Bowers v. Concord Ophthalmologic CV-03-363-JD 06/29/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patricia L. Bowers
v. Civil No. 03-363-JD Opinion No. 2004 DNH 099 Concord Ophthalmologic Associates, P.A., d/b/a The Eve Center of Concord, and Llovd M. Wilcox, M.D.
O R D E R
Patricia L. Bowers brings claims under Title VII of the
Civil Rights Act of 1964 and state law against her former
employer Concord Ophthalmologic Associates ("COA") and one of the
doctors in the group, Lloyd M. Wilcox. COA and Wilcox move for
summary judgment on all of Bowers's remaining claims.1 Bowers,
who is represented by counsel, filed her objection more than
thirty days after the date the motion was served without seeking
an extension of time or offering an explanation and thereby
waived her objection. LR 7.1(b); see also Nepsk, Inc. v. Town of
Houlton, 283 F.3d 1, 5-6 (1st Cir. 2002).
1Bowers's claims against Andre d'Hemecourt, Erin S. Fogel, and Paul G. DeGregorio were previously dismissed. Also, Bowers's claims of negligent infliction of emotional distress were previously dismissed. Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An
unopposed motion for summary judgment can only be granted if the
moving party is entitled to judgment on the merits of the motion,
viewed in light of Rule 56. See Carmona v. Toledo, 215 F.3d 124,
134 n.9 (1st Cir. 2000). All reasonable inferences and all
credibility issues are resolved in favor of the nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Background
COA employed Patricia Bowers from October of 1992 until
February 8, 2002. She worked first as an ophthalmic assistant
and later as an ophthalmic technician. In 1995, Bowers began
working with Dr. Lloyd Benson and remained working primarily for
him during the remainder of the time she was employed by COA.
Bowers's first experience with Wilcox occurred before she
2 began working directly with him. She was asked to hold a
patient's head during a laser procedure. During the procedure,
she states that Wilcox was very intimidating in both his body and
verbal language. When she began working directly with Wilcox in
1995, Bowers found that he would sometimes fly into rages and
abuse and intimidate her. She described his demeanor as snarling
and angry. Wilcox's behavior deteriorated with time.
Bowers had particular difficulty working with Wilcox as part
of a study for photodynamic therapy which began in 1999. She
reported that Wilcox belittled and criticized her and that his
screaming, ranting, and raving would make her leave in tears.
Wilcox belittled and demeaned her in front of other staff members
and patients. She stated that his anger was directed at her both
because of the study and because she had to take time off from
work. He repeatedly demonstrated favoritism toward another staff
member, Nancy Bottcher, because she was an RN.
During one incident in December of 2001, Wilcox became so
angry and stood so close to her that Bowers thought he was going
to hit her. On another occasion, Wilcox yelled at Bowers about
an error that a male staff member had made but he never yelled at
that person. She also overheard a screaming match between Dr.
d'Hemecourt and Wilcox. Bowers also related some incidents of
Wilcox mistreating other female employees, although he did not
3 treat the other female technicians the way he treated her.
Bowers resigned her position in February of 2002.
Discussion
Bowers brings a claim against COA under Title VII, alleging
that Wilcox's treatment of her created a hostile work environment
based on her gender that resulted in her constructive discharge.
She also brings a claim of gender discrimination against COA and
Wilcox under New Hampshire Revised Statute Annotated chapter
354-A. In addition, she alleges a claim of wrongful termination
against COA and a claim of intentional infliction of emotional
distress against Wilcox. The defendants seeks summary judgment
on the grounds that Bowers cannot prove her claims.
A. Title VII Claim
Title VII prohibits discrimination in the workplace based on
sex. 42 U.S.C. § 2000e-2(a). When, as here, a plaintiff
contends that the discrimination was due to the conditions of her
employment, she must show "that sex-based conduct is sufficiently
severe or pervasive to constitute a hostile work environment."
O'Rourke v. City of Providence, 235 F.3d 713, 735 (1st Cir.
2001). Because Title VII "is neither a civility code nor a
general anti-harassment code, . . . the level of incivility or
4 harassment must amount to either a tangible or a constructive
employment action [and] . . . [t]he discrimination must be based
on gender or some other prohibited category." Lee-Crespo v.
Schering-Plough Del Caribe Inc., 354 F.3d 34, 37 (1st Cir. 2003).
COA argues that the facts do not show sufficiently severe or
pervasive hostility or harassment to constitute adverse
employment action. The court disagrees; Wilcox's treatment of
Bowers, even taken from the defendants' factual statement, is
sufficient to show a trialworthy issue. Alternatively, COA
argues that the treatment Bowers experienced was not gender-
based .
None of Wilcox's conduct toward Bowers was overtly sexual.
He did not mention sex or otherwise directly implicate her sex as
a reason for his treatment of her. The circumstances of her
treatment also do not suggest that Bowers's sex was the basis for
Wilcox's treatment of her. Instead, the circumstances indicate
that Wilcox singled Bowers out for abuse for other reasons, which
are far from clear, but may include his own instability and a
lack of civility.
Bowers stated in her deposition that at least some of
Wilcox's abuse was because he favored a female nurse over her.
She also remembered an incident where Wilcox and another male
physician engaged in a screaming match. Although Bowers recounts
5 a few instances where Wilcox's rage was directed against other
female staff members, those instances were isolated or at least
very sporadic and lacked any indicia of sex-based harassment.
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Bowers v. Concord Ophthalmologic CV-03-363-JD 06/29/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patricia L. Bowers
v. Civil No. 03-363-JD Opinion No. 2004 DNH 099 Concord Ophthalmologic Associates, P.A., d/b/a The Eve Center of Concord, and Llovd M. Wilcox, M.D.
O R D E R
Patricia L. Bowers brings claims under Title VII of the
Civil Rights Act of 1964 and state law against her former
employer Concord Ophthalmologic Associates ("COA") and one of the
doctors in the group, Lloyd M. Wilcox. COA and Wilcox move for
summary judgment on all of Bowers's remaining claims.1 Bowers,
who is represented by counsel, filed her objection more than
thirty days after the date the motion was served without seeking
an extension of time or offering an explanation and thereby
waived her objection. LR 7.1(b); see also Nepsk, Inc. v. Town of
Houlton, 283 F.3d 1, 5-6 (1st Cir. 2002).
1Bowers's claims against Andre d'Hemecourt, Erin S. Fogel, and Paul G. DeGregorio were previously dismissed. Also, Bowers's claims of negligent infliction of emotional distress were previously dismissed. Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An
unopposed motion for summary judgment can only be granted if the
moving party is entitled to judgment on the merits of the motion,
viewed in light of Rule 56. See Carmona v. Toledo, 215 F.3d 124,
134 n.9 (1st Cir. 2000). All reasonable inferences and all
credibility issues are resolved in favor of the nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Background
COA employed Patricia Bowers from October of 1992 until
February 8, 2002. She worked first as an ophthalmic assistant
and later as an ophthalmic technician. In 1995, Bowers began
working with Dr. Lloyd Benson and remained working primarily for
him during the remainder of the time she was employed by COA.
Bowers's first experience with Wilcox occurred before she
2 began working directly with him. She was asked to hold a
patient's head during a laser procedure. During the procedure,
she states that Wilcox was very intimidating in both his body and
verbal language. When she began working directly with Wilcox in
1995, Bowers found that he would sometimes fly into rages and
abuse and intimidate her. She described his demeanor as snarling
and angry. Wilcox's behavior deteriorated with time.
Bowers had particular difficulty working with Wilcox as part
of a study for photodynamic therapy which began in 1999. She
reported that Wilcox belittled and criticized her and that his
screaming, ranting, and raving would make her leave in tears.
Wilcox belittled and demeaned her in front of other staff members
and patients. She stated that his anger was directed at her both
because of the study and because she had to take time off from
work. He repeatedly demonstrated favoritism toward another staff
member, Nancy Bottcher, because she was an RN.
During one incident in December of 2001, Wilcox became so
angry and stood so close to her that Bowers thought he was going
to hit her. On another occasion, Wilcox yelled at Bowers about
an error that a male staff member had made but he never yelled at
that person. She also overheard a screaming match between Dr.
d'Hemecourt and Wilcox. Bowers also related some incidents of
Wilcox mistreating other female employees, although he did not
3 treat the other female technicians the way he treated her.
Bowers resigned her position in February of 2002.
Discussion
Bowers brings a claim against COA under Title VII, alleging
that Wilcox's treatment of her created a hostile work environment
based on her gender that resulted in her constructive discharge.
She also brings a claim of gender discrimination against COA and
Wilcox under New Hampshire Revised Statute Annotated chapter
354-A. In addition, she alleges a claim of wrongful termination
against COA and a claim of intentional infliction of emotional
distress against Wilcox. The defendants seeks summary judgment
on the grounds that Bowers cannot prove her claims.
A. Title VII Claim
Title VII prohibits discrimination in the workplace based on
sex. 42 U.S.C. § 2000e-2(a). When, as here, a plaintiff
contends that the discrimination was due to the conditions of her
employment, she must show "that sex-based conduct is sufficiently
severe or pervasive to constitute a hostile work environment."
O'Rourke v. City of Providence, 235 F.3d 713, 735 (1st Cir.
2001). Because Title VII "is neither a civility code nor a
general anti-harassment code, . . . the level of incivility or
4 harassment must amount to either a tangible or a constructive
employment action [and] . . . [t]he discrimination must be based
on gender or some other prohibited category." Lee-Crespo v.
Schering-Plough Del Caribe Inc., 354 F.3d 34, 37 (1st Cir. 2003).
COA argues that the facts do not show sufficiently severe or
pervasive hostility or harassment to constitute adverse
employment action. The court disagrees; Wilcox's treatment of
Bowers, even taken from the defendants' factual statement, is
sufficient to show a trialworthy issue. Alternatively, COA
argues that the treatment Bowers experienced was not gender-
based .
None of Wilcox's conduct toward Bowers was overtly sexual.
He did not mention sex or otherwise directly implicate her sex as
a reason for his treatment of her. The circumstances of her
treatment also do not suggest that Bowers's sex was the basis for
Wilcox's treatment of her. Instead, the circumstances indicate
that Wilcox singled Bowers out for abuse for other reasons, which
are far from clear, but may include his own instability and a
lack of civility.
Bowers stated in her deposition that at least some of
Wilcox's abuse was because he favored a female nurse over her.
She also remembered an incident where Wilcox and another male
physician engaged in a screaming match. Although Bowers recounts
5 a few instances where Wilcox's rage was directed against other
female staff members, those instances were isolated or at least
very sporadic and lacked any indicia of sex-based harassment.
Based on the record presented for summary judgment, there is
insufficient evidence that Wilcox's treatment of Bowers was based
on her sex. Therefore, COA is entitled to summary judgment on
Bowers's Title VII claim.
B. State Law Claims
Bowers's remaining claims are based on state law. This case
was removed from state court, based on federal question
jurisdiction arising from the Title VII claim. The court has
supplemental jurisdiction over Bowers's state law claims. 28
U.S.C. § 1367 (a) .
When, as here, the court dismisses the federal claim that
was the basis of original jurisdiction well before trial, the
court may in its discretion decline to exercise supplemental
jurisdiction over the state law claims. § 1367(c). That is
appropriate in this case. See Cannarozzi v. Fiumara, 2004 WL
1205697 at *6 (1st Cir. June 2, 2004). Therefore, the court
declines supplemental jurisdiction and remands Bowers's state law
claims to state court.
6 Conclusion
For the foregoing reasons. Concord Ophthalmologic
Associates, P.A., is entitled to summary judgment on the
plaintiff's Title VII claim in Count II. The remaining claims in
this case. Counts I, III, and IV, which are state law claims
brought against Lloyd Wilcox and Concord Ophthalmologic
Associates, P.A., are remanded to Merrimack County Superior
Court.
The clerk of court shall enter judgment in favor of
defendants Andre d'Hemecourt, Erin Fogel, and Paul DeGregorio on
all counts and in favor of defendants Concord Ophthalmologic
Associates, P.A., and Lloyd Wilcox on Counts II, V, and VI.
The case shall be returned to Merrimack County Superior Court.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
June 29, 2004
cc: Timothy A. Gudas, Esquire Eugene F. Sullivan III, Esquire