Bergstrom v. UNH CV-95-267-JD 06/21/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carol Ann Bergstrom

v. Civil No. 95-267-JD

University of N.H., et al.

O R D E R

The plaintiff, Carol Ann Bergstrom, has filed this

employment discrimination action against her former employers,

defendants University of New Hampshire and the University System

of New Hampshire (collectively "UNH"), and against a former

supervisor, defendant Roger Beaudoin. The plaintiff asserts

violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., the Fair Labor Standards Act ("FSLA"),

et seq., and the New Hampshire egual pay act, N.H.

Rev. Stat. Ann. ("RSA") § 275:36 et se q . Before the court is the

defendants' motion for summary judgment (document no. 17).

Background1

The plaintiff has been employed in various professional,

administrative, and technical ("PAT") capacities at UNH since

1The factual background of this case is drawn in large part from the court's ruling on the defendants' earlier motion to dismiss, see Bergstrom v. U N H , No. 95-267-JD, slip op. at 2-3 (D.N.H. Jan. 9, 1996), and is recited in a light most favorable to the plaintiff, see Fed. R. Civ. P. 56. August 6, 1979.2 During her years at the university she has been

subjected to a variety of adverse employment actions because of

her gender, including intentional acts of sex discrimination.

The most recent discriminatory act is alleged to have occurred on

April 9, 1993, when UNH "informed Bergstrom that no action would

be taken to remedy the discriminatory treatment by Beaudoin and

[Steve] Larson," another UNH supervisor. Complaint at 5 37.

For several years the plaintiff attempted to resolve these

employment concerns through direct negotiation with the

university. She first notified senior management, including the

office of the university president, of the discriminatory conduct

in 1988. Since that time, UNH administrators have made verbal

and written assurances to the plaintiff that the situation would

be reviewed and remedied if the plaintiff were to forego legal

action. Although the plaintiff was transferred to another

department with the understanding that she would assume the title

and responsibilities of an associate director, such a promotion

"never materialized" and "from 1988 through 1993, administrators

and officials at the University failed to meet their repeated

promises that they would remedy the discrimination plaintiff

suffered." On January 31, 1994, 297 days after the last incident

2The court cannot determine from the record whether the plaintiff remains employed by UNH.

2 of discrimination, the plaintiff filed a formal charge of

discrimination with the New Hampshire Human Rights Commission

("NHHRC") a which also served as a timely filing with the Egual

Employment Opportunity Commission ("EEOC")-

The court incorporates other facts, infra, as necessary for

its analysis of the legal issues presented by the instant motion.

Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (guoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992), cert, denied, 113 S. C t . 1845 (1993)), cert. denied,

115 S. C t . 56 (1994). The court may only grant a motion for

summary judgment where the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). The party seeking

summary judgment bears the initial burden of establishing the

lack of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986); Quintero de Quintero v.

3 Aponte-Rogue,

(1st Cir. 1992) . The court

must view the entire record in the light most favorable to the

plaintiff, "'indulging all reasonable inferences in that party's

favor.'" Mesnick v. General Elec. Co . ,

(1st

Cir. 1991) (guoting Griqqs-Rvan v. Smith,

(1st

Cir. 1990)), cert, denied,

(1992). However, once

the defendant has submitted a properly supported motion for

summary judgment, the plaintiff "may not rest upon mere

allegation or denials of [her] pleading but must set forth

specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc.,

(1986) (citing

Fed. R. Civ. P. 56(e)).

I. Count II Is Not Barred

In their motion the defendants assert that count II, a Title

VII sexual harassment claim, is barred because the alleged

misconduct underlying the claim occurred outside the Title VII

limitations period. See Defendants' Memorandum of Law in Support

of Motion for Summary Judgment ("Defendants' Memorandum") at 2-

3.3 The defendants reason that because the plaintiff "does not

3The plaintiff also has alleged violations of the state human rights act, RSA § 354-A:7, V. Although the parties have not addressed the issue, the claim is barred because the statute does not provide a private right of action. See Tsetseranos v. Tech Prototype, Inc.,

(D.N.H. 1995).

4 contend that anyone other than Beaudoin sexually harassed her or

that the alleged sexual harassment continued after April, 1988,"

the alleged harassment cannot be actionable unless it bears a

"substantial relationship" to an act of harassment that did occur

within the limitations period. I d . at 1-2.

The plaintiff responds that each of her allegations is

actionable as part of a continuing violation that also

encompassed conduct occurring within the limitations period. See

Plaintiff's Memorandum of Law in Opposition to Summary Judgment

("Plaintiff's Memorandum") at 6-8. In the alternative, the

plaintiff urges that the limitations period "should be eguitably

tolled because the University mislead [her] into refraining from

legal action by repeatedly promising to provide her with a

remedy." I d . at 8.

To maintain a Title VII action a plaintiff must file a

charge of discrimination with the Egual Employment Opportunity

Commission ("EEOC"), or its designee, within a specified time

period. See Bergstrom v. University of New Hampshire, No. 95-

267-JD, slip op. at 5-8 (D.N.H. Jan. 9, 1996) (citing 42 U.S.C. §

Accordingly, the court dismisses sua sponte the plaintiff's state law claims under RSA § 354-A:7, V as set forth in counts one and two.

5 2000e-5 (e) (1) and other authority) .4 However, the First Circuit

permits Title VII litigants to "reach back and recover for a

series of acts outside the limitations period" under either of

two continuing violation theories, the serial violation theory

and the systemic violation theory. Lawton v. State Mutual Life

Ass. Co. of America,

, ___ ,

(D. Mass. May 10, 1996) (citing Sabree v. United Brotherhood of

Carpenters and Joiners,

(1st Cir. 1990));

accord Douglas v. Coca-Cola Bottling Co . , No. 94-97-M, slip op.

at 9-10 (D.N.H. Nov. 6, 1995) .5

A serial "violation is composed of a number of

discriminatory acts emanating from the same discriminatory

animus, each act constituting a separate actionable wrong under

Title VII." Sabree,

(guoting Jensen v. Frank,

(1st Cir. 1990)). To proceed under this

theory, the plaintiff must show a "substantial relationship"

4By prior order the court found that the plaintiff's January 31, 1994, filing of a formal charge with the NHHRC satisfied the applicable time limit for purposes of maintaining her Title VII claim. See Bergstrom, slip op. at 10 (D.N.H. Jan. 9, 1996) . However, the order did not address the instant guestion of whether conduct occurring outside the time limit, such as that alleged to have taken place prior to April 1993, would be actionable under the claim.

5Ihe plaintiff does not appear to have alleged a systemic violation and, as such, the court does not address this continuing violation theory.

6 between the time-barred acts and at least one act of harassment

that occurred within the limitations period. E.g., Sabree,

(citing Berry v. Board of Supervisors of LS U ,

(5th Cir. 1983), cert. denied,

(1986)); Lawton,

; Douglas, slip op. at 9-

10. The most important factor to consider when assessing the

substantiality of the relationship between the timely and

untimely conduct is whether "the act outside the limitations

period 'has the degree of permanence which should trigger an

employee's awareness and duty to assert her rights.'" Lawton,

(guoting Desrosiers v. Great Atlantic &

Pacific Tea Company,

(D. Mass. 1995)); see

Jensen,

("What matters is whether, when and to

what extent the plaintiff was on inguiry notice"); Douglas, slip

op. at 9-10 (permanence found where plaintiff "unable to

appreciate that [she was] being discriminated against until [she

had] lived through a series of acts" (guoting Sabree,

)). Thus, courts in this circuit have rejected a serial

violation theory where the plaintiff "admitted that he believed,

at every turn, that he was discriminated against," Sabree,

, and where the plaintiff "faile[ed] to offer any

evidence that [the timely and untimely] actions were motivated by

7 the same discriminatory animus or were related in any way,"

Lawton,

.

The court finds that the plaintiff has alleged acts and

adduced ample evidence to support her theory of a serial

violation. The complaint, liberally construed in accordance with

Rules 8 (a) & (e), alleges an ongoing pattern of harassment which

began several years prior to the statutory time limit but did not

terminate until a date within the time period, i.e., April 9,

1993. The pattern alleged not only involves individual acts of

direct harassment, such as those attributed to Beaudoin, e.g.

Complaint at 55 22-31, but also encompasses less explicit

conduct, such as that involving other members of university

management, e.g. i d . at 55 32-37, 58. For example, the

university's failure to remedy the plaintiff's complaints of

Beaudoin's harassment notwithstanding specific reguests to do so

arguably constitutes a purposeful extension, ratification, or

amplification of the unlawful conduct. Moreover, the plaintiff's

reguests for assistance from others within the university

administration and, in turn, their false assurances that the

situation would be remedied, supports the inference that the

plaintiff herself did not recognize the full nature and extent of

the pattern of harassment until the pattern concluded in April

1993.

8 Finally, each incident of unlawful conduct arguably emanated

from the same discriminatory animus in that each involved job-

related harassment initiated by the plaintiff's superiors or

others in positions of authority, each allegedly precipitated the

next, and each remained unremedied despite repeated assurances to

the contrary. See, e.g.. Plaintiff's Memorandum, E x s . B & E

(narrative description of various meetings, some with direct

reference to Beaudoin-related harassment). The final act of

discrimination, the April 9, 1993, notification that there would

be no action taken to remedy Beaudoin's and Larson's unlawful

conduct, is consistent with this pattern.

Accordingly, the plaintiff's evidence and allegations,

graced with all favorable inferences under Rule 56, give rise to

a genuine dispute on the material guestion of whether the

untimely acts relate substantially to the timely acts.

Therefore, the plaintiff may proceed under a serial violation

theory.

II. Individual Liability under The EPA

Defendant Beaudoin asserts that he cannot be liable under

the Egual Pay Act ("EPA"),

(d), claim asserted in

count three because the plaintiff has not alleged and cannot

establish that he possessed authority or control over her compensation level. See Defendants' Memorandum at 3. Beaudoin

also asserts that recent decisions barring Title VII liability

for individual supervisors should apply with equal force to the

EPA. See i d . (citing Pommier v. James L. Edelstein Enterprises,

(N.D. 111. 1993)). The plaintiff responds that

discovery has revealed a dispute of fact concerning Beaudoin's

status as an employer and that the Title VII proscription on

individual liability is inapplicable to claims filed under the

EPA.

The Fair Labor Standards Act ("ELSA"), of which the EPA is

part, defines an "employer" as including:

any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.

(d) (1978). The term is broadly construed to

serve the act's remedial aims, see Bergstrom, slip op. 11 (citing

Donovan v. Agnew,

(1st Cir. 1983); McMaster

v. State of Minnesota,

(D. Minn. 1993)

(citing Nationwide M u t . Ins. Co. v. Darden, 112 S. C t . 1344, 1350

(1992)), a f f 'd ,

(8th Cir. 1994), cert. denied, 115 S.

C t . 1116 (1995)), and the statute contemplates that "[t]here may

be several simultaneous employers," Donovan,

(citing Falk v. Brennan,

(1973)); see also

10 Bureeronq v. Uvawas,

(C.D. Cal. 1996)

(noting "striking breadth" of FLSA definition of "employee").

The First Circuit has rejected a rigid definition of the

term "employer" for purposes of EPA liability in favor of a fact-

specific analysis of the "economic reality" of the purported

employer's status within the workplace. See Donovan,

; Blake v. CMB Construction, No. 90-388-M, slip op. at 19

(D.N.H. March 30, 1993) (citing Goldberg v. Whitaker House C o - o p ,

(1961); Donovan,

); see also

Secretary of Labor v. DeSisto,

(1st Cir. 1991)

(citing with approval but without comment Donovan v. Agnew

standard for employer liability). Under the economic reality

approach, courts examine, inter alia, the purported employer's

job description, financial interest in the workplace, involvement

in decisions affecting the plaintiff's employment terms,

conditions and compensation, and relative operational control in

the workplace. See United States Dept, of Labor v. Cole

Enterprises,

(6th Cir. 1995); Donovan,

; Blake, slip op. at 18-20; Debrecini v. Graf

Bros. Leasing, Inc., No. 85-3386-MA,

at * 3-4 (D.

Mass. Jan. 23, 1987), a f f 'd ,

(1st Cir. 1987), cert.

denied,

(1988). Although a defendant's shareholder

status and operational control of the institutional defendant

11 frequently are key indicia of employer status, see, e.g.. Cole

Enterprises,

, "[p]ersonal liability has been

found even against a corporate officer who lacks an ownership

interest in the corporation or who has minimal ownership

interest," Donovan,

(citing Donovan v. Sabine

Irrigation C o .,

(5th Cir. 1983), cert.

denied,

(1983); Userv v. Weiner Bros., Inc.,

(D. Conn. 1976)).

Title VII, a civil rights scheme which proscribes many of

the same discriminatory employment practices outlawed by the EPA,

also limits liability to "employers" but defines that term in

somewhat different language:

The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .

42 U.S.C. § 2000e(b). In recent years, courts sitting in this

district and, to a lesser extent, those sitting in other First

Circuit districts, have joined the majority of circuits by ruling

that supervisors may not be individually liable as employers

under this definition. See, e.g., Attardo v. Sullivan & Gregg,

P.A., No. 94-189-JD, slip op. at 1-2 (D.N.H. Jan. 9, 1996);

Bartholomew v. Delahave Group, Inc., No. 95-20-B, slip op. at IS­

IS (D.N.H. Nov. 8, 1995) (compiling authority); Hernandez v.

12 Medina Velez, No. 92-2701-JAF,

at * 5-7 (D.P.R.

July 20, 1994); see also Miller v. CBC Companies, Inc.,

(D.N.H. 1995) (recognizing Title VII ban on

individual liability in context of claim under Americans with

Disabilities Act ("ADA")). But see, e.g., lacampo v. Hasbro,

Inc., ___ F. Supp. ,

(D.R.I. June 6,

1996) (noting that "issue of individual liability for supervisory

employees under Title VII has divided circuit against circuit and

court against court"); Lamirande v. Resolution Trust Corp.,

(D.N.H. 1993). These courts have reasoned,

inter alia, that Congress included the "any agent" language in

the definition of employer merely to "remind[] courts of the

doctrine of respondeat superior." Bartholomew, slip op. at 14 -

15; accord Tomka v. Seiler Corp.,

(2d Cir.

1995) (citing cases). Several courts also have recognized that

individual liability under Title VII would be inconsistent with

Congress' explicit protection of small employers, see 42 U.S.C. §

2000e(b) (liability limited to employers with at least fifteen

employees), and the fact that Congress "calibrated the maximum

allowable damage award to the size of the employer" yet did not

address the nature and extent of individual liability. Tomka,

-15 (citing Miller v. Maxwell Int'l Inc.,

, 588 n.2 (9th Cir. 1993), cert. denied, 114 S. C t . 1049

13 (1994)). Finally, courts have employed the recent Title VII

decisions to bar individual liability in cases under the

Americans with Disabilities Act ("ADA"), e.g. Miller v. CBC

Companies,

; Ouiron v. L.N. Violette Co . ,

(D. Me. 1995), and under the Age Discrimina­

tion in Employment Act ("ADEA"), e.g.. Smith v. Lomax,

, 403 n.4 (11th Cir. 1995); Griswold v. New Madrid County

Group Practice,

(E.D. Mo. 1996);

Ouiron,

.

The First Circuit has not addressed the issue of individual

supervisor liability under Title VII. However, even assuming

that the circuit will in the future recognize the correctness of

the Title VII (and the ADA and ADEA) decisions, the court finds

that there is at present an inadeguate basis upon which to extend

the Title Vll-inspired proscription on individual liability to

cases filed under the EPA and its parent, the FLSA. First, the

circuit's prior adoption of the "economic reality" approach for

determining whether an individual is an employer under the EPA,

e.g., Donovan,

, necessarily assumes that

individual defendants may be liable in the first instance. The

proposed elimination of individual liability, however logical,

would offend this binding precedent.

14 Second, Beaudoin's reliance on Pommier v. James L. Edelstein

Enterprises,

(N.D. 111. 1993), a case where the

district court did interpret Title VII caselaw to bar individual

liability under the EPA, is not persuasive. The decision, which

was not appealed, is thinly reasoned and is based in part on the

erroneous conclusion that the "definition of the term 'employer'

within the context of the Equal Pay Act is identical to that used

within the statutory framework of Title VII."

. Moreover, to the court's knowledge the Pommier decison,

although more than three years old and published in the Federal

Supplement, has not been relied upon by other courts with respect

to the EPA individual liability ruling and, in fact, the decision

has been considered and rejected by at least one court in the

same district. See Whitman v. Regency Savs. Bank F.S.B., No. 95-

6343,

at * 1,

at * 1 (N.D. 111. Dec.

5, 1995, & Nov. 13, 1995) (after ordering plaintiff to brief

individual liability issue in light of Pommier, court ruled that

individual supervisor liability may attach under the EPA); see

also Freemon v. Folev,

(N.D. 111. 1995)

(rejecting Title VII analogy, court ruled that individual

liability may attach under the Family Medical Leave Act ("FMLA")

because FMLA definition of employer was identical to that used in

FLSA).

15 Third, the EPA and Title VII are distinct statutes which,

despite certain common goals, vary in scope, operation, and

statutory language. Specifically, the EPA definition of

"employer" is somewhat different from that applied in Title VII

cases. Compare

(d) (EPA liability for "any person

acting directly or indirectly in the interest of an employer")

with 42 U.S.C. § 2000e(b) (Title VII liability for "any agent of

such [an employer]"). Although the two phrases may be viewed as

functionally eguivalent, it is difficult to dismiss the variation

in language as mere semantics given that many of the Title VII

individual liability decisions place considerable weight on

Congress' word choice, see, e.g., Tomka,

, and

given that courts have extended the Title VII individual

liability proscription to ADA and ADEA cases at least in part

because each of these statutory schemes -- unlike the EPA --

"define[s] the term "employer" to include any of its "agent[s],"

Ouiron,

(citing ADEA,

(b) and ADA,

(5) (A) ) .6

6In Freemon v. Folev, the Northern District of Illinois ruled that an individual supervisor could be liable under the 1993 Family and Medical Leave Act ("FMLA") because the cases barring such liability under Title VII were inapposite:

[T]he definition of an "employer" under Title VII, the ADEA, and the ADA differs from that used in the FMLA. The former statutes define an employer as a person engaged in an industry affecting commerce who employs a certain number of people, "any agent of such person." In

16 In sum, the court finds that the current trend to eliminate

individual supervisor liability cannot at this time be extended

to the Equal Pay Act. Therefore, as an initial matter Beaudoin

properly is named as an individual defendant in his capacity as

the plaintiff's supervisor.

With respect to the merits of the EPA claim, the court finds

that the plaintiff has alleged sufficient facts and adduced

sufficient evidence to establish a triable issue concerning

Beaudoin's status as an employer. The complaint alleges that

Beaudoin exercised control in a gender-discriminatory fashion

over key terms of the plaintiff's employment, including matters

involving the scope of the plaintiff's responsibilities and her

position's status in the UNH public safety hierarchy. See

Complaint at 55 22-30. Beaudoin's operational control over the

plaintiff's employment responsibilities is evidenced, at least to

some degree, by his completion of her annual performance

contrast, the FMLA extends employer status to "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer. Rather than mirroring these discrimination statutes the FMLA tracks word for word the definition used in the Fair Labor Standards Act ("FLSA"). Thus, given the parallel between these two statutes, we look to the FLSA -- rather than [to Title VII, ADA, or the ADEA] to enlighten our interpretation of the term "employer."

(citations omitted) (emphasis supplied).

17 evaluations. See Plaintiff's Memorandum, Ex. D. Likewise, the

defendant's discovery responses, properly considered under Rule

56(c), indicate that Beaudoin possessed some degree of

discretionary authority over the terms of the plaintiff's

employment. For example, in her first set of interrogatories the

plaintiff asked

2. For the time period 1980 through the present, please state the name, address and job title of each person in the Division of Public Safety, University Police, safety Department and the Environmental Health & Safety Departments at University of New Hampshire and the University System of New Hampshire responsible for: . . . c) determining wages and salaries

Defendants' Memorandum, Attachment ("Plaintiff's First Set of

Interrogatories") at 2. With respect to the department of public

safety, the defendants responded:

c) Wage and salary ranges are not decided at the divisional or departmental level. Departments do, however, have some limited discretion within established pay ranges with respect to initial offers and annual salary adjustment (when available). When discretion was available, the following persons had this authority: . . . .

Roger W. Beaudoin, Interim Director (10/1/87 - 7/3/88) Janetos House, University of New Hampshire, Durham, NH

Id. at 3; see i d . at 4 (identifying Beaudoin as having limited

discretion over compensation matters with respect to university

police); see also i d . at 3, 4 (identifying Beaudoin as an

individual with authority to hire in public safety and university

police departments and acknowledging Beaudoin's "authority to

18 submit input" in position description matters in both

departments). Finally, although the plaintiff's claim against

Beaudoin is weakened by the fact that Beaudoin neither enjoyed

unfettered control over the plaintiff's pay scale nor possessed

an ownership interest in the institutional defendants, these are

not essential ingredients for individual supervisor liability

under the EPA.

The plaintiff's allegations and documentary evidence

concerning Beaudoin's actual role in the workplace, although not

particularly convincing, collectively establish a genuine dispute

of whether Beaudoin was the plaintiff's employer under the fact­

intensive economic reality test applied in this circuit.

Accordingly, the court denies Beaudoin's motion for summary

judgment on the federal Egual Pay Act claim alleged in count

three.

Conclusion

The court denies the defendants' motion for summary judgment

(document no. 17).

19 The court dismisses sua sponte the plaintiff's state law

claims under RSA § 354-A:7, V as set forth in counts one and two.

The clerk shall schedule a status report.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge June 21, 1996

cc: Edward W. Kaplan, Esquire Martha V. Gordon, Esquire

20