By DAMIEN FISHER, InDepthNH.org
The former Department of Corrections officer fired after she alerted supervisors to dangerously low staffing conditions scored another win in court as her whistleblower lawsuit got the green light to proceed.
Claudia Cass has been fighting to get her job back on multiple fronts since she was ousted in 2023. On Friday, Merrimack Superior Court Judge Daniel St. Hilaire ruled against the DOC, which was trying to get her whistleblower lawsuit dismissed without a trial.
DOC lawyers tried to argue that violations of internal staffing rules and policies don’t rise to the level of violating a state or federal law, and therefore Cass could not claim whistleblower status. But St. Hilaire wrote that Cass’s understanding of the very real staffing emergency inside the State Prison for Men in Concord, and the fact she was fired after reporting it to her bosses, mean she is a whistleblower.
“Although internal DOC policies do not rise to the level of statutes or promulgated rules and regulations, [Cass’s] complaint satisfies the ‘good faith’ requirement because it demonstrates her honest belief that putting co-workers and the inmates at risk was a violation of the law,” St. Hilaire wrote. “In this case, [Cass] repeatedly and clearly communicated that incredibly low staffing levels were ‘unreasonably unsafe and that this situation needed to be rectified by the DOC.’ Upon review, the Court is not persuaded by the State’s argument that this is a case where the absence of public policy is so clear that the Court may determine as much as a matter of law.”
Cass sent an email to her superiors, including Warden Michelle Edmark, about the low staffing levels she strongly felt put people in danger in December of 2022. For her efforts, Cass was suspended, investigated, forced to undergo two psychological examinations, and then fired in August of 2023 by former Corrections Commissioner Helen Hanks.
Cass initially appealed her firing to the state’s Personnel Appeals Board, but the PAB denied her ruling, in part, it did not have the authority to weigh in on her whistleblower claim. In December, the New Hampshire Supreme Court ruled that the PAB is actually required to consider whistleblower claims as part of their duties.
“Contrary to its conclusion that it lacked jurisdiction to make such determinations, the PAB had authority and was therefore required to consider whether the personnel action on appeal violated those statutes for the limited purpose of determining whether to reinstate an employee,” Chief Justice Gordon MacDonald wrote.
Cass’ case was sent back to the PAB which is waiting to see what happens with her separate lawsuit filed in the Superior Court. Based on St. Hilaire’s ruling, Cass is likely to get her lawsuit in front of a jury.
In his Friday ruling, St. Hilaire also ruled that Cass can bring a wrongful termination claim against the DOC. The state tried to argue there is no proof Cass was fired in bad faith, but St. Hilaire wrote the facts don’t line up that way. He pointed to the two psychological examinations supervisors required after she was placed on leave.
“Although DOC concluded its investigation on March 1, 2023, the State nevertheless required that [Cass] submit to a psychological exam before returning to duty. Despite being determined fit for duty by her health care provider, the State thereafter required yet another psychological exam. After the independent examiner again found her fit for duty at the June 12, 2023 exam, the State waited until August 7, 2023—two months later—to terminate her employment. This prolonged timeline could reasonably be interpreted as evidence of bad faith,” St. Hilaire wrote. “[Cass’s] termination after twice being found fit for duty could be seen by a reasonable jury as retaliatory for reporting unsafe working conditions to her superiors.”
While Cass won on the whistleblower and wrongful termination claims, St. Hilaire ruled that both Edmark and Hanks are protected by sovereign immunity from Cass’s claims the pair intentionally inflicted emotional distress by their actions. St. Hilaire also ruled that the second psychological examination Cass was required to submit to does not support an invasion of privacy claim, though it does not look good for the DOC’s defense on the surviving claims.
“While this exam was duplicative, and arguably without purpose assuming [DOC] had no intention of allowing [Cass] to return to duty, these facts speak more to [Cass’s] wrongful termination claim than to an invasion of her privacy (especially in light of her being found fit for duty after both evaluations),” St. Hilaire wrote.