Gatsas v. Manchester School

2008 DNH 153

Opinion

Gatsas v . Manchester School 05-CV-315-SM 08/22/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Katherine Gatsas, Plaintiff

v. Civil N o . 05-cv-315-SM Opinion N o . 2008 DNH 153 Manchester School District a/k/a Administrative Unit N o . 3 7 , Defendant

O R D E R

Plaintiff seeks a new trial following a jury verdict in

favor of defendant, essentially arguing that her pretrial motion

to amend the complaint (document n o . 6 1 ) , by adding a claim for

retaliation based upon her termination in August of 2007, should

have been granted.

The court denied that motion at the final pretrial

conference, ruling that “[T]he proposed amendment would require

further delay of the scheduled trial in an already aging case,

raised new issues that would require reopening discovery, and

appeared to relate to a temporally unrelated matter.” In

addition, defendant consented to plaintiff’s arguing for

compensatory damages for alleged retaliation through the jury

verdict, leaving any additional damages related to the alleged

retaliatory discharge for another day, in a trial based upon that

discrete act of alleged discrimination. See Orders dated November 1 4 , 2007 (document n o . 6 1 ) , and November 1 , 2007

(document n o . 67) (“The parties also agreed that for purposes of

this litigation compensatory damages includes a claim by

plaintiff for lost pay up through the jury verdict (reinstatement

— or front pay being equitable remedies for the court to

resolve). Should plaintiff pursue a separate claim for wrongful

discharge (not permitted as a late amendment to this case) any

recovery of lost pay here will offset against a lost pay recovery

in that potential future case.”).

Plaintiff’s new trial motion again argues that the amendment

should have been allowed under Clockedile v . New Hampshire

Department of Corrections, 245 F.3d 1 , 6 (1st Cir. 2001), and

Rivera v . Puerto Rico Aqueduct & Sewers Authority, 331 F.3d 183

(1st Cir. 2003). But not only was the proposed amendment likely

to disrupt the trial schedule, it also concerned a discrete claim

of alleged retaliation that was some four years removed from the

supposed cause for retaliation underlying the case (i.e., filing

a claim of discrimination related to defendant’s failure to hire

plaintiff for a temporary and interim vice-principal’s position

years earlier), a claim that was not plausibly “reasonably

related [to] and growing out of the discrimination complained of

to the agency . . . .” Clockedile, 331 F.3d at 6. Rivera

affirmed Clockedile’s essential holding — that a judicial

2 complaint can encompass discrete acts of retaliation reasonably

related and growing out of the discrimination complained of to

the agency, but added nothing new. The court declined to decide

whether a judicial complaint also may encompass non-retaliatory

but related discrete acts which took place after the

discrimination described in the charge filed with the agency, if

plaintiff failed to amend her administrative change or to file a

new one.

Needless to say, plaintiff still may bring that discrete

claim, as she represents that she filed a charge of

discrimination with the N.H. Commission for Human Rights on

November 5 , 2007, just before trial. But, she will have to

establish that her discharge, years after she filed a complaint

about not being offered the interim vice-principal’s position,

was causally connected to that protected activity. Three and

four month periods between protected activity and alleged

retaliation have been held insufficient to establish the

necessary causal connection based upon temporal proximity, see,

e.g., Calero-Cerezo v . United States DOJ, 355 F.3d 6, 25 (1st

Cir. 2004), so plaintiff will have to produce evidence from which

a rational jury could find a causal connection between the

earlier complaint and the discharge to succeed on a retaliation

claim. See also Mariani-Colon v . Dep’t of Homeland Sec., 511

3 F.3d 216, 224 (1st Cir. 2007). (“Given appellant’s continued

failure to accept an alternative position with the TSA and return

to work, the temporal proximity between appellant’s complaints of

discrimination and his discharge fails to raise an “inference of

retaliation.”) (citation omitted); see also Orta-Castro v. Merck,

Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 111 (1st Cir.

2006).

Given the lateness of the claim (plaintiff was not

discharged until August of 2007) and the potential overlap of

damages (lost pay for retaliation as pled and lost pay for

wrongful termination as retaliation), the court encouraged

defendant to waive any argument at trial that lost pay damages

were cut off as of plaintiff’s termination, given that those

damages were comparatively minor, and, if plaintiff recovered

those damages, they would be offset on a future discharge claim,

and if not, defendants were none the worse for it.

The motion for new trial (document no. 91) is denied.

SO ORDERED.

S ___ven J./McAuliffe Chief Judge August 22, 2008

cc: Leslie H. Johnson, Esq. Kathleen C. Peahl, Esq.