In re Montplaisir

• Court: New Hampshire Supreme Court
• Writing for the Court: DUGGAN, J.
• Citation: In re Montplaisir, 787 A.2d 178, 147 N.H. 297 (N.H. 2001)
• Decision Date: 18 December 2001
• Docket Number: No. 2000–145.,2000–145.
• Parties: Appeal of Mary Ellen MONTPLAISIR (New Hampshire Department of Labor).

147 N.H. 297

787 A.2d 178

Appeal of Mary Ellen MONTPLAISIR (New Hampshire Department of Labor).

No. 2000–145.

Supreme Court of New Hampshire.

Dec. 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 fiancé, Dr. William Willitts, who had a separate medical practice. In July of 1998, Dr. Willitts, who had previously been married, was being sought by State and federal investigators because he failed to appear at a child support hearing. On April 1, 1999, Dr. Willitts was arrested in Belize and flown to Miami where he was taken into custody by U.S. Marshals. The following day, federal and State law enforcement agencies searched Dr. Roofeh's office pursuant to a search warrant.

On April 7, 1999, Montplaisir and two co-employees were served with subpoenas to appear and testify before a federal grand jury. On April 8, 1999, the petitioner appeared before the grand jury. Upon returning to work the next day, the petitioner told the other office employees and Dr. Roofeh that she did not want to be questioned regarding her testimony before the grand jury. Dr. Roofeh terminated the petitioner's employment on April 15, 1999.

On April 26, 1999, Montplaisir filed a whistleblower's complaint with the DOL alleging a violation of RSA 275–E:2, I(b), which provides:

No employer shall discharge, threaten, or otherwise discriminate against any employee regarding such employee's compensation, terms, conditions, location, or privileges of employment because:

....

(b) The employee, in good faith, participates, verbally or in writing, in an investigation, hearing, or inquiry conducted by any governmental entity, including a court action, which concerns allegations that the employer has violated any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States.

In her complaint and at the DOL hearing, the petitioner alleged that she was terminated in retaliation for her cooperation with the U.S. Attorney's investigation of Dr. Willitts and Dr. Roofeh. In response, Dr. Roofeh contended that the petitioner's termination was justified because the petitioner took too much time off from work, did not get her work done, disregarded instructions to properly train a new employee, and was disloyal in that she secretly worked with other members of Dr. Roofeh's staff to establish a new medical practice.

The DOL found the cause of the petitioner's discharge was her overall behavior and not her testimony before the grand jury. The petitioner's motion to reconsider was denied. On appeal, the petitioner argues that the DOL erred by: (1) failing to find a whistleblower violation when Dr. Roofeh admitted that she fired the employee because of her grand jury testimony; (2) failing to conduct a mixed motive analysis; (3) failing to credit Dr. Roofeh's own declaration against interest as an admission of unlawful motivation; and (4) denying the petitioner a fair hearing by not requiring Dr. Roofeh to answer certain questions.

We will not set aside the DOL's decision except for errors of law unless we are satisfied, by a clear preponderance of the evidence, that such order is unjust or unreasonable. RSA 541:13 (1997). "We presume the DOL's factual findings are prima facie lawful and reasonable and will not overturn them unless the record does not contain sufficient evidence to support them." In re Seacoast Fire Equipment Co. , 146 N.H. 605, ––––, 777 A.2d 869, 872 (2001).

We have previously noted that "the federal standards used to evaluate retaliation claims under Title VII are useful in resolving claims under RSA chapter 275–E." Id. at ––––, 777 A.2d at 872. Under federal law, there are two basic ways for an employee to prove retaliation: the "pretext" approach and the "mixed motive" approach. See Kirk v. Hitchcock Clinic , 261 F.3d 75, 78 (1st Cir.2001). In the context of a whistleblower action, both methods may be used to assess whether the employee participated in a protected activity and whether, because of the employee's participation, the employer discharged, threatened, or otherwise discriminated against the employee. RSA 275–E:2 I(a), (b).

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. See Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 252–53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ; McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If there is direct evidence of retaliation, then the "mixed motive" approach applies. See Price Waterhouse v. Hopkins , 490 U.S. 228, 241–44, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (superseded in part by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq . ). An employee may proceed simultaneously on both approaches. Fernandes v. Costa Bros. Masonry, Inc. , 199 F.3d 572, 581 (1st Cir.1999). 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. Id .

The analytical framework in a "pretext" case was established in McDonnell Douglas v. Green , 411 U.S. at 802–05, 93 S.Ct. 1817; see also Burdine , 450 U.S. at 253, 101 S.Ct. 1089. Under the "pretext" or McDonnell Douglas scheme, the employee bears the initial burden of establishing a prima facie case of unlawful conduct. Seacoast , 146 N.H. at ––––, 777 A.2d at 872. To establish a prima facie case of retaliation, the employee must demonstrate that: (1) she engaged in an act protected by the whistleblowers' protection statute; (2) she suffered an employment action proscribed by the whistleblowers' protection statute; and (3) there was a causal connection between the protected act and the proscribed employment action. Id.

Establishing a prima facie case of retaliation creates a presumption that the employer unlawfully retaliated against the employee. Burdine , 450 U.S. at 254, 101 S.Ct. 1089. 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. St. Mary's Honor Center v. Hicks , 509 U.S. 502, 506–07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The burden placed upon the employer is only a burden of production; the employee retains the burden of persuasion. See id. at 511, 113 S.Ct. 2742; Seacoast , 146 N.H. at ––––, 777 A.2d at 872.

If the employer satisfies its burden of production, the presumption raised by the prima facie case is rebutted and "drops from the case." Burdine , 450 U.S at 255, 255 n. 10, 101 S.Ct. 1089. The employee then has the opportunity to show that the employer's proferred reason was not the true reason for the adverse employment action and that retaliation was. Id. at 256, 101 S.Ct. 1089; Seacoast , 146 N.H. at ––––, 777 A.2d at 872. 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. Burdine , 450 U.S. at 256, 101 S.Ct. 1089. 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. Id. at 256, 101 S.Ct. 1089.

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, non-retaliatory reasons. Price Waterhouse , 490 U.S. at 277–78, 109 S.Ct. 1775 (O'Connor, J., concurring); Appeal of N.H. Dept. of Employment Security , 140 N.H. 703, 712, 672 A.2d 697 (1996). 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." Febres v. Challenger Caribbean Corp. , 214 F.3d 57, 60 (1st Cir.2000). 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.

We now turn to the petitioner's contention that the DOL hearing officer erred in not performing a mixed motive analysis.

The DOL is under an obligation to set forth its methodology and findings fully and accurately so that this court may undertake meaningful judicial review of its methods, findings and decisions. Appeal of Toczko , 136 N.H. 480, 488–89, 618 A.2d 800 (1992)...