UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Felicia Giordano Case No. 19-cv-1231-PB v. Opinion No. 2020 DNH 078
Pub. Serv. Co. of N.H. d/b/a Eversource Energy
MEMORANDUM AND ORDER
Felicia Giordano has sued her former employer, Public
Service Company of New Hampshire d/b/a Eversource Energy (“PSNH”
or “Defendant”), alleging age, sex, disability, and
intersectional discrimination under the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq.; Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e, et seq.; and the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101, et seq. Before me is PSNH’s motion
to dismiss Giordano’s claims pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Doc. No. 6). For the reasons that follow, I
grant PSNH’s motion.
I. STANDARD OF REVIEW
To withstand a motion to dismiss under Rule 12(b)(6), the
plaintiff’s complaint must include factual allegations
sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
Under this standard, the plaintiff must plead “factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
Plausibility demands “more than a sheer possibility that [the]
defendant has acted unlawfully,” or “facts that are merely
consistent with [the] defendant’s liability.” Id. (internal
quotation marks omitted). Although the complaint need not set
forth detailed factual allegations, it must provide “more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Id.
In evaluating the pleadings, I excise any conclusory
statements from the complaint and credit as true all non-
conclusory factual allegations and reasonable inferences drawn
from those allegations. Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12 (1st Cir. 2011). I “may also consider ‘facts subject
to judicial notice, implications from documents incorporated
into the complaint, and concessions in the complainant’s
response to the motion to dismiss.’” Breiding v. Eversource
Energy, 939 F.3d 47, 49 (1st Cir. 2019) (quoting Arturet-Vélez
v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13 n.2 (1st Cir.
2005)).
2 II. BACKGROUND
A. Factual Background
Giordano was employed as a Senior Environmental Coordinator
at PSNH’s Schiller Station power plant until January 9, 2018
when the plant was sold to Granite Shore Power, LLC (“GSP”).
Compl., Ex. 1 to Def.’s Notice of Removal, Doc. No. 1-1 at 8.
Giordano was sixty years old when the plant was sold. Doc. No.
1-1 at 8. By that point, she had worked for PSNH for sixteen
years. Doc. No. 1-1 at 8. The new owner chose not to keep her on
when it acquired Schiller Station. Doc. No. 1-1 at 9.
The Schiller Station sale was part of a larger package that
also included the company’s Newington Station and Merrimack
Station power plants. See Doc. No. 1-1 at 8–9. Giordano alleges
that “[i]n the years leading up to the sale . . . there were
steps taken by senior management to ensure all administrative
environmental personnel who worked directly with generation
stations would be able to keep their positions after the sale to
GSP. . . .” Doc. No. 1-1 at 8. In Giordano’s case, however,
unspecified “tasks that were typically assigned to her that were
specific to her position at Schiller Station were instead
assigned to other, mostly younger workers, and her work duties
were reduced.” Doc. No. 1-1 at 8. The only example Giordano
provides of such a task is that, in preparation for the sale,
another environmental coordinator was assigned to tour Newington
3 and Schiller Stations with GSP’s environmental representatives,
but Giordano was not. Doc. No. 1-1 at 9. Giordano asserts that
“[t]his was Defendant’s way of not giving [her] face time with
the potential new employer, which greatly reduced her chances of
being hired by GSP.” Doc. No. 1-1 at 9. Giordano also alleges
that R. Despins, the Manager of Schiller Station, made
“recommendations to GSP about which [e]nvironmental
[c]oordinators to retain and which to terminate.” Doc. No. 1-1
at 10. And he informed her in December 2017 that “you’re out,”
suggesting that Despins had advance notice that she would not be
hired by GSP. Doc. No. 1-1 at 11.
Giordano claims that Despins made comments about her age,
such as by referring to her as “the oldest person in the room.”
Doc. No. 1-1 at 11. Despins also told Giordano, “I don’t hear
you crying to me that you are going to lose your house with the
layoff,” a comment Giordano attributes to her age “because she
would be much more likely to have paid off her mortgage.” Doc.
No. 1-1 at 11.
Giordano does not have a disability, but she claims that
Despins made statements suggesting that he regarded her as
having a mobility-related disability. Doc. No. 1-1 at 10. For
example, Giordano alleges that Despins offered to put up a
handicapped parking sign next to the building if Giordano wanted
to “go get a handicap [sic] sticker.” Doc. No. 1-1 at 10.
4 Giordano also identifies two former PSNH employees that GSP
hired to continue in their roles after the sale was completed:
Tara Olson and G. Griffin. Olson was employed by PSNH as an
environmental coordinator at Newington Station, which was
located on the same street as Schiller Station. Doc. No. 1-1 at
8. Olson was fifty-eight years old and “believed to be without
any perceived disability.” Doc. No. 1-1 at 9. She was also the
environmental coordinator assigned to tour Newington and
Schiller Stations with GSP’s environmental representatives. Doc.
No. 1-1 at 9.
Griffin, a man in his thirties, was an independent
contractor at Merrimack Station. Doc. No. 1-1 at 9. In the
Spring of 2017, the employee in charge of air reporting at
Merrimack Station retired and Griffin assumed those air
reporting duties while continuing to work as an independent
contractor. Doc. No. 1-1 at 9. Although Griffin did not hold an
environmental coordinator position, Giordano alleges that she
“could have done [the tasks assigned to Griffin] with little to
no additional training.” Doc. No. 1-1 at 9.
B. Procedural Background
Giordano filed a Charge of Discrimination (the
“Administrative Complaint”) with the N.H. Commission on Human
Rights in September 2018, alleging “termination” and “demotion
in duties” due to age, sex, and perceived disabilities. Ex. A to
5 Def.’s Mem. of Law in Supp. of its Mot. to Dismiss (“Def.’s
Mem.”), Doc. No. 6-2 at 1–2. The Administrative Complaint was
forwarded to the EEOC, which issued a Dismissal and Notice of
Rights on August 7, 2019. Ex. B. to Def.’s Mem., Doc. No. 6-3 at
1. Giordano then brought suit in state court, alleging
violations of the ADEA (Count I), Title VII (Count II), the ADA
(Count III), and “Intersectional Discrimination” (Count IV).
Doc. No. 1-1 at 12–14. PSNH removed the case to this court and
subsequently filed the present motion to dismiss.
III. ANALYSIS
PSNH attacks the sufficiency of Giordano’s claims on
numerous grounds. 1 For the following reasons, I agree that her
complaint cannot survive PSNH’s motion to dismiss.
1 PSNH also raises the affirmative defense of failure to exhaust administrative remedies. Doc. No. 6-1 at 8–11. Specifically, PSNH argues that (1) Giordano’s Charge makes no reference to any hostile work environment or harassment claims, and (2) Giordano’s disparate treatment claims are beyond the scope of the acts alleged in her Charge of Discrimination. In responding to the first argument, Giordano asserts that she is not making a harassment claim. Pl.’s Obj. to Def.’s Mot. to Dismiss, Doc. No. 10-1 at 8. Accordingly, I need not determine whether she included a harassment claim in her Administrative Complaint. As to PSNH’s second argument, because Giordano’s pro se Charge plainly alleges sex, age, and disability discrimination in connection with PSNH’s treatment of her surrounding the sale of Schiller Station to GSP, I conclude that she exhausted her administrative remedies with respect to her discrimination claims.
6 A. Adverse Employment Action
Giordano’s Title VII, ADEA and ADA claims fail primarily
because she has not sufficiently alleged that she suffered an
adverse employment action. To bring a successful discrimination
claim under each of the statutes Giordano cites – the ADEA,
Title VII, and the ADA — a plaintiff must have suffered an
adverse employment action. See Collazo v. Nicholson, 535 F.3d
41, 44 (1st Cir. 2008) (ADEA); Benoit v. Tech. Mfg. Corp., 331
F.3d 166, 173 (1st Cir. 2003) (Title VII); Ruiz Rivera v. Pfizer
Pharm., LLC, 521 F.3d 76, 82 (1st Cir. 2008) (ADA). 2 Because of
the vague and generalized nature of Giordano’s complaint, it is
not at all clear what type of adverse employment action she is
alleging. I analyze four possibilities derived from a generous
reading of her pleadings and ultimately conclude that she has
not sufficiently alleged facts supporting any.
1. Termination
Giordano makes passing reference to her “termination” in
her complaint. See, e.g., Doc. No. 1-1 at 12–13. Termination (or
“discharge”) is an adverse employment action and is specifically
enumerated in each of the three relevant anti-discrimination
2 As I explain in greater detail below, Giordano does not assert a statutory basis for her intersectional discrimination claim. Because that claim fails for other reasons, I need not determine whether a complaint for intersectional discrimination must allege an adverse employment action.
7 statutes. See 29 U.S.C. § 623(a)(1) (ADEA); 42 U.S.C. §2000e-
2(a)(1) (Title VII); 42 U.S.C. § 12112(a) (ADA). Giordano,
however, has not pled facts suggesting that a discriminatory
termination occurred.
It is clear from Giordano’s complaint that her employment
with PSNH ended with the sale of Schiller Station. Doc. No. 1-1
at 8. Giordano’s only two comparators — Olson and Griffin — also
ceased to be employed by PSNH when their respective stations
were sold. See Doc. No. 1-1 at 9. In fact, Giordano has not
alleged that PSNH retained any employees from the Schiller,
Newington, or Merrimack Stations, let alone that it made
termination decisions based upon its employees’ protected
characteristics. In short, the current complaint does not
identify any facts that would support a plausible claim that
PSNH’s decision to terminate Giordano was based in whole or in
part on an improper motivation. 3
3 In demonstrating this element of causation, a Title VII plaintiff “may establish an ‘unlawful employment practice’ by demonstrating that sex ‘was a motivating factor for any employment practice, even though other factors also motivated the practice.’” Burns v. Johnson, 829 F.3d 1, 9 n.9 (1st Cir. 2016) (quoting 42 U.S.C. § 2000e–2(m)). Under the ADEA, however, “a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009). The most recent First Circuit decision to articulate the ADA’s causation standard has stated in dictum that the plaintiff must demonstrate that the employer took the adverse employment action “in whole or in part because of [her] disability.” Flaherty v. Entergy Nuclear Operations, Inc., 946 F.3d 41, 53 (1st Cir. 8 2. Failure to Transfer
Giordano also nominally alleges a “failure to transfer”
claim. “[T]here is no doubt that in an appropriate case the
denial of a request for a transfer may be sufficiently harmful
to amount to an adverse employment action . . . .” Gorski v.
N.H. Dep’t of Corr., 290 F.3d 466, 475 (1st Cir. 2002). The
First Circuit Court of Appeals, however, has previously declined
to accept a plaintiff’s argument that a failure to transfer
amounts to an adverse employment action where the plaintiff
“never actually applied for a transfer, so there was not even an
occasion for a denial.” Id.
Giordano has not alleged that she ever sought a transfer to
another position or that her request was denied. The closest
Giordano comes to alleging facts in support of a failure to
transfer claim is her allegation that PSNH hired Griffin to
perform duties that Giordano “could have done with little to no
additional training.” Doc. No. 1-1 at 9. Griffin performed these
duties, however, at a different location from Giordano and he
did not fill an “environmental coordinator” position.
Furthermore, by Giordano’s own allegations, Griffin was an
2019) (emphasis added); but cf. Murray v. Mayo Clinic, 934 F.3d 1101, 1107 (9th Cir 2019) (collecting cases concluding that the “but-for” causation standard required by Gross in ADEA claims also applies to ADA claims).
9 independent contractor whose position was “temporary.” Doc. No.
1-1 at 9. Giordano has identified no authority suggesting that
an employer may be liable for failure to transfer an employee to
a lesser, temporary role at a different location, especially
where plaintiff never sought the transfer in question.
Accordingly, she has failed to properly allege a failure to
transfer claim.
3. Failure to Recommend
Giordano similarly fails to muster factual support for a
“failure to recommend” claim. Refusing to provide a
recommendation can, in some circumstances, be considered an
adverse action, at least with respect to retaliation claims.
See, e.g., Ray v. Ropes & Gray, LLP, 961 F. Supp. 2d 344, 358–59
(D. Mass. 2013) (citing EEOC Compliance Manual § 8–II(D)(2))
(recognizing a failure to recommend as an adverse employment
action in Title VII retaliation case); but cf. Morales-
Vallellanes v. Potter, 605 F.3d 27, 36 (1st Cir. 2010) (noting
that adverse employment action requirement does not apply to
retaliation claims in the same way that it applies to
discrimination claims). Giordano has, however, pleaded
insufficient facts to support such a claim, even if I assume for
purposes of analysis that it could be viable in theory.
The only fact that Giordano alleges in support of this
possible claim is that Despins and the “other station managers
10 and management[] made the recommendations to GSP regarding which
[e]nvironmental [c]oordinators to retain and which to
terminate.” Doc. No. 1-1 at 10. She does not allege that she
ever requested a recommendation, that PSNH did not recommend
her, or that it provided a bad recommendation. She also does not
allege that PSNH recommended other employees or that any such
recommendations were unwarranted. Giordano has, therefore,
failed to allege facts supporting her claim that a
discriminatory failure to recommend occurred.
4. Demotion
Finally, Giordano contends that she has alleged facts
constituting what she calls a “demotion in duties” but that I
will refer to as reassignment of tasks. In some circumstances, a
reassignment of tasks can constitute an adverse employment
action even though it is not an actual demotion. See, e.g., Gu
v. Bos. Police Dep’t, 312 F.3d 6, 14 (1st Cir. 2002)
(“Certainly, if an employee suddenly finds herself with
dramatically decreased supervisory authority and without a voice
in major decisions, this could constitute an adverse employment
action.”) “To be adverse, [however,] an action must materially
change the conditions of plaintiff[’s] employ.” Id. (citing
Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996)). “Work
places are rarely idyllic retreats, and the mere fact that an
employee is displeased by an employer’s act or omission does not
11 elevate that act or omission to the level of a materially
adverse employment action.” Blackie, 75 F.3d at 725.
Giordano has only vaguely asserted that unspecified “tasks
that were typically assigned to her that were specific to her
position at Schiller Station were instead assigned to other,
mostly younger workers, and her work duties were reduced.” Doc
No. 1-1 at 8. Her complaint references only one specific
instance in which this occurred: when “instead of tasking Ms.
Giordano to tour both Newington Station and Schiller Station
with the GSP environmental representatives prior to Defendant’s
sale to GSP, Defendant assigned Olson to do so.” Doc. No. 1-1 at
9. Beyond this one instance, Giordano’s complaint provides no
explanation of what the reassigned tasks were. 4 This complete
lack of specificity makes it impossible to determine if the
alleged reassignment of Giordano’s tasks could plausibly qualify
as an adverse employment action. See Gu, 312 F.3d at 14.
Giordano has, therefore, failed to plead facts supporting
her conclusory assertion that PSNH subjected her to an adverse
4 Where relevant facts necessary to support a claim are in the hands of the defendant, the court may, sua sponte, order limited discovery. See, e.g., 25 CP, LLC v. Firstenberg Mach. Co., No. 09-cv-80-PB, 2009 WL 4884483, at *10 n.14 (D.N.H. Dec. 8, 2009). Here, however, this would be inappropriate because Giordano has first-hand knowledge as to which of her tasks were assigned to other workers.
12 employment action. For this reason alone, her ADEA (Count I),
Title VII (Count II), and ADA (Count III) claims fail.
B. Discriminatory Motive
Giordano’s Title VII claim also suffers from another
deficiency. To survive a motion to dismiss, a plaintiff bringing
a suit for discrimination under the ADEA, Title VII, and the ADA
must plead facts supporting the conclusion that the employer
acted with a discriminatory motive. See Collazo, 535 F.3d at 44
(1st Cir. 2008) (ADEA); Benoit, 331 F.3d at 173 (Title VII);
Ruiz Rivera, 521 at 82 (ADA). While Giordano’s complaint alleges
facts minimally sufficient to suggest that her employer’s
actions were motivated by her age or perceived disability, it is
completely devoid of facts suggesting a sex-based motive.
Giordano compares her treatment to that of only two other
employees: one man and one woman. The man, Griffins, held a
temporary independent contractor position at a different
station. Doc. No. 1-1 at 9. He was not an environmental
coordinator, and Giordano never alleges that she sought
Griffins’s position — only that she “could have done” the tasks
assigned to him. Doc. No. 1-1 at 9. The woman, Olson, held an
environmental coordinator position at another power station and
retained that position upon the sale of her station to GSP. Doc.
No. 1-1 at 8–9. Giordano never alleges that anyone ever even
commented on her sex, let alone commented negatively. There are
13 no allegations of disparaging remarks aimed at other women or of
negative treatment of other women. These facts, without more, do
not give rise to an inference that Giordano’s sex had any causal
connection to PSNH’s actions. 5 Accordingly, Giordano’s Title VII
claim (Count II) is dismissed.
C. Intersectional Discrimination Claims
Count IV of Giordano’s complaint alleges discrimination “on
the basis of the intersection of sex, age, and perceived
disability.” Doc. No. 1-1 at 8. Her complaint does not, however,
identify any statutory basis for this intersectional
discrimination claim. In her objection, Giordano cites cases in
which plaintiffs have successfully brought employment
discrimination suits alleging discrimination based on a
combination of multiple characteristics. See Doc. No. 10-1 at
15–17. She fails, however, to identify any case in which a court
has recognized an intersectional discrimination claim that was
not rooted in an anti-discrimination statute. Cf., e.g.,
5 Giordano’s complaint also alleges that “Giordano was the only female in Defendant’s group of Environmental Coordinators terminated by Defendant upon the sale of its previously aforementioned stations to GSP.” Doc. No. 1-1 at 11. This statement is factually inconsistent with the rest of Giordano’s complaint, which makes clear that Olson was also terminated by PSNH when it sold Newington Station to GSP. More fundamentally, however, Giordano offers no explanation for how this fact would support a conclusion that PSNH discriminated against her as a woman. Accordingly, I do not consider it in my analysis.
14 Fratturo v. Gartner, Inc., No. 3:11cv113 (JBA), 2013 WL 160375,
at *6-8 (D. Conn. Jan. 15, 2013) (rejecting defendant’s motion
for summary judgment on plaintiff’s age-plus-disability claim
brought under the ADEA); Arnett v. Aspin, 846 F. Supp. 1234,
1241 (E.D. Penn. 1994) (recognizing sex-plus-age claim under
Title VII). I, therefore, conclude that Giordano has not
identified adequate legal support for her “intersectional
discrimination” claim and dismiss Count IV.
IV. CONCLUSION
For the reasons set forth above, I grant Defendant’s motion
to dismiss. If Giordano should seek permission to amend her
complaint in an effort to correct the pleading deficiencies I
have identified, she must specify the adverse employment actions
on which her claims are based and identify sufficient supporting
facts to permit a conclusion that she has a plausible claim for
each identified adverse action. She also should not assert a
claim for sex discrimination unless she can allege a plausible
claim that she was a victim of sex discrimination and she should
not assert a claim for intersectional discrimination unless she
is able to ground her claim in an antidiscrimination statute.
15 SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
May 12, 2020
cc: Leslie H. Johnson, Esq. William D. Pandolph, Esq.