Appeal of James Cole ( 2018 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Reporter, Supreme Court of New Hampshire, One Charles
Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors may be
reported by E-mail at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court's home page is:
http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Personnel Appeals Board
No. 2017-0295
APPEAL OF JAMES COLE
(New Hampshire Personnel Appeals Board)
Argued: May 15, 2018
Opinion Issued: October 16, 2018
Gary Snyder and John S. Krupski, of Concord (Mr. Snyder on the brief,
and Mr. Krupski orally) for the petitioner.
Gordon J. MacDonald, attorney general (Scott E. Sakowski, assistant
attorney general, on the brief and orally), for the respondent.
HANTZ MARCONI, J. This appeal arises from the termination from
employment of the petitioner, James Cole, by the respondent, the New
Hampshire Department of Information Technology (DOIT). The New Hampshire
Personnel Appeals Board (PAB) upheld Cole’s termination. On appeal, Cole
argues that his termination did not comply with New Hampshire Administrative
Rules, Per 1002.08 because he did not receive three written letters of warning
in accordance with New Hampshire Administrative Rules, Per 1002.04 for the
same or substantially similar conduct or offense. DOIT argues that we lack
subject matter jurisdiction to decide this case, and, in the alternative, that
Cole’s termination complied with Per 1002.08 and Per 1002.04. Finding that
we have jurisdiction, we affirm the PAB’s decision.
I
The following facts were found by the PAB or are otherwise derived from
the record. Cole had been a DOIT employee for fifteen years as of May 2015.
During that month, his position was defunded and he was transferred to a new
position within DOIT at the New Hampshire Department of Transportation.
Cole’s supervisor in his new position was Charles Burns.
One of Cole’s initial assignments was overhauling an Account Security
Form (ASF). This was intended to be a short-term project. Although some
aspects of Cole’s work on this project were satisfactory, his incorrect processing
of other aspects of the overhaul resulted in audits being conducted on the
forms to ensure accuracy. Cole was also initially assigned a “Wireless Access
Point” Project (WAP). This project required communication with customers who
were requesting installation of a WAP, and coordination with the persons who
were to install the WAPs. However, Cole’s communications were inadequate.
This resulted in customers not knowing how to use the WAPs after they were
installed, or even that the WAPs had been installed.
On March 1, 2016, Burns issued Cole a memorandum of counsel to
document and address his concerns with Cole’s work on the ASF and WAP
projects. The memorandum included recommended corrective actions to
address the problems with both projects. After the memorandum was issued,
however, Cole continued to have problems with the ASF project. Customers
continued to complain that there were problems with the form. An audit
revealed that 20% of a sample of forms that Cole processed contained errors,
the majority of which were serious. Cole ultimately performed eleven major
revisions to the ASF, but the revised form was substantially similar to the
original one and the project took much longer to complete than intended.
On April 13, 2016, Burns issued Cole a letter of warning. The letter cited
Cole’s “failure to meet any work standard” and “failure to take corrective action
as directed” under Per 1002.04(b)(1) and (2) as grounds for its issuance. The
letter also detailed Cole’s mishandling of the ASF project, and contained a
corrective action plan.
On May 6, 2016, Cole was issued a second letter of warning. This letter
also cited Cole’s “failure to meet any work standard” and “failure to take
corrective action as directed” under Per 1002.04(b)(1) and (2). This letter
partially concerned Cole’s work on the “IMP” project. Cole was originally
assigned this project in December of 2015. Cole was responsible for holding a
“kickoff” meeting to discuss the details of the project. Despite being reminded
on several occasions by Burns about the need to hold the meeting, Cole did not
hold one until April 2016. Even after the kickoff meeting was held, there was
no timeline for the project and customers did not have some necessary
information. The May 6, 2016 letter of warning also addressed issues with a
2
different project that had been assigned to Cole to establish internet
connectivity at a particular location. Cole had problems establishing timelines
for this project, communicating with interested parties, and keeping customers
satisfied. This letter of warning, like the first letter as well as the
memorandum, contained a corrective action plan to address the problems
identified in the letter.
On June 7, 2016, Burns conducted a performance evaluation of Cole.
Burns noted several ongoing concerns, including Cole’s lack of communication,
his lack of progress and timelines, and general inaccuracies in his work. Two
days later, when Burns spoke to Cole about an overdue project, Cole told
Burns that he was not given enough time to complete the project. A short time
later, Burns saw Cole doing a crossword puzzle at his desk during work hours.
When asked if he was on a break, Cole said he was not.
On June 16, 2016, the DOIT Commissioner, Denis Goulet, issued Cole a
third letter of warning. This letter stated that the quality of Cole’s work
continued to be below expectations, as detailed in the June 7 performance
evaluation and the previous letters of warning and memorandum of counsel.
The letter also referenced the crossword puzzle incident. Cole was dismissed
from employment on July 29, 2016, as detailed in a final notice of dismissal
dated August 1, 2016.
Cole appealed his dismissal to the PAB. He was represented by the State
Employees’ Association/Service Employees’ International Union (SEA/SEIU) at
the PAB hearing. The PAB heard testimony from Burns, Burns’ supervisor, a
human resources administrator, and Cole, and received into evidence the
memorandum of counsel, the three letters of warning, the June 7 performance
evaluation, and the August 1 notice of dismissal. The PAB concluded that the
letters of warning were issued for the “same or substantially similar conduct or
offenses,” thus satisfying the requirements of Per 1002.08(c)(1) for dismissal.
The PAB found that “all three . . . [letters] were issued to specifically address
[Cole’s] poor quality of work,” and therefore all three letters were issued for
“failure to meet any work standard” under Per 1002.04(b)(1). Specifically
addressing the third letter and the crossword puzzle incident, the PAB noted
that Cole stated he did not have enough time to complete a project, but was
then found working on a crossword puzzle shortly afterwards during work
hours. The PAB concluded that “[t]he fact [Cole] did not complete the project
on time demonstrates that this, too, fits only into the category of failure to meet
any work standard [in Per 1002.04(b)(1)].”
Cole filed a motion for reconsideration and/or rehearing, which the PAB
denied. SEA/SEIU filed this appeal thirty days later. DOIT then filed a motion
to dismiss the appeal, arguing that we lack jurisdiction because SEA/SEIU
named itself as the petitioner in the notice of appeal. A motion to amend the
petition for appellate review to include Cole as the captioned petitioner was
3
then filed, as well as an objection to DOIT’s motion to dismiss. We denied
DOIT’s motion without prejudice, with the understanding that the parties
would be allowed to brief the issues raised in DOIT’s motion in their respective
briefs. We granted the motion to amend the appeal document to include Cole
as the captioned petitioner. Prior to oral argument, we asked the parties to
address the implications of Atwater v. Town of Plainfield, 156 N.H. 265 (2007),
on the jurisdictional issue raised by DOIT. Both parties submitted memoranda
of law on the matter.
On appeal, Cole argues that the PAB misapplied our holding in Appeal of
Murdock, 156 N.H. 732 (2008), as well as Per 1002.08 and Per 1002.04, in
reaching its conclusion that the three letters of warning concerned the same or
substantially similar conduct. DOIT argues that we lack subject matter
jurisdiction to answer this question because the SEA/SEIU initially listed itself,
not Cole, as the petitioner in this case, and did not move to amend the appeal
document with Cole’s name until after the 30-day jurisdictional deadline of
RSA 541:6 had passed. See RSA 541:6 (2007). Because the existence or
absence of jurisdiction determines whether we may proceed to the merits of the
appeal, we turn first to the jurisdictional issue.
II
Subject matter jurisdiction is jurisdiction over the nature of the case and
the type of relief sought: the extent to which a court can rule on the conduct of
persons or the status of things. Gordon v. Town of Rye, 162 N.H. 144, 149
(2011). In other words, it is a tribunal’s authority to adjudicate the type of
controversy involved in the action. Id. A court lacks power to hear or
determine a case concerning subject matter over which it has no jurisdiction.
Id. A party may challenge subject matter jurisdiction at any time during the
proceeding, including on appeal, and may not waive subject matter
jurisdiction. Id.
Because the scope of our power to hear appeals from the PAB is governed
by statute, see RSA 21-I:58, II (2012), a determination of our jurisdiction in
this case requires statutory interpretation, see Gordon, 162 N.H. at 150. The
interpretation of a statute is a question of law. STIHL, Inc. v. State of N.H., 168
N.H. 332, 334 (2015). In matters of statutory interpretation, we are the final
arbiters of the legislature’s intent as expressed in the words of the statute
considered as a whole. Id. When construing a statute’s meaning, we first
examine the language found in the statute, and where possible, we ascribe the
plain and ordinary meanings to the words used. Id. We interpret statutory
provisions in the context of the overall statutory scheme. Id. at 335.
Adjudicative decisions made by the PAB are subject to appeals to this
court within the parameters of RSA chapter 541. RSA 21-I:58, II. All such
appeals must be filed within thirty days of the denial of a motion for rehearing
4
submitted to the PAB, or, if the motion for rehearing is granted, within thirty
days after the decision on such rehearing. RSA 541:6. Compliance with this
statutory thirty-day rule “is a necessary prerequisite to establishing jurisdiction
in the appellate body.” Dermody v. Town of Gilford, 137 N.H. 294, 296 (1993)
(quotation omitted). If an appeal is filed outside of the thirty-day window,
subject matter jurisdiction does not vest. See Appeal of Carreau, 157 N.H.
122, 123 (2008) (dismissing for lack of jurisdiction an appeal brought under
RSA chapter 541 filed one day late). We do not have authority to waive this
jurisdictional deadline: if the appeal is filed even one day after the thirty-day
mark, we are required to dismiss it for lack of jurisdiction. See id.
In this case, Cole’s motion for reconsideration and/or rehearing was
denied by the PAB on April 26, 2017. A notice of appeal of the PAB’s decision
was filed in this court on May 26, 2017, within the thirty-day appeal period.
However, the appeal document named the SEA/SEIU as the petitioner, not
Cole. The motion to amend the appeal document to specifically name Cole was
not filed until June 23, 2017, after the thirty-day window had closed. DOIT
argues that the failure to amend the appeal document within the thirty-day
appeal period deprives this court of jurisdiction.
A similar situation arose in Atwater. At issue there was an appeal of a
town planning board’s decision to the superior court pursuant to RSA 677:15,
which also has a thirty-day jurisdictional filing deadline. Atwater, 156 N.H. at
266-67; see RSA 677:15 (Supp. 2006) (amended 2009, 2013). The petitioners
mistakenly named an intervenor as the defendant in their caption rather than
the town, the town being the proper defendant. Id. at 266. After the thirty-day
window had closed, the petitioners moved to substitute the town as the
defendant. Id. The town moved to dismiss for lack of jurisdiction due to
noncompliance with RSA 677:15. Id. The superior court granted the motion,
but we reversed. Id. at 266, 269.
Noting that the statute at issue required only that the petition be filed by
a certain date, we concluded that the “filing of the appeal within thirty days of
the planning board’s [decision] . . . established jurisdiction,” even though the
petitioners named an incorrect defendant. Id. at 268. Unlike other cases
where a new defendant is sought to be substituted after a statute of limitations
has run, we explained that an administrative appeal is simply the continuance
of the original suit first heard in the administrative forum, which would
otherwise become final without filing the appeal document. See id. In order to
transfer jurisdiction, RSA 677:15 required “no more than timely fil[ing of] the
petition.” Id. at 267-68. Thus, jurisdiction vested and the case was transferred
to superior court upon the filing of the appeal document, even though a party
was inaccurately named. See id. at 268.
We find the reasoning of Atwater equally applicable to this case. Both
RSA 677:15 and RSA 541:6 contain a filing deadline as a prerequisite to
5
establishing appellate jurisdiction over decisions of an administrative body. In
both contexts, by filing the appeal document within the jurisdictional window,
the appellant extends the life of the case originally brought in the
administrative forum. No new case or cause of action is brought. Seasonable
filing of the appeal document transfers jurisdiction from the administrative to
the appellate body, but deficiencies in case-captioning do not disrupt the
extension of the case’s lifetime. See id. at 267-68. In other words, neither the
instant case nor Atwater presents the situation seen in Carreau, because both
here and in Atwater the appeal document was filed within the thirty-day
window, see Atwater, 156 N.H. at 266, whereas in Carreau, the initial filing of
the appeal document just one day after the window had closed precluded
jurisdiction, see Carreau, 157 N.H. at 123-24.
DOIT argues that Atwater does not control. Atwater concerned a timely
petition brought by persons who were proper petitioners with standing to
appeal. DOIT argues that this case involves an appeal document filed by a
party who lacks standing to appeal: SEA/SEIU. Because SEA/SEIU lacks
standing to appeal, DOIT argues, its petition for appellate review had no legal
effect and there was no legal instrument in existence by the time the
jurisdictional window had closed that could be amended to include Cole.
DOIT correctly notes that standing, like the filing deadline of RSA 541:6,
is a jurisdictional prerequisite. See Duncan v. State, 166 N.H. 630, 640 (2014).
However, we have long allowed for “substitution of an entirely new party as
plaintiff, including substitution of a plaintiff with standing for an original
plaintiff with no standing, when required to prevent injustice and in the
absence of resultant prejudice to the defendant.” Nat’l Marine Underwriters,
Inc. v. McCormack, 138 N.H. 6, 8 (1993) (emphasis added); see also RSA 514:9
(2007) (affirming court’s power at “any stage of the proceedings” to allow
nonprejudicial amendments when necessary to prevent injustice).
Amendments may be given retroactive effect to a petition’s filing date in order
to cure a defective form of action if justice so requires. Morphy v. Morphy, 112
N.H. 507, 510-11 (1972). We have declined to interpret statutory filing
requirements similar to the one at issue here as jurisdictional necessities. See
Simonsen v. Town of Derry, 145 N.H. 382, 384 (2000) (declining to define the
verification requirement of RSA 677:15 as a jurisdictional prerequisite to
appeal of an administrative decision). We likewise decline to do so in this case.
DOIT has not been prejudiced by the inaccurate captioning of the appeal
document. See Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 247 (1948)
(finding it was “proper” for trial court to allow an amendment substituting
plaintiffs with standing for a plaintiff with no standing after a thirty-day period
for appeal of a zoning decision had expired); RSA 514:9. Furthermore, the
original appeal document, on the very first page, states that it is appealing the
decision of the PAB in “APPEAL OF JAMES COLE,” and provides the docket
number of the PAB’s decision immediately thereafter. We conclude that DOIT
6
was on fair notice of which PAB decision was being appealed, and was not
otherwise prejudiced. See Nat’l Marine, 138 N.H. at 8.
DOIT also argues that a consideration of the merits in this case would
amount to this court “creating jurisdiction” outside of the scope set by the
legislature in RSA 541:6, and in contravention of our decision in Carreau. We
disagree. A plaintiff with standing may be substituted for a plaintiff without
standing. See id.; Blaisdell, 95 N.H. at 247. Such a substitution may be given
retroactive effect if justice so requires and in the absence of prejudice to the
opposing party. See Nat’l Marine, 138 N.H. at 8. For us to have jurisdiction
over the appeal of a PAB decision, the appeal document must be filed within
thirty days of the denial of a motion for rehearing submitted to the PAB, or, if
the motion for rehearing is granted, within thirty days after the decision on
such rehearing. RSA 541:6. That requirement was not satisfied in Carreau,
which is why we lacked jurisdiction in that case. See Carreau, 157 N.H. at
123. Here, by contrast, the appeal document was filed within the thirty-day
window of RSA 541:6. Because the appeal document was timely filed, and
because we conclude that RSA 541:6 does not make accurate case-captioning a
jurisdictional prerequisite, we have authority to decide this case on the merits
in the absence of any prejudice to DOIT.
DOIT also argues that Cole is prohibited from making arguments for
jurisdiction not made in his objection to DOIT’s motion to dismiss/motion for
summary affirmance. DOIT argues that Cole was on notice of DOIT’s
jurisdictional argument at the time he submitted his brief but chose not to
address it outside of a short reference to the initially inaccurate caption. Citing
our decision in Panas v. Harakis & K-Mart Corp., 129 N.H. 591 (1987), DOIT
asserts that Cole waived any argument as to the existence of jurisdiction by not
addressing the issue in his brief. Even assuming, without deciding, that an
argument related to subject matter jurisdiction can be “waived,” but see
Gordon, 162 N.H. at 149, DOIT’s argument is misplaced. In Panas, the
petitioners raised an argument for the first time on appeal in their reply brief.
Panas, 129 N.H. at 617. We concluded that reply briefs may only respond to
the opposing party’s brief, and cannot raise entirely new issues. Id. In this
case, DOIT, not Cole, is the party raising the jurisdictional issue. Cole did not
address DOIT’s jurisdictional arguments in his brief, but did respond to them
in a reply brief. Our order granting the motion to amend the appeal document
to include Cole stated that it was “subject to [DOIT’s] ability to present in its
brief the arguments set forth in its motion to dismiss.” (Emphasis added). The
order then stated that the parties “may” address the jurisdictional issue in
their respective briefs. Cole’s response to DOIT’s jurisdictional argument is the
proper subject of a reply brief, not the improper assertion of a new issue in a
reply brief. See State v. Blunt, 164 N.H. 679, 685 (2013).
In light of the above, we conclude that we have jurisdiction to proceed to
the merits of this appeal. We do so now.
7
III
RSA chapter 541 governs our review of PAB decisions. See Appeal of
Morton, 158 N.H. 76, 78 (2008). We will not set aside the PAB’s order except
for errors of law, unless the petitioner proves by a clear preponderance of the
evidence that the order is unjust or unreasonable. RSA 541:13 (2007). The
PAB’s findings of fact are presumed prima facie lawful and reasonable. Id. In
reviewing the PAB’s findings, our task is not to determine whether we would
have found differently or to reweigh the evidence, but rather to determine
whether its findings are supported by competent evidence in the record.
Appeal of Collins, 171 N.H. ___, ___ (decided June 8, 2018) (slip op. at 2).
However, we review the PAB’s interpretations of statutes and administrative
rules de novo. Appeal of Alexander, 163 N.H. 397, 401 (2012). When
interpreting both statutes and administrative rules, we ascribe the plain and
ordinary meanings to words used, looking at the rule or statutory scheme as a
whole, and not in a piecemeal fashion. Morton, 158 N.H. at 78.
Per 1002.08(c)(1) provides that:
An appointing authority may dismiss an employee for conduct
described in Per 1002.04 when the employee has previously
received 2 written warnings for the same or substantially similar
type of conduct or offense within a period of 5 years, by issuing a
final written warning and notice of dismissal as set forth in this
rule . . . .
Per 1002.04(b) provides, in part, that:
An appointing authority may issue a written warning to an
employee for unsatisfactory work performance or conduct
including, but not limited to, the following:
(1) Failure to meet any work standard;
(2) Failure to take corrective action as directed;
...
(9) Disruptive, disorderly, or disrespectful conduct in the
workplace, including the use of insulting or abusive
language or gestures . . . .
Cole concedes that the first two letters of warning “likely” concern “the
same or substantially similar” behavior. See N.H. Admin. R., Per 1002.08(c)(1).
He argues on appeal that the PAB erred in finding that the third letter of
8
warning concerned the same or substantially similar conduct or offense as the
first two.
In Murdock, we reversed in part a decision of the PAB that upheld an
employee’s termination under the predecessor to Per 1002.08(c)(1). Murdock,
156 N.H. at 738. When Murdock was decided, the predecessor rule authorized
termination upon the employee’s receipt of “a third written warning for the
same offense within a period of 5 years.” Id. at 735 (quotation omitted). In
that case, the employee had received a warning for transporting alcohol in a
state vehicle, a warning for displaying inappropriate photographs in the
workplace, and a warning for taking a lunch break outside of his allotted time.
Id. at 733-34. Each warning asserted that the employee had violated the
predecessor to Per 1002.04(b)(1); each warning was issued for conduct that
purported to amount to a failure to meet any work standard. See id. In
reversing the PAB’s decision to uphold the employee’s termination, we
emphasized that the language “same offense” in the applicable administrative
rule referred to the behavior giving rise to the warnings, rather than to
“behavior that might be characterized as a similar violation.” Id. at 738
(quotation omitted). Since that case was decided, however, the applicable
administrative rule has been amended. The rule no longer requires the three
written warnings to be for the “same offense.” It now provides for termination
after “2 written warnings for the same or substantially similar type of conduct
or offense within a period of 5 years [upon] issuing a final written warning and
notice of dismissal.” N.H. Admin. R., Per 1002.08(c)(1) (emphasis added).
In light of Murdock, Cole argues that the third letter of warning was not
issued for the same or substantially similar conduct or offense as the first two
letters because the crossword puzzle incident has “nothing in common” with
the concerns raised by the first two letters. To prevail in this argument on
appeal, Cole must demonstrate that the PAB erred as a matter of law in
reaching the opposite conclusion, or that its conclusion was unjust or
unreasonable. See RSA 541:13. We conclude that Cole has not carried his
burden.
After a full hearing, the PAB concluded that all three letters were issued
for conduct properly grouped under Per 1002.04(b)(1) for “failure to meet any
work standard.” Addressing the third letter of warning, the PAB noted that the
crossword puzzle incident occurred within the context of Cole’s inability to
complete his assignments in a timely fashion. The PAB concluded the
crossword puzzle incident illustrated Cole’s poor quality of work because it
showed his inability to complete projects on time, and therefore the letter was
properly issued under Per 1002.04(b)(1). Because all three letters arose from
Cole’s poor quality of work, as reflected in his inability to timely complete
assignments, the PAB concluded that they concerned the same or substantially
similar conduct or offenses within the meaning of Per 1002.08(c)(1). Based on
our review of the record and evidence considered by the board, including all
9
three letters of warning, we conclude that the board’s decision is supported by
competent evidence, and is neither erroneous as a matter of law nor unjust or
unreasonable.
Cole also argues that, the amended language of Per 1002.08(c)(1)
notwithstanding, Murdock requires reversal of the PAB’s decision. According
to his argument, Murdock demonstrates that if a particular behavior can be
categorized in a Per 1002.04(b) category more specific than “failure to meet any
work standard,” it must be so categorized; otherwise the catch-all work
standard category would render the others superfluous. Cole further argues
that the crossword puzzle incident is more accurately defined as “[d]isruptive,
disorderly, or disrespectful conduct” within the meaning of Per 1002.04(b)(9).
However, based on our review of the record in this case, we cannot conclude
that the PAB erred in finding that the only category in which the crossword
puzzle incident fits is failure to meet any work standard. Evidence in the
record supports the PAB’s finding that the crossword puzzle incident occurred
within the context of Cole being unable to complete assignments in a timely
manner, and therefore was properly characterized as an issue of work quality.
We therefore conclude that the PAB’s decision was not unjust or unreasonable.
Affirmed.
HICKS and DONOVAN, JJ., concurred.
10