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Appeal of Preve

Supreme Court of New Hampshire

August 22, 2019

APPEAL OF WAYNE PREVE (New Hampshire Department of Labor)

          Argued: June 6, 2019

         Department of Labor

          Rath, 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 respondent.

          HANTZ MARCONI, J.

         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 affirm.

         The 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 safety" issue.

         The 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.

         The JCC 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.

         After 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.

         RSA 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.

         The 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 applied.

         We have 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.

         In Hardy, we outlined in detail the characteristics of, and the burdens ...

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