Beverly A. Cluff-Landry v. Roman Catholic Bishop of Manchester

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 2016-0122

BEVERLY A. CLUFF-LANDRY

v.

ROMAN CATHOLIC BISHOP OF MANCHESTER

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.

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. 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, 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

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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 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

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 (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.

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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 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:

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

(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 (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 (1998) (quotation

omitted).

A private employer’s internal policies or procedures do not constitute a

“law or rule” adopted under the laws of a state or the United States for

purposes of a whistleblower claim. See, e.g., Nichols v. Metro. Center for

Independent Living, 50 F.3d 514, 517 (8th Cir. 1995) (explaining that an

employee’s complaint concerned a change in her employer’s management

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policies, not a violation of the law within the meaning of Minnesota’s

whistleblower retaliatory discharge statute; “the public does not have an

interest in a business’s internal management problems” (quotation and

brackets omitted)); University of Houston v. Barth, 403 S.W.3d 851, 856 (Tex.

2013) (holding that a university’s internal administrative policies cannot form

the basis for a report of a violation of law because they are not “rules adopted

under a statute” as required by the Texas Whistleblower Act (quotation and

brackets omitted)); Mullins v. Dallas Independent School Dist., 357 S.W.3d

182, 188 (Tex. App. 2012) (stating that complaints alleging violations of an

employer’s internal procedures and policies will not support a claim under the

state’s statute); cf. Frevert v. Ford Motor Co., 614 F.3d 466, 474 (8th Cir. 2010)

(explaining that employee’s allegations in his writ of “violations of Company

policy” were insufficient to establish a common law claim for wrongful

termination against public policy).

The plaintiff’s complaint alleges that she “reasonably believed” that she

reported violations of the “school’s policies and procedures” and violations of

“other public policies such as assault.” According to her allegations, in

November 2011, the plaintiff reported to the principal “her concerns that the

school was not adequately set up to handle [the defiant 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.” The

complaint further alleges that the plaintiff “continued to complain to [the

principal] about the disruption in the classroom and the unsafe environment

due to the defiant student’s behavior.”

We agree with the trial court that, to the extent the plaintiff’s

whistleblower claim is based upon her reports of violations of the school’s

internal policies, such as the school’s student-parent handbook, she has failed

to allege facts that show that she engaged in an act protected by the Act. Cf.

Appeal of Seacoast Fire Equip. Co., 146 N.H. at 606-07 (employee reported

illegal dumping of fire extinguisher residue and wage law violations); Appeal of

Fred Fuller Oil Co., 144 N.H. 607, 609 (2000) (employee reported employer’s

violation of statutes and regulations limiting the number of hours a commercial

driver may work); Appeal of Osram Sylvania, 142 N.H. at 614-15 (employee

filed a safety complaint that temperatures at the employer’s production plant

were excessive in violation of the federal Occupational Safety and Health Act).

We also agree with the trial court that, to the extent the plaintiff’s claim

is based upon her report of an “assault,” a reasonable employer would not have

understood her complaint to constitute a “report” that the child had violated

the simple assault statute, RSA 631:2-a (2016). See Appeal of Fred Fuller Oil

Co., 144 N.H. at 611 (we consider a “report” under the Act to have been made

“if a reasonable employer would have understood from an employee’s complaint

that the employee was reciting a violation of law”). As the trial court reasoned,

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[t]he disruptive student at issue in this case was four years old.

The complaint does not suggest in any way that the plaintiff made

clear to [the principal] that she believed the four-year old’s conduct

was a violation of a criminal statute. Simply put, a reasonable

principal would not believe that an experienced teacher’s

complaints of a four-year-old student’s disruptive behavior should

be construed as a report of a violation of the law. In fact, in the

complaint, the plaintiff states that she only referenced the student-

parent handbook and the school’s internal policies—and not the

criminal code—when she made the complaints.

The plaintiff further asserts that because, “[w]hen reporting an alleged

violation, an employee is not required to expressly identify the law allegedly

violated,” her “reports should reasonably have been understood” by the school

to encompass violations of “Department of Education regulations,” the Pupil

Safety and Violence Prevention statute, see RSA ch. 193-F (2008 & Supp.

2016), and the Workers’ Compensation Law, see RSA ch. 281-A (2010 & Supp.

2016). (Bolding omitted.) Although the plaintiff concedes that RSA chapter

193-F applies only to public schools, she contends that “New Hampshire Board

of Education rules” require non-public accredited schools “to adopt grievance

policies” concerning bullying, citing, specifically, New Hampshire

Administrative Rules, Ed 403.01(a)(2)(o)(1). (Bolding omitted.) However, that

rule simply requires that, as part of the application for initial approval as a

non-public school for attendance purposes, an applicant must provide a letter

of intent that includes, among other things, a “copy of the school’s grievance

policy including . . . procedures to address complaints” concerning bullying.

N.H. Admin. R., Ed 403.01(a)(2)(o)(1). Even assuming that rule applies in this

case, the plaintiff does not argue that the school failed to comply with it.

We, likewise, reject the plaintiff’s contention that she reasonably believed

she was reporting a violation of the Workers’ Compensation Law. RSA 281-

A:64, I, requires that employers provide employees with “safe employment,”

including “furnishing personal protective equipment, safety appliances and

safeguards” and “adopting work methods and procedures which will protect the

life, health, and safety of the employees.” RSA 281-A:64, I (Supp. 2016). The

trial court explained that “[t]he general purpose of RSA 281-A:64, I[,] is to force

employers to provide employees with proper equipment and attire, as well as to

create safety protocols to combat inherently unsafe working conditions.” The

trial court correctly reasoned that it “cannot infer from the face of her

complaint that the plaintiff believed she was reporting a violation of the

Workers’ Compensation Statute,” that the plaintiff did not allege in her

complaint that “the four-year-old student’s ‘assaults’ jeopardized her safety or

the safety of other employees,” and that “under the pleaded facts, no

reasonable employer would believe that the plaintiff was complaining of a

violation of the Workers’ Compensation Statute.”

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The plaintiff did not plead any facts in her complaint to support her

argument that a reasonable employer would have understood that she was

reporting a violation of anything other than the school’s “policies and

procedures” and “other public policies such as assault.” At most, the plaintiff

has alleged issues related to internal management matters. The trial court

gave the plaintiff an opportunity to amend her complaint “to clarify [her] claims

or to correct deficiencies before dismissal has preclusive effect,” but she

declined to do so. Accordingly, limiting our review to the well-pleaded

allegations of fact in the plaintiff’s complaint, and construing all reasonable

inferences from them in her favor, see Ojo v. Lorenzo, 164 N.H. 717, 724

(2013), we conclude that the facts she alleged do not, as a matter of law,

establish that she “engaged in an act protected by” the Act. Appeal of Seacoast

Fire Equip. Co., 146 N.H. at 608.

IV. Wrongful Discharge

The plaintiff next argues that the trial court erred in granting the school’s

motion to dismiss her wrongful discharge claim because it is barred by the

three-year statute of limitations. See RSA 508:4, I (2010) (“all personal actions

. . . may be brought only within 3 years of the act or omission complained of”).

She asserts that her cause of action “did not begin to accrue until at least June

15, 2012 when she was separated from work, and therefore she timely filed her

claim on May 13, 2015.”

“Statutes of limitation place a limit on the time in which a plaintiff may

bring suit after a cause of action accrues.” Beane v. Dana S. Beane & Co., 160

N.H. 708, 712 (2010) (quotation and ellipsis omitted). A cause of action arises,

thereby triggering the running of the three-year period, once all of the elements

necessary for that claim are present. Id.

The plaintiff’s complaint alleges that she was wrongfully discharged by

the school because her “teaching contract should have been renewed for the

following academic year and into the future,” but that “[a]s a result of [her]

actions, and refusals to act contrary to policy and law, [she] was non-renewed

(i.e. discharged) from her employment on or about June 30, 2012.” The trial

court, in dismissing her claim, reasoned that

[i]n this case, the plaintiff’s wrongful discharge claim is premised

on the School’s decision not to renew her contract. The plaintiff

was notified on April 15, 2012, that her contract would not be

renewed for the 2012-2013 school year. On that date, she also

knew, or, based upon her complaint, had reason to believe, that

the School’s decision was in bad-faith and was based on her

decision to report the behavior of the disruptive student. Thus, on

April 15, [2012], the plaintiff’s wrongful discharge claim, to the

extent she ever had one, accrued.

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We agree. The plaintiff’s claim, as framed in her complaint, is based upon her

contract being “non-renewed” by the school. Her cause of action, therefore,

accrued on April 15, 2012, when all of the elements necessary for the claim

were present. See Beane, 160 N.H. at 712. We are not persuaded by her

characterization of her claim as one for wrongful termination. See Jeffery v.

City of Nashua, 163 N.H. 683, 688 (2012) (noting in dicta that, in contrast to a

constructive discharge claim as to which the cause of action accrues when the

employee tenders his or her resignation, in a wrongful termination action, the

claim accrues upon the employee’s separation from employment). Because the

plaintiff did not initiate her action until May 13, 2015, approximately one

month after the limitations period had run, the trial court correctly concluded

that her claim was time-barred.

V. Slander

Finally, the plaintiff argues that the trial court erred in granting the

school’s motion to dismiss her slander claim on the basis that she “invited the

slander by hiring a reference company to find out what the [school] was stating

about her,” because, according to the plaintiff, “[t]here is no exception for

‘invited’ slander in New Hampshire law.” (Bolding omitted.) “To survive the

motion to dismiss, the plaintiff must have alleged facts that would show that

the defendant failed to exercise reasonable care in publishing a false and

defamatory statement of fact about [her] to a third party.” Sanguedolce, 164

N.H. at 645-46 (quotation omitted).

The plaintiff alleges in her complaint that she “hired . . . [A&T] to do a

reference check” and that A&T spoke with the principal, who stated 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.) These allegedly defamatory

statements were, she claims, “made to one or more third parties, who

understood the statements’ defamatory meaning.”

The trial court dismissed the plaintiff’s claim, explaining that “[i]t is

axiomatic that ‘invited defamation,’ or the issuance of a defamatory statement

wherein the injured party precipitated the statement’s release, is not

actionable.” (Quotation omitted.) The court reasoned that, “in this case, the

plaintiff admits in her complaint that she hired A&T to ‘do a reference check’,”

and, “[a]lthough not explicitly stated in the complaint, one can infer from it

that the plaintiff directed A&T to contact the school.” Thus, the trial court

concluded that “any statements made by [the principal] to A&T are not

actionable as slander because they were invited by the plaintiff.”

The school argues that the plaintiff “[does] not cite to one decision

supporting her position that she should be permitted to bring an action when

she procures statements made to her agent that she considers defamatory.” As

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the school correctly states, the trial court’s decision is supported by “decisions

from state and federal courts across the country uniformly holding a plaintiff

may not bring a claim for slander when she invites or procures the very

statements that form the basis of the claim.” See, e.g., Kelewae v. Jim Meagher

Chevrolet, Inc., 952 F.2d 1052, 1054, 1055 (8th Cir. 1992) (holding that when

plaintiff requested his stepson and a friend each telephone the defendant

posing as a prospective employer, the defendant’s “allegedly defamatory

statements . . . cannot form the basis of a defamation suit because the

statements were solicited by agents of the plaintiff”); Litman v. Massachusetts

Mut. Life Ins. Co., 739 F.2d 1549, 1560 (11th Cir. 1984) (when the plaintiff

invited the alleged defamation, the statement is not a “publication” under

Florida law); Long v. Quorum Health Resources, LLC, No. 2:13-CV-189, 2014

WL 1795156, at *7 (D. Vt. 2014) (explaining that “‘invited defamation,’ or the

issuance of a defamatory statement wherein the injured party precipitated the

statement’s release, is not actionable” (quotation omitted)), aff’d, 590 F. App’x

103 (2d Cir. 2015); Martinez v. New England Medical Center Hospitals, 307 F.

Supp. 2d 257, 263, 269 (D. Mass. 2004) (granting summary judgment to the

defendant on plaintiff’s defamation claim in part because she invited the

defendant’s statements by having a friend pose as a prospective employer

seeking references); Beck v. Tribert, 711 A.2d 951, 959-60 (N.J. Super. Ct. App.

Div. 1998) (concluding that the trial court did not erroneously dismiss

plaintiff’s slander claim when plaintiff’s friends posed as prospective employers;

“plaintiff should not be permitted to sue for the injury he . . . invited”

(quotation and brackets omitted)); Georgia Power Co. v. Busbin, 289 S.E.2d

514, 515 (Ga. 1982) (holding that there can be no recovery for invited libel; “[i]t

is enough that the complainant requests or consents to the presence of a third

party and solicits the publication of matter which he knows or has reasonable

cause to suspect will be unfavorable to him”); Pressley v. Continental Can Co.,

Inc., 250 S.E.2d 676, 678 (N.C. Ct. App. 1979) (stating that “[a] publication of a

libel, procured or invited by the plaintiff, is not sufficient to support an action

for defamation”).

We agree with these authorities and conclude that, because the

principal’s allegedly defamatory statements were invited by the plaintiff in that,

as she admits in her complaint, she hired A&T to obtain them, the trial court

properly dismissed her slander claim.

The plaintiff also argues that the trial court erred when it “failed to draw

the inference, based on facts [she] alleged,” that it was “likely that [the

principal] made similar statements to others.” (Capitalization and bolding

omitted.) The trial court rejected this argument, explaining that “[i]n

evaluating the sufficiency of claims of slander, courts have required that the

complaint adequately identify the allegedly defamatory statements, the person

who made the statements, the time when the statements were made, and the

third parties to whom the statements were published.” (Quotation and

brackets omitted.) Here, because “[t]he complaint only makes sufficiently

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specific allegations with regard to the statements made to A&T,” the trial court

concluded that the plaintiff’s claim that it was “likely” the principal made

“similar statements to others,” “is pure speculation not accompanied by

sufficiently pleaded facts.” See Knox v. Cnty. of Ulster, No. 1:11-CV-0112

(GTS/CFH), 2013 WL 286282, at *15 (N.D.N.Y. Jan. 24, 2013) (granting

defendants’ motion to dismiss plaintiff’s slander claim where plaintiff failed to

specifically identify who made the statement, to whom the statement was made

or when it was made); Doug Grant, Inc. v. Greate Bay Casino Corp., 3 F. Supp.

2d 518, 538 (D.N.J. 1998) (explaining that, in a complaint charging

defamation, plaintiff must plead facts sufficient to identify the allegedly

defamatory words, their utterer and the fact of their publication; a “vague

conclusory allegation is not enough” (quotation omitted)), aff’d as modified, 232

F.3d 173 (3d Cir. 2000); McGuire v. Adkins, 226 So. 2d 659, 661 (Ala. 1969)

(concluding that a slander claim is insufficient where the complaint fails to

state where and to whom the slander was published).

The plaintiff’s complaint fails to identify any specific statement made by

the defendant about her to any specific third parties other than A&T. Without

any facts in her complaint identifying who the “others” were, when the

statements were made, or the substance of the statements, the plaintiff has

failed to “allege[ ] facts that would show that the defendant failed to exercise

reasonable care in publishing a false and defamatory statement of fact about

[her] to a third party.” Sanguedolce, 164 N.H. at 645-46 (quotation omitted).

Accordingly, we affirm the trial court’s finding that, to the extent the plaintiff’s

slander claim is premised upon the statements made to parties other than

A&T, the complaint fails to sufficiently state a claim.

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

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