Jesep v. NE Health Care Quality Found 04-CV-77-JD 04/27/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Peter Paul Jesep
v. Civil No. 04-cv-77-JD Opinion No. 2005 DNH 073 Northeast Health Care Quality Foundation and Robert Aurilio
O R D E R
Peter Paul Jesep brought claims under Title VII of the Civil
Rights Act of 1964 and New Hampshire law against his former
employer. Northeast Health Care Quality Foundation, and his
supervisor, Robert A. Aurilio. His Title VII claim against
Aurilio and his wrongful termination claim were previously
dismissed. The defendants now move for summary judgment on the
remaining claims, and Jesep objects.
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). A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See id. at 255.
Background1
The Northeast Health Care Quality Foundation ("NHCQF") is a
federally-mandated peer review organization for New Hampshire,
Maine, and Vermont that is responsible for ensuring the integrity
of the Medicare Trust Fund with respect to the guality of care
and beneficiaries' rights. The NHCQF operates through contracts
with the Centers for Medicare and Medicaid Services, which was
formerly the Health Care Financing Administration ("HCFA").
Robert Aurilio has been the executive director of the NHCQF since
1982 .
1The background information is taken from the properly supported factual statements submitted by the parties. To the extent Jesep relies on allegations in his complaint, which is not a verified complaint, those statements are not properly supported and are disregarded. See Fed. R. Civ. P. 56(c); LR 7.2(b) (2); Anderson, 477 U.S. at 246 ("In opposing summary judgment, the nonmoving party may not rest upon the mere allegations or denials of the pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which he or she would bear the ultimate burden of proof at trial.") (internal guotations, citation, and alteration omitted).
2 NHCQF's 1996 to 1999 contract with the HCFA required NHCQF
to have an employee designated to perform communications
functions. Jesep was hired by Aurilio in September of 1995 to
fulfill that requirement. When he was hired, his position was
Public Relations Director, although his business cards referred
to him as Director of Communications. Jesep's job activities and
description changed during his employment to "Director of Public
Affairs and Government Relations." NHCQF and HCFA entered a new
contract in 1999, covering the period of 1999 to 2002, that no
longer required NHCQF to have an employee designated to perform
communications functions. Instead, the new contract stated that
communications, marketing, and outreach activities were
appropriate only to the extent they supported NHCQF's purpose of
improving the quality of care, protecting the integrity of the
trust fund, or protecting beneficiaries.
Aurilio was Jesep's direct supervisor. In the course of his
work at NHCQF, Jesep heard Aurilio make inappropriate comments,
including anti-Semitic, racist, and sexual remarks, on a "pretty
regular" basis. In April of 2000, another NHCQF employee, Brian
McClellan, made a complaint to the NHCQF board of directors in
which he alleged that Aurilio had made remarks of a sexual nature
to him. He identified Jesep, along with other employees, as
witnesses to Aurilio's remarks. McClellan let Jesep and the
other employees know that he had identified them as witnesses in
3 his complaint. Aurilio was notified of the complaint in April by
the president of the board, who also told him that he should be
less friendly with the staff and should be more removed. Aurilio
also received a copy of the complaint in April.
The board engaged a lawyer, Thomas Flygare, to investigate
McClellan's complaint. Flygare interviewed Jesep in May of 2000
and indicated that he would interview the other employees who
were named as witnesses. The investigation concluded in late
June or early July of 2000. McClellan's employment with NHCQF
was terminated at about the same time. Jesep does not know and
the record does not provide information about the outcome of the
investigation or the relationship between McClellan's termination
and the investigation.
After his participation in the investigation of McClellan's
complaint, Jesep noticed that Aurilio's communication with him
was less freguent and less friendly. Aurilio explains that his
contact with Jesep, along with all of the NHCQF employees,
changed in response to the directive from the board that he be
less friendly with the staff and more removed. He also states
that his business relationships with NHCQF employees remained the
same.
Jesep noticed that his relationships with other employees
also changed. He sensed a growing coolness or aloofness, and
certain colleagues told him to stay away from them. Jesep states
4 that another colleague told him that everyone knew Jesep was
being held accountable for participating in the investigation of
McClellan's complaint. One colleague confronted Jesep about his
involvement in McClellan's complaint and gave him the cold
shoulder thereafter. Jesep interpreted the changes in his
relationships as Aurilio's attempt to isolate him.
Jesep also remembers that he was discouraged from using the
NHCQF secretary for his work and that he was not asked to
participate in the eighteen-month contract evaluation although he
had participated in a similar review of the previous contract.
He states that he was not included in management team meetings
after the fall of 2000, although he had participated in those
meetings in the past. He acknowledges, however, that those
meetings were held only sporadically. Jesep noticed that framed
memorabilia of his achievements that hung in a conference room
were removed before the eighteen-month contract evaluation was
held in that room in early 2001.
The defendants point out that Jesep did not receive any
negative notes or comments from Aurilio and that he has no
personal knowledge that Aurilio directed other employees to treat
Jesep differently. After Jesep was interviewed in connection
with McClellan's complaint, Aurilio publicly praised Jesep for
his work on a project and celebrated his five-year anniversary
with NHCQF.
5 NHCQF's contract with HCFA for 1999 to 2002 was subject to
eighteen-month review which occurred in March and April of 2001.
Before the review, Aurilio asked Jesep to prepare a memorandum
about his legislative activities over the last eighteen months.
Aurilio reviewed Jesep's work and decided, based on his own
knowledge of Jesep's activities and Jesep's report about his
legislative activities, that his position could no longer be
justified under the HCFA contract. He notified Jesep of his
decision on March 28, 2001, and Jesep was terminated on April 6,
2001. NHCQF did not hire anyone to fill Jesep's position after
he was terminated.
Discussion
Jesep alleges that NHCQF violated Title VII by terminating
his employment in retaliation for his opposition to unlawful
employment practices and for his participation in an internal
sexual harassment investigation.2 He alleges that NHCQF and
Aurilio violated RSA 354-A by terminating his employment because
of his participation in the internal investigation and "by
otherwise intimidating him and ultimately causing him to be
terminated from his employment in retaliation for his
participation in an act protected by N.H. RSA 354-A:7V." He also
2Jesep's Title VII claim against Aurilio has been dismissed.
6 alleges that his employment was terminated in breach of his
contract and that the defendants' actions constitute intentional
infliction of emotional distress.3 The defendants, NHCQF and
Aurilio, seek summary judgment on all of Jesep's claims.
A. Retaliation
"Under Title VII of the Civil Rights Act of 1964, ... 42
U.S.C. § 2000e-3(a), it is unlawful 'for an employer to
discriminate against any of his employees . . . because [the
employee] has opposed any practice made an unlawful employment
practice under [Title VII], or because the [employee] has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].'" Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001) (guoting §
2000e-3(a)). RSA 354-A:19 similarly proscribes retaliation by
employers. To establish a prima facie case of discriminatory
retaliation, "a plaintiff must show that (i) she undertook
3Although Jesep, who is represented by counsel, also included a claim for negligent infliction of emotional distress in his complaint, he failed to address that claim in response to the defendants' motion for summary judgment. Instead, Jesep states that his claims consist of discriminatory retaliation, breach of contract, and intentional infliction of emotional distress. Therefore, it appears that he is no longer pursuing his claim for negligent infliction of emotional distress, which, as the defendants assert, is barred by RSA 281-A:8,I (1999) (amended Aug. 2001). See Karch v. BayBank FSB, 147 N.H. 52 5, 529-30 (2002) .
7 protected conduct, (ii) she suffered an adverse employment
action, and (ill) the two were causally linked." Noviello v.
Boston, 398 F.3d 76, 88 (1st Cir. 2005); Madeja v. MPB Corp., 149
N.H. 371, 378 (2003) (addressing RSA 354-A:19 and relying on
federal law under Title VII) .4 If the plaintiff completes the
three steps necessary to make a prima facie case, the defendant
must articulate a legitimate, non-retaliatory, reason for the
adverse employment action, which the plaintiff must show is a
pretext for retaliation. King v. Hanover, 116 F.3d 965, 968 (1st
Cir. 1997).
1. Protected conduct.
Protected conduct encompasses both opposition to unlawful
employment practices and participation in Title VII proceedings.
See King v. Hanover, 116 F.3d 965, 968 (1st Cir. 1997) . Jesep
contends that he engaged in protected conduct, within the meaning
of the statutes, by opposing Aurilio's inappropriate remarks and
through his participation in the investigation of McClellan's
complaint of sexual harassment. The defendants assert that
internal investigations, such as the investigation of McClellan's
4Because the New Hampshire Supreme Court relies on federal case law to interpret RSA 354-A and the parties have not argued that there are any material differences between the claims under § 2000e-3(a) and RSA 354-A, no distinction will be made between the two claims for purposes of deciding the present motion. complaint, are not protected activity under Title VII and RSA
345-A.
The First Circuit has not addressed the question of whether
participation in an internal investigation of a complaint that
raises Title VII issues is protected conduct under 2000e-3 (a) .
Most courts have concluded that participation in an internal
investigation by an employer, in the absence of a complaint to
the Equal Employment Opportunity Commission, is not protected
conduct. See, e.g., Abbott v. Crown Motor Co., Inc., 348 F.3d
537, 543 (6th Cir. 2003) (citing cases); Kubicko v. Ogden
Logistics Servs., 181 F.3d 544, 551 (4th Cir. 1997); Jute v.
Hamilton Sunstrand Corp., 321 F. Supp. 2d 408, 415 (D. Conn.
2004) (citing cases); see also Morris v. Boston Edison Co., 942
F. Supp. 65, 71 (D. Mass. 1996). In contrast, however, protected
opposition activity includes participation in an employer's
grievance procedure or an internal investigation to oppose an
unlawful practice. See, e.g.. Hertz v. Luzenac Am., Inc., 370
F.3d 1014, 1015 (10th Cir. 2004); Kubicko, 181 F.3d at 551;
Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259
(4th Cir. 1998); Sumner v. U.S. Postal Serv., 899 F.2d 203, 209
(2d Cir. 1990) .
Following the reasoning of the courts that have addressed
the issue, Jesep's participation in NHCQF's internal
investigation of McClellan's sexual harassment complaint is not protected conduct under the participation clause of § 2000e-3(a).
However, it may be inferred from the undisputed facts in this
case, that Jesep opposed Aurilio's practice of making remarks of
a sexual nature to McClellan and that his participation in the
investigation was part of his opposition to Aurilio's behavior.
Therefore, the record provides a triable issue as to whether
Jesep's cooperation with the investigation was protected conduct
under the opposition clause of § 2000e-3(a) and RSA 354-A:19.
2. Adverse employment action.
Jesep alleges in his complaint that his employment with
NHCQF was terminated in retaliation for his opposition to
Aurilio's practice of making remarks of a sexual nature to
McClellan. In opposing summary judgment, Jesep also asserts that
NHCQF employees, including Aurilio, treated him differently
because he opposed Aurilio's remarks to McClellan, which lead to
his termination.5 The defendants do not challenge Jesep's
5Although a retaliatory hostile work environment may constitute adverse employment action, the abuse or hostility must be so severe and pervasive as to change the conditions of employment. Noviello, 398 F.3d at 89-90, 93. The circumstances Jesep describes were not sufficiently pervasive or severe to create a hostile work environment. See, e.g., id. at 92; Lee- Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 46 (1st Cir. 2003); Koseireis v. Rhode Island, 331 F.3d 207, 216 (1st Cir. 2003); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir. 2002). In any case, the parties focus on the termination of Jesep's employment as the adverse employment action at issue in
10 assertion that he suffered adverse employment action when his
employment was terminated.
3. Causal connection.
Jesep must prove that the adverse employment action was
causally related to his protected activity. See Benoit v. Tech.
M fg. Corp., 331 F.3d 166, 174 (1st Cir. 2003). In other words,
he must show that his employment was terminated because he
opposed Aurilio's treatment of McClellan. The defendants assert
that no causal connection exists.
It is undisputed that no direct evidence exists to support a
connection between Jesep's support of McClellan's complaint and
his termination. The defendants point out that too much time
elapsed between Jesep's involvement in McClellan's complaint in
April and May of 2000 and his termination in April of 2001 to
support a temporal connection. See, e.g., Breeden, 532 U.S. at
273; Benoit, 331 F.3d at 175; Dressier v. Daniel, 315 F.3d 75, 80
(1st Cir. 2003); Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252, 262 (1st Cir. 1999). Jesep argues that the changed
treatment he received from Aurilio and his fellow employees after
he supported McClellan's complaint provides indirect evidence
this case, making any issue of a hostile work environment immaterial.
11 that his later termination was causally related to his protected
activity.
Jesep contends that Aurilio's written communications with
him were less frequent and less friendly after April of 2000 and
that his direct contact with Aurilio also became less frequent
and then ceased. It is undisputed, however, that followinq
McClellan's complaint, Aurilio received a directive from the
NHCQF board of directors that he was to chanqe his behavior in
dealinq with his staff to be less friendly and more removed.
Aurilio testified that he chanqed his informal relationship with
Jesep, alonq with all of his staff, in response to that
directive. Jesep's efforts to suqqest that Aurilio only chanqed
his relationships outside of the work settinq are not persuasive.
Jesep also contends that his fellow employees were less
friendly and told him they did not want to associate with him.
He arques that their chanqed behavior was the result of Aurilio's
efforts to isolate him. He offers no evidence of any connection
between Aurilio and the comments made by his fellow employees.
Nevertheless, an inference miqht be drawn that the other
employees believed that Jesep was no lonqer in favor at NHCQF.
Althouqh that is a weak basis for the causal connection element,
it miqht be enouqh to support a factual issue for purposes of
avoidinq summary judqment on the prima facie case.
12 4. Proof of retaliation.
Assuming that Jesep has made a prima facie case, to support
their motion, the defendants must articulate a legitimate reason
for terminating him. They assert that Aurilio terminated Jesep
because his position could not be justified under NHCQF's 1999 to
2002 contract with HCFA.
The parties do not dispute that NHCQF's 1999 to 2002
contract did not reguire an employee to perform communications
functions, as the previous contract did. They do not dispute
that the 1999 to 2002 contract permitted communications,
marketing, and outreach activities only to the extent that those
activities could be justified to fulfill the purposes of
improving the guality of care, protecting the integrity of the
trust fund, and protecting beneficiaries. They also do not
dispute that the 1999 to 2002 contract was subject to an
eighteen-month review in March and April of 2001.
The defendants contend that Aurilio reviewed Jesep's work as
part of his preparation for the eighteen-month contract review.
He decided to terminate Jesep's employment because he could not
justify his position under the terms of the 1999 to 2002
contract. The defendants state that they have not hired anyone
to replace Jesep.
Jesep contends that the defendants' explanation is not
credible because they waited for eighteen months after the new
13 contract went into effect to terminate him. He asserts that
Aurilio and other NHCQF employees treated him differently after
he participated in the investigation of McClellan's complaint,
suggesting that his termination was motivated by retaliation for
that activity, contrary to the asserted reason. Jesep also
points to some inconsistencies in Aurilio's deposition testimony
about whether Jesep was asked to report on his work activities
and asserts that he, as Director of Public Affairs and Government
Relations, had different job responsibilities than those he
fulfilled initially, as Director of Communications.
That Jesep was not terminated for eighteen months after the
new contract went into effect does not undermine the defendants'
reason for his termination. It is undisputed that his position
was reviewed as part of the eighteen-month contract review, a
process that Jesep acknowledges had also occurred under the
previous HCFA contract. Jesep did not provide a description of
his activities to show, contrary to Aurilio's assessment, that
his job was justifiable under the new contract terms. Whether
Aurilio asked him for a complete review of his activities or only
for his legislative activities does not provide a material
factual dispute because, as his supervisor, Aurilio was familiar
with his work. Further, it is undisputed that NHCQF has not
hired anyone in the intervening four years to fill Jesep's
position or to perform the same activities.
14 It is also undisputed that other employees were interviewed
during the investigation into McClellan's complaint. Jesep has
not shown or even suggested that those employees were terminated
or subjected to retaliation nor has he shown that he was the only
witness who supported McClellan's charges.6 Given the
defendants' legitimate explanation for his termination, Jesep's
evidence that he was treated differently after his support for
McClellan's complaint does not provide sufficient evidence that
would permit a jury to find that his employment was terminated in
retaliation for his conduct.
"For a retaliation claim to survive a motion for summary
judgment, the plaintiff must point to evidence in the record that
would permit a rational factfinder to conclude that the
employment action was retaliatory." Santiago-Ramos v. Centennial
P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000). Jesep has
not carried his burden of showing that a trialworthy issue exists
as to whether he was terminated in retaliation for his support of
McClellan's complaint. Therefore, the defendants are entitled to
6In the context of his intentional infliction of emotional distress claim, Jesep refers to a complaint filed with the EEOC in October of 2000 by another NHCQF employee, charging that she was terminated in retaliation for her complaints of a sexually hostile work environment. The referenced exhibit shows that the EEOC found no statutory violation.
15 summary judgment on Jesep's claims under Title VII and RSA 354-A,
Counts I and II.
B. Breach of Contract
The parties agree that Jesep was hired as an at-will
employee. Jesep alleges, however, that the employee handbook and
other documentation given to him during his employment at NHCQF
provided an express or implied employment contract that NHCQF
breached by terminating him "in bad faith, retaliation and
malice." Compl. Count IV. The defendants move for summary
judgment on the grounds that Jesep was an employee at will and
that no employment contract existed that modified that
relationship.
Under New Hampshire law, in the absence of an agreement as
to the duration or expiration of employment, both the employer
and the employee are free to terminate the employment
relationship at any time. Porter v. City of Manchester, 151 N.H.
30, 37 (2004); Dillman v. New England Coll., 150 N.H. 431, 434
(2003). That status is known as employment at will. Id. An at-
will employment relationship may be modified by the terms and
conditions provided in an employer's policy statement, handbook,
or manual. See Butler v. Walker Power, Inc., 137 N.H. 432, 435-
16 36 (1993); Panto v. Moore Bus. Forms, Inc., 130 N.H. 730, 737-39
(1988). The meaning of an employment agreement is a legal
guestion for the court to decide. Butler, 137 N.H. at 435.
Jesep received the NHCQF employee handbook at the beginning
of his employment and signed an acknowledgment that he received
the handbook, the NHCQF personnel policies, and the
confidentiality policy. He understood, based on his legal
training, that he was an at-will employee and that he could be
discharged at any time and for any reason that was not unlawful.7
He also understood that the NHCQF could eliminate his position if
it no longer fulfilled the NHCQF mission. Jesep acknowledged at
his deposition that the handbook stated that his employment was
considered to be at will and that either party could terminate
the relationship at any time for any lawful reason.
Jesep did not submit copies of any of the documents that he
contends altered his employment status. Instead, he relies on
the allegations in his complaint and his deposition testimony to
describe those documents. As such, Jesep has not provided a
sufficient record for the court to interpret the meaning of the
employment documents on which he relies.
7Jesep graduated from law school and passed at least one bar examination but did not practice law.
17 Even if the court were to rely on Jesep's descriptions of
the pertinent documents, without the opportunity to review the
documents themselves, he fails to show that NHCQF modified his
employment status. Jesep contends that the employee manual
stated that staff would not be retaliated against if they
reported sexual harassment and that it contained an anti
harassment policy.8 He argues that the defendants failed to
comply with that policy and that their failure constitutes breach
of contract. Because the at-will provision in the handbook
included a provision that an employee would not be terminated for
unlawful reasons, which would be implied even if it were not
explicit in the handbook, the anti-retaliation and anti
harassment policies do not modify the at-will relationship.9
Jesep also argues in support of his breach of contract claim
that he was valuable to the organization and that he performed
his job in a satisfactory manner. He states that Aurilio had
told him in early 2000 that his position would be easy to justify
to the HCFA and was secure. However, neither stellar performance
nor informal promises of continued employment change the at-will
8He also states that the documents lacked any condition that his employment was contingent on the HCFA contract. Because his employment was at will, the lack of a condition or term in the handbook does not alter his employment relationship.
9Jesep's wrongful discharge claim was previously dismissed.
18 status of employment. Smith v. F.W. Morse & Co., 76 F.3d 413,
426-27 (1st Cir. 1996) .
Therefore, the defendants are entitled to summary judgment
on Jesep's breach of contract claim.
C. Intentional Infliction of Emotional Distress
Jesep alleges that the "intentional actions of Robert A.
Aurilio, individually and as an officer of NHCQF, in terminating
Mr. Jesep's employment in retaliation for having opposed unlawful
employment practices and participating in an internal sexual
harassment investigation . . . , caused Mr. Jesep to suffer
emotional distress and mental suffering." Compl. 5 71. He also
alleges: "NHCQF, through its agents, in terminating Mr. Jesep's
employment in retaliation for having opposed unlawful employment
practices and participating in an internal sexual harassment
investigation . . . caused Mr. Jesep to suffer emotional distress
and mental suffering." Compl. 5 72. As such, Jesep's
intentional infliction of emotional distress claim is based on
his termination.
The defendants move for summary judgment on the grounds that
the workers' compensation statute, RSA 281-A:8,I(a), precludes
the claim as to NHCQF for employment-related conduct. They also
content that termination is insufficient to support a claim of
19 intentional infliction of emotional distress. In response, Jesep
ignores the workers' compensation statute and argues that
Aurilio's actions constituted intentional infliction of emotional
distress.
At the time in guestion in this case, RSA 281-A:8,I(a)
barred an employee's claim against his employer for intentional
infliction of emotional distress based on conduct or
circumstances during his employment. See Karch, 147 N.H. at 531;
see also Martin v. Applied Cellular Tech., Inc., 284 F.3d 1, 6
(1st Cir. 2002). In Konefal v. Hollis/Brookline Co-op. Sch.
Dist., 143 N.H. 256, 260 (1998), the court held that termination
of employment alone was insufficient to support a claim of
intentional infliction of emotional distress. Therefore, NHCQF
is entitled to summary judgment on Jesep's intentional infliction
of emotional distress claim.
Even if Jesep had alleged a claim of intentional infliction
of emotional distress against Aurilio, he would face a difficult
standard to show a trialworthy issue on that claim. To prove
intentional infliction of emotional distress, Jesep would have to
show that Aurilio's remarks constituted extreme and outrageous
conduct which either intentionally or recklessly caused him
emotional distress. Morancy v. Morancy, 134 N.H. 493, 495-96
(1991). Extreme and outrageous conduct, in this context, must be
20 "'so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts
to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim, 'Outrageous!'" Moss
v. Camp Pemigewassett, Inc., 312 F.3d 503, 511 (1st Cir. 2002)
(guoting Restatement (Second) of Torts § 46, cmt. d (1977) and
citing Konefal, 143 N.H. at 260) .
In support of his claim, Jesep points to his deposition
testimony where he testified that Aurilio made anti-Semitic,
racial, and sexist remarks which made him uncomfortable. He also
testified in his deposition that Aurilio made inappropriate
sexual remarks about McClellan and made sexist and racist remarks
in the presence of a female employee. Jesep does not suggest
that any of Aurilio's remarks were aimed at him or were said for
the purpose of making him uncomfortable. He also stated in his
deposition that he never made any complaint about Aurilio's
conduct, and he does not show that Aurilio was aware that he was
uncomfortable about the remarks. Aurilio's perceived aloofness
does not constitute intentional infliction of emotional distress.
Under these circumstances, no issue of material fact exists
to support Jesep's claim of intentional infliction of emotional
21 distress against Aurilio. Therefore, Aurilio is entitled to
summary judgment on that claim.
Conclusion
For the foregoing reasons, the defendants' motion for
summary judgment (document no. 13) is granted. Jesep's Title VII
claim against Aurilio and his wrongful discharge claim were
previously dismissed, and summary judgment resolves all of the
remaining claims in favor of the defendants. The clerk of court
shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
April 27, 2005
cc: Edward M. Kaplan, Esguire Jennifer A. Lemire, Esguire