Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barry v. New Hampshire Department of Health and Human Services

Supreme Court of New Hampshire

September 28, 2017

DANIEL BARRY
v.
NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES & a.

          Argued: May 18, 2017

         Hillsborough-northern judicial district

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

          Joseph A. Foster, attorney general (Kenneth A. Sansone, assistant attorney general, and Lynmarie C. Cusack, senior assistant attorney general, on the brief, and Mr. Sansone orally), for the defendants.

          Douglas, Leonard & Garvey, P.C., of Concord (Megan Douglass on the brief), for the New Hampshire Chapter of the National Employment Lawyers Association, as amicus curiae.

          BASSETT, J.

         The plaintiff, Daniel Barry, appeals a jury verdict in favor of the defendants - the New Hampshire Department of Health and Human Services (department) and William Fenniman, Jr., the director of the Division of Juvenile Justice Services during the relevant time period. The plaintiff worked as a youth counselor at the Sununu Youth Services Center (SYSC) until the defendants terminated him, claiming that he had used excessive force against a youth resident and had failed to file a report regarding the incident. After the Personnel Appeals Board (PAB) reinstated him, the plaintiff filed the present action, alleging a claim for wrongful termination against the department, and a claim for interference with the plaintiff's right to freedom of expression under RSA chapter 98-E against the department and Fenniman in his official and individual capacities.

         On appeal, the plaintiff argues that the Superior Court (Schulman, J.) erred when it: (1) declined to give collateral estoppel effect to the PAB's findings that the plaintiff had not used unreasonable or excessive force against the resident or violated SYSC policies; and (2) allowed the defendants' expert to testify regarding the reasonableness of the plaintiff's use of force. The defendants cross-appeal, arguing that the Superior Court (Brown, J.) erred when it: (1) concluded that an employee protected by state personnel laws and a collective bargaining agreement could bring a claim for wrongful termination; and (2) declined to make factual findings to resolve the defendants' motion to dismiss upon the ground of sovereign immunity. We affirm the trial court's rulings with respect to the issues raised by the plaintiff in his appeal. As a result, we do not address the issues raised in the defendants' cross-appeal.

         The jury could have found the following facts. On August 7, 2010, while the plaintiff was on duty at the SYSC, one of the residents became upset at a SYSC staff member. The confrontation between the resident and SYSC employees escalated as the resident grew angrier. The plaintiff intervened, handcuffing the resident, removing him from his room, and, ultimately, restraining him on the ground. The plaintiff claimed that he restrained the resident to prevent him from spitting on staff, and asserted that he maintained the restraint for several minutes because the resident was threatening to harm himself by "smash[ing] his head" against the floor.

         An internal investigation of the incident followed, after which Fenniman recommended that the plaintiff be terminated. Thereafter, the plaintiff was terminated. The defendants offered two justifications for the termination: first, the plaintiff's restraint of the resident constituted an excessive use of force; and second, the plaintiff failed to file a report regarding the incident, in violation of SYSC policy.

         The plaintiff appealed his termination to the PAB. The PAB concluded that termination was "unwarranted" and "unjust" in light of the facts in evidence. Specifically, the PAB found that the plaintiff had not "use[d] excessive and unreasonable force for the conditions existing at the time" he restrained the resident, and it determined that, although the plaintiff "did not file a report of the restraint, he ensured that such a report was completed and submitted as required." The PAB ordered that the plaintiff be reinstated with back pay, and the plaintiff returned to his employment.

         The plaintiff subsequently brought the present action, alleging that the defendants' real motivation was to retaliate against the plaintiff for engaging in union activity and speaking out against various policies and initiatives promoted by Fenniman. After trial, the jury returned a verdict in favor of the defendants. On appeal, the plaintiff argues that the trial court erred when it: (1) declined to give collateral estoppel effect to the PAB's findings; and (2) allowed the defendants' use-of-force expert to testify.

         We first address the plaintiff's argument that the trial court erred when it failed to give collateral estoppel effect to the PAB's findings. Collateral estoppel may preclude the relitigation of findings by an administrative board, provided that the following requirements are satisfied: (1) the issue subject to estoppel must be identical in each action; (2) the first action must have resolved the issue finally on the merits; (3) the party to be estopped must have appeared in the first action or have been in privity with someone who did; (4) the party to be estopped must have had a full and fair opportunity to litigate the issue; and (5) the finding must have been essential to the first judgment. Farm Family Mut. Ins. Co. v. Peck, 143 N.H. 603, 605 (1999). "The applicability of collateral estoppel is a question of law that we review de novo." Tyler v. Hannaford Bros., 161 N.H. 242, 246 (2010). The party asserting estoppel bears the burden of proving that it applies. Appeal of Wingate, 149 N.H. 12, 16 (2002).

         In the trial court, the plaintiff argued that, given the PAB's findings, the defendants were precluded from offering evidence that the plaintiff's use of force was unreasonable or excessive, or that he had violated the policy requiring staff to report incidents involving the use of force. The trial court denied the motion, concluding that collateral estoppel did not apply because the issues in the two proceedings were not identical. On appeal, the defendants argue that the trial court's ruling may be sustained on a different ground - that, in light of the substantial procedural differences between the PAB proceeding and the present civil action, it would be unfair and inequitable to apply collateral estoppel. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.