Gatsas v . Manchester SD 05-CV-315-SM 11/07/06 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Katherine Gatsas, Plaintiff
v. Civil N o . 05-cv-315-SM Opinion N o . 2006 DNH 127 Manchester School District also known as School Administrative Unit N o . 3 7 , Defendant
O R D E R
Katherine Gatsas brings this discrimination suit against
Manchester School District, also known as School Administrative
Unit N o . 37 (“the District”), claiming that she was subjected to
disparate treatment based on gender, in violation of 42 U.S.C.
2000e-2(a) (Count I ) and a related state statute (Count I I ) . She
also asserts claims of retaliation (Count III) and wrongful or
retaliatory discharge (Count I V ) .
Defendant moves for summary judgment. For the reasons set
forth below, defendant’s motion for summary judgment is denied.
STANDARD OF REVIEW
Summary judgment is appropriate when the record demonstrates
“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.” F E D . R . C I V . P . 56(C). In considering a motion for summary
judgment, the court must view the record “in the light most
hospitable” to the nonmoving party. Euromodas, Inc. v . Zanella,
Ltd., 368 F.3d 1 1 , 17 (1st Cir. 2004) (citing Houlton Citizens’
Coalition v . Town of Houlton, 175 F.3d 1 7 8 , 184 (1st Cir. 1999);
Garside v . Osco Drug, Inc., 895 F.2d 4 6 , 48 (1st Cir. 1990)). An
issue is “‘genuine’ if the parties’ positions on the issue are
supported by conflicting evidence.” Int’l Ass’n of Machinists &
Aerospace Workers v . Winship Green Nursing Ctr., 103 F.3d 196,
200 (1st Cir. 1996) (citing Anderson v . Liberty Lobby, Inc., 477
U . S . 2 4 2 , 250 (1986)). An issue is “‘material’ if it potentially
affects the outcome of the suit.” Id. at 199-200.
In support of its summary judgment motion, the moving party
must “identify[] those portions of [the record] which . . .
demonstrate the absence of a genuine issue of a material fact.”
Celotex Corp. v . Catrett, 477 U . S . 3 1 7 , 323 (1986). If the
moving party successfully demonstrates the lack of a genuine
issue of material fact, “the burden shifts to the nonmoving party
. . . to demonstrate that a trier of fact reasonably could find
in [its] favor.” DeNovellis v . Shalala, 124 F.3d 2 9 8 , 306 (1st
Cir. 1997) (citing Celotex, 477 U . S . at 322-25). Once the burden
shifts, the nonmoving party “may not rest upon mere allegation[s]
2 or denials of his [or her] pleading, but must set forth specific
facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256.
BACKGROUND
The facts, set forth in the light most favorable to Gatsas
are as follows. Gatsas has worked for the District since 1998,
starting out as a long-term substitute teacher and later becoming
a member of the full-time staff, teaching primarily sixth grade
science. (Def.’s Mot. Summ. J., Ex. A (Gatsas Employment R.))
Gatsas earned a bachelor’s degree in 1978 and a master of
education degree in 1990, both from Notre Dame College in
Manchester, New Hampshire. (Gatsas Employment R.) Gatsas also
holds elementary education and principal certifications, (Gatsas
Employment R . ) , as well as a general special education
endorsement, from the New Hampshire Department of Education.
(Def.’s Mot. Summ. J., Ex. Q.)
In early 2003, the District posted a job vacancy
announcement seeking an interim assistant principal for Hillside
Middle School (“Hillside” or “the School”), the school at which
Gatsas taught. (Def.’s Mot. Summ. J., Ex. B (Job Posting.)) The
announcement disclosed that the job qualifications included a
3 masters degree in educational administration “or equivalent
required for certification,” New Hampshire certification as a
principal, a statement of eligibility, or enrollment in an
accredited certification program, and experience as a certified
teacher. (Job Posting.) The posting also indicated that the
successful candidate would be a “visionary” as well as a
“collaborator who utilizes the strengths of staff, students,
parents, and community in creating a quality learning
environment.” (Job Posting.) Notwithstanding the qualifications
described in the job posting, “when the District considers
candidates for interim positions, [it is] often more flexible
with respect to hiring criteria.” (Def.’s Mot. Summ. J., Ex. C
(Bass Aff.) ¶ 4.)
Six people, three men and three women, including Gatsas,
applied for the position. (Writ ¶ 12.) Of the six, four were
already employed at Hillside in various other capacities.
(Def.’s Mot. Summ. J., Ex. D (Donohue Aff.) ¶ 4 . Each candidate
was interviewed by Stephen Donohue, the principal of the School,
and Joseph Ferrisi, the assistant principal, who selected two
finalists, William Dupere and Stephen Harrises, for consideration
by a final selection committee. (Donohue Aff. ¶ 8.) After the
screening committee reviewed the candidates, the superintendent
4 and assistant superintendent made the ultimate decision to
appoint M r . Dupere, then a guidance counselor at Hillside, to
fill the interim assistant principal vacancy. (Writ ¶ 12.)
Following Dupere’s appointment to the interim position,
Gatsas’s teaching assistant at the time, Martha Folopoulos, had a
casual conversation with Hillside assistant principal Joseph
Ferrisi during which he agreed with a comment made by Folopoulos
to the effect that the principal “would have never hired somebody
like Kathie [Gatsas] because she’s a strong . . . woman.” (Pl.’s
Mot. Opp. Summ. J., Ex. 18 (Folopoulos Depo.) 11-12.)
Believing that she had been passed over for the interim
position because of her gender, and to express her
dissatisfaction with the District’s hiring decision, Gatsas
placed advertisements in several local newspapers criticizing the
District and Principal Donohue for the decision, and alleging
that Dupere was unqualified for the job and that the District
discriminates on the basis of gender. (Def’s. Mot. Summ. J.,
Ex. G.)
On or about April 1 4 , 2003, Gatsas filed charges with both
the New Hampshire Commission for Civil Rights and the federal
5 Equal Employment Opportunity Commission (“EEOC”), alleging gender
discrimination. (Writ ¶ 7.)
At the end of the 2002-2003 school year, after placing the
newspaper advertisements and filing discrimination complaints,
Gatsas received notification that her teaching assignment had
been changed for the following school year. (Writ ¶ 13.)
Instead of teaching sixth grade science, as she had in the past,
she was slated to teach seventh grade language arts, and was to
be relocated to a different classroom, Room G25, which was
located in the school’s basement and was generally considered to
be undesirable. (Writ ¶ 14.) In August, just prior to the start
of the 2003-2004 school year, Gatsas raised concerns about her
new assignment with her union representative. As a result, her
reassignment was rescinded. (Writ ¶ 18.) Gatsas never taught a
seventh grade class nor did she ever teach in Room G25. (Def.’s
Mot. Summ. J., Ex. K (Gatsas Depo.) 66.) On or about August 1 3 ,
2003, Gatsas amended her complaint with the EEOC to include a
charge of retaliation, presumably related to the reassignment.
(Writ ¶ 7.)
Gatsas also sought other assignments within the District,
including two long-term substitute teaching assignments, but was
6 unsuccessful. (Writ ¶ 21.) Upon her return to the class in
September 2003, Gatsas experienced what she characterized as
“rude and hostile” behavior by members of the school
administration, which included “refusing to speak to her, failure
to provide her with requested teaching supplies, and jostling her
in the hallways of the school.” (Writ ¶ 19.) In November 2003
Gatsas began using her allotted sick time, subsequently providing
“a letter from her psychiatrist indicating that she felt unable
to work.”1 (Def.’s Mem. Summ. J., Ex. L.) Gatsas has been “out
of work” since December 2003. (Writ ¶ 23.)
On January 5 , 2005, Gatsas notified the District that she
was ready to return to work, and that she would prefer to be
placed somewhere other than Hillside. (Def.’s Mot. Summ J.,
Ex. O.) A letter from Gatsas’s psychologist indicated that she
was interested in pursuing employment as an “Out of District
Placement Monitor,” a position for which the District agreed to
1 There is some dispute as to the status of Gatsas’s employment. In her complaint, Gatsas characterizes her departure as “an unpaid medical leave of absence” as a result of workplace stress. (Writ ¶ 22.) In its Memorandum of Law in Support of Motion for Summary Judgment, the District notes that “although [Gatsas] has never been terminated, she has never been granted an approved leave of absence,” (Def.’s Mot. Summ. J., Ex. N . ) , because “the District requested that [Gatsas] complete FMLA forms in order to approve her leave status, [but] she never submitted those forms.” (Def.’s Mot. Summ. J., Ex. N.)
7 interview Gatsas. (Def.’s Mot. Summ. J., Ex. P.) But, because
she lacked reliable transportation, a necessity, Gatsas was
unable to pursue the position. (Gatsas Depo. 130-31.)
On or about May 1 1 , 2005, the EEOC issued a Notice of Right
to Sue. (Writ ¶ 8.) Because she believed she had been denied
the interim assistant principal position, and suffered
retaliatory treatment because of her accusations of gender
discrimination, Gatsas brought this four-count complaint against
the District for violating her rights under 42 U.S.C. 2000e-2(a)
and related state statutes.
DISCUSSION
Defendant moves for summary judgment on all four counts.
With respect to Counts I and I I , the District says Gatsas has
failed to demonstrate that its proffered nondiscriminatory reason
for its decision to hire someone else for the interim position
was a pretext for unlawful gender discrimination. Regarding
Count I I I , the District contends that Gatsas has failed to
establish that she suffered an adverse employment action, or
alternatively, that she cannot demonstrate any causal connection
between her protected activity and the allegedly retaliatory
conduct. Finally, regarding Count IV, defendant asserts that
8 state law precludes a common law wrongful termination action
where a statutory cause of action is available to redress the
same complaint, as it is here.
I. Disparate Treatment - Title VII (Count I )
“The operative provision of Title VII makes it unlawful to
‘discriminate against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . [race, color, religion, sex,
or national origin].’” Noviello v . City of Boston, 398 F.3d 7 6 ,
89 (1st Cir. 2005) (quoting 42 U.S.C. § 2000e-2(a)(1)). “[I]n a
disparate treatment case, ‘[t]he central focus of the inquiry
. . . is always whether the employer is treating some people less
favorably than others because of their race, color, religion,
sex, or national origin.’” Thomas v . Digital Equip. Corp., 880
F.2d 1486, 1490 (1st Cir. 1989) (quoting Furnco Constr. Corp. v .
Waters, 438 U.S. 5 6 7 , 577 (1978)) (internal quotation marks
omitted).
The parties dispute which analytical framework better fits
this case. Gatsas argues that because she has put forth direct
evidence of discrimination, this case should be considered a
mixed-motive case, as described in Price Waterhouse v . Hopkins,
9 490 U.S. 228 (1989). The District counters that Gatsas has
proffered only circumstantial evidence of discrimination, so the
familiar burden-shifting framework set out in McDonnell Douglas
Corp. v . Green, 411 U.S. 792 (1973), is more appropriate.
Generally the Price Waterhouse mixed-motives framework is
reserved for cases in which a plaintiff puts forth direct
evidence of discrimination. Patten v . Wal-Mart Stores E . , Inc.,
300 F.3d 2 1 , 25 (1st Cir. 2002). 2 Direct evidence is that which
2 There remains some uncertainty as to whether the distinction between direct and circumstantial evidence still exists in light of the Supreme Court’s recent decision in Desert Palace, Inc. v . Costa, 539 U . S . 90 (2003). Under Desert Palace, a plaintiff no longer needs direct evidence of discrimination to trigger mixed-motive analysis, but instead must simply “present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for any employment practice.” Id. at 101 (quotation marks omitted). Whether this new evidentiary standard applies at the summary judgment stage remains an open question, however. LEX K . LARSON, LARSON’S EMPLOYMENT DISCRIMINATION § 8.09 (2d ed. 1994). Although the Court of Appeals for the First Circuit has yet to address the issue, the Eighth Circuit recently explained that Desert Palace simply indicates
that a plaintiff bringing an employment discrimination claim may succeed in resisting a motion for summary judgment where the evidence, direct or circumstantial, establishes a genuine issue of fact regarding an unlawful motivation for the adverse employment action . . . even though the plaintiff may not be able to create genuine doubt as to the truthfulness of a different, yet lawful, motivation.
Strate v . Midwest Bankcentre, Inc., 398 F.3d 1011, 1018 (8th Cir. 2005).
10 “consists of statements by a decisionmaker that directly reflect
the alleged animus and bear squarely on the contested employment
decision.” Febres v . Challenger Caribbean Corp., 214 F.3d 5 7 , 60
(1st Cir. 2000). In such cases, “plaintiff’s burden is tempered
so that [he or] she need prove only that the discriminatory
action was a motivating factor in an adverse employment
decision.” Patten, 300 F.3d at 2 5 . Upon proving that the
employment decision was based, at least in part, upon
discriminatory animus, “the employer has a limited affirmative
defense that does not absolve it of liability, but restricts the
remedies available to a plaintiff.” Desert Palace, 539 U.S. at
94. “In order to avail itself of the affirmative defense, the
employer must ‘demonstrate that [it] would have taken the same
action in the absence of the impermissible motivating factor.’”
Id. at 94-95 (quoting 42 U.S.C. § 2000e-5(g)(2)(B) (replaced text
in original)).
In cases where only circumstantial evidence of
discrimination is presented, the McDonnell-Douglas analysis is
appropriate.3 Under that test,
3 The Supreme Court’s decision in Desert Palace has also given rise to uncertainty as to whether the McDonnell-Douglas burden-shifting framework remains valid. Hillstrom v . Best Western TLC Hotel, 354 F.3d 2 7 , 31 (1st Cir. 2003). The First Circuit noted recently “that in Raytheon C o . v . Hernandez, 540
11 a plaintiff must establish a prima facie case, which in turn gives rise to an inference of discrimination. See Dichner v . Liberty Travel, 141 F.3d 2 4 , 29-30 (1st Cir. 1998). The employer then must state a legitimate, nondiscriminatory reason for its decision. See Zapata- Matos v . Reckitt & Colman, Inc., 277 F.3d 4 0 , 44 (1st Cir. 2002). If the employer can state such a reason, the inference of discrimination disappears and the plaintiff is required to show that the employer’s stated reason is a pretext for discrimination. See id. at 4 5 .
Kosereis v . Rhode Island, 331 F.3d 2 0 7 , 212 (1st Cir. 2003).
In deciding which analytical framework better fits this
case, the court must consider whether Gatsas has put forth
sufficient evidence from which a reasonable jury could conclude
by a preponderance that the District’s hiring decision was
motivated, in part, by discriminatory animus.
Gatsas argues that by agreeing to (and adopting)
Folopoulos’s assertion that the District did not (or would not)
hire her because she was a “strong, aggressive woman,” Ferrisi
effectively made a statement that reflected a discriminatory
animus bearing directly on the challenged decision. The District
counters that Ferrisi’s agreement referred not to the gender
aspect of Folopoulos’s remark, but rather, the personality
U.S. 44 (2003), the Supreme Court used the McDonnell-Douglas framework without commentary in a post-Desert Palace case.” Id.
12 aspect. That i s , that Donohue would not have hired anyone – male
or female – who exhibited aggressive personality characteristics
such as those attributed to Gatsas.
In considering whether particular remarks constitute direct
evidence of gender discrimination, the court must exclude “‘mere
background noise’ and ‘stray remarks.’” Patten, 300 F.3d at 25
(quoting Febres, 214 F.3d at 6 1 ) . Moreover, “‘[a] statement that
can plausibly be interpreted two different ways – one
discriminatory and the other benign – does not directly reflect
illegal animus . . .’” Id. (quoting Fernandes v . Costa Bros.
Masonry, Inc., 199 F.3d 5 7 2 , 583 (1st Cir. 1999)). On the other
hand, “[t]he mere fact that a fertile mind can conjure up some
innocent explanation for such a comment does not undermine its
standing as direct evidence.” Febres, 214 F.3d at 6 1 .
Here, the District asserts that the Folopoulos remark, with
which Ferrisi allegedly agreed, can be plausibly interpreted two
different ways. Although the discriminatory interpretation
suggests that Gatsas was not given the job because she was an
aggressive woman, the benign interpretation speaks only to the
personality characteristic of assertiveness, rather than to her
gender. Facially, the distinction is a fine one, but the context
13 in which the comment was made, especially when considered in the
light most favorable to the plaintiff, is sufficient to permit a
reasonable jury to conclude that the District’s decision not to
hire Gatsas was motivated, in part, by a discriminatory animus.
In addition to that modest direct evidence of gender
discrimination, Gatsas points to the other factors — e.g., that a
male candidate was selected over a female candidate — as indirect
evidence of discriminatory animus. She points out that not only
was a male hired, but that both male finalists for the position,
Dupere and Harrises, were unqualified for the position, because
they lacked the required educational credentials and state
certifications as described in the job posting.
In brief, the job posting described the minimum
qualifications for the position as including a masters degree in
educational administration, state certification as a principal or
eligibility for such certification, as well as experience as a
certified teacher. Harrises, one of the finalists, had
experience as a certified teacher, but lacked a masters degree or
principal certification, although he was enrolled in a masters
program in school administration which would lead to such
certification. (Def.’s Mot. Summ. J., Ex. F (Donohue Aff. II)
14 ¶ 2.) Dupere held a masters degree and was certified by the
state as a guidance counselor, but apparently lacked
certification as a principal, and was not then eligible for
certification. (Pl.’s O b j . Summ. J., Ex. 16.) To cure this
obvious deficiency, Dupere agreed t o , and in fact did,
subsequently enroll in a masters program in school administration
to obtain his principal’s certification. (Donohue Aff. II ¶ 2.)
The job posting plainly required that the successful
candidate hold a masters degree or its equivalent; it neither
stated nor implied that enrollment in a program leading to the
degree would be sufficient. Moreover, Dupere’s resume reveals
that while he had substantial experience as a guidance counselor,
he had little or no experience as a classroom teacher, as called
for in the job posting. Gatsas, however, satisfied all of the
disclosed requirements.
The District seeks to justify its consideration of facially
unqualified candidates by explaining that it often relaxes its
standards when hiring for interim positions. Such a practice
might well be prudent and necessary i f , for example, few
qualified persons applied and the need to quickly fill the
position outweighed the need to fill it with a fully qualified
15 candidate. On the other hand, circumstances might be that the
only facially qualified applicants are so deficient in other
qualities necessary to successful performance that a superior but
facially unqualified person should be hired.
Here, defendant had at least one applicant, Gatsas, who met
all of the qualifications described in the job posting. On this
concededly undeveloped record, there appears little explanation
for relaxing the published criteria. Coupled with the
affirmation allegedly made by Ferrisi, the bare facts presented,
taken in the light most favorable to Gatsas, could support a
reasonable jury’s determination that plaintiff was denied the
interim position because of her gender. Of course, there may
well have been any number of other, valid, reasons to pass Gatsas
by, notwithstanding her facial qualification. But for purposes
of this motion the facts must be taken in the light favoring
Gatsas.
The District offers several nondiscriminatory reasons for
its decision, including Gatsas’s interview performance, her many
absences, and her poor ability to fulfill the obligations of an
administrative post, as well as the District’s interest in
minimizing disruption to students and staff by avoiding the
16 creation of a short-term class vacancy by filling the interim
position with a current teacher. But these reasons are not
sufficient to avoid summary judgment, because plaintiff has put
forth sufficient evidence from which a jury could find by a
preponderance that the decision not to hire her was at least
partly based on an unlawful discriminatory motive. In short, a
genuine dispute of material fact exists as to the District’s
motivation in denying Gatsas the interim position. Accordingly,
defendant is not entitled to judgment as a matter of law, and its
motion for summary judgment as to Count I is necessarily denied.
II. Disparate Treatment - N.H. Rev. Stat. Ann. 354-A (Count II)
Plaintiff alleges defendant’s discriminatory conduct
violates New Hampshire Rev. Stat. Ann. (“RSA”) 354-A. That state
statutory claim fails, however, because the state law does not
provide for a private cause of action. See Bergstrom v .
University of New Hampshire, 943 F. Supp. 1 3 0 , 132 n.3 (D.N.H.
1996). Accordingly, defendant’s motion for summary judgment as
to Count II is granted.
III. Retaliation - Title VII (Count III)
“[T]o establish a claim of retaliation, a plaintiff ‘must
show that (I) she undertook protected conduct, (ii) she suffered
17 an adverse employment action, and (iii) the two were causally
linked.’” Carmona-Rivera v . Commonwealth of P.R., N o . 05-2500,
2006 U.S. App. LEXIS 23257, *13 (1st Cir. September 1 2 , 2006)
(citing Noviello v . City of Boston, 398 F.3d 7 6 , 88 (1st Cir.
2005)).
“[T]he anti-retaliation provision of Title VII ‘is not
limited to discriminatory actions that affect the terms and
conditions of employment.’” Id. (citing Burlington N . & Santa Fe
Ry. C o . v . White, 2006 U.S. LEXIS 4895 at *20 (June 2 2 , 2006)).
But rather, “‘a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, which
in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.’”
Id. (citing Burlington, 2006 U.S. LEXIS 4895 at *26) (quotation
marks and citations omitted). “The alleged retaliatory action
must be material, producing a significant, not trivial, harm.”
Carmona-Rivera, 2006 U.S. App. LEXIS 23257 at * 1 4 . “An
employee’s decision to report discriminatory behavior cannot
immunize that employee from those petty slights or minor
annoyances that often take place at work and that all employees
experience.” Burlington, 2006 U.S. LEXIS 4895 at * 2 7 .
18 Here, it is undisputed that plaintiff engaged in protected
conduct by filing complaints of gender discrimination with
federal and state authorities. At issue is whether plaintiff
suffered materially adverse employment actions as a direct result
of engaging in the protected conduct.
Plaintiff alleges that her announced reassignment to Room
G25, an undesirable classroom located in the basement, and to
teach seventh grade language arts instead of sixth grade science,
constituted materially adverse actions that produced substantial
harm. But plaintiff never actually taught seventh grade language
arts, and never taught in Room G25, since, after objecting
through her union representatives, the new assignments were
rescinded.
Even if plaintiff had actually switched subjects and taught
in G25, it would be difficult to characterize such an assignment
as being materially adverse. The record indicates that teachers
are frequently reassigned from year to year, and plaintiff’s own
employment history reveals that she had been reassigned several
times in the past. The classroom, though comparatively
undesirable, was nevertheless an actively used classroom to which
someone had to be assigned. Further, aside from requiring
19 additional planning and preparation at the beginning of the
academic year, there is no evidence that teaching seventh grade
language arts is any more or less burdensome than teaching sixth
grade science, or that Gatsas was unqualified to teach either.
Thus, the announced reassignment is properly characterized as a
minor annoyance which was promptly remedied by the administration
upon learning of the objection.
Even if the reassignment was considered a materially adverse
employment action, plaintiff has failed to demonstrate a causal
connection between her filing of the complaints and the action
taken by the District. Although it is true that temporal
proximity of the protected activity and subsequent wrongful
conduct can be probative of a causal link, see Calero-Cerezo v .
U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004); see also
Clark County Sch. Dist. v . Breeden, 532 U.S. 2 6 8 , 273-74 (2001),
here there is substantial evidence to suggest that the
reassignment announcement was made consistently with standard
practice, at the end of the school year, effective the following
school year. The mere fact that plaintiff filed her
discrimination complaints at or about the time the District
routinely announces teaching assignments for the following year
i s , alone, an insufficient basis upon which to conclude that her
20 reassignment was retaliatory in character or was otherwise the
product of her filing complaints of discrimination.
The other allegedly retaliatory action — being jostled in
the hallways, having Donohue visit her classroom frequently, the
threat of having certain furniture removed from the classroom,
and the lack of supplies — are all relatively trivial
vicissitudes of work life that the Burlington court sought to
omit from retaliation claims. 2006 U.S. LEXIS 4895 at *27-28.
In the parlance of Burlington, plaintiff’s decision to report
discriminatory behavior cannot immunize her from petty slights
and minor annoyances that come with working at a large public
middle school.
As noted in Burlington, the standard for determining whether
a particular action is materially adverse is an objective one,
that i s , the question is whether a reasonable person would find
the conduct to be materially adverse. 2006 U.S. LEXIS 4895 at
*28. While there is no doubt that plaintiff found some of the
allegedly retaliatory behavior to be unpleasant and offensive, no
reasonable jury could find, based on the evidence proffered by
plaintiff, that the conduct she experienced was so materially
adverse so as to constitute retaliation as comprehended by Title
21 VII. Accordingly, defendant is entitled to summary judgment on
this claim, and its motion for summary judgment as to Count III
is therefore granted.
IV. Wrongful Discharge (Count IV)
Plaintiff argues that she has been effectively discharged as
a teacher with the District as a result of her reporting the
alleged gender discrimination. Defendant counters that plaintiff
is barred from bringing a common law wrongful discharge claim
because a statutory cause of action is available to her, based on
the same facts. Defendant is correct.
“In Wenners v . Great State Beverages, Inc., 140 N.H. 100
(1995), the plaintiff relied on a section of the Bankruptcy Code”
in support of its wrongful discharge claim. Smith v . F.W. Morse
& Co., 76 F.3d 413, 429 (1st Cir. 1996). In that case,
[t]he court held that “while a plaintiff may not pursue a common law remedy where the legislature intended to replace it with a statutory cause of action,” a wrongful discharge action could proceed if the relevant statutory provision did not provide a private cause of action for its violation.
Id. (quoting Wenners, 140 N.H. at 1 0 3 ) .
22 Further, “Title VII not only codifies the public policy
against gender-based discrimination but also creates a private
right of action to remedy violations of that policy and limns a
mature procedure for pursuing such an action.” Id. at 430.
Here, plaintiff has brought two claims under Title V I I , one for
disparate treatment and one for retaliation, each claim arising
out of the same facts as the wrongful discharge claim. Thus,
“[u]nder Wenners, the existence of such a remedy precludes
[plaintiff], in the circumstances of this case, from asserting a
common law claim for wrongful discharge.” Id. Accordingly,
defendant is entitled to judgment as a matter of law and its
motion for summary judgment is therefore granted as to Count IV.
CONCLUSION
For the reasons given, defendant’s motion for summary
judgment (document n o . 17) is granted in part and denied in part.
Specifically, judgment shall be entered in defendant’s favor on
Counts I I , I I I , and IV. Otherwise the motion for summary
judgment is denied.
23 SO ORDERED.
Steven J . McAuliffe :hief Judge
November 7 , 2006
cc: Leslie H. Johnson, Esq. Kathleen C . Peahl, Esq.