Schoepfer v. UNH

• Court: District Court, D. New Hampshire
• Decided: April 16, 1998
• Docket: CV-97-402-SD
• Status: Published

Opinion

Schoepfer v . UNH CV-97-402-SD 04/16/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joann D. Schoepfer, f/k/a Shelan

v. Civil N o . 97-402-SD

The University System of New Hampshire, et al

O R D E R

Defendants move for reconsideration of this court’s previous

denial of summary judgment for plaintiff’s Title IX claim.

Defendants argue that there should be no private right of action

for employment discrimination under Title I X , citing a line of

cases which has held that “since Title VII provides a comprehen-

sive and carefully balanced remedial mechanism for redressing

employment discrimination, and since Title IX does not clearly

imply a private cause of action for damages for employment dis-

crimination, none should be created by the courts.” Cooper v .

Gustavus Adolphus College, 957 F. Supp. 1 9 1 , 193 (D. Minn. 1997);

see also, Lakoski v . James, 66 F.3d 7 5 1 , 754 (5th Cir. 1995)

(“Given the availability of a private remedy under Title VII for aggrieved employees, we are unwilling to [find a private right of

action] under Title IX for employment discrimination.”).

Plaintiff, on the other hand, points out ample contrary

authority. See Henschke v . New York Hospital-Cornell Medical

Ctr., 821 F. Supp. 166, 172 (S.D.N.Y. 1993) (“This Court . . .

finds that a private right of action for employment discrimina-

tion exists under Title IX separate and apart from Title VII and

without regard to the availability of the Title VII remedy.”);

see also Bedard v . Roger Williams Univ., 1997 WL 769363, at *2

(D.R.I. 1997). This court believes this line of authority to be

the better reasoned. In North Haven Bd. of Educ. V . Bell, 456

U.S. 512 (1982), the Court upheld federal regulations issued

under Title IX prohibiting employment discrimination on the basis

of sex at federally funded education institutions. Under Cannon

v . University of Chicago, 441 U.S. 677 (1979), it is undisputed

that a private right of action exists under Title IX. It appears

inconsistent to hold that the private right of action under

Cannon extends to some, but not all, of the conduct prohibited by

Title IX. Yet it is exactly this inconsistency that is produced

2 by courts holding that employment discrimination, which under

Bell is clearly prohibited under Title I X , nonetheless may not be

remedied by a private cause of action under Cannon. The exist-

ence of an overlapping remedy under Title VII does not justify

this inconsistency because, according to this court’s research,

there is no such doctrine as federal-federal preemption.

In addition, the First Circuit in Lipsett v . University of

Puerto Rico, 864 F.2d 881 (1st Cir. 1988), while not explicitly

considering the issue, nonetheless upheld a private right of

action under Title IX for employment discrimination. Defendant

attempts to distinguish Lipsett on the ground that the plaintiff

in that case did not bring a separate claim under Title VII.

However, a private right of action under a federal statute cannot

be so ephemeral as to dissipate if the plaintiff happens to

choose to pursue an overlapping remedy under another statute.

In sum, this court holds that plaintiff may pursue a private

right of action under Title IX for the alleged employment dis-

crimination, despite the existence of an overlapping remedy under

Title VII.

3 Next, the court is asked to reconsider its ruling that

defendants The University System of New Hampshire and The Uni-

versity of New Hampshire (University defendants) are not entitled

to judgment on Schoepfer’s vicarious liability claims. Rule 5 9 ,

Fed. R. Civ. P., “may not be used to argue a new legal theory.”

FDIC v . World University, Inc., 978 F.2d 1 0 , 16 (1st Cir. 1992).

It is a close case whether defendants are asserting a new legal

theory in support of reconsideration. While defendants have yet

to clearly articulate their theory, they appear to argue that the

exclusivity provision of New Hampshire Workers’ Compensation

Act, Revised Statutes Annotated 281-A:8, bars plaintiff from

recovering against her employer, the University defendants, for

intentional infliction of emotional distress. In their first

memorandum, however, defendants did not assert the exclusivity

provision, but rather argued that “a plaintiff cannot impose

vicarious liability or respondeat superior liability on an

employer for the allegedly intentionally tortious conduct of one

of its employees; by definition, such conduct by an employee is

outside the scope of her/his employment.” Defendants’ Memorandum

4 of Law in Support of the Defendants’ Motion for Partial Judgment

on the Pleadings at 6. This was an agency argument about the

scope an employer’s vicarious liability. This argument is

entirely unrelated to worker’s compensation law, which the

defendants’ memorandum references merely as support for their

agency argument. Because the court found defendants’ agency

argument so clearly untenable, the court disregarded the

reference to worker compensation law.

Defendants respond that the court misconstrued their first

memorandum as an agency argument and that their memorandum

instead was raising the bar of the workers compensation exclu-

sivity provision as a ground for dismissal. The court finds dis-

ingenuous defendants attempt to recharacterize its argument and

to fault this court for the misunderstanding.

Nonetheless, this is such a straightforward application of

the exclusivity provision of the worker’s compensation law,

Censullo v . Brenka Video, Inc., 989 F.2d 4 0 , 44 (1st Cir. 1993),

that the court feels compelled to dismiss plaintiff’s intentional

emotional distress claim against the University defendants,

5 despite the fact that defendants never properly raised the issue

in their first memorandum.

Conclusion

For the foregoing reasons, in response to defendants’ motion

for reconsideration (document 1 0 ) , the court denies the defend-

ants’ motion for judgment on the pleadings (document 6 ) as to

plaintiff’s Title IX claim, but grants said motion as to

plaintiff’s intentional infliction of emotional distress claim a

the University defendants.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 1 6 , 1998

cc: John M . Lewis, Esq. Martha V . Gordon, Esq.