Tuxford v. Vitts Networks, et al.

2002 DNH 056

• Court: District Court, D. New Hampshire
• Decided: March 6, 2002
• Docket: CV-01-170-M
• Status: Published

Opinion

Tuxford v. Vitts Networks, et a l . CV-01-170-M 03/06/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jennifer Tuxford, Plaintiff

v. Civil No. 01-17 0-M Opinion No. 2002 DNH 056 Vitts Networks, Inc., David Graham, and Greg Demund, Defendants

O R D E R

Jennifer Tuxford brings this action against her former

employer, Vitts Networks, Inc., claiming that she was subjected

to unlawful gender-based discrimination, in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

She also advances two state law claims in which she alleges that

Vitts and two of its employees, David Graham and Greg Demund,

violated New Hampshire's Law Against Discrimination, N.H. Rev.

Stat. Ann. ("RSA") 354-A, and wrongfully invaded her common law

privacy rights.

Before Tuxford filed this suit, Vitts filed for bankruptcy

protection. Accordingly, the court previously granted Tuxford's

motion to stay proceedings as to Vitts, but observed that because her complaint "was filed in apparent violation of 11 U.S.C.

§ 162(a)(1), the suit against Defendant Vitts is probably void,

or voidable." Tuxford v. Vitts Networks, Inc., No. 01-170-M,

slip op. at 1 (D.N.H. May 18, 2001). And, as to Defendant

Graham, Tuxford has yet to effect service of process.

Consequently, the only defendant properly before the court is

Demund, who has moved for judgment on the pleadings.

Unfortunately, Demund's motion is not a model of clarity.

Among other things, it seeks dismissal of "Counts II, III, V,

VII, and VIII of the Complaint." Defendant's motion (document

no. 7) at 3. See also defendant's reply memorandum (document no.

12) at 3 ("Grant Mr. Demund's Motion for Judgment on the

Pleadings and dismiss Counts II, III, V, VII, and VIII of the

plaintiff's Complaint."). As noted above, however, plaintiff's

complaint sets forth only three counts, thereby suggesting that

defense counsel may be confusing this case with another. Perhaps

more importantly, defendant's motion fails to adequately address

the legal issues that are central to his argument that count 2 of

plaintiff's complaint fails to state a viable claim under RSA

354-A.

2 Defendant's motion for judgment on the pleadings (document

no. 7) is denied, but without prejudice. While it is conceivable

that defendant is entitled to dismissal of the claim asserted

against him in count 2, the reasons advanced in his motion and

supporting memoranda fail to demonstrate that such relief is

warranted.

Should defendant elect to refile his motion or, perhaps more

appropriately, submit a well-developed motion for summary

judgment, counsel should brief the question of whether (and, if

so, under what circumstances) RSA 354-A imposes individual

liability on co-workers or supervisors for workplace gender-based

discrimination. While the New Hampshire Supreme Court has yet to

address that issue, numerous courts from jurisdictions with

similar laws have discussed the point in some detail. See, e.g.,

Chapin v. Univ. of Mass. at Lowell, 977 F. Supp. 72, 78-80 (D.Ma.

1997) (collecting cases). See also Daigle v. NECX, Inc., 2001 WL

1199868 (Mass. Super. Feb. 23, 2001) (holding that supervisory

personnel may be individually liable under the Massachusetts law

against discrimination for having aided, abetted, incited,

compelled, or coerced the doing of any acts forbidden under that

3 statute); Schutz v. Go Ahead Vacations, Inc., 1999 WL 959681

(Mass. Super. Sept. 1, 1999) ("Other Justices of this court have

held persons who engaged in alleged discriminatory acts or who

were otherwise responsible for the allegedly unlawful adverse

employment decision individually liable under § 4(5) [of General

Laws c. 151B, the Massachusetts law against discrimination].");

Hennessy v. Perico, Inc., 1999 WL 515078 (Mass. Super. May 20,

1999) ("General Laws c. 151B, § 4(5) states that it is unlawful

for 'any person, whether an employer or an employee, ... to

aid, abet, incite, compel or coerce the doing of any acts

forbidden under this chapter or to attempt to do so.' While the

Supreme Judicial Court has not yet addressed the issue, two

recent Superior Court decisions conclude that individual

employees and a corporate 'employer' may indeed be liable as

aiders and abettors.") (citations omitted).

The court anticipates that, if defendant revisits the issue

of individual liability under RSA 354-A, plaintiff's counsel will

also address it in a meaningful way. Simply pointing out the

obvious - that portions of New Hampshire's Law Against

Discrimination contemplate individual liability for certain

4 violations of the Act (e.g., landlords who discriminate against

actual or potential tenants) - does not provide any support for

plaintiff's assertion that co-workers or supervisors can be

liable for "aiding and abetting" workplace discrimination.

Conclusion

This litigation is off to a bad start. Plaintiff filed suit

against a bankrupt entity notwithstanding the Bankruptcy Code's

automatic stay provision and failed to identify Demund as a

defendant in count 3 of her complaint, though she argues it was

her intent to include him. For his part, defendant has moved to

dismiss non-existent counts in plaintiff's complaint. And,

unfortunately, neither party has adequately briefed the law

applicable to that motion to dismiss. No doubt future filings

will be pertinent, responsive, and fully developed.

Defendant Demund's motion for judgment on the pleadings

(document no. 7) is denied, without prejudice. Plaintiff's

motion to amend her complaint (document no. 8) is granted.

Defendant's assertion that plaintiff's amendment is barred by the

statute of limitations fails to account for the provisions of

5 Rule 1 5 (c) of the Federal Rules of Civil Procedure and, for that

reason, he has failed to demonstrate that plaintiff's proposed

amendment is time barred. Plaintiff shall, within twenty (20)

days of the date of this order, serve a copy of the amended

complaint and file with the court a signed original (the copy

attached to plaintiff's motion is unsigned) . If service upon

defendant is made by mail, plaintiff shall also file an

appropriate certificate of service. See Fed. R. Civ. P. 5.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 6, 2002

cc: Leslie H. Johnson, Esq. Steven E. Grill, Esq.