Lamonthe v. NH Dept, of Corrections CV-02-442-JD 10/24/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Yvan Lamothe
v. Civil No. 02-442-JD Opinion No. 2003 DNH 180 New Hampshire Department of Corrections
O R D E R
The plaintiff, Yvan Lamothe, brings claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,
alleging workplace discrimination based on his race and national
origin. The New Hampshire Department of Corrections ("DOC"),
Lamothe's former employer, moves for summary judgment on the
grounds that Lamothe's claims are time barred and that he lacks
evidence to prove them. Lamothe objects to summary judgment.
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.
Background
Yvan Lamothe, who is black and was born in Haiti, was hired
by the DOC in February of 1986. He had a Bachelor's Degree in
Human Services Administration and a Master's Degree in Counseling
and Human Services. In 1987, he was hired by the DOC as a
Probation/Parole Officer ("PPO"). He was employed by the DOC
until February 15, 2001.
He was one of only two or three black PPOs of a total of
seventy-five PPOs employed by the DOC. Sterling Wheeler and
Carol Cochrane were African-American PPOs and were co-employees
of Lamothe. Edward Leonard Ziefert, who is Jewish, was also a
PPO and a co-employee. During Lamothe's employment, the DOC
employed no blacks or Hispanics in positions of Chief, Assistant
Director, or Director of the Probation/Parole Office or in
supervisory positions in the DOC as a whole. He states that he
was subjected to racial slurs and comments during his employment
2 and that Wheeler, Cochrane, and Ziefert experienced
discrimination based on race, ethnicity, and religion.
In 1999, Lamothe applied for the position of Assistant
Director of Field Services along with four other candidates. He
went through the hiring process which included submitting a
formal application, an initial screening, a panel interview, and
a final decision by Donald Parrish, the Director of Field
Services. Joanne Fortier, who was also a PPO, was hired for the
position. Lamothe believed that he was more gualified for the
position and that Fortier had been preselected because both the
DOC Acting Commissioner, Etta Cantor, and Director Parrish
favored her.
The position of Director of Field Services became vacant in
the spring of 2000. Lamothe applied for the position. After the
deadline for applications was extended several times, the new DOC
Commissioner, Philip Stanley, circulated a memorandum in which he
explained that he wanted to extend the applicant pool. Stanley
encouraged Larry Blaisdell, who had previously been Assistant
Director of Field Services, to apply for the position. When the
application period closed in September of 2000, approximately
twenty applications had been submitted.
Commissioner Stanley directed Lisa Currier, the DOC Director
of Human Resources, to conduct an initial screening to narrow the
3 number of candidates to seven, which included Lamothe. Those
applicants, including Lamothe, were interviewed by a panel of
six, comprised of DOC personnel and non-DOC personnel. After the
interview process, the panelists recommended that two applicants,
Michael Zenk and Larry Blaisdell, should be considered for the
position. Stanley interviewed Zenk and Blaisdell separately, and
then the candidates were interviewed by a group of DOC employees.
Blaisdell, who is white, was hired for the position.
On December 11, 2000, Lamothe injured his back while he was
working and did not return to work after the injury. He retired
from the DOC effective February 15, 2001. He filed a complaint
with the New Hampshire Human Rights Commission on June 7, 2001.
Lamothe filed his complaint in this action on September 30, 2002.
In the complaint, Lamothe alleges that he received a right to sue
letter on July 10, 2002.1
1The record does not appear to include a copy of the complaint submitted to the Human Rights Commission or the right to sue letter. The document appended to Lamothe's complaint, which is referred to as the right to sue letter, is actually a letter from a paralegal in Lamothe's counsel's office addressed to James Owers at Sulloway & Hollis and appears to pertain to an offer of settlement in a different case entirely.
4 Discussion
Lamothe's claims that he was not hired for the Assistant
Director and Director positions in 1999 and 2000 and that he was
subjected to a hostile work environment because of his race and
national origin.2 The DOC moves for summary judgment to the
extent Lamothe's claims are based on the 1999 hiring decision on
the ground that such a claim is untimely. Lamothe does not
address that claim and apparently concedes that it is untimely.3
With respect to the 2000 decision, the DOC contends that Lamothe
cannot show discrimination was the reason he was not hired as
Director. The DOC also contends that evidence is lacking to show
that Lamothe was subjected to a hostile work environment.
2Lamothe, who is represented by counsel, does not state his claims clearly in the complaint but accepts the claims as described by the DOC in its motion.
3As a prereguisite for a Title VII claim, a plaintiff must exhaust administrative remedies by filing a complaint with the Egual Opportunity Employment Commission or the local administrative agency authorized to handle such complaints. See Clockedile v. N.H. Dep't of Corrs., 245 F.3d 1, 4 (1st Cir. 2001). When the state agency is authorized to handle complaints, as in this case, the plaintiff has 300 days from the challenged employment practice to file a complaint. See 42 U.S.C. § 2000e- 5(e)(1); Madison v. St. Joseph H o s p ., 949 F. Supp. 953, 957-58 (D.N.H. 1996). Because the decision to hire Joanne Fortier, rather than Lamothe, as Assistant Director of Field Services was made in December of 1999 and Lamothe filed his complaint in June of 2001, any claim based on that decision is time barred. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) .
5 A. Discriminatory Hiring in the 2000 Decision
When as here a plaintiff lacks direct evidence of
discriminatory motive in a hiring decision, he may prove his case
with circumstantial evidence by using the burden-shifting
analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), which begins with a prima facie case. Che v. Mass. Bay
Trans. Auth., 342 F.3d 31, 38 (1st Cir. 2003). A prima facie
case is established by showing that "(1) he is a member of a
protected class; (2) he was gualified for the job; (3) the
employer took an adverse employment action against him; and (4)
the position remained open or was filled by a person with similar
gualifications." Kosereis v. Rhode Island, 331 F.3d 207, 212-13
(1st Cir. 2003) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 506 (1993)). The burden of establishing a prima facie case
is "not onerous." Williams v. Raytheon Co., 220 F.3d 16, 19 (1st
Cir. 2 000).
It is undisputed that Lamothe is a member of a protected
class, based on his race and national origin, and that he was
gualified for the job. It is also undisputed that the DOC's
decision not to hire him for the Director of Field Services
position is an adverse action within the meaning of Title VII.
Larry Blaisdell, who was chosen for the position, and Lamothe had
similar gualifications.
6 Once the plaintiff makes a prima facie case of
discrimination, an inference arises and the employer must offer a
non-discriminatory reason for the decision. Che, 342 F.3d at 39.
If the employer meets that burden, the inference of
discrimination is effectively countered, and the plaintiff bears
the burden of showing that the decision was discriminatory. Id.
One means of proving discrimination is to show that the
employer's stated reason was a pretext for an underlying
discriminatory intent. Id. (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000)). Pretext may be shown in
a variety of ways, including by statistical evidence of disparate
treatment based on race, incidences of disparate treatment based
on race in the workplace, or discriminatory comments made by
decisionmakers or those who influence decisionmakers. Kosereis,
331 F.3d at 213; Santiaqo-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 55 (1st Cir. 2000) .
The DOC states that Lamothe did not get the job of Director
of Field Services because other candidates scored higher than he
did in the hiring procedures and because he was not recommended
by the hiring panel. In addition, the DOC states. Commissioner
Stanley knew Larry Blaisdell better and thought he would be good
at the job. Lamothe counters that Stanley told him he was not
chosen because he lacked management experience, which Lamothe
7 challenges as not true, citing his record as a Unit Manager of
the DOC's Halfway House and, previously, as a director of a
refugee program in Massachusetts. He also contends that he was
excluded from the opportunity of gaining management experience
because of the DOC policy of preselecting an individual to fill
vacant positions, contrary to the official hiring procedure and
in violation of state law. He asserts that the hiring process,
ostensibly based on a point system, was a sham to cover hiring
Stanley's preselected choice, Larry Blaisdell.
Lamothe cites the deposition testimony of a former Assistant
Director of Field Services, Sherwood Vacchs, to support his
theory that Larry Blaisdell was Stanley's preselected choice.4
Vacchs testified that the reason Stanley chose Blaisdell was
because Blaisdell was a "wuss" and Stanley did not like
employees, like Vacchs, who would stand up to him. Vacchs also
testified that as far as he knew, Lamothe's race was not the
reason he was not chosen for the job.
Lamothe explains his gualifications for the job and notes
4Vacchs's testimony primarily addresses the process used by Donald Parrish, in 1999 and before, which he describes as a "sham." Vacchs was no longer working at the DOC when Lamothe applied for the position of Director of Field Services and Larry Blaisdell was hired for that position. His testimony about that hiring process is based on his own opinion and what he heard from other employees. Stanley's mistaken impression that he lacked managerial
experience. He recounts, in his affidavit, instances when white
men and women were hired or promoted into DOC managerial
positions with comparable or less experience than he had. In a
Title VII case, however, "'[c]ourts may not sit as super
personnel departments, assessing the merits--or even the
rationality--of employers' nondiscriminatory business
decisions.'" Kearney v. Town of Wareham, 316 F.3d 18, 25 (1st
Cir. 2002) (guoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825
(1st Cir. 1991)). Therefore, whether or not Stanley's choice of
Blaisdell, over Lamothe, was wise, it is actionable only if
motivated by racially discriminatory animus, which is not
demonstrated by Vacchs's testimony. See id.
Lamothe presents his observations, along with the
observations of Sterling Wheeler and Carol Cochrane, as to the
scarcity of black PPOs, although he also acknowledges the small
minority population in New Hampshire. He provides no evidence of
the number of minority applicants for DOC positions in comparison
to the number hired. Lamothe notes that during his DOC
employment a black person never served in the position of Chief
PPO, Assistant Director, or Director and that the DOC has no
black or Hispanic supervisors or managers. Lamothe presents no
evidence, other than his own experience, of black applicants for those positions who were not hired or evidence of other racially
discriminatory hiring or promotion decisions.
Despite the incidents of discrimination Lamothe, Sterling
Wheeler, Carol Cochrane, and Lenny Ziefert describe, Lamothe does
not show or suggest that Stanley or any members of the hiring
panel were involved in any discriminatory incidents or harbored
discriminatory animus.5 To the contrary, the record shows that
Lamothe had no reason to believe that Stanley or any of the
panelists was biased against him because of his race or his
national origin. Taken in the light most favorable to Lamothe,
the record supports his charge that Stanley recruited Blaisdell
to apply for the position and favored him for the position. The
record does not include any evidence, however, that such
favoritism was based on race. Therefore, Lamothe has not carried
his burden of showing that a material factual issue exists as to
whether he was denied the Director of Field Services position
because of his race.
5Instead, Lamothe argues that an incident involving an African-American applicant for a PPO position in 1995 shows that Lisa Currier, the DOC Director of Human Resources, was biased against African Americans. Even if the incident recounted by the applicant demonstrated bias, which is far from clear, Currier included Lamothe in the screened group that was presented to the hiring panel. Lamothe has not shown that any discriminatory bias Currier may have harbored affected him.
10 B. Hostile Work Environment
It is an unlawful employment practice under Title VII for an
employer to require an employee "'to work in a discriminatorily
hostile or abusive environment.'" Crowley v. L.L. Bean, Inc.,
303 F.3d 387, 394 (1st Cir. 2002) (quoting Harris v. Forklift
Svs., 510 U.S. 17, 21 ((1993)). To be actionable, however, "'the
workplace [must be] permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment.'" Gorski v. N.H. Dep't of Corrs.,
290 F.3d 466, 471 (1st Cir. 2002) (quoting Harris, 510 U.S. at
21). Incidents involving other employees or comments directed at
other employees may be relevant to a hostile work environment
claim in certain circumstances. See, e.g., Leibovitz v. N.Y.
Citv Transit Auth., 252 F.3d 179, 190 (2d Cir. 2001); McPhaul v.
Bd. of Com'rs, 226 F.3d 558, 567 (7th Cir. 2000).
The timely filing provision of Title VII requires a
complaint to be filed within the applicable time period after at
least one act that contributed to a hostile work environment.
Nat'l R.R. Passenger Corp., 536 U.S. at 117. As noted above, the
applicable time period here is 300 days. Because Lamothe filed
his complaint with the New Hampshire Commission on Human Rights
on June 7, 2001, at least one act that contributed to the claim
11 must have occurred after early August of 2000 and before he left
due to injury in December of 2000.
Lamothe does not identify one act or comment directed to him
that occurred within that time period. He points to incidents
involving Wheeler, Cochrane, and Ziefert, but none of the
incidents described occurred between August and December of
2000.6 Therefore, his hostile environment claim is time barred.
Even if the claim were timely, however, Lamothe has not
provided sufficient evidence of a hostile work environment to
avoid summary judgment. "An employee states a claim under Title
VII if he alleges offensive, race-based conduct that is severe or
pervasive enough to create an objectively hostile or abusive work
environment and is subjectively perceived by the victim as
abusive." Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607,
613 (1st Cir. 2000). The harassment must be sufficiently severe
or pervasive to alter the conditions of his employment.
Kosereis, 331 F.3d at 216; Crowley, 303 F.3d at 395. "'[WJhether
6If anti-Semitic comments or incidents are relevant to Lamothe's claim, he has not shown that the events described by Ziefert in his deposition occurred after mid-August of 2000 and before he left the DOC because of injury in December of 2000. To the extent a time context may be gleaned from the excerpts of the deposition testimony submitted by Lamothe, it appears that most of the incidents occurred in the 1990s although one incident involving "Keith" may have occurred in December of 2002. Lamothe makes no effort to provide any detail or time context for these incidents.
12 an environment is "hostile" or "abusive" can be determined only
by looking at all the circumstances. These may include the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.'" Landrau-Romero, 212 F.3d at 613
(quoting Harris, 510 U.S. at 23) .
The first hostile incident Lamothe recounts occurred when he
was introduced to the PPOs when he was hired in 1987. When the
Director introduced him as a Haitian, Lamothe heard someone say
"AIDS," which he interpreted to mean that he was viewed as
someone likely to be infected with HIV, which he found hurtful.
Other PPOs referred to Lamothe as "Flashlight," which was a
nickname first given him when he worked in the Forensic Unit
before becoming a PPO. Lamothe explains that the nickname refers
to the size of his penis. He also notes that a fellow employee
and friend, Gregg Compton, "had a terrible habit of saying []
'why don't you go back to Haiti.'"
In 1990, after Lamothe and a white PPO made a home visit on
a parolee, someone called the Manchester police to report that
two men had been prowling in the neighborhood, where the PPOs
visited, and that one of the men was wearing a black mask. That
incident caused many laughs in the next few days. Also in 1990,
13 a fellow PPO made remarks to Ziefert about David Duke, a Nazi
candidate for office, and Adolf Hitler. When Ziefert complained.
Director Parrish yelled at Ziefert instead of addressing the
anti-Semitic remarks.
Sometime in the late 1900s, Ziefert was given a copy of a
cartoon of an aboriginal man, with a bone in his nose, and the
caption "Lenny's Uncle" by the department secretary who said it
had been submitted for the department newsletter. Ziefert knew
it was submitted by Dan Kierstead who was chief of the Claremont
district office. Ziefert shared the cartoon with Lamothe and
they both were offended.
Lamothe states that he was subjected to a number of
inappropriate jokes during his employment as a PPO. He provides
one example, without a time frame, about a man with a monkey on
his shoulder who explained the monkey was from Africa. Lamothe
says that he, along with Wheeler and Cochrane, had experiences
where a fellow employee returning from a vacation would compare
his or her skin color to theirs. Lamothe also cites the lack of
sensitivity training for PPOs, after reguests for such training
were made by Wheeler, Cochrane, and Ziefert, and the lack of
minority employees as evidence of a hostile work environment.
Title VII does not address name calling, teasing, isolated
incidents, and offhand remarks. Kosereis, 331 F.3d at 216.
14 Lamothe has not demonstrated that any of the comments or
incidents he describes were frequent, severe, or physically
threatening to him, or that the environment affected his work
performance.7 Instead, the circumstances he describes fall into
the crude, inappropriate, and insensitive workplace antics that
unfortunately occur but are not actionable under Title VII. See
id. As such, he has not demonstrated a material factual issue as
to the existence of an actionable hostile work environment.
Conclusion
For the foregoing reasons, the defendant's motion for
summary judgment (document no. 9) is granted. The clerk of court
shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
October 24, 2003
cc: John G. Vanacore, Esquire Nancy J. Smith, Esquire
7The court, of course, makes no assessment of discrimination that may have been experienced by other PPOs.