NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Department of Labor No. 2000-145

APPEAL OF MARY ELLEN MONTPLAISIR

(New Hampshire Department of Labor)

December 18, 2001

Nancy Richards-Stower, of Merrimack, by brief and orally, for the petitioner.

Kenna, Johnston & Sharkey, P.A., of Manchester (Bruce E. Kenna on the brief and orally), for the respondent.

Duggan, J. The petitioner, Mary Ellen Montplaisir, appeals a decision by the New Hampshire Department of Labor (DOL) that she failed to prove that the defendant, Rosa Roofeh, M.D., P.C. (Dr. Roofeh), violated the Whistleblowers’ Protection Act (Act), RSA 275-E:2, I(b) (1999). On appeal, Montplaisir argues the DOL erred when it failed to apply a mixed motive analysis on the evidence presented. We vacate and remand.

The record and the hearing officer’s decision support the following facts. In July 1998, the petitioner was hired by Dr. Roofeh as office manager. The petitioner had previously been employed by the defendant’s fianc