Butland v . NH DOC CV-02-230-M 10/30/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Susan Asselin Butland, Plaintiff

v. Civil N o . 02-230-M Opinion N o .

New Hampshire Department of Corrections, Defendant

O R D E R

Susan Asselin Butland (“plaintiff”) brings this Title VII

action against her former employer, the New Hampshire Department

of Corrections (“defendant” or “DOC”), seeking damages for

alleged sexual discrimination that took the form of sexual

harassment. See 42 U.S.C. § 2000e-5(f). This suit follows

plaintiff’s unsuccessful litigation of an identical claim before

the New Hampshire Commission for Human Rights, the New Hampshire

Superior Court, and, finally, the New Hampshire Supreme Court.

Defendant moves to dismiss the complaint, asserting, among

other things, that because plaintiff’s claim was fully litigated

in the state court system, the doctrine of res judicata precludes

her from relitigating that claim in this forum. Plaintiff objects. For the reasons given below, defendant’s motion is

granted.

Standard of Review

When ruling on a motion to dismiss under F E D . R . C I V . P .

12(b)(6), the court must “accept as true the well-pleaded factual

allegations of the complaint, draw all reasonable inferences

therefrom in the plaintiff’s favor and determine whether the

complaint, so read, sets forth facts sufficient to justify

recovery on any cognizable theory.” Martin v . Applied Cellular

Tech., Inc.,

, 6 (1st Cir. 2002) (citation omitted).

Dismissal is appropriate only if “it clearly appears, according

to the facts alleged, that the plaintiff cannot recover on any

viable theory.” Langadinos v . Am. Airlines, Inc.,

8 ,

69 (1st Cir. 2000) (quoting Correa-Martinez v . Arrillaga-

Belendez,

9 , 52 (1st Cir. 1990)). The issue is not

“what the plaintiff is required ultimately to prove in order to

prevail on her claim, but rather what she is required to plead in

order to be permitted to develop her case for eventual

adjudication on the merits.” Gorski v . N . H . Dep’t of Corr.,

(1st Cir. 2002) (emphasis in original).

2 Factual Background

On December 5 , 1997, plaintiff filed a charge of harassment

with the New Hampshire Commission for Human Rights

(“Commission”). See N . H . R E V . STAT. A N N . (“RSA”) § 354-A (1995)

(amended 1997). In accordance with the Commission’s work share

agreement with the United States Equal Employment Opportunity

Commission ( “ E E O C ” ) , plaintiff’s claim was also deemed to have

been filed with the E E O C .

After investigating plaintiff’s claim, the Commission found

probable cause to believe that she had been discriminated

against. On November 1 , 1999, the Commission held a full

evidentiary hearing and, on February 1 8 , 2000, issued a unanimous

judgment in favor of plaintiff, awarding her $200,284.72, plus

reasonable attorney fees. Subsequently, on April 1 1 , 2000, the

EEOC sent plaintiff and defendant a “determination” letter, in

which it acknowledged the Commission’s February 1 8 , 2000,

finding, and stated that the Commission’s resolution of the

matter concluded EEOC’s processing of the charge.

3 On March 3 0 , 2000, defendant appealed the Commission’s

decision to the New Hampshire Superior Court. See RSA 354-A:22.

The superior court conducted a non-evidentiary hearing and

reviewed the record of the Commission’s proceedings. The court

concluded that defendant had taken prompt and appropriate

remedial action once it had been informed of the alleged

harassment against plaintiff. Accordingly, the court set aside

the Commission’s award, ruling, as a matter of law, that

defendant was not liable to plaintiff for sexual harassment

damages.

Plaintiff appealed the superior court’s decision to the New

Hampshire Supreme Court. After briefing and oral argument, the

supreme court affirmed, N.H. Dep’t of Corr. v . Butland,

(2002), noting that “[t]he promptness of the DOC’s

response is evident” given that the “DOC began its investigation

on the same day as the defendant filed her written complaint,”

and two days later the investigation was complete and the

harassing officer disciplined. On May 1 6 , 2002, plaintiff filed

a Motion for Rehearing. Four days later, while the motion for

rehearing was still pending before the supreme court, plaintiff

4 filed a Title V I I suit in this court. One day later, on May 2 1 ,

2002, she obtained a “right to sue letter” from the E E O C . 1 On

June 5 , 2002, the New Hampshire Supreme Court denied her motion

for rehearing.

Discussion

The United States Constitution provides that “[F]ull Faith

and Credit shall be given in each State to the public Acts,

Records, and judicial Proceedings of every other State.” U . S .

CONST. art. I V , § 1 . In 1948, Congress codified that

constitutional provision in 28 U . S . C . § 1738, which provides that

the “judicial proceedings . . . [of any state, territory or

possession] shall have the same full faith and credit in every

court within the United States and its Territories and

Possessions as they have by law or usage in the courts of such

1 The record indicates that plaintiff brought this action one day prior to obtaining a right to sue letter from the EEOC. But, because defendant did not raise the issue in its motion to dismiss, the point is forfeited. See, O’Rourke v . City of Providence,

, 725 n.3 (1st Cir. 2001) (“Although [plaintiff] filed her original court complaint before she filed her EEOC complaint, [she] did receive a right to sue letter and defendants have not argued the point; thus, the point is waived.”) (citing Zipes v . Trans World Airlines, Inc.,

(1982)).

5 State, Territory or Possession from which they are taken.”

Interpreting the scope and effect of that statute, the United

States Supreme Court declared that “[s]ection 1738 requires

federal courts to give the same preclusive effect to state court

judgments that those judgments would be given in the courts of

the State from which the judgments emerged.” Kremer v . Chem.

Constr. Corp.,

6 1 , 466 (1982) (footnote omitted).

Consistently with the Full Faith and Credit Clause of the

national Constitution, and the provisions of

,

the doctrine of res judicata ensures that “a final judgment on

the merits of an action precludes the parties or their privies

from relitigating issues that were or could have been raised in

that action.” Allen v . McCurry,

0 , 94 (1980) (citation

omitted). Under New Hampshire law, the elements of res judicata

are as follows: “(1) the parties must be the same or in privity

with one another; (2) the same cause of action must be before the

court in both instances; and (3) a final judgment on the merits

must have been rendered on the first action.” Brzica v . Trs. of

Dartmouth Coll.,

(2002) (citation omitted).

Because each element is met in this case, plaintiff is barred

6 from bringing her Title VII sexual harassment claim in this

court.

First, plaintiff’s state sexual harassment claim and her

federal Title VII claim involve the same parties. Second, the

elements of plaintiff’s state sexual harassment claim under RSA

354-A (as well as the defenses available to her employer) are

virtually identical to those associated with a Title VII claim.

As the New Hampshire Supreme Court has recognized:

Under RSA 354-A:7, V (1995) (amended 1997), an employer is liable for sexual harassment between fellow employees if it knew or should have known of the conduct and failed to take “prompt, appropriate remedial action.” This standard is similar to that governing employer liability for co-worker sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994) (Title V I I ) . Accordingly, because this is an issue of first impression under State law, we rely upon cases developed under Title VII to aid in our analysis.

Butland,

(citations omitted); see also Boateng

v . Interamerican Univ., Inc.,

6 , 62 (1st Cir. 2000)

(holding that under Puerto Rico law, res judicata bars plaintiff

from bringing a Title VII action that “derives from the same

nucleus of operative facts” as a prior and fully adjudicated

7 state civil rights action). Finally, as noted above, plaintiff’s

sexual harassment claim against the DOC was fully and finally

litigated in the state court system.

Ordinarily, this would be a rather uneventful and

straightforward dismissal on res judicata grounds. But,

plaintiff presents an imaginative argument-based upon some loose

legislative draftsmanship-that could lead to unintended

consequences. Plaintiff says that the res judicata doctrine does

not preclude her federal suit because, technically, her state law

claim was not fully and finally resolved on the merits before she

filed in federal court. Indeed, she says, the Human Rights

Commission’s order was vacated, and the appellate proceedings

were dismissed (presumably without prejudice), by operation of

law, before she filed here. Therefore, she argues, there is no

extant state decision resolving her claim.

Plaintiff points to the plain language of RSA 354-A which

provides, rather sweepingly:

[i]f the complainant brings an action in federal court arising out of the same claims of discrimination which formed the basis of an order or decision of the

8 commission, such order or decision shall be vacated and any appeal therefrom pending in any state court shall be dismissed.

R S A 354-A:22, V (emphasis added). Plaintiff notes that when she

filed her Title V I I suit in this court, the New Hampshire Supreme

Court’s opinion, affirming the superior court’s ruling in favor

of defendant, was still subject to her motion for rehearing and,

therefore, was still “pending.” See N . H . S U P . C T . R . 2 2 .

Accordingly, given the provisions of R S A 354-A:22, V , she asserts

that the commencement of her Title V I I suit in this court

effectively triggered an automatic vacatur of the Human Rights

Commission’s order and dismissal of the appeal pending before the

New Hampshire Supreme Court. Therefore, she argues, by operation

of R S A 354-A:22, V , the legal landscape was restored to what it

was before she filed her complaint with the Human Rights

Commission and there was, and i s , no final state court or

administrative order that can be given preclusive effect in this

court.

Although the point is clever, and exposes what may be an

unintended consequence of the statute as drafted that might,

literally, provide a litigant the opportunity to pursue a dress-

9 rehearsal claim before the Commission and, if that proceeding or

a subsequent appeal to the courts fares poorly, to promptly file

suit in the federal system to vacate the state’s proceedings and

gain a fresh start.

In this particular case, however, plaintiff is bound by the

state court’s judgment. First, nothing in the language of RSA

354-A:22, V , suggests that its provisions are self-executing. To

the contrary, the plain language anticipates some action by a

court before the administrative decision is vacated or a pending

appeal is dismissed, i.e., “such order or decision shall be

vacated” and “any appeal . . . pending . . . shall be dismissed.”

RSA 354-A:22, V , (emphasis added). Plaintiff did not invoke the

provisions of RSA 354-A:22, V , in state court. That i s , she did

not move the New Hampshire Supreme Court to dismiss her then-

pending appeal based upon her having filed suit in federal court.

And, the supreme court’s judgment became final when plaintiff’s

motion for rehearing was denied. Because the Human Rights

Commission’s order was never vacated, and her appeal to the state

supreme court was never dismissed or otherwise terminated before

final judgment entered on the merits, plaintiff’s identical

10 federal claim is barred under the doctrine of res judicata. How

New Hampshire’s courts might construe RSA 354-A:22, V , under

different circumstance – e.g., where a litigant files a late

federal suit and actually moves to vacate and dismiss unfavorable

but pending state proceedings, remains to be seen. But, here,

final judgment was entered before any vacatur or dismissal.

Conclusion

The doctrine of res judicata precludes plaintiff from

relitigating her sexual harassment claim in this court since it

has been fully and finally resolved by the New Hampshire Supreme

Court. Defendant’s motion to dismiss (document n o . 3 ) is

granted. The Clerk shall close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 3 0 , 2002

cc: James F. Lafrance, Esq. Nancy J. Smith, Esq.

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