Preview:

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 Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Department of Labor No. 2005-529 APPEAL OF ALAN HARDY (New Hampshire Department of Labor) Argued: September 13, 2006 Opinion Issued: February 21, 2007 Backus, Meyer, Solomon & Branch, LLP, of Manchester (Jon Meyer on the brief and orally), for the petitioner. Hebert & Uchida, P.L.L.C., of Concord (Donald F. Hebert on the brief and orally), for the respondent. BRODERICK, C.J. The petitioner, Alan Hardy, appeals a decision of the New Hampshire Department of Labor (DOL) that it did not have statutory authority to award him attorney's fees and expenses for his successful Whistleblowers' Protection Act claim, see RSA chapter 275-E (1999 & Supp. 2006). The respondent, the Hopkinton State Fair Association (Association), cross-appeals the DOL's ruling that Hardy met his initial burden of persuasion on the merits of his claim. We dismiss the Association's cross-appeal, reverse the DOL's ruling on attorney's fees and remand. I The record and the decision of the hearing officer support the following. The Association administers the annual Hopkinton State Fair (Fair) and supports other seasonal businesses and events that are held at the Hopkinton

Fair Grounds, but produced by other organizations. The Association is run by a board of directors (board), on which Hardy served from 1987 to 1991. In 1991, he was hired as the general manager of the Association. As such, he was the Association's only full-time employee, responsible for the supervision of 200-300 seasonal employees and contractors. Hardy's employment history with the Association does not indicate any significant issues or problems; his only annual performance review in 2003 repeatedly used the term "above average" to describe his job performance. As a charitable trust, the Association is subject to RSA 7:19-a (2003), which provides that "[e]very charitable trust shall adopt policies pertaining to pecuniary benefit transactions and conflicts of interest." RSA 7:19-a, IV. "Pecuniary benefit transactions" include those in which a director of the charitable trust has a direct or indirect financial interest. See RSA 7:19-a, I(c). Indirect financial interests arise in transactions involving members of the board and members of their immediate families. See RSA 7:19-a, I(b). The statute requires the Association to maintain a list of all pecuniary benefit transactions and annually report the list to the director of charitable trusts. See RSA 7:19a, II(c). In addition, all such transactions must receive a two-thirds vote of the disinterested members of the board who comprise a quorum, and the Association must publish in a newspaper of general circulation a notice of any pecuniary benefit transactions equaling $5,000 or more. See RSA 7:19-a, II(b) and (d). The Association did not comply with these statutory requirements. At the DOL hearing, Hardy testified that during the course of his employment, he fielded inquiries from board members about securing employment for family members and that by 2004, ten of the eleven board members had a direct or indirect financial interest in the Fair. In 1997, Hardy began to work with the board to adopt a "conflict-ofinterest policy," but the board was not responsive. In 2003, the Association's auditor expressed her concern to Hardy about the Association's failure to comply with RSA 7:19-a. Hardy communicated his concerns to the Association's attorney. Hardy's efforts to persuade the board to require individual board members to disclose pecuniary benefit transactions and to generate a policy detailing how the Association would comply with the statute, however, met with virtually no success. On November 8, 2004, Hardy sent an email to the office of charitable trusts expressing concern about the Association's noncompliance with RSA 7:19-a. Hardy detailed that he had been trying to work with the board on two issues -- statutory compliance on pecuniary benefit transactions and the number of disinterested directors on the board. He closed his email by stating:

2

I believe that the need for my Board of Directors to have a conflict of interest policy and to follow it is now more important than ever. I guess at this point, I am asking for your advice as I cannot come up with a solution which complies with [RSA] 7:19-a. That same day, Hardy gave a copy of his email to David Jones, the board's president, for inclusion with the packet of documents to be given to the entire board at its meeting that evening. In a cover memorandum, Hardy wrote: It is now more important than ever that there be a conflict of interest policy established and working. You can see that there are new requirements for non-profits who have more than 1 Million in gross income. I have also asked the Department of Justice for guidance regarding [RSA] 7:19-a compliance. This process needs to be complete as part of this years [sic] filing under the new statute enacted this last summer. Jones testified that he distributed both Hardy's email and cover memorandum to the other members of the board. By a letter dated November 10, 2004, the board notified Hardy "that the position known as The Hopkinton State Fair General Manager has been eliminated." Jones also testified that, prior to the November 8 meeting, no consideration had been given to eliminating the general manager position, and that Hardy's report to the Attorney General "disturbed" him and had a "small part" to play in the elimination of Hardy's job. Hardy filed a claim with the DOL, alleging that the Association violated the Whistleblowers' Protection Act, see RSA 275-E:2, I(a), and requested "reinstatement to his job on the same terms as set forth in his employment contract, lost back pay and fringe benefits, and attorney's fees and expenses." In May 2005, the hearing officer conducted a "pretext analysis" of the evidence, found in Hardy's favor on the merits and granted the requested relief, except for attorney's fees and expenses, which he concluded he was not authorized to award. The DOL denied Hardy's motion for rehearing, but granted the Association's motion for rehearing on the basis that use of the pretext analysis was inappropriate due to the presence of direct evidence, stating: The "pretext" analysis is used if there is only circumstantial evidence available. You are correct in your assertion that there was some direct evidence of retaliation, specifically through Jones' testimony. Because of this direct evidence of retaliation, there was not only circumstantial evidence available, although there was

3

significantly more circumstantial evidence than there was direct evidence. The decision utilized the "pretext analysis" when it should have correctly used the "mixed motive analysis". After an informal prehearing conference, the hearing officer determined that he would not receive new testimony or evidence, but that the parties could submit briefs with regard to the substantive analysis he employed in rendering his original decision. In December 2005, after utilizing the "mixed motive" analysis, the hearing officer issued a second decision finding in Hardy's favor, and granted the requested relief other than attorney's fees and expenses. Hardy filed a timely motion for rehearing, which was denied. The record does not demonstrate that the Association filed a motion for rehearing. Hardy's appeal and the Association's cross-appeal followed. II We first address the Association's cross-appeal. Although neither party raised the issue, the record on appeal does not demonstrate that the Association filed a motion for rehearing subsequent to the DOL's December 2005 decision. The decision's cover letter, dated December 15, 2005, made clear to both parties that: Any party aggrieved by this Decision may appeal in the manner specified by RSA 541:3, by applying in writing for a rehearing to the Commissioner of Labor within thirty (30) days of the date of this Decision, specifying fully the grounds upon which it is claimed that the Decision is unlawful or unreasonable. On December 21, 2005, Hardy timely filed a motion for rehearing, which was denied. On January 12, 2006, the DOL informed both parties that the December 15 decision was now "final." On January 13, 2006, the Association filed its cross-appeal directly with this court. RSA 541:3 (1997) states, in pertinent part: Within 30 days after any order or decision has been made by the commission, any party to the action or proceeding before the commission . . . may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order, specifying in the motion all grounds for rehearing. RSA 541:4 (1997), however, states:

4

Such motion shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable. No appeal from any order or decision of the commission shall be taken unless the appellant shall have made application for rehearing as herein provided, and when such application shall have been made, no ground not set forth therein shall be urged, relied on, or given any consideration by the court, unless the court for good cause shown shall allow the appellant to specify additional grounds. (Emphasis added.) RSA 541:6 (1997) states: Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the decision on such rehearing, the applicant may appeal by petition to the supreme court. Finally, New Hampshire Supreme Court Rule 10(1) states: NOTE: To appeal to the supreme court from an administrative agency under RSA 541, the appealing party must have timely filed for a rehearing with the administrative agency. See RSA 541:4 and Appeal of White Mountains Education Association, 125 N.H. 771 (1984). (Emphasis added.) In Appeal of White Mountains Education Association, we held that "[w]hen a decision on any issue is reversed on rehearing, the newly losing party must apply for a further rehearing and satisfy the requirements of RSA 541:4 before appealing to this court." Appeal of White Mts. Educ. Ass'n, 125 N.H. at 775. After oral argument, we ordered the Association to file a brief memorandum addressing whether we should dismiss its cross-appeal on the basis that the record did not demonstrate that it had complied with the requirements of RSA 541:4 and :6, and Supreme Court Rule 10(1). In its memorandum, citing Appeal of Kruzel, 143 N.H. 681 (1999), the Association contends that a second motion for rehearing was not necessary under the circumstances of this case. Specifically, the Association argues that "neither the ultimate issue on appeal, whether [Hardy] met his required burden of proof, nor . . . the winning party [was] reversed." The Association's reliance on Kruzel is misplaced. In that case, the petitioning dentist developed carpal tunnel syndrome and ceased his specialty dental practice. The respondent insurance company denied his subsequent claim for workers' compensation benefits. After a DOL hearing officer found

5

that the petitioner was entitled to temporary total disability benefits, the insurance company appealed to the Compensation Appeals Board (CAB). The CAB concluded that the dentist's injury was compensable to some extent, but that he was not totally disabled from gainful employment or from practicing dentistry; he was totally disabled only from his specialty dental practice. Kruzel, 143 N.H. at 682-83. The insurance company filed a motion for rehearing; the dentist also filed a motion for rehearing, requesting the CAB to reconsider its decision that he was not totally disabled from the practice of dentistry. In a second order, the CAB found that the dentist had not produced enough evidence to establish that he was totally disabled from functioning as a dentist. In the dentist's subsequent appeal, the insurance company argued that the appeal should be dismissed because the dentist did not file a second motion for rehearing. Id. at 683. We disagreed, stating: The board's initial decision found that the petitioner was not totally disabled from practicing dentistry. The petitioner moved for rehearing, arguing that the uncontroverted medical evidence proved that he was totally disabled from the practice of dentistry. The board's subsequent order affirmed its finding that the petitioner was not totally disabled from practicing dentistry. Thus, the board's decision on this issue was not reversed; nor was the petitioner a newly losing party. Id. at 684. The difference between Kruzel and the case at hand is clear. In Kruzel, the CAB's second order was equivalent to a rejection of the dentist's reasoning. Had the dentist filed a second motion for rehearing, it would have been identical to his first, with presumably the same result. In the case at hand, however, the DOL agreed with the Association that the hearing officer should have used the mixed motive analysis and not the pretext analysis. In the subsequent order, the hearing officer rejected his earlier pretext analysis and, based upon the new mixed motive analysis, issued a new decision on the merits. As noted by the Association in its memorandum, "the original decision of the Hearing Officer was reversed on the basis of the analysis to be applied." More correctly, the hearing officer's decision to use the pretext analysis was reversed on rehearing. The fact that the ultimate decision on the merits for Hardy remained the same, in the subsequent order, is not controlling. Following the use of the different analysis, the Association was the newly losing party and Hardy was the newly winning party. The Association should have filed a second motion for rehearing challenging the hearing officer's decision on the merits under the new analysis.

6

Because the Association did not comply with the requirements of RSA 541:4 and :6, and Rule 10(1), we dismiss its cross-appeal on our own motion. See Appeal of White Mts., 125 N.H. at 775 ("when a record does not demonstrate that the appealing party has met the requirements of [RSA 541:4] we will refuse the appeal or dismiss it on our own motion"); cf. Dziama v. City of Portsmouth, 140 N.H. 542, 545 (1995) (when board of adjustment's original decision was denial upon merits based upon one issue, and, following rehearing, board admitted error as to that issue but denied petition upon merits based upon new second issue, aggrieved party had to file new motion for rehearing with board to preserve appeal). Our decision is made in furtherance of the purpose of the statutory scheme and of our rule, specifically that "administrative agencies should have a chance to correct their own alleged mistakes before time is spent appealing from them." Appeal of White Mts., 125 N.H. at 774; see Dziama, 140 N.H. at 544 ("board should have the first opportunity to pass upon any alleged errors in its decisions so that the court may have the benefit of the board's judgment in hearing the appeal"). Here, the Association's first motion for rehearing gave the hearing officer the opportunity to correct his alleged error of applying the pretext analysis over the mixed motive analysis. By not filing a second motion for rehearing, however, the Association failed to afford the hearing officer the opportunity to correct his alleged error in the actual application of the mixed motive analysis. III In its June 2005 motion for rehearing, the Association argued that the hearing officer erred because: (1) the pretext analysis was inappropriate due to the presence of direct evidence that retaliation played a role in the Association's employment decision; and (2) the direct evidence was insufficient for Hardy to satisfy his burden of showing that retaliation played a substantial role in the elimination of his position. Because we have dismissed the Association's crossappeal, we need not address these arguments substantively. We turn to them on a limited basis, however, to clarify the triggering mechanism for the mixed motive analysis under Appeal of Montplaisir, 147 N.H. 297, 300 (2001). 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." Montplaisir, 147 N.H. at 300 (quotation and citation omitted). In Montplaisir, we outlined in detail the characteristics of, and the burdens under, the two approaches as follows:

7

The quality of the evidence determines whether a "pretext" or a "mixed motive" analysis applies. If there is only circumstantial evidence of retaliation, then the "pretext" approach applies. If there is direct evidence of retaliation, then the "mixed motive" approach applies. An employee may proceed simultaneously on both approaches. Based upon the availability or unavailability of the proffered evidence, the hearing officer or trial court channels the case into one approach or the other. . . . Under the "pretext" . . . scheme, the employee bears the initial burden of establishing a prima facie case of unlawful conduct. To establish a prima facie case of retaliation, the employee must demonstrate that: (1) [he] engaged in an act protected by [RSA chapter 275-E]; (2) [he] suffered an employment action proscribed by [RSA chapter 275-E]; and (3) there was a causal connection between the protected act and the proscribed employment action. Establishing a prima facie case of retaliation creates a presumption that the employer unlawfully retaliated against the employee. This presumption places a burden upon the employer to rebut the prima facie case -- i.e., the burden to produce evidence that the adverse employment action was taken for legitimate, non-retaliatory reasons. The burden placed upon the employer is only a burden of production; the employee retains the burden of persuasion. If the employer satisfies its burden of production, the presumption raised by the prima facie case is rebutted and drops from the case. The employee then has the opportunity to show that the employer's proferred [sic] reason was not the true reason for the adverse employment action and that retaliation was. The employee may do this either indirectly by showing that the employer's stated reasons were not credible, or directly by showing that the adverse employment action was more likely motivated by retaliation. Under the "pretext" approach, the employee retains the ultimate burden of persuading the trier of fact that he or she was the victim of unlawful retaliation. If the employee produces direct evidence that retaliation played a substantial role in a particular employment decision, then the "mixed motive" approach applies. If the trier of fact believes the employee's direct evidence, the burden of persuasion shifts to the employer to show that despite the retaliatory animus, it would have made the same adverse employment decision for legitimate,

8

non-retaliatory reasons. Evidence is considered to be direct if it consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision. Thus, so long as the employee can meet the evidentiary burden required by the "mixed motive" approach, then the burden of persuasion remains with the employer. Id. at 300-02 (quotations and citations omitted). After the initial hearing in this case, the hearing officer determined that a pretext analysis was appropriate due to the circumstantial nature of the evidence alleged by Hardy, found that Hardy had established a prima facie case of unlawful conduct by the Association and that the Association failed to rebut the presumption of unlawful conduct or retaliation. Agreeing with the Association that, given the presence of some direct evidence, the hearing officer should have applied the mixed motive analysis over the pretext analysis, the DOL granted the Association's motion for rehearing. In subsequently applying the mixed motive analysis, the hearing officer detailed the direct evidence of retaliation and again found for Hardy. In its now dismissed cross-appeal, the Association contended that the hearing officer misapplied the mixed motive analysis by substituting the absence of a proffered non-retaliatory reason for Hardy's initial burden of showing that the retaliatory reason was a "substantial factor" in the Association's decision to eliminate Hardy's position. See id. at 301; Price Waterhouse v. Hopkins, 490 U.S. 228, 265, 277-78 (1989) (superseded in part by the Civil Rights Act of 1991, 42 U.S.C.

Download 2005-529, APPEAL OF ALAN HARDY.pdf

New Hampshire Law