THE STATE OF NEW HAMPSHIRE

MERRIMACK, SS.

SUPERIOR COURT

TERM~ 2008

I, WILLIAM S. McGRAW, Clerk of the Superior Court of the State of New Hampshire for

the County of Merrimack, the same being a court of record having a seal, do hereby certify that I am

the lawful custodian of the seal, files, records and proceedings of said Court, and also of the files and

records of the Supreme Judicial Court, the Court of Common Pleas, the Superior Court of Judicature,

the Circuit Court and the Supreme Court, heretofore existing in said State and that I am by law the

proper person to make out and certify copies thereof. And I further certify that annexed hereto

is a full and true copy of the docket sheet, writ of summons and all other

pleadings filed in the matter of Civil No. 08-C-0040, entitled "Janice A.

Witterschein vs. Orion House, Inc.", entered into the Merrimack County

Superior Court on January 29, 2008, and which has been removed to the

United States District Court for the State of New Hampshire,

AND IT IS SO CONSIDERED.

In Testimony Whereof, I, in my official capacity, have hereuntq set my

hand and affixed the seal of said Court, this .. ATB day

of. .. Ma.:r:ch " A. D.,XOO.2008

~/7/ ..~h"",~ '~~~"~e.- Clerk.

8&846577

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 1 of 31
INDEX

Janice A. Witterschein vs. Orion House, Inc. 08-C-040

Docket No.

Document # Document ,- Cash $ ..•..•.........••.•......••• Exhibits0

!5

(g

1. 1/29/08 - Unserved Writ of Summons ret: 3/4/08 Nancy Richards-Stower, Esq. JURY

A0G-601-245 (Rev. 12/93)

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 2 of 31
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

v.

Orion House, Inc.,

Defendant

Janice A. Witterschein,

Plaintiff

lOCH NJ\R - 3 ..6, 8: l~1 i

Civil Action No. I:08-cv-000

)

)

)

)

)

)

)

)

--------)

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that pursuant to 28 U.S.c. §§ 1441 and 1446, Defendant

ORION HOUSE, INC., by and through its attorneys, DEVINE, MILLIMET & BRANCH, P.A.,

hereby removes this action from the Superior Court of the State of New Hampshire, Merrimack

County, to the United States District Court for the District of New Hampshire. In support ofthis

Notice of Removal, Defendant states as follows:

1. By Writ of Summons dated January 25, 2008, and returnable the first Tuesday of

March 2008, in Merrimack County Superior Court, Janice A. Witterschein instituted suit against

Orion House, Inc. A copy of Plaintiff s Writ of Summons is attached hereto as Exhibit A (a

certified original to be forwarded upon receipt of same from Merrimack County Superior Court).

2. Pursuant to 28 U.S.C. § 1446(a), this notice of removal is timely filed within

thirty (30) days of February 4,2008, the date on which Defendant's counsel accepted service of

process on behalf of Defendant.

3. This Court has original jurisdiction over this action by virtue of federal question

jurisdiction pursuant to 28 U.S.C. § 1331. Specifically, the Plaintiff alleges failure to pay wages

in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201-216, and NH RSA 275.

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 3 of 31
4. As this action could have been commenced in this Court, removal is proper.

28 U.S.c. §1441(a). Furthermore, this Court may exercise supplemental jurisdiction over the

Plaintiffs state law claims. See 28 U.S.c. § 1367(a).

5. The requirements of the removal statute having been met, Defendant's right to

remove is absolute. lA Moore's Federal Practice 0.157 [1-3] p. 44.

Respectfully Submitted,

ORlaN HOUSE, INC.,

By its attorneys,

DEVINE, MILLIMET & BRANCH, P.A.,

Date: February 29, 2008 By: IslDebra Weiss Ford

Debra Weiss Ford (NHBA No. 2687)

216 Lafayette Road, Suite 103

North Hampton, NH 03862

603.964.4990

dford@devinemillimet.com

Certificate of Service

I hereby certify that a copy of the foregoing was served via Conventional Filing on:

Nancy Richards-Stower, Esq., 32 Daniel Webster Highway, Suite 7, Merrimack, NH, 03054,

counsel for Plaintiff.

Date: February 29,2008

2

IslDebra Weiss Ford

Debra Weiss Ford

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 4 of 31
MERRIMACK COUNTY

ID4e~tate nf Ne m 1hiamp,64ire

SUPERIOR COURT

WRIT OF SUMMONS

( ) COURT

~JURY

Janice A. Witterschein

316 North Village Road

Loudon, N.H. 03307

v. Orion House, Inc.

'P.O. Box 25

139 Elm Street

Newport, NIl 03773

The Sheriff or Deputy of any County is ordered to summon each dete:'danl 10Iile a wrillen appearance W"');he

Superior Court al the address listed below by the retum day of thiS Wnlwhlch ISf!l&firsl I~esday of ~0Nni ?008

YEAR

The PLAINTIFF(S) state(s):

Please see attached sheets

and the Plaintiff(s) claim(s) damages within the jurisdic,ionallimits of this Court.

~, i

I -..;'(':)-ot

DA, •..or WRIT

, NOTICE TO THE DEFENr,\e,m

The Plaintiff listed above has begun legal action against you, YOl.! do not have to ph;/sicatiy appaar in Court'on'the ratum day listed above since there will be no healing

on that da;'. However, if you intend to contest this matter, you or your attorney must life a writien apPearance form'with !tie Clerk's Office by that date. (Appearance forms

may be obtained from the Clerk's Office.) You will then receive notice from the Court of all proceedings concerning this case. If you fail to file an appearance by the return day, judgment wiu be entered against you for a sum of money which you will then bs obligated 10 pay.

Witness, ROBERT J. lYNN, Chief Justice, Superior Court.

~L?l/~

William S. McGraw, Clerk

NH Superior Court Merrimack County

PO Box 2880 '

Concord, NH 03302-2880

(603) 225-5501

&trt- T

O)D51( / tfJ]-J/1 ~J3/d-.

PHONE

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 5 of 31
STATE OF NEW HAMPSHIRE

SUPERIOR COURT

COUNrY OF MERRIMACK

Janice A. Witterschein

316 North Village Road

Loudon, N.H. 03307

v.

Orion House, Inc.

P.O. Box 25

139 Elm Street

Newport, NH 03773

January 2008

COUNT I. WRONGFUL TERMINATION

1. Plaintiff is an adult female who presently resides at 316 North Village Road,

Loudon, N.H. 03307.

2. Upon information and belief, defendant is a not for profit corporation with a

principal place of business at 139 Elm Street, Newport, N.H.

3. Defendant provides services to male youths and their families including, in the

areas of behavioral problems, school problems and substance abuse.

3. From October 2002, when she was hired as a Residential Counselor, until her

wrongful termination on February 16, 2006, at which time she was working as a Case

Manager, plaintiff was employed by defendant.

4. In 2003, Plaintiff was a salaried employee, but had no direct supervision over

anyone.

5. In 2003, plaintiff often worked in excess of 40 hours per week, some weeks

working more than 80 hours and 120 hours per week. Plaintiff was not always paid

overtime for these hours.

6. In 2004, sometimes plaintiff worked less than 40 hours per week because (1)

her mother was terminally ill and she provided health care and transportation to medical

appointments for her mother; and (2) because she was in an abusive relationship with

defendant's then past- program director.

7. However, no warnings were issued to her for those weeks when she worked

less than 40 hours.

8. For years, including in 2006, plaintiff's vacation pay was "docked" by

defendant's Executive Director, Laurie Larkin.

1

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 6 of 31
9. In January 2006, plaintiff questioned her direct supervisor, Nina Albano,

defendant's Program Director, regarding the legality of "docking" plaintiff's vacation

pay.

10. Albano said it was legal and because plaintiff was on salary, stating to the

plaintiff words to the effect that "the vacation hours had to be taken for insurance

purposes."

11. Plaintiff discussed the pay issue with Albano again, including on February 7,

2006, and asking whether when she worked more than 40 hours per week, if "comp time"

or "straight time pay" would be provided, noting that she did not understand how pay

could be taken away when she worked less than 40 hours a week, but not provided to her

when she worked more than 40 hours a week. Albano directed her to speak with

Executive Director Larkin about these issues.

12. On February 13, 2006, plaintiff met with Executive Director Larkin to ask

whether the 13.33 hours of overtime plaintiff had accumulated would be paid as "comp

time" or "straight time". Larkin told the plaintiff that the answer was "neither," because

plaintiff was a salaried employee.

13. Plaintiff protested that it was not fair to take away salary for hours not

worked, but to not credit her with additional hours worked in other weeks. . Larkin

responded, " Give me a break, Jan. I don't always dock your vacation! I don't do it every

time, but perhaps I should now. I can't believe you are having this discussion with me on

a Monday morning!"

14. Plaintiff asked Larkin if her actions were legal and she replied tersely, "Yeah,

Jan, it is legal. Call Joyce and ask her. She will tell you!" Larkin was apparently

referring to Joyce Galloway, who performed bookkeeping services for defendant and its

related program, "Orien Preventative Intervention & Education" ("OPIE").

15. Plaintiff asked Larkin why she was so defensive and she repeated, "Call,

Joyce, she will tell you. "

16. Plaintiff responded that she would call her attorney, instead.

17. Larkin hollered, "Oh, NOW, you're telling me you're going to get an attorney,

Jan!"

18. Plaintiff responded, "No, I'm not going to get an attorney, I have an attorney I

can ask." To which Larkin retort~ "Whatever, Jan. I am not having this discussion with

you," at which point Larkin left her own office, leaving plaintiff sitting alone in Larkin's

office.

2

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 7 of 31
19. Later that same day, plaintiff asked for copies of her performance reviews.

Reviewing what was provided, she noted that there was no typed review from a "follow

up" review she had undergone and she asked Albana (Program Director) for it

20. In response, Nina Albano, the Program Director said, "Oh, you want that,

too?" and returned to plaintiff within a couple of hours with that review document on

which Albano had signed plaintiff's name, and Larkin had also dated it. Plaintiff said to

Albano, "That is NOT my signature, I can't believe you signed [my name to] this!"

21. On February 14,2006, plaintiff, in writing, requested a complete copy of her

personnel file. Larkin replied that she would do the photocopying. When she returned

with copies of documents, plaintiff asked to compare the pile she was handed with the

originals in her file.

22. On Thursday, February 16,2006, Larkin called plaintiff into her office and

handed her two checks, stating, II I am paying you back all vacation time and this week's

check; and I am also laying you off, effective, immediately. II

23. Shocked, plaintiff asked, "That is it? Are there papers with reasons or

something to sign?"

24. Larkin responded, "No, we just need your keys and pager. Any questions?"

25. Stunned, plaintiff asked if she could retrieve her personal belongings from her

office.

26. Later, plaintiff asked Albano what would defendant say to the children with

whom plaintiff had been working. Albano told plaintiff to tell her what she wanted

defendant to say, or, to tell the children, herself. Plaintiff declined because she refused to

lie to the children, and it would have upset the children to be told the truth: that plaintiff

was fired for questioning illegal payroll practices of defendant.

27. Upon information and belief, the children were told that plaintiff was gone

because of "a personality conflict;" and her staff colleagues were told that she "had been

laid off."

28. Plaintiff learned that after her complaint about her vacation time being

docked, the Treatment Coordinator reported that defendant had returned to him all of his

vacation time, also, and that defendant had been docking him. Defendant had told the

Treatment Coordinator that they had not known their actions were illegal.

29. A Department of Employment Security employee told the plaintiff that

defendant had reported to DES that plaintiff's position had been eliminated for fiscal

reasons and because that plaintiff had threatened to sue defendant; i.e., DES personnel

had spoken to both Laurie Larkin and Joyce Galloway and that one of them had reported

to DES that, "She [plaintiff] threatened to sue us after questioning her benefits. II

3

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 8 of 31
30. At the time they terminated plaintiffs employment, it had an open and unfilled

position for Residential Counselor for which plaintiff was fully qualified and already

trained.

31. At the time of her termination, plaintiff was being paid $557.69 per week,

plus benefits, including medical insurance, sick days, holiday pay aud vacation pay. In

addition, plaintiff planned to, and had so informed defendant that she wanted to sign up

for the defendant's 401(k) plan, to which defendant was obligated to make contributions

on behalf of the plaintiff; and plaintiff planned to return to school by enrolling in Antioch

University New England, in Keene, New Hampshire because the defendant had promised

to pay half her tuition. Plaintiff lost this pay and these benefits because of her

termination.

32. It is the public policy of New Hampshire that all pay and benefit rules be

clearly published to employees, and that employees be able to question errors in pay

practices, be they inadvertent, or purposeful, legal or illegal without retaliation by the

employer.

33. It is against the public policy of New Hampshire to retaliate against an

employee for questioning the pay practices of her employee.

34. It is the public policy of New Hampshire that an employee can seek legal

counsel relative to questions she has about the computation of her wages and benefits

without retaliation by the employer.

35. It is against the public policy of New Hampshire for an employer to retaliate

against an employee for seeking legal counsel relative to the employer's methods of

computing wages and benefits.

36. It is the public policy of New Hampshire for an employee to sign her own

name and date on personnel documents requesting the employee's signature.

37. It is against the public policy of New Hampshire for an employer to forge an

employee's name on any document.

38. It is against the public policy of New Hampshire for an employer to retaliate

against an employee for protesting the employer's forging of her name on documents.

39. Defendant terminated plaintiffs employment in material part, because she

raised questions about the legality of defendant's wage and benefits computations.

40. Defendant terminated plaintiffs employment, in material part, because she

informed defendant she was seeking the advice of counsel relative to her wage and

benefits.

4

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 9 of 31
41. Defendant tenninated plaintiffs employment in material part because she

expressed displeasure that the employer had forged her name and date on a personnel

document

42. As the result of herjob loss, plaintiff suffered lost wages, lost benefits, loss of

enjoyment of life, humiliation, anxiety about her economic situation and related

discomfort and she seeks all the remedies available to her in thisforum.

43. Because defendant's actions were retaliatory and done with malice, plaintiff

seeks enhanced compensatory damages in·addition to all other damages available to her

in this forum.

COUNT II: UNPAID OVERTIME

44. All prior allegationsare incorporated by reference.

45. Plaintiff was paid a salary but was not exemptfrom overtime.

46 Plaintiff worked over 40 hours on one or more weeks but was not paid

time and a half and/or any other remuneration for the overtime worked. This non

payment was willful and without good cause under both RSA 275:44, IV and the Fair

Labor Standards Act

47. Failure to pay overtime for over 40 hours worked violates the wage laws

of New Hampshire and the United Statesincluding, but not limited to:

a. RSA 279:21, VITI; and

b. the Fair Labor Standards Act, 29 u.s.e. § 201, et see, including, but not

limited to, the overtime provisions of 29 use 206.

48. Plaintiff claims all damages available to her

a. under state law, including, but not limited to, her unpaid overtime,

at time and a half, doubled, as liquidated damages and her attorney fees pursuant to RSA

279:29 and RSA 275:44, IV; and

b. under federal law, including, but not limited to, her unpaid

overtime, at time and a half, doubled, due to willfulness, and her attorney fees pursuant to

29 use 216(b).

COUNT III: REf ALIATION

49. All prior allegations are incorporated by reference.

5

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 10 of 31
50. Plaintiff was retaliated against because she :fIled an oral complaint about

not being paid her overtime wages.

51 Plaintiffs retaliatory termination was motivated, in principal part, willfully

and maliciously and oppressively because of her complaint concerning unpaid overtime

wages in violation of 29 USC 215(a)(3).

52. Plaintiff claims all damages available to her, including, but not limited to,

and front pay, punitive damages, compensatory damages and attorney fees pursuant to 29

USC216(b).

6

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 11 of 31
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

v.

Orion House, Inc.,

Defendant

Janice A. Witterschein,

Plaintiff

zona HAR - 3 /6., 8: 41'

)

)

)

)

)

)

)

)

--------.)

NOTICE OF FILING OF NOTICE OF REMOVAL TO SUPERIOR COURT

TO: William S. McGraw, Clerk

Merrimack County Superior Court

P.O. Box 2880

Concord, NH 03302-2880

Take notice that pursuant to 28 U.S.C. §1446, Defendant ORION HOUSE, INC. has this

day filed in the Clerk's Office of the United States District Court for the District of New

Hampshire, Concord, New Hampshire, a Notice of Removal of this case, as shown by copy

attached, and in accordance with the above statute, the State Court should proceed no further

herein unless and until the case is remanded.

Respectfully Submitted,

ORION HOUSE, INC.,

By its attorneys,

DEVINE, MILLIMET & BRANCH, P.A.,

Date: February 29,2008 By: OC:

Debra Weiss Ford (NHBA No. 2687)

216 Lafayette Road, Suite 103

North Hampton, NH 03862

603.964.4990

dford@devinemillimet.com

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 12 of 31
Certificate of Service

I hereby certify that a copy of the foregoing was served via Conventional Filing on:

Nancy Richards-Stower, Esq., 32 Daniel Webster Highway, Suite 7, Merrimack, NH, 03054,

counsel for Plaintiff.

Date: February 29, 2008

2

LY

Debra Weiss Ford

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 13 of 31
THE STATE OF NEW HAMPSHIRE

SPECIAL APPEARANCE/WITHDR.\ \V/\L

COUNTY OF MERRIMACK

[ ] COURT

[x] JURY

SUPERIOR COURT

DOCKET NO. 08-C-040

Janice A. Witterschein

316 North Village Road

Loudon, NH 03307

Returnable on the first Tuesday of March 2008

SPECIAL APPEARANCE

v. Orion House, Inc.

139 Elm Street

Newport, NH 03773

WITHDRAWAL

Please enter my special appearance as:

[x] counsel for: ORION HOUSE, INC.

[] Pro se

Please withdraw my appearance as~

[ ] counsel for:

Notice of withdrawal sent to my

c1ient(s) on:

At the following address:

I hereby certify that duplicates of this notice were this day [ ] delivered [x] mailed to:

Nancy Richards-Stower, Esq.

32 Daniel Webster Highway, Suite 7

Merrimack, NH 03054

Date:

Signed:

Address:

February 29,2008

Devine, Millimet & Branch, P.A.

216 Lafayette Road, Suite 103

North Hampton, NH 03862

3:z

:1"1 :::c

n:::~(,l)

c·.-.::::~,=

-::,.'- ~",~:r -··t'i

;-_....:: ~-!~~ c:=:

••.1 r''' ~'•..••... ~.J

;.-~~~ ::.~(3

:,_., C-J ::::]

;::~§.~l~;

-....•.• .r--

,h,,'_ ..••.•_

-;;.7.]

-(-I

.....•

=>

=

=

3:

:Jo>

::0

I

W

»

:0

Telephone: 603.964.4990

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 14 of 31
MERRIMACK, SS.

THE STATE OF NEW HAMPSHIRE

Janice A. Witterschein

316 North Village Road

Loudon, NH 03307

v.

Orion House, Inc.

P.O. Box 25

139 Elm Street

Ne\vport, NH 03773

ACCEPTANCE OF SERVICE

SUPERIOR COURT

The undersigned, Debra Weiss Ford, Esq., counsel for Defendant, ORION HOUSE,

INC., hereby voluntarily accepts service of process in the above-entitled matter on behalf of the

Defendant, and waives any and all defenses based on the lack of for alities of service.

Date: February 5, 2008

Deb a eiss Ford

Devine, Millimet & Branch, P.A.

216 Lafayette Road, Suite 103

North Hampton, NH 03862

603.964.4990

3:::.:

fY"j:J.:

c-) :::.:~~("n

: -....,.::.'.: c:_~

""~"-"1

'::'.:';' Ji';

--, ...•..~.'

- .'~ .,-•....

..~~::; ~'~9

",,' ("") ..-:.J

:-:.::::c.:) ("')

:::::c:: c.)

2:C:

-r::.::a

-<-1

•....•

<=

=

=

..,.,

rT1

c::.o

J>

w

w

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 15 of 31
DEVIN~ILLIMET

ATTORNEYS AT LAW

February 5, 2008 DEBRA WEISS FORD

603.964.4990

DFORD@DEVlNEMILLIMET.COM

Nancy Richards-Stower, Esq.

Law Offices of Nancy Richards-Stower

Suite #7, Harris Pond Office Park

32 Daniel Webster Highway·

Merrimack, NH 03054

Re: Janice Witterschein v. Orion House, Inc.

Dear Nancy:

Thankyou for forwardinga courtesy copy of the Writ of Summons in this matter. As we agreed,

I enclose an Acceptance of Service on behalf of Orion House, Inc. Thank you.

, c~"J

,'--"'J ••.. -;; •••• _T ••• .••..- ...•.....,~)

Sincerely,

Enclosure

DWF:ijd

DEVINE, MILLIMET

& BRANCH

PROFESSIONAL

ASSOCIATION

216 LAFAYETTE ROAD

SUITE 103

NORTH HAMPTON

NEW HAMPSHIRE 03862

T 603.964.4990

F 603.964.4997

DEVI N EMI LLiMET. COM

MANCHESTER, NH

ANDOVER, MA

CONCORD, NH

NORTH HAMPTON, NH

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 16 of 31
MERRIMACK, SS. SUPERIOR COURT

DATE: January 29,2008

DOCKET NUMBER: 08-C-040

Janice A. Witterschein

v.

Orion House, Inc.

RECEIPT OF WRIT

-.-...".. J.:..~._

r-.••.•-'\""-

I';~

cJ~Cf)

c:.)=-~~=

•.....•

=

=

=

...0

w

w

The writ in the above-captioned matter was filed with the Clerk of this Court on January

29, 2008 at 8:07 a.m.

The plaintiff or his/her attorney is to attach a copy of this receipt to identical copies of the

original writ and deliver them to the sheriff or other legally authorized entity for service on each

named defendant. Sufficient copies shall be provided to allow for a service copy for each named

defendant and a copy for each officer completing service to complete the return. The return

copies shall be filed with the court in accordance with N.H. Superior Court Rule 3.

By Order of the Court

William S. McGraw, Clerk

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 17 of 31
W4£~tat£ of N£w1!;amps4irr

SUPERIOR COURT

MERRIMACK COUNTY ( ) COURT

~JURY

Janice A. Witterschein

316 North Village Road

Loudon, N.H. 03307

WRIT OF SUMMONS

v. Orion House, Inc.

·P.O.Box25

139 Elm Street

Newport, NH 03773

The Sheriff or Deputy of any County is ordered to summon each defendant to file a written appearance with the

Superior Court at the address listed below by the return day of this writ which is .the first, Tuesday of March

7008 . '. MONTH

YEAR

The PLAINTIFF(S) state(s):

Please see attached sheets

and the Plaintiff(s) claim(s) damages within the jurisdic)onallimits of this Court.

I

1 .• :('5 -() t

DATE OF WRIT

NOTICE TO THE DEFENDANT

The Plaintiff listed above has begun legal action against you. You do not have to physically appear in Court on the relum day listed above since there will be no hearing

on that day. However, if you intend to contest this matter. you or your attorney must file a written appearance form with the Clerk's Office by that date. (Appearance forms

may be obtained from the Clerk's Office.) You will then receive notice from the Court of all proceedings concerning this case. If you fail to file an appearance by the return

day, judgment will be entered against you for a sum of money which you will then be obligated to pay.

~

ftivJiO.J . vj "'~UrtA.../

SIGNATU~lAJN TTOR~E

tvAN U.1··Al-DJ- S1"Ow'CftPRINTED . PED NAME

Witness, ROBERT J. lYNN, Chief Justice, Superior Court.

Y~J?l/~

William S. McGraw, Clerk

NH Superior Court Merrimack County

PO Box 2880

Concord, NH 03302-2880

(603) 225-5501

32-J)t1JiIU k;u~kr ttu'7

ADDRESS

/Y)eJYJrnLU(,.- NI.J Q305l[

I

/ tOj-ttJ ~JJ/d.

PHONE

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 18 of 31
STATE OF NEW HAMPSHIRE

SUPERIOR COURT

COUNTY OF MERRIMACK

Janice A. Witterschein

316 North Village Road

Loudon, N.H. 03307

v.

Orion House, Inc.

P.O. Box 25

139 Elm Street

Newport, NH 03773

January 2008

en

9?

w

COUNT I. WRONGFUL TERMINATION

1. Plaintiff is an adult female who presently resides at 316 North Village Road,

Loudon, N.H. 03307.

2. Upon information and belief, defendant is a not for profit corporation with a

principal place of business at 139 Elm Street, Newport, N.H.

3. Defendant provides services to male youths and their families including, in the

areas of behavioral problems, school problems and substance abuse.

3. From October 2002, when she was hired as a Residential Counselor, until her

wrongful termination on February 16, 2006, at which time she was working as a Case

Manager, plaintiff was employed by defendant.

4. In 2003, Plaintiff was a salaried employee, but had no direct supervision over

anyone.

5. In 2003, plaintiff often worked in excess of 40 hours per week, some weeks

working more than 80 hours and 120 hours per week. Plaintiff was not always paid

overtime for these hours.

6. In 2004, sometimes plaintiff worked less than 40 hours per week because (1)

her mother was terminally ill and she provided health care and transportation to medical

appointments for her mother; and (2) because she was in an abusive relationship with

defendant's then past- program director.

7. However, no warnings were issued to her for those weeks when she worked

less than 40 hours.

8. For years, including in 2006, plaintiff's vacation pay was "docked" by

defendant's Executive Director, Laurie Larkin.

1

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 19 of 31
8. For years, including in 2006, plaintiff's vacation pay was "docked" by

defendant's Executive Director, Laurie Larkin.

9. In January 2006, plaintiff questioned her direct supervisor, Nina Albano,

defendant's Program Director, regarding the legality of "docking" plaintiffs vacation

pay.

10. Albano said it was legal and because plaintiff was on salary, stating to the

plaintiff words to the effect that "the vacation hours had to be taken for insurance

purposes."

11. Plaintiff discussed the pay issue with Albano again, including on February 7,

2006, and asking whether when she worked more than 40 hours per week, if "comp time"

or "straight time pay" would be provided, noting that she did not understand how pay

could be taken away when she worked less than 40 hours a week, but not provided to her

when she worked more than 40 hours a week. Albano directed her to speak. with

Executive Director Larkin about these issues.

12. On February 13, 2006, plaintiff met with Executive Director Larkin to ask

whether the 13.33 hours of overtime plaintiff had accumulated would be paid as "comp

time" or "straight time". Larkin told the plaintiff that the answer was "neither," because

plaintiff was a salaried employee.

13. Plaintiff protested that it was not fair to take away salary for hours not

worked, but to not credit her with additional hours worked 'in other weeks. Larkin

responded, " Give me a break, Jan. I don't always dock your vacation! I don't do it every

time, but perhaps I should now. I can't believe you are having this discussion with me on

a Monday morning!"

14. Plaintiff asked Larkin if her actions were legal and she replied tersely, "Yeah,

Jan, it is legal. Call Joyce and ask her. She will tell you! II Larkin was apparently

referring to Joyce Galloway, who performed bookkeeping services for defendant and its

related program, "Otien Preventative Intervention & Education" ("OPIE").

15. Plaintiff asked Larkin why she was so defensive and she repeated, "Call,

Joyce, she will tell you."

16. Plaintiff responded that she would call her attorney, instead.

17. Larkin hollered, "Oh, NOW, you're telling me you're going to get an attorney,

Jan!"

18. Plaintiff responded, "No, I'm not going to get an attorney, I have an attorney I

can ask." To which Larkin retorted, "Whatever, Jan. I am not having this discussion with

you," at which point Larkin left her own office, leaving plaintiff sitting alone in Larkin's

office.

2

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 20 of 31
19. Later that same day, plaintiff asked for copies of her performance reviews.

Reviewing what was provided, she noted that there was no typed review from a "follow

up" review she had undergone and she asked Albana (Program Director) for it

20. In response, Nina Albano, the Program Director said, "Oh, you want that,

too?" and returned to plaintiff within a couple of hours with that review document on

which Albano had signed plaintiffs name, and Larkin had also dated it. Plaintiff said to

Albano, "That is NOT my signature, I can't believe you signed [my name to] this!"

21. On February 14,2006, plaintiff, in writing, requested a complete copy of her

personnel file. Larkin replied that she would do the photocopying. When she returned

with copies of documents, plaintiff asked to compare the pile she was handed with the

originals in her file.

22. On Thursday, February 16, 2006, Larkin called plaintiff into her office and

handed her two checks, stating, " I am paying you back all vacation time and this week's

check; and I am also laying you off, effective, immediately."

23. Shocked, plaintiff asked, "That is it? ATe there papers with reasons or

something to sign?"

24. Larkin responded, "No, we just need your keys and pager. Any questions?"

25. Stunned, plaintiff asked if she couId retrieve her personal belongings from her

office.

26. Later, plaintiff asked Albano what would defendant say to the children with

whom plaintiff had been working. Albano told plaintiff to tell her what she wanted

defendant to say, or, to tell the children, herself. Plaintiff declined because she refused to

lie to the children, and it would haveupse1: the children to be told the truth: that plaintiff

was fired for questioning illegal payroll practices of defendant.

27. Upon information and belief, the children were told that plaintiff was gone

because of "a personality conflict;" and her staff colleagues were told that she "had been

laid off."

28. Plaintiff learned that after her complaint about her vacation time being

docked, the Treatment Coordinator reported that defendant had returned to him ail of his

vacation time, also, and that defendant had been docking him. Defendant had told the

Treatment Coordinator that they had not known their actions were illegal.

29. A Department of Employment Security employee told the plaintiff that

defendant had reported to DES that plaintiffs position had been eliminated for fiscal

reasons and because that plaintiff had threatened to sue defendant; i.e., DES personnel

3

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 21 of 31
had spoken to both Laurie Larkin and Joyce Galloway and that one of them had reported

to DES that, "She [plaintiff) threatened to sue us a~er questioning her benefits. "

30. At the time they terminated plaintiffs employment, it had aD.open and unfilled

position for Residential Counselor for which plaintiff was fully qualified and already

trained.

31. At the time of her termination, plaintiff was being paid $557.69 per week,

plus benefits, including medical insurance, sick days, holiday pay and vacation pay. In

addition, plaintiff planned to, and had so informed defendant that she wanted to sign up

for the defendant's 401(k) plan, to which defendant was obligated to make contributions

on behalf of the plaintiff; and plaintiff planned to return to school by enrolling in Antioch

University New England, in Keene, New Hampshire because the defendant had promised

to pay' half her tuition. Plaintiff lost this pay and these benefits because of her

termination.

32. It is the public policy of New Hampshire that all pay and benefit rules be

clearly published to employees, and that employees be able to question errors in pay

practices, be they inadvertent, or purposeful, legal or illegal without retaliation by the

employer.

33. It is against the public policy of New Hampshire to retaliate against an

employee for questioning the pay practices of her employee.

34. It is the public policy of New Hampshire that an employee can seek legal

counsel relative to questions she has about the computation of her wages and benefits

without retaliation by the employer.

35. It is against the public policy of New Hampshire for an employer to retaliate

against an employee for seeking legal counsel relative to the employer's methods of

computing wages and benefits.

36. It is the public policy of New Hampshire for an employee to sign her own

name and date on personnel documents requesting the employee's signature.

37. It is against the public policy of New Hampshire for an employer to forge an

employee's name on any document.

38. It is against the public policy of New Hampshire for an employer to retaliate

against an employee for protesting the employer's forging of her name on documents.

39. Defendant terminated plaintiff's employment in material part, because she

raised questions about the legality of defendant's wage and benefits computations.

4

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 22 of 31
40. Defendant terminated plaintiffs employment, in material part, because she

informed defendant she was seeking the advice of counsel relative to her wage and

benefits.

41. Defendant terminated plaintiffs employment in material part because she

expressed displeasure that the employer had forged her name and date on a personnel

document.

42. As the result of her job loss, plaintiff suffered lost wages, lost benefits, loss of

enjoyment of life, humiliation, anxiety about her economic situation and related

discomfort and she seeks all the remedies available to her in this forum.

'43. Because defendant's actions were retaliatory and done with malice, plaintiff

seeks enhanced compensatory damages in addition to all other damages available to her

in this forum.

COUNT II: UNPAID OVERTIME

44. All prior allegations are incorporated by reference.

45. Plaintiff was paid a salary but was not exempt from overtime.

46 Plaintiff worked over 40 hours on one or more weeks but was not paid

time and a half and/or any other remuneration for the overtime worked. This non

payment was willful and without good cause under both RSA 275:44, Nand the Fair

Labor Standards Act

47. Failure to pay overtime for over 40 hours worked violates the wage laws

of New Hampshire and the United States including, but not limited to:

a RSA 279:21, VITI; and

b. the Fair Labor Standards Act, 29 U.S.C. § 201, et see, including, but not

limited to, the overtime provisions of 29 use 206.

48. Plaintiff claims all damages available to her

a. under state law, including, but not limited to, her unpaid overtime,

at time and a half, doubled, as liquidated damages and her attorney fees pursuant to RSA

279:29 and RSA 275:44, N;and

b. under federal law, including, but not limited to, her unpaid

overtime, at time and a half, doubled, due to willfulness, and her attorney fees pursuant to

29 use 216(b).

5

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 23 of 31
50. Plaintiff was retaliated against because she :fIled an oral complaint about

not being paid her overtime wages.

51 Plaintiff's retaliatory termination was motivated, in principal part, willfully

and maliciously and oppressively because of her complaint concerning unpaid overtime

wages in violation of 29 USC 215(a)(3).

52. Plaintiff claims all damages available to her, including, but not limited to,

and front pay, punitive damages, compensatory damages and attorney fees p.ursuant to 29

USC216(b).

6

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 24 of 31
MERRIMACK COUNTY

ijJlp~~tatc of Ncw 1h;ampa4trc

SUPERIOR COURT

( ) COURT

~JURY

WRIT OF SUMMONS

Janice A. Witterschein

316 North Village Road

Loudon, N.H. 03307

v. Orion House, Iilc.

P.O. Box 25

139 Elm Street

Newport, NH 03773

The Sheriff or Deputy of any County is ordered to summon each defendant to file a written appearance with the

Superior Court at the address listed below by the return day of this writ which is the first Tuesday of March

')008 MONTH

YEAR

The PLAINTIFF(S) state(s):

Please see attached sheets

I -..J'5 -0 t

DATE OF WRIT

~cLu.,

(sign and print nam

and the Plaintiff(s) claim(s) damages within the jurisdic ionallimits of this Court.

NOTICE TO THE DEFENDANT

The Plaintiff listed above has begun legal action against you. You do not have to physically appear in Court on the retum day listed above since there will be no hearing

on that day. However, if you intend to contest this matter, you or your attorney must file a written appearance form with the Clerk's Office by that date. (Appearance forms

may be obtained from the Clerik's Office.) You will then receive notice from the Court of all proceedings concerning this case. If you fail to file an appearance by the return

day, judgment will be entered against you for a sum of money which you will then be obligated to pay.

Witness, ROBERT J. LYNN, Chief Justice, Superior Court.

'~f?lJ~

William S. McGraw, Clerk

NH Superior Court Merrimack County

PO Box 2880

Concord, NH 03302-2880

(603) 225-5501

213-003-5

32...'J)(l,h/'U lVUl/:lk,-- Hl.c.y

ADDRESS

!YJcmfYl4-Ut..- NI1 0)05'{

SL-,~l-

/ to3 - JtJ ~ 331d..

PHONE

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 25 of 31
STATE OF NEW HAMPSHIRE

SUPERIOR COURT

COUNTY OF MERRIMACK

Janice A. Witterschein

316 North Village Road

Loudon, N.H. 03307

v.

Orion House, Inc.

P.O. Box 25

139 Elm Street

Newport, NH 03773

January 2008

J>

0,

--J

COUNT I. WRONGFUL TERMINATION

1. Plaintiff is an adult female who presently resides at 316 North Village Road,

Loudon, N.H. 03307.

2. Upon information and belief, defendant is a not for profit corporation with a

principal place of business at 139 Elm Street, Newport, N.H.

3. Defendant provides services to male youths and their families including, in the

areas of behavioral problems, school problems and substance abuse.

3. From October 2002, when she was hired as a Residential Counselor, until her

wrongful termination on February 16, 2006, at which time she was working as a Case

Manager, plaintiff was employed by defendant.

4. In 2003, Plaintiff was a salaried employee, but had no direct supervision over

anyone.

5. In 2003, plaintiff often worked in excess of 40 hours per week, some weeks

working more than 80 hours and 120 hours per week. Plaintiff was not always paid

overtime for these hours.

6. In 2004, sometimes plaintiff worked less than 40 hours per week because (1)

her mother was terminally ill and she provided health care and transportation to medical

appointments for her mother; and (2) because she was in an abusive relationship with

defendant's then past- program director.

7. However, no warnings were issued to her for those weeks when she worked

less than 40 hours.

8. For years, including in 2006, plaintiff's vacation pay was "docked" by

defendant's Executive Director, Laurie Larkin.

1

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 26 of 31
9. In January 2006, plaintiff questioned her direct supervisor, Nina Albano,

defendant's Program Director, regarding the legality of "docking" plaintiff's vacation

pay.

10. Albano said it was legal and because plaintiff was on salary, stating to the

plaintiff words to the effect that "the vacation hours had to be taken for insurance

purposes."

11. Plaintiff discussed the pay issue with Albano again, including on February 7,

2006, and asking whether when she worked more than 40 hours per week, if "comp time"

or "straight time pay" would be provided, noting that she did not understand how pay

could be taken away when she worked less than 40 hours a week, but not provided to her

when she worked more than 40 hours a week. Albano directed her to speak with

Executive Director Larkin about these issues.

12. On February 13, 2006, plaintiff met with Executive Director Larkin to ask

whether the 13.33 hours of overtime plaintiff had accumulated would be paid as " comp

time" or "straight time". Larkin told the plaintiff that the answer was "neither," because

plaintiff was a salaried employee.

13. Plaintiff protested that it was not fair to take away salary for hours not

worked, but to not credit her with additional hours worked in other weeks. Larkin

,responded, " Give me a break, Jan. I don't always dock your vacation! I don't do it every

time, but perhaps I should now. I can't believe you are having this discussion with me on

a Monday morning!"

14. Plaintiff asked Larkin if her actions were legal and she replied tersely, "Yeah,

Jan, it is legal. Call Joyce and ask her. She will tell you!" Larkin was apparently

referring to Joyce Galloway, who performed bookkeeping services for defendant and its

related program, "Orien Preventative Intervention & Education" ("OPIE").

15. Plaintiff asked Larkin why she was so defensive and she repeated, "Call,

Joyce, she will tell you."

16. Plaintiff responded that she would call her attorney, instead.

17. Larkin hollered, "Oh, NOW, you're telling me you're going to get an attorney,

Jan!"

18. Plaintiff responded, "No, I'm not going to get an attorney, I have an attorney I

can ask." To which Larkin retorted, "Whatever, Jan. I am not having this discussion with

you," at which point Larkin left her own office, leaving plaintiff sitting alone in Larkin's

office.

2

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 27 of 31
19. Later that same day, plaintiff asked for copies of her performance reviews.

Reviewing what was provided, she noted that there was no typed review from a "follow

up" review she had undergone and she asked Albana (Program Director) for it.

20. In response, Nina Albano, the Program Director said, "Oh, you want that,

too?" and returned to plaintiff within a couple of hours with that review document on

which Albano had signed plaintiff's name, and Larkin had also dated it. Plaintiff said to

Albano, "That is NOT my signature, I can't believe you signed [my name to] this!"

21. On February 14, 2006, plaintiff, in writing, requested a complete copy of her

personnel file. Larkin replied that she would do the photocopying. When she returned

with copies of documents, plaintiff asked to compare the pile she was handed with the

originals in her file.

22. On Thursday, February 16, 2006, Larkin called plaintiff into her office and

handed her two checks, stating, " I am paying you back all vacation time and this week's

check; and I am also laying you off, effective, immediately."

23. Shocked, plaintiff asked, "That is it? Are there papers with reasons or

something to sign?"

24. Larkin responded, "No, we just need your keys and pager. Any questions?"

25. Stunned, plaintiff asked if she could retrieve her personal belongings from her

office.

26. Later, plaintiff asked Albano what would defendant say to the children with

whom plaintiff had been working. Albano told plaintiff to tell her what she wanted

defendant to say, or, to tell the children, herself. Plaintiff declined because she refused to

lie to the children, and it would have upset the children to be told the truth: that plaintiff

was fired for questioning illegal payroll practices of defendant.

27. Upon information and belief, the children were told that plaintiff was gone

because of "a personality conflict;" and her staff colleagues were told that she "had been

laid off."

28. Plaintiff learned that after her complaint about her vacation time being

docked, the Treatment Coordinator reported that defendant had returned to him all of his

vacation time, also, and that defendant had been docking him. Defendant had told the

Treatment Coordinator that they had not known their actions were illegal.

29. A Department of Employment Security employee told the plaintiff that

defendant had reported to DES that plaintiff's position had been eliminated for fiscal

reasons and because that plaintiff had threatened to sue defendant; i.e., DES personnel

had spoken to both Laurie Larkin and Joyce Galloway and that one of them had reported

to DES that, "She [plaintiff] threatened to sue us after questioning her benefits."

3

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 28 of 31
30. At the time they terminated plaintiff's employment, it had an open and unfilled

position for Residential Counselor ~for which plaintiff was fully qualified and already

trained.

31. At the time of her termination, plaintiff was being paid $557.69 per week,

plus benefits, including medical insurance, sick days, holiday pay and vacation pay. In

addition, plaintiff planned to, and had so informed, defendant that she wanted to sign up

for the defendant's 401(k) plan, to which defendant was obligated to make contributions

on behalf of the plaintiff; and plaintiff planned to return to school by enrolling in Antioch

University New England, in Keene, New Hampshire because the defendant had promised

to pay half her tuition. Plaintiff lost this pay and these benefits because of her

termination.

32. It is the public policy of New Hampshire that all pay and benefit rules be

clearly published to employees, and that employees be able to question errors in pay

practices, be they inadvertent, or purposeful, legal or illegal without retaliation by the

employer.

33. It is against the public policy of New Hampshire to retaliate against an

employee for questioning the pay practices of her employee.

34. It is the public policy of New Hampshire that an employee can seek legal

counsel relative to questions she has about the computation of her wages and benefits

without retaliation by the employer.

35. It is against the public policy of New Hampshire for an employer to retaliate

against an employee for seeking legal counsel relative to the employer's methods of

computing wages and benefits.

36. It is the public policy of New Hampshire for an employee to sign her own

name and date on personnel documents requesting the employee's signature.

37. It is against the public policy of New Hampshire for an employer to forge an

employee's name on any document.

38. It is against the public policy of New Hampshire for an employer to retaliate

against an employee for protesting the employer's forging of her name on documents.

39. Defendant terminated plaintiff's employment in material part, because she

raised questions about the legality of defendant's wage and benefits computations.

40. Defendant terminated plaintiff's employment, in material part, because she

informed defendant she was seeking the advice of counsel relative to her wage and

benefits.

4

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 29 of 31
41. Defendant terminated plaintiffs employment in material part because she

expressed displeasure that the employer had forged her name and date on a personnel

document.

42. As the result of her job loss, plaintiff suffered lost wages, lost benefits, loss of

enjoyment of life, humiliation, anxiety about her economic situation and related

discomfort and she seeks all the remedies available to her in this forum.

43. Because defendant's actions were retaliatory and done with malice, plaintiff

seeks enhanced compensatory damages in addition to all other damages available to her

in this forum.

COUNT II: UNPAID OVERTIME

44. All prior allegations are incorporated by reference.

45. Plaintiff was paid a salary but was not exempt from overtime.

46 Plaintiff worked over 40 hours on one or more weeks but was not paid

time and a half and/or any other remuneration for the overtime worked. This non

payment was willful and without good cause under both RSA 275:44, IV and the Fair

Labor Standards Act.

47. Failure to pay overtime for over 40 hours worked violates the wage laws

of New Hampshire and the United States including, but not limited to:

a. RSA 279:21, VIII; and

b. the Fair Labor Standards Act, 29 U.S.C. § 201, et see, including, but not

limited to, the overtime provisions of 29 USC 206.

48. Plaintiff claims all damages available to her

a. under state law, including, but not limited to, her unpaid overtime,

at time and a half, doubled, as liquidated damages and her attorney fees pursuant to RSA

279:29 and RSA 275:44, IV; and

b. under federal law, including, but not limited to, her unpaid

overtime, at time and a half, doubled, due to willfulness, and her attorney fees pursuant to

29 USC 216(b).

COUNT III:REfALIATION

49. All prior allegations are incorporated by reference.

5

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 30 of 31
50. Plaintiff was retaliated against because she filed an oral complaint about

not being paid her overtime wages.

51 Plaintiffs retaliatory termination was motivated, in principal part, willfully

and maliciously and oppressively because of her complaint concerning unpaid overtime

wages in violation of 29 use 215(a)(3).

52. Plaintiff claims all damages available to her, including, but not limited to,

and front pay, punitive damages, compensatory damages and attorney fees pursuant to 29

use 216(b).

6

Case 1:08-cv-00076-PB Document 3 Filed 03/05/08 Page 31 of 31