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                  THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Hillsborough-northern judicial district
No. 2016-0398


                                   DANIEL BARRY

                                          v.

 NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES & a.

                             Argued: May 18, 2017
                       Opinion Issued: September 28, 2017

      Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H.
Johnson on the brief), and Purcell Law Office, PLLC, of Portsmouth (Ellen
Purcell on the brief and orally), for the plaintiff.


      Joseph A. Foster, attorney general (Kenneth A. Sansone, assistant
attorney general, and Lynmarie C. Cusack, senior assistant attorney general,
on the brief, and Mr. Sansone orally), for the defendants.


      Douglas, Leonard & Garvey, P.C., of Concord (Megan Douglass on the
brief), for the New Hampshire Chapter of the National Employment Lawyers
Association, as amicus curiae.
       BASSETT, J. The plaintiff, Daniel Barry, appeals a jury verdict in favor
of the defendants — the New Hampshire Department of Health and Human
Services (department) and William Fenniman, Jr., the director of the Division of
Juvenile Justice Services during the relevant time period. The plaintiff worked
as a youth counselor at the Sununu Youth Services Center (SYSC) until the
defendants terminated him, claiming that he had used excessive force against a
youth resident and had failed to file a report regarding the incident. After the
Personnel Appeals Board (PAB) reinstated him, the plaintiff filed the present
action, alleging a claim for wrongful termination against the department, and a
claim for interference with the plaintiff’s right to freedom of expression under
RSA chapter 98-E against the department and Fenniman in his official and
individual capacities.

       On appeal, the plaintiff argues that the Superior Court (Schulman, J.)
erred when it: (1) declined to give collateral estoppel effect to the PAB’s findings
that the plaintiff had not used unreasonable or excessive force against the
resident or violated SYSC policies; and (2) allowed the defendants’ expert to
testify regarding the reasonableness of the plaintiff’s use of force. The
defendants cross-appeal, arguing that the Superior Court (Brown, J.) erred
when it: (1) concluded that an employee protected by state personnel laws and
a collective bargaining agreement could bring a claim for wrongful termination;
and (2) declined to make factual findings to resolve the defendants’ motion to
dismiss upon the ground of sovereign immunity. We affirm the trial court’s
rulings with respect to the issues raised by the plaintiff in his appeal. As a
result, we do not address the issues raised in the defendants’ cross-appeal.

      The jury could have found the following facts. On August 7, 2010, while
the plaintiff was on duty at the SYSC, one of the residents became upset at a
SYSC staff member. The confrontation between the resident and SYSC
employees escalated as the resident grew angrier. The plaintiff intervened,
handcuffing the resident, removing him from his room, and, ultimately,
restraining him on the ground. The plaintiff claimed that he restrained the
resident to prevent him from spitting on staff, and asserted that he maintained
the restraint for several minutes because the resident was threatening to harm
himself by “smash[ing] his head” against the floor.

      An internal investigation of the incident followed, after which Fenniman
recommended that the plaintiff be terminated. Thereafter, the plaintiff was
terminated. The defendants offered two justifications for the termination: first,
the plaintiff’s restraint of the resident constituted an excessive use of force; and
second, the plaintiff failed to file a report regarding the incident, in violation of
SYSC policy.

       The plaintiff appealed his termination to the PAB. The PAB concluded
that termination was “unwarranted” and “unjust” in light of the facts in
evidence. Specifically, the PAB found that the plaintiff had not “use[d]


                                         2
excessive and unreasonable force for the conditions existing at the time” he
restrained the resident, and it determined that, although the plaintiff “did not
file a report of the restraint, he ensured that such a report was completed and
submitted as required.” The PAB ordered that the plaintiff be reinstated with
back pay, and the plaintiff returned to his employment.

       The plaintiff subsequently brought the present action, alleging that the
defendants’ real motivation was to retaliate against the plaintiff for engaging in
union activity and speaking out against various policies and initiatives
promoted by Fenniman. After trial, the jury returned a verdict in favor of the
defendants. On appeal, the plaintiff argues that the trial court erred when it:
(1) declined to give collateral estoppel effect to the PAB’s findings; and (2)
allowed the defendants’ use-of-force expert to testify.

       We first address the plaintiff’s argument that the trial court erred when it
failed to give collateral estoppel effect to the PAB’s findings. Collateral estoppel
may preclude the relitigation of findings by an administrative board, provided
that the following requirements are satisfied: (1) the issue subject to estoppel
must be identical in each action; (2) the first action must have resolved the
issue finally on the merits; (3) the party to be estopped must have appeared in
the first action or have been in privity with someone who did; (4) the party to be
estopped must have had a full and fair opportunity to litigate the issue; and (5)
the finding must have been essential to the first judgment. Farm Family Mut.
Ins. Co. v. Peck, 143 N.H. 603, 605 (1999). “The applicability of collateral
estoppel is a question of law that we review de novo.” Tyler v. Hannaford Bros.,
161 N.H. 242, 246 (2010). The party asserting estoppel bears the burden of
proving that it applies. Appeal of Wingate, 149 N.H. 12, 16 (2002).

       In the trial court, the plaintiff argued that, given the PAB’s findings, the
defendants were precluded from offering evidence that the plaintiff’s use of
force was unreasonable or excessive, or that he had violated the policy
requiring staff to report incidents involving the use of force. The trial court
denied the motion, concluding that collateral estoppel did not apply because
the issues in the two proceedings were not identical. On appeal, the
defendants argue that the trial court’s ruling may be sustained on a different
ground — that, in light of the substantial procedural differences between the
PAB proceeding and the present civil action, it would be unfair and inequitable
to apply collateral estoppel. We agree with the defendants. See Slater v.
Planning Board of Town of Rumney, 121 N.H. 212, 216 (1981) (we will sustain
a decision of a tribunal if there are valid alternate grounds to support it).

      Collateral estoppel serves the dual purposes of “promoting judicial
economy and preventing inconsistent judgments.” Bruzga’s Case, 142 N.H.
743, 745 (1998) (quotation omitted). We have recognized that collateral
estoppel should not be mechanically applied. Id. “Rather, it should be
employed with reason, equity, and fundamental fairness as ultimate goals.” Id.


                                         3
Thus, when countervailing policy and equitable considerations outweigh the
policies supporting collateral estoppel, we have declined to apply the doctrine.
See, e.g., In re Zachary G., 159 N.H. 146, 152 (2009) (declining, in light of the
potential adverse impact on the public interest, to apply collateral estoppel in
termination of parental rights proceeding); State v. Cassady, 140 N.H. 46, 49
(1995) (declining to give collateral estoppel effect to findings of administrative
license suspension hearing in subsequent criminal proceeding).

       This approach is consonant with Section 28 of the Restatement (Second)
of Judgments, see Restatement (Second) of Judgments § 28, at 273-74 (1982),
which notes that collateral estoppel should not apply when “[a] new
determination of the issue is warranted by differences in the quality or
extensiveness of the procedures followed in the two courts,” id. § 28(3), at 273.
As observed in the comments to Section 28, “the procedures available in the
first court may have been tailored to the prompt, inexpensive determination of
small claims and thus may be wholly inappropriate to the determination of the
same issues when presented in the context of a much larger claim.” Id. § 28
cmt. d at 279.

       We conclude that, given the substantial differences in the nature and
extent of the procedures followed in the PAB proceeding and the present civil
action, collateral estoppel does not apply. The PAB is tasked with hearing and
deciding appeals arising out of the application of the personnel rules, including
termination decisions. See RSA 21-I:46, I (2012); RSA 21-I:58, I (2012); N.H.
Admin. R., Per-A 207.12(b). It reviews a termination decision to determine
whether it is: (1) unlawful; (2) in violation of the personnel rules; (3)
unwarranted in light of the facts in evidence; or (4) unjust in light of the facts
in evidence. N.H. Admin. R., Per-A 207.12(b)(1)-(4). It may also reverse a
termination decision if it finds that the employee was terminated “for any
reason related to politics, religion, age, sex, race, color, ethnic background,
marital status, or disabling condition, or on account of the person’s sexual
orientation.” RSA 21-I:58, I.

       The remedies available in PAB proceedings are reinstatement and back
pay, less “any amount of compensation earned or benefits received from any
other source during the period.” Id. By contrast, traditional tort remedies are
available in a civil action for wrongful termination, including damages for
emotional distress. Porter v. City of Manchester, 151 N.H. 30, 43-44 (2004). In
addition, a public employee who prevails in an action brought under RSA
chapter 98-E may recover attorney’s fees. See RSA 98-E:4, II (2013).

      Just as there are significant limitations on the scope of the issues and
remedies available in PAB proceedings, the procedures in PAB proceedings are
limited so as to promote the prompt resolution of disciplinary appeals.
Hearings on the merits are limited to one hour, with each party allotted 30
minutes in which to present its evidence. N.H. Admin. R., Per-A 206.12(f); see


                                         4
also N.H. Admin. R., Per-A 206.12(i) (providing that PAB may allow special
scheduling of hearings in excess of allotted time only if it “concludes that to do
so is necessary to assist in resolving the case fairly”). Moreover, in PAB
proceedings there are strict limitations on discovery. The PAB may not grant a
request for formal discovery unless the party establishes that “he or she would
be unable to sustain his or her burden . . . or establish his or her specific
defense to a relevant allegation without the additional formal discovery
identified; and . . . there exist exceptional circumstances beyond the control of
the party, such as the unavailability of a witness.” N.H. Admin. R., Per-A
206.09(f)(2)(a)-(b). In contrast, parties to civil proceedings may generally
“obtain discovery regarding any matter . . . that is relevant to the subject
matter involved in the pending action,” Super. Ct. Civ. R. 21(b).

       Two other material differences are important to note: First, unlike in a
civil action, the rules of evidence do not apply in PAB proceedings. See RSA
541-A:33, II (2007); N.H. Admin. R., Per-A 207.04(a); see also N.H. R. Ev.
1101(a). Second, in termination appeals, although the employee bears the
burden of persuasion, N.H. Admin. R., Per-A 207.12(b), the employer bears a
burden of “producing evidence supporting the action under appeal.” N.H.
Admin. R., Per-A 207.01(b); see also 2 G. Dix et al., McCormick on Evidence
§ 337, at 646-47 (7th ed. 2013) (“In most cases, the party who has the burden
of pleading a fact will have the burdens of producing evidence and of
persuading the jury of its existence as well.”).

        Taken together, the differences between the procedures in PAB
proceedings and those in a civil action weigh against the application of
collateral estoppel. A proceeding before the PAB is designed to provide an
informal and prompt resolution to a dispute over discipline. If we were to hold
that the plaintiff could invoke collateral estoppel in this case, parties in
disciplinary appeals would have little choice but to exhaustively litigate every
issue to prevent the adverse application of collateral estoppel in a subsequent
civil proceeding. Such an outcome would undermine the very purpose of the
summary PAB proceeding, which is to provide an informal and expeditious
review of disciplinary decisions. See Cassady, 140 N.H. at 49 (declining to give
collateral estoppel effect to findings in administrative license suspension
proceeding). Further, the procedural differences described above, as well as
the shifted allocation of the burden of production, counsel against applying
collateral estoppel in a subsequent civil action, where defendants have
exposure to a wide array of damages in tort and contract. Cf. Restatement
(Second) of Judgments, supra § 28(4), at 273 (stating that collateral estoppel
does not apply where “[t]he party against whom preclusion is sought had a
significantly heavier burden of persuasion with respect to the issue in the
initial action than in the subsequent action [or] the burden has shifted to his
adversary”).




                                        5
       Notably, application of collateral estoppel in this case would not have
promoted judicial economy: even if the prior PAB proceeding were to have
conclusively established that the plaintiff did not, in fact, use excessive force or
violate SYSC policies, the resolution of that fact would not have prevented the
defendants from litigating the separate issue of their motivation for terminating
the plaintiff. See Robertson’s Case, 137 N.H. 113, 117 (1993) (distinguishing,
for purposes of collateral estoppel, between the issue of whether defense
attorneys had committed discovery misconduct, and the issue of what the
complainant “knew or reasonably believed about [the] alleged discovery
misconduct”). In short, even if collateral estoppel were held to preclude the
defendants from contesting the PAB findings that the plaintiff did not actually
use excessive force or fail to file a report, the defendants would nonetheless be
entitled to offer proof that they believed he did these things and to prove the
reasonableness of such beliefs. Thus, application of collateral estoppel would
not have significantly narrowed the issues or limited the presentation of
evidence at trial.

       Accordingly, we conclude that the trial court did not err when it declined
to give collateral estoppel effect to the findings of the PAB. In reaching this
conclusion, we note that courts in other jurisdictions have declined to apply
collateral estoppel in similar circumstances. See, e.g., Rue v. K-Mart Corp.,
713 A.2d 82, 86 (Pa. 1998) (declining to apply collateral estoppel where there
existed “substantial procedural and economic disparities between
unemployment compensation proceedings and later civil proceedings”); Vest v.
Bd. of Educ. of Cty. of Nicholas, 455 S.E.2d 781, 786-87 (W. Va. 1995)
(declining to give collateral estoppel effect to findings of teacher grievance board
in subsequent civil action).

      The plaintiff next argues that the trial court erred when it permitted the
defendants’ expert to testify that the plaintiff used excessive force and violated
SYSC policies. The plaintiff asserts that: (1) the testimony was not helpful to
the jury, because the question of whether the plaintiff had, in fact, used
excessive force and violated policies was not at issue; and (2) the expert
usurped the jury’s role by giving an opinion regarding the defendants’
motivation for terminating the plaintiff’s employment.

      The decision to admit expert testimony rests, in the first instance, within
the sound discretion of the trial court. State v. Gay, 169 N.H. 232, 249 (2016).
We reverse its determination only if the appealing party can demonstrate that
the ruling was untenable or unreasonable and that the error prejudiced the
party’s case. Id. at 250. In this case, we cannot conclude that the trial court’s
ruling was untenable or unreasonable.

      Rule 702 provides that a qualified expert may offer his opinion if the
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue. See N.H. R. Ev. 702.


                                          6
In other words, the question is “whether the witness’ knowledge of the matter
. . . will probably aid the triers [of fact] in their search for the truth.” State v.
Labranche, 156 N.H. 740, 743 (2008) (quotation omitted).

      Here, the testimony offered by the defendants’ expert satisfied this
standard. At trial, the parties and the trial court framed the issue as whether
the defendants terminated the plaintiff to retaliate against him for his criticism
of Fenniman’s policies and initiatives. The defendants’ true motivation for
terminating the plaintiff could be proven either through direct evidence or
through circumstantial evidence, which could include evidence that the
defendants’ proffered reasons for the termination were not credible, see
Cloutier v. A. & P. Tea Co., Inc., 121 N.H. 915, 921-23 (1981) (analyzing
evidence offered by the plaintiff in support of wrongful termination claim). We
agree with the trial court that, under these circumstances, evidence tending to
show that the plaintiff’s use of force was excessive would be probative of
whether the defendants’ proffered reasons for the termination were credible,
which, in turn, would be relevant to the ultimate issue of the defendants’
motivation.

       In analogous circumstances, courts in other jurisdictions have permitted
expert testimony that tends to show that the employer’s reason for a particular
employment decision was pretextual. See, e.g., Hartley v. Dillard’s, Inc., 310
F.3d 1054, 1060-61 (8th Cir. 2002) (expert testimony on economic difficulties
affecting mall stores); Siring v. Oregon State Bd. of Higher Educ., 927 F. Supp.
2d 1069, 1078-79 (D. Or. 2013) (expert testimony on employer’s departure
from customary standards for tenure evaluation); Gipson v. Wells Fargo Bank
N.A., 460 F. Supp. 2d 9, 10-11 (D.D.C. 2006) (expert testimony on common
and accepted practices in mortgage loan industry). Like the testimony of many
of the plaintiff’s witnesses, who testified that the plaintiff’s use of force was
reasonable, the opinion of the defendants’ expert was admitted to assist the
jury in evaluating the credibility of the proffered reasons for the plaintiff’s
termination. We cannot conclude that the trial court erred in determining that
this expert testimony would be helpful to the jury in its search for the truth.
Labranche, 156 N.H. at 743.

       Nor are we persuaded by the plaintiff’s second argument — that the
defendants’ expert usurped the jury’s role by offering an opinion on the
defendants’ subjective motivation for terminating the plaintiff. Contrary to the
plaintiff’s assertion, the expert did not opine on the defendants’ subjective
motivation for terminating the plaintiff; rather, the expert opined that the
plaintiff’s use of force was excessive and inappropriate, and that the plaintiff
had violated SYSC policies. The factual premise underlying the plaintiff’s
argument is at odds with the record; accordingly, we reject the plaintiff’s
argument.




                                           7
       Finally, to the extent that the plaintiff argues that the expert testimony
was inadmissible, because it led to confusion of the issues, see N.H. R. Ev. 403,
that issue was neither raised in the plaintiff’s notice of appeal, nor fully briefed.
Therefore, we decline to address it. See State v. Blackmer, 149 N.H. 47, 49
(2003).

     For the foregoing reasons, we are not persuaded by the plaintiff’s
arguments that the trial court erred.

                                                    Affirmed.

      HICKS and LYNN, JJ., and MANGONES, J., superior court justice,
specially assigned under RSA 490:3, concurred.




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