Usher v . Cracker Barrel 07-CV-042-SM 12/04/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Bonnie Usher, Plaintiff
v. Civil N o . 07-cv-42-SM Opinion N o . 2007 DNH 150 Cracker Barrel Old Country Store, Inc., Defendant
O R D E R
Bonnie Usher has sued her former employer, Cracker Barrel
Old Country Store, Inc. (“Cracker Barrel”), asserting a Title VII
disparate-treatment claim (Count I ) , a Title VII hostile-work-
environment claim (Count I I ) , and a state-law claim for negligent
infliction of emotional distress (Count I I I ) . Before the court
is defendant’s motion to dismiss Counts I and I I I , and for a more
definite statement as to Count I I . Plaintiff concedes that Count
III should be dismissed, but otherwise objects to the relief
defendant requests. For the reasons given, defendant’s motion is
granted in part and denied in part.
In January 2003, Usher filed charges of discrimination
against Cracker Barrel with the New Hampshire Commission for
Human Rights (HRC), which forwarded her charges to the federal
Equal Employment Opportunity Commission (“EEOC”) for dual-filing purposes. In her charge, Usher claimed that Cracker Barrel
subjected her to both disparate treatment and a hostile work
environment. After an investigation, the H R C determined that
there was probable cause to believe that Usher had been subjected
to a hostile work environment from January 1 , 2001, through
September 3 0 , 2002, but that there was not probable cause to
believe that Usher had been subjected to a hostile work
environment after September 3 0 , 2002, or that she had ever been
subjected to disparate treatment. After a hearing, the H R C found
for Cracker Barrel. Usher did not appeal to the state superior
court, as was her right under N . H . R E V . STAT. A N N . (“RSA”) § 354-
A : 2 2 , I . Thereafter, Usher received a “right to sue” letter from
the E E O C . This action followed.
Defendant contends that all of Count I and much of Count I I
must be dismissed because the H R C determined that there was
probable cause only for plaintiff’s hostile-work-environment
claim, and only for a limited time period. That i s , defendant
argues that plaintiff’s action in this court must be limited to
those charges and factual allegations for which the H R C found
probable cause. Plaintiff disagrees, arguing that this case is
not a state-law appeal under R S A 354-A:22, I .
2 Defendant relies upon Dow v . Sears, Roebuck & Co., 143 N.H.
166 (1998), in which the New Hampshire Supreme Court held that
“because RSA 354-A:22 limits review to ‘orders’ of the commission
. . . RSA chapter 354-A does not allow for judicial review of a
commissioner’s probable cause determinations,” id. at 168
(citation omitted). Dow precludes judicial review of HRC
probable cause determinations in state court appeals, but
plaintiff is not appealing either the HRC’s probable cause
determinations or its ultimate decision. Rather, plaintiff has
brought suit under Title VII in federal court.
Turning to the federal law governing plaintiff’s claims,
Title VII “does not restrict a complainant’s right to sue to
those charges as to which the [EEOC] has made findings of
reasonable cause.” McDonnell Douglas Corp. v . Green, 411 U.S.
792, 798 (1973). Moreover, the United States Supreme Court has
expressly declined to “engraft on the statute a requirement which
may inhibit the review of claims of employment discrimination in
the federal courts.” Id. at 798-99. In addition, while the
provisions of 28 U.S.C. § 1738 require federal courts
adjudicating Title VII claims to afford full faith and credit to
final state-court judgments, see Kremer v . Chem. Constr. Corp.,
456 U.S. 4 6 1 , 470 (1982), “it is clear that unreviewed
3 administrative determinations by state agencies . . . should not
preclude [federal court] review even if such a decision were to
be afforded preclusive effect in a State’s own courts,” id. at
470 n.7 (citations omitted).
The application of McDonnel Douglas and Kremer to the facts
of this case is straightforward. The HRC probable cause
determinations constitute unreviewed administrative
determinations by a state agency. Therefore, those
determinations have no preclusive effect and provide no basis for
dismissing any part of this action. Accordingly, defendant’s
motion to dismiss Counts I and II is denied.
Defendant also moves for a more definite statement, pursuant
to Federal Rule of Civil Procedure 12(e), arguing that
plaintiff’s failure to allege the dates upon which any of the
allegedly discriminatory conduct took place makes it impossible
to determine, from the face of the complaint, whether any part of
her claim is time barred. Plaintiff objects, arguing that
“[d]efendant is well aware of the time frame during which the
allegations are alleged to have occurred due to both the pre-
hearing discovery engaged in by the [d]efendant, the various
documents provided during pre-hearing discovery and, most
4 importantly, the testimony of the various witnesses at the
[HRC]’s hearing on February 1 4 , and April 5 , 2006.”
Defendant’s entitlement to a more definite statement is
governed by the principles described in Lewis v . Textron Auto.
Co., 935 F. Supp. 68 (D.N.H. 1996). In that case, the court
explained that “[s]ince ‘Rule 12(e) motions are designed to
strike at unintelligibility, rather than at lack of detail in the
complaint . . . a rule 12(e) motion properly is granted only when
a party is unable to determine the issues he must meet.’” Id. at
70 (quoting Cox v . M e . Maritime Acad., 122 F.R.D. 115, 116 (D.
M e . 1988)). The court further explained that “the liberal
pleading requirements of the Federal Rules of Civil Procedure
still require ‘that each general allegation be supported by a
specific factual basis.’” Id. at 70-71 (quoting Flaming v . Lind-
Waldock & Co., 922 F.2d 2 0 , 23 (1st Cir. 1990)).
The specific facts at issue here are the dates of the
alleged acts of discrimination which, in defendant’s view, it is
entitled to learn from the complaint, so that it might move for
dismissal of any claims that are time barred. “[T]he statute of
limitations is formally a defense,” Arturet-Vélez v . R.J.
Reynolds Tobacco Co., 429 F.3d 1 0 , 13 (1st Cir. 2005), and
5 defenses must generally be raised in responsive pleadings, see
F E D . R . C I V . P . 12(b). However, a statute-of-limitations defense
may be raised in a motion to dismiss under Rule 12(b)(6). See,
e.g., Arturet-Vélez, 429 F.3d at 1 3 ; Centro Medico del Turabo,
Inc. v . Feliciano de Melecio, 406 F.3d 1 , 6 (2005); López-
González v . Municipality of Comerío, 404 F.3d 5 4 8 , 551 (2005).
Here, plaintiff’s forty-three paragraphs of factual
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Usher v . Cracker Barrel 07-CV-042-SM 12/04/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Bonnie Usher, Plaintiff
v. Civil N o . 07-cv-42-SM Opinion N o . 2007 DNH 150 Cracker Barrel Old Country Store, Inc., Defendant
O R D E R
Bonnie Usher has sued her former employer, Cracker Barrel
Old Country Store, Inc. (“Cracker Barrel”), asserting a Title VII
disparate-treatment claim (Count I ) , a Title VII hostile-work-
environment claim (Count I I ) , and a state-law claim for negligent
infliction of emotional distress (Count I I I ) . Before the court
is defendant’s motion to dismiss Counts I and I I I , and for a more
definite statement as to Count I I . Plaintiff concedes that Count
III should be dismissed, but otherwise objects to the relief
defendant requests. For the reasons given, defendant’s motion is
granted in part and denied in part.
In January 2003, Usher filed charges of discrimination
against Cracker Barrel with the New Hampshire Commission for
Human Rights (HRC), which forwarded her charges to the federal
Equal Employment Opportunity Commission (“EEOC”) for dual-filing purposes. In her charge, Usher claimed that Cracker Barrel
subjected her to both disparate treatment and a hostile work
environment. After an investigation, the H R C determined that
there was probable cause to believe that Usher had been subjected
to a hostile work environment from January 1 , 2001, through
September 3 0 , 2002, but that there was not probable cause to
believe that Usher had been subjected to a hostile work
environment after September 3 0 , 2002, or that she had ever been
subjected to disparate treatment. After a hearing, the H R C found
for Cracker Barrel. Usher did not appeal to the state superior
court, as was her right under N . H . R E V . STAT. A N N . (“RSA”) § 354-
A : 2 2 , I . Thereafter, Usher received a “right to sue” letter from
the E E O C . This action followed.
Defendant contends that all of Count I and much of Count I I
must be dismissed because the H R C determined that there was
probable cause only for plaintiff’s hostile-work-environment
claim, and only for a limited time period. That i s , defendant
argues that plaintiff’s action in this court must be limited to
those charges and factual allegations for which the H R C found
probable cause. Plaintiff disagrees, arguing that this case is
not a state-law appeal under R S A 354-A:22, I .
2 Defendant relies upon Dow v . Sears, Roebuck & Co., 143 N.H.
166 (1998), in which the New Hampshire Supreme Court held that
“because RSA 354-A:22 limits review to ‘orders’ of the commission
. . . RSA chapter 354-A does not allow for judicial review of a
commissioner’s probable cause determinations,” id. at 168
(citation omitted). Dow precludes judicial review of HRC
probable cause determinations in state court appeals, but
plaintiff is not appealing either the HRC’s probable cause
determinations or its ultimate decision. Rather, plaintiff has
brought suit under Title VII in federal court.
Turning to the federal law governing plaintiff’s claims,
Title VII “does not restrict a complainant’s right to sue to
those charges as to which the [EEOC] has made findings of
reasonable cause.” McDonnell Douglas Corp. v . Green, 411 U.S.
792, 798 (1973). Moreover, the United States Supreme Court has
expressly declined to “engraft on the statute a requirement which
may inhibit the review of claims of employment discrimination in
the federal courts.” Id. at 798-99. In addition, while the
provisions of 28 U.S.C. § 1738 require federal courts
adjudicating Title VII claims to afford full faith and credit to
final state-court judgments, see Kremer v . Chem. Constr. Corp.,
456 U.S. 4 6 1 , 470 (1982), “it is clear that unreviewed
3 administrative determinations by state agencies . . . should not
preclude [federal court] review even if such a decision were to
be afforded preclusive effect in a State’s own courts,” id. at
470 n.7 (citations omitted).
The application of McDonnel Douglas and Kremer to the facts
of this case is straightforward. The HRC probable cause
determinations constitute unreviewed administrative
determinations by a state agency. Therefore, those
determinations have no preclusive effect and provide no basis for
dismissing any part of this action. Accordingly, defendant’s
motion to dismiss Counts I and II is denied.
Defendant also moves for a more definite statement, pursuant
to Federal Rule of Civil Procedure 12(e), arguing that
plaintiff’s failure to allege the dates upon which any of the
allegedly discriminatory conduct took place makes it impossible
to determine, from the face of the complaint, whether any part of
her claim is time barred. Plaintiff objects, arguing that
“[d]efendant is well aware of the time frame during which the
allegations are alleged to have occurred due to both the pre-
hearing discovery engaged in by the [d]efendant, the various
documents provided during pre-hearing discovery and, most
4 importantly, the testimony of the various witnesses at the
[HRC]’s hearing on February 1 4 , and April 5 , 2006.”
Defendant’s entitlement to a more definite statement is
governed by the principles described in Lewis v . Textron Auto.
Co., 935 F. Supp. 68 (D.N.H. 1996). In that case, the court
explained that “[s]ince ‘Rule 12(e) motions are designed to
strike at unintelligibility, rather than at lack of detail in the
complaint . . . a rule 12(e) motion properly is granted only when
a party is unable to determine the issues he must meet.’” Id. at
70 (quoting Cox v . M e . Maritime Acad., 122 F.R.D. 115, 116 (D.
M e . 1988)). The court further explained that “the liberal
pleading requirements of the Federal Rules of Civil Procedure
still require ‘that each general allegation be supported by a
specific factual basis.’” Id. at 70-71 (quoting Flaming v . Lind-
Waldock & Co., 922 F.2d 2 0 , 23 (1st Cir. 1990)).
The specific facts at issue here are the dates of the
alleged acts of discrimination which, in defendant’s view, it is
entitled to learn from the complaint, so that it might move for
dismissal of any claims that are time barred. “[T]he statute of
limitations is formally a defense,” Arturet-Vélez v . R.J.
Reynolds Tobacco Co., 429 F.3d 1 0 , 13 (1st Cir. 2005), and
5 defenses must generally be raised in responsive pleadings, see
F E D . R . C I V . P . 12(b). However, a statute-of-limitations defense
may be raised in a motion to dismiss under Rule 12(b)(6). See,
e.g., Arturet-Vélez, 429 F.3d at 1 3 ; Centro Medico del Turabo,
Inc. v . Feliciano de Melecio, 406 F.3d 1 , 6 (2005); López-
González v . Municipality of Comerío, 404 F.3d 5 4 8 , 551 (2005).
Here, plaintiff’s forty-three paragraphs of factual
allegations do not include reference to a single date upon which
any of defendant’s allegedly discriminatory acts took place. See
Evans v . Port Authority, Civil Action N o . 06-3239 ( J A G ) , 2007 W L
3071808 (D.N.J. Oct. 1 7 , 2007) (granting motion for more definite
statement when Title V I I plaintiff’s complaint failed to provide
adequate information about dates of alleged discriminatory acts).
Without adequate time references, the complaint – which is
generally the exclusive source of facts for a Rule 12(b)(6)
motion – fails to provide defendant with the information
necessary to support either an informed or a good faith basis for
filing a motion to dismiss based upon timeliness. It may well be
that the information defendant seeks could be found in the
administrative record from the H R C proceeding. But as plaintiff
herself points out in her objection to defendant’s attempt to
rely upon the HRC’s probable cause determination, this is not an
6 appeal from the HRC decision. It is a trial de novo, see Kremer,
456 U.S. at 4 7 0 , making the HRC proceeding largely irrelevant.
Moreover, as between plaintiff and defendant, plaintiff is
obviously the better source of information about the claims she
is bringing. See Evans, 2007 WL 3071808, at *14 (“Defendant is
not expected to speculate about [when the alleged acts of
discrimination took place] in attempting to formulate a
defense.”) (citing Thomas v . Independence Twp., 463 F.3d 285, 301
(3d Cir. 2006)). Because “[r]equiring [p]laintiff[ ] to provide
dates will assist [d]efendant in framing a defense, and increase
the efficiency with which this [c]ourt resolves the dispute
between the parties,” Evans, 2007 WL 3071808, at * 1 4 , plaintiff
is ordered to amend her complaint, within thirty (30) days, to
include dates and time references from which it can be determined
when the alleged acts of disparate treatment took place, as well
as dates and time references relevant to her hostile-work-
environment claim.
Conclusion
Defendant’s motion to dismiss and for a more definite
statement (document n o . 5 ) is granted in part and denied in part.
Count III is dismissed. Plaintiff is ordered to file an amended
complaint, within thirty (30) days of the date of this order,
7 that includes references to dates and time periods sufficient to
permit defendant to know what is claimed and when events
occurred, and to respond accordingly. Beyond that, defendant’s
motion is denied.
SO ORDERED.
Steven J. /McAuliffe Chief Judge
December 4, 2007
cc: Jennifer R. Jones, Esq. Lee S. MacPhee, Esq.