Coulstring v . Topic of the Town CV-96-192-SD 02/11/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Terry Coulstring; Loucinda Williams

v. Civil No. 96-192-SD Topic of the Town Restaurant

O R D E R

Before the court are the issues raised by certain pretrial

motions.

1. Background

These are civil rights actions brought pursuant to Title

VII, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of

1991, 42 U.S.C. § 1981a. At relevant times, plaintiffs Terry

Coulstring and Loucinda Williams were waitress employees of the

defendant Topic of the Town Restaurant. Located in Littleton,

New Hampshire, defendant Restaurant is a sole proprietorship

owned by Doris Fekay.

Plaintiff Williams alleges that she was sexually harassed by

a restaurant patron and that the defendant failed to take the

necessary steps to prevent such harassment. Williams accordingly

lodged a complaint with the New Hampshire Commission for Human Rights. She further contends that she was discharged from her

employment with defendant in retaliation for the filing of such

complaint. Plaintiff Coulstring contends that she assisted Williams with her sexual harassment complaint and that she in turn was discharged in retaliation for such assistance.1

2. Defendant’s Motion to Exclude Evidence of Emotional Distress, documents 1 8 , 192

Defendant moves to exclude from trial all testimony in evidence relating to the claims of plaintiffs Williams and Coulstring which seek recovery for emotional distress damages. Plaintiffs object. Document 3 0 .

Pointing to the right to recover, inter alia, “emotional distress” damages under the Civil Rights Act, 42 U.S.C. § 1981a(a)(1) and (b)(3), De Novellis v . Shalala,

(1st Cir. 1997), and invoking the Supremacy Clause,3 plaintiffs

1 Simply put, plaintiff Williams seeks to recover for both sexual harassment and retaliation, while the claim of plaintiff Coulstring is limited to retaliation. 2 Document 18 is the motion which seeks to dismiss the emotional distress claims of plaintiff Williams. Document 19 seeks the same relief as against plaintiff Coulstring. 3 “This Constitution. and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to

2 urge that their federal right of recovery for emotional distress

cannot be here abrogated by the exclusivity provisions of the New

Hampshire Workers’ Compensation Act, Revised Statutes Annotated

(RSA) chapter 281A:8. Review by the court of the authorities

upon which plaintiffs rely satisfies the court that their

position is correct.

In Miller v . CBC Companies, Inc.,

(D.N.H. 1995), here relied on by defendant, the issues now before

the court were not raised and were therefore not in

consideration. Miller is accordingly distinguishable from the

circumstances of the instant cases, and does not support the

position of the defendant. The Circuit authority cited by

plaintiffs is clear to the effect that state workers’

compensation laws may not be invoked to bar federally created

civil rights of recovery. Karcher v . Emerson Elec. Co.,

(8th Cir. 1996), cert. denied, ___ U.S. ___, 117 S . Ct.

1692, 1693 (1997); McClary v . O’Hare,

, 85 (2d Cir.

1986). Accordingly, the defendant’s motion must be denied.

the Contrary notwithstanding.” U . S . CONST. art. V I , c l . 2 . 3 3. Plaintiffs’ Motion in Limine to Exclude Certain Evidence and Argument Regarding Plaintiffs’ Terminations, document 23 The thrust of this motion is that defendants should be barred from claiming that poor job performances by plaintiffs, coupled with their search for employment elsewhere, were adequate reasons for termination of the plaintiffs’ employment. But the authorities cited4 are not concerned with the exclusion of evidence, but rather with the failure of defendant employers to meet the required burden of proof. Of course, if defendant fails in its burden of proof that it articulate a legitimate, nondiscriminatory reason for termination of plaintiffs’

employment, then the plaintiffs may well have proven their case. But defendant is entitled to make the attempt to sustain its burden of proof.

Accordingly, the motion in limine must be denied.

4. Plaintiffs’ Motion in Limine to Exclude Certain Defenses Not

Affirmatively Pled, document 24

Plaintiffs contend that defendant should be barred from

attempting to claim that defendant took immediate and adequate

steps to address plaintiff Williams’ complaint of harassment.

4 See Rowlett v . Anheuser Busch, Inc.,

(1st Cir. 1987); Broderick v . Ruder,

(D.D.C. 1988); Delgado v . Lehman,

(E.D. Va. 1987).

4 Citing the Opinion of Justice Brennan in Price Waterhouse v .

Hopkins,

(1989), 5 the plaintiffs argue that

such defense is an affirmative defense that must be pleaded

pursuant to Rule 8 ( c ) , Fed. R. Civ. P.6 The defendant objects.

Document 3 3 .

Defendant contends that its denial of plaintiffs’

allegations that it failed to take meaningful or affirmative

action to stop the harassment was sufficient to state a defense

in this action against which plaintiffs cannot claim surprise.

The court agrees.

This is not a case of undue delay by defendant in disputing

plaintiffs’ assertion such as to substantially change the theory

on which the case has been proceeding and proposed so late that

plaintiff would be required to engage in significant new

preparation. See Wolf v . Reliance Standard Ins. Co.,

(1st Cir. 1995). Rather, it is a case where, upon

examination of the totality of the circumstances and the making

of a practical, commonsense assessment as to whether surprise and

5 “[T]he employer’s burden is most appropriately deemed an affirmative defense: The plaintiff must persuade the factfinder on one point, and then the employer, if it wishes to prevail, must persuade it on another.” 6 Rule 8 ( c ) , Fed. R. Civ. P., sets forth a catalog of specific pleadings termed affirmative defenses and concludes with the catch-all, “and any other matter constituting an avoidance or affirmative defense.”

5 unfair prejudice are involved, Williams v . Ashland Eng’g Co.,

(1st Cir.), cert. denied,

(1995), the

court finds that plaintiffs are neither surprised nor unable to

oppose the claimed defense here raised. Accordingly, the motion

must be denied.

5. Defendant’s Request for Limiting Instruction, document 32

Plaintiff Williams apparently has been deposed and has

testified to certain alleged hostile environment sexual

harassment which occurred both before and after November 2 1 ,

1991. As it is clear that the jury may consider for damage

purposes only conduct occurring after November 2 1 , 1991, Landgraf

v . USI Film Products,

(1994); Morrison v . Carleton

Woolen Mills, Inc.,

(1st Cir. 1997), defendant

has moved for a limiting instruction to the jury to the effect

that they may only consider for damage purposes alleged conduct

that occurred after November 2 1 , 1991.

The motion, to which no written objection has been

interposed, is granted, and the court will grant a limiting

instruction concerning the jury’s duties relative to conduct

before and after November 2 1 , 1991.

6 6. Defendant’s Objection to Plaintiff’s Witness Lorna Marden,

document 35

Plaintiffs have listed as a witness Lorna Marden of

Littleton, New Hampshire. Defendant contends that M s . Marden is

employed as an investigator by the New Hampshire Commission for

Human Rights and has not been disclosed as an expert witness. Accordingly, defendant moves to exclude testimony from M s .

Marden.

The record indicates that M s . Marden was the landlord of

plaintiff Coulstring and was the person whom Coulstring contacted

for information regarding the filing of a complaint with the New

Hampshire Human Rights Commission. It is unclear whether Marden

is scheduled to testify to more than this simple fact.

The court concurs with defendant that conclusory lay

opinion testimony on the ultimate issue of whether discrimination occurred should be excluded. Alexis v . McDonald’s Restaurants of

Mass.,

(1st Cir. 1995). Accordingly, the

motion, to which no objection has been interposed, is granted,

and any testimony by M s . Marden will be limited to such as

supports Coulstring’s contention that Marden merely directed her

as to how to proceed with a discrimination complaint.

7 7. Conclusion For the reasons hereinabove outlined, the court has denied defendant’s motions to exclude evidence of emotional distress (documents 1 8 , 1 9 ) ; denied plaintiffs’ motion in limine to exclude certain evidence and arguments regarding plaintiffs’ terminations (document 2 3 ) ; denied plaintiffs’ motion in limine to exclude certain defenses not affirmatively pled (document 2 4 ) ; granted defendant’s request for limiting instruction (document 3 2 ) ; and granted defendant’s motion to exclude certain conclusory testimony by the lay witness Lorna Marden (document 3 5 ) . The case now appears to be in order to proceed to trial as scheduled at 9:30 a.m. on Tuesday, February 1 7 , 1998.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

February 1 1 , 1998

cc: Eleanor H . MacLellan, Esq. Michael R. Callahan, Esq.

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