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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 ___________________________ Hillsborough-northern judicial district No. 2006-025 MICHAEL PORTER v. CITY OF MANCHESTER & a. Argued: January 18, 2007 Opinion Issued: April 5, 2007 Backus, Meyer, Solomon & Branch, LLP, of Manchester (Jon Meyer on the brief and orally), for the plaintiff. McDonough & O'Shaughnessy, P.A., of Manchester (Robert J. Meagher on the brief and orally), for the defendant. DALIANIS, J. The defendant, the City of Manchester (City), appeals the Superior Court's (Lewis, J.) denial of its motions for summary judgment and directed verdict in a jury trial where it was held liable on a theory of respondeat superior for the tortious acts of Susan Lafond, a former welfare commissioner, against the plaintiff, Michael Porter. We affirm. The jury could have found the following facts: The plaintiff was employed as a caseworker in the City Welfare Department (the department). Lafond hired him in 1997, and for the first few years they enjoyed a positive working relationship to the point that he campaigned for her reelection. Eventually, the plaintiff developed concerns about certain department practices and was told, "[I]t's a monarchy. If you don't like it, there's the door." After the suicide of a

client, the plaintiff took a medical leave during which he contacted the City Human Resources Department to raise concerns about the department under Lafond's supervision. Lafond was informed of his complaints. Upon his return from leave, Lafond began to retaliate. At their first meeting, she stated, "[W]e'll see how long you last." Thereafter, Lafond frequently scrutinized and criticized the plaintiff, limited his movement within the office, humiliated him in front of clients, and ignored his presence at staff meetings. For a period of time, in an attempt to control the situation, the City did not allow Lafond to work in her office. Ultimately, the City allowed her to return. Lafond then suspended the plaintiff. The suspension resulted from a dispute about a case the plaintiff had reported to the New Hampshire Division for Children, Youth and Families. The City worked with Lafond to make sure the suspension met its standards, requiring her to redraft the letter of suspension and increase the penalty from one day to one week. The welfare commissioner, despite being elected, is a City employee and head of the department. As such, Lafond had "exclusive personnel authority" over her department. Her job description stated that "extensive leeway is granted for the exercise of independent judgment and initiative." Lafond was "very protective" of her authority as commissioner during her long tenure at the department from 1988-2001. She had asserted her authority through prior controversies and could be punitive to staff with dissenting views. Human resources personnel testified that Lafond viewed their intervention as a threat to her authority as commissioner. At the close of evidence, the jury was instructed on the law of respondeat superior and asked to determine whether Lafond "commit[ted] retaliatory acts which were within the scope of her employment" and whether "those retaliatory acts which were within the scope of her employment [were] sufficient to cause the constructive discharge of [the plaintiff]." The jury answered in the affirmative. This case comes before us a second time. See Porter v. City of Manchester, 151 N.H. 30 (2004). In the first case, the plaintiff brought an action against the City, alleging wrongful termination, and against Lafond under 42 U.S.C.

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