2022-0500, Jason Boucher v. Town of Moultonborough

We reverse and remand. (Supp. 2022); and (2) he has stated a claim for which relief may be granted. finding that he failed to exhaust administrative remedies under RSA 41:48 the Town of Moultonborough (Town). He contends that: (1) the court erred in Superior Court (Ignatius, J.) granting the motion to dismiss of the defen dant, M AC DONALD, C. J. The plaintiff, Jason Boucher, appeals an order of the

Charles P. Bauer on the brief, and Keelan B. Forey orally), for the defendant. Gallagher, Callahan, & Gartrell, P.C., of Concord (Keelan B. Forey and

an d orally), for the plaintiff. Lehmann Major List, PLLC, of Concord (Jason R.L. Major on the brief

No. 2022 - 0500 Carroll

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

because it seeks money damages; (3) the plaintiff lacked standing to bring a action in New Hampshire; ( p. 2 2) the plaintiff’s claim under RSA 41:48 is improper the grounds that: (1) constructive discharge is not an independent cause of In February 2022, the Town moved to dismiss the plaintiff’s complaint on

compensatory damages as a result of his constructive discharge. reasonable police officer to feel compelled to resign.” The plaintiff seeks “materially changed [his] working conditions in a manner that would cause any constructively discharged from his employment” and that the Town’s actions result of [the Town’s] efforts to ostracize, isolate, and demean him, [he] was cause after a due process hearing.” He alleged that “[a]s a direct and proximate continue in his employment as [a] full - time police officer unless removed for capitalization omitted.) The plaintiff asserted that he “had a statutory right to count of “Constructive Termination in Violation of RSA 41:48.” (Bolding a nd In May p. 2 2021, the plaintiff filed a complaint in the trial court alleging one

professionals. severe emotional and physical duress, which required treatment by medical position but suffered a significant loss of pay and benefits. He also suffered The plaintiff resigned on June p. 2 26, 2020. He later obtained a new

conduct “was very clearly aimed at undermining and isolating him.” investigations over six weeks. According to the plaintiff, the interim manager’s business of a police Sergeant.” In total, the plaintiff was subjec ted to four and the lower - ranking officer “for simply attempting to conduct the ordinary subject of s erial internal investigations orchestrated by” the interim manager chain - of - command upside down.” Shortly thereafter, the plaintiff became “the Sergeants out of the daily operations of the Police Department, turning the manager enlisted “his loyal subordinate, a lower - ranking officer” to “cut the police manager “who was under the direct control of the [Board].” The interim him. In early p. 2 2020, the police chief retired and was replaced by an interim Selectmen (Board) opposed, the plaintiff believed the Board did not support and his previous support of a candidate for police chief that the Board of Due to his past involvement in assisting local officers to form a union,

police department. disciplinary actions had been taken against him while employed by the Town’s rank of sergeant. Up until the fi nal four months of his employment, no formal full - time capacity. At the time he filed his complaint, he most recently held the plaintiff served as a police officer for the Town for nineteen years, mostly in a this appeal. See Ba rufaldi v. City of Dover, 175 N.H. 4 p. 2 24, 425 (2022). The accompanying documentation and are assumed to be true for the purposes of The following facts are derived from the plaintiff’s complaint and

motion to dismiss if the facts pled do not constitute a basis for legal relief. Id. sufficiently ref erred to in the complaint. Id. We will uphold the granting of the which is not disputed by the parties; official public records; and documents documents attached to the plaintiff’s pleadings; documents, the authenticity of the pleadings against the applicable law. Id. The trial court may also consider permit recovery. Id. This threshold inquiry involves testing the facts alleged in plaintiff’s allegations are reasonably susceptible of a construction that would 427. The standard of review in considering a motion to dismiss is whether the inferences in the light most favorable to the plaintiff. B arufaldi, 175 N.H. at of the facts as alleged in the plaintiff’ s pleadings and construe all reasonable In reviewing an order granting a motion to dismiss, we assume the truth

complaint fails to state a wrongful termination claim. 41:48 and that, even if his claim was properly before the trial court, his the plaintiff was required to exhaust his administrative remedies under RSA has stated a claim for which relief may be granted. The Town contends that nor does it provide an adequate remedy under those circumstances; and (2) he contemplate a hearing in cases where the officer is constructively discharged, any administrative remedies under RSA 41:48 because the statute does not On appeal, the plaintiff argues that: (1) he was not required to exhaust

appeal followed. prejudice and declined to c onsider the Town’s remaining arguments. This to decide his case.” The court dismissed the plaintiff’s complaint without administrative remedies, which divests [the] court of subject matter jurisdiction C onsequently, the court found that the plaintiff “failed to exhaust his is required to follow the procedures contained within RSA 41:48.” in violation of RSA 41:48, even if only constructively, it logically follows that he The court reasoned that if the plaintiff “considers himself a terminated officer Following a hearing, the trial court granted the Town’ s motion to dismiss.

the Board. not exhaust his administrative remedies through an RSA p. 4 41:48 hearing before plaintiff’s claim under RSA 41:48 is “not ripe for adjudication” because he did rights.” In its reply to the plaintiff’s objection, t he Town further argued that the and has standing as “the party injured by the [Town’s] bad faith violation of his plaintiff concluded he “has a cognizable cause of action for money damages” forth in RSA 41:48 irrelevant and una vailable to the plaintiff.” Therefore, the led to his constructive discharge, which made the due process protections set that the Town’s “circumvention of the plaintiff’s employment rights ultimately support a wrongfu l discharge cause of action. The plaintiff objected, arguing claim under RSA 41:48; and (4) the allegations in the complaint do not plead or 4

removed from his employment by [the Board].” Because RSA p. 4 41:48 does not, formal notice of an intent to dismiss him . . . and he was never formally situation currently before the Court, where [the plaintiff] never received any agree with the plaintiff’s assertion that “RSA 41:48 does not contemplate the followed. Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365, 373 (2012). W e administrative agency’s decision, that procedure is exclusive and must be 40. Whenever a statute provides a procedure for appeal or review of an preserve agency autonom y, and promote judicial efficiency. Porter, 151 N.H. at remedies is designed to encourage the exercise of administrative expertise, remedies under RSA 41:48. The rule requiring exhaustion of administrative The plaintiff contends that he was not required to exhaust administrative

provisions of RSA 103 if otherwise quali fied. deemed to be a permanent policeman, and entitled to benefits under the p. 4 41:47. Any such elected permanent constable or police officer shall be hearing, or unless the town has rescinded its action as provided in RSA unless sooner removed for cause by the selectmen, after notice and of RSA 106 - L:6, shall continue to hold such office during good behavior, provisions of RSA 105:1, and who is in compliance with the requirements provisions of RSA 41: 47 or appointed for full - time duty under the Any permanent constable or police officer who is either elected under the

RSA p. 4 41:48 provides, in its entirety:

statutory scheme. Id. isolation; instead, we attempt to construe them in harmony with the overall avoid an absurd or unjust result. Id. However, we do not co nstrue statutes in construe all parts of a statute together to effectuate its overall purpose and add language that the legislature did not see fit to include. Id. We also whenever possible and will not consider what the legislature might have said or plain and ordinary meaning. Id. We give effect to every word of a statute of the statute itself, and, if possible, construe that language according to its Onge v. Oberten, LLC, 17 p. 4 4 N.H. 393, 395 (2021). We first look to the language interpretation. We review the trial court’s statutory interpretation de novo. St. Resolving the plaintiff’s appeal requires that we engage in statutory

(20 0 p. 4 4). is a cause of action in tort. Porter v. City of Manchester, 1 p. 5 51 N.H. 30, 38 component of a wrongful termination claim. Id. A wrongful termination claim held that properly alleging constructive discharge satisfies the termination discharge as a distinct cause of action in New Hampshi re. Rather, we have BayBank FSB, 147 N.H. 525, 536 (2002). We have not recognized constructive intolerable that a reasonable person would feel forced to resign. Karch v. when an employer renders an employee’s working conditions so difficult and We first describe the context of this case. Constructive discharge occurs 5

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

state a claim for wrongful termination. complaint, we decline to reach the Town’s argument that the plaintiff failed to Because the trial court did n ot address the merits of the plaintiff ’s

exhaust his administrative remedies under RSA 41:48. Porter”). Accordingly, the trial court erred in finding that the plaintiff failed to conceded that it lacked the authority to keep Lafond from retaliating agains t have been required to work under Lafond’s supervision,” and “the city with his appeal and the board had rescinded his suspension, he would still Porter, 1 p. 5 51 N.H. at 41 (reasoning that “[e] ven if Porter had followed through very environment which gave rise to his constru ctive discharge claim. Cf. remedy afforded to him under the statute would be to resume working in the the plainti ff sought and was granted a hearing before the Board, the only will not “add language that the legislature did not see fit to include”). E ven if plain language of RSA 41:48. See St. Onge, 174 N.H. at 395 (stating that we with the Board informally. Yet, none of these processes are set forth in the hearing before the Board, articulating the issue to the Board, or “engaging” the plaintiff could have followed to attempt exhaustion, including requesting a The Town represented at oral argument that there are several processes

the plaintiff resigned. The circumstances of this case do not involve removal by the Board because officer being “removed. . . by the selectmen.” RSA 41:48 (emphasis added). hearing — and substantive protections — a “for cause” standard — pri or to an unreasonableness”). The statute affords proc edural protections — notice and a decision reviewed in the superior court only for illegality, injustice, or pretermination hearing, but if he is then dismissed, he can have the board’s v. Williams, 118 N.H. 13 p. 5 5, 139 (1978) (observing that an “officer is granted a hearing before the board. The board is both prosecutor and judge.”); Ingersoll selectmen seeks to remove a police officer, the officer is notified and afforded a Pelham, 124 N.H. 131, 136 (1983) (“Under RSA 41:48, when a board of termination hearing befor e their local select board. See Appeal of Tow n of We have long recognized that RSA 41:48 affords police officers a pre -

Frost was required to exhaust”). forth a relevant review procedure, “there is no exclusive review process that remedy. See id. (determining that because the applicable statute did not s et was no administrative process through which the plaintiff could exhaust a by its plain terms, contemplate constructive discharge, we conclude that there