Jason Boucher v. Town of Moultonborough

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll
No. 2022-0500

JASON BOUCHER

v.

TOWN OF MOULTONBOROUGH

Argued: June 15, 2023
Opinion Issued: November 15, 2023

Lehmann Major List, PLLC, of Concord (Jason R.L. Major on the brief
and orally), for the plaintiff.

Gallagher, Callahan, & Gartrell, P.C., of Concord (Keelan B. Forey and
Charles P. Bauer on the brief, and Keelan B. Forey orally), for the defendant.

MACDONALD, C.J. The plaintiff, Jason Boucher, appeals an order of the
Superior Court (Ignatius, J.) granting the motion to dismiss of the defendant,
the Town of Moultonborough (Town). He contends that: (1) the court erred in
finding that he failed to exhaust administrative remedies under RSA 41:48
(Supp. 2022); and (2) he has stated a claim for which relief may be granted.
We reverse and remand.
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The following facts are derived from the plaintiff’s complaint and
accompanying documentation and are assumed to be true for the purposes of
this appeal. See Barufaldi v. City of Dover, 175 N.H. 424, 425 (2022). The
plaintiff served as a police officer for the Town for nineteen years, mostly in a
full-time capacity. At the time he filed his complaint, he most recently held the
rank of sergeant. Up until the final four months of his employment, no formal
disciplinary actions had been taken against him while employed by the Town’s
police department.

Due to his past involvement in assisting local officers to form a union,
and his previous support of a candidate for police chief that the Board of
Selectmen (Board) opposed, the plaintiff believed the Board did not support
him. In early 2020, the police chief retired and was replaced by an interim
police manager “who was under the direct control of the [Board].” The interim
manager enlisted “his loyal subordinate, a lower-ranking officer” to “cut the
Sergeants out of the daily operations of the Police Department, turning the
chain-of-command upside down.” Shortly thereafter, the plaintiff became “the
subject of serial internal investigations orchestrated by” the interim manager
and the lower-ranking officer “for simply attempting to conduct the ordinary
business of a police Sergeant.” In total, the plaintiff was subjected to four
investigations over six weeks. According to the plaintiff, the interim manager’s
conduct “was very clearly aimed at undermining and isolating him.”

The plaintiff resigned on June 26, 2020. He later obtained a new
position but suffered a significant loss of pay and benefits. He also suffered
severe emotional and physical duress, which required treatment by medical
professionals.

In May 2021, the plaintiff filed a complaint in the trial court alleging one
count of “Constructive Termination in Violation of RSA 41:48.” (Bolding and
capitalization omitted.) The plaintiff asserted that he “had a statutory right to
continue in his employment as [a] full-time police officer unless removed for
cause after a due process hearing.” He alleged that “[a]s a direct and proximate
result of [the Town’s] efforts to ostracize, isolate, and demean him, [he] was
constructively discharged from his employment” and that the Town’s actions
“materially changed [his] working conditions in a manner that would cause any
reasonable police officer to feel compelled to resign.” The plaintiff seeks
compensatory damages as a result of his constructive discharge.

In February 2022, the Town moved to dismiss the plaintiff’s complaint on
the grounds that: (1) constructive discharge is not an independent cause of
action in New Hampshire; (2) the plaintiff’s claim under RSA 41:48 is improper
because it seeks money damages; (3) the plaintiff lacked standing to bring a

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claim under RSA 41:48; and (4) the allegations in the complaint do not plead or
support a wrongful discharge cause of action. The plaintiff objected, arguing
that the Town’s “circumvention of the plaintiff’s employment rights ultimately
led to his constructive discharge, which made the due process protections set
forth in RSA 41:48 irrelevant and unavailable to the plaintiff.” Therefore, the
plaintiff concluded he “has a cognizable cause of action for money damages”
and has standing as “the party injured by the [Town’s] bad faith violation of his
rights.” In its reply to the plaintiff’s objection, the Town further argued that the
plaintiff’s claim under RSA 41:48 is “not ripe for adjudication” because he did
not exhaust his administrative remedies through an RSA 41:48 hearing before
the Board.

Following a hearing, the trial court granted the Town’s motion to dismiss.
The court reasoned that if the plaintiff “considers himself a terminated officer
in violation of RSA 41:48, even if only constructively, it logically follows that he
is required to follow the procedures contained within RSA 41:48.”
Consequently, the court found that the plaintiff “failed to exhaust his
administrative remedies, which divests [the] court of subject matter jurisdiction
to decide his case.” The court dismissed the plaintiff’s complaint without
prejudice and declined to consider the Town’s remaining arguments. This
appeal followed.

II

On appeal, the plaintiff argues that: (1) he was not required to exhaust
any administrative remedies under RSA 41:48 because the statute does not
contemplate a hearing in cases where the officer is constructively discharged,
nor does it provide an adequate remedy under those circumstances; and (2) he
has stated a claim for which relief may be granted. The Town contends that
the plaintiff was required to exhaust his administrative remedies under RSA
41:48 and that, even if his claim was properly before the trial court, his
complaint fails to state a wrongful termination claim.

In reviewing an order granting a motion to dismiss, we assume the truth
of the facts as alleged in the plaintiff’s pleadings and construe all reasonable
inferences in the light most favorable to the plaintiff. Barufaldi, 175 N.H. at
427. The standard of review in considering a motion to dismiss is whether the
plaintiff’s allegations are reasonably susceptible of a construction that would
permit recovery. Id. This threshold inquiry involves testing the facts alleged in
the pleadings against the applicable law. Id. The trial court may also consider
documents attached to the plaintiff’s pleadings; documents, the authenticity of
which is not disputed by the parties; official public records; and documents
sufficiently referred to in the complaint. Id. We will uphold the granting of the
motion to dismiss if the facts pled do not constitute a basis for legal relief. Id.

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 We first describe the context of this case. Constructive discharge occurs
when an employer renders an employee’s working conditions so difficult and
intolerable that a reasonable person would feel forced to resign. Karch v.
BayBank FSB, 147 N.H. 525, 536 (2002). We have not recognized constructive
discharge as a distinct cause of action in New Hampshire. Rather, we have
held that properly alleging constructive discharge satisfies the termination
component of a wrongful termination claim. Id. A wrongful termination claim
is a cause of action in tort. Porter v. City of Manchester, 151 N.H. 30, 38
(2004).

Resolving the plaintiff’s appeal requires that we engage in statutory
interpretation. We review the trial court’s statutory interpretation de novo. St.
Onge v. Oberten, LLC, 174 N.H. 393, 395 (2021). We first look to the language
of the statute itself, and, if possible, construe that language according to its
plain and ordinary meaning. Id. We give effect to every word of a statute
whenever possible and will not consider what the legislature might have said or
add language that the legislature did not see fit to include. Id. We also
construe all parts of a statute together to effectuate its overall purpose and
avoid an absurd or unjust result. Id. However, we do not construe statutes in
isolation; instead, we attempt to construe them in harmony with the overall
statutory scheme. Id.

RSA 41:48 provides, in its entirety:

Any permanent constable or police officer who is either elected under the
provisions of RSA 41:47 or appointed for full-time duty under the
provisions of RSA 105:1, and who is in compliance with the requirements
of RSA 106-L:6, shall continue to hold such office during good behavior,
unless sooner removed for cause by the selectmen, after notice and
hearing, or unless the town has rescinded its action as provided in RSA
41:47. Any such elected permanent constable or police officer shall be
deemed to be a permanent policeman, and entitled to benefits under the
provisions of RSA 103 if otherwise qualified.

The plaintiff contends that he was not required to exhaust administrative
remedies under RSA 41:48. The rule requiring exhaustion of administrative
remedies is designed to encourage the exercise of administrative expertise,
preserve agency autonomy, and promote judicial efficiency. Porter, 151 N.H. at
40. Whenever a statute provides a procedure for appeal or review of an
administrative agency’s decision, that procedure is exclusive and must be
followed. Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365, 373 (2012). We
agree with the plaintiff’s assertion that “RSA 41:48 does not contemplate the
situation currently before the Court, where [the plaintiff] never received any
formal notice of an intent to dismiss him . . . and he was never formally
removed from his employment by [the Board].” Because RSA 41:48 does not,

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by its plain terms, contemplate constructive discharge, we conclude that there
was no administrative process through which the plaintiff could exhaust a
remedy. See id. (determining that because the applicable statute did not set
forth a relevant review procedure, “there is no exclusive review process that
Frost was required to exhaust”).

We have long recognized that RSA 41:48 affords police officers a pre-
termination hearing before their local select board. See Appeal of Town of
Pelham, 124 N.H. 131, 136 (1983) (“Under RSA 41:48, when a board of
selectmen seeks to remove a police officer, the officer is notified and afforded a
hearing before the board. The board is both prosecutor and judge.”); Ingersoll
v. Williams, 118 N.H. 135, 139 (1978) (observing that an “officer is granted a
pretermination hearing, but if he is then dismissed, he can have the board’s
decision reviewed in the superior court only for illegality, injustice, or
unreasonableness”). The statute affords procedural protections — notice and a
hearing — and substantive protections — a “for cause” standard — prior to an
officer being “removed . . . by the selectmen.” RSA 41:48 (emphasis added).
The circumstances of this case do not involve removal by the Board because
the plaintiff resigned.

The Town represented at oral argument that there are several processes
the plaintiff could have followed to attempt exhaustion, including requesting a
hearing before the Board, articulating the issue to the Board, or “engaging”
with the Board informally. Yet, none of these processes are set forth in the
plain language of RSA 41:48. See St. Onge, 174 N.H. at 395 (stating that we
will not “add language that the legislature did not see fit to include”). Even if
the plaintiff sought and was granted a hearing before the Board, the only
remedy afforded to him under the statute would be to resume working in the
very environment which gave rise to his constructive discharge claim. Cf.
Porter, 151 N.H. at 41 (reasoning that “[e]ven if Porter had followed through
with his appeal and the board had rescinded his suspension, he would still
have been required to work under Lafond’s supervision,” and “the city
conceded that it lacked the authority to keep Lafond from retaliating against
Porter”). Accordingly, the trial court erred in finding that the plaintiff failed to
exhaust his administrative remedies under RSA 41:48.

Because the trial court did not address the merits of the plaintiff’s
complaint, we decline to reach the Town’s argument that the plaintiff failed to
state a claim for wrongful termination.

Reversed and remanded.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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