Sheppard v . River Valley Fitness CV-00-111-M 09/28/01 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 . 2001 DNH 177 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
Mary Chris Sheppard brings this sexual harassment suit
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. (“Title VII”), and asserts various New Hampshire
common law claims as well. Her husband, Robert, brings a claim
for loss of consortium. Defendant River Valley Fitness One,
L.P., doing business as River Valley Club (“RVC”), is a limited
liability company consisting of approximately fifty-five limited partners and one general partner. RVC employed plaintiff1 between
March and December of 1998. Defendants River Valley Fitness
Associates, Inc. (“RVFA”), and River Valley Fitness G P , L.L.C.
(the “LLC”), have served consecutively as the general partner of
RVC. The LLC is the current general partner. Individual
defendants Elizabeth and Joe Asch play, or have played, a role in
the management and/or control of RVC and its general partner.2
Plaintiff alleges that over the course of five to six
months, she was subjected to a hostile work environment by Joe
Asch, and that her employer failed to take adequate measures to
stop the harassment. Five counts of the second amended complaint
remain:3 (1) hostile work environment sexual discrimination
(Count I ) ; (2) retaliation (Count I I ) ; (3) intentional
1 The issues addressed in this order concern, primarily, the relationship between Mary Chris Sheppard and her former employer. Accordingly, the court will use the singular “plaintiff” to refer to her, and will refer to her husband as “Robert” when necessary. 2 The parties dispute Joe Asch’s role in the control of RVC and its general partner. That dispute cannot be resolved on this record. 3 Plaintiff’s assault claim (Count III) was voluntarily dismissed on September 1 1 , 2000.
2 interference with advantageous relationship (Count I V ) ; (4)
enhanced compensatory damages (Count V ) ; and (5) loss of
consortium (Count V I ) . Counts I and II are asserted against RVC,
RVFA, and the LLC. Counts IV, V , and VI are brought against
Elizabeth and Joe Asch individually. Before the court is
defendants’ motion for summary judgment (document n o . 5 1 ) .
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
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. See DeNovellis v . Shalala, 124
F.3d 298, 306 (1st Cir. 1997).
At this stage, the nonmoving party “may not rest upon mere
allegation 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
4 Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir. 1996)
(citations omitted).
Discussion
A. Hostile Work Environment
“For sexual harassment [based on a hostile work environment]
to be actionable, it must be sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.” Meritor Savings Bank v . Vinson,
477 U.S. 5 7 , 67 (1986) (internal quotation marks and alterations
omitted). In assessing severity or pervasiveness, the court must
consider the totality of the circumstances, “‘including the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.’” White v . New Hampshire Department
of Corrections, 221 F.3d 254, 260 (1st Cir. 2000) (citing
Faragher v . City of Boca Raton, 524 U.S. 775, 778 (1998)). The
totality of a particular victim’s circumstances can include
5 harassing behavior toward women other than the plaintiff. See
Bartholomew v . Delahaye Group, Inc., Civ. N o . 95-20-B, 1995 WL
907897 (D.N.H. Nov. 8, 1995), at * 4 (“‘Environment’ implies that
in determining whether defendants discriminated against
plaintiff, [the court] must consider her entire employment
situation, including derogatory conduct towards women but not
aimed specifically at plaintiff.”); see also Hurley v . Atlantic
City Police Dept., 174 F.3d 9 5 , 110 (3d Cir. 1999); Hicks v .
Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987).
Plaintiff bases her hostile work environment claim on the
following specific conduct by Joe Asch over the course of a five
to six month period: (1) two unwelcome kisses on the cheek, (2) a
comment about his noticing “everything about [her], right down to
the pale shade of lipstick [she] wear[s],” (3) “many sexual
jokes” (although plaintiff only recalls the specific context and
occurrence of t w o ) , (4) constant sexual comments, and (5) staring
or leering at women, including plaintiff, while rubbing and/or
touching his penis. Plaintiff says she was aware of Asch’s
6 conduct toward her, as well as his similar conduct toward other
women working at RVC.
As an initial matter, defendants contend that plaintiff’s
complaints of offensive jokes and comments specifically directed
at her are the only alleged incidents of harassment properly
before the court. That contention is incorrect.
First, since the court must consider plaintiff’s entire
working environment, evidence of Asch’s conduct toward other
women in the working environment is admissible to prove her
claim. See Hurley, 174 F.3d at 110; Bartholomew, 1995 WL 907897,
at *4-5. Plaintiff need not have personally witnessed the
harassment of other women. See Hurley, 174 F.3d at 110.
Plaintiff has filed an affidavit from Julie Kaye, another former
RVC employee, that recounts allegedly harassing conduct by Asch
toward the Kaye, as well as harassing conduct toward other women
observed by Kaye. See Appendix to Plaintiffs’ Opposition, Ex. 5,
Affidavit of Julie Kaye.
7 Second, although plaintiff must exhaust available
administrative remedies, see Clockdile v . New Hampshire
Department of Corrections, 245 F.3d 1 , 3 (1st Cir. 2001), The
court may consider all allegations “reasonably related to and
[that] grow[] out of the discrimination complained of to the
agency.” Clockdile, 245 F.3d at 6; see Powers v . Grinnell Corp.,
915 F.2d 3 4 , 39 (1st Cir. 1990); Preyer v . Dartmouth College, 968
F. Supp. 2 0 , 24 (D.N.H. 1997). Plaintiff is not required to set
forth in her administrative claim every alleged incident or fact
that may establish her claim. See, e.g., Powers, 915 F.2d at 38
(“An administrative charge is not a blueprint for the litigation
to follow.”). Here, plaintiff’s administrative claim before the
New Hampshire Commission for Human Rights clearly included
complaints of being “forced to work in a sexually hostile working
environment created by . . . Joseph Asch.” See Appendix to
Defendants’ Motion for Summary Judgment, Ex. 1 . Plaintiff’s
complaints of “staring and leering” by Asch and his alleged
conduct toward other women are reasonably related to her hostile
8 work environment claim, and, accordingly, are properly before the
court.
Next, defendants argue that even if all of plaintiff’s
allegations are considered, the conduct of which she complains
was not sufficiently severe or pervasive to be actionable, nor
was it based on gender. Moreover, they claim RVC’s response to
plaintiff’s complaints was sufficiently reasonable to relieve RVC
and its general partner of any direct liability.
1. Severe or Pervasive
Defendants first contend that “[t]here is nothing at all
about the lipstick comment and kisses on the cheek which was
‘sexual,’ ‘hostile,’ or ‘oppressive.’” Defendants’ Memorandum in
Support of Summary Judgment (“Def. Mem.”) at 15 n.14. Plaintiff,
however, states in her deposition that she did not perceive the
kisses as innocent kisses of greeting, see Appendix to
Defendants’ Motion for Summary Judgment, Ex. 3 , Deposition of
M.C. Sheppard (“Sheppard Depo.”) at 42-43, 125-26, and that it
9 was the manner in which Asch made the lipstick comment, not
simply the words used, that amounted to harassment, see Sheppard
Depo. at 80-81. The court cannot resolve that factual dispute on
this record. Of course, “sex-based harassment that is not
overtly sexual is nonetheless actionable under Title VII . . . .”
O’Rourke v . City of Providence, 235 F.3d 713, 729 (1st Cir.
2001).
Defendants also argue that Asch was not at RVC frequently
enough for his behavior to create an actionable hostile work
environment. They specifically rely on the fact that he was in
France for all but four of the last sixty-five days of
plaintiff’s employment. However, plaintiff points out that Asch
testified in his deposition that he was at RVC approximately
every other day in May, June, July, August, and September. See
Appendix to Plaintiffs’ Objection to Summary Judgment (document
n o . 5 3 ) , Ex. 2 at 4 9 , 66 (“J. Asch Depo.”). Accordingly, there
is also a factual dispute about the frequency of Asch’s presence
10 at RVC (and consequently the “pervasiveness” of his allegedly
harassing behavior).
Finally, defendants say they are entitled to summary
judgment because the behavior about which plaintiff complains is
“far less significant than [that] found insufficiently ‘severe
and [sic] pervasive’ as a matter of law in other cases.” Def.
Mem. at 1 6 . After reviewing several precedents, defendants
conclude that “[b]y comparison . . . , Asch’s two jokes, lipstick
comment, one or two kisses of greeting on the cheek, and supposed
‘leering’ were not ‘pervasive and [sic] severe.’”4 Def. Mem. at
17-18. But, Defendants’ summary of plaintiff’s allegations fails
to account for her additional complaints about Asch’s alleged
behavior toward other women and his allegedly constant sexual
comments. See e.g. Torres v . Pisano, 116 F.3d 625, 631 (2d Cir.
1997) (finding that for purposes of summary judgment, claims of
constant sexual comments sufficient to raise issue of genuine
4 In their reply to plaintiff’s objection (document n o . 5 6 ) , defendants acknowledged that the correct test is “severe or pervasive,” not “severe and pervasive,” as used in their original motion.
11 fact); McGuinn-Rowe v . Foster’s Daily Democrat, N o . CV-94-623-SD,
1997 WL 669965 (D.N.H. Jul. 1 0 , 1997), at *4 (“In addition,
although plaintiff did not remember in her deposition every
instance of harassment by [defendant] and other of defendant’s
employees, her general statement that the offensive language was
used ‘All of the time’, [sic] . . . suffices to raise a genuine
issue of material fact.” (original record citation omitted)).
Because there are identified factual disputes about the frequency
and sexual nature of Asch’s alleged conduct, and because the
alleged conduct not addressed by defendants could be significant,
summary judgment is not appropriate.
2. Related to Gender
Defendants also argue that they should prevail because the
jokes were not based on gender, and because they were told to
groups that included both men and women. That argument, however,
fails to account for Asch’s other alleged conduct, including
“leering” at women and/or their breasts while touching himself in
12 a sexually provocative manner, and alleged sexual comments
directed at other women. Whether Asch’s conduct was gender-based
remains a disputed issue of material fact.
3. RVC’s Response
Defendants claim that even if Asch’s conduct is considered
severe or pervasive, they are still entitled to summary judgment
because RVC had an adequate sexual harassment policy in place,
and because when Elizabeth and Joe Asch were informed of the
complaints, they “hired an independent investigator, conducted a
full investigation, scheduled training for employees, and had
[Joe] Asch apologize and immediately stop telling jokes.” Def.
Mem. at 2 0 ; see Faragher v . City of Boca Raton, 524 U.S. 775, 808
(1998) (establishing potential affirmative defense for
employers). Despite defendants’ claims of prompt and reasonable
response, however, there remain significant factual disputes
precluding summary judgment at this time.
13 First, plaintiff contends that she was never provided a copy
of RVC’s sexual harassment policy, and in any event, she complied
with the policy as written. If RVC did in fact fail to provide
plaintiff with a copy of the sexual harassment policy,
plaintiff’s employer(s) cannot rely on it to establish an
affirmative defense. See Faragher, 524 U.S. at 808 (finding
affirmative defense unavailable when employer “had entirely
failed to disseminate its policy against sexual harassment . . .
and that its officials made no attempt to keep track of the
conduct of supervisors”).
Second, plaintiff claims she began complaining to Rob Aubin
in July, yet no action was taken until November, when the Asches
were finally informed. Because Aubin, RVC’s general manager at
the time, was responsible for handling complaints, Aubin’s
failure to act is attributable to plaintiff’s employer(s). See
O’Rourke, 235 F.3d at 736 (finding no error in jury instruction
that employer is liable if supervisor knew, or should have known,
of harassment and failed to take prompt action); White, 221 F. 3d
14 at 261-62 (upholding denial of judgment as a matter of law where
employee presented evidence employer had notice of harassment
because employee complained to supervisors).
Finally, plaintiff points to evidence in the record casting
doubt on the adequacy of the “independent investigation” on which
defendants so heavily rely. The investigator acknowledges that
she was instructed to just gather facts, and not to draw any
conclusions. See Appendix to Plaintiffs’ Opposition, Ex. 4 ,
Deposition of Andrea Johnstone at 1 2 . Furthermore, Elizabeth
Asch claims that it was not RVC’s responsibility to decide if
sexual harassment had occurred. See id., Ex. 1 , Deposition of
Elizabeth Asch at 134. Accordingly, it is not clear that the
“independent investigation” was, in reality, part of a genuine
effort on the part of plaintiff’s employer(s) to implement
preventive or remedial action. See Faragher, 524 U.S. at 807
(holding employer’s response must demonstrate reasonable care to
prevent or correct harassment).
15 Several genuine issues of material fact precluding summary
judgment on Count I .
B. Retaliation
“To establish a prima facie case of retaliation, a plaintiff
must prove that (1) she engaged in protected conduct under Title
VII; (2) she suffered an adverse employment action; and (3) the
adverse employment action is causally connected to the protected
activity.” White, 221 F.3d at 262 (internal citation, quotation
marks, and alterations omitted). Here, plaintiff bases her
retaliation claim on her employer’s alleged refusal to rehire
her, as well as on the counterclaims filed against her by RVC.
Defendants do not dispute that plaintiff meets the first prong of
the prima facie case, but argue that the alleged adverse effect
on plaintiff cannot meet the second prong.
16 1. Refusal to Rehire
During the course of a meeting in January of 1999, Elizabeth
Asch allegedly told plaintiff that she would not be rehired at
the club for any position “because it would be a constant
reminder of the charge made against Joe.”5 Sheppard Depo. at
305. Defendants do not dispute that the statement was made, but
say they are entitled to summary judgment because plaintiff did
not fill out an application form, never requested reinstatement,
and orally demanded a job that did not exist. Def. Mem. at 2 1 .
Plaintiff, on the other hand, states that she was led to believe
and in fact believed the purpose of the meeting was to discuss
her return to RVC, that she did not seek specifically ask to be
reinstated in her former position because she knew it had been
filled, but that she solicited several possible positions,
5 Defendants’ argument that the Asches’ statements during the January 1999 meeting are inadmissable under Federal Rule of Evidence (“FRE”) 408 is without merit. Even assuming the meeting was a settlement conference (a fact plaintiff disputes), FRE 408 prohibits the admission of statements for the purpose of proving “liability for . . . the claim” in dispute. When the alleged statements were made, there was obviously no pending dispute about retaliation.
17 including, but not exclusively, a new position to be created
based upon an idea she had. Consequently, a factual dispute
exists regarding the purpose and content of the meeting, and the
actual reason(s) plaintiff was not rehired.
2. Counterclaims
While plaintiff makes a compelling case for the legal
viability of her retaliation claim against RVC, based upon its
having filed counterclaims against her in this suit that,
allegedly, were filed for the purpose of harassing or
intimidating her because she complained under Title V I I ,
nevertheless, no action can be taken on the motion for summary
judgment as it relates to this count. RVC filed for bankruptcy
protection. Therefore, the automatic stay provisions operate to
stay this suit as it pertains to RVC. Given the automatic stay,
the motion for summary judgment will be regarded as moot, but
subject to reassertion if and when the stay is lifted.
18 C. Tortious Interference with Advantageous Relations
Defendants offer several grounds supporting their claim to
summary judgment on plaintiff’s tortious interference with
advantageous relations claim: (1) New Hampshire does not
recognize such an action; (2) plaintiff had no relationship with
RVC; (3) the Asches are not “third parties” because they were
acting as agents for RVC; and (4) Title VII preempts plaintiff’s
claim. Their arguments are not persuasive on this record.
First, although plaintiff captioned Count IV as “Intentional
Interference with Advantageous Relationship” (the phrase used in
the First Restatement of Torts), it is clear from the parties’
arguments that plaintiff’s claim is one for intentional
interference with a prospective contractual relationship. See
Restatement of Torts (Second) § 766B (1979); see also Restatement
of Torts § 766 (1939). New Hampshire has recognized such a tort
since at least 1953. See, e.g., Baker v . Dennis Brown Realty,
121 N.H. 6 4 0 , 644 (1981) (citing Russell v . Crotear, 98 N.H. 68
(1953), and noting that intentional interference with prospective
19 contractual relationship is “an action that has been recognized
in this State for some time”); see also id. (citing Restatement
of Torts § 766 (1939)).
Defendants’ second argument is contradicted by the plain
language of the Restatement of Torts (Second), which provides:
One who intentionally and improperly interferes with another’s prospective contractual relation . . . is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of (a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation.
Restatement of Torts (Second) § 766B (emphasis added); see Baker,
121 N.H. at 644 (citing same). To satisfy the relationship
element, plaintiff need only prove that she had an “already
existing relationship[] [with RVC] that gives rise to a
‘reasonable expectation of economic advantage.’” Heritage Home
Health, Inc. v . Capital Region Health Care Corp., Civ. N o . 95-
558-JD, 1996 WL 655793 (D.N.H. Oct. 1 , 1996), at *4 (citing
20 Fineman v . Armstrong World Indus., 774 F. Supp. 225, 234 (D.N.J.
1991); cf. Baker, 121 N.H. at 644 (finding offer to purchase real
estate sufficient to satisfy prospective relation element).
Here, plaintiff previously worked for RVC, and when she left less
than two months prior to the meeting, she was encouraged to stay.
Her stated reason for leaving RVC was the stress associated with
Joe Asch’s alleged conduct and RVC’s alleged failure to act.
Furthermore, it was plaintiff’s understanding that the purpose of
the meeting was to discuss her return to RVC. It i s , therefore,
at least arguable that plaintiff reasonably expected to be
rehired by RVC, creating a “reasonable expectation of economic
advantage.” See Heritage Home Health, Inc., 1996 WL 655793, at
*4. Since defendants’ only discussion of plaintiff’s alleged
potential relationship rests on the same arguments made in
relation to the retaliation claim (i.e., plaintiff only demanded
a non-existent j o b ) , see, supra, § A 1 , it is not possible to
resolve, on this record, whether RVC would have otherwise rehired
plaintiff.
21 Defendants’ contention that the Asches are not “third
parties” because they “could only have been acting in their
capacity as agents of RVC” is a more complicated issue, but one
that also must be resolved in plaintiff’s favor on this record.
Defendants are partially correct – it is black letter law that an
agent is not a third party with respect to his employer. See,
e.g., Preyer v . Dartmouth College, 968 F. Supp. 2 0 , 26 (D.N.H.
1997); Birkmaier v . Rockingham Venture, Inc., Civ. N o . 94-429-SD,
1995 WL 653119 (D.N.H. Sept. 7 , 1995), at * 7 . However,
defendants’ argument is weakened by the exception to the general
rule (expressed in the sentence immediately following that cited
by defendants) - i.e. agents can be treated as third parties if
their actions are “‘motivated by actual malice,’ where ‘actual
malice’ is defined as ‘bad faith, personal ill-will, spite,
hostility, or a deliberate intent to harm the plaintiff.’”
Birkmaier, 1995 WL 653119, at *7 (internal citation and emphasis
omitted). Plaintiff claims that the Asches refused to rehire her
based upon hostility toward her. Defendants have not addressed
22 the issue of malice. Accordingly, defendants’ contention that
the Asches categorically cannot be liable because they were
acting as RVC’s agents is inadequately supported and thus does
not entitle them to summary judgment on Count IV.
Difficulty arises in attempting to determine the
relationship between the Asches and RVC, and the business
structure of the entities involved. For example, while officers,
shareholders, and employees of a corporation can be liable as
third parties under particular circumstances, see, e.g., Harry G.
Henn and John R. Alexander, Law of Corporations, § 2 3 0 , at 608 &
n.5 (3d ed. 1983), the exception does not necessarily apply when
the “agent” is also the sole shareholder, director, and officer.
See Rao v . Rao, 718 F.2d 219, 225 (7th Cir. 1983). Admittedly
scarce New Hampshire precedent, however, suggests that the New
Hampshire Supreme Court would still apply the exception even if
the “agent” is the sole controller of the corporation. See
Hanger One, Inc. v . Davis Associates, Inc., 121 N.H. 586, 589
(1981) (apparent sole officer of corporation found liable for
23 causing corporation to breach contract). It is also relevant to
note that, unlike a corporation, which is a separate entity, a
general partner cannot be separated from the partnership. Cf.
Dube v . Robinson, 92 N.H. 312, 313 (1943) (distinguishing between
corporation and partnership for purposes of counting employees
for worker’s compensation coverage). In any event, these issues
are not raised by the parties, nor are the relevant facts clear
on the record, thus precluding summary resolution.
Finally, the court is not persuaded by defendants’ argument
that Title VII preempts plaintiff’s common law claim for tortious
interference. Defendants first argue that New Hampshire law
precludes the common law remedy. They also argue that Congress
intended to preempt all common law remedies.
Under New Hampshire law, “a plaintiff may not pursue a
common law remedy where the legislature intended to replace it
with a statutory cause of action.” Wenners v . Great State
Beverages, Inc., 140 N.H. 100, 103 (1995). This limitation is
equally applicable when the “legislature” is the United States
24 Congress. See Smith v . F.W. Morse & Co., Inc., 76 F.3d 413, 429
(1st Cir. 1996) (finding common law wrongful discharge claim
based on discrimination precluded by Title V I I ) . For example, it
is well-established that Title VII precludes wrongful discharge
claims in this state. See id. However, unlike wrongful
discharge claims which, like Title VII, can only be brought
against the employer, see, e.g., Bourque v . Town of Bow, 736 F.
Supp. 398, 401 (D.N.H. 1990), plaintiff’s tortious interference
claim is brought against individuals. There is no statute
providing plaintiff with a remedy against the Asches, as
individuals, for intentional interference with her attempts to
resume working for RVC. See Powell v . Catholic Medical Center,
749 D.2d 3 0 1 , 304 (N.H. 2000) (finding statute at issue “merely
preempts the common law claims addressed by the language”).
Accordingly, plaintiff’s claim is not precluded under New
Hampshire law.
With respect to Congressional preemption, defendants’ bold
statement (without citation) that “Congress has preempted any
25 state common law actions based on activities protected by Title
VII” is confusing and unsupported. Surely defendants do not
suggest that a refusal by the Asches, as individuals, to rehire
plaintiff because she filed a complaint is action “protected by
Title VII.” Assuming defendants are referring to all common law
causes of action based upon circumstances actionable under Title
VII, they are probably correct. But Title VII explicitly
preserves state actions (without distinguishing between statutory
and common law) that are not in conflict with i t . See 42 U.S.C.
§ 2000e-7.6 Plaintiff cannot sue the Asches, individually, under
Title VII, so there would appear to be no bar to bringing common
law claims against them.
6 Section 2000e-7 states in its entirety:
Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a Sate, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.
26 D. Enhanced Damages and Loss of Consortium
Defendants’ only argument for summary judgment on Counts V
and VI is that the relief requested is contingent upon
plaintiff’s success on a common law claim. Because summary
judgment on Count IV is not appropriate on this record, Counts V
and VI survive as well.
Conclusion
On this record, genuine disputes of material fact remain,
precluding summary judgment. As the parties are fully aware, RVC
filed for bankruptcy protection. This order does not, therefore
resolve any issue relative to RVC; the case against RVC is stayed
pursuant to the bankruptcy code’s automatic stay provisions. In
all other respects, defendants’ motion for summary judgment
(document n o . 51) is denied.
27 SO ORDERED.
Steven J. McAuliffe United States District Judge
September 2 8 , 2001
cc: Lauren S . Irwin, Esq. William E . Whittington, IV, Esq. Joseph F. Daschbach, Esq.