CONBOY, J.
The plaintiff, Beverly A. Cluff-Landry, appeals an order of the Superior Court (
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 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
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.
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."
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:
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."
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.
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
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).
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.
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
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,
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.
"Statutes of limitation place a limit on the time in which a plaintiff may bring suit after a cause of action accrues."
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
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."
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 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."
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 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."
The plaintiff's complaint fails to identify any specific statement made by the defendant
DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.