2022-0154, Melissa Donovan v. Southern New Hampshire University

jury and not the tr ial court, as a matter of law. We conclude that the court did to alter math ematics grades for two college students, should be resolved by a which alle ges that she was constructively discharged as a result of her refusal as to whether public policy concerns support her wrongful termination claim, wrongful termination claim. On appeal, the plaintiff argues that the question court’s finding that no public policy considerations supported the plaintiff’s defendant, Southern New Hampshire University (SNHU), base d upon the the Superior Court (Nicolosi, J.) granting summary judgment in favor of the DONOVAN, J. The plaintiff, Melissa Donovan, appeals from an order of

and Megan Carrier on the brief, and Christopher Cole orally), for the defendant. Sheehan Phinney Bass & Green, P.A., of Portsmouth (Christopher Cole

orally), for the plaintiff. Lehman n Major List, PLLC, of Concord (Sean R. List on the brief and

No. 2022 - 0154 Hillsborough - northern judicial d istrict

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

engaging in conduct that created a hostile work environment. her for declining to alter the grades and subsequently retaliated against her by for wrongful te rmination, the plaintiff alleges that Dr. McKenzie admonished students, which Dr. Britton and her supervisors later approved. In her claim policies.” Ultimately, Dr. McKenzie subm itted the grade change for the two faculty to raise concerns about “ethical conduct or violation s of the University’s supervisors the SNHU Whistleblower Policy, adopted by SNHU to encourage its and were unethical. In support of her position, the plaintiff presented to her concerns that the grade change requests violated the school’s grading policy In meetings with both Dr. McKenzie and Dr. Britton, the plaintiff expressed her Nonetheless, t he plaintiff did not modify either of the students’ grades.

other student identified by Dr. Sze. later, Dr. McKenzie asked the plaintiff to modify the grade to passing for the be changed to reflect the student’s actual work in the course. At some point work and grading schemes, both she and Dr. Britton believed the grade should asked, or told?” Dr. McKenzie responded that, after reviewing the student’s grade for one of the students. The plaintiff replied: “To clarify, am I being case for passing.” Dr. McKenzie emailed the plaintiff asking her to change the given Dr. Sze’s assessment of certain irregularities in grading schemes, “ha d a two students from a semester of MAT 136 who received failing grades, but, In July p. 2 2018, Dr. Sze emailed the plaintiff and Dr. McKenzie id entifying

that SNHU intended to phase out beginning in September p. 2 2018. students. Specifically, some sections of MAT 136 employed a grading scheme for the course, and that those differences were not being communicated to design. That review revealed that ins tructors applied different grading schemes reviewed a mathematics course, MAT 136, due to concerns about the cou rse ’s In March 2018, at the request of the plaintiff and Dr. McKenzie, Dr. Sze

worked with Dr. David Sze, the Technical Program Facilitator for Mathematics. and Mathematics, and Dr. Susan McKenzie, a Senior Associate Dean. She also Gwendolyn Britton, Executive Director of Science, Technology, Engineering, faculty assignments and support for mathematics courses. She reported to Dr. Faculty for Mathematics. In this role, her primary focus w as oversight of until her resignation in November p. 2 2018, she served as Associate Dean of plaintiff began working for SNHU in September 2011. From December 2016 The following fact s are supported by the summary judgment record. The

to support a wrongful termination claim. Accordingly, we affirm. by a private university do not implicate public policy considerations necessary not err because complaints about the application of internal grading decisions p. 3 3

plaintiff need not show a “strong and clear public policy,” and a claim of public A. & P. Tea Co., Inc., 121 N.H. 915, 921 - 22 (1981). As to the second prong, a s he refused to perform acts that public policy would condemn. See Cloutier v. the employee performed acts that public policy would encourage or because malice, or retaliation; and (2) the employer terminated the employment because establish that: (1) the employer terminated the employment out of bad faith, To prevail upon her wrongful termination claim, the plai ntiff had to

application of the law to the facts de novo. Id. grant of summary judgment is proper. Id. We review the tria l court’s fact, and if the moving party is entitled to judgment as a matter of law, the Mut. Ins. Co., 151 N.H. 71, 72 (2004). If there is no genuine issue of material in the light most favorable to the non - movi ng party. See Peerless Ins. v. Vt. the affidavits and other evidence, and all inferences properly drawn from them, When reviewing a trial court’s grant of summary judgment, we consider

reconsideration, which the co urt denied. This appeal followed. granted SNHU’s motion for summary judgment. The plaintiff filed a motion for necessary to support her wrongful termination claim as a matter of law and Accordingl y, the court ruled that the plaintiff failed to establish a public policy “it remained an internal policy determination of a private university.” the plaintiff believed SNHU’s decision to be unethical, the court concluded that of academic judgment that the Court will not second guess.” Further, although exceptions to that policy should be made on a case - by - case basis, are matters de termination of what grading policy to implement in a class, and whether upon authority from multiple jurisdictions, the trial court reasoned that “the policy that would support her refusal to alter grades in this case.” Relying plaintiff’s factual allegations, she “failed to establish the existence of a public judgment. The trial court determined that, even accepting the truth of the In February 2022, the trial court granted SNHU’s motion for summary

consistency and equality in grading.” SNHU moved for summary judgment. wrongful termination becau se “[p]ublic policy supports academic integrity, for declining to alter the two students’ grades, which established a claim for constructive discharge theory. The plaint iff a lleged that SNHU discharged her brought a complaint for wrongful termination against SNHU based up on a resign due to a hostile work environment. In August 2019, the plaintiff position at SNHU, stating in her resignation email that she felt compelled to grade change requests. In November 2018, the plaintiff resigned from her work performance, but did not reference the disagreement concerning the improvement plan. The plan identified numerous issues with the plaintiff’s In October 2018, SNHU placed the plaintiff on a performance p. 4 4

with her argument that the trial court erred by failing to conclude that a Even if we construed her complaint to allege such a claim, we disagree

argument she appears to advance on appea l. Accordingly, we cannot read the plaintiff’s complaint as advancing the

students simply based upon retaining enrollment. in grading, without preferential treatment provided to certain Public policy supports academic integr ity, consistency and equality and inconsistently with all other students enrolled in the course. grade change would cause the two students to be graded unequally to arbitrarily change the grade of two students. Performing such a Pub lic policy supported [the plaintiff] in challenging the instruction

reference the Whistleblower P olicy at all. Instead, the complaint alleges that: SNHU’s internal grading policy. In fact, the plaintiff’s complaint fails to university’s Whistleblower Policy when she reported an alleged violation of terminated her because she acted as a whistleblower and complied with the As an initial matter, the plaintiff’s complaint does not allege that SNHU

believed to be improper and unethical. We are unpersuaded. Whistleblower Policy by reporting, in good faith, conduct that she reasonably in an effort to protect academic integrity and comply with SNHU’s internal wrongful termination claim is premised upon public policy because she acted (Emphasis omitted.) In other words, the plaintiff appears to arg ue that her good faith, to be unethical and a violation of SNHU academic policy.” [p] laintiff raising issue with a grade change, internally, that she believed, in “Rather, it is a case where a jury should decide if public policy supported the seeking to judicially overturn or undermine grading decisions of SNHU.” On appeal, however, the plaintiff maintains that “[t]his is not a case

student achievement expected by the public.” policy by safeguarding academic integrity and the system of merit - based declining to alter the two students’ grades, she acted “in conformity with public that question as a matter of law. Specifically, the plaintiff argues that, in plaintiff’s refusal to alter grade s was not so clear that the court could decide that the trial court erred because whether a public policy supports the prong as a matter of law and granted summary judgment. The plaintiff argues Here, the trial court ruled that the plaintiff failed to establish the second

136 N.H. 76, 8 p. 4 4 (1992). This case presents such an occasion. may rule on its existence as a matter of law. . ..” Short v. Admin. Unit 16, at times the presence or absence of such a public policy is so clear that a court ordinarily the issue of whether a public policy exists is a question for the jury, policy may “be based on non - statutory policies.” Id. at 922. “Although p. 5 5

SNHU’s internal grading system was “arbitrar [y],” “preferential,” or violated public policy supports, a jury would necessarily have to determine whether in order to decide whether her alleged termination resulted from conduct that University, 87 p. 5 5 A.2d 95, 107 - 08 (D.C. Ct. App. 2005) (collecting cases). Indeed, disputes involving academic standards. See, e. g., Jung v. George Washington contravene the well - established principle disfavoring judicial intervention in decisions of a privat e university to the ethical considerations of a jury and authority. Accepting the plaintiff’s premise would subject the internal grading authority that recognizes such a public policy, nor are we aware of any such opposi tion to and reporting of the grade changes. Yet, the plaintiff has cited no conclusion that a jury could find that public policy encourages the plaintiff’s such a public policy as a matter of law. This claim is premised upon a legal and that the trial court erred in finding that the plaintiff failed to establish integrity, consistency and equality in grading, without preferential treatment” refusal to “arbitrarily change the grades of two students” to protect “academic We next address the plaintiff’s argument that public policy suppor ts her

conduct. Whistleblower Policy has no bearing on whether publ ic policy supports her claim. Put simply, whether the plaintiff complied with the university’s is circular and insufficient as a matter of law to sustain a wrongful termination grading policy — constitutes an act protected by public policy. This argument to comply with another internal policy — SNHU’s alleged departure from its complied with one internal policy — SNHU’s Whistleblower Policy — her refusal ac t protected by public policy.”). The plaintiff posits that, because she employee’s expression of disagreement with a management decision is not an not an act that public policy would protect”)); Short, 136 N.H. at 84 (“[A]n disagreement “about whether his conduct violated [his employer’s] rule . . . [is] MacKenzie v. Linehan, 1 p. 5 58 N.H. 476, 481 (2009) (holding that an employee’s supervisory role do es not implicate a public policy)(citing and quoting employer’s selective enforcement of its policies or its management of his W.L. 99095, at *3 (D.N.H. Jan. 6, 2010) (employee’s disagreement with See Melvin v. NextEra Energy Seabrook, LLC, No. CIV 09 - CV - 249 - JD, 2010 employer’s decision to allegedly depart from its own internal grading policy. Public policy does not protect the plaintiff’s refusal to comply with her

We disagree. accordance with the university’s internal grading and whistleblower polic ies. her refusal to comply with her supervisor’s directive because she acted in activity. Rather, the plaintiff appears to maintain that public policy protects Protection Act, RSA 27 p. 5 5 - E:2 (2010), or that SNHU engaged in any illegal allege, n or argue on appeal, that her discharge violated the Whistleblowers ’ Whistleblower and Grade Change Policies.” We note that the plaintiff does not particularly when the very actions she took were consistent with SNHU’s “reasonable jury could find that [her] actions were protected by public policy, p. 6 6

M AC DONALD, C.J.