Yale v . Allenstown CV-96-333-B 03/18/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Tammy Yale
v. Civil N o . 96-333-B
Town of Allenstown and Ernest L . Castle, IV
MEMORANDUM AND ORDER
Tammy Yale, a former part-time police officer for the Town
of Allenstown, brought this action against Allenstown and
Allenstown Police Sergeant Ernest Castle. She asserts claims
for: (1) sexual discrimination (Count I ) , sexual harassment
(Count I I ) , and retaliation (Count I I I ) , in violation of Title
VII of the Civil Rights Act, 42 U.S.C.A. § 2000 et seq.; (2)
unlawful sexual discrimination in violation of Yale’s Fourteenth
Amendment rights to due process and equal protection (Count I V ) ;
(3) intentional infliction of emotional distress (Count V ) ; and
(4) assault (Count V I ) . Defendants have moved to dismiss Counts
IV, V and VI for failure to state a claim. I deny the motions
for the reasons that follow.
I. STANDARD OF REVIEW
When considering a motion to dismiss for failure to state a
claim, I accept the complaint’s well-pleaded factual allegations as true and then determine whether the allegations are
sufficient, under any theory, to state a claim for relief.
Armstrong v . Jefferson Smurfit Corp., 30 F.3d 1 1 , 12 (1st Cir.
1994). Neither bald assertions nor legal conclusions enjoy the
presumption of truth. United States v . AVX Corp., 962 F.2d 1 0 8 ,
115 (1st Cir. 1992). I will, however, draw all reasonable
inferences in plaintiff’s favor. Rockwell v . Cape Cod Hosp., 26
F.3d 2 5 4 , 255 (1st Cir. 1994).
II. BACKGROUND
Tammy Yale was employed by the Allenstown Police Department
as a part-time police officer from August 1 , 1994 until April 2 5 ,
1995. Ernest Castle, an Allenstown police sergeant, was
appointed to serve as Yale’s field training officer. This
arrangement required Yale to work with Castle on the same shifts.
From the outset, Yale alleges, Castle repeatedly made sexual
advances toward her comprised of vulgar remarks, sexual innuendo
and non-consensual touching. He allegedly engaged in these
activities while on duty and despite Yale’s repeated rejection of
his advances. He also allegedly made persistent harassing phone
2 calls to her while they were off-duty.
Castle also allegedly retaliated against Yale for rejecting
his advances. Yale claims that Castle spread rumors that she was
cheating on him and that she would return from vacation pregnant
by another police officer. Castle’s purpose, according to Yale,
was to humiliate and upset her in order to prevent her from being
hired as a full-time officer or to pressure her into resigning
from the force.
Castle administered an unannounced written exam to Yale when
she returned from vacation in the spring of 1995. As Yale worked
on the exam, Castle allegedly stood approximately five feet
behind her and drew his firearm in violation of department
policy. This led Yale to believe that she was about to be shot.
In response, Yale filed a complaint with the Chief of Police
informing him about both the gun incident and Castle’s persistent
sexual harassment.
Yale was suspended the day after she filed her complaint.
The Chairman of the Board of Selectmen later informed her that
she had been suspended because her allegations had resulted in
turmoil within the department.
3 Yale also alleges that the town subsequently rejected her
application for a full-time position and instead hired a lesser
qualified male candidate. At the time, she was informed by the
town that it would consider hiring a full-time officer from
within the district, so long as it was not her. Yale notes that
she was the only female officer employed by the force during the
term of her employment.
III. DISCUSSION
A. Count IV
The Magistrate Judge permitted Yale to amend Count IV after
defendants filed their motion to dismiss to expressly plead that
defendants violated her Fourteenth Amendment right to equal
protection. In light of this amendment, defendants’ claim that
Count IV does not sufficiently plead a violation of federal law
is moot.
B. Counts V and VI - New Hampshire’s Workers Compensation Statute
Defendants next contend that Counts V and V I , which only
assert claims against Castle, are barred by the exclusivity
4 provision in New Hampshire’s workers compensation statute. N.H.
Rev. Sate. Ann. 281-A:8 (Supp. 1995). I disagree. The
exclusivity provision does not bar intentional tort claims
against co-employees. Thompson v . Forest, 136 N.H. 215, 219
(1992). Moreover, when a plaintiff properly pleads an
intentional infliction of emotional distress or assault claim
against a co-employee, the plaintiff need not expressly allege
that injury was substantially certain to result from the
defendant’s intentional conduct. Id. Accordingly, the workers
compensation statute does not bar plaintiff’s claims against
Castle.
C. Intentional Infliction of Emotional Distress
Castle next argues that Count V , alleging intentional
infliction of emotional distress, should be dismissed because
Yale failed to sufficiently allege that Castle’s conduct was
extreme and outrageous.
To maintain a claim of intentional infliction of emotional
distress, Yale must establish that the defendant “by extreme and
outrageous conduct intentionally and recklessly cause[d] severe
emotional distress [to her].” Morancy v . Morancy, 134 N.H. 493,
5 495-496 (1991)(quoting Restatement (Second) of Torts § 46
(1965)).
Yale’s complaint sets out sufficient facts to support a
finding that Castle’s conduct went “beyond all possible bounds of
decency, and [would] be regarded as atrocious, and utterly
intolerable in a civilized community.” Restatement (Second) of
Torts, § 46 cmt. d (1965); accord Jarvis v . Prudential Ins. Co.,
122 N.H. 6 4 8 , 652 (1982). She alleges that Castle was her field
training officer, with whom she was required to work when she was
on duty. Castle repeatedly took advantage of this situation to
harass her and make sexual advances toward her through vulgar
remarks, sexual innuendo, and touching Yale without her consent.
Because she rejected these advances, Castle made disparaging
remarks about her with the alleged intention of either preventing
her from advancing to a full-time officer position in the
department or forcing her to resign from the force. These
allegations go beyond those “mere indignities, annoyances, or
petty oppressions that one may expect to encounter in one’s daily
life and that cannot be redressed by [an action for intentional
infliction of emotional distress].” Godfrey v . Perkin-Elmer
6 Corp., 794 F. Supp. 1179, 1189 (D.N.H. 1992). Thus, defendant’s
reasoning does not support a motion to dismiss Count V .
D. Assault
Castle also challenges the sufficiency of Yale’s assault
claim in Count VI by arguing that: (1) the complaint fails to
allege that Yale suffered bodily injury as a result of the
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Yale v . Allenstown CV-96-333-B 03/18/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Tammy Yale
v. Civil N o . 96-333-B
Town of Allenstown and Ernest L . Castle, IV
MEMORANDUM AND ORDER
Tammy Yale, a former part-time police officer for the Town
of Allenstown, brought this action against Allenstown and
Allenstown Police Sergeant Ernest Castle. She asserts claims
for: (1) sexual discrimination (Count I ) , sexual harassment
(Count I I ) , and retaliation (Count I I I ) , in violation of Title
VII of the Civil Rights Act, 42 U.S.C.A. § 2000 et seq.; (2)
unlawful sexual discrimination in violation of Yale’s Fourteenth
Amendment rights to due process and equal protection (Count I V ) ;
(3) intentional infliction of emotional distress (Count V ) ; and
(4) assault (Count V I ) . Defendants have moved to dismiss Counts
IV, V and VI for failure to state a claim. I deny the motions
for the reasons that follow.
I. STANDARD OF REVIEW
When considering a motion to dismiss for failure to state a
claim, I accept the complaint’s well-pleaded factual allegations as true and then determine whether the allegations are
sufficient, under any theory, to state a claim for relief.
Armstrong v . Jefferson Smurfit Corp., 30 F.3d 1 1 , 12 (1st Cir.
1994). Neither bald assertions nor legal conclusions enjoy the
presumption of truth. United States v . AVX Corp., 962 F.2d 1 0 8 ,
115 (1st Cir. 1992). I will, however, draw all reasonable
inferences in plaintiff’s favor. Rockwell v . Cape Cod Hosp., 26
F.3d 2 5 4 , 255 (1st Cir. 1994).
II. BACKGROUND
Tammy Yale was employed by the Allenstown Police Department
as a part-time police officer from August 1 , 1994 until April 2 5 ,
1995. Ernest Castle, an Allenstown police sergeant, was
appointed to serve as Yale’s field training officer. This
arrangement required Yale to work with Castle on the same shifts.
From the outset, Yale alleges, Castle repeatedly made sexual
advances toward her comprised of vulgar remarks, sexual innuendo
and non-consensual touching. He allegedly engaged in these
activities while on duty and despite Yale’s repeated rejection of
his advances. He also allegedly made persistent harassing phone
2 calls to her while they were off-duty.
Castle also allegedly retaliated against Yale for rejecting
his advances. Yale claims that Castle spread rumors that she was
cheating on him and that she would return from vacation pregnant
by another police officer. Castle’s purpose, according to Yale,
was to humiliate and upset her in order to prevent her from being
hired as a full-time officer or to pressure her into resigning
from the force.
Castle administered an unannounced written exam to Yale when
she returned from vacation in the spring of 1995. As Yale worked
on the exam, Castle allegedly stood approximately five feet
behind her and drew his firearm in violation of department
policy. This led Yale to believe that she was about to be shot.
In response, Yale filed a complaint with the Chief of Police
informing him about both the gun incident and Castle’s persistent
sexual harassment.
Yale was suspended the day after she filed her complaint.
The Chairman of the Board of Selectmen later informed her that
she had been suspended because her allegations had resulted in
turmoil within the department.
3 Yale also alleges that the town subsequently rejected her
application for a full-time position and instead hired a lesser
qualified male candidate. At the time, she was informed by the
town that it would consider hiring a full-time officer from
within the district, so long as it was not her. Yale notes that
she was the only female officer employed by the force during the
term of her employment.
III. DISCUSSION
A. Count IV
The Magistrate Judge permitted Yale to amend Count IV after
defendants filed their motion to dismiss to expressly plead that
defendants violated her Fourteenth Amendment right to equal
protection. In light of this amendment, defendants’ claim that
Count IV does not sufficiently plead a violation of federal law
is moot.
B. Counts V and VI - New Hampshire’s Workers Compensation Statute
Defendants next contend that Counts V and V I , which only
assert claims against Castle, are barred by the exclusivity
4 provision in New Hampshire’s workers compensation statute. N.H.
Rev. Sate. Ann. 281-A:8 (Supp. 1995). I disagree. The
exclusivity provision does not bar intentional tort claims
against co-employees. Thompson v . Forest, 136 N.H. 215, 219
(1992). Moreover, when a plaintiff properly pleads an
intentional infliction of emotional distress or assault claim
against a co-employee, the plaintiff need not expressly allege
that injury was substantially certain to result from the
defendant’s intentional conduct. Id. Accordingly, the workers
compensation statute does not bar plaintiff’s claims against
Castle.
C. Intentional Infliction of Emotional Distress
Castle next argues that Count V , alleging intentional
infliction of emotional distress, should be dismissed because
Yale failed to sufficiently allege that Castle’s conduct was
extreme and outrageous.
To maintain a claim of intentional infliction of emotional
distress, Yale must establish that the defendant “by extreme and
outrageous conduct intentionally and recklessly cause[d] severe
emotional distress [to her].” Morancy v . Morancy, 134 N.H. 493,
5 495-496 (1991)(quoting Restatement (Second) of Torts § 46
(1965)).
Yale’s complaint sets out sufficient facts to support a
finding that Castle’s conduct went “beyond all possible bounds of
decency, and [would] be regarded as atrocious, and utterly
intolerable in a civilized community.” Restatement (Second) of
Torts, § 46 cmt. d (1965); accord Jarvis v . Prudential Ins. Co.,
122 N.H. 6 4 8 , 652 (1982). She alleges that Castle was her field
training officer, with whom she was required to work when she was
on duty. Castle repeatedly took advantage of this situation to
harass her and make sexual advances toward her through vulgar
remarks, sexual innuendo, and touching Yale without her consent.
Because she rejected these advances, Castle made disparaging
remarks about her with the alleged intention of either preventing
her from advancing to a full-time officer position in the
department or forcing her to resign from the force. These
allegations go beyond those “mere indignities, annoyances, or
petty oppressions that one may expect to encounter in one’s daily
life and that cannot be redressed by [an action for intentional
infliction of emotional distress].” Godfrey v . Perkin-Elmer
6 Corp., 794 F. Supp. 1179, 1189 (D.N.H. 1992). Thus, defendant’s
reasoning does not support a motion to dismiss Count V .
D. Assault
Castle also challenges the sufficiency of Yale’s assault
claim in Count VI by arguing that: (1) the complaint fails to
allege that Yale suffered bodily injury as a result of the
assault; (2) Yale’s fear that she would be shot when Castle drew
his weapon was unreasonable under the circumstances; and (3)
Yale’s claim that Castle engaged in unprivileged sexual touching
is not sufficiently egregious. I reject each of these arguments.
Castle’s first argument fails because assault does not
require proof that bodily harm resulted from defendant’s conduct.
Beach v . Hancock, 27 N.H. 223 (1853); Restatement (Second) of
Torts § 21(1) cmt. c (1965). His second argument is similarly
flawed because an assault requires only that (1) the defendant
must have intended to cause harmful or offensive contact to the
plaintiff, and (2) the plaintiff must have been put in imminent
apprehension of such contact. Restatement (Second) of Torts §
21(1). The complaint in this case sufficiently pleads both
elements to survive a motion to dismiss. Finally, Yale’s claim
7 that Castle reportedly engaged in unprivileged sexual touching
also is sufficiently alleged to support a claim for either
assault or battery. Therefore, I deny Castle’s motion to dismiss
Count V I .
IV. CONCLUSION
Defendant Allenstown’s motion to dismiss Count IV (document
n o . 6 ) and defendant Castle’s motion to dismiss Counts IV, V , and
VI (document n o . 7 ) are denied.
SO ORDERED.
Paul Barbadoro United States District Judge
March 1 8 , 1997
cc: Jennifer Rood, Esq. Glenn R. Milner, Esq.