Direct Evidence that Retaliation Played a Substantial Role in the Challenged Employment Decision Needed Before Court Review of Whistleblower Claim Switches from "Pretext" to "Mixed Movtive"

Appeal of Wayne Preve
New Hampshire Supreme Court No. 2018-0675
Thursday, August 22, 2019

The petitioner, a Chief of Police, decided to file a complaint against an attorney because of a comment made by the attorney on October 16, 2017 to a Town police officer and other alleged incidents. As part of formulating the complaint, the petitioner compiled all of the data related to the attorney in the police department’s computer database, including all reports in which the attorney or his family were listed as victims, witnesses, or accused parties, and appended that information to the complaint without redacting any personal information such as social security numbers, address, and birthdates.

A copy of the materials was mailed to both the Judicial Conduct Committee, which returned the complaint as misfiled, and the attorney. The attorney complained to the Town.

The Town hired Municipal Resources Inc. (MRI) to investigate the issue. MRI concluded that some of the petitioner’s actions were improper and may have violated certain statutes. Subsequently, the Town disciplined the petitioner, who, after proceeding through the Town’s appeal procedures, appealed to the New Hampshire Department of Labor (NHDOL) claiming the Town engaged in retaliation in violation of RSA Chapter 275-E, the Whistleblower’s Protection Act. After losing at NHDOL, the petitioner appealed to the New Hampshire Supreme Court claiming NHDOL misapplied the standard for RSA Chapter 275-E. The New Hampshire Supreme Court disagreed but took the opportunity to clarify the standard.

The Court clarified that there are two basic ways for an employee to prove retaliation: the “pretext” approach and the “mixed motive” approach. Under the “pretext” approach, the employee must establish a prima facie case of retaliation by demonstrating: “(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. Once the prima facie case is proven, the employer must then rebut the presumption by producing evidence that the adverse employment action was taken for legitimate, non-retaliatory reasons.”

If the employer succeeds in producing such evidence, the employee may show that the employer’s proffered reason was not the true reason for the adverse action. If the employee produces direct evidence that retaliation played a substantial role in the decision, then the “mixed motive” approach applies. If the trier of fact finds the employee’s evidence credible, the burden of persuasion shifts to the employer to prove that, despite the retaliatory animus, it would have made the same decision for legitimate, non-retaliatory reasons.

The New Hampshire Supreme Court clarified that just because the employee has produced “some” direct evidence does not mean that the approach automatically switches from “pretext” to “mixed motive.” The employee must produce “direct evidence that retaliation played a substantial role in the challenged employment decision.” Here, the Town’s hiring of MRI to investigate the petitioner’s actions and MRI’s findings that the petitioner’s actions were improper under the Town’s Code of Ethics and potentially criminal weighed heavily against the retaliation playing a substantial role in the decision.

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Additional Information: 

Practice Pointer:  Municipalities should continue to consider having counsel review disciplinary letters to ensure that they clearly state that any disciplinary action is not taken for a prohibited purpose.