Roderick v . NH Hospital, et a l . CV-98-543-M 01/28/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Sherry Roderick, Plaintiff
v. Civil N o . 98-543-M Opinion N o . 2000 DNH 026 New Hampshire Hospital and Paul G. Gorman, Defendants
O R D E R
Plaintiff Sherry Roderick (formerly Sherry Davis) brought
this action against defendants New Hampshire State Hospital (the
“hospital”) and Paul G. Gorman, the hospital’s Superintendent,
alleging that she was sexually harassed by a co-worker while
employed at the hospital. Plaintiff says that either or both of
the defendants are liable under 42 U.S.C. § 1983 and Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for
failing to prevent the harassment, failing to timely investigate
her sexual harassment complaint, and retaliating against her for
making the complaint. Plaintiff’s complaint also asserts a
number of state-law claims against the hospital. Defendants moved for summary judgment on all of plaintiff’s
claims, to which plaintiff objected. For the reasons that
follow, defendants’ motion is granted in part and denied in part.
Standard of Review
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). When ruling upon a party’s 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.” Griggs-Ryan v .
Smith, 904 F.2d 112, 115 (1st Cir. 1990).
The moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
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, 323 (1986). If the
moving party carries its burden, the burden shifts to the
2 nonmoving party to demonstrate, with regard to each issue on
which it has the burden of proof, that a trier of fact could
reasonably find in its favor. DeNovellis v . Shalala, 124 F.3d
298, 306 (1st Cir. 1997).
At this stage, the nonmoving party “may not rest upon mere
allegations or denials of [the movant’s] pleading, but must set
forth specific facts showing that there is a genuine issue” of
material fact as to each issue upon which he or she would bear
the ultimate burden of proof at trial. Id. (quoting Anderson v .
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In this context,
“a fact is ‘material’ if it potentially affects the outcome of
the suit and a dispute over it is ‘genuine’ if the parties’
positions on the issue are supported by conflicting evidence.”
Intern’l Ass’n of Machinists and Aerospace Workers v . Winship
Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir. 1996)
(citations omitted).
Background
3 The following facts are either undisputed or presented in
the light most favorable to plaintiff. The hospital hired
plaintiff as a mental health worker trainee on February 2 4 , 1995.
Plaintiff worked the overnight shift on the hospital’s Acute
Psychiatric Unit (“APU”). Plaintiff met Nick Metalious, a
hospital employee who usually worked at the Transitional Housing
Unit, on August 1 3 , 1995, while Metalious was filling in on the
APU.
Metalious worked on the APU again the next night and, at his
request, plaintiff joined him on a patio by the cafeteria during
her break. As they talked, Metalious introduced the topic of
pornographic movies. Plaintiff attempted to steer the
conversation to a different subject. Metalious kissed plaintiff,
touched her breast, and attempted to remove her shirt. Plaintiff
told Metalious that his conduct was inappropriate and directed
him to stop.
Metalious then walked over to the patio fence and, telling
plaintiff he wanted to show her something, asked her to join him.
Thinking that Metalious was going to point out his new vehicle in
4 the parking lot, a topic they had been discussing, plaintiff
complied. Instead, Metalious exposed and forced plaintiff to
touch his genitals. Plaintiff pushed Metalious away, told him he
should return to his wife, and went back to work.
Approximately half an hour later, Metalious gave plaintiff a
handwritten note with his address and phone number on it. 1 The
note said “‘When you are ready to keep up with the Big Boy I will
give you directions. (Ha Ha) Throw away after reading.’”
(Compl. at ¶ 1 0 ) . Plaintiff reported Metalious’ conduct to
hospital security and Human Resources Administrator Marie Lang
that same day.
The hospital began an investigation immediately, obtaining
written statements from plaintiff and Metalious within twenty-
four hours of the alleged incident. Hospital investigators
interviewed plaintiff on August 1 7 , 1995, and obtained statements
1 This account is described in plaintiff’s complaint. The report of the hospital investigators’ interview of plaintiff indicates that at that time she stated Metalious had given her the note the previous day. The discrepancy is not material and defendants have, for purposes of summary judgment only, presumed that the account of the August 14 incident alleged in plaintiff’s complaint is accurate.
5 from other individuals over the ensuing weeks. By letter dated
August 2 1 , 1995, James P. Fredyma, Assistant Commissioner of the
New Hampshire Department of Health and Human Services, confirmed
receipt of plaintiff’s harassment complaint and informed
plaintiff, inter alia, that she could not be retaliated against
for making a complaint. Fredyma also told plaintiff to call the
police if Metalious bothered her at home and to contact him, or
either of the two investigators he had appointed to the case, if
she suffered retaliation by Metalious or other co-workers.
On October 1 3 , 1995, the hospital put Metalious on paid
administrative leave pending resolution of the complaint against
him. Sometime prior to November 8 , 1995, the hospital concluded
its investigation. A confidential written report summarized the
investigative findings as follows:
There exists a preponderance of evidence that the respondent has behaved inappropriately in the work environment and has violated the State’s Policy on Sexual Harassment. The respondent, on more than one occasion, has engaged female staff in sexually related conversation; has asked personal questions related to female staff sex life; and has shared information about his sex life. There does not exist a preponderance of evidence to substantiate other allegations made by the complainant.
6 It appears that both the complainant and the respondent mutually agreed to certain behaviors that were sexual in nature. State Police found there to be no assaultive or sexually assaultive behavior. The respondent stopped when the complainant told him n o . Although there is no basis for civil or criminal charges, the respondent’s behavior in this allegation as well as other incidents is not acceptable in the work environment.
(Ex. B to Lang Aff.)
By letters dated November 8 , 1995, Fredyma informed
plaintiff and Metalious of the investigation’s conclusion. Both
were told that Fredyma would recommend to Acting Director Sudders
that Metalious be formally disciplined. In addition, Fredyma’s
letter to plaintiff stated the following:
During the course o[f] the investigation into your complaint you disclosed that you participated in some behaviors that were not appropriate in the work environment. I will recommend to Acting Director Sudders that you be scheduled to attend another presentation regarding professional behaviors in the workplace. Clearly understand that my intent toward you is not punitive. It is my intent that all staff learn appropriate workplace behaviors and conduct themselves accordingly.
(Ex. D to Lang Aff.)
On November 1 5 , 1995, Metalious was issued a letter of
warning under the Division of Personnel’s rules and regulations,
7 Per 1001.08(b), for violating the State’s sexual harassment
policy. As this was the second warning letter he had received in
a two year period, it also served to terminate his employment at
the hospital. The first warning, issued on October 1 0 , 1995,
charged him with willful insubordination for discussing personal
issues with other employees during working hours, despite having
been previously reprimanded for such conduct. Metalious had also
been issued a letter of warning on July 3 , 1995, under Per
1001.03, for calling a female patient a bitch.
Two other incidents in Metalious’ employment history should
be noted. First, Metalious stated on his application for
employment at the hospital that he had no criminal convictions
that had not been annulled by a court. In conducting a criminal
background check, the hospital discovered a possible juvenile
matter and a possible misdemeanor charge or conviction that
involved serving alcohol to minor females and temporarily barring
their exit from his apartment. It was unclear, however, whether
the record had been expunged or whether it should have been
considered reportable. In light of the circumstances, and
8 Metalious’ forthright response to questioning about the matter,
the hospital chose to continue his employment.
The other incident involved a possible personal relationship
between Metalious and a female employee, and their having engaged
in consensual sexual activity at work. Although no formal staff
or patient complaint was made, and reports of the incident were
never substantiated, the Director of Transitional Housing
counseled both Metalious and the female employee that the
hospital would not tolerate such behavior and that it could lead
to disciplinary action. Metalious and the woman stopped working
together, and that matter was apparently resolved.
Plaintiff’s own work history is also at issue in this case.
On August 1 6 , 1995, plaintiff was given a letter of warning under
Per 1001.03 for a substantiated incident of Class II Abuse. The
incident involved plaintiff falling asleep or closing her eyes
while on Level I constant observation of a suicidal patient. On
November 2 , 1995, plaintiff was charged with Class I Abuse of a
patient and put on paid administrative leave pending completion
of an investigation into the matter. The abuse charge related to
9 plaintiff allegedly having become involved in a plan in which she
would receive money from a patient to buy Christmas presents for
the patient’s nieces, plus additional money to buy presents for
her own (i.e., plaintiff’s) children.
The complaint investigator’s final report, dated November 8 ,
1995, concluded that the complaint of patient abuse was
unsubstantiated. The report stated, in part:
There is no way of proving Sherry’s collaboration, if any, in attempting to obtain a considerable sum of money from [patient]. There was almost certainly no malice involved on either side. Both parties claim to have been motivated by pure good will toward the other. Both parties exhibited remarkably poor judgment. Unfortunately for Sherry Davis, [the patient] behaved more responsibly in the end, expressing her misgivings to appropriate staff members. Had Sherry Davis reported her interactions with [patient] to the nursing supervisor in a timely manner, this situation would not have arisen. Although Sherry states that it was her intention to ask “someone” about this matter, the fact is that she did not do so until after her suspension. Her claim that she was simply following instructions to “go along with” anything said by a patient suffering from borderline personality disorder shows that her understanding of her duties and responsibilities was severely limited. Part of this may be attributed to the fact that she is a relatively new employee, and admittedly naive, but her personnel record shows that she received training and evaluation in New Hampshire Hospital’s policy regarding interpersonal boundaries[.] The fact remains that Sherry Davis did not ask for
10 guidance under circumstances that should have alerted her to the probability of serious trouble.
Patient abuse is not substantiated, however Sherry Davis did violate hospital policy and used exceedingly poor judgment in not reporting to her supervisor.
(Ex. B to Sandra M. Davis Aff.)
By letter dated November 1 6 , 1995, the hospital terminated
plaintiff’s employment for failing to meet the established work
standard during her initial probationary period.2 The letter
cited plaintiff’s poor judgment, failure to maintain appropriate
interpersonal boundaries, and the “closing eyes” incident while
on a suicide watch. Plaintiff signed the letter, noting her
disagreement with the decision. After receiving an EEOC right to
sue letter, plaintiff commenced this suit.
2 It appears that at least some hospital employees are subject to a probationary period at the beginning of their employment. See Ans. at ¶ 6 (alleging that plaintiff was subject to a one year probationary period ending on or about February 2 4 , 1996); Dennis M. D’Ovidio Aff. at ¶ 5 (making reference to Metalious’ probationary period).
11 Discussion
Defendants move for summary judgment on all counts. The
court will address plaintiff’s federal claims first.
Count I alleges that “[t]he actions of Defendant, New
Hampshire Hospital[,] in failing to properly and promptly
investigate Plaintiff’s complaint of sexual harassment and take
prompt, appropriate and effective remedial action constitutes sex
discrimination.” (Compl. at ¶ 34.) The hospital counters that
the undisputed facts show that it responded appropriately to
plaintiff’s complaint and therefore cannot be held liable under
Title VII. The hospital also questions whether the single
incident of harassment complained of was severe enough to
constitute actionable sexual harassment.
To support a Title VII claim, the harassment “must be
sufficiently severe or pervasive to create an abusive working
environment.” Lipsett v . University of Puerto Rico, 864 F.2d
881, 897-98 (1 st Cir. 1988)(internal quotation marks and ellipses
12 omitted). 3 Whether the alleged harassment meets this test is
determined by the trier of fact on consideration of the entire
record and the totality of the circumstances. Id. at 898.
The hospital correctly notes that a single, isolated
incident is rarely sufficient to create an abusive working
environment. See, e.g., Quinn v . Green Tree Credit Corp., 159
F.3d 759 (2d Cir. 1998). There are, however, “those exceptional
cases in which a single episode of sexual harassment, such as a
sexual assault, . . . [is] sufficient to state a claim of a
hostile work environment sexual harassment.” Grozdanich v .
Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953, 969-70 (D.
Minn. 1998)(citing cases and finding genuine issue of fact as to
3 The type of harassment plaintiff alleges is often called hostile environment harassment, which “occurs when one or more supervisors or co-workers create an atmosphere so infused with hostility toward members of one sex that they alter the conditions of employment for them.” Lipsett, 864 F.2d at 897. Such harassment is contrasted with the other type of actionable harassment, called quid pro quo, which “occurs when a supervisor conditions the granting of an economic or other job benefit upon the receipt of sexual favors from a subordinate, or punishes that subordinate for refusing to comply.” Id. As Metalious was plaintiff’s co-worker rather than her supervisor, her claim must be one of hostile environment.
13 whether three sexual assaults of plaintiff in a two-hour period
created a hostile working environment); see also Fall v . Indiana
Univ. Bd. of Trustees, 12 F. Supp. 2d 870, 880 (N.D. Ind.
1998)(noting that “several courts and leading commentators agree
that single incidents of severe physical harassment akin to a
sexual assault will constitute actionable sexual harassment”). A
reasonable jury could find that Metalious’ actions as described –
kissing and touching plaintiff, and forcing her to touch him –
constituted sexual harassment under Title VII. See Fall, 12 F.
Supp. 2d at 879-80 (reasonable jury could find that single
incident in which harasser lured plaintiff into his office, where
he forcibly kissed her and forced his hand down her blouse to
grope her breasts, constituted sexual harassment). Thus,
plaintiff has raised a genuine issue of material fact sufficient
to preclude summary judgment on the issue of the alleged
harassment’s severity.
The hospital also argues that it cannot be liable for
Metalious’ harassment of plaintiff because it took prompt and
appropriate remedial action. As Metalious was a non-supervisory
14 co-worker of plaintiff, the hospital can only be held liable on a
claim that Metalious’ conduct toward plaintiff created a hostile
environment “if an official representing [the hospital] knew, or
in the exercise of reasonable care, should have known, of the
harassment’s occurrence, unless that official can show that he or
she took appropriate steps to halt it.” Lipsett, 864 F.2d at 901
(addressing Title IX claim but looking to analogous Title VII
standards). The hospital highlights the following undisputed
facts and necessary inferences: (1) the incident complained of
was the first instance of plaintiff being harassed by Metalious,
so the hospital could not have known prior to that incident that
Metalious was harassing plaintiff; (2) the hospital initiated a
prompt investigation into the matter, within days of the
incident; (3) the hospital referred the allegations of possible
sexual assault to the New Hampshire State Police;4 (4) the
hospital ensured that Metalious never worked with plaintiff
4 Notes of the hospital investigators’ interview of plaintiff suggest that plaintiff herself contacted the State Police. She does not appear to dispute, however, that hospital security also reported her complaint to State Police. (See Pl.’s Br. at 4.)
15 again; (5) the hospital removed Metalious from the workplace,
putting him on administrative leave and (6) at the conclusion of
the investigation, the hospital fired Metalious.
Plaintiff argues that the remedial action taken following
her complaint was insufficient, because she was not informed that
she would no longer be working with Metalious, and, s o , was
apprehensive about that possibility, and because the hospital
failed to complete its investigation within thirty days as
required under its own policy. Plaintiff also argues that the
hospital had knowledge of Metalious’ previous harassment of other
employees and that it failed to take appropriate remedial steps
that would have prevented plaintiff’s harassment from occurring
in the first place.
Plaintiff made her sexual harassment complaint to the
hospital on August 1 4 , 1995. She was notified of the conclusion
of the hospital’s investigation nearly three months later, by
letter dated November 8 , 1995. Although Metalious was absent
16 from work from approximately August 31 to September 1 3 , 1995,5
was put on administrative leave on October 1 3 , 1995, and fired on
November 1 5 , 1995, plaintiff was never assured that she would not
have to work with him again. Plaintiff does not contend,
however, that she was harassed by, or had any contact with,
Metalious at work after August 1 4 , 1995.
The Eighth Circuit recently identified several factors that
ought to be considered when evaluating an employer’s response to
a complaint of harassment.
Factors in assessing the reasonableness of remedial measures may include the amount of time that elapsed between the notice and remedial action, the options available to the employer, possibly including employee training sessions, transferring the harassers, written warnings, reprimands in personnel files, or termination, and whether or not the measures ended the harassment.
Carter v . Chrysler Corp., 173 F.3d 693, 702 (8th Cir.
1999)(citations omitted).
With respect to the length of time the hospital took to
investigate this incident, the court notes that a three month
5 Metalious was out on medical leave and was hospitalized temporarily at some point during that time.
17 investigation was considered prompt in Waymire v . Harris County,
Texas, 86 F.3d 424, 429 (5th Cir. 1996). Courts realize that
“[o]rdinarily, an organization requires time to respond to
embarrassing, emotional and often litigation-spawning claims of
sexual harassment.” Dornhecker v . Malibu Grand Prix Corp., 828
F.2d 307, 309 (5th Cir. 1987). This requirement is heightened
where, as here, there were no witnesses to the incident and the
alleged harasser both denied any wrongdoing and exhibited
potential hostility toward the employer as a result of the
accusation. See Grozdanich, 25 F. Supp. 2d at 977 (recognizing
that an employer in such situations faces “a high probability of
liability for both sexual harassment and wrongful termination”).6
That the hospital required three months to fully investigate
plaintiff’s complaint does not preclude finding its response to
have been prompt as a matter of law. This is particularly so
6 When interviewed by hospital investigators on August 1 7 , 1995, Metalious disputed plaintiff’s version of the incident, stating that they had hugged and kissed, but that it had been consensual. Metalious also stated that he felt violated by the complaint and believed his rights were not being protected. (See Ex. 3 to Pl.’s Br.)
18 where, as in Waymire, “[t]he investigation originally moved
quickly.” Waymire, 86 F.3d at 429. The hospital obtained
written statements from plaintiff and Metalious within twenty-
four hours of the incident, began interviewing witnesses within
three days, and confirmed in writing both that it had plaintiff’s
complaint and that it had appointed an investigative team. Thus,
plaintiff was assured within days of the incident that her
complaint was being taken seriously and was being acted upon.
Plaintiff nevertheless asserts that the hospital’s
investigation was not timely because it did not comply with the
mandate in the State’s sexual harassment policy that
“[i]nvestigations shall be completed and a written report issued
within thirty (30) days of the receipt of the complaint.” (Lang
Aff. Ex. H ) . Plaintiff points to no authority for the
proposition that failure to meet self-imposed requirements more
specific or stringent than those imposed by Title VII should
nevertheless be held actionable under Title VII, nor does she
suggest any policy concerns that might warrant such a rule. The
hospital’s self-imposed thirty day investigation period is
19 enforceable, if at all, under contract principles. See, e.g.,
Corluka v . Bridgford Foods of Ill., Inc., 671 N.E.2d 8 1 4 , 818-19
(Ill. App. C t . 1996) (finding a harassment policy that “state[d]
a promise by defendant to end any harassment employees may
experience” constituted a contract); Finnane v . Pentel of
America, Ltd., 43 F. Supp. 2d 891, 901 n.2 (N.D. Ill. 1999)
(questioning Corluka on whether there existed consideration for a
contract that imposed no greater duties on defendant than those
required by law, but stating that there would be consideration
where a policy dealt with “matters beyond the scope of Title VII”
such as “prompt, confidential investigation and duty to
discipline and/or terminate”). In fact, plaintiff asserts, as a
pendent state law claim in Count III, that the hospital’s failure
to complete its investigation within thirty days, as required
under its own policy, breached her employment contract.
Accordingly, that alleged contractual breach will be considered
when Count III is addressed. But, with regard to plaintiff’s
Title VII claim, the hospital’s response to her complaint was
timely as a matter of law.
20 Plaintiff also argues that the hospital’s response was
deficient because it left her wondering whether she would have to
work with Metalious again. In its answers to plaintiff’s
interrogatories, the hospital stated that after it received her
complaint “[Metalious] was not allowed to work with the plaintiff
in the Acute Psychiatric Facility.” (Ex. 12 to Plf.’s O b j . to
Defs.’ Mot. for Summ. J.) Plaintiff concedes that Metalious did
not work with her while her complaint was under investigation.
(See Pl.’s Br. at 3.)
While the hospital could have, and probably should have,
reassured plaintiff by specifically telling her that Metalious
would no longer work with her, “Title VII requires only that the
employer take steps reasonably likely to stop the harassment.”
Saxton v . American Tel. & Tel. Co., 10 F.3d 526, 536 (7th Cir.
1993). It is undisputed that the hospital’s actions did
effectively and promptly stop Metalious’ harassment of plaintiff.
That is sufficient for Title VII purposes, notwithstanding
plaintiff’s continued apprehension. (Of course, plaintiff could
have asked for reassurance as well, as any reasonable person
21 likely would have done.) See Skidmore v . Precision Printing and
Pkg., Inc., 188 F.3d 606, 616 (5th Cir. 1999) (employer’s
remedial action met Title VII standards where harasser’s
offensive conduct ceased after he was warned and transferred to a
new shift, even though plaintiff “testified that she remained
uncomfortable”). The court therefore holds as a matter of law
that the hospital took prompt and appropriate remedial action in
response to plaintiff’s complaint.
Plaintiff also argues, however, that the hospital is liable
under Title VII for failing to properly respond to previous
complaints about Metalious.7 Plaintiff argues that Metalious’
7 Count I of plaintiff’s complaint, captioned “sex discrimination,” appears to address only the hospital’s allegedly inadequate response to plaintiff’s complaint of harassment. Plaintiff’s brief confirms this reading: The gist of [Count I ] is that Defendant did not act properly and promptly after [plaintiff’s] complaint was made. Count V goes to the issue of Defendant failing to maintain a safe working environment and failing to adequately train and supervise employees, which if done properly, the sexual harassment could have been prevented. (Plf.’s Br. at 10.) Count V , however, is a claim brought under 42 U.S.C. § 1983, not Title VII. Nevertheless, in discussing the Title VII claim in her brief, plaintiff argues that the hospital’s awareness of prior
22 harassment of her could have been avoided if the hospital had
taken appropriate remedial action when prior complaints were made
by others.
The hospital counters that the information it had about
Metalious - namely, that he may (or may not) have misrepresented
his criminal record on his employment application, that he may
have engaged in consensual sexual activity with a fellow employee
while at work, and that he had been previously reprimanded for
calling a patient “a bitch” - was insufficient to put it on
notice that Metalious would likely sexually harass a co-worker in
the manner described. The hospital fails to address, however,
plaintiff’s critical factual allegation that “at least one prior
incidents involving Metalious “either gave the State cause to severely reprimand Metalious sufficiently to change his behavior or cause to terminate him. Had either occurred, the State could have prevented the August 1 4 , 1995 sexual assault and harassment from occurring.” (Plf.’s Br. at 12.) Moreover, while noting the apparently limited scope of Count I , defendants address the broader potential claim in their brief. The court will therefore treat Count I as also alleging that the hospital’s failure to act on prior complaints against Metalious gave rise to Title VII violations.
23 complaint has been made by another employee about Metalious’
sexually harassing conduct at work.” (Compl. at ¶ 11.)
Plaintiff bases her claim on the affidavit of Gary A .
Prescott, which describes an incident that occurred in late April
or early May, 1995, while Prescott was working at the Philbrook
Children’s Center. Prescott stated that he overheard a
conversation between Metalious and a co-worker, Rebecca Pellowe,
in which Metalious commented on his sex life with his wife.
Metalious and Pellowe went into another room, and when Pellowe
returned, she was upset and stated she was leaving. Prescott
believes he heard Metalious ask Pellowe to engage in a sex act
with him. After discussing the incident with Pellowe the next
day, Prescott wrote up a complaint against Metalious and “filed
it with the complaint office.” (Prescott Aff.) 8
Defendants submitted the affidavit of Marie Lang, in which
she states that she personally searched or instructed others to
8 Plaintiff represents that Pellowe also filed a complaint at the time of the incident, but there is no affidavit from Pellowe in the record or other admissible evidence to show that a complaint was filed by Pellowe.
24 search hospital records for any prior sexual harassment
complaints against Metalious. Lang averred that no record of any
prior complaint, and in particular any prior complaint by
Prescott or Pellowe, was found. Dennis M . D’Ovidio, the Director
of Transitional Housing, also stated in his affidavit that as far
as he knew, no complaint of sexual harassment, prior to
plaintiff’s, was made against Metalious while he worked in
Transitional Housing. These averments, however, do not disprove
Prescott’s testimony that he filed a complaint and, to the extent
they cast doubt on that testimony, they generate a factual
dispute that cannot be resolved on summary judgment. Assuming
that a complaint was filed as Prescott claims, there is no
evidence as to what, if any, remedial action was taken by the
hospital.9
9 Interestingly, the hospital investigators’ notes of an interview with Metalious report that “Metalious stated that Dennis D’Ovidio, his boss, once called him in about a complaint made by a woman at work against him. Metalious stated that nothing happened, but that there were a lot of rumors.” (Plf.’s Ex. 3 to O b j . to Defs.’ Mot. for Summ. J.) There is no indication of who the complainant was or to what incident the complaint referred.
25 Plaintiff has raised a genuine issue of material fact as to
whether the hospital had prior knowledge of Metalious’ harassment
of female co-workers and whether it took appropriate action given
that knowledge. Thus, even though the hospital properly handled
plaintiff’s sexual harassment complaint, its motion for summary
judgment must be denied as to Count I . See Brooks v . H. J.
Russell & Company, 66 F. Supp. 2d 1349 (N.D. Ga. 1999)
(employer’s motion for summary judgment denied where employer
responded appropriately to plaintiff’s complaint but genuine
issue of material fact existed as to whether employer knew o f ,
yet failed to address, previous incidents involving the harasser
and other employees); Munn v . Mayor and Aldermen of the City of
Savannah, Ga., 906 F. Supp. 1577, 1584 (S.D. Ga. 1995) (same).
Plaintiff argues that the court should decline to consider
the remaining issues addressed in defendants’ motion as they
should have been raised in a motion to dismiss. Plaintiff
contends that defendants’ motion is essentially a motion to
dismiss brought under the guise of a summary judgment motion and
that because it was filed almost five months after the deadline
26 for motions to dismiss set in the court’s pretrial scheduling
order, it is untimely. The court disagrees.
First, to the extent defendants’ remaining arguments rely on
materials outside the pleadings, they were required to be raised
in a motion for summary judgment. However, even arguments that
do not require the court to look beyond the pleadings are not
precluded from summary judgment disposition: “Of course, a
summary-judgment motion may be made on the basis of the pleadings
alone, and if this is done it functionally is the same as a
motion to dismiss for failure to state a claim or for a judgment
on the pleadings.” 10A Charles Alan Wright, Arthur R. Miller and
Mary Kay Kane, Federal Practice and Procedure § 2713 at 222-23
(3d ed. 1998). Defendants’ arguments for judgment are properly
presented. See Baker v . Pfeifer, 940 F. Supp. 1168, 1173 n.4
(S.D. Ohio 1996) (court not detained by argument that defendants
should have filed a motion for judgment on the pleadings rather
than a motion for summary judgment).
In Counts II and IV, plaintiff alleges that the hospital
retaliated against her, in violation of Title V I I , for reporting
27 the sexual harassment by Metalious. She says the hospital
retaliated by requiring that she attend a presentation regarding
appropriate workplace behaviors (Count II) and by terminating her
employment (Count I V ) .
In the absence of direct evidence of retaliation, plaintiff
has the initial burden to establish a prima facie case by showing
the following: “[1] protected participation or opposition under
Title VII known by the alleged retaliator; [2] an employment
action or actions disadvantaging persons engaged in protected
activities; and [3] a causal connection between the first two
elements, that i s , a retaliatory motive playing a part in the
adverse employment actions.” Hazel v . U.S. Postmaster Gen., 7
F.3d 1 , 3 (1 st Cir. 1993) (internal quotation marks and some
internal brackets omitted). Plaintiff’s establishment of a prima
facie case shifts the burden of production to the defendant “to
articulate a plausible, legitimate, and nondiscriminatory
justification for the employment decision.” Id. The burden of
persuasion, however, remains at all times with the plaintiff.
Id. Thus, once the employer offers a nondiscriminatory reason
28 for the challenged action, the presumption of discrimination
raised by plaintiff’s prima facie case disappears and the
plaintiff is left with the burden of proving the ultimate issue -
that the challenged action was taken in retaliation for
plaintiff’s engaging in protected activity. See id.; S t . Mary’s
Honor Center v . Hicks, 509 U.S. 502, 507-08 (1993). Plaintiff
may meet this burden by showing that the employer’s proffered
reason was a pretext for retaliation - that i s , that “the
proffered reason was not the true reason for the employment
decision and that [retaliation] was.” S t . Mary’s Honor Center,
509 U.S. at 508 (citation and internal quotation marks omitted).
The hospital first argues that plaintiff has failed to
establish a prima facie case with respect to Count II because the
direction that she attend a presentation on professional behavior
in the workplace does not constitute an adverse employment action
sufficient to support a retaliation claim. The court agrees.
The Court of Appeals for the First Circuit has noted that Title
VII’s retaliation provision “encompasses a variety of adverse
employment actions, including demotions, disadvantageous
29 transfers or assignments, refusals to promote, unwarranted
negative job evaluations, and toleration of harassment by other
employees.” Hernandez-Torres v . Intercontinental Trading, Inc.,
158 F.3d 4 3 , 47 (1 st Cir. 1998). It does not, however, cover all
employment actions that a plaintiff may find objectionable. The
action must “at a minimum, impair or potentially impair the
plaintiff’s employment in some cognizable manner.” Nelson v .
University of Maine Sys., 923 F. Supp. 275, 281 (D. M e . 1996);
see also Randlett v . Shalala, 118 F.3d 857, 862 (1st Cir. 1997)
(noting that Title VII’s retaliation provision should arguably be
read in conjunction with 42 U.S.C. § 2000e-2(a), which prohibits
discrimination with respect to “‘compensation, terms, conditions,
or privileges of employment’”).
Requiring plaintiff to attend a presentation on professional
workplace behavior does not rise to the level of adverse
employment action. The District Court for the Eastern District
of Pennsylvania addressed a similar situation in Harley v .
McCoach, 928 F. Supp. 533 (E.D. P a . 1996). There the employer,
as one of the remedial actions taken in response to plaintiff’s
30 complaints of racial and sexual harassment, required plaintiff,
along with all of the employees in her department, to attend a
refresher course on sexual harassment taught by one of her
alleged harassers. The court concluded that “[w]hile [plaintiff]
may have found these actions objectionable, we cannot say that
they adversely affected her employment relationship with [her
employer].” Id. at 542. Plaintiff’s claim in this case
similarly fails. Therefore, defendants’ motion for summary
judgment is granted as to Count I I .
In Count IV, plaintiff alleges additional retaliatory action
in the form of termination of her employment. Termination
clearly constitutes an adverse employment action. Furthermore,
the court will presume that the temporal proximity between the
filing of plaintiff’s complaint with the New Hampshire Human
Rights Commission on November 2 , 1995, and her termination on
November 1 6 , 1995, is sufficient evidence of causation to at
least establish a prima facie case. See Oliver v . Digital
Equipment Corp., 846 F.2d 103, 110 (1st Cir. 1988) (“A showing of
discharge soon after the employee engages in an activity
31 specifically protected by . . . Title VII . . . is indirect proof
of a causal connection between the firing and the activity
because it is strongly suggestive of retaliation.”).
In accordance with the burden-shifting framework outlined
above, the hospital must now articulate a legitimate, non-
discriminatory reason for the adverse employment action. The
hospital submitted affidavits from Linda Flynn, plaintiff’s
former supervisor, and Sandra M. Davis, the Assistant Director of
Nursing at the hospital. Both affiants stated that they
participated in the decision to terminate plaintiff and that her
sexual harassment complaint played no part in that decision.
Sandra M. Davis further stated that plaintiff was fired for
failing to meet the required work standard while on probationary
status. Specific instances of such failure included falling
asleep while on a suicide watch and exercising poor judgment in
becoming involved in a personal financial arrangement with a
patient. This showing is sufficient to meet the hospital’s
burden of production. See, e.g., Hodgens v . General Dynamics
Corp., 144 F.3d 151, 167 (1st Cir. 1998) (defendant successfully
32 rebutted plaintiff’s prima facie case with supervisor’s testimony
that plaintiff was fired for performance reasons and that his
engaging in protected activity was not considered).
Plaintiff attempts to show that the reasons given for her
termination were pretextual by arguing that the sleeping incident
did not give the hospital sufficient cause to terminate her at
that time and that she was “cleared of any wrongdoing” in the
gift-buying incident when the patient abuse complaint was
determined to be unsubstantiated. (Pl.’s B r . at 16.) The court
cannot agree with plaintiff’s interpretation of either the
undisputed facts or the law. Far from having been “completely
exonerated” in the gift-buying incident, plaintiff was found to
have “violate[d] hospital policy and used exceedingly poor
judgment in not reporting to her supervisor,” notwithstanding
that no patient “abuse” was found. (Ex. B to Sandra M. Davis
Aff.) Plaintiff does not dispute that she failed to notify her
supervisor of the gift-buying incident or that she fell asleep
while on a suicide watch. While plaintiff may dispute the
egregiousness of these lapses, “[i]t is not enough for the
33 plaintiff to show that the employer made an unwise business
decision, or an unnecessary personnel move.” Gray v . New England
Tel. & Tel. Co., 792 F.2d 251, 255, 256 (1st Cir. 1986)
(plaintiff failed to present jury question of pretext where he
failed to produce evidence that his employer “did not in fact
believe that he was violating [company policies]”).
Here the hospital stated that it fired plaintiff for failing
to meet established work standards, including failing to use good
judgment and follow hospital policy. Plaintiff has not shown
that the hospital did not actually believe that she exhibited
these faults. Thus, plaintiff has failed to present a genuine
issue of material fact regarding pretext. The defendants’ motion
for summary judgment is granted as to Count IV.
Count V of plaintiff’s complaint asserts a claim under 42
U.S.C. § 1983, alleging that the hospital and Gorman denied her
due process and equal protection by failing to promptly
investigate her sexual harassment complaint, by failing to keep
the working environment safe, and by failing to properly train
and supervise hospital employees. The defendants claim
34 entitlement to summary judgment on grounds that the hospital, as
a state agency, is not a person subject to suit under § 1983;
that the undisputed facts do not support plaintiff’s claim; that
plaintiff failed to allege facts connecting Gorman to her alleged
harassment; and that, in any event, Gorman is entitled to
qualified immunity.
The hospital cites Will v . Michigan Dep’t of State Police,
491 U.S. 58 (1989), to support its defense to the § 1983 claim.
In Will, the Supreme Court held that “a State is not a person
within the meaning of § 1983.” Id. at 64. 10 Plaintiff does not
dispute, and indeed alleges in ¶ 4 of her complaint, that the
hospital “is a department of the State of New Hampshire.” Thus,
under Will, the hospital is entitled to summary judgment on Count
V.
Plaintiff also seeks to draw support from Will’s language:
“Of course a state official in his or her official capacity, when
10 Section 1983 itself subjects to liability “[e]very person who, under color of” state law, deprives any citizen or person within the jurisdiction of the United States of “any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C.A. § 1983 (West Supp. 1999).
35 sued for injunctive relief, would be a person under § 1983
because official capacity actions for prospective relief are not
treated as actions against the State.” Will, 491 U.S. at 71
n.10. Plaintiff argues that because she prays for prospective
relief, including reinstatement and injunctions against future
discrimination, her § 1983 claim against the hospital and Gorman
are not barred. The court disagrees.
First, the court questions whether plaintiff has sued Gorman
in his official capacity at all. The caption of plaintiff’s
complaint does not specify the capacity in which Gorman is named
as a defendant. Nor does the body of her complaint evince
plaintiff’s intent to sue Gorman as superintendent of the
hospital. On the one hand, the complaint identifies Gorman by
his official title, alleges that he acted under color of state
law, and alleges that he and the hospital had a policy or custom
of violating female employees’ due process and equal protection
rights. These allegations, in an otherwise ambiguous complaint,
are indicative of an official capacity suit. See, e.g., Kolar v .
County of Sangamon of the State of Illinois, 756 F.2d 564, 568
36 (7 th Cir. 1985) (clarifying that “where a complaint alleges that
the conduct of a public official acting under color of state law
gives rise to liability under Section 1983, we will ordinarily
assume that he has been sued in his official capacity and only
that capacity”).
On the other hand, while it never mentions the words
“official capacity,” the complaint expressly declares that Gorman
“is being sued in his individual capacity.” (Compl. at ¶ 5.)
See Saxner v . Benson, 727 F.2d 669, 673 (7th Cir. 1984) (finding
defendants not sued in official capacities where “[i]n addition
to the absence of any allegation that the defendants were acting
in their official capacities, it is specifically alleged . . .
[in the complaint] that ‘All defendants are sued in their
individual capacities’”), aff’d sub nom. Cleavinger v . Saxner,
474 U.S. 193 (1985). The failure to name Gorman in his official
capacity is fatal to plaintiff’s claims for injunctive relief.
See Poe v . Massey, 3 F. Supp. 2d 176, 176 (D. Conn. 1998)
(“Claims for prospective relief against a state officer may be
asserted only against the officer in her official capacity.”).
37 Moreover, plaintiff’s claims for injunctive relief fail as a
matter of law. See id. Her prayer for reinstatement cannot be
granted because she was terminated for a legitimate,
nondiscriminatory reason. See Hite v . Biomet, Inc., 53 F. Supp.
2d 1013, 1026 n.15 (N.D. Ind. 1999) (noting that “since this
court has concluded that Hite’s termination is valid,
reinstatement is not an appropriate remedy”). Her claims for
injunctive relief aimed at curbing future discriminatory and/or
harassing behavior fail because she no longer has a stake in what
happens at the hospital. See e.g., Roth v . United States, 952
F.2d 611, 613 (1 st Cir. 1991) (noting that after plaintiff
resigned from defendant’s employ, she no longer had standing to
enjoin her supervisor’s actions “in order to protect others or
vindicate the public weal”).
Count V also fails as a matter of law to the extent that it
attempts to hold Gorman liable, under § 1983, in his individual
capacity. “A supervisor may be found liable [under § 1983] only
on the basis of h[is] own acts or omissions.” Gutierrez-
Rodriguez v . Cartagena, 882 F.2d 553, 562 (1st Cir.
38 1989)(internal quotation marks omitted). Plaintiff’s complaint
fails to recount a single act or omission by Gorman, alleging
only that Gorman “had supervisory responsibility over the entire
operation” of the hospital (Compl. at ¶ 5 ) and that he and the
hospital “had a policy and/or custom of depriving female
employees” of constitutional rights (Compl. at ¶ 2 8 ) . “Without
alleged facts tying [Gorman] personally, by reason of his own
cognizable action or inaction, into the conduct which harmed
plaintiff, . . . [Gorman] cannot be held liable [under § 1983]
for the actions of his subordinates.” Guzman v . City of
Cranston, 812 F.2d 2 4 , 26 (1st Cir. 1987). Thus, Gorman is
entitled to summary judgment with respect to Count V in his
individual capacity.
Counts III, VI and VIII of plaintiff’s complaint assert
state law claims against the hospital for breach of contract,
negligence, and malicious termination, respectively. The
hospital argues that these claims are barred by the Eleventh
Amendment and sovereign immunity. The court agrees. The
Eleventh Amendment provides: “The Judicial power of the United
39 States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” The Supreme Court has long recognized that the
amendment’s “significance lies in its affirmation that the
fundamental principle of sovereign immunity limits the grant of
judicial authority in Art. III.” Pennhurst State School & Hosp.
v . Halderman, 465 U.S. 8 9 , 98 (1984). Accordingly, the amendment
has been interpreted more broadly than its limited terms would
ordinarily suggest. The Supreme Court has held, for instance,
that the amendment bars a suit in federal court brought against a
state by one of its own citizens. See id. The Eleventh
Amendment also bars pendent claims brought in a suit over which
the federal court otherwise has jurisdiction. See id. at 918.
As sovereign immunity bars suit against a state without its
consent, the state may, by its consent to suit, waive the
immunity. See id. at 98-99. Such consent must be “unequivocally
expressed,” however, id. at 9 9 , and “the Court consistently has
held that a State’s waiver of sovereign immunity in its own
40 courts is not a waiver of the Eleventh Amendment immunity in the
federal courts,” id. at 99 n.9. The hospital argues that the
State of New Hampshire has not waived its Eleventh Amendment
immunity to any of the pendent state claims brought by plaintiff.
Before addressing each claim individually, the court notes that
in N.H. Rev. Stat. Ann. § 99-D:1 (1990) the New Hampshire
legislature adopted the doctrine of sovereign immunity as the law
of the state, “except as otherwise expressly provided by
statute.”
Count III alleges breach of contract. In N.H. Rev. Stat.
Ann. § 491:8, New Hampshire partially waived its sovereign
immunity as to claims based on express or implied contracts. See
Morgenroth & Associates, Inc. v . Town of Tilton, 121 N.H. 511,
514 (1981). That statute, however, grants the power to enter
judgment against the state, on a contract claim, only to the
state’s own superior court. New Hampshire’s waiver of immunity
in its own courts does not waive its Eleventh Amendment immunity
to suit in federal court. See Metcalf & Eddy, Inc. v . Town of
Gorham, New Hampshire, 587 F. Supp. 3 2 , 34 (D.N.H. 1984) (finding
41 that “the State of New Hampshire has not waived its Eleventh
Amendment immunity from suit under RSA 491:8"). Thus, the
hospital in entitled to summary judgment on Count III.
Count V I , alleging negligence, must be dismissed for similar
reasons. Claims for personal injury may be brought against the
state under N.H. Rev. Stat. Ann. § 541-B:9. Jurisdiction over
such claims, however, is granted to the board of claims,
established in N.H. Rev. Stat. Ann. § 541-B:2, and/or the state
superior court, depending on the amount in controversy. The
statute nowhere expressly consents to suit in federal court.
Thus, the hospital is entitled to summary judgment on Count VI. 11
Count VII purports to state a claim for malicious
termination constituting retaliation under N.H. Rev. Stat. Ann. §
354-A:19 and Title VII. However, N.H. Rev. Stat. Ann. ch. 354-A
11 The foregoing discussion provides sufficient answer to plaintiff’s argument that “[i]f the State has consented to suit pursuant to RSA 491 and 541-B, then there is no reason that suit cannot go forward in the Federal forum.” (Pl.’s B r . at 23.) While plaintiff expresses a laudable desire to avoid the “waste of judicial time and resources” involved in litigating in more than one forum, (Pl.’s Br. at 2 3 ) , considerations of judicial economy do not trump Eleventh Amendment immunity.
42 “does not create a private right of action for individuals
aggrieved by unlawful discrimination,” Carparts Distribution Ctr.
v . Automotive Wholesaler’s Ass’n of N.E., Inc., 987 F. Supp. 7 7 ,
83 (D.N.H. 1997) (internal quotation marks omitted), and the
court has already determined that plaintiff’s Title VII
retaliatory discharge claim fails as a matter of law.
Plaintiff nevertheless argues that her wrongful termination
claim is brought not under N.H. Rev. Stat. Ann. ch. 354-A, but
under New Hampshire case law including Monge v . Beebe Rubber Co.,
114 N.H. 130 (1974), and Cloutier v . Great Atl. & Pac. Tea Co.,
121 N.H. 915 (1981). This argument also fails. The rule adopted
in Monge and refined in Howard v . Dorr Woolen Co., 120 N.H. 295
(1980) essentially prohibits the termination of an at will
employee that is motivated by malice, bad faith, or retaliation
and that is effected because the employee “performed an act that
public policy would encourage, or refused to do that which public
policy would condemn.” Cloutier, 121 N.H. at 920 (quoting
Howard, 120 N.H. at 2 9 7 ) . The rule is usually stated to be based
on the implied covenant of good faith found in every contract,
43 see id., although the cause of action is sometimes expressed as
the tort of wrongful discharge, see id. at 925 (Bois, J.,
dissenting); cf. Monge, 114 N.H. at 130 (specifying that the
action was brought in assumpsit for breach of an oral employment
contract). In either case, plaintiff’s claim is barred because,
as noted above, New Hampshire has not consented to be sued in
tort or contract in federal court. Thus, the hospital is
entitled to summary judgment on Count VII.
Defendants finally argue that plaintiff’s claims for
declaratory and injunctive relief are moot. As stated in the
discussion of plaintiff’s § 1983 claim, the court agrees with
respect to all injunctive relief requested by plaintiff. In
addition, the request for declaratory judgment on her § 1983
claim must fail along with the substance of that claim.
Plaintiff’s Title VII claim based on the hospital’s failure to
remedy prior harassment, however, survives this motion for
summary judgment given the undeveloped record. Thus, her request
for a declaration that the hospital has violated Title VII is not
moot.
44 Conclusion
For the foregoing reasons, defendants’ motion for summary
judgment is granted in part and denied in part. Counts I I , IV
and V , and Count I to the extent it challenges the hospital’s
response to plaintiff’s own harassment complaint, are dismissed
with prejudice. Counts I I I , VI and VII are dismissed without
prejudice to plaintiff asserting them, if she can, in state court
or before the board of claims. Count I survives to the extent it
bases a harassment claim on the hospital’s prior knowledge of and
failure to adequately respond to the likelihood that Metalious
would sexually harass female co-workers.
SO ORDERED.
Steven J. McAuliffe United States District Judge
January 2 8 , 2000
cc: Brian T . Stern, Esq. Nancy J. Smith, Esq.