Rand v . Exeter 11-cv-55-PB 10/2/13
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brenda L . Rand
v. Case N o . 11-cv-55-PB Opinion N o . 2013 DNH 133 Town of Exeter, et a l .
MEMORANDUM AND ORDER
Brenda Rand has sued her former employer, the Town of
Exeter, as well as a former coworker and four of her former
supervisors. She alleges that the coworker sexually assaulted
her while they were both working at the Town’s waste transfer
station. She also claims that the Town and her supervisors
failed to properly respond to her sexual harassment complaint
and retaliated against her when she complained of the
harassment. She has brought claims under Title V I I , New
Hampshire’s Law Against Discrimination, and state common law.
The defendants have moved for summary judgment.
I. BACKGROUND
Brenda Rand was employed as a solid waste transfer operator
in the Town’s highway department. Doc. Nos. 22-2, 3 0 . The
position required Rand to work alone at the Town’s transfer station assisting residents with the disposal and recycling of
household waste. George McAllister worked as a laborer in the
same department. Jay Perkins, Jennifer Perry, Donna Cisewski,
and Russell Dean were employed by the Town in supervisory
positions superior to both Rand and McAllister. Id.
A. Sexual Harassment
On November 1 2 , 2009, McAllister opened the transfer
station shortly before Rand arrived several minutes late as a
result of a prior engagement. Doc. Nos. 22-2, 3 0 . Rand thanked
McAllister for his assistance by either patting him on the
shoulder or giving him a hug and a kiss on the cheek. Doc. N o .
18-4. Immediately thereafter, Rand alleges that McAllister
grabbed her waist, pulled her body close to his, and fondled her
breast. Doc. Nos. 22-2, 3 0 . When Rand attempted to pull away,
McAllister grabbed her hand and pressed it against his clothed,
erect penis while laughing and repeating various lewd remarks.
McAllister then dragged Rand by her wrist approximately forty
feet across the parking lot toward a location shielded from
public view. The incident ended abruptly when a Town resident
pulled into the transfer station. Rand and McAllister were the
only eyewitnesses to these events. Id.
Rand maintained a log book at the transfer station and
noted the incident in an entry dated November 1 2 , 2009. Doc. 2 N o . 22-4. She told her husband about it the following day, and
he recommended that she report it to her immediate supervisor,
Perkins. Doc. N o . 18-4. On November 1 7 , 2009, Rand first
confided in one of her coworkers, Walter Dow, regarding the
incident before reporting it to Perkins, Perry, and Cisewski
later that day. Doc. Nos. 22-2, 22-4, 22-13, 3 0 . When Rand
lodged her complaint, she provided the Town with her log book
containing the relevant entry. Id. Cisewski immediately
informed Rand and Perkins that McAllister would be prohibited
from visiting the transfer station during the pendency of the
investigation. Doc. N o . 18-4. Cisewski and Perkins then agreed
that McAllister would be placed on administrative leave if he
admitted to the allegations. Id.
As the Town’s Human Resources Director, Cisewski was tasked
with investigating Rand’s complaint in accordance with the
Town’s Anti-Harassment Policy (“the Policy”), Doc. N o . 23-2,
which contains the following relevant provisions. Among other
examples of sexual harassment, “sexual . . . propositions” and
“unwanted physical contact” are prohibited. Employees who feel
that they have been harassed must report each incident to the
Town’s Human Resources Director (Cisewski) or the Town Manager
(Dean). When a complaint is filed, the Town must promptly
initiate an investigation. Complaints must be kept confidential 3 except to the extent that disclosure is required to complete the
investigation. An investigation typically includes interviews
with the complainant, the alleged harasser, and any relevant
witnesses. An alleged harasser may be suspended pending
investigation. If the complainant is dissatisfied with the
investigation, she must inform the Town Manager. Id.
The Policy also forbids employees from retaliating against
an employee who files a “good faith” complaint of sexual
harassment or assists in a subsequent investigation. Employees
who engage in retaliatory behavior are subject to disciplinary
action. As with sexual harassment complaints, allegations of
retaliation must be brought to the Town’s Human Resources
Director or the Town Manager. Id.
In accordance with the Policy, Cisewski conducted two
private interviews each with Rand, McAllister, and Dow. Doc.
N o . 18-3. In each case, Cisewski took handwritten notes during
the interview and had the interviewee read and sign every page
to acknowledge that the notes accurately reflected the substance
of the interview. Each interview was guided by a series of pre-
printed questions tailored either to the complainant, the
alleged harasser, or the witness. The interviews also provided
an opportunity for the interviewee to recount the relevant
events in narrative form. Id. 4 Cisewski conducted interviews with Rand on November 17 and
2 0 , 2009. Doc. N o . 22-2. Rand testified to the events as
described above, except she asserted that she had patted
McAllister on the shoulder rather than hugging him and giving
him a kiss on the cheek. Doc. Nos. 18-4, 22-5, 22-9. Rand
informed Cisewski that she was nervous, scared, and would not
know what to do if McAllister were to come to the transfer
station again. Id.
Cisewski and Rand dispute whether, during the first
interview, Rand showed Cisewski certain gouges, abrasions, and
bruises on her right hand which allegedly resulted from the
assault. Doc. Nos. 18-4, 22-2, 22-4. Rand submitted a written
narrative of the incident at the first interview, and Cisewski
and a second Town employee took photographs of Rand’s hand
during the second interview. Rand also took photographs of her
hand and gave them to Cisewski, who informed Rand that they were
of inadequate quality and would be thrown away. No photographs
have been produced in discovery. Id. During the second
interview, Cisewski presented Rand with a copy of the Town’s
Policy for her to read and sign. Doc. N o . 22-5. Rand had not
previously been made aware of the Policy despite having been
employed by the Town for three and a half years. Id.
When Cisewski interviewed McAllister on November 1 8 , 2009, 5 McAllister testified that, as a result of his poor eyesight, he
had stumbled while following too closely behind Rand in the
transfer station’s parking lot and reached out to break his
fall. Doc. Nos. 18-4, 22-4. This caused his hand to
accidentally brush against Rand’s breast. In a subsequent
interview on November 2 0 , McAllister testified that his hand had
brushed against Rand’s breast when he stumbled after she hugged
him. McAllister testified that there was no discussion between
himself and Rand regarding this contact. After assisting Rand
for a few minutes, McAllister left the transfer station. Id.
McAllister’s personnel record contains no information prior to
the alleged assault regarding behavior that would place the Town
on notice that he might violate the Town’s Policy. Doc. N o . 23-
2. His personnel record contains a copy of the Policy, signed
and acknowledged by McAllister shortly after the Town hired him
in 2001. Id.
Cisewski interviewed Dow on November 18 and 2 0 , 2009. Doc.
Nos. 18-4, 22-4. Dow confirmed that Rand had described
essentially the same events as those Rand had related to
Cisewski in her two interviews. Dow testified, however, that
Rand had informed him that she had thanked McAllister for
opening the transfer station by hugging him and kissing him on
the cheek rather than patting him on the shoulder, as Rand had 6 stated in her interviews. Dow told Cisewski that he could not
believe McAllister would behave as Rand alleged, and that he had
not believed Rand’s description of the events. Id.
While the investigation proceeded, Rand requested a meeting
with Cisewski, Perkins, and McAllister to discuss her
allegations in person with the alleged harasser. Doc. N o . 22-4.
That meeting never occurred, and on November 2 5 , 2009, Cisewski
submitted a written report of the results of the investigation
to Dean. On December 8 , 2009, Rand attended a meeting with
Cisewski, Perkins, and Perry to discuss the findings. Doc. Nos.
18-12, 22-2, 3 0 . Cisewski informed Rand that the Town was
unable to find merit in Rand’s complaint, and therefore
McAllister would not be disciplined and Rand should return to
work. Id. Cisewski informed Rand that this finding was due to
a lack of credible evidence corroborating Rand’s version of
events, as well as inconsistencies in Rand’s interview
testimony. Doc. N o . 22-4.
Upon receiving this news, Rand became extremely upset and
abruptly left the meeting to seek out McAllister. Doc. Nos. 18-
1 0 , 3 0 . Perkins summoned the police to remove her from the
premises. Id. Cisewski, Perkins, and Perry then collected
written statements from Town employees who had witnessed Rand’s
behavior following the meeting. Doc. N o . 22-4. The next day, 7 Perry placed Rand on administrative leave with pay and informed
her that she might be required to attend anger management
counseling before returning to work. Doc. Nos. 18-12, 22-2, 3 0 .
B. Retaliation
On November 2 4 , 2009, one week after Rand informed the Town
of the alleged sexual harassment, Dean received an emailed
complaint from a Town resident who alleged that Rand had been
rude to her at the transfer station two days earlier. Doc. Nos.
20-12, 20-13, 22-2, 22-4, 3 0 . Perry and Perkins reprimanded
Rand for her behavior as described in the email, as well as for
violating Town rules prohibiting smoking in Town buildings. In
response, Rand provided a notebook to Perkins that contained her
own account of the incident, maintaining that she behaved
appropriately in the face of a resident’s abusive conduct. The
same day, Perkins wrote in a memorandum to Rand’s personnel file
that Rand “is not a good fit at our transfer station and should
be replaced.” Id.
Rand alleges that in early December, two male coworkers
told her that Perkins had instructed some Town employees to
“watch out for” Rand. Doc. Nos. 20-9, 20-10, 22-2, 22-4, 3 0 .
During the same period, she also learned that a different
coworker had been informed of Rand’s sexual harassment complaint
in violation of the Policy’s confidentiality provisions. After 8 she filed her complaint, Rand noticed that several coworkers
became less friendly toward her. Id.
Rand claims that Perkins, whom she alleges was biased
toward McAllister due to a preexisting outside business
relationship, began closely scrutinizing Rand’s job performance
after she filed her complaint. Doc. Nos. 22-2, 22-4. She
further claims that Perkins instructed Rand to perform her job
responsibilities in a manner that she believed would violate
state environmental protection laws. Rand asserts that Perkins
considered her a “troublemaker,” having twice passed her over
for promotion after he had previously promised her a full-time
position when one became available. Id.
On December 3 , 2009, Perry and Rand spoke by telephone
about the need for Rand to improve her ability to defuse
altercations with difficult town residents. Doc. N o . 22-4.
Perry implied that Perkins had instructed Rand regarding this
issue on numerous prior occasions, which Rand disputes. Id.
That same day, Perkins documented two additional complaints
lodged by residents in the preceding weeks. Doc. Nos. 18-10,
22-4. The first alleged that Rand was rude to a resident who
arrived at the transfer station just prior to its closing time.
The second alleged that Rand had failed to assist an elderly
resident who had needed help to dispose of waste that she had 9 brought to the transfer station. Id.
On December 1 2 , 2009, Rand’s attorney filed a written
request for Rand’s personnel file. Doc. Nos. 22-5, 22-10, 22-
12. The Town did not begin to deliver sections of Rand’s file
until two months later. Also on December 1 2 , Rand’s attorney
provided formal written notice to Dean that Rand was
dissatisfied with the investigation, in accordance with the
Town’s Policy. The Town never responded. Id. That same day,
Rand filed the first of two complaints with the New Hampshire
Commission for Human Rights and the Equal Employment Opportunity
Commission (EEOC). Doc. N o . 22-2.
The Town repeatedly extended Rand’s paid administrative
leave over the following five months. Doc. Nos. 18-12, 22-3,
22-4, 22-5. On January 1 5 , 2010, Perry and Rand spoke by
telephone regarding a certificate issued by the state Department
of Environmental Services noting Rand’s attendance at a workshop
required to maintain a necessary license. Perry informed Rand
that her license would not be renewed because Rand had admitted
to altering the date on the attendance certificate. Rand denies
that she altered the date or that she told Perry that she had
done s o . Id.
On May 1 9 , 2010, while Rand was still on administrative
leave, Perry called Rand and asked her to attend a meeting the 10 following day regarding her future employment with the Town.
Doc. Nos. 18-12, 22-3, 22-4, 3 0 . Rand informed Perry that her
attorney would be unable to accompany her to the meeting on such
short notice, that she would not attend the meeting without her
attorney, and that she would prefer that the meeting be
rescheduled. Perry informed Rand that her attorney was not
invited. When Rand did not attend the meeting the following
day, Dean consulted with Perkins, Perry, and Cisewski prior to
terminating Rand’s employment on the basis of several alleged
violations of the Town’s Personnel Plan.1 Id.
Rand asserts that each of the stated reasons for her
termination is groundless. Doc. Nos. 22-3, 3 0 . Prior to her
sexual harassment complaint on November 1 7 , 2009, Rand had
received positive performance reviews, and she asserts that she
had never received a reprimand before lodging the complaint.
Doc. Nos. 22-2, 22-6, 22-13, 3 0 . Rand claims that a memorandum
in her personnel file dated April 2 2 , 2009, memorializing an
incident in which Rand was the subject of multiple complaints by
1 The stated reasons include “[u]nnecessary violence or indignity to a citizen,” “[d]isobedience or violation of any department regulation, rule, order, instruction or memorandum,” “[i]ndecent, profane or unnecessary [sic] harsh language,” “[c]onduct tending to cause ill repute on [sic] the Town,” “[f]alsifying any Town record or report,” and “[t]hreatening, intimidating, coercing or interfering with any fellow employees on Town premises or during working hours.” Doc. N o . 20-8.
11 Town residents regarding her poor job performance, was in
reality drafted after Rand filed the sexual harassment
complaint. Doc. Nos. 18-10, 22-4. Rand claims that Perkins
fabricated this memorandum in an effort to develop additional
documentary support to fire her. Id.
Rand alleges that she suffered various economic, emotional,
and reputational injuries as a result of the sexual assault and
the Town’s subsequent actions from November 1 2 , 2009 until May
2 0 , 2010. Doc. N o . 3 0 .
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The court must consider the evidence submitted in
support of the motion in the light most favorable to the
nonmoving party, drawing all reasonable inferences in its favor.
See Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the
absence of any genuine dispute of material fact. Celotex Corp.
v . Catrett, 477 U.S. 3 1 7 , 323 (1986). A material fact is one
“that might affect the outcome of the suit under the governing
law.” Fed. Deposit Ins. Corp. v . Estrada-Rivera, 722 F.3d 5 0 , 12 54 (1st Cir. 2013) (quoting Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 248 (1986)). If the moving party satisfies this
burden, the burden shifts to the nonmoving party to “produce
evidence on which a reasonable finder of fact, under the
appropriate proof burden, could base a verdict for i t ; if that
party cannot produce such evidence, the motion must be granted.”
Ayala-Gerena v . Bristol Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st
Cir. 1996); see Celotex, 477 U.S. at 323. “Conclusory
allegations and rank speculation, even if couched in pejorative
language, will not suffice to defeat a properly supported
summary judgment motion.” Hannon v . Beard, 645 F.3d 4 5 , 48 (1st
Cir. 2011).
III. ANALYSIS
Rand’s seven-count complaint asserts Title VII claims for
hostile work environment sexual harassment, 42 U.S.C. § 2000e-2,
and retaliation, § 2000e-3(a) (Count I ) ; state law claims of
hostile work environment sexual harassment, N.H. Rev. Stat. Ann.
§ 354-A:7, and retaliation, § 354-A:19 (Count I I ) ; assault and
battery (Count I I I ) ; intentional and negligent infliction of
emotional distress (Count I V ) ; wrongful termination of
employment (Count V ) ; defamation (Count V I ) ; and intentional
interference with contract and advantageous business relations 13 (Count V I I ) . I begin by examining defendants’ challenge to
Rand’s harassment and retaliation claims.
A. Counts I and I I : Sexual Harassment Claims2
1. Harassment Claims Against the Town
Under both Title VII and state law, the appropriate
standard governing employer liability for hostile work
environment sexual harassment depends on whether a supervisor or
coworker initiated the harassment. See Vance v . Ball State
Univ., 133 S . C t . 2434, 2439 (2013); see also Madeja v . MPB
Corp., 149 N.H. 3 7 1 , 3 7 8 , 821 A.2d 1034, 1042 (2003)
(interpreting section 354-A:7 of the New Hampshire Revised
Statutes in accordance with relevant Title VII employer
liability standards for coworker sexual harassment). It is
2 Count II also asserts that defendants are liable under N.H. Rev. Stat. Ann. §§ 275:36 et seq., prohibiting wage discrimination and discrimination on the basis of tobacco use in employment. Rand alleges that she was not paid for two hours when she was interviewed during the investigation of her sexual harassment complaint and that other Town employees received higher pay for nighttime work than she did. Doc. Nos. 22-2, 22- 4 . Rand does not allege that the Town paid male employees for the time they were required to be interviewed, and she provides no evidence that male employees were paid at a different rate for nighttime work than she was. Rand was also reprimanded for smoking in Town buildings, but she provides no evidence that other employees were permitted to smoke in these buildings. Because the statute requires a comparison between similarly- situated employees of both sexes, see Bartholomew v . Delahaye Grp., Inc., N o . 95-20-B, 1995 WL 907897, at *7 (D.N.H. Nov. 8 , 1995), the Town’s motion for summary judgment with respect to this claim is granted.
14 undisputed that McAllister was Rand’s coworker; thus, she “must
demonstrate that the employer knew or should have known about
the harassment yet failed to take prompt and appropriate
remedial action.” Espinal v . Nat’l Grid NE Holdings 2 , LLC, 693
F.3d 3 1 , 36 (1st Cir. 2012) (quoting Wilson v . Moulison N .
Corp., 639 F.3d 1 , 7 (1st Cir. 2011)); accord 29 C.F.R. §
1604.11(d).
The Town did not know, and could not have known, of the
alleged conduct until Rand reported her allegations on November
1 7 , 2009. McAllister had not previously engaged in similar
conduct or otherwise behaved in a manner to indicate he was
likely to violate the Town’s Anti-Harassment Policy. He had
read and signed a copy of the Policy when the Town first hired
him, and his performance reviews were generally positive
thereafter.
Once the Town was on notice of the allegations, it took
prompt remedial action. See Wilson, 639 F.3d at 7-8.
Immediately after the Town received Rand’s complaint, it
prohibited McAllister from going to Rand’s worksite. Within
three days, Cisewski had twice interviewed the three employees
with knowledge of the events. Notes from each interview were
recorded and acknowledged, and Cisewski utilized an interviewing
guide tailored to each interviewee. Five days after the final 15 interview, Cisewski delivered a written report of her findings
to Dean, and two weeks later, Rand was informed of the
investigation’s outcome.
This process comported with the Town’s Policy, which
provides at least minimally adequate remedial procedures
following a complaint of sexual harassment. As the Ninth
Circuit has noted,
[W]here the proof of harassment is weak and disputed . . . the employer need not take formal disciplinary action simply to prove that it is serious about stopping sexual harassment in the workplace. Where, as here, the employer takes prompt steps to stop the harassment, liability cannot be premised on perceived inadequacies in the investigation.
Swenson v . Potter, 271 F.3d 1184, 1197-98 (9th Cir. 2001)
(footnote omitted). By immediately separating Rand and
McAllister and commencing a prompt investigation, the Town took
effective steps to prevent and deter subsequent harassment, and
there is no allegation that any further sexual harassment
occurred.3 See Espinal, 693 F.3d at 3 7 ; Wilson, 639 F.3d at 8 .
3 The alleged harassment took place prior to Rand’s initial complaint, and no harassment is alleged to have occurred after the complaint. Thus, it is also far from clear that “the harassment [was] causally connected to some negligence on the employer’s part.” See Wilson, 639 F.3d at 7 (quoting Noviello v . City of Bos., 398 F.3d 7 6 , 95 (1st Cir. 2005)). Because the Town’s response was prompt, appropriate, and not negligent as a matter of law, I need not address the causation issue.
16 Rand is understandably frustrated that the Town did not
accept her version of what happened at the transfer station, but
state and federal antidiscrimination laws do not require an
employer to adopt the complainant’s account of a disputed sexual
harassment claim.4 What matters is whether the employer was
negligent in allowing the harassment to occur and whether it
took reasonable steps to respond to the claim that harassment
had occurred. Here, the undisputed evidence demonstrates that
the Town had an adequate antidiscrimination policy in place, it
had no reason to anticipate McAllister’s assault, and it took
prompt and effective action to respond to Rand’s complaint. As
a result, the Town cannot be held liable for sexual harassment
under either federal or state law simply because it failed to
accept Rand’s account of the harassment. I therefore grant the
Town’s motion for summary judgment on the federal and state law
sexual harassment claims.
2. Harassment Claims Against Rand’s Supervisors
4 Rand alleges that the Town’s investigation was “a sham,” “tainted,” “negligent,” “half-hearted,” “totally-ineffectual,” and “calculated not so much to ascertain the truth as to create a self-serving, counterfeit record . . . [to] insulate the Town from civil liability.” Doc. Nos. 22-2, 22-4. But such speculation is not sufficient to overcome a motion for summary judgment when the record otherwise illustrates prompt and appropriate remedial action. 17 Consistent with the view in the majority of circuits, the
First Circuit has determined that Title VII does not provide a
cause of action against individual employees. Fantini v . Salem
State Coll., 557 F.3d 2 2 , 28-31 (1st Cir. 2009). Thus, Rand’s
supervisors cannot be held individually liable for any alleged
harassment under federal law.
The New Hampshire Supreme Court has not yet determined
whether individual employees may be held liable for sexual
harassment or retaliation under sections 354-A:7 and 354-A:19 of
the New Hampshire Revised Statutes. Decisions of this court,
however, have consistently found that these statutes do not
permit individual employee liability.5 Wilson v . Port City Air,
Inc., N o . 13-cv-129-JD, 2013 WL 2631860, at *1-2 (D.N.H. June
1 2 , 2013); Jones v . McFarland Ford Sales, Inc., N o . 05-cv-347-
JD, O p . N o . 2005 DNH 163, 3-7. On the basis of the reasoning in
those decisions, the individual defendants are entitled to
summary judgment on Rand’s federal and state law sexual
harassment claims.
B. Counts I and I I : Retaliation Claims
5 A New Hampshire Superior Court Judge has reached a contrary conclusion. D’Keefe v . Keene Senior Ctr., Inc., N o . 09-C-0016, 2009 WL 8638450, at *1 (N.H. Sup. C t . Oct. 1 3 , 2009); Rowe v . Thibeault Corp., N o . 06-E-554, 2007 WL 3236169, at *1 (N.H. Sup. C t . July 3 1 , 2007). Nevertheless, I find Judge DiClerico’s reasoning in Port City Air and Jones to be persuasive, and I adopt it here. 18 1. Retaliation Claims Against the Town
Employer liability for retaliation under Title VII and
state law is governed by McDonnell Douglas Corp. v . Green’s
burden shifting framework. See 411 U.S. 7 9 2 , 802-04 (1973); see
also Madeja, 149 N.H. at 378-79, 821 A.2d at 1043-44
(interpreting section 354-A:19 of the New Hampshire Revised
Statutes in accordance with Title VII employer liability
standards for retaliation). As the First Circuit recently
explained:
[A] plaintiff must first establish . . . that (1) she engaged in protected conduct, ( 2 ) she was subject to an adverse employment action, and (3) a causal connection existed between the first and second elements. The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its challenged actions. . . . [I]f the defendant does s o , the ultimate burden falls on the plaintiff to show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant's retaliatory animus.
Colon v . Tracey, 717 F.3d 4 3 , 49 (1st Cir. 2013) (footnote,
citations, and internal quotation marks omitted).
The Town challenges the retaliation claim by arguing that
the evidence will not support a finding that the adverse
employment actions Rand complains of occurred because she had
engaged in protected conduct. I disagree.
Rand began receiving reprimands for her job performance one
week after filing her complaint with the Town. She learned that 19 employees had been instructed to avoid her a week later, and she
was placed on administrative leave the following week. The Town
refused to turn over her personnel record immediately after she
filed her complaint with the EEOC, refused to renew her license
one month later, kept her on administrative leave for months,
and terminated her employment five months later. A reasonable
jury could find that there was sufficient temporal proximity
between these events to support an inference of causation. See
Jones v . Walgreen Co., 679 F.3d 9, 21 (1st Cir. 2012)
(permitting an inference of causation when three and a half
months elapsed between protected activity and an adverse
employment action).
Although the Town has articulated legitimate, non-
discriminatory reasons for the adverse employment actions of
which Rand complains, Rand has responded with sufficient
evidence to support a triable claim that its proferred reasons
for its actions were a mere pretext for unlawful retaliation.
Proof of pretext is not governed by a “mechanical formula”
and may be presented in several different ways. Che v . Mass.
Bay Transp. Auth., 342 F.3d 3 1 , 39 (1st Cir. 2003). One
appropriate method is “showing that the employer’s proffered
explanation is unworthy of credence.” Id. (quoting Reeves v .
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). 20 Rand points to evidence of pretext beyond mere temporal
proximity to show that the Town’s explanation is not credible.
Rand’s only performance review prior to the complaint was
positive, and she asserts that she was never reprimanded prior
to the time that she filed her complaint. The one reprimand in
her file dated before the complaint is not time-stamped or
signed by Rand, and she alleges that it was placed in the file
after she lodged her complaint. In addition, the Town had not
taken any action in response to a resident’s oral complaint
regarding an incident prior to Rand’s sexual harassment
allegations, but subsequently documented that complaint and
reprimanded Rand after she made her allegations. Rand has also
presented evidence from the state Department of Environmental
Services that she attended the workshop documented by her
attendance certificate as proof that she would have no motive to
falsify the certificate’s date. Finally, it is unclear why the
Town would not permit Rand’s attorney to attend a meeting
regarding her employment given that an EEOC investigation was in
process, and it is also not clear that it was reasonable for the
Town to refuse to temporarily postpone a meeting scheduled on
less than a day’s notice given Rand’s previous five months on
indefinite administrative leave.
21 Rand has produced sufficient evidence in support of her
claim to survive summary judgment. Because “[d]eterminations of
motive and intent, particularly in discrimination cases, are
questions better suited for the jury,” McDonough v . City of
Quincy, 452 F.3d 8 , 19 (1st Cir. 2006) (quoting Mulero–
Rodriguez v . Ponte, 98 F.3d 6 7 0 , 677 (1st Cir. 1996)), I deny
the Town’s motion for summary judgment with respect to Rand’s
federal and state law retaliation claims against the Town.
2. Retaliation Claims Against Rand’s Supervisors
Neither federal nor state law provides for individual
employee liability in retaliation cases. See Fantini, 557 F.3d
at 28-31; Port City Air, 2013 WL 2631860, at * 1 - 2 ; Jones, 2005
DNH 163 at 3-7. I therefore grant the supervisors’ motion for
summary judgment with respect to these claims.
C. Count III: Assault and Battery
The New Hampshire Supreme Court has not defined the
elements of the common law intentional torts of assault or
battery. Decisions of this court have relied on the Restatement
to explicate the required elements.
A successful assault claim requires that “(1) the defendant
. . . intended to cause harmful or offensive contact to the
plaintiff, and (2) the plaintiff must have been put in imminent
apprehension of such contact.” King v . Friends of Kelly Ayotte, 22 860 F. Supp. 2d 1 1 8 , 129-30 (D.N.H. 2012) (quoting Yale v . Town
of Allenstown, 969 F. Supp. 7 9 8 , 801 (D.N.H. 1997) (citing
Restatement (Second) of Torts § 21(1) (1965))). A defendant may
be held liable for battery if “(a) he acts intending to cause a
harmful or offensive contact with the person of the other or a
third person, or imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or
indirectly results.” Hudson v . D r . Michael J. O’Connell’s Pain
Care Ctr., Inc., 822 F. Supp. 2d 8 4 , 94 (D.N.H. 2011) (quoting
United Nat’l Ins. C o . v . Penuche’s, Inc., 128 F.3d 2 8 , 32 (1st
Cir. 1997) (citing Restatement (Second) of Torts § 13 (1977))).
A reasonable jury crediting Rand’s version of events could
surely find McAllister liable for assault and battery.
It is an entirely different question whether the Town may
be held vicariously liable for these intentional torts. As the
New Hampshire Supreme Court has explained,
[A]n employer may be held vicariously responsible for the tortious acts of its employee if the employee was acting within the scope of his or her employment when his or her tortious act injured the plaintiff. . . . [C]onduct falls within the scope of [an employee’s] employment i f : (1) it is of the kind she is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is actuated, at least in part, by a purpose to serve the employer.
23 Porter v . City of Manchester, 155 N.H. 149, 1 5 2 , 921 A.2d 393,
397-98 (2007). There is no dispute that the alleged events
occurred during the authorized time and space limits of
McAllister’s employment. But no reasonable jury could conclude
that McAllister, a laborer, was employed by the Town to assault
and batter others, or that McAllister was motivated, even in
part, to serve the Town when he allegedly engaged in this
activity.
Accordingly, I deny summary judgment to McAllister and
grant summary judgment to the Town with respect to Rand’s
assault and battery claim.
D. Count IV: Intentional Infliction of Emotional Distress
A defendant is liable for intentional infliction of
emotional distress if he or she, “by extreme and outrageous
conduct, intentionally or recklessly cause[d] severe emotional
distress to another.” Tessier v . Rockefeller, 162 N.H. 3 2 4 ,
341, 33 A.3d 1118, 1131 (2011) (alteration in original) (quoting
Morancy v . Morancy, 134 N.H. 493, 496, 593 A.2d 1158 (1991)).
The conduct must be “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a
civilized community.” Id. (quoting Mikell v . Sch. Admin. Unit
N o . 3 3 , 158 N.H. 723, 729, 972 A.2d 1050 (2009)). A reasonable 24 jury could find that McAllister’s alleged verbal and physical
conduct was sufficiently extreme and outrageous. C f . Miller v .
CBC Cos., Inc., 908 F. Supp. 1054, 1068 (D.N.H. 1995) (denying
motion to dismiss intentional infliction of emotional distress
claim when defendant supervisor engaged in “disturbing verbal
commentaries and personal attacks”). Further, Rand has alleged
that she suffered severe emotional distress necessitating
extensive psychological treatment.
On the other hand, none of the alleged conduct committed by
the Town or by her supervisors comes close to the required
“atrocious or utterly intolerable” standard. See, e.g., Konefal
v . Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 2 6 0 , 723
A.2d 3 0 , 33 (1998) (holding illegal discharge insufficient to
meet the standard). In addition, for the reasons discussed in
Section C , the Town and its supervisors cannot be held
vicariously liable for emotional distress caused by McAllister
while acting outside the scope of his employment.6
6 To the extent that Rand asserts a negligent infliction of emotional distress claim, she must prove “(1) causal negligence of the defendant; (2) foreseeability; and (3) serious mental and emotional harm accompanied by objective physical symptoms.” Tessier, 162 N.H. at 342 (quoting O’Donnell v . HCA Health Servs. of N.H., Inc., 152 N.H. 6 0 8 , 6 1 1 , 883 A.2d 319 (2005)). It is not necessary to consider the first two elements, because Rand has provided no evidence of objective physical symptoms accompanying her mental and emotional distress. I therefore grant summary judgment to McAllister and the Town with respect 25 Accordingly, I deny summary judgment to McAllister and
intentional infliction of emotional distress claims.
E. Count V : Wrongful Termination
The New Hampshire Supreme Court has articulated a two-part
test for wrongful termination claims:
First, the plaintiff must show that the defendant was motivated by bad faith, malice, or retaliation in terminating the plaintiff’s employment. . . . Second, the plaintiff must demonstrate that he was discharged because he performed an act that public policy would encourage, or refused to do something that public policy would condemn.
Porter v . City of Manchester, 151 N.H. 3 0 , 3 8 , 849 A.2d 103, 114
(2004) (citation and internal quotation marks omitted) (quoting
Cloutier v . Great Atl. & Pac. Tea Co., 121 N.H. 915, 921-22, 436
A.2d 1140, 1143-44 (1981)). As discussed in Section B , Rand has
presented sufficient evidence to permit a reasonable jury to
find that the Town’s legitimate, nondiscriminatory reasons for
her termination were in fact a pretext for retaliatory animus.
New Hampshire has established a public policy encouraging
employees to report allegations of sexual harassment to their
employers and to relevant administrative agencies and to
actively participate in subsequent investigations. See N.H.
Rev. Stat. Ann. §§ 354-A:1, : 1 9 . Because Rand’s wrongful
to this claim. 26 termination claim must be considered by a jury in conjunction
with her retaliation claims, I deny the Town’s motion for
summary judgment on this count.
F. Count V I : Defamation
Rand premises her defamation claim on the letter that the
Town sent to her terminating her employment.7 The letter
contained allegations, disputed by Rand, that she had violated
various Town rules. It is not necessary to consider whether
these allegations were false or defamatory, because there is no
evidence in the record that the letter or the allegations
therein were published to anyone other than Rand. C f . Thomas v .
Tel. Publ’g Co., 155 N.H. 3 1 4 , 3 2 1 , 929 A.2d 993, 1002 (2007)
(defamation requires “publi[cation of] a false and defamatory
statement of fact about the plaintiff to a third party”).
Without publication, there can be no liability for defamation.
See Indep. Mech. Contractors, Inc. v . Gordon T . Burke & Sons,
Inc., 138 N.H. 1 1 0 , 1 1 8 , 635 A.2d 4 8 7 , 492 (1993).
7 To the extent that Rand intends to incorporate her allegations that the Town and her supervisors told other employees about her complaint and instructed them to avoid her, there is no evidence in the record that these statements were false. First, an instruction to avoid a person cannot be characterized as either true or false. Second, Rand did in fact file a complaint, and although her employer may have violated its own confidentiality policy by allegedly discussing that fact with Rand’s coworkers, that does not mean that Rand was defamed. See Thomas v . Tel. Publ’g Co., 155 N.H. 3 1 4 , 335, 929 A.2d 993, 1012-13 (2007).
27 Accordingly, I grant summary judgment to all defendants
with respect to Rand’s defamation claim.
G. Count VII: Intentional Interference with Contract and Advantageous Business Relations8
Although not denominated as such, Rand appears to assert a
claim of intentional interference with prospective contractual
relations.9 See Wilcox Indus. Corp. v . Hansen, 870 F. Supp. 2d
296, 306 (D.N.H. 2012) (distinguishing between existing and
prospective contractual relations claims). To establish
liability for this tort, Rand must prove that “(1) [she] had an
economic relationship with a third party; (2) the defendant[s]
knew of this relationship; (3) the defendant[s] intentionally
and improperly interfered with this relationship; and (4) [Rand]
was damaged by such interference.” M & D Cycles, Inc. v . Am.
8 Count VII asserts that the defendants “intentionally and/or negligently interfered” with Rand’s contractual and business relations. New Hampshire does not recognize the tort of negligent interference with contract. Ferrero v . Coutts, 134 N.H. 2 9 2 , 295, 591 A.2d 1320, 1322 (1991) (citing Blue Cross/Blue Shield of N.H.-Vt. v . S t . Cyr, 123 N.H. 1 3 7 , 143, 459 A.2d 226, 230 (1983)). The parties do not cite, and I am not aware o f , any authority recognizing a New Hampshire tort of negligent interference with advantageous business relations. Therefore, I grant defendants’ motion for summary judgment with respect to these claims. 9 Because Rand was an at-will employee without an employment contract, she cannot state a claim for interference with existing contractual relations. See Alt. Sys. Concepts, Inc. v . Synopsys, Inc., 229 F. Supp. 2d 7 0 , 73 (D.N.H. 2002) (citing Roberts v . Gen. Motors Corp., 138 N.H. 5 3 2 , 539, 643 A.2d 956 (1994)), aff’d, 374 F.3d 23 (1st Cir. 2004). 28 Honda Motor Co., Inc., 208 F. Supp. 2d 115, 119 (D.N.H. 2002)
(citing Montrone v . Maxfield, 122 N.H. 7 2 4 , 726, 449 A.2d 1216
(1982); Baker v . Dennis Brown Realty, 121 N.H. 6 4 0 , 6 4 4 , 433
A.2d 1271 (1981)), aff’d, 70 F. App’x 592 (1st Cir. 2003).
Rand’s claim fails at the first prong. When Rand’s
supervisors allegedly interfered with her “reasonable
expectation of economic advantage” by terminating her
employment, they did so as agents of the Town acting within the
scope of their employment. C f . Preyer v . Dartmouth Coll., 968
F. Supp. 2 0 , 26 (D.N.H. 1997) (quoting Heritage Home Health,
Inc. v . Capital Region Health Care Corp., N o . 95-558-JD, 1996 WL
655793, at *4 (D.N.H. Oct. 1 , 1996)). Because Rand’s
supervisors were standing in the shoes of the Town when they
fired her, there was no third party relationship to interfere
with.10
10 The supervisors could be held liable if they acted outside the scope of their employment and were motivated by actual malice, which is defined as “bad faith, personal ill will, spite, hostility, or a deliberate intent to harm the plaintiff.” See Preyer, 968 F. Supp. at 26 (quoting Soltani v . Smith, 812 F. Supp. 1280, 1297 (D.N.H. 1993)). Rand has failed to allege sufficient facts to show that her supervisors were not acting, at least in part, in furtherance of the Town’s business when they fired her. C f . Peck v . NGM Ins. Co., N o . 94-90-B, 1995 WL 515628, at *9-10 (D.N.H. June 2 1 , 1995); Soltani, 812 F. Supp. at 1297. In contrast, if she had succeeded in making such a showing, the Town could not be held vicariously liable for purposes of the wrongful termination claim. Rand cannot have it both ways. 29 Accordingly, I grant summary judgment to the supervisors
with respect to the intentional interference with prospective
contractual relations claim.
IV. CONCLUSION
Defendants’ motion for summary judgment (Doc. N o . 18) is
granted with respect to all claims except Rand’s retaliation
claims against the Town (Counts I and I I ) , her assault and
intentional infliction of emotional distress claims against
McAllister (Counts III and I V ) , and her wrongful termination
claim (Count V ) .
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
October 2 , 2013
cc: Duncan J. MacCallum, Esq. William G. Scott, Esq. Daniel J. Mullen, Esq.