Tuxford v . Vitts Networks, et a l . CV-01-170-M 01/13/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jennifer Tuxford, Plaintiff

v. Civil N o . 01-170-M Opinion N o .

Vitts Networks, Inc., David Graham, and Greg DeMund, Defendants,

O R D E R

Jennifer Tuxford filed this action against her former

employer, Vitts Networks, Inc., and two of its employees, David

Graham and Greg DeMund, claiming she was subjected to unlawful

gender-based discrimination, in violation of Title VII of the

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

complaint also advances two state law claims, over which she says

the court may properly exercise supplemental jurisdiction.

The procedural history of this case is described in detail

in the court’s most recent order, dated November 1 8 , 2002, and

need not be recounted. See Tuxford v . Vitts Networks, Inc.,

(D.N.H. Nov. 1 8 , 2002) (“Tuxford I ” ) . At this juncture, it is sufficient to note that DeMund is the only defendant

properly before the court, and the sole remaining claim in

plaintiff’s amended complaint is count 2 , which alleges that

DeMund unlawfully discriminated against Tuxford based upon her

pregnancy, in violation of New Hampshire’s Law Against

Discrimination, N.H. Rev. Stat. Ann. (“RSA”) ch. 354-A.

Specifically, Tuxford claims DeMund “aided and abetted” the

unlawful employment practices in which her former employer,

Vitts, allegedly engaged. See RSA 354-A:2, XV(d).

After DeMund moved for summary judgment, the court directed

Tuxford to show cause why DeMund should not be granted judgment

as a matter of law on either of two grounds: first, because she

failed to name DeMund as a respondent in her administrative

charge of discrimination, filed with the EEOC; and, second,

because, under the facts alleged by Tuxford, it seemed doubtful

as a matter of law that DeMund, as the president and chief

operating officer of Vitts, could “aid or abet” Vitts’ alleged

commission of an unlawful discriminatory practice. See Tuxford I

at 1 6 . For the reasons discussed below, the court holds that

defendant Greg DeMund is entitled to judgment as a matter of law

2 on grounds that Tuxford failed to name him as a respondent in her

administrative charge of discrimination.

Discussion

New Hampshire’s Law Against Discrimination provides that any

person “claiming to be aggrieved by an unlawful discriminatory

practice may make, sign and file with the commission a verified

complaint in writing which shall state the name and address of

the person . . . alleged to have committed the unlawful

discriminatory practice.” RSA 354-A:21, I(a) (emphasis

supplied). Tuxford does not deny that the charge of

discrimination she filed with the EEOC did not name DeMund as a

respondent, nor did it allege that DeMund engaged in (or “aided

and abetted”) any discriminatory conduct. In fact, in a ten

page, single spaced statement appended to the charge, Tuxford

mentions DeMund’s name only once, in passing.

Provided a party or entity is named as a respondent in the

administrative charge of discrimination, RSA ch. 354-A authorizes

the state commission for human rights (the “commission”) to

“order compensatory damages to be paid to the complainant by the

3 respondent . . ..” RSA 354-A:21, II(d) (emphasis supplied). The

statute also authorizes a complainant, after filing a charge of

discrimination with the commission (but before the commission

convenes a hearing on the charges), to remove his or her claims

to the state superior court. RSA 354-A:21-a, I.1

Importantly, however, the statute provides that, when a

matter is removed to a judicial forum, the court may award

damages to the complainant “to the same extent as damages and

injunctive relief could be awarded by the commission in a

complaint not removed.” RSA 354-A:21-a, I . Plainly, however, if

the complainant’s co-worker or supervisor is not named as a

respondent in the original administrative charge of

discrimination, the commission cannot award damages or order

1 To be sure, Tuxford never filed an administrative charge of discrimination with the commission. Instead, she originally filed her administrative charge with the EEOC in Buffalo, New York. Subsequently, the matter was referred to the EEOC office in Boston. Although the court has not been provided with a copy of the pertinent worksharing agreement between the EEOC and the commission, those agreements have historically provided that a complaint filed with the EEOC is deemed to have been filed simultaneously with the commission (at least for purposes of the pertinent limitations periods). S o , the court has assumed that Tuxford is entitled to proceed as though she had filed her administrative charge directly with the commission and then removed the matter to this court.

4 injunctive relief against that party. Consequently, it would

certainly seem that, under such circumstances, neither could a

court award relief against the unnamed party.2

Thus, as the court noted in Tuxford I , New Hampshire’s

statutory scheme, like those adopted by other states, and like

its federal counterpart - Title V I I , requires a complainant to

name all potentially liable parties in his or her original

administrative charge of discrimination. Failure to do so

ordinarily precludes the complainant from seeking damages against

such individuals in a subsequent civil lawsuit. See, e.g.,

McKinnon v . Kwong Wah Restaurant,

9 8 , 504 (1st Cir.

1996) (“[A] plaintiff generally may not maintain a suit [under

Title VII] against a defendant in federal court if that defendant

was not named in the administrative proceedings and offered an

opportunity for conciliation or voluntary compliance.”); Hayes v .

Henri Bendel, Inc.,

7 4 , 378-79 (D. Mass. 1996)

2 Tuxford’s reliance on the provisions of RSA 354-A:22,I, which refer to the relief available in a judicial forum to “any interested person,” is misplaced. That portion of the statute plainly relates to judicial proceedings aimed at enforcing (or challenging) final orders of the commission. It does not address the situation in which a complainant, like Tuxford, removes her administrative complaint to state court prior to any order of the commission. See RSA 354-A:21-a, I and I I .

5 (dismissing plaintiff’s complaint under the Massachusetts law

against discrimination because she failed to name individual

defendant in her administrative charge of discrimination).

Of course, it is unclear whether a complainant’s failure to

name an individual defendant in his or her administrative charge

is a jurisdictional bar to any subsequent civil action, or

whether it merely gives rise to an affirmative defense, subject

to waiver. And, as noted in the court’s prior order, the New

Hampshire Supreme Court has yet to address the issue. It is most

likely that the state supreme court would conclude that naming an

individual defendant in the administrative charge is a

jurisdictional prerequisite to the pursuit of a subsequent civil

action against that individual under RSA ch. 354-A. That

interpretation of the statute would seem to be most consistent

with a reasonable reading of RSA 354-A:21-a, which provides that

the commission or court may only award damages or injunctive

relief against a “respondent.” It is possible, however, that the

court might conclude that the failure to comply with the

administrative “charging requirement” does not preclude removal

to a judicial forum but, instead, merely gives rise to an

6 affirmative defense, subject to waiver or estoppel if not raised

in the defendant’s answer. See, e.g., McKinnon,

(holding that Title VII’s “charging requirement is

nonjurisdictional.”). See generally Zipes v . Trans World

Airlines, Inc.,

(1982) (holding that Title

VII’s “timeliness requirement” is not jurisdictional because the

“provision granting district courts jurisdiction under Title VII

. . . does not limit jurisdiction to those cases in which there

has been a timely filing with the EEOC.”). 3

In this case, however, whether the failure to properly name

an individual as a respondent in an administrative charge of

discrimination operates as a jurisdictional bar to removal, or

3 Applying the reasoning of Zipes to New Hampshire’s Law Against Discrimination suggests that the timely filing of an administrative charge, which names the potentially liable party as a respondent, is a jurisdictional prerequisite to pursing a subsequent civil action. See RSA 354-A:21, I(a) (charging requirement); RSA 354-A:21, III (timeliness requirement); and RSA 354-A:21-a, I (vesting the state superior court with jurisdiction over civil suits, provided the claimant has, among other things, complied with the statute’s administrative charging and timeliness requirements). In other words, a complainant’s failure to file a timely charge of discrimination with the commission (which properly names all potentially responsible parties as respondents) would certainly seem to preclude her from “removing” that charge to state superior (or federal) court, at least as to those parties not properly named.

7 whether it simply gives rise to an affirmative defense (subject

to waiver) is of no moment, since DeMund’s answer to Tuxford’s

amended complaint specifically raised Tuxford’s failure to name

him as a respondent in her administrative charge of

discrimination. See Answer to amended complaint (document n o .

22) at para. 12 (“With respect to Count II (N.H. RSA ch. 354-A),

the plaintiff did not charge M r . DeMund or name M r . DeMund as a

responsible party in her administrative filings, and has

therefore failed to satisfy a jurisdictional pre-requisite to the

maintenance of this action.”). Tuxford’s assertion that DeMund

failed to raise that defense prior to the close of discovery and,

in so doing, precluded her from performing a meaningful

investigation into the matter, is simply inaccurate. DeMund

filed his answer to Tuxford’s amended complaint on April 9, 2002,

and discovery did not close until almost three months later, on

July 1 , 2002. See Endorsed Order Discovery Plan (document n o .

6).

Consequently, even if the failure to name an individual as a

respondent in an administrative charge of discrimination is not a

jurisdictional prerequisite to the “removal” of an administrative

8 charge to state (or federal) court, and i s , instead, an

affirmative defense, subject to waiver, DeMund plainly did not waive that defense.4

The New Hampshire Supreme Court has yet to consider whether

circumstances exist under which a plaintiff may pursue a civil

claim under RSA ch. 354-A, notwithstanding the failure to name

the defendant as a respondent in an administrative charge of

discrimination. And, neither the state nor federal courts in

Massachusetts have reached consensus on the issue under

4 It is a “cardinal rule of civil procedure [that] an amended complaint ordinarily renders the original complaint of no legal effect. It is as though the original complaint was never served. Consequently, a court may not deprive an affected party the right to file a response to an amended pleading if the party so desires.” Lucente v . International Business Machines Corp.,

(2d Cir. 2002) (citations and internal quotation marks omitted). See also Nelson v . Adams USA, Inc.,

6 0 , 466 (2000). DeMund was, therefore, entitled to file an answer to Tuxford’s amended complaint and was equally entitled to raise all affirmative defenses relevant to that amended complaint, even if those defenses were not raised in response to Tuxford’s original complaint. See Landrau-Romero v . Banco Popular de Puerto Rico,

0 7 , 616 (1st Cir. 2000). Parenthetically, the court notes that DeMund also raised Tuxford’s failure to name him as a respondent in the administrative charge in his motion to dismiss (document n o . 1 2 ) , which, for procedural reasons, the court did not address on the merits.

9 Massachusetts’ similar law against discrimination, Mass. Gen. L .

c. 151B.

It is true that the law on this matter is unsettled and falls into two camps. A number of cases advocate a stringent rule prohibiting civil suits against parties not previously named as respondents in the charge before the [state commission]. On the other hand, there are decisions that advocate a more forgiving rule.

Wright v . CompUSA, Inc.,

0 8 , 310 (D. Mass. 2001)

(citations omitted). The “more forgiving rule” was articulated

in Chatman v . Gentle Dental Center of Waltham,

(D. Mass. 1997), where the court held:

whether a party has been appropriately identified as a wrongdoer in a charge filed with the [state commission] so as to support a subsequent civil action against that party is a matter to be determined from a reading of the charge as a whole. If the charge put that party’s conduct at issue and if the party was on notice of the charge and had an opportunity to participate in the [state commission] proceeding, then the party appropriately may be named as a defendant in a later civil complaint alleging a violation of [the Massachusetts law against discrimination].

(emphasis supplied).

10 In this case, however, even assuming that properly naming an

individual as a respondent in the administrative charge is not a

jurisdictional prerequisite to a subsequent civil suit under RSA

ch. 354-A, and assuming DeMund’s failure to raise that issue in

his answer to plaintiff’s original complaint constituted a waiver

of the defense, and giving Tuxford the benefit of the “more

lenient rule” articulated in Chatman, she has still failed to

demonstrate that she may proceed against DeMund. Among other

things, a fair reading of Tuxford’s administrative charge of

discrimination would not put DeMund on notice that his (alleged)

conduct was “at issue” in Tuxford’s discrimination claim. As

noted above, in a ten page, single spaced statement appended to

the charge, Tuxford mentioned DeMund’s name only once, saying:

After my termination, I had inquired with Linda why she had checked on my letter and she stated that the COO of Vitts, Greg DeMund, had told her to phone and request further medical information from my doctor’s office. She stated that my doctor’s office had refused to release any information to her, all they did was verify the letter.

Addendum to EEOC Charge (attached to original complaint) at 5

(emphasis supplied). That single, passing reference to DeMund in

the context of Tuxford’s lengthy narrative in which she detailed

11 what she viewed as discriminatory treatment she suffered while at

Vitts i s , as a matter of law, insufficient to give DeMund fair

notice that his own conduct as an alleged “aider or abettor” was

“at issue” in her administrative complaint.

In sum, then, Tuxford neglected to name DeMund as a

respondent in her administrative charge of discrimination.5

DeMund raised that failure as an affirmative defense in his

answer to Tuxford’s amended complaint. And, in response, Tuxford

has failed to demonstrate that, notwithstanding her failure to

name DeMund in her administrative charge, she may still maintain

this civil action against him under RSA ch. 354-A.

Conclusion

For the foregoing reasons, defendant, Greg DeMund, is

entitled to judgment as a matter of law as to the sole remaining

5 Tuxford complains that had her claims “proceeded to pretrial at the administrative level at the Commission or the EEOC level, the Plaintiff would have had the opportunity to amend her charge of discrimination to include Defendant DeMund as a Respondent.” Plaintiff’s memorandum (document n o . 39) at 9. She does not explain why she did not amend that charge at any time between the date on which she filed it in August of 1998 and the date on which the EEOC issued its right to sue letter, two and one-half years later, in January of 2001.

12 count against him in plaintiff’s amended complaint (count 2 ) .

His motion for summary judgment (document n o . 30) i s , therefore,

granted. Because the remaining defendants are not properly

before the court, the Clerk of Court shall statistically close

the case, subject to reopening should plaintiff either obtain

relief from the automatic stay with regard to Vitts, or

demonstrate valid service of process on defendant David Graham.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 1 3 , 2003

cc: Leslie H . Johnson, Esq. Steven E . Grill, Esq.

13