McDermott v. Town of Salem

2014 DNH 224

• Court: District Court, D. New Hampshire
• Decided: October 23, 2014
• Docket: 13-cv-188-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cynthia McDermott

v. Civil No. 13-cv-188-LM Opinion No. 2014 DNH 224 Town of Salem

O R D E R

Cynthia McDermott has sued her former employer, the Town of

Salem, New Hampshire (“the Town”), in three counts, asserting

claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq. Specifically, she seeks to recover for:

sex discrimination in the form of disparate treatment, sex

discrimination in the form of a hostile work environment, and

retaliation. Before the court is the Town’s motion for partial

summary judgment. McDermott objects. For the reasons that

follow, the Town’s motion is granted.

Summary Judgment Standard

“Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law.” Ponte v. Steelcase Inc., 741 F.3d

310, 319 (1st Cir. 2014) (quoting Cortés–Rivera v. Dept. of

Corr., 626 F.3d 21, 26 (1st Cir. 2010)); see also Fed. R. Civ.

P. 56(a). When ruling on a motion for summary judgment, the

court must “view[] the entire record ‘in the light most hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.’” Winslow v.

Aroostook Cnty., 736 F.3d 23, 29 (1st Cir. 2013) (quoting Suarez

v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)).

Background

The facts that follow are undisputed. McDermott was

employed by the Town’s Department of Public Works (“DPW”). On

several occasions, her supervisor sent her pornography. She

reported him to the Town, which eventually discharged him. In

her complaint, McDermott alleges that while she was employed by

the DPW, she was subjected to disparate treatment due to her

gender and retaliation. On what turned out to be her last day

of work for the Town, she and a male co-worker were assigned to

replace catch-basin grates. While loading replacement grates

onto a truck at a DPW facility, she and her co-worker did not

have access to a backhoe. As a result, they loaded the grates

by hand. While doing so, McDermott injured her back, and has

not returned to her job. She has received, and continues to

receive, workers’ compensation for her back injury.

Discussion

In its motion for summary judgment, the Town argues that

McDermott is not entitled to compensation for her back injury in

2 this lawsuit because: (1) she cannot demonstrate that her back

injury resulted from sex discrimination or retaliation; and (2)

recovery for losses resulting from her back injury are precluded

by the so-called workers’ compensation bar. The Town’s second

argument carries the day.

Under the New Hampshire Workers’ Compensation Law, “[a]n

employee of an employer subject to [that statute] shall be

conclusively presumed to have accepted [its] provisions . . .

and . . . to have waived all rights of action whether at common

law or by statute . . . [a]gainst the employer.” N.H. Rev.

Stat. Ann. (“RSA”) § 281-A:8, I(a). In other words:

An employee is entitled to compensation under the Workers’ Compensation Law for “accidental injury or death arising out of and in the course of employment,” RSA 281-A:2, XI, but may not bring a separate tort [or statutory] action against her employer. Indeed, the Workers’ Compensation Law expressly provides that an employee subject to that chapter waives the right to bring such a separate action in exchange for the acceptance of benefits. RSA 281-A:8, I(a).

Karch v. BayBank FSB, 147 N.H. 525, 530 (2002). By accepting

workers’ compensation benefits for her back injury, McDermott

has waived her right to bring a Title VII claim based upon that

same injury.

To support her argument that she is entitled to recover

economic losses resulting from her back injury, such as lost

income, loss of retirement, healthcare, and other benefits,

3 McDermott relies on Judge DiClerico’s order in Gilbert v. Essex

Group, Inc., 930 F. Supp. 683 (D.N.H. 1993). Her reliance on

Gilbert is misplaced.

In Gilbert, one of the plaintiffs was discharged from his

employment and asserted various tort claims arising out of his

discharge. There is no indication in Judge DiClerico’s opinion

that the plaintiff in Gilbert ever applied for or received

workers’ compensation benefits for his employer’s allegedly

tortious conduct. Judge DiClerico ultimately ruled that “[t]he

plaintiffs’ [tort] claims for economic injuries such as the lost

income, loss of retirement, healthcare and other benefits

allegedly suffered as a result of Richard Gilbert’s termination

are not barred by RSA § 281-A:8.” Gilbert, 930 F. Supp. at 689.

Here, of course, McDermott is not seeking to recover for

economic injuries resulting from the termination of her

employment; she is seeking to recover for her back injury.1 More

importantly, Judge DiClerico never had the occasion to address

the question at issue here, which is whether a person collecting

1 And, as for economic losses, the Workers’ Compensation Law expressly provides compensation for lost wages resulting from a covered personal injury. See RSA 281-A:28 (temporary total disability); RSA 281-A:28-a (permanent total disability); RSA 281-A:31 (temporary partial disability); RSA 281-A:31-a (permanent partial disability). So, application of the workers’ compensation bar does not prevent McDermott from recovering economic losses; it merely limits her recovery to the economic damages prescribed in the Workers’ Compensation Law.

4 workers’ compensation benefits for a workplace injury could sue

for additional compensation for that same injury. Accordingly,

Gilbert is inapposite and does not support McDermott’s objection

to summary judgment.

In sum, McDermott’s acceptance of workers’ compensation

benefits for her back injury bars her from seeking additional

compensation for that same injury by characterizing that injury,

in this Title VII action, as having been caused by gender

discrimination or retaliation. As the New Hampshire Supreme

Court has explained, under the workers’ compensation scheme, an

“employee surrenders some of [her] damages claims in exchange

for a quick, easily obtained partial compensation.” Estabrook

v. Wetmore, 129 N.H. 520, 525 (1987) (citation omitted).

McDermott has reaped the benefit of being awarded compensation

without having to prove fault. See Alonzi v. Ne. Generation

Servs. Co., 156 N.H. 656, 664 (2008) (explaining that “[t]he

primary focus [of workers’ compensation] was, and is, to address

the employee’s loss of earning power regardless of legal

fault”). Having received compensation without the burden of

having to prove fault, McDermott cannot now assert a cause of

action seeking damages in addition to the compensation she is

currently receiving under RSA 281-A.

5 Conclusion

For the reasons detailed above, the Town’s motion for

summary judgment, document no. 22, is granted, with the result

that McDermott may not pursue a Title VII claim based upon the

back injury she suffered on her last day of work for the Town.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

October 23, 2014

cc: Brian J.S. Cullen, Esq. Thomas J. Gleason, Esq.