Hart v. Univ. Sys. of NH CV-94-369-SD 06/25/96 P UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Beverly Hart

v. Civil No. 94-369-SD

University System of New Hampshire; Plymouth State College

O R D E R

In this civil action, plaintiff Beverly Hart, former

department head of the Center for Women's Services at Plymouth

State College (PSC) , alleges that her employer discriminated

against her on the basis of sex by paying similarly situated male

employees a higher salary and by constructively discharging her

when she reguested that her salary and position be upgraded.

In a five-count complaint, plaintiff alleges violations of

federal discrimination law and state common law. Presently

before the court is a motion for partial summary judgment filed

by defendants University System of New Hampshire and PSC,

reguesting entry of judgment in their favor on Count II (Title IX

of the Education Amendments of 1972,

); Count IV

(retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et sea.); and Count V

(wrongful termination under state law). Plaintiff has filed an

assented-to motion to waive Counts II and V (document 12) and has

moved to amend the complaint (document 13) to reflect the removal

of these claims, among other things.1 Plaintiff has also filed

an objection limited to the issue of whether defendants are

entitled to partial summary judgment on Count IV, retaliation

under Title VII. Accordingly, the court will dedicate the

remainder of the instant order to the resolution of defendants'

motion as it relates to Count IV.

Background2

In 1982 Hart was hired to head the Center for Women's

Services ("the Women's Center"), which is a department within

PSC's Division of Student Affairs. The Women's Center's general

purpose is to address the needs of women on campus, to promote

awareness of issues relating to women, and to provide a general

support network for women faculty and students, particularly

1The court herewith grants plaintiff's motion to waive Counts II and V (document 12), without passing on the merits of defendants' motion for partial summary judgment in this respect.

2As this case comes before the court on a motion for partial summary judgment, the evidence is recited with a slant most friendly to the nonmoving party. Hart. The evidence will be supplemented when necessary in later sections of this order.

2 those experiencing the after-effects of a sexual assault. See

Deposition of Jill Jones at 15 (Exhibit C to Plaintiff's

Objection); Complaint 5 25.

Like male department heads within the division of student

affairs. Hart's responsibilities included program development,

staff supervision, and management of the department's budget.

See Deposition of Richard T. Hage (Vol. II) at 31-32 (Exhibit A-l

to Plaintiff's Objection). However, although male heads of other

departments were given the title of director. Hart was never

officially given such a title, nor did she receive a salary

commensurate with that of director. Another discrepancy is that

while the male department heads all worked at 100 percent-time.

Hart worked and was paid for, at most, 88 percent-time. See

Deposition of Diane Brandon at 37 (Exhibit D to Plaintiff's

Objection). In addition, other department heads were given

larger working budgets than Hart's, as well as greater numbers of

professional-level support staff. See Deposition of Beverly N.

Hart (Vol. II) at 94-96 (Exhibit G-2 to Plaintiff's Objection).

Hart made repeated reguests for more staffing, higher pay,

an increase in her percent-time, a larger program budget, and a

better location for the Center, which was situated in a basement

room, to her immediate supervisor, Richard Hage, Dean of Student

Affairs. See Hart Deposition (Vol. 1) at 14-16, 32-33, 46

3 (Exhibit G-l to Plaintiff's Objection); Hage Deposition (Vol. 1)

at 96, 107-08, 119-20, 144 (Exhibit A-l to Plaintiff's

Objection). Hage had the authority to institute budget,

staffing, and percent-time decisions. See Affidavit of Suz-Ann

Ring at 2 (Exhibit E to Plaintiff's Objection). However, he

denied her reguests.

Hart received an excellent work evaluation from Hage in or

about March of 1993. In a meeting held in April of that year.

Hart remarked to Hage something to the effect that "it was good

to know that all of the women in women's positions in programs

across the system were underpaid or that we were all classified

at the same low level. That was good." See Hart Deposition

(Vol. 1) at 60-61 (Exhibit G-l to Plaintiff's Objection). After

the meeting. Hart told Hage that the refusal to upgrade her

position was discriminatory. See Hart Deposition (Vol. II) at 7

(Exhibit G-2 to Plaintiff's Objection). Shortly thereafter, Hage

asked Hart to think about resigning due to what he described as

complaints he had received about her performance; Hage

subseguently reguested her resignation on May 17. See

Defendant's Memorandum in Support of Motion for Partial Summary

Judgment at 6-7; Hage Deposition at 33-34 (Exhibit A to

Defendant's Motion). Hart then spoke to Suz-Ann Ring,

Director of Personnel, who told her she could file an internal

4 complaint against Hage and receive a hearing but that she would

likely have to continue working with Hage. See Hart Deposition

at 67-68 (Exhibit C to Defendant's Motion). At the time. Hart

was aware that under PSC's personnel policies, she would have to

be placed under probation before she could be terminated. See

Hart Deposition (Vol. II) at 69-71 (Exhibit D to Defendant's

Motion). In the spring of 1993, Hage reduced the number of hours

Hart was to work from 88 percent-time to 75 percent-time.3 See

Hart Deposition (Vol. I) at 15 (Exhibit G-l to Plaintiff's

Objection); Ring Affidavit at 4. Hart subseguently submitted her

resignation, effective August 16. See Letter of Beverly N. Hart

(Exhibit B to Plaintiff's Objection).

On October 16, 1993, Hart filed a complaint with both the

New Hampshire Commission for Human Rights and the Egual

Employment Opportunity Commission (EEOC) charging that defendants

retaliated against her and discriminated against her on the basis

of sex. Complaint 5 16. The EEOC issued Hart a right-to-sue

letter on June 23, 1994. Id. 5 17. Hart filed the instant

action on July 13, 1994.

3Hart was initially hired at 83 percent-time; that is, she worked 83 percent of a normal work week and received corresponding pay. In 1986 or 1987 her percent-time increased to 88 percent. See Hart Deposition (Vol. I) at 14 (Exhibit G-l to Plaintiff's Objection).

5 Discussion

1. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman

v. Prudential Ins. Co. of Am.,

, 327 (1st Cir. 1996) .

Since the purpose of summary judgment is issue finding, not issue

determination, the court's function at this stage "'is not [] to

weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.'" Stone &

Michaud Ins., Inc. v. Bank Five for Savings,

(D.N.H. 1992) (guoting Anderson v. Liberty Lobby, Inc.,

(1986) ) .

When the non-moving party bears the burden of persuasion at

trial, to avoid summary judgment he must make a "showing

sufficient to establish the existence of [the] element[s]

essential to [his] case." Celotex Corp. v. Catrett,,

(1986). It is not sufficient to "'rest upon mere

allegation[s] or denials of his pleading.'" LeBlanc v. Great Am.

Ins. C o .,

(1st Cir. 1993) (guoting

), cert, denied, ___ U.S. ___ , 114 S. C t .

1398 (1994). Rather, to establish a trial-worthy issue, there

must be enough competent evidence "to enable a finding favorable

6 to the non-moving party." Id. at 842 (citations omitted).

In determining whether summary judgment is appropriate, the

court construes the evidence and draws all justifiable inferences

in the non-moving party's favor.

.

2. Constructive Discharge under Title VII

The sole issue presently before the court for review

concerns plaintiff's claim that defendants discharged her in

retaliation for her exercise of rights protected by Title VII.

See 42 U.S.C. § 2000e-3(a) (providing that it is an unlawful

employment practice for an employer to discriminate against an

employee because he has opposed a practice violative of the Act).

There being no direct evidence of defendants' retaliatory

animus, the parties' respective burdens of production are

governed by the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green,

(1973). Fennell v.

First Step Designs, Ltd.,

, ___ ,

(1st Cir. May 15, 1996). To establish a prima facie case of

retaliatory discharge under Title VII, Hart must make the

following showing: (1) she engaged in an activity protected by

Title VII; (2) she was actually or constructively discharged from

her employment; and (3) a causal connection existed between her

7 protected conduct and the discharge. Hoeppner v. Crotched

Mountain Rehabilitation Ctr.,

(1st Cir. 1994);

Ramos v. Roche Prods., Inc.,

(1st Cir.), cert.

denied.

(1991); 42 U.S.C. 2000e(3)(a). If a

plaintiff makes out a prima facie showing, the burden shifts to

the defendant to articulate a legitimate, nonretaliatory reason

for its employment decision. Fennell, supra,

,

(citing Mesnick v. General Elec. Co.,

(1st Cir. 1991), cert, denied,

(1992)). Once defendant has done so, plaintiff regains the

burden of production and must show that defendant's proffered

reason is a pretext and that the employment action was a result

of retaliatory animus. Id. (citing St. Mary's Honor Ctr. v.

Hicks,

(1993)).4

Defendants presently contest the second element of

plaintiff's prima facie case; that is, they contend that the

events leading up to Hart's departure from the Women's Center do

not support that she was discharged from her position,

constructively or otherwise. To establish a claim of

4Notably, although the McDonnell Douglas framework shifts the burden of production, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor C t ., supra,

(guotation omitted). constructive discharge, the evidence must support a finding that

"'the new working conditions would have been so difficult or

unpleasant that a reasonable person in the employee's shoes would

have felt compelled to resign.'" Greenberg v. Union Camp Corp.,

(1st Cir. 1995) (guoting Calhoun v. Acme Cleveland

Corp.,

(1st Cir. 1986) (further guotation

omitted)); Godfrey v. Perkin-Elmer Corp.,

(D.N.H. 1992). The applicable legal standard is objective,

reguiring an inguiry into the "reasonable state of mind" of the

person experiencing the new conditions.

(guotation omitted). Therefore, a claim for

constructive discharge cannot hinge on an unreasonable reaction

to one's work environment. Id.; Vega, supra, 3 F.3d at 481.

A plaintiff can legitimately be said to feel compelled to

resign under a number of scenarios. A constructive discharge may

occur when an employee's resignation resulted from new conditions

that were particularly humiliating or demeaning; for example, by

exposing him or her to ridicule in front of clients.

48 F.2d at 27 (citing Aviles-Martinez v. Monroig,

(1st Cir. 1992)). Likewise, a demotion or a reduction in

pay are also relevant considerations. See

(citing Goss v.

Exxon Office Sys. Co.,

(3d Cir. 1984)). The

First Circuit has also recognized that direct or circumstantial evidence of discriminatory animus can substantiate the intoler

able nature of one's working conditions.

at 28 (citing Acrev

v. American Sheep Indus.,

(10th Cir.

1992); Goss, supra,

).

Viewing the evidence in a light most favorable to Hart,

plaintiff has provided adeguate evidence to support several of

the factors applicable to the guestion of whether a constructive

discharge has occurred. For example, on at least two occasions

Hart's direct supervisor, Hage, either suggested she resign or

asked for her resignation. Compare Clowes v. Allegheny Valley

Hosp.,

(3d Cir. 1991) (finding no

constructive discharge in part because plaintiff "was never

threatened with discharge; nor did her employer ever urge or

suggest that she resign or retire"), cert, denied, ___ U.S. ,

114 S. C t . 441 (1993) with Downey v. Southern Natural Gas Co.,

(5th Cir. 1981) (holding that genuine issue of

material fact regarding constructive discharge was created where

superior specifically advised plaintiff that he "might" be

discharged). Moreover, despite giving Hart a previous

performance evaluation of excellent, which included plaintiff's

ability to cooperate and interact with others, Hage began to

confront her with complaints about her people-skills. See Acrev,

supra,

(jury's finding of constructive discharge

10 upheld in part because supervisor confronted plaintiff with list

of deficiencies in performance). Also, significantly, around

this time period, Hage reduced Hart's pay and time (from 88

percent-time to 75 percent-time).

In addition, plaintiff has provided circumstantial evidence

of discriminatory animus that is arguably adeguate to support a

finding of constructive discharge. For example, it is notable

that Hage's reguests for Hart's resignation and his reduction in

her pay and time followed shortly after Hart complained to Hage

about gender discrimination.5 See

950 F.2d at

defendants argue that Hage's reguest for Hart's resignation was based on nondiscriminatory reasons. For example, they name several people who were having difficulties with Hart and who complained to Hage, apparently prior to his suggestion that she resign. See Defendants' Reply Memorandum at 5. The court's review of this evidence leads it to conclude that a guestion of fact has been created, especially as Hage had received complaints about at least one other individual and apparently did not take the action of suggesting that she resign. See Deposition of Diane Brandon at 54-57 (Exhibit D to Plaintiff's Objection). Furthermore, defendants argue that Hage's decision to reduce Hart's pay was nonretaliatory because one other staff member in the division, Peter Otis, had his position entirely eliminated. However, it appears that Otis's position had been considered temporary, or "patched together", from its beginning and that Otis had not held his position for as many years as had Hart. See id. at 25-26. Defendants also argue, citing Brandon's testimony, that the reduction in Hart's position was part of a college-wide budget reduction in which approximately 30 staff members and positions were cut. See id. at 23 (Exhibit 5 to Defendants' Reply Memorandum). However, although the evidence again is sketchy, it appears that the reduction in Hart's salary, which occurred in the spring of 1993, occurred some time before the college-wide reduction, which was slated for 1994. Id. Finally, it is noteworthy that these decisions remained soundly

11 828 ("temporal proximity of an employee's protected activity to

an employer's adverse action" may be circumstantial evidence of

retaliation necessary for plaintiff to survive summary judgment).

Moreover, it also may be significant that Rage's discriminatory

conduct was continuous (more than one incident). C f . Clark v.

Marsh,

(D.C. Cir. 1981) (single instance of

nonpromotion not sufficient to sustain claim of constructive

discharge) .6

A final, and very important, consideration is whether Hart

took reasonable measures to correct or mitigate the unfavorable

situation she was in before tendering her resignation. "Even the

victim of unlawful discrimination is expected to seek legal

redress while still employed unless actually fired, or

constructively discharged due to a 'drastic reduction in the

guality of working conditions.'" Cazzola v. Codman & Shurtleff,

Inc.,

(1st Cir. 1994) (guoting Alicea Rosado v.

Garcia Santiago,

(1st Cir. 1977)). As the

evidence supports that Hart was constructively discharged, it

within Hage's discretion. Id. at 26-27 (Exhibit D to Plaintiff's Obj ection) .

6It also may be significant that Hart appears to have received unegual pay over a number of years. While working for years at unegual pay is not enough, by itself, to show that an employee has been constructively discharged, it nevertheless is a relevant consideration. Bourque v. Powell Electrical Mfg. Co., 617 F .2d 61, 66 (5th Cir. 1980).

12 therefore was unnecessary for her to pursue legal redress while

remaining in her job.

In a similar vein, other courts have concluded that a

constructive discharge usually has not occurred where the

employee first could have taken reasonable measures such as

following the internal grievance procedure available at the

workplace or filing a complaint with the EEOC before resigning.

See Ugalde v. W.A. McKenzie Asphalt Co.,

(5th

Cir. 1993); Woodward v. City of Worland,

(10th Cir. 1992) (police dispatcher who guit after experiencing

sexual harassment was not constructively discharged since she

failed to report the incident to management), cert, denied,

(1993). Of course, the availability of such procedures

will not nullify an employee's claim of constructive discharge if

the employee can show that following such avenue would have been

a futile exercise. See

(noting

tangentially that if employee could reasonably perceive that

lodging an internal complaint would have been futile,

constructive discharge may have occurred); cf.

n.6 (noting that filing an internal grievance is not

reguired in all cases). Part of the rationale behind these cases

is that "'society and the policies underlying Title VII will be

best served if, wherever possible, unlawful discrimination is

13 attacked within the context of existing employment

relationships.'" Boze v. Branstetter,

(5th

Cir. 1990) (quoting Bourque, supra note 6, 617 F.2d at 66

(citation and footnote omitted)).

Defendants' primary argument is that plaintiff's failure to

take full advantage of alternatives available to her short of

resignation such as filing an internal grievance undermines her

claim that she was constructively discharged. However, pursuing

an internal grievance procedure is not required in all cases,

especially where an employee has otherwise shown that his or her

working conditions are so intolerable that a reasonable person

would feel forced to resign. See

n.6.7 Indeed, an employee's failure to take full advantage of an

employer's grievance process is ordinarily given the most weight

when the employee has otherwise not shown the elements of a

constructive discharge. See, e.g., Boze, supra,

(rejecting claim of constructive discharge because, inter alia,

employee did not take full advantage of grievance process and

7In Clowes, the court went on to observe that because the plaintiff's complaints exclusively pertained to the actions of one supervisor, the court would heavily weight plaintiff's failure to seek a transfer.

This case is arguably distinguishable. While Hart's supervisor is similarly the focus of her complaint. Hart consulted with others, such as the personnel director and the general counsel, who arguably failed to quickly remediate her situation or to offer her an adequate position to which she could transfer.

14 because employer's alleged wrongdoing--discriminatory failure to

promote--does not in and of itself result in constructive

discharge). Here, as discussed above, the other factors support

that plaintiff's work conditions were so intolerable as to compel

her to resign, and therefore it is not devastating to plaintiff's

case that she did not pursue the grievance procedure available

within her employment. Moreover, as Hart argues, there is

sufficient evidence to support that such course would have been a

futile exercise. Hart admits that at the time Hage reguested her

resignation, she was aware that PSC's personnel policies would

have entitled her to file a grievance before being terminated.

See Hart Deposition (Vol. II) at 67. The Professional,

Administrative and Technical Staff Handbook (PAT handbook) sets

forth a procedural framework, including an appeals process, to be

used by employees dissatisfied with working conditions,

reprimands, terminations, or alleged discrimination. According

to Hart, however, the option of pursuing a grievance within her

workplace would have been an exercise in futility. What follows

is a review (in a light most favorable to Hart) of the evidence

relating to the futility issue.

Although Hart's immediate supervisor. Dean Hage, asked for

her resignation, he did not follow internal guidelines applicable

to involuntary terminations such as sending her a written notice

15 of her termination, affording her with a sufficient probationary

period in which she could have had a chance to resolve

deficiencies in her performance, and providing in writing a

reason for her termination.8 See Ring Affidavit at 4 (Exhibit E

to Plaintiff's Objection); PAT Handbook. Under the PAT Handbook,

a staff member may be given such opportunity prior to receiving

notice of termination, and Personnel Director Suz-Ann Ring

specifically instructed Hage to follow such procedures, but Hage

refused. See Ring Affidavit at 4; Hage Deposition (Vol. Ill) at

40 (Exhibit A-3 to Plaintiff's Reply Memorandum). Hage had made

up his mind that Hart should not continue working in her job.

See Ring Affidavit at 4; Hage Deposition at 40.

Hart further asserts that she did in fact take steps to

resolve the dispute internally, an alternative available under

the PAT Handbook. She spoke with the personnel director, who

told her that Hage had not followed her advice to follow company

policies and not ask for Hart's resignation. Hart Deposition

(Vol. II) at 66-67. Ring informed Hart that she could write up a

8The PAT handbook provides that termination may be initiated either (1) by the employee as a voluntary resignation or (2) by the institution as an involuntary termination. In cases of involuntary termination, the personnel office must be consulted and the employee must be given 90 days' written notice of the termination, which should include the reason for the termination, the effective date of the termination, the right to use the grievance procedure, and a deadline for filing a grievance.

16 complaint about Hage and have a hearing, but that, even if she

prevailed. Hart would have to continue working with Hage. Id. at

67. In addition. Hart and her attorney met with University

System counsel. Attorney Ron Rodgers, in an attempt to resolve

her complaints about Hage, but Rodgers' response was to suggest

that she file an internal grievance. Id. at 76.

Especially in light of the above-described conduct

supporting constructive discharge, Hage's conduct, including

ignoring the termination process set out in the PAT Handbook, not

providing Hart with a probationary period, and disregarding the

direction of the personnel director to follow such process, could

reasonably have been perceived as an attempt to circumvent the

formal grievance procedures and to pressure Hart to resign.

It is also significant that, when the evidence is examined

in a light favorable to Hart, Hage's decision to terminate her

appears to have been a foregone conclusion and that the personnel

director informed Hart that even if her grievance succeeded she

would still have to work with Hage and presumably be evaluated by

him. Defendants present no evidence that, other than returning

Hart to her job, the grievance procedure could have stopped

Hage's acts of discrimination. For example, there is no evidence

that Hage would have been disciplined or removed as her

supervisor should Hart have ultimately prevailed. Thus, at least

17 arguably, the grievance process could reasonably have been

perceived by Hart as a dead-end street leading her back to Hage,

who would only have renewed his efforts to fire her or continued

with his alleged pattern of discrimination. Moreover, although

Hart did not pursue the formal internal grievance procedure, it

is significant that rather than immediately leaving upon being

asked to resign, she made some informal attempts to keep her job.

Finally, the defendants' remaining argument, that plaintiff

should have pursued alternative employment within the college

system, does not succeed in persuading the court to find as a

matter of law that no constructive discharge has taken place.

Both Hage and Ring suggested to Hart that she find another

position in the college. See Hart Deposition (Vol. II) at 29,

67-69 (Exhibit E to Defendants' Motion for Partial Summary

Judgment). However, when asked by Hart "specifically what he had

in mind," Hage made suggestions but did not indicate he actually

knew of an opening. Id. at 29. Similarly, Ring, the personnel

director, had no specific suggestions of an alternative position.

Id. at 67-68.9 Nor did she indicate that a position would be

defendants point out that plaintiff indicated to Ring that she was not interested in pursuing alternative employment within the University System; however, the court finds that this statement, when viewed in context, may have been a reasonable response to Hage's and Ring's vagueness. This creates a fact issue.

18 created for Hart. Id. at 68. Although defendants' argument

would have significantly more merit if they could show either

that they actually offered plaintiff a semi-comparable position

within the college system, cf. Alicea Rosado, supra,

(employee transferred to position with less prestige than

original position was not constructively discharged unless he was

forced to endure a drastic reduction in the guality of his

working conditions) or that such position was at least available,

evidence of suggestions or negotiations regarding the possibility

of a transfer will not suffice as a matter of law to preclude

plaintiff's claim of constructive discharge, particularly where,

as here, other factors support a constructive discharge. At

best, the guestion created is a factual one that should be

decided by the trier of fact.

The court is loath to encourage employees to avoid internal

grievance procedures set up by their employers to resolve

workplace disputes. However, in this situation, where there is

sufficient evidence supporting that (1) such course would have

been a futile exercise, (2) plaintiff's immediate supervisor did

not follow company policy and thereby impeded plaintiff's ability

to take full advantage of the process, and (3) plaintiff may have

made a good-faith effort to resolve her complaints informally,

and where, most importantly, other factors strongly indicate a

19 constructive discharge has taken place, the court finds and rules

that the issue of whether a constructive discharge has occurred

is best left to the trier of fact. Accordingly, defendants'

motion for partial summary judgment is denied.10

Conclusion

For the foregoing reasons, the court grants plaintiff's

Assented-to Motion to Waive Certain Claims (document 12) and

hereby dismisses Counts II and V. The court denies defendants'

Motion for Partial Summary Judgment (document 8) as it relates to

Count IV and denies as moot the remainder of said motion.

Plaintiff's motion to amend the complaint (document 13) is

granted, such amended complaint to be docketed as of the date of

this order.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 25, 1996

cc: Eleanor H. MacLellan, Esg. Martha V. Gordon, Esg.

10In light of plaintiff's waiver of certain claims and the court's denial of defendants' motion for partial summary judgment, the court herewith grants plaintiff's motion to amend (document 13). Such amended complaint shall be docketed as of the date of this order.

20