Roderick v . NH Hospital, et a l . CV-98-543-M 01/28/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sherry Roderick, Plaintiff

v. Civil N o . 98-543-M Opinion N o .

New Hampshire Hospital and Paul G. Gorman, Defendants

O R D E R

Plaintiff Sherry Roderick (formerly Sherry Davis) brought

this action against defendants New Hampshire State Hospital (the

“hospital”) and Paul G. Gorman, the hospital’s Superintendent,

alleging that she was sexually harassed by a co-worker while

employed at the hospital. Plaintiff says that either or both of

the defendants are liable under

and Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for

failing to prevent the harassment, failing to timely investigate

her sexual harassment complaint, and retaliating against her for

making the complaint. Plaintiff’s complaint also asserts a

number of state-law claims against the hospital. Defendants moved for summary judgment on all of plaintiff’s

claims, to which plaintiff objected. For the reasons that

follow, defendants’ motion is granted in part and denied in part.

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). When 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.” Griggs-Ryan v .

Smith,

(1st Cir. 1990).

The moving party “bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v . Catrett,

(1986). If the

moving party carries its burden, the burden shifts to the

2 nonmoving party to demonstrate, with regard to each issue on

which it has the burden of proof, that a trier of fact could

reasonably find in its favor. DeNovellis v . Shalala,

(1st Cir. 1997).

At this stage, the nonmoving party “may not rest upon mere

allegations or denials of [the movant’s] pleading, but must set

forth specific facts showing that there is a genuine issue” of

material fact as to each issue upon which he or she would bear

the ultimate burden of proof at trial.

(quoting Anderson v .

Liberty Lobby, Inc.,

(1986)). In this context,

“a fact is ‘material’ if it potentially affects the outcome of

the suit and a dispute over it is ‘genuine’ if the parties’

positions on the issue are supported by conflicting evidence.”

Intern’l Ass’n of Machinists and Aerospace Workers v . Winship

Green Nursing Center,

(1st Cir. 1996)

(citations omitted).

Background

3 The following facts are either undisputed or presented in

the light most favorable to plaintiff. The hospital hired

plaintiff as a mental health worker trainee on February 2 4 , 1995.

Plaintiff worked the overnight shift on the hospital’s Acute

Psychiatric Unit (“APU”). Plaintiff met Nick Metalious, a

hospital employee who usually worked at the Transitional Housing

Unit, on August 1 3 , 1995, while Metalious was filling in on the

APU.

Metalious worked on the APU again the next night and, at his

request, plaintiff joined him on a patio by the cafeteria during

her break. As they talked, Metalious introduced the topic of

pornographic movies. Plaintiff attempted to steer the

conversation to a different subject. Metalious kissed plaintiff,

touched her breast, and attempted to remove her shirt. Plaintiff

told Metalious that his conduct was inappropriate and directed

him to stop.

Metalious then walked over to the patio fence and, telling

plaintiff he wanted to show her something, asked her to join him.

Thinking that Metalious was going to point out his new vehicle in

4 the parking lot, a topic they had been discussing, plaintiff

complied. Instead, Metalious exposed and forced plaintiff to

touch his genitals. Plaintiff pushed Metalious away, told him he

should return to his wife, and went back to work.

Approximately half an hour later, Metalious gave plaintiff a

handwritten note with his address and phone number on it. 1 The

note said “‘When you are ready to keep up with the Big Boy I will

give you directions. (Ha Ha) Throw away after reading.’”

(Compl. at ¶ 1 0 ) . Plaintiff reported Metalious’ conduct to

hospital security and Human Resources Administrator Marie Lang

that same day.

The hospital began an investigation immediately, obtaining

written statements from plaintiff and Metalious within twenty-

four hours of the alleged incident. Hospital investigators

interviewed plaintiff on August 1 7 , 1995, and obtained statements

1 This account is described in plaintiff’s complaint. The report of the hospital investigators’ interview of plaintiff indicates that at that time she stated Metalious had given her the note the previous day. The discrepancy is not material and defendants have, for purposes of summary judgment only, presumed that the account of the August 14 incident alleged in plaintiff’s complaint is accurate.

5 from other individuals over the ensuing weeks. By letter dated

August 2 1 , 1995, James P. Fredyma, Assistant Commissioner of the

New Hampshire Department of Health and Human Services, confirmed

receipt of plaintiff’s harassment complaint and informed

plaintiff, inter alia, that she could not be retaliated against

for making a complaint. Fredyma also told plaintiff to call the

police if Metalious bothered her at home and to contact him, or

either of the two investigators he had appointed to the case, if

she suffered retaliation by Metalious or other co-workers.

On October 1 3 , 1995, the hospital put Metalious on paid

administrative leave pending resolution of the complaint against

him. Sometime prior to November 8 , 1995, the hospital concluded

its investigation. A confidential written report summarized the

investigative findings as follows:

There exists a preponderance of evidence that the respondent has behaved inappropriately in the work environment and has violated the State’s Policy on Sexual Harassment. The respondent, on more than one occasion, has engaged female staff in sexually related conversation; has asked personal questions related to female staff sex life; and has shared information about his sex life. There does not exist a preponderance of evidence to substantiate other allegations made by the complainant.

6 It appears that both the complainant and the respondent mutually agreed to certain behaviors that were sexual in nature. State Police found there to be no assaultive or sexually assaultive behavior. The respondent stopped when the complainant told him n o . Although there is no basis for civil or criminal charges, the respondent’s behavior in this allegation as well as other incidents is not acceptable in the work environment.

(Ex. B to Lang Aff.)

By letters dated November 8 , 1995, Fredyma informed

plaintiff and Metalious of the investigation’s conclusion. Both

were told that Fredyma would recommend to Acting Director Sudders

that Metalious be formally disciplined. In addition, Fredyma’s

letter to plaintiff stated the following:

During the course o[f] the investigation into your complaint you disclosed that you participated in some behaviors that were not appropriate in the work environment. I will recommend to Acting Director Sudders that you be scheduled to attend another presentation regarding professional behaviors in the workplace. Clearly understand that my intent toward you is not punitive. It is my intent that all staff learn appropriate workplace behaviors and conduct themselves accordingly.

(Ex. D to Lang Aff.)

On November 1 5 , 1995, Metalious was issued a letter of

warning under the Division of Personnel’s rules and regulations,

7 Per 1001.08(b), for violating the State’s sexual harassment

policy. As this was the second warning letter he had received in

a two year period, it also served to terminate his employment at

the hospital. The first warning, issued on October 1 0 , 1995,

charged him with willful insubordination for discussing personal

issues with other employees during working hours, despite having

been previously reprimanded for such conduct. Metalious had also

been issued a letter of warning on July 3 , 1995, under Per

1001.03, for calling a female patient a bitch.

Two other incidents in Metalious’ employment history should

be noted. First, Metalious stated on his application for

employment at the hospital that he had no criminal convictions

that had not been annulled by a court. In conducting a criminal

background check, the hospital discovered a possible juvenile

matter and a possible misdemeanor charge or conviction that

involved serving alcohol to minor females and temporarily barring

their exit from his apartment. It was unclear, however, whether

the record had been expunged or whether it should have been

considered reportable. In light of the circumstances, and

8 Metalious’ forthright response to questioning about the matter,

the hospital chose to continue his employment.

The other incident involved a possible personal relationship

between Metalious and a female employee, and their having engaged

in consensual sexual activity at work. Although no formal staff

or patient complaint was made, and reports of the incident were

never substantiated, the Director of Transitional Housing

counseled both Metalious and the female employee that the

hospital would not tolerate such behavior and that it could lead

to disciplinary action. Metalious and the woman stopped working

together, and that matter was apparently resolved.

Plaintiff’s own work history is also at issue in this case.

On August 1 6 , 1995, plaintiff was given a letter of warning under

Per 1001.03 for a substantiated incident of Class II Abuse. The

incident involved plaintiff falling asleep or closing her eyes

while on Level I constant observation of a suicidal patient. On

November 2 , 1995, plaintiff was charged with Class I Abuse of a

patient and put on paid administrative leave pending completion

of an investigation into the matter. The abuse charge related to

9 plaintiff allegedly having become involved in a plan in which she

would receive money from a patient to buy Christmas presents for

the patient’s nieces, plus additional money to buy presents for

her own (i.e., plaintiff’s) children.

The complaint investigator’s final report, dated November 8 ,

1995, concluded that the complaint of patient abuse was

unsubstantiated. The report stated, in part:

There is no way of proving Sherry’s collaboration, if any, in attempting to obtain a considerable sum of money from [patient]. There was almost certainly no malice involved on either side. Both parties claim to have been motivated by pure good will toward the other. Both parties exhibited remarkably poor judgment. Unfortunately for Sherry Davis, [the patient] behaved more responsibly in the end, expressing her misgivings to appropriate staff members. Had Sherry Davis reported her interactions with [patient] to the nursing supervisor in a timely manner, this situation would not have arisen. Although Sherry states that it was her intention to ask “someone” about this matter, the fact is that she did not do so until after her suspension. Her claim that she was simply following instructions to “go along with” anything said by a patient suffering from borderline personality disorder shows that her understanding of her duties and responsibilities was severely limited. Part of this may be attributed to the fact that she is a relatively new employee, and admittedly naive, but her personnel record shows that she received training and evaluation in New Hampshire Hospital’s policy regarding interpersonal boundaries[.] The fact remains that Sherry Davis did not ask for

10 guidance under circumstances that should have alerted her to the probability of serious trouble.

Patient abuse is not substantiated, however Sherry Davis did violate hospital policy and used exceedingly poor judgment in not reporting to her supervisor.

(Ex. B to Sandra M. Davis Aff.)

By letter dated November 1 6 , 1995, the hospital terminated

plaintiff’s employment for failing to meet the established work

standard during her initial probationary period.2 The letter

cited plaintiff’s poor judgment, failure to maintain appropriate

interpersonal boundaries, and the “closing eyes” incident while

on a suicide watch. Plaintiff signed the letter, noting her

disagreement with the decision. After receiving an EEOC right to

sue letter, plaintiff commenced this suit.

2 It appears that at least some hospital employees are subject to a probationary period at the beginning of their employment. See Ans. at ¶ 6 (alleging that plaintiff was subject to a one year probationary period ending on or about February 2 4 , 1996); Dennis M. D’Ovidio Aff. at ¶ 5 (making reference to Metalious’ probationary period).

11 Discussion

Defendants move for summary judgment on all counts. The

court will address plaintiff’s federal claims first.

Count I alleges that “[t]he actions of Defendant, New

Hampshire Hospital[,] in failing to properly and promptly

investigate Plaintiff’s complaint of sexual harassment and take

prompt, appropriate and effective remedial action constitutes sex

discrimination.” (Compl. at ¶ 34.) The hospital counters that

the undisputed facts show that it responded appropriately to

plaintiff’s complaint and therefore cannot be held liable under

Title VII. The hospital also questions whether the single

incident of harassment complained of was severe enough to

constitute actionable sexual harassment.

To support a Title VII claim, the harassment “must be

sufficiently severe or pervasive to create an abusive working

environment.” Lipsett v . University of Puerto Rico,

(1 st Cir. 1988)(internal quotation marks and ellipses

12 omitted). 3 Whether the alleged harassment meets this test is

determined by the trier of fact on consideration of the entire

record and the totality of the circumstances.

.

The hospital correctly notes that a single, isolated

incident is rarely sufficient to create an abusive working

environment. See, e.g., Quinn v . Green Tree Credit Corp.,

(2d Cir. 1998). There are, however, “those exceptional

cases in which a single episode of sexual harassment, such as a

sexual assault, . . . [is] sufficient to state a claim of a

hostile work environment sexual harassment.” Grozdanich v .

Leisure Hills Health Ctr., Inc.,

(D.

Minn. 1998)(citing cases and finding genuine issue of fact as to

3 The type of harassment plaintiff alleges is often called hostile environment harassment, which “occurs when one or more supervisors or co-workers create an atmosphere so infused with hostility toward members of one sex that they alter the conditions of employment for them.” Lipsett,

. Such harassment is contrasted with the other type of actionable harassment, called quid pro quo, which “occurs when a supervisor conditions the granting of an economic or other job benefit upon the receipt of sexual favors from a subordinate, or punishes that subordinate for refusing to comply.”

As Metalious was plaintiff’s co-worker rather than her supervisor, her claim must be one of hostile environment.

13 whether three sexual assaults of plaintiff in a two-hour period

created a hostile working environment); see also Fall v . Indiana

Univ. Bd. of Trustees,

(N.D. Ind.

1998)(noting that “several courts and leading commentators agree

that single incidents of severe physical harassment akin to a

sexual assault will constitute actionable sexual harassment”). A

reasonable jury could find that Metalious’ actions as described –

kissing and touching plaintiff, and forcing her to touch him –

constituted sexual harassment under Title VII. See Fall,

(reasonable jury could find that single

incident in which harasser lured plaintiff into his office, where

he forcibly kissed her and forced his hand down her blouse to

grope her breasts, constituted sexual harassment). Thus,

plaintiff has raised a genuine issue of material fact sufficient

to preclude summary judgment on the issue of the alleged

harassment’s severity.

The hospital also argues that it cannot be liable for

Metalious’ harassment of plaintiff because it took prompt and

appropriate remedial action. As Metalious was a non-supervisory

14 co-worker of plaintiff, the hospital can only be held liable on a

claim that Metalious’ conduct toward plaintiff created a hostile

environment “if an official representing [the hospital] knew, or

in the exercise of reasonable care, should have known, of the

harassment’s occurrence, unless that official can show that he or

she took appropriate steps to halt it.” Lipsett,

(addressing Title IX claim but looking to analogous Title VII

standards). The hospital highlights the following undisputed

facts and necessary inferences: (1) the incident complained of

was the first instance of plaintiff being harassed by Metalious,

so the hospital could not have known prior to that incident that

Metalious was harassing plaintiff; (2) the hospital initiated a

prompt investigation into the matter, within days of the

incident; (3) the hospital referred the allegations of possible

sexual assault to the New Hampshire State Police;4 (4) the

hospital ensured that Metalious never worked with plaintiff

4 Notes of the hospital investigators’ interview of plaintiff suggest that plaintiff herself contacted the State Police. She does not appear to dispute, however, that hospital security also reported her complaint to State Police. (See Pl.’s Br. at 4.)

15 again; (5) the hospital removed Metalious from the workplace,

putting him on administrative leave and (6) at the conclusion of

the investigation, the hospital fired Metalious.

Plaintiff argues that the remedial action taken following

her complaint was insufficient, because she was not informed that

she would no longer be working with Metalious, and, s o , was

apprehensive about that possibility, and because the hospital

failed to complete its investigation within thirty days as

required under its own policy. Plaintiff also argues that the

hospital had knowledge of Metalious’ previous harassment of other

employees and that it failed to take appropriate remedial steps

that would have prevented plaintiff’s harassment from occurring

in the first place.

Plaintiff made her sexual harassment complaint to the

hospital on August 1 4 , 1995. She was notified of the conclusion

of the hospital’s investigation nearly three months later, by

letter dated November 8 , 1995. Although Metalious was absent

16 from work from approximately August 31 to September 1 3 , 1995,5

was put on administrative leave on October 1 3 , 1995, and fired on

November 1 5 , 1995, plaintiff was never assured that she would not

have to work with him again. Plaintiff does not contend,

however, that she was harassed by, or had any contact with,

Metalious at work after August 1 4 , 1995.

The Eighth Circuit recently identified several factors that

ought to be considered when evaluating an employer’s response to

a complaint of harassment.

Factors in assessing the reasonableness of remedial measures may include the amount of time that elapsed between the notice and remedial action, the options available to the employer, possibly including employee training sessions, transferring the harassers, written warnings, reprimands in personnel files, or termination, and whether or not the measures ended the harassment.

Carter v . Chrysler Corp.,

(8th Cir.

1999)(citations omitted).

With respect to the length of time the hospital took to

investigate this incident, the court notes that a three month

5 Metalious was out on medical leave and was hospitalized temporarily at some point during that time.

17 investigation was considered prompt in Waymire v . Harris County,

Texas,

(5th Cir. 1996). Courts realize that

“[o]rdinarily, an organization requires time to respond to

embarrassing, emotional and often litigation-spawning claims of

sexual harassment.” Dornhecker v . Malibu Grand Prix Corp.,

(5th Cir. 1987). This requirement is heightened

where, as here, there were no witnesses to the incident and the

alleged harasser both denied any wrongdoing and exhibited

potential hostility toward the employer as a result of the

accusation. See Grozdanich,

(recognizing

that an employer in such situations faces “a high probability of

liability for both sexual harassment and wrongful termination”).6

That the hospital required three months to fully investigate

plaintiff’s complaint does not preclude finding its response to

have been prompt as a matter of law. This is particularly so

6 When interviewed by hospital investigators on August 1 7 , 1995, Metalious disputed plaintiff’s version of the incident, stating that they had hugged and kissed, but that it had been consensual. Metalious also stated that he felt violated by the complaint and believed his rights were not being protected. (See Ex. 3 to Pl.’s Br.)

18 where, as in Waymire, “[t]he investigation originally moved

quickly.” Waymire,

. The hospital obtained

written statements from plaintiff and Metalious within twenty-

four hours of the incident, began interviewing witnesses within

three days, and confirmed in writing both that it had plaintiff’s

complaint and that it had appointed an investigative team. Thus,

plaintiff was assured within days of the incident that her

complaint was being taken seriously and was being acted upon.

Plaintiff nevertheless asserts that the hospital’s

investigation was not timely because it did not comply with the

mandate in the State’s sexual harassment policy that

“[i]nvestigations shall be completed and a written report issued

within thirty (30) days of the receipt of the complaint.” (Lang

Aff. Ex. H ) . Plaintiff points to no authority for the

proposition that failure to meet self-imposed requirements more

specific or stringent than those imposed by Title VII should

nevertheless be held actionable under Title VII, nor does she

suggest any policy concerns that might warrant such a rule. The

hospital’s self-imposed thirty day investigation period is

19 enforceable, if at all, under contract principles. See, e.g.,

Corluka v . Bridgford Foods of Ill., Inc.,

1 4 , 818-19

(Ill. App. C t . 1996) (finding a harassment policy that “state[d]

a promise by defendant to end any harassment employees may

experience” constituted a contract); Finnane v . Pentel of

America, Ltd.,

, 901 n.2 (N.D. Ill. 1999)

(questioning Corluka on whether there existed consideration for a

contract that imposed no greater duties on defendant than those

required by law, but stating that there would be consideration

where a policy dealt with “matters beyond the scope of Title VII”

such as “prompt, confidential investigation and duty to

discipline and/or terminate”). In fact, plaintiff asserts, as a

pendent state law claim in Count III, that the hospital’s failure

to complete its investigation within thirty days, as required

under its own policy, breached her employment contract.

Accordingly, that alleged contractual breach will be considered

when Count III is addressed. But, with regard to plaintiff’s

Title VII claim, the hospital’s response to her complaint was

timely as a matter of law.

20 Plaintiff also argues that the hospital’s response was

deficient because it left her wondering whether she would have to

work with Metalious again. In its answers to plaintiff’s

interrogatories, the hospital stated that after it received her

complaint “[Metalious] was not allowed to work with the plaintiff

in the Acute Psychiatric Facility.” (Ex. 12 to Plf.’s O b j . to

Defs.’ Mot. for Summ. J.) Plaintiff concedes that Metalious did

not work with her while her complaint was under investigation.

(See Pl.’s Br. at 3.)

While the hospital could have, and probably should have,

reassured plaintiff by specifically telling her that Metalious

would no longer work with her, “Title VII requires only that the

employer take steps reasonably likely to stop the harassment.”

Saxton v . American Tel. & Tel. Co.,

(7th Cir.

1993). It is undisputed that the hospital’s actions did

effectively and promptly stop Metalious’ harassment of plaintiff.

That is sufficient for Title VII purposes, notwithstanding

plaintiff’s continued apprehension. (Of course, plaintiff could

have asked for reassurance as well, as any reasonable person

21 likely would have done.) See Skidmore v . Precision Printing and

Pkg., Inc.,

(5th Cir. 1999) (employer’s

remedial action met Title VII standards where harasser’s

offensive conduct ceased after he was warned and transferred to a

new shift, even though plaintiff “testified that she remained

uncomfortable”). The court therefore holds as a matter of law

that the hospital took prompt and appropriate remedial action in

response to plaintiff’s complaint.

Plaintiff also argues, however, that the hospital is liable

under Title VII for failing to properly respond to previous

complaints about Metalious.7 Plaintiff argues that Metalious’

7 Count I of plaintiff’s complaint, captioned “sex discrimination,” appears to address only the hospital’s allegedly inadequate response to plaintiff’s complaint of harassment. Plaintiff’s brief confirms this reading: The gist of [Count I ] is that Defendant did not act properly and promptly after [plaintiff’s] complaint was made. Count V goes to the issue of Defendant failing to maintain a safe working environment and failing to adequately train and supervise employees, which if done properly, the sexual harassment could have been prevented. (Plf.’s Br. at 10.) Count V , however, is a claim brought under

, not Title VII. Nevertheless, in discussing the Title VII claim in her brief, plaintiff argues that the hospital’s awareness of prior

22 harassment of her could have been avoided if the hospital had

taken appropriate remedial action when prior complaints were made

by others.

The hospital counters that the information it had about

Metalious - namely, that he may (or may not) have misrepresented

his criminal record on his employment application, that he may

have engaged in consensual sexual activity with a fellow employee

while at work, and that he had been previously reprimanded for

calling a patient “a bitch” - was insufficient to put it on

notice that Metalious would likely sexually harass a co-worker in

the manner described. The hospital fails to address, however,

plaintiff’s critical factual allegation that “at least one prior

incidents involving Metalious “either gave the State cause to severely reprimand Metalious sufficiently to change his behavior or cause to terminate him. Had either occurred, the State could have prevented the August 1 4 , 1995 sexual assault and harassment from occurring.” (Plf.’s Br. at 12.) Moreover, while noting the apparently limited scope of Count I , defendants address the broader potential claim in their brief. The court will therefore treat Count I as also alleging that the hospital’s failure to act on prior complaints against Metalious gave rise to Title VII violations.

23 complaint has been made by another employee about Metalious’

sexually harassing conduct at work.” (Compl. at ¶ 11.)

Plaintiff bases her claim on the affidavit of Gary A .

Prescott, which describes an incident that occurred in late April

or early May, 1995, while Prescott was working at the Philbrook

Children’s Center. Prescott stated that he overheard a

conversation between Metalious and a co-worker, Rebecca Pellowe,

in which Metalious commented on his sex life with his wife.

Metalious and Pellowe went into another room, and when Pellowe

returned, she was upset and stated she was leaving. Prescott

believes he heard Metalious ask Pellowe to engage in a sex act

with him. After discussing the incident with Pellowe the next

day, Prescott wrote up a complaint against Metalious and “filed

it with the complaint office.” (Prescott Aff.) 8

Defendants submitted the affidavit of Marie Lang, in which

she states that she personally searched or instructed others to

8 Plaintiff represents that Pellowe also filed a complaint at the time of the incident, but there is no affidavit from Pellowe in the record or other admissible evidence to show that a complaint was filed by Pellowe.

24 search hospital records for any prior sexual harassment

complaints against Metalious. Lang averred that no record of any

prior complaint, and in particular any prior complaint by

Prescott or Pellowe, was found. Dennis M . D’Ovidio, the Director

of Transitional Housing, also stated in his affidavit that as far

as he knew, no complaint of sexual harassment, prior to

plaintiff’s, was made against Metalious while he worked in

Transitional Housing. These averments, however, do not disprove

Prescott’s testimony that he filed a complaint and, to the extent

they cast doubt on that testimony, they generate a factual

dispute that cannot be resolved on summary judgment. Assuming

that a complaint was filed as Prescott claims, there is no

evidence as to what, if any, remedial action was taken by the

hospital.9

9 Interestingly, the hospital investigators’ notes of an interview with Metalious report that “Metalious stated that Dennis D’Ovidio, his boss, once called him in about a complaint made by a woman at work against him. Metalious stated that nothing happened, but that there were a lot of rumors.” (Plf.’s Ex. 3 to O b j . to Defs.’ Mot. for Summ. J.) There is no indication of who the complainant was or to what incident the complaint referred.

25 Plaintiff has raised a genuine issue of material fact as to

whether the hospital had prior knowledge of Metalious’ harassment

of female co-workers and whether it took appropriate action given

that knowledge. Thus, even though the hospital properly handled

plaintiff’s sexual harassment complaint, its motion for summary

judgment must be denied as to Count I . See Brooks v . H. J.

Russell & Company,

(N.D. Ga. 1999)

(employer’s motion for summary judgment denied where employer

responded appropriately to plaintiff’s complaint but genuine

issue of material fact existed as to whether employer knew o f ,

yet failed to address, previous incidents involving the harasser

and other employees); Munn v . Mayor and Aldermen of the City of

Savannah, Ga.,

(S.D. Ga. 1995) (same).

Plaintiff argues that the court should decline to consider

the remaining issues addressed in defendants’ motion as they

should have been raised in a motion to dismiss. Plaintiff

contends that defendants’ motion is essentially a motion to

dismiss brought under the guise of a summary judgment motion and

that because it was filed almost five months after the deadline

26 for motions to dismiss set in the court’s pretrial scheduling

order, it is untimely. The court disagrees.

First, to the extent defendants’ remaining arguments rely on

materials outside the pleadings, they were required to be raised

in a motion for summary judgment. However, even arguments that

do not require the court to look beyond the pleadings are not

precluded from summary judgment disposition: “Of course, a

summary-judgment motion may be made on the basis of the pleadings

alone, and if this is done it functionally is the same as a

motion to dismiss for failure to state a claim or for a judgment

on the pleadings.” 10A Charles Alan Wright, Arthur R. Miller and

Mary Kay Kane, Federal Practice and Procedure § 2713 at 222-23

(3d ed. 1998). Defendants’ arguments for judgment are properly

presented. See Baker v . Pfeifer,

, 1173 n.4

(S.D. Ohio 1996) (court not detained by argument that defendants

should have filed a motion for judgment on the pleadings rather

than a motion for summary judgment).

In Counts II and IV, plaintiff alleges that the hospital

retaliated against her, in violation of Title V I I , for reporting

27 the sexual harassment by Metalious. She says the hospital

retaliated by requiring that she attend a presentation regarding

appropriate workplace behaviors (Count II) and by terminating her

employment (Count I V ) .

In the absence of direct evidence of retaliation, plaintiff

has the initial burden to establish a prima facie case by showing

the following: “[1] protected participation or opposition under

Title VII known by the alleged retaliator; [2] an employment

action or actions disadvantaging persons engaged in protected

activities; and [3] a causal connection between the first two

elements, that i s , a retaliatory motive playing a part in the

adverse employment actions.” Hazel v . U.S. Postmaster Gen.,

, 3 (1 st Cir. 1993) (internal quotation marks and some

internal brackets omitted). Plaintiff’s establishment of a prima

facie case shifts the burden of production to the defendant “to

articulate a plausible, legitimate, and nondiscriminatory

justification for the employment decision.”

The burden of

persuasion, however, remains at all times with the plaintiff.

Thus, once the employer offers a nondiscriminatory reason

28 for the challenged action, the presumption of discrimination

raised by plaintiff’s prima facie case disappears and the

plaintiff is left with the burden of proving the ultimate issue -

that the challenged action was taken in retaliation for

plaintiff’s engaging in protected activity. See id.; S t . Mary’s

Honor Center v . Hicks,

(1993). Plaintiff

may meet this burden by showing that the employer’s proffered

reason was a pretext for retaliation - that i s , that “the

proffered reason was not the true reason for the employment

decision and that [retaliation] was.” S t . Mary’s Honor Center,

(citation and internal quotation marks omitted).

The hospital first argues that plaintiff has failed to

establish a prima facie case with respect to Count II because the

direction that she attend a presentation on professional behavior

in the workplace does not constitute an adverse employment action

sufficient to support a retaliation claim. The court agrees.

The Court of Appeals for the First Circuit has noted that Title

VII’s retaliation provision “encompasses a variety of adverse

employment actions, including demotions, disadvantageous

29 transfers or assignments, refusals to promote, unwarranted

negative job evaluations, and toleration of harassment by other

employees.” Hernandez-Torres v . Intercontinental Trading, Inc.,

3 , 47 (1 st Cir. 1998). It does not, however, cover all

employment actions that a plaintiff may find objectionable. The

action must “at a minimum, impair or potentially impair the

plaintiff’s employment in some cognizable manner.” Nelson v .

University of Maine Sys.,

(D. M e . 1996);

see also Randlett v . Shalala,

(1st Cir. 1997)

(noting that Title VII’s retaliation provision should arguably be

read in conjunction with 42 U.S.C. § 2000e-2(a), which prohibits

discrimination with respect to “‘compensation, terms, conditions,

or privileges of employment’”).

Requiring plaintiff to attend a presentation on professional

workplace behavior does not rise to the level of adverse

employment action. The District Court for the Eastern District

of Pennsylvania addressed a similar situation in Harley v .

McCoach,

(E.D. P a . 1996). There the employer,

as one of the remedial actions taken in response to plaintiff’s

30 complaints of racial and sexual harassment, required plaintiff,

along with all of the employees in her department, to attend a

refresher course on sexual harassment taught by one of her

alleged harassers. The court concluded that “[w]hile [plaintiff]

may have found these actions objectionable, we cannot say that

they adversely affected her employment relationship with [her

employer].”

. Plaintiff’s claim in this case

similarly fails. Therefore, defendants’ motion for summary

judgment is granted as to Count I I .

In Count IV, plaintiff alleges additional retaliatory action

in the form of termination of her employment. Termination

clearly constitutes an adverse employment action. Furthermore,

the court will presume that the temporal proximity between the

filing of plaintiff’s complaint with the New Hampshire Human

Rights Commission on November 2 , 1995, and her termination on

November 1 6 , 1995, is sufficient evidence of causation to at

least establish a prima facie case. See Oliver v . Digital

Equipment Corp.,

(1st Cir. 1988) (“A showing of

discharge soon after the employee engages in an activity

31 specifically protected by . . . Title VII . . . is indirect proof

of a causal connection between the firing and the activity

because it is strongly suggestive of retaliation.”).

In accordance with the burden-shifting framework outlined

above, the hospital must now articulate a legitimate, non-

discriminatory reason for the adverse employment action. The

hospital submitted affidavits from Linda Flynn, plaintiff’s

former supervisor, and Sandra M. Davis, the Assistant Director of

Nursing at the hospital. Both affiants stated that they

participated in the decision to terminate plaintiff and that her

sexual harassment complaint played no part in that decision.

Sandra M. Davis further stated that plaintiff was fired for

failing to meet the required work standard while on probationary

status. Specific instances of such failure included falling

asleep while on a suicide watch and exercising poor judgment in

becoming involved in a personal financial arrangement with a

patient. This showing is sufficient to meet the hospital’s

burden of production. See, e.g., Hodgens v . General Dynamics

Corp.,

(1st Cir. 1998) (defendant successfully

32 rebutted plaintiff’s prima facie case with supervisor’s testimony

that plaintiff was fired for performance reasons and that his

engaging in protected activity was not considered).

Plaintiff attempts to show that the reasons given for her

termination were pretextual by arguing that the sleeping incident

did not give the hospital sufficient cause to terminate her at

that time and that she was “cleared of any wrongdoing” in the

gift-buying incident when the patient abuse complaint was

determined to be unsubstantiated. (Pl.’s B r . at 16.) The court

cannot agree with plaintiff’s interpretation of either the

undisputed facts or the law. Far from having been “completely

exonerated” in the gift-buying incident, plaintiff was found to

have “violate[d] hospital policy and used exceedingly poor

judgment in not reporting to her supervisor,” notwithstanding

that no patient “abuse” was found. (Ex. B to Sandra M. Davis

Aff.) Plaintiff does not dispute that she failed to notify her

supervisor of the gift-buying incident or that she fell asleep

while on a suicide watch. While plaintiff may dispute the

egregiousness of these lapses, “[i]t is not enough for the

33 plaintiff to show that the employer made an unwise business

decision, or an unnecessary personnel move.” Gray v . New England

Tel. & Tel. Co.,

, 255, 256 (1st Cir. 1986)

(plaintiff failed to present jury question of pretext where he

failed to produce evidence that his employer “did not in fact

believe that he was violating [company policies]”).

Here the hospital stated that it fired plaintiff for failing

to meet established work standards, including failing to use good

judgment and follow hospital policy. Plaintiff has not shown

that the hospital did not actually believe that she exhibited

these faults. Thus, plaintiff has failed to present a genuine

issue of material fact regarding pretext. The defendants’ motion

for summary judgment is granted as to Count IV.

Count V of plaintiff’s complaint asserts a claim under

, alleging that the hospital and Gorman denied her

due process and equal protection by failing to promptly

investigate her sexual harassment complaint, by failing to keep

the working environment safe, and by failing to properly train

and supervise hospital employees. The defendants claim

34 entitlement to summary judgment on grounds that the hospital, as

a state agency, is not a person subject to suit under § 1983;

that the undisputed facts do not support plaintiff’s claim; that

plaintiff failed to allege facts connecting Gorman to her alleged

harassment; and that, in any event, Gorman is entitled to

qualified immunity.

The hospital cites Will v . Michigan Dep’t of State Police,

(1989), to support its defense to the § 1983 claim.

In Will, the Supreme Court held that “a State is not a person

within the meaning of § 1983.” Id. at 64. 10 Plaintiff does not

dispute, and indeed alleges in ¶ 4 of her complaint, that the

hospital “is a department of the State of New Hampshire.” Thus,

under Will, the hospital is entitled to summary judgment on Count

V.

Plaintiff also seeks to draw support from Will’s language:

“Of course a state official in his or her official capacity, when

10 Section 1983 itself subjects to liability “[e]very person who, under color of” state law, deprives any citizen or person within the jurisdiction of the United States of “any rights, privileges, or immunities secured by the Constitution and laws.”

(West Supp. 1999).

35 sued for injunctive relief, would be a person under § 1983

because official capacity actions for prospective relief are not

treated as actions against the State.” Will,

n.10. Plaintiff argues that because she prays for prospective

relief, including reinstatement and injunctions against future

discrimination, her § 1983 claim against the hospital and Gorman

are not barred. The court disagrees.

First, the court questions whether plaintiff has sued Gorman

in his official capacity at all. The caption of plaintiff’s

complaint does not specify the capacity in which Gorman is named

as a defendant. Nor does the body of her complaint evince

plaintiff’s intent to sue Gorman as superintendent of the

hospital. On the one hand, the complaint identifies Gorman by

his official title, alleges that he acted under color of state

law, and alleges that he and the hospital had a policy or custom

of violating female employees’ due process and equal protection

rights. These allegations, in an otherwise ambiguous complaint,

are indicative of an official capacity suit. See, e.g., Kolar v .

County of Sangamon of the State of Illinois,

, 568

36 (7 th Cir. 1985) (clarifying that “where a complaint alleges that

the conduct of a public official acting under color of state law

gives rise to liability under Section 1983, we will ordinarily

assume that he has been sued in his official capacity and only

that capacity”).

On the other hand, while it never mentions the words

“official capacity,” the complaint expressly declares that Gorman

“is being sued in his individual capacity.” (Compl. at ¶ 5.)

See Saxner v . Benson,

(7th Cir. 1984) (finding

defendants not sued in official capacities where “[i]n addition

to the absence of any allegation that the defendants were acting

in their official capacities, it is specifically alleged . . .

[in the complaint] that ‘All defendants are sued in their

individual capacities’”), aff’d sub nom. Cleavinger v . Saxner,

(1985). The failure to name Gorman in his official

capacity is fatal to plaintiff’s claims for injunctive relief.

See Poe v . Massey,

(D. Conn. 1998)

(“Claims for prospective relief against a state officer may be

asserted only against the officer in her official capacity.”).

37 Moreover, plaintiff’s claims for injunctive relief fail as a

matter of law. See

Her prayer for reinstatement cannot be

granted because she was terminated for a legitimate,

nondiscriminatory reason. See Hite v . Biomet, Inc.,

, 1026 n.15 (N.D. Ind. 1999) (noting that “since this

court has concluded that Hite’s termination is valid,

reinstatement is not an appropriate remedy”). Her claims for

injunctive relief aimed at curbing future discriminatory and/or

harassing behavior fail because she no longer has a stake in what

happens at the hospital. See e.g., Roth v . United States,

(1 st Cir. 1991) (noting that after plaintiff

resigned from defendant’s employ, she no longer had standing to

enjoin her supervisor’s actions “in order to protect others or

vindicate the public weal”).

Count V also fails as a matter of law to the extent that it

attempts to hold Gorman liable, under § 1983, in his individual

capacity. “A supervisor may be found liable [under § 1983] only

on the basis of h[is] own acts or omissions.” Gutierrez-

Rodriguez v . Cartagena,

(1st Cir.

38 1989)(internal quotation marks omitted). Plaintiff’s complaint

fails to recount a single act or omission by Gorman, alleging

only that Gorman “had supervisory responsibility over the entire

operation” of the hospital (Compl. at ¶ 5 ) and that he and the

hospital “had a policy and/or custom of depriving female

employees” of constitutional rights (Compl. at ¶ 2 8 ) . “Without

alleged facts tying [Gorman] personally, by reason of his own

cognizable action or inaction, into the conduct which harmed

plaintiff, . . . [Gorman] cannot be held liable [under § 1983]

for the actions of his subordinates.” Guzman v . City of

Cranston,

4 , 26 (1st Cir. 1987). Thus, Gorman is

entitled to summary judgment with respect to Count V in his

individual capacity.

Counts III, VI and VIII of plaintiff’s complaint assert

state law claims against the hospital for breach of contract,

negligence, and malicious termination, respectively. The

hospital argues that these claims are barred by the Eleventh

Amendment and sovereign immunity. The court agrees. The

Eleventh Amendment provides: “The Judicial power of the United

39 States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any

Foreign State.” The Supreme Court has long recognized that the

amendment’s “significance lies in its affirmation that the

fundamental principle of sovereign immunity limits the grant of

judicial authority in Art. III.” Pennhurst State School & Hosp.

v . Halderman,

9 , 98 (1984). Accordingly, the amendment

has been interpreted more broadly than its limited terms would

ordinarily suggest. The Supreme Court has held, for instance,

that the amendment bars a suit in federal court brought against a

state by one of its own citizens. See id. The Eleventh

Amendment also bars pendent claims brought in a suit over which

the federal court otherwise has jurisdiction. See id. at 918.

As sovereign immunity bars suit against a state without its

consent, the state may, by its consent to suit, waive the

immunity. See id. at 98-99. Such consent must be “unequivocally

expressed,” however, id. at 9 9 , and “the Court consistently has

held that a State’s waiver of sovereign immunity in its own

40 courts is not a waiver of the Eleventh Amendment immunity in the

federal courts,” id. at 99 n.9. The hospital argues that the

State of New Hampshire has not waived its Eleventh Amendment

immunity to any of the pendent state claims brought by plaintiff.

Before addressing each claim individually, the court notes that

in

-D:1 (1990) the New Hampshire

legislature adopted the doctrine of sovereign immunity as the law

of the state, “except as otherwise expressly provided by

statute.”

Count III alleges breach of contract. In

, New Hampshire partially waived its sovereign

immunity as to claims based on express or implied contracts. See

Morgenroth & Associates, Inc. v . Town of Tilton,

(1981). That statute, however, grants the power to enter

judgment against the state, on a contract claim, only to the

state’s own superior court. New Hampshire’s waiver of immunity

in its own courts does not waive its Eleventh Amendment immunity

to suit in federal court. See Metcalf & Eddy, Inc. v . Town of

Gorham, New Hampshire,

2 , 34 (D.N.H. 1984) (finding

41 that “the State of New Hampshire has not waived its Eleventh

Amendment immunity from suit under RSA 491:8"). Thus, the

hospital in entitled to summary judgment on Count III.

Count V I , alleging negligence, must be dismissed for similar

reasons. Claims for personal injury may be brought against the

state under

-B:9. Jurisdiction over

such claims, however, is granted to the board of claims,

established in

-B:2, and/or the state

superior court, depending on the amount in controversy. The

statute nowhere expressly consents to suit in federal court.

Thus, the hospital is entitled to summary judgment on Count VI. 11

Count VII purports to state a claim for malicious

termination constituting retaliation under

-A:19 and Title VII. However, N.H. Rev. Stat. Ann. ch. 354-A

11 The foregoing discussion provides sufficient answer to plaintiff’s argument that “[i]f the State has consented to suit pursuant to RSA 491 and 541-B, then there is no reason that suit cannot go forward in the Federal forum.” (Pl.’s B r . at 23.) While plaintiff expresses a laudable desire to avoid the “waste of judicial time and resources” involved in litigating in more than one forum, (Pl.’s Br. at 2 3 ) , considerations of judicial economy do not trump Eleventh Amendment immunity.

42 “does not create a private right of action for individuals

aggrieved by unlawful discrimination,” Carparts Distribution Ctr.

v . Automotive Wholesaler’s Ass’n of N.E., Inc.,

7 ,

83 (D.N.H. 1997) (internal quotation marks omitted), and the

court has already determined that plaintiff’s Title VII

retaliatory discharge claim fails as a matter of law.

Plaintiff nevertheless argues that her wrongful termination

claim is brought not under N.H. Rev. Stat. Ann. ch. 354-A, but

under New Hampshire case law including Monge v . Beebe Rubber Co.,

(1974), and Cloutier v . Great Atl. & Pac. Tea Co.,

(1981). This argument also fails. The rule adopted

in Monge and refined in Howard v . Dorr Woolen Co.,

(1980) essentially prohibits the termination of an at will

employee that is motivated by malice, bad faith, or retaliation

and that is effected because the employee “performed an act that

public policy would encourage, or refused to do that which public

policy would condemn.” Cloutier,

(quoting

Howard,

9 7 ) . The rule is usually stated to be based

on the implied covenant of good faith found in every contract,

43 see

although the cause of action is sometimes expressed as

the tort of wrongful discharge, see id. at 925 (Bois, J.,

dissenting); cf. Monge,

(specifying that the

action was brought in assumpsit for breach of an oral employment

contract). In either case, plaintiff’s claim is barred because,

as noted above, New Hampshire has not consented to be sued in

tort or contract in federal court. Thus, the hospital is

entitled to summary judgment on Count VII.

Defendants finally argue that plaintiff’s claims for

declaratory and injunctive relief are moot. As stated in the

discussion of plaintiff’s § 1983 claim, the court agrees with

respect to all injunctive relief requested by plaintiff. In

addition, the request for declaratory judgment on her § 1983

claim must fail along with the substance of that claim.

Plaintiff’s Title VII claim based on the hospital’s failure to

remedy prior harassment, however, survives this motion for

summary judgment given the undeveloped record. Thus, her request

for a declaration that the hospital has violated Title VII is not

moot.

44 Conclusion

For the foregoing reasons, defendants’ motion for summary

judgment is granted in part and denied in part. Counts I I , IV

and V , and Count I to the extent it challenges the hospital’s

response to plaintiff’s own harassment complaint, are dismissed

with prejudice. Counts I I I , VI and VII are dismissed without

prejudice to plaintiff asserting them, if she can, in state court

or before the board of claims. Count I survives to the extent it

bases a harassment claim on the hospital’s prior knowledge of and

failure to adequately respond to the likelihood that Metalious

would sexually harass female co-workers.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 2 8 , 2000

cc: Brian T . Stern, Esq. Nancy J. Smith, Esq.

45