Jesep v. NE Health Care Quality Found 04-CV-77-JD 04/27/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Peter Paul Jesep

v. Civil No. 04-cv-77-JD Opinion No.

Northeast Health Care Quality Foundation and Robert Aurilio

O R D E R

Peter Paul Jesep brought claims under Title VII of the Civil

Rights Act of 1964 and New Hampshire law against his former

employer. Northeast Health Care Quality Foundation, and his

supervisor, Robert A. Aurilio. His Title VII claim against

Aurilio and his wrongful termination claim were previously

dismissed. The defendants now move for summary judgment on the

remaining claims, and Jesep objects.

Standard of Review

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. See Celotex Corp. v. Catrett,

(1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc.,

(1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See

.

Background1

The Northeast Health Care Quality Foundation ("NHCQF") is a

federally-mandated peer review organization for New Hampshire,

Maine, and Vermont that is responsible for ensuring the integrity

of the Medicare Trust Fund with respect to the guality of care

and beneficiaries' rights. The NHCQF operates through contracts

with the Centers for Medicare and Medicaid Services, which was

formerly the Health Care Financing Administration ("HCFA").

Robert Aurilio has been the executive director of the NHCQF since

1982 .

1The background information is taken from the properly supported factual statements submitted by the parties. To the extent Jesep relies on allegations in his complaint, which is not a verified complaint, those statements are not properly supported and are disregarded. See Fed. R. Civ. P. 56(c); LR 7.2(b) (2); Anderson,

("In opposing summary judgment, the nonmoving party may not rest upon the mere allegations or denials of the 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.") (internal guotations, citation, and alteration omitted).

2 NHCQF's 1996 to 1999 contract with the HCFA required NHCQF

to have an employee designated to perform communications

functions. Jesep was hired by Aurilio in September of 1995 to

fulfill that requirement. When he was hired, his position was

Public Relations Director, although his business cards referred

to him as Director of Communications. Jesep's job activities and

description changed during his employment to "Director of Public

Affairs and Government Relations." NHCQF and HCFA entered a new

contract in 1999, covering the period of 1999 to 2002, that no

longer required NHCQF to have an employee designated to perform

communications functions. Instead, the new contract stated that

communications, marketing, and outreach activities were

appropriate only to the extent they supported NHCQF's purpose of

improving the quality of care, protecting the integrity of the

trust fund, or protecting beneficiaries.

Aurilio was Jesep's direct supervisor. In the course of his

work at NHCQF, Jesep heard Aurilio make inappropriate comments,

including anti-Semitic, racist, and sexual remarks, on a "pretty

regular" basis. In April of 2000, another NHCQF employee, Brian

McClellan, made a complaint to the NHCQF board of directors in

which he alleged that Aurilio had made remarks of a sexual nature

to him. He identified Jesep, along with other employees, as

witnesses to Aurilio's remarks. McClellan let Jesep and the

other employees know that he had identified them as witnesses in

3 his complaint. Aurilio was notified of the complaint in April by

the president of the board, who also told him that he should be

less friendly with the staff and should be more removed. Aurilio

also received a copy of the complaint in April.

The board engaged a lawyer, Thomas Flygare, to investigate

McClellan's complaint. Flygare interviewed Jesep in May of 2000

and indicated that he would interview the other employees who

were named as witnesses. The investigation concluded in late

June or early July of 2000. McClellan's employment with NHCQF

was terminated at about the same time. Jesep does not know and

the record does not provide information about the outcome of the

investigation or the relationship between McClellan's termination

and the investigation.

After his participation in the investigation of McClellan's

complaint, Jesep noticed that Aurilio's communication with him

was less freguent and less friendly. Aurilio explains that his

contact with Jesep, along with all of the NHCQF employees,

changed in response to the directive from the board that he be

less friendly with the staff and more removed. He also states

that his business relationships with NHCQF employees remained the

same.

Jesep noticed that his relationships with other employees

also changed. He sensed a growing coolness or aloofness, and

certain colleagues told him to stay away from them. Jesep states

4 that another colleague told him that everyone knew Jesep was

being held accountable for participating in the investigation of

McClellan's complaint. One colleague confronted Jesep about his

involvement in McClellan's complaint and gave him the cold

shoulder thereafter. Jesep interpreted the changes in his

relationships as Aurilio's attempt to isolate him.

Jesep also remembers that he was discouraged from using the

NHCQF secretary for his work and that he was not asked to

participate in the eighteen-month contract evaluation although he

had participated in a similar review of the previous contract.

He states that he was not included in management team meetings

after the fall of 2000, although he had participated in those

meetings in the past. He acknowledges, however, that those

meetings were held only sporadically. Jesep noticed that framed

memorabilia of his achievements that hung in a conference room

were removed before the eighteen-month contract evaluation was

held in that room in early 2001.

The defendants point out that Jesep did not receive any

negative notes or comments from Aurilio and that he has no

personal knowledge that Aurilio directed other employees to treat

Jesep differently. After Jesep was interviewed in connection

with McClellan's complaint, Aurilio publicly praised Jesep for

his work on a project and celebrated his five-year anniversary

with NHCQF.

5 NHCQF's contract with HCFA for 1999 to 2002 was subject to

eighteen-month review which occurred in March and April of 2001.

Before the review, Aurilio asked Jesep to prepare a memorandum

about his legislative activities over the last eighteen months.

Aurilio reviewed Jesep's work and decided, based on his own

knowledge of Jesep's activities and Jesep's report about his

legislative activities, that his position could no longer be

justified under the HCFA contract. He notified Jesep of his

decision on March 28, 2001, and Jesep was terminated on April 6,

2001. NHCQF did not hire anyone to fill Jesep's position after

he was terminated.

Discussion

Jesep alleges that NHCQF violated Title VII by terminating

his employment in retaliation for his opposition to unlawful

employment practices and for his participation in an internal

sexual harassment investigation.2 He alleges that NHCQF and

Aurilio violated RSA 354-A by terminating his employment because

of his participation in the internal investigation and "by

otherwise intimidating him and ultimately causing him to be

terminated from his employment in retaliation for his

participation in an act protected by N.H. RSA 354-A:7V." He also

2Jesep's Title VII claim against Aurilio has been dismissed.

6 alleges that his employment was terminated in breach of his

contract and that the defendants' actions constitute intentional

infliction of emotional distress.3 The defendants, NHCQF and

Aurilio, seek summary judgment on all of Jesep's claims.

A. Retaliation

"Under Title VII of the Civil Rights Act of 1964, ... 42

U.S.C. § 2000e-3(a), it is unlawful 'for an employer to

discriminate against any of his employees . . . because [the

employee] has opposed any practice made an unlawful employment

practice under [Title VII], or because the [employee] has made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under [Title VII].'" Clark

County Sch. Dist. v. Breeden,

(2001) (guoting §

2000e-3(a)). RSA 354-A:19 similarly proscribes retaliation by

employers. To establish a prima facie case of discriminatory

retaliation, "a plaintiff must show that (i) she undertook

3Although Jesep, who is represented by counsel, also included a claim for negligent infliction of emotional distress in his complaint, he failed to address that claim in response to the defendants' motion for summary judgment. Instead, Jesep states that his claims consist of discriminatory retaliation, breach of contract, and intentional infliction of emotional distress. Therefore, it appears that he is no longer pursuing his claim for negligent infliction of emotional distress, which, as the defendants assert, is barred by RSA 281-A:8,I (1999) (amended Aug. 2001). See Karch v. BayBank FSB,

(2002) .

7 protected conduct, (ii) she suffered an adverse employment

action, and (ill) the two were causally linked." Noviello v.

Boston,

(1st Cir. 2005); Madeja v. MPB Corp.,

(2003) (addressing RSA 354-A:19 and relying on

federal law under Title VII) .4 If the plaintiff completes the

three steps necessary to make a prima facie case, the defendant

must articulate a legitimate, non-retaliatory, reason for the

adverse employment action, which the plaintiff must show is a

pretext for retaliation. King v. Hanover,

(1st

Cir. 1997).

1. Protected conduct.

Protected conduct encompasses both opposition to unlawful

employment practices and participation in Title VII proceedings.

See King v. Hanover,

(1st Cir. 1997) . Jesep

contends that he engaged in protected conduct, within the meaning

of the statutes, by opposing Aurilio's inappropriate remarks and

through his participation in the investigation of McClellan's

complaint of sexual harassment. The defendants assert that

internal investigations, such as the investigation of McClellan's

4Because the New Hampshire Supreme Court relies on federal case law to interpret RSA 354-A and the parties have not argued that there are any material differences between the claims under § 2000e-3(a) and RSA 354-A, no distinction will be made between the two claims for purposes of deciding the present motion. complaint, are not protected activity under Title VII and RSA

345-A.

The First Circuit has not addressed the question of whether

participation in an internal investigation of a complaint that

raises Title VII issues is protected conduct under 2000e-3 (a) .

Most courts have concluded that participation in an internal

investigation by an employer, in the absence of a complaint to

the Equal Employment Opportunity Commission, is not protected

conduct. See, e.g., Abbott v. Crown Motor Co., Inc.,

(6th Cir. 2003) (citing cases); Kubicko v. Ogden

Logistics Servs.,

, 551 (4th Cir. 1997); Jute v.

Hamilton Sunstrand Corp.,

(D. Conn.

2004) (citing cases); see also Morris v. Boston Edison Co.,

(D. Mass. 1996). In contrast, however, protected

opposition activity includes participation in an employer's

grievance procedure or an internal investigation to oppose an

unlawful practice. See, e.g.. Hertz v. Luzenac Am., Inc.,

(10th Cir. 2004); Kubicko, 181 F.3d at 551;

Laughlin v. Metro. Washington Airports Auth.,

(4th Cir. 1998); Sumner v. U.S. Postal Serv.,

(2d Cir. 1990) .

Following the reasoning of the courts that have addressed

the issue, Jesep's participation in NHCQF's internal

investigation of McClellan's sexual harassment complaint is not protected conduct under the participation clause of § 2000e-3(a).

However, it may be inferred from the undisputed facts in this

case, that Jesep opposed Aurilio's practice of making remarks of

a sexual nature to McClellan and that his participation in the

investigation was part of his opposition to Aurilio's behavior.

Therefore, the record provides a triable issue as to whether

Jesep's cooperation with the investigation was protected conduct

under the opposition clause of § 2000e-3(a) and RSA 354-A:19.

2. Adverse employment action.

Jesep alleges in his complaint that his employment with

NHCQF was terminated in retaliation for his opposition to

Aurilio's practice of making remarks of a sexual nature to

McClellan. In opposing summary judgment, Jesep also asserts that

NHCQF employees, including Aurilio, treated him differently

because he opposed Aurilio's remarks to McClellan, which lead to

his termination.5 The defendants do not challenge Jesep's

5Although a retaliatory hostile work environment may constitute adverse employment action, the abuse or hostility must be so severe and pervasive as to change the conditions of employment. Noviello,

. The circumstances Jesep describes were not sufficiently pervasive or severe to create a hostile work environment. See, e.g.,

; Lee- Crespo v. Schering-Plough Del Caribe Inc.,

(1st Cir. 2003); Koseireis v. Rhode Island,

(1st Cir. 2003); Marrero v. Goya of P.R., Inc.,

(1st Cir. 2002). In any case, the parties focus on the termination of Jesep's employment as the adverse employment action at issue in

10 assertion that he suffered adverse employment action when his

employment was terminated.

3. Causal connection.

Jesep must prove that the adverse employment action was

causally related to his protected activity. See Benoit v. Tech.

M fg. Corp.,

(1st Cir. 2003). In other words,

he must show that his employment was terminated because he

opposed Aurilio's treatment of McClellan. The defendants assert

that no causal connection exists.

It is undisputed that no direct evidence exists to support a

connection between Jesep's support of McClellan's complaint and

his termination. The defendants point out that too much time

elapsed between Jesep's involvement in McClellan's complaint in

April and May of 2000 and his termination in April of 2001 to

support a temporal connection. See, e.g., Breeden,

; Benoit,

; Dressier v. Daniel,

, 80

(1st Cir. 2003); Higgins v. New Balance Athletic Shoe, Inc.,

(1st Cir. 1999). Jesep argues that the changed

treatment he received from Aurilio and his fellow employees after

he supported McClellan's complaint provides indirect evidence

this case, making any issue of a hostile work environment immaterial.

11 that his later termination was causally related to his protected

activity.

Jesep contends that Aurilio's written communications with

him were less frequent and less friendly after April of 2000 and

that his direct contact with Aurilio also became less frequent

and then ceased. It is undisputed, however, that followinq

McClellan's complaint, Aurilio received a directive from the

NHCQF board of directors that he was to chanqe his behavior in

dealinq with his staff to be less friendly and more removed.

Aurilio testified that he chanqed his informal relationship with

Jesep, alonq with all of his staff, in response to that

directive. Jesep's efforts to suqqest that Aurilio only chanqed

his relationships outside of the work settinq are not persuasive.

Jesep also contends that his fellow employees were less

friendly and told him they did not want to associate with him.

He arques that their chanqed behavior was the result of Aurilio's

efforts to isolate him. He offers no evidence of any connection

between Aurilio and the comments made by his fellow employees.

Nevertheless, an inference miqht be drawn that the other

employees believed that Jesep was no lonqer in favor at NHCQF.

Althouqh that is a weak basis for the causal connection element,

it miqht be enouqh to support a factual issue for purposes of

avoidinq summary judqment on the prima facie case.

12 4. Proof of retaliation.

Assuming that Jesep has made a prima facie case, to support

their motion, the defendants must articulate a legitimate reason

for terminating him. They assert that Aurilio terminated Jesep

because his position could not be justified under NHCQF's 1999 to

2002 contract with HCFA.

The parties do not dispute that NHCQF's 1999 to 2002

contract did not reguire an employee to perform communications

functions, as the previous contract did. They do not dispute

that the 1999 to 2002 contract permitted communications,

marketing, and outreach activities only to the extent that those

activities could be justified to fulfill the purposes of

improving the guality of care, protecting the integrity of the

trust fund, and protecting beneficiaries. They also do not

dispute that the 1999 to 2002 contract was subject to an

eighteen-month review in March and April of 2001.

The defendants contend that Aurilio reviewed Jesep's work as

part of his preparation for the eighteen-month contract review.

He decided to terminate Jesep's employment because he could not

justify his position under the terms of the 1999 to 2002

contract. The defendants state that they have not hired anyone

to replace Jesep.

Jesep contends that the defendants' explanation is not

credible because they waited for eighteen months after the new

13 contract went into effect to terminate him. He asserts that

Aurilio and other NHCQF employees treated him differently after

he participated in the investigation of McClellan's complaint,

suggesting that his termination was motivated by retaliation for

that activity, contrary to the asserted reason. Jesep also

points to some inconsistencies in Aurilio's deposition testimony

about whether Jesep was asked to report on his work activities

and asserts that he, as Director of Public Affairs and Government

Relations, had different job responsibilities than those he

fulfilled initially, as Director of Communications.

That Jesep was not terminated for eighteen months after the

new contract went into effect does not undermine the defendants'

reason for his termination. It is undisputed that his position

was reviewed as part of the eighteen-month contract review, a

process that Jesep acknowledges had also occurred under the

previous HCFA contract. Jesep did not provide a description of

his activities to show, contrary to Aurilio's assessment, that

his job was justifiable under the new contract terms. Whether

Aurilio asked him for a complete review of his activities or only

for his legislative activities does not provide a material

factual dispute because, as his supervisor, Aurilio was familiar

with his work. Further, it is undisputed that NHCQF has not

hired anyone in the intervening four years to fill Jesep's

position or to perform the same activities.

14 It is also undisputed that other employees were interviewed

during the investigation into McClellan's complaint. Jesep has

not shown or even suggested that those employees were terminated

or subjected to retaliation nor has he shown that he was the only

witness who supported McClellan's charges.6 Given the

defendants' legitimate explanation for his termination, Jesep's

evidence that he was treated differently after his support for

McClellan's complaint does not provide sufficient evidence that

would permit a jury to find that his employment was terminated in

retaliation for his conduct.

"For a retaliation claim to survive a motion for summary

judgment, the plaintiff must point to evidence in the record that

would permit a rational factfinder to conclude that the

employment action was retaliatory." Santiago-Ramos v. Centennial

P.R. Wireless Corp.,

(1st Cir. 2000). Jesep has

not carried his burden of showing that a trialworthy issue exists

as to whether he was terminated in retaliation for his support of

McClellan's complaint. Therefore, the defendants are entitled to

6In the context of his intentional infliction of emotional distress claim, Jesep refers to a complaint filed with the EEOC in October of 2000 by another NHCQF employee, charging that she was terminated in retaliation for her complaints of a sexually hostile work environment. The referenced exhibit shows that the EEOC found no statutory violation.

15 summary judgment on Jesep's claims under Title VII and RSA 354-A,

Counts I and II.

B. Breach of Contract

The parties agree that Jesep was hired as an at-will

employee. Jesep alleges, however, that the employee handbook and

other documentation given to him during his employment at NHCQF

provided an express or implied employment contract that NHCQF

breached by terminating him "in bad faith, retaliation and

malice." Compl. Count IV. The defendants move for summary

judgment on the grounds that Jesep was an employee at will and

that no employment contract existed that modified that

relationship.

Under New Hampshire law, in the absence of an agreement as

to the duration or expiration of employment, both the employer

and the employee are free to terminate the employment

relationship at any time. Porter v. City of Manchester,

(2004); Dillman v. New England Coll.,

(2003). That status is known as employment at will.

An at-

will employment relationship may be modified by the terms and

conditions provided in an employer's policy statement, handbook,

or manual. See Butler v. Walker Power, Inc.,

, 435-

16 36 (1993); Panto v. Moore Bus. Forms, Inc.,

(1988). The meaning of an employment agreement is a legal

guestion for the court to decide. Butler,

.

Jesep received the NHCQF employee handbook at the beginning

of his employment and signed an acknowledgment that he received

the handbook, the NHCQF personnel policies, and the

confidentiality policy. He understood, based on his legal

training, that he was an at-will employee and that he could be

discharged at any time and for any reason that was not unlawful.7

He also understood that the NHCQF could eliminate his position if

it no longer fulfilled the NHCQF mission. Jesep acknowledged at

his deposition that the handbook stated that his employment was

considered to be at will and that either party could terminate

the relationship at any time for any lawful reason.

Jesep did not submit copies of any of the documents that he

contends altered his employment status. Instead, he relies on

the allegations in his complaint and his deposition testimony to

describe those documents. As such, Jesep has not provided a

sufficient record for the court to interpret the meaning of the

employment documents on which he relies.

7Jesep graduated from law school and passed at least one bar examination but did not practice law.

17 Even if the court were to rely on Jesep's descriptions of

the pertinent documents, without the opportunity to review the

documents themselves, he fails to show that NHCQF modified his

employment status. Jesep contends that the employee manual

stated that staff would not be retaliated against if they

reported sexual harassment and that it contained an anti­

harassment policy.8 He argues that the defendants failed to

comply with that policy and that their failure constitutes breach

of contract. Because the at-will provision in the handbook

included a provision that an employee would not be terminated for

unlawful reasons, which would be implied even if it were not

explicit in the handbook, the anti-retaliation and anti­

harassment policies do not modify the at-will relationship.9

Jesep also argues in support of his breach of contract claim

that he was valuable to the organization and that he performed

his job in a satisfactory manner. He states that Aurilio had

told him in early 2000 that his position would be easy to justify

to the HCFA and was secure. However, neither stellar performance

nor informal promises of continued employment change the at-will

8He also states that the documents lacked any condition that his employment was contingent on the HCFA contract. Because his employment was at will, the lack of a condition or term in the handbook does not alter his employment relationship.

9Jesep's wrongful discharge claim was previously dismissed.

18 status of employment. Smith v. F.W. Morse & Co.,

(1st Cir. 1996) .

Therefore, the defendants are entitled to summary judgment

on Jesep's breach of contract claim.

C. Intentional Infliction of Emotional Distress

Jesep alleges that the "intentional actions of Robert A.

Aurilio, individually and as an officer of NHCQF, in terminating

Mr. Jesep's employment in retaliation for having opposed unlawful

employment practices and participating in an internal sexual

harassment investigation . . . , caused Mr. Jesep to suffer

emotional distress and mental suffering." Compl. 5 71. He also

alleges: "NHCQF, through its agents, in terminating Mr. Jesep's

employment in retaliation for having opposed unlawful employment

practices and participating in an internal sexual harassment

investigation . . . caused Mr. Jesep to suffer emotional distress

and mental suffering." Compl. 5 72. As such, Jesep's

intentional infliction of emotional distress claim is based on

his termination.

The defendants move for summary judgment on the grounds that

the workers' compensation statute, RSA 281-A:8,I(a), precludes

the claim as to NHCQF for employment-related conduct. They also

content that termination is insufficient to support a claim of

19 intentional infliction of emotional distress. In response, Jesep

ignores the workers' compensation statute and argues that

Aurilio's actions constituted intentional infliction of emotional

distress.

At the time in guestion in this case, RSA 281-A:8,I(a)

barred an employee's claim against his employer for intentional

infliction of emotional distress based on conduct or

circumstances during his employment. See Karch,

;

see also Martin v. Applied Cellular Tech., Inc.,

(1st Cir. 2002). In Konefal v. Hollis/Brookline Co-op. Sch.

Dist.,

(1998), the court held that termination

of employment alone was insufficient to support a claim of

intentional infliction of emotional distress. Therefore, NHCQF

is entitled to summary judgment on Jesep's intentional infliction

of emotional distress claim.

Even if Jesep had alleged a claim of intentional infliction

of emotional distress against Aurilio, he would face a difficult

standard to show a trialworthy issue on that claim. To prove

intentional infliction of emotional distress, Jesep would have to

show that Aurilio's remarks constituted extreme and outrageous

conduct which either intentionally or recklessly caused him

emotional distress. Morancy v. Morancy,

(1991). Extreme and outrageous conduct, in this context, must be

20 "'so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.

Generally, the case is one in which the recitation of the facts

to an average member of the community would arouse his resentment

against the actor, and lead him to exclaim, 'Outrageous!'" Moss

v. Camp Pemigewassett, Inc.,

(1st Cir. 2002)

(guoting Restatement (Second) of Torts § 46, cmt. d (1977) and

citing Konefal,

) .

In support of his claim, Jesep points to his deposition

testimony where he testified that Aurilio made anti-Semitic,

racial, and sexist remarks which made him uncomfortable. He also

testified in his deposition that Aurilio made inappropriate

sexual remarks about McClellan and made sexist and racist remarks

in the presence of a female employee. Jesep does not suggest

that any of Aurilio's remarks were aimed at him or were said for

the purpose of making him uncomfortable. He also stated in his

deposition that he never made any complaint about Aurilio's

conduct, and he does not show that Aurilio was aware that he was

uncomfortable about the remarks. Aurilio's perceived aloofness

does not constitute intentional infliction of emotional distress.

Under these circumstances, no issue of material fact exists

to support Jesep's claim of intentional infliction of emotional

21 distress against Aurilio. Therefore, Aurilio is entitled to

summary judgment on that claim.

Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 13) is granted. Jesep's Title VII

claim against Aurilio and his wrongful discharge claim were

previously dismissed, and summary judgment resolves all of the

remaining claims in favor of the defendants. The clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

April 27, 2005

cc: Edward M. Kaplan, Esguire Jennifer A. Lemire, Esguire

22