher labor received the equitable remedies available under the Act. The plaintiff first compe nsatory damages, the trial court erred in determining that she already Next, the plaintiff argues that, even if the Act does not authorize

the phrase “civil suit” does not authorize an award of compensatory damages. injunctive relief” under RSA 275 - E:4, I. For these reasons, we conclude that retaliation but does not lose his or her job, the Act provides “any appropriate damages provide the only form of relief to an employee who experiences report violations”). Contrary to the plaintiff ’s argument that compensator y the Whistleblower s ’ Protection Act’s purpose of encouraging employees to (2007) (the absence of an award of reasonable attorney’s fees could “frustrate fear of monetary punishment); see also Appeal of Hardy, p. 15 154 N.H. 805, 818 135 N.H. at 521 (providing back pay allows the victim to come forward without conclude that equitable relief accomplishes these remedial goals. Bio Energy, violations as possible are resolved informally within the workplace” — we violations without fear of losing their jobs and to ensure that as many alleged goals of the statute — “to encourage employees to c ome forward and report which appear in the following sentence. Moreover, consider ing th e evident bring to obtain such equitable relief; it does not refer to the forms of relief, 275 - E:2, II, the language refers to the type of action an aggrieved employee may awarded by a jury. We disagree. V iewing the phrase in the context of RSA “intended to broaden the scope of [the] relief” to include damages that may be damages, the plaintiff argues that the phrase “c ivil suit” in RSA 275 - E:2, II was Although the statute does not expressly authorize compensatory p. 16 16

from other prohibited conduct under the statute, su ch as ongoing harassment, the form of a discharge. These limited remedies, however, do not provide relief relief to aggrieved employees who experience retaliation by their employers in back pay, and reasonable attorney ’ s fees — allow the superior court to provide The express remedies authorized in RSA 275 - E:2, II — reinstatement,

superior court. the Department of Labor could provide greater relief in proceedings than the under RSA 275 - E:4, I. The plaintiff argues that “[i] t defies common sense” that rather than maintain her whistleblower claim with the Department of Labor under RSA 275 - E:2, II, which does not expressly authorize injunctive relief, injunction as a remedy because she chose to bring her claim in superior court Nevertheless, the defendants argue that the plaintiff is not entitled to an

relief. finding, however, the plaintiff’s complaint expressly requests this equitable the plaintiff failed to requ est injunctive relief in her complaint. Contrary to this granting summary judgment to the defendants, the trial court concluded that injunctive relief in her complaint. In denying reconsideration of its order statute and challenges the trial court’s determination that she failed to request Next, the plaintiff argues that she is entitled to injunctive relief under the

— set forth in the statute. as to whether the p laintiff receive d the remedies — reinstatement and back pay trial court properly determined that there was no genuine issue of material fact classified service might be improperly allocated or classified). Therefore, the Directo r of Personnel must consider in determining whether a position in the other supervisors. See N.H. Admin. R., Per 303.01(b) (setting forth factors the provides no support for her conclusory assertion that she was “outperforming” positions in her unit may have been classified in labor grade 24, the plaintiff classification.” RSA 21 - I:42, II (Supp. 2018). Thus, while other su pervisory schedule of pay may be equitably applied to, all positions in the same that the same qualifications may reasonably be required for, and the same “based upon similarity of duties performed and responsibilities assumed so positions. C lassifications within the state employee classified service must be duties or had the same responsibilities as the employees who held those becau se she provides no evidence to show that she was performing the same finder to determine that she would have been assigned to a higher labor grade positions classified in labor grade 24 does not alone provide a basis for a fact - Similarly, whether other employees in the plaintiff’s unit held supervisory

finding on the plaintiff’s allegations). genuine issue of material fact where “no reas onable fact finder” could base its 729, 740 (2005) (determining that the plaintiff’s allegations did not create a or other supporting facts. See Pennichuck Corp. v. City of Nashua, 152 N.H. been promoted to a higher labor grade in the absence of a specified time frame p. 17 17

omitted). be sued, and the manner in which the suit shall be conducted.” Id. (quotation the legislature has prescribed the terms and conditions on which it consents to courts lack subj ect matter jurisdiction over an action against the State unless that which is articulated by the legislature.” Id. “[T] hus, New Hampshire Liquor Comm’n, p. 17 170 N.H. 653, 656 (2018). “Any statutory waiver is limited to statute waiving the State’s sovereign immunity. XTL - NH, Inc. v. N.H. State courts, a state agency is immune from suit unless there is an a pplicable expressly authorize the court to issue injunctive relief. In New Hampshire against DES is barred by sovereign immunity because the Act does not The defendants nonethe less argue that any claim for injunctive relief

based upon the court’s general equity jurisdiction. may seek injunctive relief to enjoin any allegedly, ongoing retaliatory behavior abuse, or intimidation as alleged by the plaintiff, we conclude that the plaintiff II does not provide an adequate remedy to address the ong oing harassment, to address behavior expressly prohibited by the statute. Because RSA 275 - E:2, of discharge or demotion, the plaintiff is left without an adequate remedy at law authority to issue injunctive relief to curtail ongoing retaliation that falls short of the particular situation.” (quotation omitted)). In the absence of the court’s powers which allow it to shape and adjust the precise relief to the requiremen ts see also Benoit, 169 N.H. at 20 (“The court has broad and flexible equitable exists. Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 454 (2015); authority to entertain equitable actions where no adequate remedy at law N evertheless, the superior court is a court of general jurisdiction with

include. Olson, 168 N.H. at 566. we will not add language to the statute that the legislature did not see fit to and RSA 275 - E:4, I, may present an issue for the legislature’s consideration, While the dis crepancy between the remedies available under RSA 275 - E:2, II E:2, II does not authorize the court to order injunctive relief as a remedy. RSA 275 - E:2, I. However, the plain and unambiguous language of RSA 275 commissioner with the authority to address all of the prohibited conduct. See prohibited conduct enumerated by the statute while provid ing the labor legislature would limit the court’s authority to address just a fraction of the Benoit v. Cerasaro, 169 N.H. 10, 20 (2016), we see no reason why the Energy, 135 N.H. at 523, and the court’s broad and flexible equitable powers, Given the Act’s purpose to encourage employees to come forward, see Bio

activities by providing the remedy of “any appropriate injunctive relief.” explicitly authorizes the labor commissioner to enjoin all of these unlawful discrimination in addition to retaliatory discharge). Yet, RSA 275 - E:4, I, (prohibiting retaliatory harassment, abuse, intimidation, threats, or other abuse, intimidation, or threats, as the plaintiff asserts here. RSA 275 - E:2, I p. 18 18

expression claims. defendants have been dismissed from the plaintiff’s whistleblower protection and freedom of We note that there is nothing in the record b efore us that indicates that any of the individual 2

competent jurisdiction by bench or jur y trial.”). action, or both, to recover damages for violation of this chapter in any court of E:4, I (2013) (“A public employee may seek injunctive relief or maintain a civil expression claim, which we have also remanded to the trial court. See RSA 98 - E:4, I, expressly entitles her to injunctive relief as part of her freedom of claim to the trial court. We also note that the plaintiff’s claim under RSA 98 gener al equity jurisdiction, we remand the plaintiff’s whistleblower protection against ongoing retaliation by the individual defendants based upon the court’s Because we conclude that the plaintiff is entitled to seek injunctive relief

review” (quotation omitted)). court, without developed legal argument, is insufficient to warrant judicial (2003) (“a mere laundry list of complaints regarding adverse rulings by the trial sufficiently developed for our review. See State v. Blackmer, 149 N.H. 47, 49 Thus, any challenge to the trial court’s rulings on these requests is not erroneous. Instead, she merely restates her requests for relief in her b rief. plaintiff does not provide any arguments as to why these rulings were Although the trial court made specific rulings as to each of these remedies, the medical costs, front pay, and reinstatem ent to a supervisory position. capacity, depletion of annual and sick leave balances, mileage reimbursements, chapter 275 - E. These remedies a ddress “lost benefits,” loss of future earning her complaint that the trial court dismissed as unavailable to her under RSA Finally, the plaintiff identifies several other remedies she requested in

address the trial court’s ruling on this issue at this time. finding on the merits, at least as to the alleged ongoing retaliation, we need not relief based upon the court’s general equity jurisdiction which requires a fees. Because we conclude that the plaintiff is entitled to pursue injunctive claim that she may pursue a finding of wrongdoing and reasonable attorney’s The plaintiff next argues that the trial court erred when it rejected her

against DES and may only seek such relief against the individual defendants. 2 with the defendants that the plaintiff is barred from seeking injunctive relief reinstatement, back pay, and reasonable attorney’s fees. Therefore, we agree conditions on which the State consents to be sued include only three remedies: constitute a waiver of DES’s immunity from suit un der the Act, the terms and jurisdiction rather than an applicable statute. Although RSA 275 - E:2, II may ongoing forms of retaliation is based upon the superior court’s general equity Our conclusion that the plaintiff may seek injunctive relief against p. 19 19

concurred. LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,

brief, are deemed waived. In re Estate of King, 149 N.H. 226, 230 (2003). All arguments the plaintiff raised in her notice of appeal, but did not