Murdy v. Nashua Sch. Dist. CV—05— 174—PB 12/19/06
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patricia Murdy
v. Case No. 05-cv-174-PB Opinion No. 2006 DNH 14i Nashua School District
MEMORANDUM AND ORDER
Patricia Murdy brings this suit against her former employer,
Nashua School District, alleging age discrimination (Count I),
wrongful/constructive discharge (Count II), breach of contract
(Count III), and breach of good faith and fair dealing (Count
IV). Murdy bases her claims on defendant's decision to assign
her to a non-preferential course schedule despite her 31 years of
teaching in the Nashua School District. The parties have agreed
to dismiss Counts III and IV. For the reasons set forth below, I
deny defendant's motion for summary judgment with respect to
Count I and grant it with respect to Count II.
I. BACKGROUND
Murdy was 55 years old in the fall of 2003. She began
teaching for the Nashua School District in September 1971. From 1971 through 1995, Murdy taught general business courses at the
high school level. In 1981, she began teaching accounting and
went on to enhance and improve the District's business course
offerings.
In June 1995, still one of the least senior business
teachers, the District "pink slipped" her out of the business
department and into the health department. Murdy had some prior
experience in health and took additional classes to earn a health
teaching certificate. Murdy taught health classes for the next
seven years, serving as department-head for five.
In April 2002, the District granted Mur d y 's request to
return to the business department and assigned her to teach two
health classes, two desktop publishing (graphics) classes and six
introduction to computers classes. Murdy had no experience in
graphics and had to teach both graphics and computers without
instructional materials, properly functioning computers, or
support from the administration for one semester. When she
finally received one set of 25 textbooks for the second semester,
she had to carry all 25 books from class to class in a hallway
full of students.
- 2 - Murdy preferred teaching accounting classes because they
were high level courses, students were motivated and tended to
continue on to college, and parents were generally more involved.
The computer courses she had instead been assigned were generally
considered less desirable classes.
In April 2003, Murdy learned that Department Chairman,
Marshall Derry, had discussed schedule requests with other
business teachers for the forthcoming year, but not with her.
Defendant had offered six accounting classes to 36-year-old
Kathryn Tremblay and 45-year-old Michele Bolton, even though they
each had only two years of teaching experience. Both Tremblay
and Bolton declined the offers. When Murdy later pulled Derry
aside to request the accounting classes, Derry informed her that
he had no business schedule for her because he had assumed that
she would be returning to the health department. Believing she
would again end up with what she perceived as an undesirable
course schedule, Murdy became upset and physically ill.
Murdy subsequently made several more requests for the
accounting schedule and filed a grievance with then-Principal
Patrick Corbin. Corbin and Associate Principal Timothy Kelley
explained that they were keeping desirable courses open for
- 3 - younger teachers and a yet-to-be-named new hiree. They said they
could not give a new or young1 teacher a homogenous, undesirable
schedule because it would cause them to leave the school district
for other more desirable jobs. Corbin also repeatedly referred
to veteran teachers as "gray hairs" during regular staff
meetings. Upon receipt of an e-mail from Corbin in May 2003
explaining his reason for keeping the accounting positions open,
Murdy became physically ill and was taken by ambulance to the
hospital where she stayed overnight.
In June 2003, defendant hired 26-year-old Corey Laird as a
continuing substitute teacher and assigned him the six accounting
classes Murdy had requested. Murdy filed a grievance about her
schedule. In response she received two of the accounting classes
originally assigned to Laird.
In June 2004, Murdy again requested accounting classes.
Despite her request, defendant assigned her to teach eight
introduction to computer classes for the 2004-05 school year.
For the same period, defendant assigned six accounting classes to
36-year-old Tremblay, one to 28-year-old Blossom Dodge (new to
1 Defendant claims that by "young" it meant "less experienced." See Corbin deposition at pg. 63.
- 4 - the District), and a full schedule of accounting classes to 52-
year-old Paul Pollard (an experienced, qualified teacher).
Murdy became depressed and suffered several anxiety attacks,
which she and her therapist credited to her work situation.
Convinced the same problems would continue in 2005-06, she
resigned on or about February 1, 2005.
II. STANDARD OF REVIEW
Summary judgment is appropriate "if 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). In ruling on a motion for summary judgment, I construe
the evidence in the light most favorable to the nonmovant.
Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
The party moving for summary judgment "bears the initial
responsibility of . . . identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317,
- 5 - 323 (1986). Once the moving party has met its burden, the burden
shifts to the adverse party to "produce evidence on which a
reasonable finder of fact, under the appropriate proof burden,
could base a verdict for it; if that party cannot produce such
evidence, the motion must be granted." Avala-Gerena v. Bristol
Myers-Sguibb Co., 95 F.3d 86, 94 (1st Cir. 1996).
Ill. ANALYSIS
A. Age Discrimination
Murdy alleges in Count I that the defendant discriminated
against her based on her age in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 623 et seq. , and
the New Hampshire Law Against Discrimination, N.H. Rev. Stat.
Ann. ("RSA") § 354-A.2 As a prima facie element of either claim,
Murdy must prove that she suffered an adverse employment action.
See Cordero-Soto v. Island Finance, Inc., 418 F.3d 114, 119 (1st
Free access — add to your briefcase to read the full text and ask questions with AI
Murdy v. Nashua Sch. Dist. CV—05— 174—PB 12/19/06
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patricia Murdy
v. Case No. 05-cv-174-PB Opinion No. 2006 DNH 14i Nashua School District
MEMORANDUM AND ORDER
Patricia Murdy brings this suit against her former employer,
Nashua School District, alleging age discrimination (Count I),
wrongful/constructive discharge (Count II), breach of contract
(Count III), and breach of good faith and fair dealing (Count
IV). Murdy bases her claims on defendant's decision to assign
her to a non-preferential course schedule despite her 31 years of
teaching in the Nashua School District. The parties have agreed
to dismiss Counts III and IV. For the reasons set forth below, I
deny defendant's motion for summary judgment with respect to
Count I and grant it with respect to Count II.
I. BACKGROUND
Murdy was 55 years old in the fall of 2003. She began
teaching for the Nashua School District in September 1971. From 1971 through 1995, Murdy taught general business courses at the
high school level. In 1981, she began teaching accounting and
went on to enhance and improve the District's business course
offerings.
In June 1995, still one of the least senior business
teachers, the District "pink slipped" her out of the business
department and into the health department. Murdy had some prior
experience in health and took additional classes to earn a health
teaching certificate. Murdy taught health classes for the next
seven years, serving as department-head for five.
In April 2002, the District granted Mur d y 's request to
return to the business department and assigned her to teach two
health classes, two desktop publishing (graphics) classes and six
introduction to computers classes. Murdy had no experience in
graphics and had to teach both graphics and computers without
instructional materials, properly functioning computers, or
support from the administration for one semester. When she
finally received one set of 25 textbooks for the second semester,
she had to carry all 25 books from class to class in a hallway
full of students.
- 2 - Murdy preferred teaching accounting classes because they
were high level courses, students were motivated and tended to
continue on to college, and parents were generally more involved.
The computer courses she had instead been assigned were generally
considered less desirable classes.
In April 2003, Murdy learned that Department Chairman,
Marshall Derry, had discussed schedule requests with other
business teachers for the forthcoming year, but not with her.
Defendant had offered six accounting classes to 36-year-old
Kathryn Tremblay and 45-year-old Michele Bolton, even though they
each had only two years of teaching experience. Both Tremblay
and Bolton declined the offers. When Murdy later pulled Derry
aside to request the accounting classes, Derry informed her that
he had no business schedule for her because he had assumed that
she would be returning to the health department. Believing she
would again end up with what she perceived as an undesirable
course schedule, Murdy became upset and physically ill.
Murdy subsequently made several more requests for the
accounting schedule and filed a grievance with then-Principal
Patrick Corbin. Corbin and Associate Principal Timothy Kelley
explained that they were keeping desirable courses open for
- 3 - younger teachers and a yet-to-be-named new hiree. They said they
could not give a new or young1 teacher a homogenous, undesirable
schedule because it would cause them to leave the school district
for other more desirable jobs. Corbin also repeatedly referred
to veteran teachers as "gray hairs" during regular staff
meetings. Upon receipt of an e-mail from Corbin in May 2003
explaining his reason for keeping the accounting positions open,
Murdy became physically ill and was taken by ambulance to the
hospital where she stayed overnight.
In June 2003, defendant hired 26-year-old Corey Laird as a
continuing substitute teacher and assigned him the six accounting
classes Murdy had requested. Murdy filed a grievance about her
schedule. In response she received two of the accounting classes
originally assigned to Laird.
In June 2004, Murdy again requested accounting classes.
Despite her request, defendant assigned her to teach eight
introduction to computer classes for the 2004-05 school year.
For the same period, defendant assigned six accounting classes to
36-year-old Tremblay, one to 28-year-old Blossom Dodge (new to
1 Defendant claims that by "young" it meant "less experienced." See Corbin deposition at pg. 63.
- 4 - the District), and a full schedule of accounting classes to 52-
year-old Paul Pollard (an experienced, qualified teacher).
Murdy became depressed and suffered several anxiety attacks,
which she and her therapist credited to her work situation.
Convinced the same problems would continue in 2005-06, she
resigned on or about February 1, 2005.
II. STANDARD OF REVIEW
Summary judgment is appropriate "if 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). In ruling on a motion for summary judgment, I construe
the evidence in the light most favorable to the nonmovant.
Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
The party moving for summary judgment "bears the initial
responsibility of . . . identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317,
- 5 - 323 (1986). Once the moving party has met its burden, the burden
shifts to the adverse party to "produce evidence on which a
reasonable finder of fact, under the appropriate proof burden,
could base a verdict for it; if that party cannot produce such
evidence, the motion must be granted." Avala-Gerena v. Bristol
Myers-Sguibb Co., 95 F.3d 86, 94 (1st Cir. 1996).
Ill. ANALYSIS
A. Age Discrimination
Murdy alleges in Count I that the defendant discriminated
against her based on her age in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 623 et seq. , and
the New Hampshire Law Against Discrimination, N.H. Rev. Stat.
Ann. ("RSA") § 354-A.2 As a prima facie element of either claim,
Murdy must prove that she suffered an adverse employment action.
See Cordero-Soto v. Island Finance, Inc., 418 F.3d 114, 119 (1st
2 On the face of her complaint, Murdy also asserts that defendant violated Title VII, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Because Title VII is plainly inapplicable here and because both parties concede as much by addressing only age discrimination in Count I, I construe Count I to allege only ADEA and RSA § 354-A violations.
- 6 - Cir. 2005); In re Seacoast Fire Equip. Co.. 146 N.H. 605, 608
(2001) (stating that New Hampshire courts apply same burden
shifting analysis and prima facie standard to discrimination
actions brought under § 354-A as they do to federal
discrimination actions). The parties dispute at length whether
she has made such a showing here.
Defendant argues that a failure to obtain a desired course
schedule does not constitute a material adverse employment action
where the employee otherwise maintained the same duties, salary
and benefits. Murdy contends that her non-preferential course
assignment was a material adverse employment action because it
effectively denied her promotions, subjected her to physically
and emotionally more demanding course assignments, and ultimately
constituted a constructive discharge. I decline to grant
defendant's motion for summary judgment because facts that are
material to this issue remain in genuine dispute.
B. Constructive/Wrongful Termination
Murdy contends in Count II that defendant constructively and
wrongfully terminated her in violation of law. Specifically, she
claims that she was forced to resist because defendant's actions
- 7 - constituted severe and pervasive harassment, based upon her age,
that no reasonable person would be expected to endure. Complaint
at 53-57. Defendant argues that M u r d y s common law claim is
precluded because Congress and the New Hampshire legislature
intended to supplant such causes of action with relevant
statutory remedies. In response, Murdy claims that the mere
existence of an available statutory scheme does not preclude her
wrongful termination claim. I agree with defendant.
Under New Hampshire law, a plaintiff "may not pursue a
common law remedy where the legislature intended to replace it
with a statutory cause of action." Wenners v. Great State
Beverages, Inc., 140 N.H. 100, 103 (1995); Howard v. Dorr Woolen
C o ., 120 N.H. 295, 297-98 (1980). Such legislative intent is
apparent where a statute provides a remedy for its violations and
sets forth procedures for pursuing such action. Id. The ADEA
and RSA §354-A codify the public policy against age-based
discrimination, create private rights of action to remedy
violations of that policy, and establish mature procedures for
pursuing such an action. See 29 U.S.C. § 6 2 6 (c)(1)-(2); RSA §
354-A:21-a, 22. Thus, the existence of these remedies precludes
Murdy from asserting a common law claim for wrongful discharge based on alleged age discrimination here. See, e.g.. Smith v.
F.W. Morse & Co., Inc., 76 F.3d 413, 429 (1st Cir. 1996)(holding
Title VII private right of action precluded plaintiff from
asserting gender-based wrongful discharge claim); Howard, 120
N.H. at 297-98 (holding RSA § 354-A private cause of action
precluded plaintiff from asserting age-based wrongful termination
claim). Accordingly, I grant defendant's motion for summary
judgment on Count II.
IV. CONCLUSION
For the reasons stated, defendant's Motion for Summary
Judgment (Document No. 18) is denied with respect to Count I and
granted with respect to Count II.
SO ORDERED.
/s/Paul Barbadoro_______ Paul Barbadoro United States District Judge
December 19, 2006
cc: Leslie H. Johnson, Esq. Mark T. Broth, Esq. - 10 -