Sefiane v. Wal-Mart Stores, Inc. CV-00-592-M 03/27/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Yousfi Joe Sefiane
v. Civil No. 00-592-M Opinion No. 2002 DNH 068 Wal-Mart Stores, Inc.
REPORT AND RECOMMENDATION
Plaintiff Yousfi Joe Sefiane brought a four count state writ
based upon national origin discrimination. Defendant Wal-Mart
Stores, Inc. ("Wal-Mart") removed the case to this court
asserting both diversity and federal claim subject matter
jurisdiction. Defendant moved for summary judgment on each count
and that motion has been referred to me for proposed findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(B).
Summary Judgment Standard
Summary judgment is appropriate only "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c); see Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 327
(1st Cir. 1996). A genuine issue is one "that properly can be resolved only by a finder of fact because [it] . . . may
reasonably be resolved in favor of either party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact
is one that affects the outcome of the suit. See id. at 248.
The moving party bears the initial burden of establishing
that there is no genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) . If that burden is
met, the opposing party can avoid summary judgment only by
providing properly supported evidence of disputed material facts
that would require trial. See id.
In ruling on a motion for summary judgment, the court
construes the evidence in the light most favorable to the non
movant, resolving all inferences in its favor, and determines
whether the moving party is entitled to judgment as a matter of
law. See Saenqer Orq. v. Nationwide Ins. Assocs., 119 F.3d 55,
57 (1st Cir. 1997). The undisputed facts, viewed in the light
most favorable to Yousfi Joe Sefiane, are recited below.
Background
Plaintiff Sefiane is a former Wal-Mart management employee.
In this action, he asserts claims against Wal-Mart under Title
VII and N.H. Rev. Stat. Ann. ("RSA") § 354-A for national origin
2 discrimination (Count I), as well as claims for intentional
infliction of emotional distress (Count II), negligent infliction
of emotional distress (Count III) and negligent supervision
(Count IV).
Sefiane is a college graduate who, after completing Wal-
Mart' s management training program, was employed first as an
assistant manager and then as a co-manager at Wal-Mart. While
awaiting a transfer to California, Sefiane worked at a number of
store locations to help convert those stores to supercenters.
Upon the request of Jeffrey Whitney, Wal-Mart's Concord, New
Hampshire store manager, Sefiane was transferred to that store as
a co-manager in June of 1999. Whitney became Sefiane's immediate
supervisor. Shortly after plaintiff started his employment at
the Concord Supercenter, Whitney learned that plaintiff was from
Morocco.
Sefiane states that from July 1999 into October 1999,
Whitney referred to him as a foreigner. These incidents occurred
in various locations and took place both with and without
witnesses. As Sefiane describes, Whitney called him a foreigner
[m]any times. It became such a habit that it was a norm for him. -k
I was being so degraded that I was basically referred
3 to him in his eyes as just a foreigner. It wasalmost like I didn't have a name. I didn't have a - - I was just a foreigner.
Defendant's Exh. A, p.81. In a July 1999 management meeting,
plaintiff started to speak when Whitney "rudely interrupt[ed] and
[said], 'What does a foreigner know? You're just a foreigner.
What do you know?'" Defendant's Exh. A, pp. 78-79. Sefiane was
so embarrassed that he put his head down and said nothing.
Plaintiff's Vol I, Exh. B, p.23.
Sefiane complained to Whitney(as did other managers) about
Whitney's actions toward him. Whitney acknowledged only one
joking reference to Sefiane as a foreigner, but other managers
heard Whitney refer to Sefiane as a foreigner on other occasions.
In September or October 1999, Sefiane complained to the
district manager, Lisa Cowden, that Whitney had called him a
foreigner many times. Within a week of his complaint to Cowden,
plaintiff was transferred to the night shift. Sefiane alleges
that it was unheard of for a co-manager to work any shift other
than a day shift. Wal-Mart claims, without any support in the
record, that the shift change was routine. In December, Whitney
presented Sefiane with a written "coaching" regarding allegedly
deficient work that Sefiane performed in the time period
4 following his complaint to Cowden.
In order to assist Cowden in conducting an investigation of
Whitney's behavior, Sefiane provided her with the names of
witnesses. Cowden, however, failed to interview the witnesses
identified by the plaintiff. After interviewing Whitney, Cowden
concluded that there had been only one instance in which Whitney
had called Sefiane a foreigner. The record is clear that
independent witnesses heard Whitney call Sefiane a foreigner
numerous times, and Cowden has admitted that "[i]t would have
made a difference" if she had determined that Whitney had
referred to Sefiane as a foreigner on multiple occasions.
Plaintiff's Exh. D, p.69.
Cowden did have the regional manager, Gregory Samuelson,
call Sefiane. During the course of their conversation, Sefiane
described Whitney's behavior to Samuelson, and Samuelson asked
whether a transfer to an alternative location would help.
Sefiane also asked Samuelson to conduct an investigation.
Within a few days of the telephone call, Sefiane met with
Whitney, Cowden and Samuelson. At that meeting, Sefiane was
offered a transfer to the Oneida, New York Wal-Mart where Sefiane
could remain a co-manager. Plaintiff says that he was never
5 given the option of remaining a co-manager in Concord, although
Cowden testified that Sefiane was not asked to leave. Cowden's
testimony is inconsistent with the defendant's assertion to the
New Hampshire Human Rights Commission, which stated:
On January 1, 2000 Charging Party was demoted to the position of Assistant Manager due to his continued performance issues. It is Respondent's policy to transfer a member of management when they are demoted to another location to try and get a "fresh start".
Plaintiff's Exh. H, p.3.
Sefiane decided to decline the Oneida transfer because
Samuelson was the regional manager for that store and Sefiane did
not want to work for a manager who did not want to investigate
his claims. Instead, Sefiane asked for and received a transfer
to Maryland. In Maryland, Sefiane became an assistant manager
rather than a co-manager.
Despite his belief that Samuelson would not investigate his
allegations, Sefiane stated that he went to Maryland with the
"impression . . . [that] . . . Wal-Mart will do an investigation,
they'll call around and make things right." After nine (9)
months in Maryland, during which his work was admittedly
deficient, Sefiane still had heard nothing from Wal-Mart
regarding his complaints. In October 2000, Sefiane resigned.
6 Discussion
_Wal-Mart argues that it is entitled to summary judgment on
Sefiane's Title VII claims of harassment, retaliation and
constructive discharge on the grounds that (a) the alleged
harassment was not sufficiently severe to support a Title VII
claim; (b) Wal-Mart absolved itself of any liability by promptly
putting an end to the alleged harassment following Sefiane's
complaint; (c) Sefiane's failure to set forth evidence of an
adverse employment action defeats his retaliation claim; and (d)
the constructive discharge claim is not sustainable given
Sefiane's refusal to accept the lateral transfer to Oneida, New
York and his unreasonable delay in tendering his resignation. In
addition, Wal-Mart argues that it is entitled to summary judgment
on plaintiff's emotional distress and negligent supervision
claims because those claims are barred by the New Hampshire
workers' compensation statute, RSA ISl-AiS.1
A. Title VII Claims
_____ 1. Allegations of Harassment
To establish a hostile work environment under Title VII,
1Wal-Mart has not moved for summary judgment on Sefiane's claims for national origin discrimination pursuant to RSA § 354- A.
7 the plaintiff must show that the harassment based on national
origin was "sufficiently severe or pervasive to alter the
conditions of [his] employment," and that "the work environment
was both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that
[the plaintiff] in fact did perceive to be so." Conto v. Concord
Hosp., Inc., 265 F.3d 79, 82 (1st Cir. 2001)(internal quotations
and citations omitted).2 This is not a precise test, and the
decision as to "whether an environment is 'hostile' or 'abusive'
can be determined only by looking at all the circumstances."
Harris v. Forklift Svs., Inc., 510 U.S. 17, 22-3 (1993). See
also Conto, 265 F.3d at 81 (a determination as to whether the
defendant subjected the plaintiff to a hostile work environment
"necessarily entail[s] a fact-specific assessment of all the
attendant circumstances."). "Several factors typically should be
considered in making this determination: 'the frequency of the
discriminatory conduct; its severity; whether it is physically
2While there is little case law regarding national origin discrimination, the court may rely on Title VII cases involving harassment based on sex, race, color or religion. See Boutros v. Canton Reg'1 Transit Auth., 997 F.2d 198, 202-03 (6th Cir. 1993)(the principles applicable to sexual harassment are applicable to harassment on the basis of race, color, religion, or national origin). threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance'." O'Rourke v. City of Providence, 235 F.3d 713, 729
(1st Cir. 2001)(quoting Harris, 510 U.S. at 23). However, no
single factor is required. See Harris, 510 U.S. at 23.
The requirement that the harassment be sufficiently severe
or pervasive to alter the plaintiff's employment conditions
"takes a middle path between making actionable any conduct that
is merely offensive and requiring the conduct to cause a tangible
psychological injury." Id. at 21. Accordingly, while offhand
comments, isolated incidents and mere utterances of an epithet
are insufficient to constitute harassment under Title VII, see
id.; O'Rourke, 235 F.3d at 729, "Title VII comes into play before
the harassing conduct leads to a nervous breakdown." Harris, 510
U.S. at 22.
Wal-Mart argues that Whitney's actions consisted only of
mild epithets that occurred over a brief period and were not
sufficiently severe or pervasive to alter Sefiane's employment
conditions. While Whitney's statements occurred during a period
of only three to four months, there is evidence indicating that
the statements occurred so frequently as to become habitual. The
9 evidence also shows that Whitney's comments were common enough to
be heard on numerous occasions by independent witnesses, and that
Whitney's behavior was sufficiently offensive that other managers
complained to Whitney about his treatment of Sefiane. Moreover,
the evidence suggests that Whitney's repeated use of the term
"foreigner" humiliated Sefiane and that Sefiane's work
performance may have declined as a result of the alleged
behavior. Based on these facts, a jury could determine that the
alleged harassment created a hostile work environment. See
DeNovellis v. Shalala. 124 F.3d 298, 311 (1st Cir.
1997)(harassment that is severe enough to alter the victim's
workplace experience or pervasive enough to become the defining
condition of the workplace violates Title VII).3
Because harassment serious enough to create a hostile work
3The fact that Whitney's behavior toward the plaintiff involved no physical threats does not defeat Sefiane's harassment claims, as long as the evidence is sufficient to show that Whitney's statements amounted to something more than single acts that were isolated or sporadic. See Harris, 510 U.S. at 23 (while physically threatening conduct is relevant in determining whether an environment is hostile or abusive, neither this nor any other single factor is required); O'Rourke, 235 F.3d at 732 (isolated or sporadic acts that are not severe enough to alter the work environment and create an abusive work environment will not support a viable claim of hostile work environment). For purposes of summary judgment, Sefiane has shown that the allegedly harassing behavior was consistent and even habitual over the course of three to four months.
10 environment often involves a cumulative process in which a series
of acts or events mount over time to create an unlawful
atmosphere, the question as to when offensive conduct violates
Title VII is often better resolved by the factfinder at trial and
not on summary judgment. See 0'Rourke, 235 F.3d at 727, 732.
Although the conduct complained of here is much closer to conduct
that is mildly offensive than it is to conduct that is clearly
egregious, I find that the plaintiff has introduced sufficient
evidence of harassment to satisfy his burden on summary judgment.
The question as to whether Whitney's use of the word "foreigner"
was or at some point over the course of three to four months
became sufficiently severe or pervasive to support a Title VII
harassment claim is best reserved for trial.
2. Affirmative Defense to Harassment Claim
Wal-Mart further argues that even if Whitney's statements
created a hostile work environment, Wal-Mart is entitled to
summary judgment on the harassment claim because Wal-Mart
promptly put an end to the harassment upon learning of Whitney's
behavior. Under the controlling authority, however, Wal-Mart has
not established a defense to liability for harassment based upon
the uncontroverted facts.
11 In a Title VII hostile work environment case, a defendant
employer may avoid vicarious liability for the misconduct of a
supervisor by establishing that it is entitled to the affirmative
defense set forth in the Supreme Court's holdings in Faragher v.
Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998). The defense, which is only
available when no tangible employment action has been taken
against the plaintiff, "comprises two necessary elements: (a)
that the employer exercised reasonable care to prevent and
correct promptly any . . . harassing behavior [based on national
origin], and (b) that the plaintiff employee unreasonably failed
to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise." Faragher,
524 U.S. at 807 .4 See also White v. New Hampshire Dep't of
4Instead of relying on Burlington and Faragher, Wal-Mart urges the court to apply Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999), which held that an employer's prompt corrective action was sufficient by itself to avoid vicarious liability under Title VII for sexual harassment committed by a supervisory employee. I agree with the Tenth Circuit Court of Appeals' rejection of the Indest decision, and therefore decline to apply its reasoning. See Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1025-26 (10th Cir. 2001) . In particular, the Indest court's refusal to apply the second prong of the Burlington/Faragher defense ignores the Supreme Court's unambiguous directive that an employer wishing to avoid vicarious liability must prove both elements of the affirmative defense. See Burlington, 524 U.S. at 765 (the affirmative defense to
12 Corr., 221 F.3d 254, 261 (1st Cir. 2000) (setting forth the
affirmative defense available to employers under Faragher) .
There remains a genuine question of fact as to whether Wal-
Mart took reasonable care to prevent and correct promptly
Whitney's allegedly harassing behavior. Viewed in the light most
favorable to Sefiane, the facts show that following Sefiane's
complaints, Wal-Mart neglected to perform any type of serious
investigation before concluding that there had been only one
instance when Whitney called Sefiane a foreigner. Moreover,
there is no evidence that Wal-Mart took any action against the
offending supervisor. Instead, the evidence indicates that the
allegedly harassing behavior ceased because Wal-Mart transferred
Sefiane to the night shift. Because it was so extraordinary for
Wal-Mart to place any co-manager on the night shift, it could be
inferred that this action was intended to punish Sefiane for his
complaints, and was unrelated to any effort to protect him from
Whitney.
In addition, Wal-Mart has failed to provide any evidence to
show that it can meet the second element of the
Burlington/Faragher defense. The evidence demonstrates that
vicarious liability comprises two necessary elements) .
13 Sefiane took affirmative steps to prevent additional harassment
by complaining first to Whitney and then to Cowden about
Whitney's use of the term "foreigner." Sefiane also requested
that Cowden and then Samuelson conduct an investigation. He even
provided Cowden with a list of witnesses in order to aid in an
investigation. Wal-Mart has provided no support for a finding
that these actions were insufficient or in any way unreasonable.
I recommend, therefore, that Wal-Mart's motion for summary
judgment on plaintiff's harassment claim be denied.
3. Retaliation
In order to establish a prima facie case of retaliation
under Title VII, the plaintiff must show that: "(1) [h]e engaged
in protected conduct under Title VII; (2) he suffered an adverse
employment action; and (3) the adverse action is causally
connected to the protected activity." Hernandez-Torres v.
Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998).
See also Hazel v. U.S. Postmaster Gen., 7 F.3d 1, 3 (1st Cir.
1993). Wal-Mart argues that it is entitled to summary judgment
on the plaintiff's retaliation claim due to Sefiane's failure to
set forth evidence of an adverse employment action. More
specifically, Wal-Mart asserts that its decision to transfer
14 Sefiane from Concord to another location did not constitute an
adverse employment action because (a) Sefiane demanded that Wal-
Mart transfer him from the Concord store and (b) Sefiane's
demotion from co-manager of the Concord store to assistant
manager of a Maryland store was the result of Sefiane's refusal
to accept a co-manager position in Oneida, New York.
Wal-Mart's version of the facts is inconsistent with the
summary judgment record. First, the record indicates that Wal-
Mart, not Sefiane, proposed a transfer. Second, Wal-Mart's
admission to the New Hampshire Human Rights Commission raises an
issue of fact as to whether or not Wal-Mart gave Sefiane an
option to remain in Concord as a co-manager. Third, Wal-Mart's
representation to the Human Rights Commission also raises an
issue of fact as to whether Wal-Mart intentionally demoted
Sefiane or whether it would have allowed Sefiane to remain a co
manager .
The law is unsettled concerning when a lateral transfer
constitutes an adverse employment action. See Rav v. Henderson,
217 F.3d 1234, 1240-42 (9th Cir. 2000)(describing the split in
the circuits as to what constitutes an adverse employment action
and citing case law considering whether adverse employment
15 actions encompass lateral transfers). Moreover, while the First
Circuit has determined that adverse employment actions include
"disadvantageous transfers or assignments," Hernandez-Torres, 158
F.3d at 47, it has provided no guidance as to when a transfer may
be considered disadvantageous so as to constitute evidence of
retaliation. First Circuit case law does specify, however, that
adverse employment actions include demotions. See White, 221
F.3d at 262; Hernandez-Torres, 158 F.3d at 47. Because Sefiane
has raised a question of fact as to whether Wal-Mart
intentionally demoted him from co-manager to an assistant manager
position, I recommend that Wal-Mart's motion for summary judgment
on plaintiff's retaliation claim be denied.
4. Constructive Discharge
In order to prevail on a constructive discharge claim under
Title VII, the plaintiff must show that he resigned within a
reasonable time period after the alleged harassment. See
Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 613
(1st Cir. 2000); Smith v. Bath Iron Works Corp., 943 F.2d 164,
167 (1st Cir. 1991). Wal-Mart correctly argues that Sefiane's
resignation did not occur within a reasonable time after the
alleged harassment ceased. Specifically, Sefiane admits that
16 Whitney's allegedly harassing behavior occurred from July 1999
into October 1999. There is no evidence indicating that any
harassment occurred after that time, either in the Concord store
or after Sefiane had transferred to the Maryland store. Sefiane
did not resign from Wal-Mart until October 2000, about one year
after Whitney's "foreigner" comments had ceased. Pursuant to
relevant authority, Sefiane's resignation occurred too late after
the offensive conduct had ended to be considered a constructive
discharge. See Landrau-Romero, 212 F.3d at 613 (no constructive
discharge where resignation occurred seven months after the
alleged harassment); Smith, 943 F.2d at 167 (no constructive
discharge where plaintiff resigned six months after the last
offensive conduct occurred). Accordingly, I recommend that the
court grant Wal-Mart's motion for summary judgment on the
constructive discharge claim.
B. State Law Claims
Wal-Mart argues that it is entitled to summary judgment with
respect to the plaintiff's state law claims for intentional and
negligent infliction of emotional distress and for negligent
supervision because those claims are barred by New Hampshire's
Workers' Compensation Act ("Act"). Both the First Circuit and
17 this court have interpreted the Act's exclusivity provision, RSA
§ 281-A:8,5 as precluding "claims under common law or statute by
employees against employers for personal injuries falling under §
281-A:2, including emotional distress." Martin v. Applied
Cellular Tech., Inc., 2002 WL 398473 *3 (1st Cir. Mar. 19, 2002).
See also Holland v. Chubb Am. Serv. Corp., 944 F. Supp. 103, 105
(D.N.H. 1996)(the exclusivity provision of New Hampshire's
Worker's Compensation Act prohibits an employee from maintaining
a common law action against his employer for personal injuries,
including an action for intentional or negligent infliction of
emotional distress, arising out of the employment relationship);
Miller v. CBC Cos., Inc.. 908 F. Supp. 1054, 1068 (D.N.H.
1995)(the exclusivity provision of the New Hampshire Workers'
Compensation Act precludes employees from asserting both
intentional and nonintentional torts against their employers).
Under this line of cases, Sefiane's claims would be barred under
5RSA 281-A:8 states in relevant part:
I. An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee . . . to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise: (a) Against the employer . . . .
18 the Act. These cases, however, did not consider the effect that
recent amendments to the Act may have had on the viability of
personal injury claims by an employee against an employer.6
Even if, as Sefiane suggests, the amended Act should be
retroactively applied to this case, I find that RSA § 281-A:8
would continue to bar Sefiane's common law claims. The 2001
amendments, which became effective on August 10, 2001, now
exclude from the definition of "personal injury" a "mental injury
if it results from any disciplinary action, work evaluation, job
transfer, layoff, demotion, termination, or any similar action,
taken in good faith by an employer." RSA § 281-A:2, XI. (Supp.
2001). Accordingly, the amended Act erects no bar to emotional
distress claims resulting from any of these acts, as long as the
act was taken by the employer in good faith. As set forth in the
complaint, however, Sefiane's emotional distress claims stem not
from any disciplinary action, work evaluation, job transfer,
layoff, demotion, termination, or similar action by Wal-Mart, but
instead arise as a result of Whitney's allegedly harassing
^Although Martin was decided earlier this month, it did not consider the effect that the 2001 amendments to the Act may have had on the viability of personal injury claims, including emotional distress claims, against an employer. See Martin, 2002 WL 398473 *2 (considering the impact of RSA § 281-A:8, as it appeared in 1998, on plaintiff's emotional distress claims).
19 conduct.
Similarly, the recent amendments to RSA § 281-A:8 provide no
support for Sefiane's assertion that his common law claims should
survive summary judgment. As amended, RSA § 281-A:8 states that
"[n]othing in this chapter shall derogate from any rights a
former employee may have under common law or other statute to
recover damages for wrongful termination of, or constructive
discharge from, employment." Again, Sefiane's complaint
indicates that plaintiff's common law claims arose not as a
result of a wrongful termination or constructive discharge, but
as a result of the alleged harassment that occurred from July to
October 1999. Moreover, even if, as Sefiane suggests, the
emotional distress and negligent supervision claims were part and
parcel of his constructive discharge claim, Sefiane's failure to
introduce sufficient evidence to support his constructive
discharge claim would defeat those claims. I recommend,
therefore, that Wal-Mart's motion for summary judgment be granted
with respect to the state common law claims set forth in Counts
II through IV of the complaint.
Conclusion
For the foregoing reasons, I recommend that the defendant's
20 motion for summary judgment (document no. 19) be granted in part
and denied in part. Specifically, I recommend that the motion be
granted with respect to the plaintiff's constructive discharge
claim under Title VII and with respect to the plaintiff's state
law claims for intentional infliction of emotional distress,
negligent infliction of emotional distress and negligent
supervision. I further recommend that the court otherwise deny
the defendant's motion.
Any objections to this Report and Recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court's order. See Unauthorized Practice of
Law Comm, v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United
States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986) .
James R. Muirhead United States Magistrate Judge
Date: March 27, 2002
cc: E. Tupper Kinder, Esq. Paul R. Cox, Esq.