Michelle Lemoine v. W.B. Mason Company, Inc.

2021 DNH 013

• Court: District Court, D. New Hampshire
• Decided: January 19, 2021
• Docket: 20-cv-924-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Michelle Lemoine

v. Case No. 20-cv-924-PB Opinion No. 2021 DNH 013 W.B. Mason Company, Inc.

ORDER

Michelle Lemoine has sued W.B. Mason Company, Inc. for

sexual orientation discrimination and retaliation in violation

of Title VII and N.H. Rev. Stat. Ann. ch. 354-A (RSA 354-A).

W.B. Mason has responded with a motion to dismiss the

retaliation claims.

Lemoine alleges that W.B. Mason placed her on a Performance

Improvement Plan (“PIP”) on June 15, 2017. See Compl. ¶ 19.

When she was presented with the PIP, she told her supervisor

that “she believed she was being discriminated against.” Compl.

¶ 38. W.B. Mason then terminated Lemoine approximately a month

later. Compl. ¶ 44. Lemoine asserts that she was terminated in

retaliation for opposing W.B. Mason’s discriminatory decision to

place her on a PIP.

W.B. Mason argues that Lemoine’s complaint to her

supervisor does not qualify as protected conduct under either

Title VII or RSA 354-A because it was too vague to sufficiently identify the type of discrimination she believed she was facing.1

I disagree.

Neither Title VII nor RSA 354-A require the use of “magic

words” to qualify a complaint of discrimination as protected

conduct. Burns v. Johnson, 829 F.3d 1, 17 (1st Cir. 2016)

(quoting Tang v. Citizens Bank, N.A., 821 F.3d 206, 216 (1st

Cir. 2016)). Instead, “‘[w]hen an employee communicates to her

employer a belief that the employer has engaged in . . . a form

of employment discrimination, that communication’ virtually

always ‘constitutes the employee’s opposition to the activity.’”

Crawford v. Metropolitan Gov’t of Nashville & Davidson Cty.,

Tenn., 555 U.S. 271, 276 (2009) (quoting 2 EEOC Compliance

Manual §§ 8–II–B(1), (2), p. 614:0003 (Mar. 2003)); see e.g.

Rolfs v. Home Depot U.S.A., Inc., 971 F. Supp. 2d 197, 216

(D.N.H. 2013) (“Standing alone, the words ‘Come on, Gene’” are

too vague to qualify as a complaint of discrimination, but

additional evidence, including manager’s reaction to plaintiff’s

words, permitted a conclusion that plaintiff “could have

reasonably believed, in good faith” that his manager’s behavior

violated Title VII).

Here, sufficient context existed to place W.B. Mason on

notice that Lemoine was opposing an unlawful employment action.

1 Defendant’s alternative argument that Lemoine’s protected conduct stems from a 2012 HR complaint is unavailing in light of Lemoine’s opposition brief in which she explicitly disclaims that incident as the basis for her retaliation claims. 2 In 2012, Lemoine filed a complaint with Human Resources after

the company showed several of its employees, including Lemoine,

an offensive sales video mocking homosexual relationships.

Compl. ¶¶ 62-71. Additionally, Lemoine’s supervisor and other

employees in her office were aware of her sexual orientation.

Compl. ¶¶ 12, 14, 21, 24. Thus, Lemoine has sufficiently

alleged that she “had a good faith, reasonable belief” that her

employer was violating the law by placing her on PIP, that she

appropriately opposed such a violation by telling her supervisor

she believed she was being discriminated against, and that,

given her prior complaint, the employer was on notice that

Lemoine was complaining about discrimination based on her sexual

orientation.2 Accordingly, W.B. Mason’s motion to dismiss (Doc.

No. 6) is denied.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

January 19, 2021

2 To the extent that the defendant suggests in its brief that Lemoine must allege that the defendant actually violated the law by placing her on PIP, such an argument is contrary to established precedent. See Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009) (“To establish the first of these elements - participation in a protected activity - [Appellant] need not prove that the conditions against which [s]he protested actually amounted to a violation of Title VII. Appellant must demonstrate only that [she] had a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.”) (citations and quotations omitted). 3 cc: Heather M. Burns, Esq. Lauren S. Irwin, Esq. Brooke Lois Lovett Shilo, Esq. W. Daniel Deane, Esq. Nathan P. Warecki, Esq.