Carroll County has responded to a lawsuit by the former assistant director of nursing at Mountain View Community, the county nursing home.
In her lawsuit, Patti Cain claims she was improperly fired for being a whistleblower.
But the county’s legal counsel, Thomas Closson, has denied her claims and raises defenses in an answer filed Feb. 23.
“Ms. Cain’s employment with the county ended legitimately and lawfully as the result of the elimination of Cain’s position,” wrote Closson.
He denied 34 paragraphs out of Cain’s 44-paragraph lawsuit.
Cain, of Wolfeboro, had worked at Mountain View, for about a dozen years before being abruptly terminated in November of 2022.
She was third in line behind then-Administrator Dee Brown and Director of Nursing Sue Dodier.
Since Cain’s departure, Brown quit and was replaced by Rich Leboeuf.
At the time of Cain’s termination, she was told by county officials her position was being eliminated for budgetary reasons.
Cain filed suit in Carroll County Superior Court on Nov. 11. Benjamin King of Douglas, Leonard & Garvey in Concord is representing her.
Cain seeks a jury trial. She alleges the county wrongfully discharged and violated the Whistleblower Protection Act and a law pertaining to public employees’ freedom of expression. She seeks compensatory damages, reasonable attorneys fees and any other costs.
Closson replies Cain is not entitled to “any of the relief requested.”
The lawsuit says she had received positive feedback about her job performance until the fall of 2021. On Oct. 6, 2021, she attended a meeting about how county commissioners were planning to spend American Rescue Act funds. The commissioners revealed a plan to use most of the money to renovate the nursing home annex. Cain said the money would be better spent on staff salaries.
Shortly afterward, the commissioners met with Cain, Brown and Dodier. Commissioners Kimberly Tessari (R-Ossipee) and Matthew Plache (R-Wolfeboro), who have since both resigned, reprimanded Cain for her comments at the Oct. 6 meeting, states the lawsuit. Tessari and Plache have been replaced by Chuck McGee (R-Moultonborough) and Bill Nelson (R-Brookfield).
“The defendant punished Ms. Cain for exercising her public employee free speech rights, first reproving her and then ultimately firing her in violation of RSA98-E:2,” the lawsuit says.
Closson denies that Cain was fired for exercising her free speech rights. The answers are brief and don’t offer much if any explanation. The answer says Cain’s position was eliminated.
“Ms. Cain has not, and cannot, forge the necessary causal connection between her alleged expression of free speech and the elimination of her position,” wrote Closson in his statement of affirmative defenses.
In March of 2022, Cain told Human Sources Generalist Taylor Gun that the county “failed to follow COVID protocol” during an employee meeting about insurance benefits with New Hampshire Interlocal Trust.
According to the lawsuit paragraph 12, Human Resources Director Linda Matchett “summoned” Cain to a meeting at Brown’s office. Matchett reportedly told Cain the commissioners were concerned that Cain was “abrupt” with Gunn.
“Ms. Cain’s comments at the Oct. 6, 2021, public meeting continued to upset the commissioners, according to Ms. Matchett,” said the lawsuit’s paragraph 12.
Closson admits that Cain raised concerns about COVID protocols in relation to two meetings but denies the accusation in paragraph 12.
In paragraph 26 of the suit, Cain said the county told her in a Nov. 22 employment termination document that she wasn’t eligible for re-employment.
Closson replies she accurately cited the Nov. 22 document but that after that she was notified of at least one open position she was qualified for but that Cain didn’t apply for it. Closson doesn’t say what that position was.
“Ms. Cain has failed to adequately mitigate the damages she is now claiming,” said Closson in his statement of affirmative defenses.
In June of 2022, Cain complained about bark mulch being dumped in handicapped spaces near the front door. Two weeks later, Cain complained about it again and Brown allegedly told Cain to “focus on something else.”
Closson admits that Cain had concerns about bark mulch being unloaded in the parking lot and blocking a handicapped spot but denies other related allegations.
Cain also said she was not given proper notice of her termination nor afforded hearings she was entitled to.
According to the lawsuit, she was denied a hearing before the county’s personnel committee. The stated reason for her firing was budget reasons but money for her position remained through 2022.
Closson denies accusations Cain wasn’t given proper notice, and that she was entitled to a hearing and denies that funding remained for the position.
Cain also considers herself a whistleblower in paragraph 44.
“The defendant fired Ms. Cain because she reported acts and omissions that she reasonably believed violated laws or rules of the United States, the state of New Hampshire and/or a political subdivision of the state of New Hampshire, including the defendant’s violation of RSA 265:74-a, I (b) through its failure to clear an obstruction from a parking space reserved for a person with a walking disability, and the defendant’s failure to follow COVID-19 protocol in the conduct of employee meetings held on the defendant’s premises,” states the lawsuit.
Closson denies the accusations in paragraph 44.
“Ms. Cain has not and cannot establish any conduct by the County in violation of New Hampshire RSA 265:74-a, I (b), not can she establish any conduct by the County that would give rise to a reasonable belief of such a violation,” said Closson, adding the Cain can’t prove the county violated applicable COVID protocols and that her claims are barred by the “doctrine of laches” meaning that the allegations in the suit are too old to go to court.
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