Barry v. N.H. Dep't of Health & Human Servs.

Decision Date28 September 2017
Docket NumberNo. 2016–0398,2016–0398
Citation170 N.H. 364,172 A.3d 1062
Parties Daniel BARRY v. NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES & a.
CourtNew Hampshire Supreme Court

170 N.H. 364
172 A.3d 1062

Daniel BARRY
v.
NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES & a.

No. 2016–0398

Supreme Court of New Hampshire.

Argued: May 18, 2017
Opinion Issued: September 28, 2017


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

172 A.3d 1064

Joseph A. Foster, attorney general (Kenneth A. Sansone, assistant attorney general, and Lynmarie C. Cusack, senior assistant attorney general, on the brief, and Mr. Sansone orally), for the defendants.

Douglas, Leonard & Garvey, P.C., of Concord (Megan Douglass on the brief), for the New Hampshire Chapter of the National Employment Lawyers Association, as amicus curiae.

BASSETT, J.

170 N.H. 365

The plaintiff, Daniel Barry, appeals a jury verdict in favor of the defendants—the New Hampshire Department of Health and Human Services (department) and William Fenniman, Jr., the director of the Division of Juvenile Justice Services during the relevant time period. The

170 N.H. 366

plaintiff worked as a youth counselor at the Sununu Youth Services Center (SYSC) until the defendants terminated his employment, claiming that he had used excessive force against a youth resident and had failed to file a report regarding the incident. After the Personnel Appeals Board (PAB) reinstated him, the plaintiff filed the present action, alleging a claim for wrongful termination against the department, and a claim for interference with the plaintiff's right to freedom of expression under RSA chapter 98–E against the department and Fenniman in his official and individual capacities.

On appeal, the plaintiff argues that the Superior Court (Schulman, J.) erred when it: (1) declined to give collateral estoppel effect to the PAB's findings that the plaintiff had not used unreasonable or excessive force against the resident or violated SYSC policies; and (2) allowed the defendants' expert to testify regarding the reasonableness of the plaintiff's use of force. The defendants cross-appeal, arguing that the Superior Court (Brown, J.) erred when it: (1) concluded that an employee protected by state personnel laws and a collective bargaining agreement could bring a claim for wrongful termination; and (2) declined to make factual findings to resolve the defendants' motion to dismiss upon the ground of sovereign immunity. We affirm the trial court's rulings with respect to the issues raised by the plaintiff in his appeal. As a result, we do not address the issues raised in the defendants' cross-appeal.

The jury could have found the following facts. On August 7, 2010, while the plaintiff was on duty at the SYSC, one of the residents became upset at a SYSC staff member. The confrontation between the resident and SYSC employees escalated as the resident grew angrier. The plaintiff intervened, handcuffing the resident, removing him from his room, and, ultimately, restraining him on the ground. The plaintiff claimed that he restrained the resident to prevent him from spitting on staff, and asserted that he maintained the restraint for several minutes because the resident was threatening to harm himself by "smash[ing] his head" against the floor.

An internal investigation of the incident followed, after which Fenniman recommended that the plaintiff be terminated. Thereafter, the plaintiff was terminated. The defendants offered two justifications for the termination: first, the plaintiff's restraint of the resident constituted an excessive use of force; and second, the plaintiff failed to file a report regarding the incident, in violation of SYSC policy.

The plaintiff appealed his termination to the PAB. The PAB concluded that termination was "unwarranted" and "unjust" in light of the facts in evidence. Specifically, the PAB found that the plaintiff had not "use[d] excessive and unreasonable force for the conditions existing at the time" he restrained the resident, and it determined that, although the plaintiff "did

170 N.H. 367

not file a report of the restraint, he ensured that such a report was completed and submitted as required." The PAB ordered that the plaintiff be reinstated with back pay,

172 A.3d 1065

and the plaintiff returned to his employment.

The plaintiff subsequently brought the present action, alleging that the defendants' real motivation was to retaliate against the plaintiff for engaging in union activity and speaking out against various policies and initiatives promoted by Fenniman. After trial, the jury returned a verdict in favor of the defendants. On appeal, the plaintiff argues that the trial court erred when it: (1) declined to give collateral estoppel effect to the PAB's findings; and (2) allowed the defendants' use-of-force expert to testify.

We first address the plaintiff's argument that the trial court erred when it failed to give collateral estoppel effect to the PAB's findings. Collateral estoppel may preclude the relitigation of findings by an administrative board, provided that the following requirements are satisfied: (1) the issue subject to estoppel must be identical in each action; (2) the first action must have resolved the issue finally on the merits; (3) the party to be estopped must have appeared in the first action or have been in privity with someone who did; (4) the party to be estopped must have had a full and fair opportunity to litigate the issue; and (5) the finding must have been essential to the first judgment. Farm Family Mut. Ins. Co. v. Peck, 143 N.H. 603, 605, 731 A.2d 996 (1999). "The applicability of collateral estoppel is a question of law that we review de novo." Tyler v. Hannaford Bros., 161 N.H. 242, 246, 13 A.3d 325 (2010). The party asserting estoppel bears the burden of proving that it applies. Appeal of Wingate, 149 N.H. 12, 16, 813 A.2d 1176 (2002).

In the trial court, the plaintiff argued that, given the PAB's findings, the defendants were precluded from offering evidence that the plaintiff's use of force was unreasonable or excessive, or that he had violated the policy requiring staff to report incidents involving the use of force. The trial court denied the motion, concluding that collateral estoppel did not apply because the issues in the two proceedings were not identical. On appeal, the defendants argue that the trial court's ruling may be sustained on a different ground—that, in light of the substantial procedural differences between the PAB proceeding and the present civil action, it would be unfair and inequitable to apply collateral estoppel. We agree with the defendants. See Slater v. Planning Board of Town of Rumney, 121 N.H. 212, 216, 427 A.2d 511 (1981) (we will sustain a decision of a tribunal if there are valid alternate grounds to support it).

170 N.H. 368

Collateral estoppel serves the dual purposes of "promoting judicial economy and preventing inconsistent judgments." Bruzga's Case, 142 N.H. 743, 745, 712 A.2d 1078 (1998) (quotation omitted). We have recognized that collateral estoppel should not be mechanically applied. Id. "Rather, it should be employed with reason, equity, and fundamental fairness as ultimate goals." Id. Thus, when countervailing policy and equitable considerations outweigh the policies supporting collateral estoppel, we have declined to apply the doctrine. See, e.g., In re Zachary G., 159 N.H. 146, 152, 982 A.2d 367 (2009) (declining, in light of the potential adverse impact on the public interest, to apply collateral estoppel in termination of parental rights proceeding); State v. Cassady, 140 N.H. 46, 49, 662 A.2d 955 (1995) (declining to give collateral estoppel effect to findings of administrative license suspension hearing in subsequent criminal proceeding).

This approach is consonant with Section 28 of the Restatement (Second) of Judgments, see Restatement (Second) of Judgments § 28, at 273–74 (1982), which notes that collateral estoppel should not apply

172 A.3d 1066

when "[a] new determination of the issue is warranted by differences in the...

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