UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cheryl Bentley
v. Case No. 10-cv-470-PB Opinion No. 2012 DNH 200 City of Lebanon, et a l .
MEMORANDUM AND ORDER
Cheryl Bentley filed a writ of summons against the City of
Lebanon and three City employees in state court. Defendants
removed the case to this court. Doc. No. 1-2. Bentley includes
state law claims for defamation (Counts I and II); sexual
harassment in violation of N.H. Rev. Stat. Ann. § 354-B (Counts
III and IV); and intentional and negligent infliction of
emotional distress (Counts V and VI ) . Reading the complaint
generously, she also claims gender discrimination in violation
of Title VII and the Fourteenth Amendment's Equal Protection
Clause (Counts VII and VIII). 1
1 Bentley captions Counts VII and VIII "Violation of Equal Protection under the Law: Discrimination due to Gender," but cites only to state law. Moreover, although Bentley compares N.H. Rev. Stat. Ann. § 354-A:7 to Title VII in Count III of her complaint, she does not explicitly assert a Title VII claim. Nor does she explicitly state a Fourteenth Amendment claim. In her objection, she argues the defendants violated Title VII by sexually harassing her. An objection to a motion to dismiss is not the proper place to raise a claim. Nonetheless, I treat Defendants have moved for summary judgment. For the
reasons set forth in this Memorandum and Order, I determine that
the defendants are entitled to summary judgment with respect to
Bentley's federal law claims. I also decline to exercise
supplemental jurisdiction over her state law claims and remand
what remains of the case to state court.
I. BACKGROUND
Cheryl Bentley worked for the United States Department of
Agriculture, Animal, Plant and Health Inspection Service,
Wildlife Services (the "USDA") as a Wildlife Specialist from
sometime in 1997 until April 2, 2008. The USDA had a contract
with the City of Lebanon for a bird control and monitoring
project to reduce hazards to air traffic associated with gulls
using the landfill. Doc. No. 31-3. The USDA assigned Bentley
to monitor and control seagulls at the landfill and surrounding
restaurants in Lebanon, New Hampshire._ Bentley concedes that
the Town did not supervise her work on behalf of the USDA.
Bentley's issues at the landfill began in November 2006
these invocations of federal law as attempts to assert claims under Title VII and the Equal Protection Clause.
~ FAA regulations require wildlife hazard assessments and, if necessary, a wildlife hazard management plan when wildlife have access to an airport. 14 C.F.R. § 139.337. 2 when the interim landfill manager, John Daniels, went on
vacation and Ed DeNike temporarily filled in for him. DeNike
confronted Bentley in the lunch room and asked her about her pay
and questioned whether her job was necessary. Bentley described
this as a "hostile interrogation." Doc. No. 31-8.
Around January 2007, rumors began to circulate that Bentley
and Daniels were having an affair. Bentley heard about the
rumors from landfill employees, including Daniels, Frank
Kimball, and Mike Cole. For example, in February 2007, Bentley
learned of a rumor that Daniels' domestic partner walked into
their house and found Bentley and Daniels kissing on the couch.3
Shortly after, Kimball apologized to Bentley for spreading
rumors about her and Daniels. In early September, a rumor
circulated that Daniels put Bentley's name on his mailbox.
Bentley believes Kimball started this rumor.
On September 5, 2007, USDA director John McConnell, who was
also Bentley's supervisor, learned that the landfill manager,
Mark Morgan, was dissatisfied with Bentley's performance and
wanted her to be replaced. Prior to September 2007, Bentley had
received "fully successful" ratings on performance reviews from
her supervisor at USDA. Docs. No. 34-9, 10, 11.
3 Between 1999 and 2004 Daniels was in a relationship with Tara Kimball, Frank Kimball's daughter. They lived together and had a child together. Doc. No. 31-6. 3 On September 6, 2007, McConnell told Bentley that the USDA
was not going to renew her contract because she was negatively
impacting the morale at the landfill and her job performance was
unsatisfactory. She was replaced with a younger and less
experienced male employee. There is no evidence in the record,
however, that any of the defendants in this action played any
role in the hiring of Bentley's replacement.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals "no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). The court must consider the evidence submitted in
support of the motion in the light most favorable to the
nonmoving party, drawing all reasonable inferences in its favor.
See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001) .
A party seeking summary judgment must first identify the
absence of any genuine dispute of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) . A material fact "is one
'that might affect the outcome of the suit under the governing
law.'" United States v. One Parcel of Real Prop, with Bldgs.,
960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). If the moving party 4 satisfies this burden, the burden shifts to the nonmoving party
to "produce evidence on which a reasonable finder of fact, under
the appropriate proof burden, could base a verdict for it; if
that party cannot produce such evidence, the motion must be
granted." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86,
94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
Ill. ANALYSIS
If Bentley has a viable federal claim against any of the
defendants, it is to be found in Counts VII and VIII. I analyze
the evidence she has provided in support of both counts to
determine whether she has a triable claim under either Title VII
or the Fourteenth Amendment's Equal Protection Clause.
A. Title VII
To the extent the Bentley is seeking to assert Title VII
claims in Counts VII and VIII, her claims fail because none of
the defendants were her "employers." Title VII provides a cause
of action against employers. It does not authorize suits
against other employees. Fantini v. Salem State Coll., 557 F.3d
22, 28-29 (1st Cir. 2009). Nor does it authorize claims against
third parties who interfere with an employment relationship.
Lopez v. Massachusetts, 588 F.3d 69, 86-87 (1st Cir. 2009).
5 Bentley does not allege that any of the individual
defendants were her employers.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cheryl Bentley
v. Case No. 10-cv-470-PB Opinion No. 2012 DNH 200 City of Lebanon, et a l .
MEMORANDUM AND ORDER
Cheryl Bentley filed a writ of summons against the City of
Lebanon and three City employees in state court. Defendants
removed the case to this court. Doc. No. 1-2. Bentley includes
state law claims for defamation (Counts I and II); sexual
harassment in violation of N.H. Rev. Stat. Ann. § 354-B (Counts
III and IV); and intentional and negligent infliction of
emotional distress (Counts V and VI ) . Reading the complaint
generously, she also claims gender discrimination in violation
of Title VII and the Fourteenth Amendment's Equal Protection
Clause (Counts VII and VIII). 1
1 Bentley captions Counts VII and VIII "Violation of Equal Protection under the Law: Discrimination due to Gender," but cites only to state law. Moreover, although Bentley compares N.H. Rev. Stat. Ann. § 354-A:7 to Title VII in Count III of her complaint, she does not explicitly assert a Title VII claim. Nor does she explicitly state a Fourteenth Amendment claim. In her objection, she argues the defendants violated Title VII by sexually harassing her. An objection to a motion to dismiss is not the proper place to raise a claim. Nonetheless, I treat Defendants have moved for summary judgment. For the
reasons set forth in this Memorandum and Order, I determine that
the defendants are entitled to summary judgment with respect to
Bentley's federal law claims. I also decline to exercise
supplemental jurisdiction over her state law claims and remand
what remains of the case to state court.
I. BACKGROUND
Cheryl Bentley worked for the United States Department of
Agriculture, Animal, Plant and Health Inspection Service,
Wildlife Services (the "USDA") as a Wildlife Specialist from
sometime in 1997 until April 2, 2008. The USDA had a contract
with the City of Lebanon for a bird control and monitoring
project to reduce hazards to air traffic associated with gulls
using the landfill. Doc. No. 31-3. The USDA assigned Bentley
to monitor and control seagulls at the landfill and surrounding
restaurants in Lebanon, New Hampshire._ Bentley concedes that
the Town did not supervise her work on behalf of the USDA.
Bentley's issues at the landfill began in November 2006
these invocations of federal law as attempts to assert claims under Title VII and the Equal Protection Clause.
~ FAA regulations require wildlife hazard assessments and, if necessary, a wildlife hazard management plan when wildlife have access to an airport. 14 C.F.R. § 139.337. 2 when the interim landfill manager, John Daniels, went on
vacation and Ed DeNike temporarily filled in for him. DeNike
confronted Bentley in the lunch room and asked her about her pay
and questioned whether her job was necessary. Bentley described
this as a "hostile interrogation." Doc. No. 31-8.
Around January 2007, rumors began to circulate that Bentley
and Daniels were having an affair. Bentley heard about the
rumors from landfill employees, including Daniels, Frank
Kimball, and Mike Cole. For example, in February 2007, Bentley
learned of a rumor that Daniels' domestic partner walked into
their house and found Bentley and Daniels kissing on the couch.3
Shortly after, Kimball apologized to Bentley for spreading
rumors about her and Daniels. In early September, a rumor
circulated that Daniels put Bentley's name on his mailbox.
Bentley believes Kimball started this rumor.
On September 5, 2007, USDA director John McConnell, who was
also Bentley's supervisor, learned that the landfill manager,
Mark Morgan, was dissatisfied with Bentley's performance and
wanted her to be replaced. Prior to September 2007, Bentley had
received "fully successful" ratings on performance reviews from
her supervisor at USDA. Docs. No. 34-9, 10, 11.
3 Between 1999 and 2004 Daniels was in a relationship with Tara Kimball, Frank Kimball's daughter. They lived together and had a child together. Doc. No. 31-6. 3 On September 6, 2007, McConnell told Bentley that the USDA
was not going to renew her contract because she was negatively
impacting the morale at the landfill and her job performance was
unsatisfactory. She was replaced with a younger and less
experienced male employee. There is no evidence in the record,
however, that any of the defendants in this action played any
role in the hiring of Bentley's replacement.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals "no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). The court must consider the evidence submitted in
support of the motion in the light most favorable to the
nonmoving party, drawing all reasonable inferences in its favor.
See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001) .
A party seeking summary judgment must first identify the
absence of any genuine dispute of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) . A material fact "is one
'that might affect the outcome of the suit under the governing
law.'" United States v. One Parcel of Real Prop, with Bldgs.,
960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). If the moving party 4 satisfies this burden, the burden shifts to the nonmoving party
to "produce evidence on which a reasonable finder of fact, under
the appropriate proof burden, could base a verdict for it; if
that party cannot produce such evidence, the motion must be
granted." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86,
94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
Ill. ANALYSIS
If Bentley has a viable federal claim against any of the
defendants, it is to be found in Counts VII and VIII. I analyze
the evidence she has provided in support of both counts to
determine whether she has a triable claim under either Title VII
or the Fourteenth Amendment's Equal Protection Clause.
A. Title VII
To the extent the Bentley is seeking to assert Title VII
claims in Counts VII and VIII, her claims fail because none of
the defendants were her "employers." Title VII provides a cause
of action against employers. It does not authorize suits
against other employees. Fantini v. Salem State Coll., 557 F.3d
22, 28-29 (1st Cir. 2009). Nor does it authorize claims against
third parties who interfere with an employment relationship.
Lopez v. Massachusetts, 588 F.3d 69, 86-87 (1st Cir. 2009).
5 Bentley does not allege that any of the individual
defendants were her employers. Further, although an entity such
as the City of Lebanon could qualify as a de facto employer in
some circumstances even though the plaintiff is nominally
employed by a third party, see, e.g., id. at 86-87 (discussing
test for a de facto employer claim), Bentley has failed to
produce any evidence to support a claim that the City was her de
facto employer. Accordingly, she does not have a triable Title
VII claim against any of the defendants.
B. Equal Protection
To establish an equal protection claim for gender
discrimination, Bentley must show that defendants intentionally
discriminated against her on the basis of her gender. See Rios-
Colon v. Toledo-Davila, 641 F.3d 1, 4 (1st Cir. 2011). The only
conduct Bentley offers as evidence of a constitutional violation
is: (1) the hostile work environment that resulted from rumors
that she was having an affair with Daniels, and (2) the USDA's
refusal to renew her contract because, allegedly, she was
negatively impacting employee morale. This evidence, however,
provides no support for Bentley's claim that defendants
intentionally discriminated against her because of her gender.
At most, as Bentley describes the situation, she was "harassed"
because her coworkers were jealous, not because she is a woman. 6 Further, even if Morgan intervened with the USDA, as Bentley
claims, the evidence suggests that his intervention was caused
by perceived workplace problems rather than Bentley's gender.
Construing the evidence in the light most favorable to
Bentley, no reasonable jury could conclude that she was
discriminated against on the basis of her gender. Accordingly,
defendants are entitled to summary judgment with respect to any
claim that they are liable for an equal protection violation.
C. Supplemental Jurisdiction
I decline to exercise supplemental jurisdiction over the
remaining state-law claims. 28 U.S.C. § 1367(c)(3) ("The
district courts may decline to exercise supplemental
jurisdiction . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction . . . . " ) . I
remand the remaining claims to state court. See City of Chi, v.
Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997).
IV. CONCLUSION
Defendants' motions for summary judgment (Doc. Nos. 30, 31)
are granted as to Counts VII and VIII. I deny the motions in
all other respects without prejudice and remand the remaining
state law claims to state court.
7 SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
December 13, 2012
cc: Ernest James Ciccotelli, Esq. Samantha Dowd Elliott, Esq. R. Matthew Cairns, Esq.