Defeating whistleblower claims often requires a significant investment of time and resources in protracted litigation. But a recent decision in New Hampshire provides some hope that employers will be able to dispose of meritless whistleblower claims in the early stages of a case. In Cluff-Landry v. Roman Catholic Bishop of Manchester, the Supreme Court of New Hampshire upheld the dismissal of an employee's claims under the state Whistleblowers' Protection Act, Revised Statutes Annotated (RSA) 275-E:2, because her complaints, when reasonably construed, implicated only the employer's internal policies.
Background
According to the employee's complaint, she was a pre-kindergarten and visual arts teacher at a Roman Catholic school from 2008 through 2012. In late 2011, she reported to the principal "her concerns that the school was not adequately set up to handle [a student] due to his unsafe behaviors and the school's inability to keep the other students safe, and that the behavior was in violation of the student-parent handbook." The principal "simply laughed" in response. Though the teacher continued to report her concerns regarding the problematic student, the principal did not address the situation. Instead, the principal took a series of actions that the teacher characterized as retaliatory, such as placing her on an improvement plan and issuing a letter of insubordination to her for walking out of the school before classes were scheduled to begin. The principal's allegedly retaliatory actions culminated in April of 2012, when the principal sent the teacher a letter informing her that her contract would not be renewed for the 2012–2013 school year.
Just over three years later, the teacher filed suit against the school. One of the teacher's claims was that the school violated the whistleblower act by failing to renew her contract after she reported violations of "school and public policies." The trial court dismissed the teacher's claims. The teacher appealed to the Supreme Court of New Hampshire, which upheld the dismissal.
The Supreme Court of New Hampshire's Analysis
With respect to the teacher's whistleblower claim, the Supreme Court of New Hampshire began its analysis by following the lead of jurisdictions with similar whistleblower protections and finding that the act protects only employees who complain about actions that they reasonably believe violate local, state, or federal law. The court then held that "to the extent the plaintiff's whistleblower claim is based upon her reports of violations of the school's internal policies, such as the school's student-parent handbook, she . . . failed to allege facts that show that she engaged in an act protected by the Act."
Likely recognizing that the Supreme Court of New Hampshire would find that internal policies are unprotected under the act, the teacher bombarded the court with a variety of laws that she allegedly complained about. First, the teacher contended that her complaints concerning the student's defiant behavior were reports of a violation of the simple assault statute, RSA 631:2-a. The court rejected that argument, adopting the trial court's reasoning that a reasonable employer would not have understood the teacher's complaints about a four-year-old student's behavior as implicating a criminal statute. Second, the court rejected the teacher's contention that her complaints related to compliance with New Hampshire Administrative Rules, Ed 403.01(a)(2)(o)(1), which requires private schools to provide a copy of their grievance policy concerning bullying in their initial application for accreditation, because the teacher did "not argue that the school failed to comply with it." Finally, the teacher argued that, by complaining about the student's behavior, she reported violations of the Workers' Compensation Law, RSA 281-A:64, which guarantees employees "safe employment." The court found this argument deficient for two reasons: The teacher never alleged that the student's behavior jeopardized her safety or the safety of other employees, and even if she had, a reasonable employer would not have construed her complaints as involving violations of the Workers' Compensation Act. Accordingly, the court found that the teacher failed to allege that she had engaged in protected activity under the act.
Key Takeaways
Cluff-Landry is notable for two reasons. The first reason is obvious from the face of the decision. In finding that complaints about internal management matters do not qualify for protection under the act, the Supreme Court of New Hampshire gave effect to the ordinary meaning of the statute and confirmed that New Hampshire, like other jurisdictions to have considered the issue, requires a report of unlawful activity to trigger the protections of the act.
The second reason is less obvious but more significant. The court rejected several of the plaintiff's arguments based on findings as to what the plaintiff or defendant reasonably believed. Factual questions, like whether a belief is reasonable, are typically reserved for later stages in litigation. Cluff-Landry suggests that, in certain circumstances, a court may resolve those questions early on in a case. As a result, employers may want to seriously consider the potential benefits of filing a motion to dismiss when facing a whistleblower claim.
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