Butland v . NH DOC CV-02-230-M 10/30/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Susan Asselin Butland, Plaintiff
v. Civil N o . 02-230-M Opinion N o . 2002 DNH 184 New Hampshire Department of Corrections, Defendant
O R D E R
Susan Asselin Butland (“plaintiff”) brings this Title VII
action against her former employer, the New Hampshire Department
of Corrections (“defendant” or “DOC”), seeking damages for
alleged sexual discrimination that took the form of sexual
harassment. See 42 U.S.C. § 2000e-5(f). This suit follows
plaintiff’s unsuccessful litigation of an identical claim before
the New Hampshire Commission for Human Rights, the New Hampshire
Superior Court, and, finally, the New Hampshire Supreme Court.
Defendant moves to dismiss the complaint, asserting, among
other things, that because plaintiff’s claim was fully litigated
in the state court system, the doctrine of res judicata precludes
her from relitigating that claim in this forum. Plaintiff objects. For the reasons given below, defendant’s motion is
granted.
Standard of Review
When ruling on a motion to dismiss under F E D . R . C I V . P .
12(b)(6), the court must “accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff’s favor and determine whether the
complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory.” Martin v . Applied Cellular
Tech., Inc., 284 F.3d 1 , 6 (1st Cir. 2002) (citation omitted).
Dismissal is appropriate only if “it clearly appears, according
to the facts alleged, that the plaintiff cannot recover on any
viable theory.” Langadinos v . Am. Airlines, Inc., 199 F.3d 6 8 ,
69 (1st Cir. 2000) (quoting Correa-Martinez v . Arrillaga-
Belendez, 903 F.2d 4 9 , 52 (1st Cir. 1990)). The issue is not
“what the plaintiff is required ultimately to prove in order to
prevail on her claim, but rather what she is required to plead in
order to be permitted to develop her case for eventual
adjudication on the merits.” Gorski v . N . H . Dep’t of Corr., 290
F.3d 466, 472 (1st Cir. 2002) (emphasis in original).
2 Factual Background
On December 5 , 1997, plaintiff filed a charge of harassment
with the New Hampshire Commission for Human Rights
(“Commission”). See N . H . R E V . STAT. A N N . (“RSA”) § 354-A (1995)
(amended 1997). In accordance with the Commission’s work share
agreement with the United States Equal Employment Opportunity
Commission ( “ E E O C ” ) , plaintiff’s claim was also deemed to have
been filed with the E E O C .
After investigating plaintiff’s claim, the Commission found
probable cause to believe that she had been discriminated
against. On November 1 , 1999, the Commission held a full
evidentiary hearing and, on February 1 8 , 2000, issued a unanimous
judgment in favor of plaintiff, awarding her $200,284.72, plus
reasonable attorney fees. Subsequently, on April 1 1 , 2000, the
EEOC sent plaintiff and defendant a “determination” letter, in
which it acknowledged the Commission’s February 1 8 , 2000,
finding, and stated that the Commission’s resolution of the
matter concluded EEOC’s processing of the charge.
3 On March 3 0 , 2000, defendant appealed the Commission’s
decision to the New Hampshire Superior Court. See RSA 354-A:22.
The superior court conducted a non-evidentiary hearing and
reviewed the record of the Commission’s proceedings. The court
concluded that defendant had taken prompt and appropriate
remedial action once it had been informed of the alleged
harassment against plaintiff. Accordingly, the court set aside
the Commission’s award, ruling, as a matter of law, that
defendant was not liable to plaintiff for sexual harassment
damages.
Plaintiff appealed the superior court’s decision to the New
Hampshire Supreme Court. After briefing and oral argument, the
supreme court affirmed, N.H. Dep’t of Corr. v . Butland, 147 N.H.
676, 680 (2002), noting that “[t]he promptness of the DOC’s
response is evident” given that the “DOC began its investigation
on the same day as the defendant filed her written complaint,”
and two days later the investigation was complete and the
harassing officer disciplined. On May 1 6 , 2002, plaintiff filed
a Motion for Rehearing. Four days later, while the motion for
rehearing was still pending before the supreme court, plaintiff
4 filed a Title V I I suit in this court. One day later, on May 2 1 ,
2002, she obtained a “right to sue letter” from the E E O C . 1 On
June 5 , 2002, the New Hampshire Supreme Court denied her motion
for rehearing.
Discussion
The United States Constitution provides that “[F]ull Faith
and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State.” U . S .
CONST. art. I V , § 1 . In 1948, Congress codified that
constitutional provision in 28 U . S . C . § 1738, which provides that
the “judicial proceedings . . . [of any state, territory or
possession] shall have the same full faith and credit in every
court within the United States and its Territories and
Possessions as they have by law or usage in the courts of such
1 The record indicates that plaintiff brought this action one day prior to obtaining a right to sue letter from the EEOC. But, because defendant did not raise the issue in its motion to dismiss, the point is forfeited. See, O’Rourke v . City of Providence, 235 F.3d 713, 725 n.3 (1st Cir. 2001) (“Although [plaintiff] filed her original court complaint before she filed her EEOC complaint, [she] did receive a right to sue letter and defendants have not argued the point; thus, the point is waived.”) (citing Zipes v . Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
5 State, Territory or Possession from which they are taken.”
Interpreting the scope and effect of that statute, the United
States Supreme Court declared that “[s]ection 1738 requires
federal courts to give the same preclusive effect to state court
judgments that those judgments would be given in the courts of
the State from which the judgments emerged.” Kremer v . Chem.
Constr. Corp., 456 U.S. 4 6 1 , 466 (1982) (footnote omitted).
Consistently with the Full Faith and Credit Clause of the
national Constitution, and the provisions of 28 U.S.C. § 1738,
the doctrine of res judicata ensures that “a final judgment on
the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in
that action.” Allen v . McCurry, 449 U.S. 9 0 , 94 (1980) (citation
omitted). Under New Hampshire law, the elements of res judicata
are as follows: “(1) the parties must be the same or in privity
with one another; (2) the same cause of action must be before the
Free access — add to your briefcase to read the full text and ask questions with AI
Butland v . NH DOC CV-02-230-M 10/30/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Susan Asselin Butland, Plaintiff
v. Civil N o . 02-230-M Opinion N o . 2002 DNH 184 New Hampshire Department of Corrections, Defendant
O R D E R
Susan Asselin Butland (“plaintiff”) brings this Title VII
action against her former employer, the New Hampshire Department
of Corrections (“defendant” or “DOC”), seeking damages for
alleged sexual discrimination that took the form of sexual
harassment. See 42 U.S.C. § 2000e-5(f). This suit follows
plaintiff’s unsuccessful litigation of an identical claim before
the New Hampshire Commission for Human Rights, the New Hampshire
Superior Court, and, finally, the New Hampshire Supreme Court.
Defendant moves to dismiss the complaint, asserting, among
other things, that because plaintiff’s claim was fully litigated
in the state court system, the doctrine of res judicata precludes
her from relitigating that claim in this forum. Plaintiff objects. For the reasons given below, defendant’s motion is
granted.
Standard of Review
When ruling on a motion to dismiss under F E D . R . C I V . P .
12(b)(6), the court must “accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff’s favor and determine whether the
complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory.” Martin v . Applied Cellular
Tech., Inc., 284 F.3d 1 , 6 (1st Cir. 2002) (citation omitted).
Dismissal is appropriate only if “it clearly appears, according
to the facts alleged, that the plaintiff cannot recover on any
viable theory.” Langadinos v . Am. Airlines, Inc., 199 F.3d 6 8 ,
69 (1st Cir. 2000) (quoting Correa-Martinez v . Arrillaga-
Belendez, 903 F.2d 4 9 , 52 (1st Cir. 1990)). The issue is not
“what the plaintiff is required ultimately to prove in order to
prevail on her claim, but rather what she is required to plead in
order to be permitted to develop her case for eventual
adjudication on the merits.” Gorski v . N . H . Dep’t of Corr., 290
F.3d 466, 472 (1st Cir. 2002) (emphasis in original).
2 Factual Background
On December 5 , 1997, plaintiff filed a charge of harassment
with the New Hampshire Commission for Human Rights
(“Commission”). See N . H . R E V . STAT. A N N . (“RSA”) § 354-A (1995)
(amended 1997). In accordance with the Commission’s work share
agreement with the United States Equal Employment Opportunity
Commission ( “ E E O C ” ) , plaintiff’s claim was also deemed to have
been filed with the E E O C .
After investigating plaintiff’s claim, the Commission found
probable cause to believe that she had been discriminated
against. On November 1 , 1999, the Commission held a full
evidentiary hearing and, on February 1 8 , 2000, issued a unanimous
judgment in favor of plaintiff, awarding her $200,284.72, plus
reasonable attorney fees. Subsequently, on April 1 1 , 2000, the
EEOC sent plaintiff and defendant a “determination” letter, in
which it acknowledged the Commission’s February 1 8 , 2000,
finding, and stated that the Commission’s resolution of the
matter concluded EEOC’s processing of the charge.
3 On March 3 0 , 2000, defendant appealed the Commission’s
decision to the New Hampshire Superior Court. See RSA 354-A:22.
The superior court conducted a non-evidentiary hearing and
reviewed the record of the Commission’s proceedings. The court
concluded that defendant had taken prompt and appropriate
remedial action once it had been informed of the alleged
harassment against plaintiff. Accordingly, the court set aside
the Commission’s award, ruling, as a matter of law, that
defendant was not liable to plaintiff for sexual harassment
damages.
Plaintiff appealed the superior court’s decision to the New
Hampshire Supreme Court. After briefing and oral argument, the
supreme court affirmed, N.H. Dep’t of Corr. v . Butland, 147 N.H.
676, 680 (2002), noting that “[t]he promptness of the DOC’s
response is evident” given that the “DOC began its investigation
on the same day as the defendant filed her written complaint,”
and two days later the investigation was complete and the
harassing officer disciplined. On May 1 6 , 2002, plaintiff filed
a Motion for Rehearing. Four days later, while the motion for
rehearing was still pending before the supreme court, plaintiff
4 filed a Title V I I suit in this court. One day later, on May 2 1 ,
2002, she obtained a “right to sue letter” from the E E O C . 1 On
June 5 , 2002, the New Hampshire Supreme Court denied her motion
for rehearing.
Discussion
The United States Constitution provides that “[F]ull Faith
and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State.” U . S .
CONST. art. I V , § 1 . In 1948, Congress codified that
constitutional provision in 28 U . S . C . § 1738, which provides that
the “judicial proceedings . . . [of any state, territory or
possession] shall have the same full faith and credit in every
court within the United States and its Territories and
Possessions as they have by law or usage in the courts of such
1 The record indicates that plaintiff brought this action one day prior to obtaining a right to sue letter from the EEOC. But, because defendant did not raise the issue in its motion to dismiss, the point is forfeited. See, O’Rourke v . City of Providence, 235 F.3d 713, 725 n.3 (1st Cir. 2001) (“Although [plaintiff] filed her original court complaint before she filed her EEOC complaint, [she] did receive a right to sue letter and defendants have not argued the point; thus, the point is waived.”) (citing Zipes v . Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
5 State, Territory or Possession from which they are taken.”
Interpreting the scope and effect of that statute, the United
States Supreme Court declared that “[s]ection 1738 requires
federal courts to give the same preclusive effect to state court
judgments that those judgments would be given in the courts of
the State from which the judgments emerged.” Kremer v . Chem.
Constr. Corp., 456 U.S. 4 6 1 , 466 (1982) (footnote omitted).
Consistently with the Full Faith and Credit Clause of the
national Constitution, and the provisions of 28 U.S.C. § 1738,
the doctrine of res judicata ensures that “a final judgment on
the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in
that action.” Allen v . McCurry, 449 U.S. 9 0 , 94 (1980) (citation
omitted). Under New Hampshire law, the elements of res judicata
are as follows: “(1) the parties must be the same or in privity
with one another; (2) the same cause of action must be before the
court in both instances; and (3) a final judgment on the merits
must have been rendered on the first action.” Brzica v . Trs. of
Dartmouth Coll., 147 N.H. 443, 454 (2002) (citation omitted).
Because each element is met in this case, plaintiff is barred
6 from bringing her Title VII sexual harassment claim in this
court.
First, plaintiff’s state sexual harassment claim and her
federal Title VII claim involve the same parties. Second, the
elements of plaintiff’s state sexual harassment claim under RSA
354-A (as well as the defenses available to her employer) are
virtually identical to those associated with a Title VII claim.
As the New Hampshire Supreme Court has recognized:
Under RSA 354-A:7, V (1995) (amended 1997), an employer is liable for sexual harassment between fellow employees if it knew or should have known of the conduct and failed to take “prompt, appropriate remedial action.” This standard is similar to that governing employer liability for co-worker sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994) (Title V I I ) . Accordingly, because this is an issue of first impression under State law, we rely upon cases developed under Title VII to aid in our analysis.
Butland, 147 N.H. at 679-80 (citations omitted); see also Boateng
v . Interamerican Univ., Inc., 210 F.3d 5 6 , 62 (1st Cir. 2000)
(holding that under Puerto Rico law, res judicata bars plaintiff
from bringing a Title VII action that “derives from the same
nucleus of operative facts” as a prior and fully adjudicated
7 state civil rights action). Finally, as noted above, plaintiff’s
sexual harassment claim against the DOC was fully and finally
litigated in the state court system.
Ordinarily, this would be a rather uneventful and
straightforward dismissal on res judicata grounds. But,
plaintiff presents an imaginative argument-based upon some loose
legislative draftsmanship-that could lead to unintended
consequences. Plaintiff says that the res judicata doctrine does
not preclude her federal suit because, technically, her state law
claim was not fully and finally resolved on the merits before she
filed in federal court. Indeed, she says, the Human Rights
Commission’s order was vacated, and the appellate proceedings
were dismissed (presumably without prejudice), by operation of
law, before she filed here. Therefore, she argues, there is no
extant state decision resolving her claim.
Plaintiff points to the plain language of RSA 354-A which
provides, rather sweepingly:
[i]f the complainant brings an action in federal court arising out of the same claims of discrimination which formed the basis of an order or decision of the
8 commission, such order or decision shall be vacated and any appeal therefrom pending in any state court shall be dismissed.
R S A 354-A:22, V (emphasis added). Plaintiff notes that when she
filed her Title V I I suit in this court, the New Hampshire Supreme
Court’s opinion, affirming the superior court’s ruling in favor
of defendant, was still subject to her motion for rehearing and,
therefore, was still “pending.” See N . H . S U P . C T . R . 2 2 .
Accordingly, given the provisions of R S A 354-A:22, V , she asserts
that the commencement of her Title V I I suit in this court
effectively triggered an automatic vacatur of the Human Rights
Commission’s order and dismissal of the appeal pending before the
New Hampshire Supreme Court. Therefore, she argues, by operation
of R S A 354-A:22, V , the legal landscape was restored to what it
was before she filed her complaint with the Human Rights
Commission and there was, and i s , no final state court or
administrative order that can be given preclusive effect in this
Although the point is clever, and exposes what may be an
unintended consequence of the statute as drafted that might,
literally, provide a litigant the opportunity to pursue a dress-
9 rehearsal claim before the Commission and, if that proceeding or
a subsequent appeal to the courts fares poorly, to promptly file
suit in the federal system to vacate the state’s proceedings and
gain a fresh start.
In this particular case, however, plaintiff is bound by the
state court’s judgment. First, nothing in the language of RSA
354-A:22, V , suggests that its provisions are self-executing. To
the contrary, the plain language anticipates some action by a
court before the administrative decision is vacated or a pending
appeal is dismissed, i.e., “such order or decision shall be
vacated” and “any appeal . . . pending . . . shall be dismissed.”
RSA 354-A:22, V , (emphasis added). Plaintiff did not invoke the
provisions of RSA 354-A:22, V , in state court. That i s , she did
not move the New Hampshire Supreme Court to dismiss her then-
pending appeal based upon her having filed suit in federal court.
And, the supreme court’s judgment became final when plaintiff’s
motion for rehearing was denied. Because the Human Rights
Commission’s order was never vacated, and her appeal to the state
supreme court was never dismissed or otherwise terminated before
final judgment entered on the merits, plaintiff’s identical
10 federal claim is barred under the doctrine of res judicata. How
New Hampshire’s courts might construe RSA 354-A:22, V , under
different circumstance – e.g., where a litigant files a late
federal suit and actually moves to vacate and dismiss unfavorable
but pending state proceedings, remains to be seen. But, here,
final judgment was entered before any vacatur or dismissal.
Conclusion
The doctrine of res judicata precludes plaintiff from
relitigating her sexual harassment claim in this court since it
has been fully and finally resolved by the New Hampshire Supreme
Court. Defendant’s motion to dismiss (document n o . 3 ) is
granted. The Clerk shall close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
October 3 0 , 2002
cc: James F. Lafrance, Esq. Nancy J. Smith, Esq.