Conto v. Concord Hospital, Inc. CV-99-166-JD 09/10/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carol Conto

v. Civil No. 99-166-JD

Concord Hospital, Inc.

O R D E R

Background

Carol Conto filed suit against her former employer. Concord

Hospital, alleging sexual harassment, gender discrimination, age

discrimination, and assault and battery. The sexual harassment

and assault and battery claims stem from alleged conduct that

occurred during her employment, while the gender and age

discrimination claims are based on Concord Hospital's termination

of Conto's employment. Concord Hospital moves to dismiss all

claims under Federal Rule of Civil Procedure 12(b)(6). Conto

obj ects.

Standard of Review

The defendant. Concord Hospital, moves to dismiss pursuant

to Rule 12(b)(6). Because Concord Hospital filed an answer on

the same day it filed this motion, the pleadings are closed and

the court will treat Concord Hospital's motion to dismiss as a

motion for judgment on the pleadings. See Fed. R. Civ. P. 12(c). The standard for evaluating a Rule 1 2 (c) motion is essentially

the same as the standard for evaluating a 12(b)(6) motion. See

Prever v. Dartmouth College,

(D.N.H. 1997).

"In both cases, the court's inguiry is a limited one, focusing

not on 'whether a plaintiff will ultimately prevail but whether

[he or she] is entitled to offer evidence to support the

claims.'" I d . (guoting Scheuer v. Rhodes,

(1974). "[I]he court must accept all of the factual averments

contained in the complaint as true, and draw every reasonable

inference in favor of the plaintiffs." I d . (citing Garita Hotel

Ltd. Partnership v. Ponce Fed. Bank,

(1st Cir.

1992) (Rule 12(b)(6)); Santiago de Castro v. Morales Medina,

(1st Cir. 1991) (Rule 12(c))). "[T]he court may

not enter judgment on the pleadings unless it appears 'beyond

doubt that the plaintiff can prove no set of facts in support of

his or her claim which would entitle him or her to relief.'"

(guoting Santiago de Castro,

) .

Discussion

A. Count I - Sexual Harassment

1. Sufficiency of Claim

Under Title VII, it is unlawful for an employer "to

discharge any individual, or otherwise to discriminate against

2 any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin." 42

U.S.C.A. § 2000e-2(a). Sexual harassment constitutes unlawful

discrimination on the basis of sex under Title VII. See Meritor

Sav. Bank v. Vinson,

(1986); Provencher v. CVS

Pharmacy,

, 13 (1st Cir. 1998) .

Sexual harassment in the workplace has traditionally been

analyzed under one of two rubrics, guid pro guo harassment or

hostile work environment. See Wills v. Brown University,

(1st Cir. 1999). The Supreme Court altered this

framework somewhat with its recent opinions in Burlington

Industries, Inc. v. Ellerth,

(1998), and Faraaher v.

Citv of Boca Raton,

(1998). The Court characterized

guid pro guo as harassment that results in a tangible employment

action, and hostile work environment as harassment that precedes,

or does not result in, a tangible employment action.1 See

Burlington,

. Hostile work environment "reguires

a showing of severe or pervasive conduct," such that it

X"A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington,

.

3 constitutes a change in the terms and conditions of employment.

Id.; see also Meritor,

. The phrase "terms and

conditions of employment" is not limited to the meaning of these

words in a contractual sense, and may apply where an abusive

working environment is created. See Faraqher, 524 U.S. at 786

(citing Oncale v. Sundowner Offshore Servs., Inc.,

(1998)). The work environment must be "both objectively and

subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive

to be so." Faraqher, 524 U.S. at 775 (citing Harris v. Forklift

Svs., Inc.,

(1993)). In deciding whether

harassment is actionable under Title VII, the court must consider

the totality of the circumstances, including the "freguency of

the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance." I d . at 787-88 (guoting Harris,

); see also Brown v. Hot, Sexy and Safer Prods., Inc.,

(1st Cir. 1995) (applying Title VII analysis to

Title IX case) .

Conto alleges that "during her 4 ^ years as an employee in

the Security Department, she was regularly subjected to

disgusting and offensive language, including swear words, and

4 words sexual in nature, offensive body language and hand

gestures, and disgusting jokes of an obscene and sexual

orientation." She also describes several specific instances of

conduct committed by her coworkers and a supervisor. She claims

that a coworker pulled her against him by grabbing her pants;

coworkers asked her about her sex life; a coworker rubbed her

lower leg; and her coworkers and a supervisor slapped her

buttocks. She says that her supervisors were aware of this

behavior and that one of them participated in it. Conto says

that these incidents created an ongoing hostile work

environment.2 The court can infer, assuming these facts are

true, that Conto experienced severe or pervasive conduct that

created an abusive working environment. Therefore, Conto's

allegations satisfy the minimal pleading reguirements to state a

Title VII claim based on hostile work environment.

An employer can be held liable for sexual harassment of an

employee by her coworkers if the employer knew or should have

known of the harassment's occurrence, unless the employer took

appropriate steps to halt the harassment. See Lipsett v.

University of Puerto Rico,

(1st Cir. 1988)

2Conto's allegations appear in nearly identical form in both the EEOC charge and her amended complaint. Therefore, Concord Hospital's argument that Conto attempts now to raise a claim that she did not raise in her EEOC charge is unfounded.

5 (Title IX context);

(d). When a supervisor

harasses a subordinate, an employer can be held vicariously

liable even without knowledge of the harassment.3 See

Burlington,

; Faraaher, 524 U.S. at 807.

Conto alleges that she complained to her supervisors of the

harassment. Whether she complained to the appropriate

individuals and what steps the employer did or did not take to

address the problem are issues beyond the scope of a 1 2 (c)

motion. Conto has alleged sufficient facts to survive a motion

for judgment on the pleadings.

2. Timeliness of Filing

Title VII obligates a plaintiff to exhaust administrative

remedies before filing suit in federal court. See 42 U.S.C.A. §

2000e-5; Lawton v. State M u t . Life Assurance Co. of A m . ,

(1st Cir. 1996). Federal law reguires a complainant to

file a charge with the Egual Employment Opportunity Commission

("EEOC") within 180 days of the discriminatory act, unless the

complainant can file with an authorized state agency, in which

case the deadline may be extended to 300 days. See 42 U.S.C.A. §

3When no tangible employment action occurs as a result of the harassment, the employer may raise an affirmative defense. See Burlington,

; Faraaher, 524 U.S. at 807-08.

6 2000e-5(e)(1); EEOC v. Commercial Office Prods. Co . , 48

, 110 (1988); Provencher v. CVS Pharmacy,

, 13 (1st

Cir. 1998).

New Hampshire's authorized fair employment practices agency,

the New Hampshire Commission for Human Rights ("NHCHR"),

exercises concurrent jurisdiction with the EEOC over certain

employment discrimination claims, thereby triggering application

of the 300-day rule for timeliness of filing these claims. See

Bergstrom v. University of New Hampshire,

(D.N.H. 1996). However, the NHCHR claimed lack of subject matter

jurisdiction over Conto's claim because Concord Hospital is a

not-for-profit organization.4 See N.H. Rev. Stat. Ann. § ("RSA")

354-A:2, VII. "When a state has an authorized agency, but the

state agency lacks subject matter jurisdiction to consider a

claim brought in a complaint, the state agency is treated, for

that claim, as if no agency existed, and the 180-day rule

4While the court may not generally consider documents outside the pleadings under a 1 2 (c) analysis, exceptions may be made for documents attached to the complaint and for official public records or documents whose authenticity is not disputed by the parties. See Prever,

n.3; Watterson v. Page,

(1st Cir. 1993) . The court considers Conto's charge to the EEOC, as well as correspondence from the NHCHR and the EEOC to Conto, under these exceptions.

7 applies."5 Russell v. Easter Seals Soc'v of New Hampshire, Inc.,

, at *2 (D.N.H. Dec. 10, 1997) (citations omitted).

The question remains as to whether, for purposes of the

timeliness requirement, a state aqency can receive a charqe as an

aqent of the EEOC even if the state aqency itself lacks

jurisdiction over the charqe. See Russell,

, at

*2; Silva v. Universidad de Puerto Rico, 84

(D.P.R. 1994).

The answer depends on the content of the work-sharinq

aqreement between the EEOC and the state aqency. See Silva, 849

F. Supp. at 831-32. In the past, the NHCHR and the EEOC have

entered into work-sharinq aqreements that authorize each aqency

to serve as the other's aqent for the purposes of receivinq

charqes and determininq timeliness of filinq. See, e.g., Madison

v. St. Joseph H o s p .,

(D.N.H. 1996)

(discussinq 1994 work-sharinq aqreement); Bergstrom, 959 F. Supp.

51he relevant requlation reads: A jurisdiction havinq a FEP [fair employment practices] aqency without subject matter jurisdiction over a charqe (e.g., an agency which does not cover sex discrimination or does not cover nonprofit organizations) is equivalent to a jurisdiction having no FEP agency. Charges over which a FEP agency has no subject matter jurisdiction are filed with the Commission upon receipt and are timely filed if received by the Commission within 180 days from the date of the alleged violation.

(a) (2) . at 59 (discussing 1993 work-sharing agreement). A work-sharing

agreement can permit a state agency to act as the EEOC's agent

even when the state agency lacks subject matter jurisdiction.

See, e.g., Silva, 849 F. Supp. at 831 (interpreting work-sharing

agreement between EEOC and Puerto Rico). Concord Hospital failed

to file a copy of the work-sharing agreement in effect in

September of 1998, when Conto filed her charge with the NHCHR,

and therefore has not shown that Conto's filing with the NHCHR

did not constitute a filing with the EEOC.

Conto filed a charge with the NHCHR within 180 days of the

termination of her employment.6 As discussed above, Conto

alleges that she was sexually harassed for the duration of her

employment. Applying the theory of serial violation, the court

can infer from the facts alleged that Conto suffered a chain of

discriminatory acts, all arising from the same discriminatory

animus, at least some of which occurred during the statute of

limitations period for filing an EEOC charge. See Provencher,

145 F.3d at 14. Because Conto filed her charge with the NHCHR

within 180 days of her last day of work, and because this filing

6Conto was terminated from her employment with Concord Hospital on March 12, 1998. On September 4, 1998, she filed a charge with the NHCHR, which then forwarded her charge to the EEOC. The EEOC notified Conto of its receipt of the charge on September 30, 1998. could have constituted a dual filing with the EEOC, Concord

Hospital has not shown that it is entitled to judgment on the

pleadings for lack of timeliness.

B. Counts II and III - Discrimination Based on Gender and Age

Title VII provides that "[i]t shall be an unlawful

employment practice for an employer . . . to discharge any

individual . . . because of such individual's sex." 42 U.S.C.A.

§ 2000e-2(a)(1). Similarly, the Age Discrimination in Employment

Act ("ADEA") forbids an employer "to discharge any individual

. . . because of such individual's age."

(a) (1) .

Conto alleges that Concord Hospital discriminated against

her on the bases of gender and age when it fired her. In support

of her claim, Conto alleges that she was one of a few women

employed as a security guard at the hospital, and the only one

who worked full-time. At 58, she was the oldest woman working in

security, and was treated differently from the younger employees.

In over four years working as a security guard she received no

written disciplinary reports until a new director of hospital

security was hired, after which she received three reports in

guick succession and was subseguently fired. She was unaware of

other employees receiving disciplinary reports. Conto's

10 coworkers told her they did not want to work with someone old or

with a woman who could not do the job.

Under the minimal pleading requirements applicable at this

stage of litigation, Conto's allegations survive a motion for

judgment on the pleadings.7

C. Count IV - Assault and Battery

Conto alleges that the physical portion of the sexual

harassment she endured constitutes common law assault and

battery. Concord Hospital argues that this claim is barred by

New Hampshire's worker's compensation statute.

This court has repeatedly and consistently ruled that claims

of intentional tort against an employer are barred by the

exclusivity provision of the New Hampshire worker's compensation

statute, RSA 281-A:8, I. See, e.g., Holland v. Chubb Am. Serv.

Corp.,

(D.N.H. 1996); Miller v. CBC C o s .,

Inc.,

(D.N.H. 1995). The statute allows

71he court notes that it does not apply the familiar McDonnell Douglas burden-shifting framework for the purpose of deciding this motion for judgment on the pleadings, as that process is more appropriate for addressing a motion for summary judgment. See McDonnell Douglas Corp. v. Green,

92, 802-05 (1973); Byrd v. Ronayne,

(1st Cir. 1995) (applying framework to gender discrimination); Alvarez- Fonseca v. Pepsi Cola of Puerto Rico,

(1st Cir. 1998) (applying framework to age discrimination).

11 plaintiffs to proceed with claims of intentional tort against

other employees, but not against an employer. See RSA 281-A:8,

I. Therefore, Conto's claim against Concord Hospital for assault

and battery is barred by the statute.

Conclusion

For the foregoing reasons, the court treats Concord

Hospital's motion to dismiss (document no. 16) as a motion for

judgment on the pleadings. The motion is granted with respect to

Count IV, assault and battery, and is otherwise denied.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

November 10, 1999

cc: Charles A. Russell, Esguire Kathleen C. Peahl, Esguire

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