Sheppard v. River Valley Fitness, et

2003 DNH 110

• Court: District Court, D. New Hampshire
• Decided: July 16, 2003
• Docket: CV-00-111-M
• Status: Published

Opinion

Sheppard v . River Valley Fitness, et CV-00-111-M 07/16/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Mary Chris Sheppard and Robert Sheppard, Plaintiffs

v. Civil N o . 00-111-M Opinion N o . 2003 DNH 110 River Valley Fitness One, L.P. d/b/a River Valley Club; River Valley Fitness G P , L.L.C.; River Valley Fitness Associates, Inc; Joseph Asch; and Elizabeth Asch, Defendants

O R D E R

Before the court is Joseph and Elizabeth Asch’s motion for

summary judgment on Mary Chris Sheppard’s claim for intentional

interference with prospective contractual relations (document n o .

197). Plaintiff objects. For the reasons given below,

defendants’ motion for summary judgment is granted.

Summary Judgment Standard

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). “To determine whether these criteria have been met, a court must pierce the boilerplate of the pleadings and carefully

review the parties’ submissions to ascertain whether they reveal

a trialworthy issue as to any material fact.” Perez v . Volvo Car

Corp., 247 F.3d 303, 310 (1st Cir. 2001) (citing Grant’s Dairy-

Me., LLC v . Comm’r of M e . Dep’t of Agric., Food & Rural Res., 232

F.3d 8 , 14 (1st Cir. 2000)).

Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be “material” and the dispute over it must be “genuine.” In this regard, “material” means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, “genuine” means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.

Navarro v . Pfizer Corp., 261 F.3d 9 0 , 93-94 (1st Cir. 2001)

(quoting McCarthy v . Northwest Airlines, Inc., 56 F.3d 313, 315

(1st Cir. 1995)).

Of particular relevance here, “[t]he non-movant may not rely

on allegations in its pleadings, but must set forth specific

facts indicating a genuine issue for trial.” Geffon v . Micrion

Corp., 249 F.3d 2 9 , 34 (1st Cir. 2001) (citing Lucia v . Prospect

S t . High Income Portfolio, Inc., 36 F.3d 1 7 0 , 174 (1st Cir.

2 1994)). When ruling upon a party’s motion for summary judgment,

the court must “scrutinize the summary judgment record ‘in the

light most hospitable to the party opposing summary judgment,

indulging all reasonable inferences in that party’s favor.’”

Navarro, 261 F.3d at 94 (quoting Griggs-Ryan v . Smith, 904 F.2d

112, 115 (1st Cir. 1990)).

Background

The facts of record, presented in the light most favorable

to plaintiff, are as follows.

On November 2 4 , 1998, Sheppard filed a sexual harassment

complaint against River Valley Club (“RVC”) with the Equal

Employment Opportunity Commission (“EEOC”) and the New Hampshire

Commission for Human Rights. At some point during the first two

weeks of December, 1998, she resigned from her position as

Fitness Director at RVC because of the conduct alleged in her

EEOC complaint. In early January, 1999, RVC hired a new Fitness

Director.

3 On January 2 2 , 1999, plaintiff, and her husband Robert, met

with Joseph and Elizabeth Asch, and a third party, Leo McKenna.

That meeting was initiated by Linda Ingle of the EEOC:

In January of 1999, Linda Ingle of the EEOC on Mrs. Sheppard’s behalf requested that [the Asches] participate in a settlement meeting with [Ms. Sheppard] to attempt to resolve her claims against RVC. With [Ms. Sheppard’s] agreement, Leo McKenna, a third party she said she felt comfortable with, and Mrs. Sheppard’s husband Bob, participated, and the meeting was held on January 2 2 , 1999 in M r . McKenna’s office.

(J. Asch Dep. (Nov. 2 8 , 2000) ¶ 8 ; see also E . Asch Dep. (Nov.

2 8 , 2000) ¶ 6.)

Six days later, Sheppard described that meeting, in a

retaliation claim filed with both the EEOC and the Massachusetts

Commission Against Discrimination, as follows:

On January 2 2 , 1999, I met with M r . Asch, Mrs. Asch, [and] M r . Leo McKenna to discuss the outcome of my previous charge of discrimination alleging a sexually hostile working environment, my forced resignation that occurred as a result of the environment, and my interest in resolving all outstanding issues and be[ing] rehired or reinstated into a position. Since Respondent had already hired my replacement of the Fitness Director’s position, I inquired into the possibility of creating a new position, Assistant Fitness Director and outlined what the possible job duties would b e .

4 Mr. and Mrs. Asch both informed me that they would not consider rehiring or reinstating me into any position for at least several months because “it would be too uncomfortable for them and a constant reminder of the charges I made against them, and that I would then have to reapply and be re-considered at that time.” They stated “too much water had gone under the bridge and they needed a cooling off period”.

(Pl.’s O b j . to Def.’s Mot. Summ. J., Ex. 3 (emphasis added).)

Sheppard expressed her own interest in being rehired. But,

significantly, she did not point to any evidence suggesting that

RVC had expressed an interest in rehiring or reinstating her,

much less that RVC expressed an intent to do s o . In her own

deposition, Sheppard characterized the January 22 meeting in the

following way:

Q. You understood that the meeting was to try to settle your claims?

A. I actually thought it was to get my job back.

Q. Who told you that?

A. I believed that’s what I was talking to Linda about, I was under the assumption that I was going to get my job back, we were going to discuss getting my job back.

Q. Linda Ingle told you that you were going to discuss getting your job back at that meeting? A. Yes, I believe s o .

5 (Pl.’s O b j . to Def.’s Mot. Summ. J., Ex. 1 (M.C. Sheppard Dep.)

at 303 (emphasis added).) While Sheppard “assumed” she would be

rehired at the January 22 meeting, she has produced no evidence

tending to establish a factual basis for that assumption (other

than her obvious hope for a successful negotiation.) The

evidence of record discloses, at most, that the parties met, at

the urging of the EEOC facilitator, to explore the possibility of

settling the entire dispute.

At the January 22 meeting, Sheppard asked to be rehired,

acknowledged that her former position had already been filled,

and suggested one or more management-type positions that might be

created for her. Sheppard was not rehired on January 2 2 , and

Elizabeth Asch told her she would not return to work at RVC for

several months at least, because her presence would be

uncomfortable for the Asches – reminding them of the charges she

had made against Joseph Asch (without cause, from the Asches’

point of view). Elizabeth Asch did suggest that Sheppard might

reapply for employment at RVC the following summer. But, as

noted, Sheppard filed a retaliation claim with the EEOC six days

6 later, on January 2 8 . She did not apply for a position with RVC

after the meeting, and was not offered one.

In Count II of the Second Amended Complaint, which is the

operative complaint in this case, plaintiff charges RVC, River

Valley Fitness One L P , and River Valley Fitness Associates, Inc.,

with retaliation, in violation of Title VII of the Civil Rights

Act of 1964. Specifically, plaintiff asserts that “[d]efendants

retaliated . . . by failing to rehire M s . Sheppard due to the

fact that she had filed a Complaint” with the EEOC. (Sec. Am.

Compl. ¶ 52.) In Count IV, which asserts a claim for intentional

interference with prospective contractual relations, plaintiff

says that “[d]efendants Joseph and Elizabeth Asch interfered with

Plaintiff’s relationship with her employer by causing her

employer to refuse to rehire M s . Sheppard in retaliation for her

complaints of sexual harassment committed by Joseph Asch,” and

that defendants’ actions were “adverse to the employers in that

they were to retaliate for accusations that Joseph Asch had

sexually harassed women and/or because they subjected the

employer to liability for retaliation under Title VII.” (Sec.

Am. Compl. ¶¶ 6 3 , 64.) Count IV does not assert a claim for

7 tortious interference with an ongoing contractual relationship or

wrongful constructive discharge based upon Sheppard’s resignation

from RVC.1 Thus, Count IV rests solely upon the alleged role of

Joseph and Elizabeth Asch in RVC’s failure to rehire Sheppard on

January 22. 2

Discussion

The Asches move for summary judgment on Sheppard’s

intentional interference with prospective contractual relations

claim (Count IV) on grounds that: (1) Sheppard lacked a

prospective contractual relationship with RVC; (2) even if she

had such a relationship, the Asches were unaware of i t ; (3) the

Asches did nothing to induce or cause a hiring decision by RVC;

(4) plaintiff has failed to show malice on the part of the

Asches; and (5) plaintiff has suffered no damages, since RVC

1 Intentional interference (based upon RESTATEMENT (SECOND) OF TORTS§ 766B) commonly arises from an employer’s termination of employment. See, e.g., McHugh v . Bd. of Educ.; 100 F . Supp. 2d 231 (D. Del. 2000); MacDougall v . Weichert, 677 A.2d 162 (N.J. 1996). Here, however, plaintiff’s request to add such a claim was denied by order dated January 2 4 , 2002 (document n o . 1 6 2 ) . 2 The court’s search, albeit limited, has identified no intentional interference cases based upon a failure to hire, which is the sole factual basis for plaintiff’s claim.

8 never had an open position which she could fill. Plaintiff

counters by identifying various factual disputes that, she

believes, require a trial.

Under New Hampshire’s common law, intentional interference

with prospective contractual relations occurs when “[o]ne who,

without a privilege to do s o , induces or otherwise purposely

causes a third person not to . . . enter into or continue a

business relation with another [and thus becomes] liable to the

other for the harm caused thereby.” Baker v . Dennis Brown

Realty, Inc., 121 N.H. 6 4 0 , 644 (1981) (quoting Bricker v . Crane,

118 N.H. 249, 252 (1978)).

The . . . prospective contract need not be reduced or expected to be reduced to a formal, written instrument. Instead, all that is required is a promise, or the reasonable expectation of a promise, creating a duty recognized by law. Restatement (Second) of Torts § 766 cmt. f (1979); id. § 766B cmt. c; see Fineman v . Armstrong World Indus., 774 F. Supp. 225, 233-34 (D.N.J. 1991) (interpreting Restatement § 766B), rev’d on other grounds [1992-2 TRADE CASES ¶ 70,010], 980 F.2d 171 (3d Cir. 1992), cert. denied, 507 U.S. 921 (1993).

Heritage Home Health, Inc. v . Capital Region Health Care Corp.,

Civ. N o . 95-558-JD, 1996 WL 655793, at *3 (D.N.H. Oct. 1 , 1996).

9 As noted in the September 2 8 , 2001, order on defendants’ motion

for summary judgment (document n o . 1 2 8 ) , to prevail on a claim of

intentional interference with prospective contractual relations,

a plaintiff must prove that she had an “already existing

relationship[] that gives rise to a reasonable expectation of

economic advantage.” (Order at 17 (citations and internal

quotation marks omitted).)

For an expectation of economic advantage to be reasonable,

it must be based on “a sufficiently concrete prospective

contractual relation.” Fineman v . Armstrong World Indus., Inc.,

980 F.2d 1 7 1 , 195 (3rd Cir. 1992) (decided under New Jersey law,

which adopts § 766 of the RESTATEMENT (SECOND) OF T O R T S ) . For

example, in Baker, the requirement of a sufficiently concrete

prospective contractual relationship was satisfied by the

existence of a draft purchase and sale agreement, negotiated by

agents for the buyer and the seller, and signed by the buyer.

121 N . H . at 643.

Before turning to the reasonableness of Sheppard’s claimed

expectation of economic advantage (presumably in the form of her

10 anticipated rehiring by R V C ) , it is first necessary to identify

the relevant time period, especially in light of the apparent

factual dispute over what jobs were available at RVC during the

spring of 1999. Count IV asserts that defendants intentionally

interfered with Sheppard’s prospective contractual relationship

with RVC by failing to rehire her, in retaliation for her having

complained about Joseph Asch’s alleged harassing behavior.

Indeed, in her January 2 8 , 1999, EEOC complaint, Sheppard

asserted that she suffered retaliation when she was not rehired

on January 2 2 .

Sheppard’s conduct and testimony establish her own belief

that the Asches’ retaliation, and, therefore, their intentional

interference, took place at the January 22 meeting.

Consequently, the availability of positions at RVC during the

spring of 1999 is not significant, and does not, as plaintiff

asserts, constitute a material fact. See Navarro, 261 F.3d at

93-94. Rather, the relevant question is whether Sheppard had a

reasonable expectation of economic advantage leading up to or at

the January 22 meeting.

11 Defendants contend that Sheppard had no reasonable

expectation of economic advantage before the January 22 meeting

because there were no relevant positions available to be filled

at RVC3 and because Sheppard and RVC had not taken steps toward

forming a contract sufficient to give rise to a reasonable

expectation of reinstatement. Plaintiff does not directly

discuss the reasonableness of her asserted expectation of

rehiring, declaring that “[t]he issue of M s . Sheppard’s

‘reasonable expectation of economic advantage’ has already been

decided in M s . Sheppard’s favor.” (Pl.’s O b j . to Def.’s Mot.

Summ. J. § 9.) Rather, plaintiff takes an alternative approach,

offering evidence on a different point – that in January, 1999,

RVC had open positions in sales and at the front desk, and that

she would have accepted either of those positions, had they been

offered to her.

3 Defendants contend that Sheppard fully understood that her former position had already been filled and that the positions she wanted to fill (assistant fitness director and/or liaison to Mr. Cioffredi’s business) did not then exist at RVC. Thus, according to defendants, Sheppard came to the meeting with little more than the hope of negotiating the creation of an entirely new position as part of a settlement of her pending discrimination claims.

12 The issue of Sheppard’s reasonable expectation of economic

advantage was not previously decided in her favor. The September

2 8 , 2001, order stated only that it was “at least arguable” on

the record then before the court that Sheppard reasonably

expected to be rehired by RVC. Based upon the undisputed factual

record now before the court, that proposition is no longer

arguable.

The evidence produced by plaintiff clearly establishes that

she wanted the Asches to offer her position at RVC on January 2 2 ,

and she hoped a position would be offered as part of a settlement

agreement. But Sheppard has not shown that a genuine dispute as

to a material fact exists, because she has produced no evidence

from which a reasonable jury could conclude that her hope for a

settlement that included reinstatement, constituted a “reasonable

expectation” that she would be offered a position. See Navarro,

261 F.2d at 9 4 .

The uncontested record evidence discloses that the January

22 meeting was initiated by Linda Ingle of the EEOC, was agreed

to by the Asches, and was facilitated by M r . McKenna in an effort

13 to amicably resolve plaintiff’s pending E E O C complaint, all of

which tends to undermine the reasonableness of Sheppard’s claimed

reliable expectation that she would be rehired. In her January

2 8 , 1999, E E O C complaint, Sheppard said that she expressed her

interest in being rehired at the January 22 meeting, but she did

not say that R V C had ever expressed any interest in rehiring her,

o r , but for intermeddling, would have rehired her – she claimed

only that the Asches had agreed to participate in the meeting to

discuss settlement of her first (and then pending) E E O C

complaint.

Plaintiff has provided deposition testimony to the effect

that Linda Ingle told her that rehiring would be discussed at the

January 22 meeting, but there are two difficulties with that

evidence. First, it is hearsay. See F E D . R . C I V . P . 56(e).

Second, Ingle said only that rehiring would be “discussed,” not

that Sheppard would be rehired, or was even likely to be rehired,

or could reasonably expect to be rehired at the January 22

meeting. Moreover, there is no evidence that Ingle ever conveyed

to Sheppard that R V C (or Elizabeth Asch) was interested in

rehiring her, or expressed an intent to rehire her.

14 A reasonable jury could not conclude that the January 22

meeting was anything other than a conciliation meeting, or

settlement conference, at which Sheppard and the Asches

attempted, unsuccessfully, to resolve Sheppard’s sexual

harassment claim. The meeting was not preceded by any promise by

RVC that Sheppard would be rehired; it was preceded, at most, by

the Asches’ promise to discuss resolution of Sheppard’s first

EEOC complaint. Sheppard went into that meeting with the usual

hope of a favorable outcome, but no guarantee that any resolution

would be achieved, much less a resolution that involved her being

rehired. Plaintiff has produced no evidence of any statement or

action attributable to RVC (or either Elizabeth or Joseph Asch

acting on its behalf) that would have given her reason to believe

that the January 22 meeting would result, or was likely to

result, in her reinstatement to her former position, or her being

hired to fill either an existing position or one created

expressly for her. Without evidence of such an agreement upon

which she could reasonably rely – in essence the employment

equivalent of a negotiated purchase and sale agreement signed by

a prospective buyer – plaintiff cannot meet her burden of

production on the “reasonable expectation” element of her tort

15 claim for intentional interference with prospective contractual

relations. In other words, plaintiff has produced no facts,

provable at trial, from which a jury could conclude that before

or at the January 22 meeting, M s . Sheppard had a reasonable

expectation that RVC would rehire her, such that the Asches might

be held liable for interfering with that expectation.

Accordingly, defendants are entitled to summary judgment on the

state tort claim described in Count IV.

Conclusion

For the reasons given, defendants’ motion for summary

judgment (document n o . 197) is granted. Moreover, because

defendants are entitled to summary judgment on Count IV, they

are, necessarily, entitled to judgment on Count V I , Robert

Sheppard’s claim for loss of consortium. Because the only claims

remaining in this case are Sheppard’s Title VII claims against a

defendant subject to a bankruptcy stay, the Clerk of Court shall

administratively close the case, subject to being reopened by

motion in the event the bankruptcy proceedings no longer pose an

impediment.

16 SO ORDERED.

Steven J. McAuliffe United States District Judge

July 1 6 , 2003

cc: Lauren S . Irwin, Esq. William E . Whittington, IV, Esq. Joseph F. Daschbach, Esq.