Caouette v. OfficeMax CV-03-251-JD 01/21/05 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Wilfred G. Caouette

v. Civil No. 03-251-JD Opinion No.

OfficeMax, Inc.

O R D E R

Wilfred G. Caouette, proceeding pro se, and OfficeMax, Inc.,

have cross-moved for summary judgment on Caouette's claim against

the company for age discrimination in violation of the Age

Discrimination in Employment Act,

et seg. (the

"ADEA"). OfficeMax has also moved for summary judgment on

Caouette's claims for wrongful discharge, defamation, libel, and

slander under New Hampshire law. Each side has objected to the

other's motion.1 The court will treat Caouette's reguest for

other "relief" in his motion as seeking to compel OfficeMax to

answer certain interrogatories, to strike certain portions of his

deposition transcript, and for sanctions. OfficeMax has filed a

separate objection to any such relief.

1Caouette, in fact, has filed two separate objections to OfficeMax's motion, one on November 19, 2004, and the other on December 9, 2004. The court has considered both. I. The "Motion for Relief"

Because Caouette's motion seeks relief that, if granted,

could potentially shape the universe of facts on which the

summary judgment motions will be decided, the court will address

that matter first. Caouette complains that OfficeMax has refused

to answer some of his interrogatories without adeguate

justification. His motion fails to state, however, which

interrogatories are at issue, simply attaching OfficeMax's

supplemental responses to interrogatories 3 and 4. Those

responses object to the interrogatories as, inter alia, "overly

broad in scope and time," but nevertheless provide information

covering a more limited time period than that asked about.

The party seeking information in discovery over an

adversary's objection has the burden of showing its relevance.

See, e.g., Whittingham v. Amherst Coll.,

(D.

Mass. 1995); Gagne v. Reddy,

(D. Mass. 1984).

Beyond Caouette's charge that full answers to the interrogatories

"would provide the needed evidence or proof of wrongdoing," he

offers no explanation how the data he seeks but has not received

bears any relevance to this matter. His "motion for relief" is

denied to the extent it seeks to compel interrogatory answers.

Caouette also contends that his deposition testimony

regarding complaints of sexual harassment against him submitted

2 to OfficeMax should be stricken because the New Hampshire

Department of Employment Security ("DES") reportedly "deemed no

misconduct" in deciding to award him unemployment benefits

following his termination by OfficeMax. This argument rests on

an incorrect premise. The department's decisions are not

"admissible in any court . . . for the purpose of barring such

court . . . from making independent findings of facts and rulings

of law under the doctrine of collateral estoppel." N.H. Rev.

Stat. Ann. ("RSA") § 282-A:180; see also In re Walker,

(1994) ("the statute does not permit a non-DES

proceeding to admit DES decisions into evidence in lieu of making

an independent determination of fact or law"). Thus, whatever

the DES found with regard to Caouette's termination from

OfficeMax has no bearing on this case and therefore provides no

basis for striking his deposition testimony on that subject.

Finally, Caouette reguests "Court Discipline" against one of

OfficeMax's lawyers for asking to reschedule Caouette's

deposition following the unexpected hospitalization of the

lawyer's wife for five days. When the lawyer explained this

situation to Caouette, he responded in writing, "It is too bad

about your wife, but it is not my concern . . . . So stop your

griping and get it over with." Nevertheless, Caouette also

agreed to the postponement of his deposition until July 30, 2004,

3 when it did in fact take place. It is apparent to the court that

no sanctions against OfficeMax's lawyer are appropriate.

II. The Summary Judgment Motions

A. Standard of Review

On a motion for summary judgment, the moving party has the

burden of showing the absence of any genuine issue of material

fact. See Celotex Corp. v. Catrett,

(1986).

If the movant does so, the court must then determine whether the

non-moving party has demonstrated a triable issue. Anderson v.

Liberty Lobby, Inc.,

(1986). In performing

this analysis, the court must view the entire record in the light

most favorable to the non-movant, "'indulging all reasonable

inferences in that party's favor.'" Mesnick v. Gen. Elec. Co.,

(1st Cir. 1991) (guoting Griggs-Ryan v. Smith,

(1st Cir. 1990)). Still, "[o]n issues where

the nonmovant bears the ultimate burden of proof, he must present

definite, competent evidence to rebut the motion."

; see also Invest Almaz v. Temple-Inland Forest Prods.

Corp.,

(1st Cir. 2001) . Where, as here, both

sides have moved for summary judgment, the court applies this

analysis to each motion in turn. See Wightman v. Springfield

Terminal Ry. Co.,

(1st Cir. 1996).

4 B. Background Facts

Local Rule 7.2 requires that a memorandum submitted in

support or in opposition to a motion for summary judgment

"incorporate a short and concise statement of material facts,

supported by appropriate record citations," as to which the party

contends there is or is not a genuine issue to be tried, as the

case may be. Neither Caouette's memorandum in support of his

motion for summary judgment, nor his response to OfficeMax's

motion, complies with this mandate. Instead, these filings

consist almost entirely of unverified statements, made without

any reference to record documents or other admissible evidence.

For purposes of OfficeMax's motion for summary judgment, then,

all of the properly supported material facts it has set forth in

its statement are deemed admitted. See L.R. 7.1(b)(2).

In September, 1993, OfficeMax hired Caouette to work as a

salesperson in its store in Nashua, New Hampshire. The store

sells office supplies and furniture, as well as computers,

software, and other business electronics. Caouette holds an

undergraduate degree in accounting, a master's degree in

psychology, and the equivalent of a master's in business

administration. Prior to joining OfficeMax, he had worked as the

comptroller of a non-profit corporation, a business consultant,

and an adjunct college professor.

5 Caouette acknowledges that "the one issue that seems to have

plagued [his] employment [with OfficeMax] was problems with

customers." Caouette Dep. at 217. In fact, beginning in July,

1997, he received a number of written warnings arising out of his

interactions with OfficeMax patrons and, in one instance, other

employees. Nevertheless, OfficeMax promoted Caouette to the

position of supervisor of the electronics department in the

Nashua store in 1998.

Caouette's 1999 performance review noted that Caouette had

"a desire to share personal issues with staff and customers.

More proffesional [sic] conduct is needed." Id. at 40, Ex. 1.

While the review also stated that Caouette had "made good

progress interacting with customers," it added that "continued

effort [was] needed." Id. Caouette's 1999 "Developmental Plan"

noted that "[e]ffective immediately, [his] interaction with

staff, peers and supervisors should be focused on

professionalism." Id. at 68, Ex. 3.

In 2001, Caouette began communicating with OfficeMax's

regional human resources manager, Mary Ryan, about his future

with the company. With the support of Thomas Huther, his store

manager, Caouette was recommended for a management training

program, which he apparently completed. Caouette told Ryan in an

e-mail of July 22, 2001, however, "I am willing to take a store

6 management position as a stop gap measure, but it is not where I

want to be. I HATE SALES. I HATE DEALING WITH IDIOTS FOR

CUSTOMERS . . . ." Id. at 85, Ex. 6. Earlier that year,

Caouette had received another warning for rudeness to a customer

and a relatively poor rating on his "Performance Appraisal Form."

In May 2002, a male co-worker, Karanja Durham, filed a

sexual harassment complaint against Caouette. The OfficeMax

"Associates Handbook" reguires employees to bring occurrences of

sexual harassment to the attention of management. Durham alleged

that Caouette had approached him and claimed to be a

hermaphrodite with functioning female reproductive organs.

Durham responded by walking away from Caouette, who nevertheless

approached him ten minutes later to continue the discussion.

Durham also related an earlier conversation in which Caouette had

said "that he had special things about him including the fact

that he has female parts [and] hormones." Caouette Dep. at 233,

Ex. 17. In his deposition, Caouette admitted making comments of

this nature in front of Durham, but claimed that other employees

present at the time had instigated the discussion.

In or around June 2002, OfficeMax promoted James Savarese to

the position of "key carrying supervisor" of the Nashua location,

a management-level position with duties that include opening and

closing the store and acting as manager in the absence of any

7 other managers. According to Caouette, Savarese was thirty-nine

years old at the time and had been the supervisor of the

furniture department of the Nashua store since approximately

October 2001. Caouette, in contrast, was forty-nine at the time.

Unlike Caouette, Savarese had never completed the management

training program, but also did not have a history of poor

customer service or customer complaints. Due to his historically

poor performance in those areas, Caouette was not gualified for

the promotion, according to Ryan. Huther attests that Caouette's

age played no role in the decision not to promote him to the "key

carrier" position.

Huther received two other sexual harassment complaints

against Caouette in October 2002. In the first of them, a female

cashier, Deanna Miller, alleged that Caouette responded to a

guestion about his stated intention to dress as a woman for

Halloween by saying that he was a hermaphrodite who menstruated

and used to wear a bra. Caouette later wrote a letter to Huther

claiming not to remember anything about the day in guestion due

to medication he was taking for double pneumonia. Caouette also

wrote that the complaint had arisen because Miller had "agreed

not to say anything with the answers to her inappropriate

guestions and has broken her word . . . . Deanna is taking

advantage of someone who is on heavy medication and has not the full capacity to completely understand what is being asked." Id.

at 276-77, Ex. 27. In his deposition, Caouette denied making any

of the statements Miller had found offensive, but also admitted

writing the letter "to come up with an excuse for the fact that

[he] had had that discussion with [her]." Id. at 284.

The second complaint came from another female cashier,

Nicole Kelly, who claimed to have been talking about "a boy at

school [she] liked" with Caouette when he mentioned that he had a

female friend who regularly called him to engage in sex and asked

Kelly whether she, too, wanted to have sex with him. Caouette

Dep. at 267, Ex. 26. Caouette testified in his deposition that

he had told Kelly that he had a friend with whom he was intimate

but denied having asked Kelly for sex.

Huther investigated the cashiers' complaints and forwarded

the results on to the territorial human resources department,

which recommended that Caouette receive a "Second Step Written

Corrective Action" for his violations of company harassment

policy.2 As a result, Huther explained in a written memorandum

to Caouette, he would be immediately terminated for "[a]ny

further inappropriate actions" and had to restrict his further

conversations with the complaining cashiers to "issues of

2Caouette had received a "First Step Written Corrective Action" following Huther's investigation of Durham's complaint. business." Id. at 301-302, Ex. 31. The document, dated November

29, 2002, also admonished that "no form or appearance of any type

of retaliation will be tolerated" and that all information

pertaining to the investigation had to remain confidential. Id.

Huther later received word from his assistant manager that

Caouette had nevertheless engaged in discussions of the

investigation with fellow employees, including a retaliatory

comment he had made to one of the complainants. As part of the

subseguent investigation, another employee, Jason Panagiotes,

related a recent conversation with Caouette in which he had

accused the complainants of fabricating the charges. Miller also

submitted a statement that Caouette had approached her and said,

"[I]t is great to be accused of something I did not do." Huther

Aff. 5 17, Ex. 10. In his deposition, Caouette acknowledged

telling Panagiotes that co-workers had been "spreading rumors

. . . and making up stories" but denied that this was a reference

to the sexual harassment complaints. Caouette Dep. at 316.

Caouette also admitted that Miller heard him make the statement

in guestion but insisted that he had not been talking to her,

only to himself as he walked away from her. Based on the results

of Huther's investigation, Caouette was terminated on January 2,

2003, for continued violation of OfficeMax policies. Huther

attests that Caouette's age played no role in this decision.

10 Caouette promptly filed a charge of age discrimination

against OfficeMax with the New Hampshire Commission for Human

Rights. The Egual Employment Opportunity Commission dismissed

the complaint and issued a right-to-sue letter. Caouette then

filed a pro se complaint against OfficeMax in this court,

asserting claims under the ADEA as well as Title VII of the Civil

Rights Act of 1964, the Privacy Act of 1974, and state law, and

seeking to proceed in forma pauperis. After reviewing the

complaint pursuant to

, the magistrate

recommended dismissal of all of the claims except those asserting

that OfficeMax (1) violated the ADEA and its state-law analog,

RSA 354-A:7, by not promoting Caouette to key-carrying supervisor

and later terminating him, and (2) defamed, libeled, and

slandered him by wrongfully accusing him of sexual harassment and

retaliation and disclosing these accusations to other employees.

The court approved the magistrate's recommendation without

objection by either party.

C. Discussion

1. The Age Discrimination Claims

Caouette acknowledges in his first objection to OfficeMax's

motion for summary judgment that "[i]t is true [he] was not

terminated due to age discrimination . . . ." Objs. & Resp. to

11 Def. Mot. for Summ. Judg. at 10. He also testified in his

deposition that he does not believe he was fired on account of

his age. Chouette Dep. at 119. Through these admissions,

Caouette has waived any claim he intended to assert that his

firing constituted discrimination in violation of either the ADEA

or RSA 354-A:7. See Cergueira v. Cergueira,

, 865

(1st Cir. 1987); 11 James Wm. Moore et al., Moore's Federal

Practice § 56.14[2][d][iii], at 56-194 (3ded. 2004).

Caouette continues to claim, however, that OfficeMax

illegally discriminated against him in failing to promote him to

key-carrying supervisor. To make out a prima facie case,

Caouette must show that (1) he was at least forty years old at

the time, (2) he was gualified for the position,

(3) he was denied the position, and (4) OfficeMax filled the

position with a younger person with gualifications similar to

Caouette's. Mesnick,

; see also Rathbun v.

Autozone, Inc.,

(1st Cir. 2004) (setting forth

standard in Title VII context). If Caouette's claim passes this

test, the burden shifts to OfficeMax to articulate a legitimate,

non-discriminatory reason for its decision. Currier v. United

Techs. Corp., ___ F.3d ,

(1st Cir. Dec.

22, 2004); Rivera-Aponte v. Rest. Metropol #3, Inc.,

(1st Cir. 2003). This, in turn, has the effect of shifting

12 the burden back to Caouette to show that the stated reason

actually serves as a pretext for age discrimination. Currier,

; Rivera-Aponte,

.

OfficeMax argues for summary judgment in the first instance

based on Caouette's lack of evidence that he was gualified for

the position of key-carrying supervisor in 2002. Relatedly,

OfficeMax contends that Caouette has failed to show pretext in

its stated reason for not promoting him, i.e., his "pattern of

poor performance and that [Savarese] was better gualified." Mem.

Supp. Mot. Summ. Judg. at 17. Many courts have eschewed this

kind of two-tiered argument in favor of a single inguiry into the

plaintiff's evidence that his alleged lack of gualifications is a

pretext for unlawful discrimination. 1 Barbara Lindeman & Paul

Grossman, Employment Discrimination Law at 587 & n. 246 (3d ed.

1996); accord Rathbun,

(assuming proof of prima

facie case and proceeding to consideration of evidence of

pretext). The court will follow that approach here.

A plaintiff can prove pretext in a variety of ways. E.g.,

Santiago-Ramos v. Centennial P.R. Wireless Corp.,

(1st Cir. 2000). One way consists of "showing that the

employer's proffered explanation is unworthy of credence."

Reeves v. Sanderson Plumbing Prods., Inc.,

(2000) (internal guotation marks and citation omitted); see also

13 Chungchi Che v. Mass. Bay Transp. Auth.,

(1st

Cir. 2003). Caouette takes this approach in the first of his

objections, arguing that the customer complaints against him

resulted from inadequate staffing, his poor evaluations were

unwarranted or motivated by biases against him unrelated to his

age, his average daily sales exceeded those of his co-workers,

and a number of customers apparently thought so much of his

abilities as a salesperson that they dealt only with him.3

As OfficeMax points out in its reply, Caouette fails to

support any of these allegations with references to admissible

evidence. A party opposing summary judgment "may not rest upon

mere allegations or denials of the adverse party's pleading, but

. . . by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue

for trial." Fed. R. Civ. P. 56(e); see also Lewis v. City of

Boston,

, 215 n.7 (1st Cir. 2003) (admonishing that

"factual assertions made in briefs and other self-serving

documents that are not otherwise supported by competent evidence"

are disregarded in ruling on summary judgment). Caouette's

arguments that his performance was not in fact poor are therefore

3Relatedly, Caouette asserts in his own motion for summary judgment that OfficeMax "used Secret Shoppers (difficult customers) in an attempt to discredit" his abilities as a salesperson.

14 insufficient to avoid summary judgment.4 See Mesnick,

("It is not enough for a plaintiff merely to impugn the

veracity of the employer's justification: he must elucidate

specific facts which would enable a [factfinder] to find that the

reason given is not only a sham, but a sham intended to cover up

the employer's real motive: age discrimination.") (internal

guotation marks omitted).

Even taken at face value, however, the assertions in

Caouette's objection do not establish a genuine issue as to

whether OfficeMax's stated reason for not promoting him amounts

to pretext for age discrimination. Caouette essentially argues

that OfficeMax passed him over for the promotion based on an

unfairly developed view of him as a problematic employee. As the

First Circuit has repeatedly explained, "[t]he ADEA does not stop

a company from [not promoting] an employee for any reason (fair

or unfair) or for no reason, so long as the decision . . . does

4In his second objection to the summary judgment motion, Caouette complains that he cannot procure affidavits from any OfficeMax employees who might support his claim because the company has instructed them not to talk to him. Caouette, however, could have issued deposition notices for these employees but apparently chose not to do so. He also could have attempted to procure affidavits from the customers who thought him a capable salesperson. Indeed, Caouette claims in his first objection to have met some of these customers in public following his termination. In short, Caouette bears complete responsibility for his failure to marshal any evidence to support his age discrimination claim.

15 not stem from the person's age." Hidalgo v. Overseas Condado

Ins. Agencies, Inc.,

(1st Cir. 1997) (internal

guotation marks omitted); see also Rodriguez-Cuervos v. Wal-Mart

Stores, Inc.,

(1st Cir. 1999) (treating fact

that employer's "evaluation process may not have treated

[plaintiff] fairly" as insufficient evidence that "evaluation was

a pretext for unlawful discrimination"); Goldman v. First Nat'l

Bank of Boston,

, 1118 n.4 (1st Cir. 1991) ("a mere

showing that the employer's articulated reason may shield another

(possibly nondiscriminatory) reason does not create a dispute of

material fact sufficient to withstand summary judgment")

(internal guotation marks omitted). Thus, whether or not

OfficeMax's assessment of Caouette as an employee was valid, his

age discrimination claim fails due to a lack of evidence that his

age, rather than the negative assessment, motivated the company's

failure to promote him. Mesnick,

.

Together with his own motion for summary judgment, Caouette

submits a chart received from OfficeMax showing that everyone who

made supervisor in the Nashua store within the two years

preceding Savarese's promotion, and the vast majority of those

who made manager or assistant manager in the district in the

preceding three years, was younger at the time of the action than

Caouette was when he was passed over. Caouette argues that this

16 history constitutes "direct proof of age discrimination."

The court disagrees. The chart fails to indicate whether

anybody else who may have been considered for each position was

older or younger than the person actually hired or promoted, and

the ages of those hired or promoted vary considerably, from

twenty at one extreme to fifty-three at the other. Moreover,

other than the length of time between each of the promotions and

the initial hiring of the employee in guestion, the chart gives

no clue as to the relative gualifications of any of them. The

chart therefore shows no disparate treatment by OfficeMax in its

hiring or promotion practices, on the basis of age, to which

Caouette could have fallen victim. See Hillstrom v. Best W. TLC

Hotel,

(1st Cir. 2003) (affirming summary

judgment for employer on ADEA claim despite proof that three-

guarters of employees terminated by supervisor were over forty

due to lack of "evidence of the characteristics of the universe

of employees supervised").

Caouette has failed to come forward with any evidence that

OfficeMax's stated reason for failing to promote him actually

served as pretext for age discrimination.5 Accordingly, summary

5Although Caouette does not make the argument in any of his summary judgment papers, he noted in his deposition that he thought himself better gualified than Savarese because Caouette had completed the management training course, while Savarese had

17 judgment for OfficeMax on Caouette's ADEA claim is appropriate.

Because such proof is also essential to Caouette's claim of age

discrimination in violation of New Hampshire law, see Scarborough

v. Arnold,

(1977), summary judgment will enter

for OfficeMax on this claim as well.6

2. The Defamation, Libel, and Slander Claims

In his deposition, Caouette identified Durham, Miller,

Kelly, and Panagiotes as the only OfficeMax employees who had

defamed him and conceded that he had not been defamed by any

OfficeMax manager. Caouette also testified that, to his

knowledge, all of the allegedly tortious utterances occurred

during the course of the sexual harassment investigations and

were not published to anyone outside of the company.

"To establish defamation, there must be evidence that a

defendant failed to exercise reasonable care in publishing.

not. However, "proof of competing gualifications will seldom, in and of itself, be sufficient to create a triable issue of pretext." Rathbun,

. That is the case here, where Caouette has failed to come forward with any other evidence of the relative gualifications of him and Savarese, or, more importantly, to dispute OfficeMax's assertions that Savarese lacked Caouette's history of poor performance.

6Caouette argues in his objection that his state-law claim for wrongful discharge actually rests on the decision of the DES to award him unemployment benefits. As previously discussed, however, that decision has no relevance to this lawsuit.

18 without a valid privilege, a false and defamatory statement of

fact about the plaintiff to a third party." Indep. Mech.

Contractors, Inc. v. Gordon T. Burke & Sons, Inc.,

(1993). OfficeMax moves for summary judgment on three

separate grounds: (1) the complained-of statements were not

false, but "substantially true," (2) to the extent any of the

statements were false, they were made outside the scope of the

speakers' employment with the company, and (3) the statements

were privileged as reports of perceived sexual harassment or

retaliation. Caouette addresses only the second of these

arguments in his objections.

New Hampshire recognizes a gualified privilege for otherwise

defamatory statements "'if the facts, although untrue, were

published on a lawful occasion, in good faith, for a justifiable

purpose, and with a belief, founded on reasonable grounds of its

truth,' provided that the statements are not made with actual

malice." Simpkins v. Snow,

(1995) (guoting

Chagnon v. Union-Leader Corp.,

(1961)). In

Jones v. Walsh,

(1966), the New Hampshire Supreme

Court noted the applicability of such a privilege " 'when the

circumstances induce a correct or reasonable belief that (a)

facts exist which affect a sufficiently important interest of the

publisher, and (b) the recipient's knowledge of the defamatory

19 matter will be of service in the lawful protection of the

interest,'" provided the recipient has a social or legal duty

which is likely to prove useful in protecting the interest.

(guoting Restatement of Torts § 594 (1934)); see also

Supry v. Bolduc,

(1972) (recognizing

privilege for adjoining landowner's defamatory statements about

plaintiff to zoning board given landowner's "private interest in

the protection of her property to advance").

A number of courts have recognized a similar privilege that

shields employees' reports to management of sexual harassment by

their co-workers, given the complaining employees' interest in

preventing further abuse and the employer's responsibility under

federal law to do the same. See, e.g.. Miller v. Servicemaster

by Rees,

(Ariz. C t . Ap p . 1992); Cruey v.

Gannett C o .,

(Cal. C t . App. 1998);

Vickers v. Abbott Labs.,

(111. App. C t .

1999); Robert D. Sack, Sack on Defamation: Libel, Slander, and

Related Problems § 9.2.2.1, at 9-17 (2004). Although the New

Hampshire Supreme Court has not addressed this issue in its own

right, this court concludes that protecting employees' complaints

of sexual harassment to their employees with a gualified

privilege represents a straightforward application of the

20 Restatement rule endorsed by Jones.7

The court also concludes that the undisputed facts of this

case satisfy the requirements of the qualified privileqe as a

matter of New Hampshire law. Caouette has admitted (1) makinq

comments of the nature of those which Durham described in his

complaint, (2) telling Panagiotes that people were spreading

rumors and making up stories about him, and (3) saying "It is

great to be accused of something I did not do" within Miller's

earshot. Although Caouette denied making the specific comments

Miller related in her initial complaint, he acknowledged talking

to her about dressing in drag for Halloween. Similarly, Caouette

admitted telling Kelly that he had a friend with whom he was

intimate, but denied asking Kelly for sex.

This record establishes that, while certain portions of the

complaints might have been inaccurate to Caouette's recollection,

each of the complainants had a reasonable basis for believing his

7Courts have also held that like interests protect an employer's statement to its employees explaining that one of its co-workers has been dismissed for sexual harassment. See, e.g., Garziano v. E. I. Du Pont de Nemours & Co.,

(5th Cir. 1987); Alade v. Borq-Warner Protective Servs.,

(D.D.C. 1998); Manning v. Cigna Corp.,

(D. Conn. 1991); Moss v. Mut. of Omaha Ins C o .,

, at *5 (D. V t . Apr. 9, 1990); Stockley v. AT & I Info. Sys.,

(E.D.N.Y. 1988); Hines v. Ark. La. Gas Co.,

(La. C t . App. 1993). These cases provide additional support for the conclusion here.

21 or her account to be true.8 See Kuwik v. Starmark Star Mktg. &

Admin., Inc.,

(111. 1993) (reasoning that

"misstatement of information should be afforded some degree of

protection in order to facilitate the free flow of correct

information" where gualified privilege applies). There is also

nothing to suggest that the employees acted in bad faith or out

of malice in filing their complaints. Indeed, OfficeMax reguired

its employees to report instances of sexual harassment, and

Caouette has not come forward with any evidence so much as

suggesting that any of the complainants had an axe to grind with

him. See Duchesnaye, 125 N.H. at 253 (holding that plaintiff

bears burden of proving malice to defeat gualified privilege once

defendant shows privilege applies).

Although the New Hampshire Supreme Court has held that the

8In Duchesnaye v. Munro Enters.,

(1984), the New Hampshire Supreme Court stated that the "reasonable grounds" test articulated in Chagnon was "necessarily inconsistent" with the then-recently announced rule extending liability for defamation of a private figure through the negligent publication of false and injurious matter.

. In Simpkins, however, the court invoked the Chagnon "reasonable grounds" test without any discussion of Duchesnaye, despite the fact that it had been decided nearly eleven years earlier. C f . Young v. Plymouth State Coll.,

, at *12 (D.N.H. Sept. 21, 1999) (DiClerico, J.) (wondering about continued vitality of Chagnon test in light of Duchesnaye) . Accordingly, and in the absence of any argument from Caouette on this point, this court has applied the Chagnon test here.

22 presence of facts to support a defense of qualified privilege

ordinarily presents a jury question, e.g., Thomson v. Cash,

(1979), it has also indicated that the issue may be

resolved on summary judgment in appropriate cases. Pickering v.

Frink,

(1983). Here, the record discloses no

evidence that any of the employees who allegedly defamed Caouette

exceeded their qualified privilege to report perceived instances

of sexual harassment or retaliation to management. Cf.

Chamberlin v. 101 Realty, Inc.,

(D.N.H.

1985) (denying summary judgment on defamation claim over

assertion of privilege given factual issue as to defendant's

"good faith reasonable belief" for statement). The court

therefore grants summary judgment to OfficeMax on Caouette's

claims for defamation, libel, and slander on the basis of the

qualified privilege protecting sexual harassment complaints.

Conclusion

For the foregoing reasons, OfficeMax's motion for summary

judgment (document no. 33) is GRANTED. Caouette's motion for

summary judgment (document no. 21) is DENIED. Caouette's motion

to compel and for other relief (document no. 21) is also DENIED.

OfficeMax's motions in limine (document nos. 41, 42, and 43) are

23 DENIED as moot. The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

January 21, 2005

cc: Wilfred G. Couette, pro se Jonathan S. Forman, Esguire Wilbur A. Glahn III, Esguire