Jason Boucher was a Moultonborough police officer, rising to the position of sergeant and working full time, until he resigned in June 2020 due to actions of the Select Board (“Board”) that “was very clearly aimed at undermining and isolating him.” He alleged they flipped the chain of command diminishing his authority and harassed him with four allegedly meritless internal investigations in six weeks. He suspected it was retribution for supporting a candidate for chief that the Board did not agree with and for previously assisting other officers in forming a union.
Claiming he had little choice but to resign, Boucher filed a complaint in Superior Court alleging “Constructive Termination in Violation of RSA 41:48,” the statute that guarantees police officers cannot be removed except for cause after notice and hearing. RSA 41:48. The trial court granted the town’s motion to dismiss, saying he failed to exhaust his administrative remedies before going to court to seek money damages. Upon appeal of that decision, the Supreme Court had to consider whether Boucher had exhausted his administrative remedies, such as requesting a hearing, and whether constructive discharge is a cognizable cause of action in New Hampshire.
Regarding whether he sufficiently exhausted his administrative appeals, Boucher argued that the statute does not mention “constructive discharge,” so its hearing requirement ought not apply in this case. The Court agreed. Citing Karch v. BayBank FSB, it defined “constructive discharge” as “when an employer renders an employee’s working conditions so difficult and intolerable that a reasonable person would feel forced to resign.” 147 N.H. 525, 536 (2002). While it acknowledged the policy reasons for the requiring a plaintiff to first exhaust administrative appeals are strong – judicial efficiency, agency autonomy, etc. – it also said RSA 41:48 only requires administrative process when “formally removed from [one’s] employment by the Board.” Because the statute does not address constructive discharge, the procedure in that statute does not apply, so there was no administrative appeal requirement for Boucher to satisfy. Additionally, on its face, “removal” proceedings are not at issue because Boucher resigned.
As for whether Boucher stated a claim upon which relief could be granted, the Court ruled that alleging constructive discharge satisfies the termination component of a wrongful termination claim. A wrongful termination claim is a cause of action in tort. Porter v. City of Manchester, 151 N.H. 30, 38 (2004).
Because the dismissal was reversed, the case will go back to the Superior Court to be assessed on the merits. The Plaintiff will still need to show the actions of the Board reasonably forced him to resign and that entitles him to damages.