Cluff-Landry v. Roman Catholic Bishop of Manchester

• Decision Date: 24 February 2017
• Docket Number: No. 2016–0122,2016–0122
• Citation: 169 N.H. 670,156 A.3d 147
• Parties: Beverly A. CLUFF–LANDRY v. ROMAN CATHOLIC BISHOP OF MANCHESTER
• Court: New Hampshire Supreme Court

169 N.H. 670
156 A.3d 147

Beverly A. CLUFF–LANDRY
v.
ROMAN CATHOLIC BISHOP OF MANCHESTER

No. 2016–0122

Supreme Court of New Hampshire.

Argued: November 16, 2016
Opinion Issued: February 24, 2017

Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H. Johnson on the brief and orally), and Purcell Law Office, PLLC, of Portsmouth (Ellen Purcell on the brief), for the plaintiff.

156 A.3d 149

Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Peter G. Callaghan and Gregory L. Silverman on the brief, and Mr. Callaghan orally), for the defendant.

CONBOY, J.

169 N.H. 671

The plaintiff, Beverly A. Cluff–Landry, appeals an order of the Superior Court (Garfunkel, J.) granting the motion to dismiss of the defendant, Roman Catholic Bishop of Manchester d/b/a St. Christopher School (the school). We affirm.

I. Background

We assume the following facts, as alleged in the plaintiff's complaint, to be true. In 2008, the plaintiff was hired by the school's former principal to work at the school for the 2008–2009 academic year as a pre-kindergarten (Pre–K) teacher and a teacher of visual arts. Her teaching contract was renewed annually in 2009, 2010, and 2011. The principal left the school at the end of the 2010–2011 school year, and in August 2011, the school hired a new principal.

Two new students enrolled in the Pre–K program at the beginning of the 2011–2012 academic year, each of whom exhibited defiant behaviors,

169 N.H. 672

including "daily kicking, hitting, slapping, punching, spitting, biting, screaming, throwing things, and verbal abuse." One of these students left the school in October 2011, but the other student remained in the Pre–K program.

In November 2011, the plaintiff reported to the principal "her concerns that the school was not adequately set up to handle [the student] due to his unsafe behaviors and the school's inability to keep the other students safe, and that the behavior was in violation of the student-parent handbook." In response to the plaintiff's concerns, the principal "simply laughed." The plaintiff continued to complain to the principal about the student, but the principal took no action. The principal "insisted that the defiant student was just very young and simply needed to repeat Pre–K."

Thereafter, the principal began taking actions that the plaintiff characterizes as retaliation against her. For example, the plaintiff describes a January 27, 2012 incident, when the principal entered the plaintiff's classroom approximately 45 minutes before the start of the school day, while the plaintiff was readying the room, and "began talking in a very loud voice" about an incident that occurred the previous day involving the defiant student. Despite the plaintiff telling the principal that she was not present for the incident, the principal "continued to talk in a loud voice" to the plaintiff repeating, "I've got to get to the bottom of this." (Quotations omitted.) The plaintiff left and went to sit in her car; upon returning to the classroom at the time she would normally report to work, she was told that the principal had called a substitute teacher to replace her for the day.

Later that month, after the parents of a student complained that the defiant student was bullying their daughter, the principal expelled the defiant student. Thereafter, the principal's alleged retaliation toward the plaintiff "escalated." On February 3, the principal issued the plaintiff a "letter of insubordination" for the events on January 27. On February 22, the principal placed the plaintiff on a "Teacher Improvement Plan." In March, the principal began observing the plaintiff teach in the classroom. On April 13, the principal gave the plaintiff her "Lesson Observation" report in which she stated that the plaintiff: "needs to work on her ability to develop strategies for student behavior issues," "must take responsibility for what happens in her classroom, as far as student behavior," and "has difficulty

156 A.3d 150

working with other teachers and teacher aids when they are in her classroom." (Quotations omitted.)

On April 15, the principal sent the plaintiff a letter that stated: "Please be advised that I am unable to offer you a teaching position at St. Christopher School for the school year 2012–2013. Accordingly, any and all mutual contractual teaching obligations will expire on or before June 30, 2012." The

169 N.H. 673

plaintiff continued to work for the remainder of the 2011–2012 academic year. Her last day of work was on June 15, 2012.

Thereafter, "concerned [the school] was giving her a bad reference when [she] was applying for jobs," the plaintiff hired a "reference company," Allison & Taylor, Inc. (A & T), "to do a reference check." On August 5, 2014, A & T contacted the principal. During the conversation, the principal told A & T that the plaintiff: "didn't really leave on good terms," "didn't get along with her peers and had trouble in the classroom," "was put on a plan in the end" and her contract was not renewed. (Quotations omitted.)

In May 2015, the plaintiff sued the school, alleging: (1) a violation of the New Hampshire Whistleblowers' Protection Act, RSA chapter 275–E:2 (2010 & Supp. 2016) (Act), by failing to renew her contract after she reported violations of school and public policies; (2) wrongful discharge, for failing to renew her contract; and (3) slander, based upon the principal's comments to A & T. The school moved to dismiss, arguing that: (1) the plaintiff's factual allegations are insufficient to support a violation of the Act; (2) the wrongful discharge claim is barred by the statute of limitations, and also fails because the plaintiff's employment was governed by a one-year contract; and (3) the alleged defamatory statements are not actionable because the plaintiff consented to their publication. Following a hearing, the trial court granted the school's motion. The plaintiff unsuccessfully sought reconsideration, and this appeal followed.

II. Standard of Review

In reviewing a trial court's grant of a motion to dismiss, we consider "whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery." Sanguedolce v. Wolfe, 164 N.H. 644, 645, 62 A.3d 810 (2013). We assume the plaintiff's pleadings to be true and construe all reasonable inferences in the light most favorable to her. Id. However, we need not assume the truth of statements in the plaintiff's pleadings that are merely conclusions of law. Id. We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss. Id.

III. Whistleblowers' Protection Act

The plaintiff first argues that the trial court erred in dismissing her whistleblower claim under the Act. The plaintiff asserts that she "sufficiently alleged violations" of the Act because she "reported assaults of students and teachers, an unsafe workplace that was unsafe for students," and that the Act "covers such reports, particularly where the Defendant

169 N.H. 674

has a duty to step in and prevent assaults, bullying, and injuries to staff." (Bolding omitted.) The school counters that, in her complaint, the plaintiff "made no mention of any law or rule but focused solely on the school's policies," and that "[t]here was no ... allegation ... suggesting that the Plaintiff believed any actual law or rule was violated by the four-year-old or the school."

The Act provides in pertinent part:

156 A.3d 151

No employer shall harass, abuse, intimidate, discharge, threaten, or otherwise discriminate against any employee regarding compensation, terms, conditions, location, or privileges of employment because:

(a) The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States.

RSA 275–E:2, I(a) (emphasis added).

To survive the motion to dismiss, the plaintiff must have alleged facts in her complaint that show that: (1) she "engaged in an act protected by" the Act; (2) she "suffered an employment action proscribed by" the Act; and (3) "there was a causal connection between the protected [conduct] and the proscribed employment action." Appeal of Seacoast Fire Equip. Co., 146 N.H. 605, 608, 777 A.2d 869 (2001). RSA 275–E:2 "does not require an actual violation of a law or rule but only that an employee reasonably believe that such a violation has occurred." Appeal of Smithfield Dodge, 145 N.H. 23, 26, 749 A.2d 318 (2000). "Whether an employee had ‘reasonable cause to believe’ is an objective question; namely, whether a reasonable person might have believed that the employer was acting unlawfully." Appeal of Osram Sylvania, 142 N.H. 612, 618, 706 A.2d...