APPEAL OF WAYNE PREVE (New Hampshire Department of Labor)
Argued: June 6, 2019
Young and Pignatelli, PC, of Concord (Michael S. Lewis on the
brief and orally), for the petitioner.
Getman, Schulthess, Steere & Poulin, P.A., of Manchester
(Stephen J. Schulthess on the brief and orally), for the
petitioner, Wayne Preve, appeals a decision of the New
Hampshire Department of Labor (DOL) ruling that he failed to
prove that the respondent, the Town of Epsom (Town), violated
the New Hampshire Whistleblowers' Protection Act.
See RSA ch. 275-E (2010 & Supp. 2018). We
following facts were found by the DOL or are otherwise
derived from the record. The petitioner has worked for the
Town's Police Department since 1997, and has been the
Chief of Police since 2004. On October 16, 2017, an incident
occurred between an attorney and a Town police officer at the
Circuit Court in Concord. Specifically, the attorney made a
comment to the officer that insinuated the officer was a
"sex offender." The officer later informed the
petitioner of the attorney's comment. The petitioner
testified at the DOL hearing that, as a result of this
incident, as well as additional alleged incidents between the
attorney and the Town's Police Department, the petitioner
believed that the attorney posed an "officer
petitioner decided to file a complaint against the attorney.
He collected all of the data relating to the attorney in the
police department's computer database. The data included
all reports in which the attorney or his family were listed,
regardless of whether they were victims, witnesses, or
"an accused." The petitioner attached all of this
information to a letter of complaint. According to the Board
of Selectmen's suspension letter, although these
materials included information such as social security
numbers, addresses, and birth dates of the attorney and his
family, the petitioner did not redact the materials in any
way. The petitioner sent these materials to the Judicial
Conduct Committee (JCC), rather than the disciplinary body
that oversees attorneys, the Professional Conduct Committee
(PCC). A copy was also sent to the attorney. The attorney
complained to the Town about the petitioner's conduct. He
threatened to sue the Town as a result of, among other
things, the petitioner's disclosure of private
information regarding the attorney and his family.
returned the materials to the Town, stating that the JCC is
not the correct entity with which to file a complaint
regarding an attorney. The Town engaged Municipal Resources
Inc. (MRI) to investigate the petitioner's conduct. The
Town also instructed the petitioner not to re-file the
materials with the PCC. MRI issued a report concluding that
some of the petitioner's actions were improper and may
have violated certain statutes. The Town subsequently
disciplined the petitioner by suspending him for one week
without pay and requiring him to attend training.
appealing this disciplinary action through the Town's
internal procedures, the petitioner filed a complaint with
the DOL, arguing that the Town wrongfully retaliated against
him for reporting the attorney in violation of the
Whistleblowers' Protection Act. See RSA ch.
275-E. After a hearing, the DOL concluded that the petitioner
failed to prove that the Town unlawfully retaliated against
him. The petitioner filed an application for rehearing, which
was denied. This appeal followed.
chapter 541 governs our review of the DOL's decision.
See RSA 275-E:4, II (2010). We will not set aside
the DOL's decision except for errors of law, unless we
are satisfied, by a clear preponderance of the evidence, that
it is unjust or unreasonable. Appeal of Seacoast Fire
Equip. Co., 146 N.H. 605, 607-08 (2001); see
RSA 541:13 (2007). The DOL's findings of fact are
presumed prima facie lawful and reasonable. RSA
541:13. In reviewing the DOL's findings, our task is not
to determine whether we would have found differently or to
reweigh the evidence, but rather, to determine whether the
findings are supported by competent evidence in the record.
See Appeal of Hillsborough County Nursing Home, 166
N.H. 731, 733 (2014). We review the DOL's rulings on
issues of law de novo. See id.
petitioner argues that the DOL erred by failing to
acknowledge that he produced direct evidence of retaliation.
Had the DOL correctly found that he produced such evidence,
the petitioner argues, it would have been required to apply
the "mixed motive" analysis to his claim, rather
than the "pretext" analysis which it actually
noted that "the federal standards used to evaluate
retaliation claims under Title VII of the Civil Rights Act
are useful in resolving claims under RSA chapter 275-E. Under
federal law, there are two basic ways for an employee to
prove retaliation: the 'pretext' approach and the
'mixed motive' approach." Appeal of
Hardy, 154 N.H. 805, 812 (2007) (quotation and brackets
omitted). The quality of the evidence determines which
approach applies. Appeal of Montplaisir, 147 N.H.
297, 300 (2001). "If the employee produces direct
evidence that retaliation played a substantial role in a
particular employment decision, then the 'mixed
motive' approach applies." Id. at 301
(quotations omitted); accord Hardy, 154 N.H. at 814.
If the employee does not produce such evidence, or if there
is only circumstantial evidence of retaliation, the
"pretext" approach applies. See
Montplaisir, 147 N.H. at 300-01.
Hardy, we outlined in detail the characteristics of,
and the burdens ...