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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Merrimack
No. 2017-0658


                                MICHELLE CLARK

                                         v.

     NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY & a.

                           Argued: October 11, 2018
                       Opinion Issued: January 11, 2019

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


      Gordon J. MacDonald, attorney general (Lynmarie C. Cusack, senior
assistant attorney general, on the brief and orally), for the defendants.

      DONOVAN, J. The plaintiff, Michelle Clark, appeals an order of the
Superior Court (McNamara, J.) granting summary judgment to the defendants,
the New Hampshire Department of Employment Security, Dianne M.
Carpenter, Darrell L. Gates, Sandra Jamak, Colleen S. O’Neill, Tara G.
Reardon, and Gloria J. Timmons, on the plaintiff’s claims alleging a violation of
the Whistleblowers’ Protection Act, see RSA 275-E:2, II (Supp. 2018), and the
Public Employee Freedom of Expression Act, see RSA 98-E:1 (2013). She also
appeals an order of the Superior Court (Smukler, J.) dismissing her claim of
wrongful discharge/demotion against DES. We affirm in part, reverse in part,
and remand.
       The record, viewed in the light most favorable to the plaintiff, supports
the following facts. The plaintiff and the individual defendants are all current
or former employees of DES. The plaintiff has been employed by DES since the
mid-1990s. In October 2010, she was promoted to a supervisor position in the
Benefit Support Unit in DES’s Unemployment Compensation Bureau, which
was a position in labor grade 21, step 7.1 At step 7, she received an hourly rate
of $25.01 and worked in Manchester.

       As a supervisor, she was responsible for supervising approximately
fifteen employees, including three interns, two of whom were children of two
named defendants. In March 2011, the plaintiff received her first performance
evaluation for the period of October 2010 through January 2011. The
performance evaluation was positive and, according to the plaintiff, her
supervisor, Timmons, promised her that she would be promoted to labor grade
24 “in a few weeks.”

       During this timeframe, the plaintiff became concerned about issues
relating to her interns’ hours and responsibilities and their behavior in the
workplace. The plaintiff communicated some of these concerns to Timmons
and Carpenter, the director of the Unemployment Compensation Bureau.
According to the plaintiff, she sought to address her concerns regarding the
interns with her union representatives, but Timmons and Carpenter tried to
prevent her from doing so.

      At some point, the plaintiff also suspected that her supervisors had
altered a review she had prepared for an employee under her supervision
because the employee had complained about the interns and Timmons’
management. The plaintiff alleges that a state senator was going to attend the
employee’s review, but Timmons ordered the plaintiff not to speak to the
senator. The plaintiff contends that she was therefore not permitted to attend
the employee’s review or speak to the senator.

      In July 2011, the plaintiff received her second performance evaluation for
the period covering January through April 2011. The second evaluation was
negative, and she did not receive her promised promotion. Shortly thereafter,
on August 2, 2011, the plaintiff received a letter from a DES Human Resources
Administrator, informing her that she would be laid off on August 18, 2011.
Pursuant to a mandatory reduction in force, the other employees in her unit
were also laid off. However, prior to her layoff date, the plaintiff accepted a

1 “Labor grade” represents the salary range established for each class of positions in the state
classified service for state employees. N.H. Admin. R., Per 102.13, 102.17, 102.37, 102.57,
102.65. At the time of this appeal, the 35 labor grades each contain eight “steps.” RSA 99:1-a
(Supp. 2018). But see Laws 2018, 162:6 (eff. Jan. 4, 2019) (setting forth nine steps). The steps
represent “the intervals between the minimum and the maximum range of pay established for
each [labor] grade.” N.H. Admin. R., Per 102.66. Step 1 has the lowest salary of each labor grade
and step 8 has the highest. RSA 99:1-a.


                                                2
demotion to the position of Program Assistant I in lieu of a layoff, which began
on August 19, 2011. This new position was in labor grade 12, step 8, with an
hourly rate of $17.88, and required her to commute to Concord. At some time
during that month, the plaintiff met with Reardon, who was the commissioner
of DES, and discussed, among other things, issues pertaining to at least one
intern.

      In September 2011, the plaintiff appealed her demotion to the New
Hampshire Personnel Appeals Board (PAB) through a grievance representative
from her union. In her appeal, she alleged that she was unlawfully demoted in
response to raising concerns about the hours and behavior of the interns.
During the pendency of the appeal, she was represented by counsel provided
by her union and discussed issues relating to the interns with other
representatives from her union, including the union president.

      The plaintiff alleges that she experienced various forms of harassment
during this period, which she contends was for the purpose of retaliation: her
car was “egged” in the DES parking lot, her home mailbox was smashed, and
she received anonymous phone calls and mail at home and at work. As a
result of distress from these incidents, the plaintiff went on medical leave from
December 2011 to February 2012.

       In addition to her PAB appeal, the plaintiff communicated with other
state agencies about the intern issues and the harassment she was
experiencing: in May 2012, she filed a complaint with the New Hampshire
Executive Branch Ethics Committee against Reardon for failing to address
misuse of the hiring system, nepotism, and harassment; in June 2012, she
filed a whistleblower complaint with the New Hampshire Department of Labor
against DES on similar grounds; and, at some point, she participated in an
investigation of DES by the New Hampshire Attorney General’s Office.

       In July 2012, the Governor and Executive Council appointed George
Copadis as interim commissioner of DES. A few weeks later, Copadis met with
the plaintiff to discuss the issues she had with the agency. Subsequently, by
letter dated February 6, 2013, Copadis informed the plaintiff that he intended
to reinstate her to a position of “like seniority, status and pay equal to that
which [she] had” prior to her demotion, provide her with back pay from her
date of demotion through February 7, 2013, and remove the negative
performance evaluation from her personnel file. The letter stated that the
plaintiff would “continue in [her] role as a Quality Control Investigator,” a
position in labor grade 21, which the plaintiff obtained in November 2012, but
would be moved from step 1 to step 7. Copadis also recommended her for the
Level 1, Public Supervisor Program in the 2013 Certified Public Manager
Course, which would allow her to “enhance management skills and increase
knowledge of government practices.” Finally, Copadis arranged for the plaintiff
to work in Manchester rather than Concord “until the Tobey Building is ready


                                        3
to be occupied by the department,” citing the plaintiff’s “continued concerns
regarding the drive to Concord where [she] had formerly been assigned to the
Manchester office.”

      Following this decision, the plaintiff received back pay and Medicare and
retirement benefits, and she withdrew her PAB appeal. At some point, she also
withdrew her whistleblower complaint.

      The plaintiff currently holds the position of Quality Control Investigator
at step 8, the highest step in labor grade 21. According to the plaintiff, she
does not have any supervisory duties and cannot receive a wage increase
unless she becomes a supervisor. She has applied unsuccessfully for
supervisory positions, and contends that she continues to experience
harassment by certain unknown DES employees.

        In May 2014, the plaintiff filed this action against the defendants alleging
several claims: (1) violation of the Whistleblowers’ Protection Act under RSA
chapter 275-E; (2) wrongful discharge/demotion; (3) violation of the Public
Employee Freedom of Expression Act under RSA chapter 98-E; (4) intentional
infliction of emotional distress (IIED); (5) interference with a contract; (6)
violation of the plaintiff’s rights under Part I, Articles 22 and 32 of the New
Hampshire Constitution; and (7) violation of the plaintiff’s rights under the
First Amendment to the United States Constitution. Her complaint seeks
several remedies, including, inter alia, compensatory and enhanced
compensatory damages, back pay, fringe benefits, future wages, loss of earning
capacity, attorney’s fees and costs, reinstatement to her former position, and
injunctive relief.

       The defendants moved to dismiss all of the plaintiff’s claims for failure to
state a claim for which relief may be granted. The defendants also argued that
various theories of immunity bar the plaintiff’s action. The Trial Court
(Smukler, J.) granted the motion as to the plaintiff’s wrongful
discharge/demotion claim, ruling that her complaint failed to state a claim for
which relief may be granted because: (1) she accepted a different position with
DES when her unit was subject to the layoff and therefore remained employed
with DES; and (2) New Hampshire does not recognize a cause of action for
wrongful demotion. With respect to the remaining claims, the trial court ruled
that her complaint was “susceptible of a construction that would permit
recovery” but denied the motion without prejudice to allow the court to hold an
evidentiary hearing to determine whether the remaining claims were barred by
immunity. Following a six-day evidentiary hearing, the Trial Court (Mangones,
J.) ruled that the defendants were entitled to immunity on the plaintiff’s IIED
and interference with contractual relations claims, as well as her state and
federal constitutional claims, and dismissed those claims.




                                         4
       The defendants then moved for summary judgment on the plaintiff’s
remaining whistleblower and freedom of expression claims. The Trial Court
(McNamara, J.) granted the motion, finding that: (1) the plaintiff has already
received the statutory remedies available to her under RSA chapter 275-E; and
(2) the plaintiff failed to establish that she “engaged in public discourse” on
issues relating to DES, which the trial court ruled was required under RSA
chapter 98-E. The plaintiff unsuccessfully moved for reconsideration of the
trial court’s summary judgment order, and this appeal followed.

      I. Motion to Dismiss

      We first address the plaintiff’s arguments challenging the trial court’s
dismissal of her wrongful discharge/demotion claim. We note that the plaintiff
does not appeal the trial court’s dismissal of her IIED and interference with
contractual relations claims or her state and federal constitutional claims.

        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. Cluff-Landry v. Roman Catholic
Bishop of Manchester, 169 N.H. 670, 673 (2017). 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. Id. We will uphold the trial court’s grant of a motion to dismiss
if the facts pleaded do not constitute a basis for legal relief. Ramos v. Warden,
N.H. State Prison, 169 N.H. 657, 658 (2017).

       We assume, without deciding, that a wrongful discharge claim by a
classified employee may be brought against the State. In dismissing the
defendant’s wrongful discharge claim, the trial court determined that, based
upon the facts in the complaint, the plaintiff’s employment with DES did not
end because she took another position with DES when her unit was subject to
the layoff. Therefore, the trial court concluded that she failed to state a claim
for which relief may be granted “[b]ecause a wrongful termination case
necessarily requires a plaintiff to be terminated from employment.” As to the
plaintiff’s claim that she was wrongfully demoted, the trial court ruled that
“New Hampshire does not recognize a cause of action for ‘wrongful demotion,’”
and declined her invitation to adopt such a cause of action.

       The plaintiff does not dispute the trial court’s finding that her
employment with DES did not end despite her receipt of the layoff letter.
However, relying upon our decision in Cluff-Landry, the plaintiff argues that
the trial court erred in dismissing her claim because termination of her
employment occurred when she received notice that she would be laid off. We
disagree.


                                        5
       In Cluff-Landry, we held that the plaintiff’s cause of action for wrongful
discharge began to accrue, for statute of limitations purposes, when she
received notice that her contract would not be renewed, rather than on her last
day of employment, which was over two months later. Cluff-Landry, 169 N.H.
at 677-78. We reached this conclusion because her wrongful discharge claim
was based on her employer’s decision not to renew her contract, and, at the
time she received the notice, all of the elements required to prove wrongful
discharge were present. Id.; Leeds v. BAE Sys., 165 N.H. 376, 379 (2013)
(wrongful discharge requires proof that: (1) the discharge was motivated by bad
faith, retaliation, or malice; and (2) the plaintiff was discharged for performing
an act that public policy would encourage or for refusing to do something that
public policy would condemn); see also Jeffery v. City of Nashua, 163 N.H. 683,
688 (2012) (holding that the plaintiff’s constructive discharge claim began to
accrue for statute of limitations purposes on the date she tendered her
resignation, rather than the last day of her employment). Moreover, the
plaintiff in Cluff-Landry was not subsequently retained by the employer in any
capacity; rather, she was “non-renewed.” Cluff-Landry, 169 N.H at 678.

       Here, the plaintiff’s wrongful discharge claim is based upon DES’s
decision to lay her off. However, unlike the employer in Cluff-Landry, DES
offered the plaintiff a different position within the agency in lieu of the layoff.
By extending this offer, DES, in effect, withdrew its decision to lay her off.
Therefore, to the extent that the plaintiff may have had a cause of action for
wrongful discharge at the time she received notice of the impending layoff, that
cause of action became moot when DES offered her a demotion before the layoff
took effect. See Sullivan v. Town of Hampton Bd. of Selectmen, 153 N.H. 690,
692 (2006) (“The doctrine of mootness is designed to avoid deciding issues that
have become academic or dead.” (quotation omitted)).

       The plaintiff argues that we should consider her acceptance of the
demotion as if she had applied for a job elsewhere because she accepted the
demotion only to mitigate the damages she would incur from termination. We
disagree. We have recognized only one exception — constructive discharge —
to the termination component of a wrongful discharge claim. See Karch v.
BayBank FSB, 147 N.H. 525, 536 (2002). In the constructive discharge context
we recognized in Karch, the end of the plaintiff’s employment resulted from
resignation rather than termination. Id. (“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,” which
“satisfies the termination component of a wrongful discharge claim.” (quotation
omitted)). In both cases, the employment relationship is discontinued. But,
even if an employee experiences difficult working conditions due to an
employer’s retaliatory actions, we have not recognized a claim for wrongful
discharge when the employment did not come to an end. Accordingly, we agree
with the trial court’s conclusion that the plaintiff has failed to establish a cause
of action for wrongful discharge.


                                         6
      The plaintiff next argues that “[t]he theory behind wrongful discharge”
supports extending it to encompass circumstances in which an employer has
demoted, but not terminated, an employee for retaliatory purposes. Raising an
issue of first impression for this court, the plaintiff invites us to recognize a
cause of action for wrongful demotion. We decline her invitation.

        As in any case in which we are asked to recognize a new cause of action,
it is a question of policy whether it would be wise to provide the relief that the
plaintiff seeks. Aranson v. Schroeder, 140 N.H. 359, 363-64 (1995).
Answering this question requires us to take two separate steps: we must
determine whether the interest that the plaintiff asserts should receive any
legal recognition and, if so, whether the relief that the plaintiff requests would
be an appropriate way to recognize the asserted interest. Id. at 364 (quotation
omitted). In deciding this question, we keep in mind that the New Hampshire
Constitution entitles every subject of this state “to a certain remedy, by having
recourse to the laws, for all injuries he may receive in his person, property, or
character . . . .” N.H. CONST. pt. I, art. 14; see Aranson, 140 N.H. at 364.

       We begin by addressing the first step: whether an employee’s interest in
maintaining her position without fear of demotion based on bad faith, malice,
or retaliation should receive legal recognition. Aranson, 140 N.H. at 364; see
also Monge v. Beebe Rubber Co., 114 N.H. 130, 133 (1974). In Monge, we
recognized for the first time a cause of action for wrongful discharge. Monge,
114 N.H. at 133. In determining whether to recognize this cause of action, we
balanced “the employer’s interest in running his business as he sees fit . . .
against the interest of the employee in maintaining his employment, and the
public’s interest in maintaining a proper balance between the two.” Id. In
balancing these interests, we held that termination of an at-will employment
contract based on bad faith, malice, or retaliation “is not in the best interest of
the economic system or the public good.” Id. We reasoned that “[s]uch a rule
affords the employee a certain stability of employment and does not interfere
with the employer’s normal exercise of his right to discharge, which is
necessary to permit him to operate his business efficiently and profitably.” Id.

      In balancing these same interests, we acknowledge an employee’s
interest in maintaining his or her position without fear of retaliatory demotion
by his or her employer. However, the consequences of expanding judicial
review to an employer’s decision to demote carries with it significantly greater
risks of interfering with an employer’s ability to “operate his business efficiently
and profitably” than that of wrongful discharge. Id. Wrongful discharge
permits judicial intervention only where an employer takes the serious action of
discharging an employee, which results in the termination of the employee’s
pay and benefits and may adversely affect the employee’s ability to find new
employment. A cause of action for wrongful demotion, however, would extend
the reach of this judicial intervention from an employer’s right to discharge an
employee to its right to manage its employees’ duties and responsibilities in the


                                         7
workplace. Therefore, recognizing wrongful demotion as a cause of action
would require courts to become “increasingly involved in the resolution of
workplace disputes,” Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d 877,
882 (Ill. 1994), which involve decisions that result in less serious consequences
for employees than a discharge.

       Moreover, we agree with the Illinois Supreme Court that replacing the
element of “discharge” with “demotion” has the potential to render an otherwise
narrow cause of action into an “ill-defined, and potentially all-encompassing
concept of retaliatory conduct or discrimination.” Id. In rejecting a claim of
retaliatory demotion, the court noted:

      Although the term “demotion” may appear amenable to clear
      definition, many questions arise: Is a demotion in title or status,
      but not salary, actionable? Could a transfer from one department
      to another be considered a demotion? Would it be fair to
      characterize as a demotion a significant increase in an employee’s
      duties without an increase in salary?

Id.; see also Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 562 (Ariz.
Ct. App. 1995) (declining to recognize wrongful failure-to-promote as a cause of
action because it “could subject employers to torrents of unwarranted and
vexatious suits,” which could involve not only demotions but also transfers,
alterations in job duties, and disciplinary hearings (quotation omitted)).
Opening the door to these questions would expand the limited interference into
an employer’s management of its business that we allowed when we recognized
wrongful discharge as a cause of action. See Monge, 114 N.H. at 133.

       The plaintiff urges us to consider cases from two other jurisdictions that
have extended wrongful discharge to encompass claims of retaliatory demotion.
See Trosper v. Bag ‘N Save, 734 N.W. 2d 704, 711 (Neb. 2007); Brigham v.
Dillon Cos., Inc., 935 P.2d 1054, 1059-60 (Kan. 1997). However, we do not
agree with their reasoning that holding otherwise would allow employers to
escape consequences for retaliating against an employee by demoting, rather
than discharging, the employee, see Trosper, 734 N.W. 2d at 711; Brigham,
935 P.2d at 1059-60, as New Hampshire law provides statutory protections to
employees who experience retaliation for disclosing or refusing to participate in
an employer’s unlawful activity. See, e.g., RSA 275-E:2 (Supp. 2018) (providing
an employee the ability to pursue a civil suit where an employer has
“harass[ed], abuse[d], intimidate[d], discharge[d], threaten[ed], or otherwise
discriminate[d] against” an employee “regarding [such employee’s]
compensation, terms, conditions, location, or privileges of employment” in
retaliation for whistleblower activity); RSA 275-E:4, I (2010) (providing an
aggrieved employee the ability to request a hearing with the labor
commissioner for same, after the employee has made a reasonable effort to



                                         8
maintain and restore his or her rights through any grievance procedure or
similar process available at his or her place of employment).

      Accordingly, in balancing the employee’s interest in employment stability
and the employer’s interest in running its business as it sees fit, we conclude
that adopting wrongful demotion as a cause of action would interfere with the
employer’s right to manage its workplace, including its decisions relating to the
duties, responsibilities, and pay of its employees. Because we determine that
the interest that the plaintiff asserts should not receive legal recognition in the
common law, we need not address the second step in this inquiry. Aranson,
140 N.H. at 364 (whether the relief that the plaintiff requests would be an
appropriate way to recognize it). Accordingly, we decline to recognize a
common law cause of action for wrongful demotion and affirm the trial court’s
dismissal of the plaintiff’s wrongful discharge/demotion claim.

      Because we conclude that there is no common law cause of action for a
wrongful demotion, we need not address the State’s argument that common law
employment claims are limited to “at-will” employees and are not available to
public employees in classified, merit-based systems.

      II. Motion for Summary Judgment

      We turn next to the plaintiff’s arguments that the trial court erred in
granting summary judgment to the defendants on her freedom of expression
and whistleblower claims.

       In reviewing the trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party. Weaver v. Stewart, 169
N.H. 420, 425 (2016). If our review of that evidence discloses no genuine issue
of material fact, and if the moving party is entitled to judgment as a matter of
law, we will affirm the grant of summary judgment. Id. We review the trial
court’s application of the law to the facts de novo. Id.

            A. Freedom of Expression Act

       Pursuant to RSA chapter 98-E (2013), New Hampshire’s Public Employee
Freedom of Expression Act, every public employee has “a full right to publicly
discuss and give opinions as an individual on all matters concerning any
government entity and its policies.” RSA 98-E:1. The stated intention of this
chapter is “to balance the rights of expression of the employee with the need of
the employer to protect legitimate confidential records, communications, and
proceedings.” Id. Accordingly, this chapter prohibits any person from
interfering “in any way with the right of freedom of speech, full criticism, or
disclosure by any public employee,” RSA 98-E:2 (2013), as long as the content



                                         9
of that expression is not subject to laws relating to confidential or privileged
records, RSA 98-E:3 (2013).

       In granting summary judgment to the defendants on this claim, the trial
court determined that the plaintiff failed to demonstrate that she “engaged in
public discourse” on matters concerning DES because she provided no
evidence “that she discussed matters with anyone outside the State
government” and raised concerns only with “the people to whom she would be
expected to raise her concerns as a State employee.” As for the plaintiff’s
attempt to speak with the state senator, the trial court found that, had the
plaintiff spoken with her, the discussion would not have fallen under the
statute because she would have spoken to the senator in a confidential setting
and only in her role as a supervisor.

      The plaintiff argues that the trial court erred in granting summary
judgment on her freedom of expression claim because the statute does not
require her to speak publicly. She further asserts that she nonetheless has, “at
times,” spoken publicly.

       The plaintiff’s argument requires that we interpret the language of the
statute. Statutory interpretation is a question of law, which we review de novo.
Roy v. Quality Pro Auto, LLC, 168 N.H. 517, 519 (2016). In matters of
statutory interpretation, we are the final arbiters of the intent of the legislature
as expressed in the words of the statute considered as a whole. Id. 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 interpret
legislative intent from the statute as written, and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include. Olson v. Town of Grafton, 168 N.H. 563, 566 (2016). When the
language of a statute is plain and unambiguous, we need not look beyond the
statute itself for further evidence of legislative intent. Id.

       We have previously held that RSA 98-E:1 provides broader protections to
public employees than does federal law because the statute protects expression
on all matters relating to the public employer and its policies except for matters
that are confidential or privileged in nature. Booker, 139 N.H. at 340-41; cf.
Pickering v. Board of Education, 391 U.S. 563, 568 (1968) (protecting a public
employer’s speech on matters of public concern); Bennett v. Thomson, 116 N.H.
453, 458-59 (1976) (applying Pickering standard). However, unlike federal law,
RSA 98-E:1 limits its protection to expression discussed “publicly.” Compare
RSA 98-E:1 (providing the right of public employees to “publicly discuss and
give opinions” (emphasis added)), with Garcetti v. Ceballos, 547 U.S. 410, 420
(2006) (“Employees in some cases may receive First Amendment protection for
expressions made at work.”), and Givhan v. W. Line Consol. Sch. Dist., 439 U.S.
410, 413 (1979) (public school teacher’s private expression of her opinion to the
school’s principal was not “beyond [federal] constitutional protection”).


                                        10
       The statute does not define the word “publicly,” and thus we look to its
common usage, using the dictionary for guidance. State v. Brawley, 171 N.H.
___, ___ (decided September 18, 2018) (slip op. at 8). Webster’s Third
International Dictionary defines “publicly” as: “in a manner observable by or a
place accessible to the public: openly, obviously.” Webster’s Third
International Dictionary 1836 (unabridged ed. 2002). Therefore, while the
statute expands the scope of the subject matter that receives protection, it
limits that protection to expressions that the public may observe or access.
See RSA 98-E:1.

       The plaintiff points to language in RSA 98-E:2 to assert that the statute
does not require expression to occur in “a particular forum” because the
freedom of “disclosure” and “full criticism” are “expansive.” See RSA 98-E:2
(“No person shall interfere in any way with the right of freedom of speech, full
criticism, or disclosure by any public employee.”). These words, however, refer
to the types of expression that are protected by the statute; they do not have
any bearing on whether such disclosures or full criticism must be made
“publicly.” Additionally, the plaintiff points to RSA 98-E:3 to assert that
“publicly” merely refers to any expression that is not considered confidential or
privileged. See RSA 98-E:3. RSA 98-E:3, however, excludes expression on
confidential or privileged records from the statute’s protection; it has no effect
on the requirement under RSA 98-E:1 that expression be made “publicly.” RSA
98-E:3 (“Nothing in this chapter shall suspend or affect any law relating to
confidential and privileged records or communications.”). Because we must
interpret the statute as a whole and presume that the legislature does not use
superfluous language, State v. Duran, 158 N.H. 146, 155 (2008), we conclude
that the speech, disclosure, and full criticism of non-confidential and non-
privileged content must be discussed “publicly” to receive protection under the
statute. See RSA 98-E:1-:3.

       Our inquiry does not end here, however, because the plaintiff contends
that she did, “at times,” speak publicly. In granting summary judgment to the
defendants on this claim, the trial court concluded that the plaintiff failed to
provide evidence that she “engaged in public discourse” based only on the fact
that she communicated with state employees to whom she would have been
expected to speak; the trial court did not determine whether those
communications occurred “publicly” within the meaning of the statute.
Construing “publicly” in light of the broad protections of the statute, see
Booker, 139 N.H. at 340-41, we cannot conclude that it was intended to
categorically exclude a public employee’s communications with other public
employees from protection under the statute. Rather, the word “publicly”
excludes a public employee’s communications with other public employees only
if the communications could not be observed or accessed by members of the
public.




                                       11
      Here, the plaintiff asserts that all of her conversations are protected by
the statute, including her conversations with her own supervisors. Based on
the plain meaning of “publicly,” we cannot conclude that the expression
protected by the statute was intended to include private conversations behind
closed doors, as such conversations would not be accessible to the public
unless a public record of the meeting was created and published. To interpret
the statute otherwise would require us to treat the word “publicly” as if it were
superfluous. See Duran, 158 N.H. at 155. Nevertheless, the record
demonstrates that the plaintiff communicated with numerous individuals,
inside and outside of DES, about the issues within the agency, including the
Attorney General’s Office and her union representatives. The plaintiff also filed
complaints with the Executive Ethics Committee and the Department of Labor.
While the trial court correctly concluded that she spoke only with state
employees, it did not determine if a genuine issue of material fact exists as to
whether these communications, such as her ethics and whistleblower
complaints, could be observed or accessed by the public.

     We also must consider the plaintiff’s assertion that she was barred from
speaking with a state senator about an allegedly falsified review of one of her
subordinates. The trial court concluded that any discussion with the senator
would have been confidential and conducted only in the plaintiff’s capacity as a
supervisor. However, our review of the record reveals a genuine dispute of
material fact as to this issue. In the plaintiff’s affidavit, she states:

      Timmons ordered me not to speak to [the state senator], who was
      going to [the employee’s] review, as Timmons did not want me to
      tell [the employee] that her review had been altered from what I, [as
      the employee’s] supervisor had written. It was altered because of
      [the employee’s] complaints about interns, and Timmons’
      management. I refused to sign [the employee’s] falsified review and
      was not allowed to attend the review, or talk to the Senator.

Based on this allegation, viewed in the light most favorable to the plaintiff,
Timmons’ order not to speak with the senator was not limited to the review;
rather, her order prohibited the plaintiff from speaking to the state senator
generally. Furthermore, according to the plaintiff, Timmons gave this order for
the purpose of prohibiting the plaintiff from discussing the agency’s allegedly
retaliatory actions toward another employee. Thus, even assuming the review
that the plaintiff sought to attend was “confidential,” Timmons’ directive to the
plaintiff was not limited to the review or to confidential information that may
have been discussed at the review. Instead, Timmons’ order barred her from
speaking to the state senator at all.

      Moreover, the fact that the plaintiff was the employee’s supervisor at the
time she attempted to speak to the state senator does not, in and of itself,
suggest that the plaintiff was speaking solely on behalf of her employer. See


                                       12
Booker, 139 N.H. at 341 (considering the relevant distinction between one’s
“individual” capacity under RSA 98-E:1 and professional capacity to be
“whether the petitioner spoke as an individual or as a spokesperson for [the
agency], rather than whether he spoke as a citizen or as a citizen who happens
to be an employee of [the agency]”). To the contrary, her desire to speak about
allegations of wrongdoing by DES employees demonstrates that she sought to
speak as an individual, not as a spokesperson on behalf of her employer.
Therefore, the record demonstrates that genuine issues of material fact exist as
to whether the plaintiff’s anticipated discussion with the state senator would
have been either confidential in nature or only conducted in her capacity as
supervisor.

      For these reasons, we conclude that the trial court erred in granting
summary judgment to the defendants on the plaintiff’s freedom of expression
claim and accordingly remand for further proceedings consistent with this
opinion.

            B. Whistleblowers’ Protection Act

       We now turn to the plaintiff’s challenge to the trial court’s granting of
summary judgment to the defendants on her whistleblower claim. New
Hampshire’s Whistleblowers’ Protection Act (the Act) prohibits employers from
retaliating against an employee for reporting or refusing to participate in what
he or she reasonably believes is a violation of the law, or for participating in an
investigation into allegations that the employer has violated the law. RSA 275-
E:2, I(a)-(c); Appeal of N.H. Dept. of Employment Security, 140 N.H. 703, 708
(1996). The Act provides two avenues by which an aggrieved employee may
obtain relief for a whistleblower violation. Under RSA 275-E:2, II, the employee
“may bring a civil suit within 3 years of the alleged violation.” Under RSA 275-
E:4, I, an employee may “obtain a hearing with the commissioner of labor or a
designee appointed by the commissioner” after the employee “has first made a
reasonable effort to maintain or restore such employee’s rights through any
grievance procedure or similar process available at such employee’s place of
employment.”

       The statute expressly authorizes equitable remedies. RSA 275-E:2, II;
RSA 275-E:4, I. When an employee brings a civil suit under RSA 275-E:2, II,
“[t]he court may order reinstatement and back-pay, as well as reasonable
attorney fees and costs, to the prevailing party.” Similarly, following a hearing
with the labor commissioner under RSA 275-E:4, I, the labor commissioner
“shall order, as the commissioner or his designee considers appropriate,
reinstatement of the employee, the payment of back pay, fringe benefits and
seniority rights, any appropriate injunctive relief, or any combination of these
remedies.”




                                        13
       Though the plaintiff filed a whistleblower complaint with the Department
of Labor, she withdrew her complaint and later brought her whistleblower
claim to superior court under RSA 275-E:2, II. In doing so, she sought
numerous forms of relief, including compensatory damages, back pay, fringe
benefits, front pay, reinstatement to her former position or one that is
“comparable or better,” mileage reimbursements, depletion of sick and annual
leave balances, counseling costs, reasonable attorney’s fees, and injunctive
relief. Granting summary judgment in favor of the defendants, the trial court
made no determination as to whether there was a genuine dispute of material
fact on the merits of the plaintiff’s claim. Instead, the trial court focused on the
remedies she sought. After analyzing her requested remedies in light of all
forms of relief available in RSA chapter 275-E, the trial court found that the
plaintiff had already received all of the equitable remedies available because
she was reinstated to the same labor grade and pay rate she held prior to her
demotion and received back pay to reimburse her for the income she would
have received if she had not been demoted. Furthermore, the trial court
determined that the Act limits relief to equitable remedies and does not
authorize compensatory damages. Determining that the plaintiff “has already
been provided [with] the statutory remedies available to her,” the trial court
granted summary judgment in favor of the defendants.

       The plaintiff does not dispute that she was reinstated to a position in the
same labor grade and pay rate as the position she held before she accepted the
demotion, nor does she dispute that she received an amount in back pay from
DES equal to the amount she would have earned had she remained in labor
grade 21, step 7. However, she argues that the trial court erred in granting
summary judgment, because: (1) the Act cannot be construed to preclude
compensatory damages based on its plain language and remedial nature; and
(2) even if the Act does not authorize compensatory damages, she is entitled to
seek a number of equitable remedies authorized by the Act that she has not
received. We begin with the plaintiff’s argument on compensatory damages.

       In viewing the statute as a whole, it expressly authorizes only equitable
remedies. RSA 275-E:2, II; RSA 275-E:4, I; see also Appeal of Bio Energy, 135
N.H. 517, 521-22 (1992) (back pay is part of the injunctive remedy, rather than
damages, because it seeks to make the aggrieved employee “whole”) (decided
under prior law that did not explicitly include back pay as a remedy).
Moreover, the statute limits the type of equitable remedies available by
enumerating specific forms of equitable relief. RSA 275-E:2, II; RSA 275-E:4, I.
The legislature could have expressly included compensatory damages within
the enumerated remedies if it intended to authorize such an award. However,
it did not do so, and, therefore, we will not consider what the legislature might
have said or add language to the statute that the legislature did not see fit to
include. Olson, 168 N.H. at 566; see E.D. Swett, Inc. v. N.H. Comm. for
Human Rts., 124 N.H. 404, 411-12 (1983) (declining to hold that a statute that
enumerates only equitable remedies also authorizes compensatory damages).


                                        14
       Although the statute does not expressly authorize compensatory
damages, the plaintiff argues that the phrase “civil suit” in RSA 275-E:2, II was
“intended to broaden the scope of [the] relief” to include damages that may be
awarded by a jury. We disagree. Viewing the phrase in the context of RSA
275-E:2, II, the language refers to the type of action an aggrieved employee may
bring to obtain such equitable relief; it does not refer to the forms of relief,
which appear in the following sentence. Moreover, considering the evident
goals of the statute — “to encourage employees to come forward and report
violations without fear of losing their jobs and to ensure that as many alleged
violations as possible are resolved informally within the workplace” — we
conclude that equitable relief accomplishes these remedial goals. Bio Energy,
135 N.H. at 521 (providing back pay allows the victim to come forward without
fear of monetary punishment); see also Appeal of Hardy, 154 N.H. 805, 818
(2007) (the absence of an award of reasonable attorney’s fees could “frustrate
the Whistleblowers’ Protection Act’s purpose of encouraging employees to
report violations”). Contrary to the plaintiff’s argument that compensatory
damages provide the only form of relief to an employee who experiences
retaliation but does not lose his or her job, the Act provides “any appropriate
injunctive relief” under RSA 275-E:4, I. For these reasons, we conclude that
the phrase “civil suit” does not authorize an award of compensatory damages.

       Next, the plaintiff argues that, even if the Act does not authorize
compensatory damages, the trial court erred in determining that she already
received the equitable remedies available under the Act. The plaintiff first
asserts that she should be allowed to pursue reinstatement to a higher labor
grade and back pay consistent with that labor grade, because there is a
genuine dispute of material fact as to whether she would have been promoted
to labor grade 24 if the defendants had not unlawfully retaliated against her.
As support for this argument, the plaintiff relies upon Timmons’ verbal promise
that she would be promoted to labor grade 24 and the labor grade 24
classification of other supervisors in the department, who she claimed to be
“outperforming.”

       To defeat a motion for summary judgment, the opposing party’s affidavit
must contain more than general allegations or denials, and instead must set
forth specific facts showing a genuine issue for trial. Hill-Grant Living Trust v.
Kearsarge Lighting Precinct, 159 N.H. 529, 535 (2009). Here, the facts cited by
the plaintiff on this issue do not establish a genuine issue for trial and are
therefore insufficient to defeat the defendants’ motion for summary judgment.

      New Hampshire has a complex, merit-based state employee classification
system that requires adherence to specific procedures to reclassify a position or
promote an employee. See generally N.H. Admin. R., Per ch. 300. In this
context, a verbal promise made by Timmons, an intermediate supervisor, that
the plaintiff would be promoted to a higher labor grade does not provide a basis
on which a reasonable fact-finder could determine that the plaintiff would have


                                       15
been promoted to a higher labor grade in the absence of a specified time frame
or other supporting facts. See Pennichuck Corp. v. City of Nashua, 152 N.H.
729, 740 (2005) (determining that the plaintiff’s allegations did not create a
genuine issue of material fact where “no reasonable fact finder” could base its
finding on the plaintiff’s allegations).

       Similarly, whether other employees in the plaintiff’s unit held supervisory
positions classified in labor grade 24 does not alone provide a basis for a fact-
finder to determine that she would have been assigned to a higher labor grade
because she provides no evidence to show that she was performing the same
duties or had the same responsibilities as the employees who held those
positions. Classifications within the state employee classified service must be
“based upon similarity of duties performed and responsibilities assumed so
that the same qualifications may reasonably be required for, and the same
schedule of pay may be equitably applied to, all positions in the same
classification.” RSA 21-I:42, II (Supp. 2018). Thus, while other supervisory
positions in her unit may have been classified in labor grade 24, the plaintiff
provides no support for her conclusory assertion that she was “outperforming”
other supervisors. See N.H. Admin. R., Per 303.01(b) (setting forth factors the
Director of Personnel must consider in determining whether a position in the
classified service might be improperly allocated or classified). Therefore, the
trial court properly determined that that there was no genuine issue of material
fact as to whether the plaintiff received the remedies — reinstatement and back
pay — set forth in the statute.

        Next, the plaintiff argues that she is entitled to injunctive relief under the
statute and challenges the trial court’s determination that she failed to request
injunctive relief in her complaint. In denying reconsideration of its order
granting summary judgment to the defendants, the trial court concluded that
the plaintiff failed to request injunctive relief in her complaint. Contrary to this
finding, however, the plaintiff’s complaint expressly requests this equitable
relief.

      Nevertheless, the defendants argue that the plaintiff is not entitled to an
injunction as a remedy because she chose to bring her claim in superior court
under RSA 275-E:2, II, which does not expressly authorize injunctive relief,
rather than maintain her whistleblower claim with the Department of Labor
under RSA 275-E:4, I. The plaintiff argues that “[i]t defies common sense” that
the Department of Labor could provide greater relief in proceedings than the
superior court.

        The express remedies authorized in RSA 275-E:2, II — reinstatement,
back pay, and reasonable attorney’s fees — allow the superior court to provide
relief to aggrieved employees who experience retaliation by their employers in
the form of a discharge. These limited remedies, however, do not provide relief
from other prohibited conduct under the statute, such as ongoing harassment,


                                         16
abuse, intimidation, or threats, as the plaintiff asserts here. RSA 275-E:2, I
(prohibiting retaliatory harassment, abuse, intimidation, threats, or other
discrimination in addition to retaliatory discharge). Yet, RSA 275-E:4, I,
explicitly authorizes the labor commissioner to enjoin all of these unlawful
activities by providing the remedy of “any appropriate injunctive relief.”

       Given the Act’s purpose to encourage employees to come forward, see Bio
Energy, 135 N.H. at 523, and the court’s broad and flexible equitable powers,
Benoit v. Cerasaro, 169 N.H. 10, 20 (2016), we see no reason why the
legislature would limit the court’s authority to address just a fraction of the
prohibited conduct enumerated by the statute while providing the labor
commissioner with the authority to address all of the prohibited conduct. See
RSA 275-E:2, I. However, the plain and unambiguous language of RSA 275-
E:2, II does not authorize the court to order injunctive relief as a remedy.
While the discrepancy between the remedies available under RSA 275-E:2, II
and RSA 275-E:4, I, may present an issue for the legislature’s consideration,
we will not add language to the statute that the legislature did not see fit to
include. Olson, 168 N.H. at 566.

       Nevertheless, the superior court is a court of general jurisdiction with
authority to entertain equitable actions where no adequate remedy at law
exists. Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 454 (2015);
see also Benoit, 169 N.H. at 20 (“The court has broad and flexible equitable
powers which allow it to shape and adjust the precise relief to the requirements
of the particular situation.” (quotation omitted)). In the absence of the court’s
authority to issue injunctive relief to curtail ongoing retaliation that falls short
of discharge or demotion, the plaintiff is left without an adequate remedy at law
to address behavior expressly prohibited by the statute. Because RSA 275-E:2,
II does not provide an adequate remedy to address the ongoing harassment,
abuse, or intimidation as alleged by the plaintiff, we conclude that the plaintiff
may seek injunctive relief to enjoin any allegedly, ongoing retaliatory behavior
based upon the court’s general equity jurisdiction.

       The defendants nonetheless argue that any claim for injunctive relief
against DES is barred by sovereign immunity because the Act does not
expressly authorize the court to issue injunctive relief. In New Hampshire
courts, a state agency is immune from suit unless there is an applicable
statute waiving the State’s sovereign immunity. XTL-NH, Inc. v. N.H. State
Liquor Comm’n, 170 N.H. 653, 656 (2018). “Any statutory waiver is limited to
that which is articulated by the legislature.” Id. “[T]hus, New Hampshire
courts lack subject matter jurisdiction over an action against the State unless
the legislature has prescribed the terms and conditions on which it consents to
be sued, and the manner in which the suit shall be conducted.” Id. (quotation
omitted).




                                        17
      Our conclusion that the plaintiff may seek injunctive relief against
ongoing forms of retaliation is based upon the superior court’s general equity
jurisdiction rather than an applicable statute. Although RSA 275-E:2, II may
constitute a waiver of DES’s immunity from suit under the Act, the terms and
conditions on which the State consents to be sued include only three remedies:
reinstatement, back pay, and reasonable attorney’s fees. Therefore, we agree
with the defendants that the plaintiff is barred from seeking injunctive relief
against DES and may only seek such relief against the individual defendants.2

       The plaintiff next argues that the trial court erred when it rejected her
claim that she may pursue a finding of wrongdoing and reasonable attorney’s
fees. Because we conclude that the plaintiff is entitled to pursue injunctive
relief based upon the court’s general equity jurisdiction which requires a
finding on the merits, at least as to the alleged ongoing retaliation, we need not
address the trial court’s ruling on this issue at this time.

       Finally, the plaintiff identifies several other remedies she requested in
her complaint that the trial court dismissed as unavailable to her under RSA
chapter 275-E. These remedies include “lost benefits,” loss of future earning
capacity, depletion of annual and sick leave balances, mileage reimbursements,
medical costs, front pay, and reinstatement to a supervisory position.
Although the trial court made specific rulings as to each of these remedies, the
plaintiff does not provide any arguments as to why these rulings were
erroneous. Instead, she merely restates her requests for relief in her brief.
Thus, any challenge to the trial court’s rulings on these requests is not
sufficiently developed for our review. See State v. Blackmer, 149 N.H. 47, 49
(2003) (“a mere laundry list of complaints regarding adverse rulings by the trial
court, without developed legal argument, is insufficient to warrant judicial
review” (quotation omitted)).

       Because we conclude that the plaintiff is entitled to seek injunctive relief
against ongoing retaliation by the individual defendants based upon the court’s
general equity jurisdiction, we remand the plaintiff’s whistleblower protection
claim to the trial court. We also note that the plaintiff’s claim under RSA 98-
E:4, I, expressly entitles her to injunctive relief as part of her freedom of
expression claim, which we have also remanded to the trial court. See RSA 98-
E:4, I (2013) (“A public employee may seek injunctive relief or maintain a civil
action, or both, to recover damages for violation of this chapter in any court of
competent jurisdiction by bench or jury trial.”).




2We note that there is nothing in the record before us that indicates that any of the individual
defendants have been dismissed from the plaintiff’s whistleblower protection and freedom of
expression claims.


                                                18
       All arguments the plaintiff raised in her notice of appeal, but did not
brief, are deemed waived. In re Estate of King, 149 N.H. 226, 230 (2003).

                                                   Affirmed in part; reversed
                                                   in part; and remanded.

     LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.




                                        19
