Preyer v. Dartmouth College CV-96-491-JD 06/25/97 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
LaTanya Preyer
v. Civil No. 96-491-JD
Dartmouth College, et al.
O R D E R
The plaintiff, LaTanya Preyer, brought this action seeking
monetary relief under state and federal law as a result of being
sexually and racially harassed as a temporary employee of
Dartmouth College Dining Services, and not receiving an offer of
permanent employment on account of her race. Before the court is
the defendants' motion for judgment on the pleadings (document
no. 5) pursuant to Fed. R. Civ. P. 12(c).1
Background2
Dartmouth College Dining Services ("DCDS") provides food
services to the Dartmouth College community and employs both
'The defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on January 21, 1997, for failure to state a claim upon which relief can be granted. However, because the defendants filed an answer to the plaintiff's complaint on December 2, 1996, the pleadings were closed under Fed. R. Civ. P. 7(a). As such, the court will treat the defendant's motion to dismiss as a motion for judgment on the pleadings. See Fed. R. Civ. P. 12(c).
2The facts relevant to the instant motion have been alleged by the plaintiff or are not in dispute. students, some of whom are enrolled in federally funded work-
study programs, and non-students. Between September 17, 1993,
and June 19, 1994, the plaintiff, who is black, completed three
three-month assignments as a temporary employee of DCDS, during
which time she was supervised by defendants Beth Jones and John
Koiter. She has not alleged that she was a student at Dartmouth
while working at DCDS.
During her employment, Koiter asked the plaintiff why black
women have large breasts, and told her "once you've had black,
you'll never go back." On one occasion during a commencement
function, Koiter assigned the plaintiff and two other black women
to work at tables that were directly in the sun. When the
plaintiff asked Koiter why only blacks received this assignment,
Koiter responded, "We all know blacks don't burn." Koiter has
acknowledged that he made statements to the plaintiff that could
have offensive connotations.
Following the conclusion of the plaintiff's temporary
assignments, she received a congratulatory letter and, on or
about June 22, 1994, received a verbal thank you from Jones. In
the first two weeks of August 1994, the plaintiff applied for
permanent positions at DCDS.
Jones and Koiter reviewed the plaintiff's application. In
their discussion, Koiter stated that the plaintiff's work did not
2 satisfy his standards. On or about August 18, 1994, Jones
informed the plaintiff that she would not be offered a position
because she had accrued too many absences during her temporary
employment with DCDS. The plaintiff was absent from work on
January 12, 13, 14, and 31, 1994; May 22, 1994; and June 14,
1994. She had a doctor's note for the first three January
absences.
After being denied permanent employment, the plaintiff
discussed the matter with the Dartmouth Office of Egual
Opportunity and Affirmative Action ("EOAA"), whose director
described Koiter as "a bigot." In a meeting to resolve the
plaintiff's claim, Jones claimed that the plaintiff's job
performance was inadeguate. The plaintiff's personnel file
indicates that Jones previously had cited the plaintiff for poor
job performance once during the course of her employment.
On November 15, 1994, the plaintiff filed a charge of
discrimination with the Egual Employment Opportunity Commission
("EEOC") and the New Hampshire Human Rights Commission. On the
charge form, there are several boxes a complainant can check off,
including race, sex, religion, and others, in order to denote the
basis of discrimination. Space is also provided for a statement
of the claims. The plaintiff checked off race, but did not mark
sex, and specifically did not claim sex discrimination in her
3 statement. See Defendants' Motion to Dismiss ("Defendants'
Motion), Ex. 1; see also id., Ex. 2 (EEOC notice of charge of
discrimination in which box indicating race is only one checked
off) .3
In the charge to the EEOC, the plaintiff's lawyer used three
pages to outline the offensive comments described above, as well
as the handling of her application for permanent employment and
her discussions with the Dartmouth EOAA. The plaintiff's lawyer
concluded the charge by stating: "These sworn facts support a
finding of refusal to hire on the basis of race. Accordingly,
Ms. Preyer demands instatement into one of the positions for
which she applied, an injunction against further discriminatory
acts against her, and just compensation." Id., Ex. 1. In the
charge, there were seven uses of the words "race" or "racially,"
and no references to the word "sex" or its derivatives.
On September 27, 1996, following her receipt of a right-to-
sue letter from the EEOC and the unsuccessful mediation of her
claim, the plaintiff filed the complaint in the instant action.
3Although consideration of documents not attached to or incorporated into the complaint is typically forbidden by Rule 12, the First Circuit has recognized a narrow exception for, inter alia, "documents the authenticity of which are not disputed by the parties," and for official public records. Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). The court considers the plaintiff's charge to the EEOC pursuant to this exception.
4 alleging that she endured a racially and sexually hostile work
environment, see Complaint 5 30-31, and that she was not offered
permanent employment at DCDS because of her race, see id. 5 32.
She alleges violations of Title VII of the Civil Rights Act of
1964 by Dartmouth College, Jones, and Koiter (Count I);
violations of Title IX of the Education Amendments of 1972 by
Dartmouth and Koiter (Count II); and violations of 42 U.S.C.
§ 1981 by Dartmouth and Koiter (Count III). In addition, the
plaintiff alleges that Koiter intentionally interfered with her
prospective contractual relations (Count IV), and that Dartmouth
violated N.H. Rev. Stat. Ann. ("RSA") § 354-A, New Hampshire's
Law Against Discrimination (Count V ) .
Discussion
The standard for evaluating a Rule 1 2 (c) motion for judgment
on the pleadings is essentially the same as the standard for
evaluating a Rule 12(b)(6) motion. See Republic Steel Corp. v.
Pennsylvania Enq'q Corp., 785 F.2d 174, 182 (7th Cir. 1986) . In
both cases, the court's inguiry is a limited one, focusing not on
"whether a plaintiff will ultimately prevail but whether [he or
she] is entitled to offer evidence to support the claims."
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (motion to dismiss
under Fed. R. Civ. P. 12(b) (6)). In making its inguiry, the
5 court must accept all of the factual averments contained in the
complaint as true, and draw every reasonable inference in favor
of the plaintiffs. See Garita Hotel Ltd. Partnership v. Ponce
Fed. Bank, 958 F.2d 15, 17 (1st Cir. 1992) (Rule 12(b) (6)
motion); Santiago de Castro v. Morales Medina, 943 F.2d 129, 130
(1st Cir. 1991) (Rule 12(c) motion). Great specificity is not
required to survive a Rule 12 motion. "[I]t is enough for a
plaintiff to sketch an actionable claim by means of 'a
generalized statement of facts.'" Garita, 958 F.2d at 17
(quoting 5A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 (1990)). In the end, the court may
not enter judgment on the pleadings unless it appears "'beyond
doubt that the plaintiff can prove no set of facts in support of
his or her claim which would entitle him or her to relief.'"
Santiago de Castro, 943 F.2d at 130 (quoting Conlev v. Gibson,
355 U.S. 41, 45-46 (1957)); see also Rivera-Gomez v. de Castro,
843 F .2d 631, 635 (1st Cir. 1988).
I . Title VII
The defendants argue that the plaintiff's Title VII claim
should be dismissed to the extent that it alleges sex
discrimination because the plaintiff failed to make a specific
6 allegation of discrimination on the basis of sex to the EEOC.4
Specifically, the defendants note that the plaintiff failed to
check off the box for sex discrimination on the EEOC form, and
that the text of the charge, drafted by the plaintiff's attorney,
does not mention sex discrimination specifically. The plaintiff
contends that her charge to the EEOC gave the defendants
sufficient notice of her sex discrimination claim.
In a Title VII claim, the plaintiff must exhaust all of her
administrative remedies prior to filing a complaint in federal
district court. See 42 U.S.C.A. § 2000e-5 (f) (1) (West 1994);
Lawton v. State Mut. Life Assurance Co., 101 F.3d 218, 221 (1st
Cir. 1996). In order to satisfy this reguirement with respect to
a specific incident of discrimination, the charging party must
give sufficient information to enable the EEOC to determine what
the grievance is about. The court can consider claims which
reasonably can be expected to grow out of the charge of
discrimination investigated by the EEOC. See Powers v. Grinnell
Corp., 915 F.2d 34, 38 (1st Cir. 1990); Johnson v. General Elec.,
840 F .2d 132, 139 (1st Cir. 1988).
In the instant case, the plaintiff's charge to the EEOC
4The defendants have limited their motion to the plaintiff's sexual harassment claim, and do not assert that the plaintiff failed to bring a charge of a racially hostile work environment before the EEOC.
7 includes allegations that she was denied permanent employment by
DCDS, and the evidence offered in support thereof is itself
evidence of a racially, and potentially sexually, hostile work
environment. However, the plaintiff's charge to the EEOC, which
was drafted by her attorney, begins: "This office represents La
Tanya Preyer in connection with a claim for race discrimination
. . . ." Defendant's Motion, Ex. 1, and uses the word "race" or
"racially" seven times. The charge concludes by asserting,
"These sworn facts support a finding of refusal to hire on the
basis of race." Id. Finally, the phrases attributed to Koiter,
which form the evidence of the plaintiff's sex discrimination
claim, are described only as "racially-based comments." Id. By
contrast, the box labelled "sex" is not marked on the EEOC
charge, and the three-page description of the plaintiff's claim
does not assert that the plaintiff was discriminated against in
any way on the basis of her sex.
Where EEOC charges are drafted without the assistance of
counsel, courts have demonstrated a particular willingness to
overlook discrepancies between the legal theories asserted in the
complaint and those asserted in the EEOC charge See, e.g.,
Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168
(7th Cir. 1976) (permitting sex discrimination claim to proceed
even though complainant, in pro se capacity, failed to mark off appropriate box, and endorsing authority recognizing that laymen
are likely to be "ignorant of or unable to thoroughly describe
the discriminatory practices to which they are subjected");
Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199, 202-03 (3d Cir.
1975), (permitting plaintiff, who was not represented by counsel
at time of filing, to proceed with claim based on discriminatory
denial of benefits despite not checking appropriate box), vacated
on other grounds, 424 U.S. 737 (1976). However, where the charge
is drafted by the complainant's attorney, the rationale
underlying such a forgiving standard is not implicated. See Love
v . Pullman C o ., 404 U.S. 522, 527 (1972) ("[T]echnicalities are
particularly inappropriate in a statutory scheme in which laymen,
unassisted by trained lawyers, initiate the process."); cf.
Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se complaint
should be held to less stringent standards than formal pleadings
drafted by lawyers).
In the instant matter, the plaintiff's attorney drafted a
charge to the EEOC which claimed only race discrimination. His
failure to provide appropriate notice of a sex discrimination
claim, coupled with his failure to amend the charge,5 indicates
5See 29 C.F.R. § 1601.12(b) (1996) ("A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein.") (emphasis added). an intent not to bring a Title VII claim based on sex
discrimination. The plaintiff's attorney now asks the court to
resurrect this claim, and the court declines to do so. The court
grants the defendants' motion to dismiss the plaintiff's Title
VII claim to the extent she alleges discrimination on the basis
of sex.
In addition, it is well-settled law in this district that
there is no individual liability under Title VII. See, e.g.,
Attardo v. Sullivan & Gregg, P.A., No. 94-189-JD, slip op. at 2
(D.N.H. January 9, 1996); see also Bergstrom v. University of
N.H., 943 F. Supp. 130, 135 (D.N.H. 1996) (collecting cases).
Therefore, the defendants' motion to dismiss the plaintiff's
Title VII claims is granted as to defendants Jones and Koiter.
II. Title IX
The defendants argue that the plaintiff's Title IX claim
should be dismissed because DCDS is not an education program or
activity within the meaning of Title IX. The plaintiff counters
that DCDS is part of Dartmouth College, an educational entity,
and therefore is covered by Title IX.
10 Title IX provides, in relevant part, that "[n]o person in
the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
federal financial assistance." 20 U.S.C.A. § 1681(a) (West
1994). The legal landscape on the issue of coverage of
educational programs under the statute has undergone some recent
alterations. In 1984, the Supreme Court held that Title IX was
program-specific, i.e., that it only applies to education
programs receiving federal funds, and not to universities
generally. See Grove City College v. Bell, 465 U.S. 555, 573-74
(1984). In 1988, Congress responded to this decision by
redefining the phrase "program or activity" to cover all
operations of colleges and universities receiving federal funds.
See Education Amendments of 1972, Pub. L. No. 100-259, § 3(a),
102 Stat. 28 (1988) (codified as amended at 20 U.S.C.A. §
1687(2)(A) (West 1994 & Supp. 1997));6 Cohen v. Brown Univ., 991
F .2d 888, 894 (1st Cir. 1993).
However, while expanding the definition of programs that
"receive" federal funds, the congressional amendment did not
6Section 1687 provides in pertinent part: "For the purposes of this chapter, the term[s] 'program or activity' and 'program' mean all of the operations of . . . a college [or] university . . . ." 20 U.S.C.A. § 1687(2) (A).
11 alter the requirement that the program or activity in which the
complaining party is involved be educational in nature. See,
e.g., Walters v. President & Fellows of Harvard College, 601 F.
Supp. 867, 869 (D. Mass. 1985) (holding that building and grounds
department of Harvard University, which provides purely custodial
services to university, is not educational program or activity).
Because "all words and clauses in a statute are intended to have
meaning and ought to be given effect," United States v.
Bongiorno, 106 F.3d 1027, 1035 (1st Cir. 1997) (citing United
States Dep't of Treasury v. Fabe, 508 U.S. 491, 504 n.6 (1993)),
and in order to give effect to the word "education," the court
interprets the prohibition against sexual discrimination in §
1681(a) to apply only to those operations of a college or
university that are educational in nature or bear some relation
to the educational goal of the institution.
It is apparent that DCDS, which provides food services to
the university community, does not have an inherently educational
goal. C f . Walters, 601 F. Supp. at 869. In addition,
notwithstanding the fact that DCDS employs Dartmouth students,
including some who are enrolled in federal work-study programs,
the plaintiff has not alleged that she is a Dartmouth student.
Cf. Doe v. Lance, No. 3:95-CV-736-RM, 1996 WL 663159, at *3 (N.D.
Ind. Oct. 30, 1996) (non-student may not assert an individual
12 claim under Title IX); Bosley v. Kearney R-l Sch. Dist., 904 F.
Supp. 1006, 1020 (W.D. Mo. 1995) (Title IX applies only to
students and participants in educational programs or activities).
Accordingly, the court dismisses the plaintiff's Title IX claim
against all defendants.
III. Intentional Interference with Prospective Contractual Relations7
Koiter argues that the plaintiff's intentional interference
with prospective contractual relations claim should be dismissed
because he is an agent of Dartmouth College, and therefore
legally incapable of interfering with a contract between the
plaintiff and Dartmouth. The plaintiff contends that Koiter was
acting with actual malice, in that his actions were motivated by
bad faith, personal ill will, spite, hostility, or a deliberate
intent to harm the plaintiff, and therefore is capable of such
interference.
To establish liability for intentional interference with
contractual relations, a plaintiff must prove that: "(1) [she]
7Although both parties have styled Count IV as "interference with prospective relations," the court understands the complaint to bring an action for "intentional interference with prospective contractual relations." See Heritage Home Health, Inc. v. Capital Region Health Care Corp., No. 95-558-JD, slip op. at 8-11 (D.N.H. Oct. 1, 1996); Restatement (Second) of Torts § 766B (1979) .
13 had an economic relationship with a third party; (2) the
defendant knew of this relationship; (3) the defendant
intentionally and improperly interfered with this relationship;
and (4) [she] was damaged by such interference." Demetracopoulos
v. Wilson, 138 N.H. 371, 373-74, 640 A.2d 279, 281 (1994)
(emphasis omitted). In the context of an intentional
interference with prospective contractual relations claim, the
court has limited actionable claims to those situations in which
the plaintiff "seeks relief for the defendants' interference with
already existing relationships that give rise to a reasonable
expectation of economic advantage." Heritage Home Health, Inc.
v. Capital Region Health Care Corp., No. 95-558-JD, slip op. at
10-11 (D.N.H. Oct. 1, 1996) (guotation marks omitted).
As a general matter, "a co-employee acting as an agent of
[an] employer cannot be a third party for the purposes of
interfering with the contract between the plaintiff and [the]
employer." Birkmaier v. Rockingham Venture, Inc., No. 94-429-SD,
slip op. at 17 (D.N.H. Sept. 7, 1995); see also Alexander v.
Fujitsu Bus. Communication Svs., Inc., 818 F. Supp. 462, 470
(D.N.H. 1993). However, an employer's agent may be considered a
third party, legally capable of interference, if the agent "[is]
motivated by actual malice, where actual malice is defined as bad
faith, personal ill will, spite, hostility, or a deliberate
14 intent to harm the plaintiff." Soltani v. Smith, 812 F. Supp.
1280, 1297 (D.N.H. 1993) (emphasis and quotation marks omitted)
(quoting Piekarski v. Home Owners Sav. Bank, 956 F.2d 1484, 1495
(8th Cir. 1992)); see also Birkmaier, No. 94-429-SD, slip op. at
17 (employee can be considered third party if he acts outside
scope of his employment).
Here, the plaintiff alleges that Koiter made derogatory
remarks toward her, and prevented her from securing a permanent
position with DCDS because of her race. She is entitled to
prove, based on these allegations, that Koiter was acting with
actual malice, and therefore was legally capable of interfering
with the plaintiff's prospective contractual relations with DCDS.
Accordingly, Koiter's motion to dismiss Count IV is denied.
IV. New Hampshire's Law Against Discrimination
The plaintiff's complaint includes an allegation that
Dartmouth violated RSA § 354-A, New Hampshire's Law Against
Discrimination. However, the plaintiff concedes RSA § 354-A does
not create a private right of action in federal court. See,
e.g., Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 120
(D.N.H. 1995). Therefore, the defendants' motion to dismiss
Count V is granted.
15 Conclusion
The defendants' motion to dismiss (document no. 5) is denied
in part and granted in part.
SO ORDERED.
Joseph A. DiClerico, Jr. Chief Judge
June 25, 1997
cc: Edward M. Van Dorn Jr., Esguire Edward E. Shumaker III, Esguire