Gardner v. Blue Mountain CV-94-599-M 07/27/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ann K. Gardner and Donald A. Gardner, Plaintiffs,

v. Civil No. 94-599-M

Blue Mountain Forest Association, Defendants.

O R D E R

Plaintiffs, Ann and Donald Gardner, filed an eight count

complaint against their former employer. Blue Mountain Forest

Association ("Blue Mountain"), alleging, among other things,

violations of the Fair Labor Standards Act,

, et

seg., violations of the Egual Pay Act,

, and

wrongful termination. Blue Mountain moves to dismiss Count VI

(wrongful termination) and moves for summary judgment with regard

to Count III (federal Egual Pay Act) and Count IV (state Egual

Pay Act). It has also filed a Supplemental Motion to Dismiss

Count IV which, in essence, asks the court to declare that Ms.

Gardner may recover unpaid wages under New Hampshire's Egual Pay

Act, if any, only for the last seven months of her employment by

Blue Mountain. 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). In 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." Griqqs-Rvan v. Smith,

(1st Cir. 1990). The moving party has the burden

of demonstrating the absence of a genuine issue of material fact

for trial. Anderson v. Liberty Lobby, Inc.,

(1986). If the moving party carries its burden, the party

opposing the motion must set forth specific facts showing that

there remains a genuine issue for trial, demonstrating "some

factual disagreement sufficient to deflect brevis disposition."

Mesnick v. General Electric Co.,

(1st Cir.

1991), cert, denied,

(1992). See also Fed.R.Civ.P.

56(e). This burden is discharged only if the cited disagreement

relates to a genuine issue of material fact. Wynne v. Tufts

University School of Medicine,

(1st Cir. 1992),

cert, denied, ___ U.S. ___ ,

,

(1993). "In this context, 'genuine' means that the evidence

2 about the fact is such that a reasonable jury could resolve the

point in favor of the nonmoving party [and] 'material' means that

the fact is one that might affect the outcome of the suit under

the governing law." United States v. One Parcel of Real Property

with Bldgs.,

, 204 (1st Cir. 1992) (citing Anderson

v. Liberty Lobby, Inc.,

(1986)).

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) is one of

more limited inguiry, focusing not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v. Rhodes,

(1974). In considering a motion to dismiss, "the

material facts alleged in the complaint are to be construed in

the light most favorable to the plaintiff and taken as admitted,

with dismissal to be ordered only if the plaintiff is not

entitled to relief under any set of facts he could prove."

Chasan v. Village District of Eastman,

(D.N.H. 1983), aff'd without opinion,

(1st Cir. 1984)

(citations omitted).

For the reasons set forth below, defendant's Motion to

Dismiss Count VI and for Summary Judgment As To Counts III and IV

3 is denied. Its Supplemental Motion to Dismiss Count IV is

granted in part and denied in part.

Discussion.

I. Motions to Dismiss.

A. Count IV - New Hampshire Equal Pay Ac t .

Blue Mountain argues that the one-year statute of

limitations set forth in N.H. Rev. Stat. Ann. ("RSA") 275:41

limits Ms. Gardner's recovery (if any) to unpaid wages and/or

damages incurred after November 30, 1993 (one year prior to

plaintiff's filing of this action). RSA 275:41 provides that:

Any action to recover unpaid wages and liguidated damages based on violation of RSA 275:37, must be commenced within one year of the accrual thereof and not afterwards.

Although the New Hampshire Supreme Court has not yet interpreted

the language of this statute, it is clear and unambiguous. It

reguires a plaintiff filing an action under RSA 275:37 to do so

within one year of the "accrual" of her cause of action.

Like its federal counterpart, the New Hampshire Egual Pay

Act is violated each time an employer presents disparate

paychecks to employees for "egual work or work on the same

4 operations." See, e.g., Gandv v. Sullivan County,

(6th Cir. 1994) ("The Equal Pay Act is violated each time an

employer presents an 'unequal' paycheck to an employee for equal

work."); Nealon v. Stone,

(4th Cir. 1992)

("each issuance of [plaintiff's] paycheck at a lower waqe than

her male counterpart received constituted a new discriminatory

action for purposes of EPA limitations accrual)". Accordinqly,

each time Blue Mountain presented Ms. Gardner with a paycheck in

violation of New Hampshire's Equal Pay Act, a distinct and

coqnizable cause of action accrued.

In order to avoid the statute of limitations bar, Ms.

Gardner was required to commence any suit based upon such a cause

of action within one year. She has done so and is entitled to

recover unpaid waqes and liquidated damaqes for any violations of

the statute occurrinq within the one-year period prior to the

filinq of this action. However, to the extent that Blue Mountain

arques that she is barred from recoverinq unpaid waqes and

damaqes for violations of the statute which occurred prior to

that one-year period (i.e., prior to November 30, 1993), it is

correct. To that extent, its Supplemental Motion to Dismiss

Count IV is qranted. As a practical matter, however, this

5 holding may have little effect on Ms. Gardner. If she is able to

prove that Blue Mountain has violated the federal Equal Pay Act,

which is essentially coextensive with the New Hampshire statute,

she will benefit from the longer, federal statute of limitations.

B. Count VI - Wrongful Termination.

Defendant claims that Count VI of plaintiffs' complaint

fails, as a matter of law, to state a viable cause of action.

Specifically, it argues that the Gardners' wrongful termination

claim is made pursuant to RSA 354-A, which does not apply to non­

profit organizations, such as Blue Mountain. The Gardners

concede that this statute does not apply to Blue Mountain, but

assert that their wrongful termination claim is based upon state

common law, not RSA 354-A. Plaintiffs argue that they reference

the statute in their complaint merely to establish that New

Hampshire public policy prohibits sexual discrimination in the

employment context.

For the purposes of ruling on defendant's motion to dismiss,

the court finds that plaintiffs have stated a viable claim under

New Hampshire common law for wrongful discharge. As noted by the

Court of Appeals for the First Circuit:

6 An at will employee may assert a successful wrongful discharge claim under New Hampshire law by showing (1) that her discharge was "motivated by bad faith, malice, or retaliation," and (2) that she was discharged because she "performed an act that public policy would encourage, or refused to do that which public policy would condemn."

[Plaintiff] was discharged because she did not submit to sexual discrimination in the workplace, clearly a retaliatory termination from employment. Sexual discrimination in employment contravenes New Hampshire public policy. See

-A:8.

Chamberlin v. 101 Realty, Inc.,

(1st Cir. 1990)

(citations omitted) (emphasis added); see also Cloutier v. Great

Atl. & Pac. Tea Co.,

(1981); Monqe v. Beebe Rubber

C o .,

(1974). Here, plaintiffs have sufficiently

alleged that Ms. Gardner's termination was motivated by bad

faith, malice, or retaliation and was in response to her reguest

that she be paid in line with male employees performing

comparable work (i.e., that she be free from gender based

discrimination). Accordingly, defendant's motion to dismiss

count VI necessarily fails.

II. Motions for Summary Judgment.

7 With regard to Counts III and IV, Blue Mountain argues that

it is entitled to summary judgment because Ms. Gardner has failed

to specifically identify "a male employee [of Blue Mountain] who

performs jobs reguiring substantially egual skill, effort and

responsibilities and performed under similar working conditions."

Defendant's Memorandum in Support of Motion for Summary Judgment

at 3. Relying on Miranda v. B & B Cash Grocery Store, Inc.,

(11th Cir. 1992), Blue Mountain argues that Ms.

Gardner "must meet the fairly strict standard of proving that she

performed substantially similar work for less pay." Defendant's

Memorandum at 3. Because it claims that plaintiff has failed to

meet this standard of proof, it argues that it is entitled to

summary judgment with regard to her federal and state Egual Pay

Act claims.

There is, of course, a substantial difference between

plaintiff's burden of proof at trial and the burden she currently

bears in attempting to defeat Blue Mountain's motion for summary

judgment. Despite defendant's assertions to the contrary,

plaintiff has adeguately pled causes of action under both the

federal and state Egual Pay Acts. Moreover, she has submitted an

affidavit which states that she performed many of the same tasks which were performed by male employees who were compensated at

substantially higher rates. Whether these tasks constitute

"equal work on jobs the performance of which requires equal

skill, effort, and responsibility,"

(d)(1), plainly

constitutes a genuine issue of material fact. Dev v. Colt

Constr. & Dev. Co.,

(7th Cir. 1994); Iskander

v. Rodeo Sanitary District,

at *18

(N.D.Cal. February 7, 1995); Schnellbaecher v. Baskin Clothing

C o .,

(N.D. 111. 1989) .

Accordingly, defendant is not entitled to summary judgment with

regard to Count III or Count IV.

Conclusion.

For the foregoing reasons, defendant's Motion to Dismiss

Count VI and Motion for Summary Judgment as to Counts III and IV

(document no. 5) is denied and its Supplemental Motion to Dismiss

Count IV (document no. 8) is granted in part and denied in part.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 27, 1995 cc: Eleanor H. MacLellan, Esq. Linda S. Johnson, Esq.

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