Melissa Donovan v. Southern New Hampshire University

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 2022-0154
MELISSA DONOVAN
v.
SOUTHERN NEW HAMPSHIRE UNIVERSITY
Argued: September 20, 2022
Opinion Issued: November 2, 2022
Lehmann Major List, PLLC, of Concord (Sean R. List on the brief and
orally), for the plaintiff.
Sheehan Phinney Bass & Green, P.A., of Portsmouth (Christopher Cole
and Megan Carrier on the brief, and Christopher Cole orally), for the defendant.
DONOVAN, J. The plaintiff, Melissa Donovan, appeals from an order of
the Superior Court (Nicolosi, J.) granting summary judgment in favor of the
defendant, Southern New Hampshire University (SNHU), based upon the
court’s finding that no public policy considerations supported the plaintiff’s
wrongful termination claim. On appeal, the plaintiff argues that the question
as to whether public policy concerns support her wrongful termination claim,
which alleges that she was constructively discharged as a result of her refusal
to alter mathematics grades for two college students, should be resolved by a
jury and not the trial court, as a matter of law. We conclude that the court did
not err because complaints about the application of internal grading decisions
by a private university do not implicate public policy considerations necessary
to support a wrongful termination claim. Accordingly, we affirm.
I. Facts
The following facts are supported by the summary judgment record. The
plaintiff began working for SNHU in September 2011. From December 2016
until her resignation in November 2018, she served as Associate Dean of
Faculty for Mathematics. In this role, her primary focus was oversight of
faculty assignments and support for mathematics courses. She reported to Dr.
Gwendolyn Britton, Executive Director of Science, Technology, Engineering,
and Mathematics, and Dr. Susan McKenzie, a Senior Associate Dean. She also
worked with Dr. David Sze, the Technical Program Facilitator for Mathematics.
In March 2018, at the request of the plaintiff and Dr. McKenzie, Dr. Sze
reviewed a mathematics course, MAT 136, due to concerns about the course’s
design. That review revealed that instructors applied different grading schemes
for the course, and that those differences were not being communicated to
students. Specifically, some sections of MAT 136 employed a grading scheme
that SNHU intended to phase out beginning in September 2018.
In July 2018, Dr. Sze emailed the plaintiff and Dr. McKenzie identifying
two students from a semester of MAT 136 who received failing grades, but,
given Dr. Sze’s assessment of certain irregularities in grading schemes, “had a
case for passing.” Dr. McKenzie emailed the plaintiff asking her to change the
grade for one of the students. The plaintiff replied: “To clarify, am I being
asked, or told?” Dr. McKenzie responded that, after reviewing the student’s
work and grading schemes, both she and Dr. Britton believed the grade should
be changed to reflect the student’s actual work in the course. At some point
later, Dr. McKenzie asked the plaintiff to modify the grade to passing for the
other student identified by Dr. Sze.
Nonetheless, the plaintiff did not modify either of the students’ grades.
In meetings with both Dr. McKenzie and Dr. Britton, the plaintiff expressed her
concerns that the grade change requests violated the school’s grading policy
and were unethical. In support of her position, the plaintiff presented to her
supervisors the SNHU Whistleblower Policy, adopted by SNHU to encourage its
faculty to raise concerns about “ethical conduct or violations of the University’s
policies.” Ultimately, Dr. McKenzie submitted the grade change for the two
students, which Dr. Britton and her supervisors later approved. In her claim
for wrongful termination, the plaintiff alleges that Dr. McKenzie admonished
her for declining to alter the grades and subsequently retaliated against her by
engaging in conduct that created a hostile work environment.
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In October 2018, SNHU placed the plaintiff on a performance
improvement plan. The plan identified numerous issues with the plaintiff’s
work performance, but did not reference the disagreement concerning the
grade change requests. In November 2018, the plaintiff resigned from her
position at SNHU, stating in her resignation email that she felt compelled to
resign due to a hostile work environment. In August 2019, the plaintiff
brought a complaint for wrongful termination against SNHU based upon a
constructive discharge theory. The plaintiff alleged that SNHU discharged her
for declining to alter the two students’ grades, which established a claim for
wrongful termination because “[p]ublic policy supports academic integrity,
consistency and equality in grading.” SNHU moved for summary judgment.
In February 2022, the trial court granted SNHU’s motion for summary
judgment. The trial court determined that, even accepting the truth of the
plaintiff’s factual allegations, she “failed to establish the existence of a public
policy that would support her refusal to alter grades in this case.” Relying
upon authority from multiple jurisdictions, the trial court reasoned that “the
determination of what grading policy to implement in a class, and whether
exceptions to that policy should be made on a case-by-case basis, are matters
of academic judgment that the Court will not second guess.” Further, although
the plaintiff believed SNHU’s decision to be unethical, the court concluded that
“it remained an internal policy determination of a private university.”
Accordingly, the court ruled that the plaintiff failed to establish a public policy
necessary to support her wrongful termination claim as a matter of law and
granted SNHU’s motion for summary judgment. The plaintiff filed a motion for
reconsideration, which the court denied. This appeal followed.
II. Standard of Review
When reviewing a 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. See Peerless Ins. v. Vt.
Mut. Ins. Co., 151 N.H. 71, 72 (2004). If there is no genuine issue of material
fact, and if the moving party is entitled to judgment as a matter of law, the
grant of summary judgment is proper. Id. We review the trial court’s
application of the law to the facts de novo. Id.III. Analysis
To prevail upon her wrongful termination claim, the plaintiff had to
establish that: (1) the employer terminated the employment out of bad faith,
malice, or retaliation; and (2) the employer terminated the employment because
the employee performed acts that public policy would encourage or because
she refused to perform acts that public policy would condemn. See Cloutier v.
A. & P. Tea Co., Inc., 121 N.H. 915, 921-22 (1981). As to the second prong, a
plaintiff need not show a “strong and clear public policy,” and a claim of public
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policy may “be based on non-statutory policies.” Id. at 922. “Although
ordinarily the issue of whether a public policy exists is a question for the jury,
at times the presence or absence of such a public policy is so clear that a court
may rule on its existence as a matter of law . . . .” Short v. Admin. Unit 16,
136 N.H. 76, 84 (1992). This case presents such an occasion.
Here, the trial court ruled that the plaintiff failed to establish the second
prong as a matter of law and granted summary judgment. The plaintiff argues
that the trial court erred because whether a public policy supports the
plaintiff’s refusal to alter grades was not so clear that the court could decide
that question as a matter of law. Specifically, the plaintiff argues that, in
declining to alter the two students’ grades, she acted “in conformity with public
policy by safeguarding academic integrity and the system of merit-based
student achievement expected by the public.”
On appeal, however, the plaintiff maintains that “[t]his is not a case
seeking to judicially overturn or undermine grading decisions of SNHU.”
“Rather, it is a case where a jury should decide if public policy supported the
[p]laintiff raising issue with a grade change, internally, that she believed, in
good faith, to be unethical and a violation of SNHU academic policy.”
(Emphasis omitted.) In other words, the plaintiff appears to argue that her
wrongful termination claim is premised upon public policy because she acted
in an effort to protect academic integrity and comply with SNHU’s internal
Whistleblower Policy by reporting, in good faith, conduct that she reasonably
believed to be improper and unethical. We are unpersuaded.
As an initial matter, the plaintiff’s complaint does not allege that SNHU
terminated her because she acted as a whistleblower and complied with the
university’s Whistleblower Policy when she reported an alleged violation of
SNHU’s internal grading policy. In fact, the plaintiff’s complaint fails to
reference the Whistleblower Policy at all. Instead, the complaint alleges that:
Public policy supported [the plaintiff] in challenging the instruction
to arbitrarily change the grade of two students. Performing such a
grade change would cause the two students to be graded unequally
and inconsistently with all other students enrolled in the course.
Public policy supports academic integrity, consistency and equality
in grading, without preferential treatment provided to certain
students simply based upon retaining enrollment.
Accordingly, we cannot read the plaintiff’s complaint as advancing the
argument she appears to advance on appeal.
Even if we construed her complaint to allege such a claim, we disagree
with her argument that the trial court erred by failing to conclude that a
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“reasonable jury could find that [her] actions were protected by public policy,
particularly when the very actions she took were consistent with SNHU’s
Whistleblower and Grade Change Policies.” We note that the plaintiff does not
allege, nor argue on appeal, that her discharge violated the Whistleblowers’
Protection Act, RSA 275-E:2 (2010), or that SNHU engaged in any illegal
activity. Rather, the plaintiff appears to maintain that public policy protects
her refusal to comply with her supervisor’s directive because she acted in
accordance with the university’s internal grading and whistleblower policies.
We disagree.
Public policy does not protect the plaintiff’s refusal to comply with her
employer’s decision to allegedly depart from its own internal grading policy.
See Melvin v. NextEra Energy Seabrook, LLC, No. CIV 09-CV-249-JD, 2010
W.L. 99095, at *3 (D.N.H. Jan. 6, 2010) (employee’s disagreement with
employer’s selective enforcement of its policies or its management of his
supervisory role does not implicate a public policy)(citing and quoting
MacKenzie v. Linehan, 158 N.H. 476, 481 (2009) (holding that an employee’s
disagreement “about whether his conduct violated [his employer’s] rule . . . [is]
not an act that public policy would protect”)); Short, 136 N.H. at 84 (“[A]n
employee’s expression of disagreement with a management decision is not an
act protected by public policy.”). The plaintiff posits that, because she
complied with one internal policy — SNHU’s Whistleblowers Policy — her
refusal to comply with another internal policy — SNHU’s alleged departure
from its grading policy — constitutes an act protected by public policy. This
argument is circular and insufficient as a matter of law to sustain a wrongful
termination claim. Put simply, whether the plaintiff complied with the
university’s Whistleblower Policy has no bearing on whether public policy
supports her conduct.
We next address the plaintiff’s argument that public policy supports her
refusal to “arbitrarily change the grades of two students” to protect “academic
integrity, consistency and equality in grading, without preferential treatment”
and that the trial court erred in finding that the plaintiff failed to establish
such a public policy as a matter of law. This claim is premised upon a legal
conclusion that a jury could find that public policy encourages the plaintiff’s
opposition to and reporting of the grade changes. Yet, the plaintiff has cited no
authority that recognizes such a public policy, nor are we aware of any such
authority. Accepting the plaintiff’s premise would subject the internal grading
decisions of a private university to the ethical considerations of a jury and
contravene the well-established principle disfavoring judicial intervention in
disputes involving academic standards. See, e.g., Jung v. George Washington
University, 875 A.2d 95, 107-08 (D.C. Ct. App. 2005) (collecting cases). Indeed,
in order to decide whether her alleged termination resulted from conduct that
public policy supports, a jury would necessarily have to determine whether
SNHU’s internal grading system was “arbitrar[y],” “preferential,” or violated
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principles of “academic integrity [in] consistency and equality in grading” as
alleged in the plaintiff’s complaint. This result would require the jury to
intervene in a dispute about academic standards.
“Courts have long recognized that matters of academic judgment are
generally better left to the educational institutions than to the judiciary and
have accorded great deference where such matters are at issue.” Mangla v.
Brown University, 135 F.3d 80, 84 (1st Cir. 1998). The rationale behind the
principle of academic deference is that “courts are ill-equipped to review the
largely subjective academic appraisals of the faculty.” Mauriello v. U. of Med. &
Dentistry of N.J., 781 F.2d 46, 50 (3d Cir. 1986). Therefore, as the Supreme
Court has observed, “[p]lainly, [judges] may not override [the faculty’s
professional judgment] unless it is such a substantial departure from accepted
academic norms as to demonstrate that the person or committee responsible
did not actually exercise professional judgment.” Regents of University of
Michigan v. Ewing, 474 U.S. 214, 225 (1985) (holding that “[w]hen judges are
asked to review the substance of a genuinely academic decision . . . they
should show great respect for the faculty’s professional judgment”).
In light of this well-established principle, we reject the plaintiff’s
argument and conclude that complaints about and reporting upon the
application of internal grading decisions by a private university do not
implicate public policy considerations necessary to support a wrongful
termination claim. Therefore, even assuming that SNHU constructively
discharged the plaintiff for refusing to alter two grades and raising ethical
concerns about such action, any such discharge would be based upon her
disagreement with an internal management decision devoid of any public policy
considerations. See Short, 136 N.H. at 85; see also MacKenzie, 158 N.H. at
481.
IV. Conclusion
For the foregoing reasons, we affirm the trial court’s order granting
summary judgment in favor of SNHU. Any issues that the plaintiff raised in
her notice of appeal, but did not brief, are deemed waived. State v. Bazinet,
170 N.H. 680, 688 (2018).
Affirmed.
MACDONALD, C.J., and HICKS and BASSETT, JJ., concurred.
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