Murdy v. Nashua Sch. Dist. CV—05— 174—PB 12/19/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patricia Murdy

v. Case No. 05-cv-174-PB Opinion No.

Nashua School District

MEMORANDUM AND ORDER

Patricia Murdy brings this suit against her former employer,

Nashua School District, alleging age discrimination (Count I),

wrongful/constructive discharge (Count II), breach of contract

(Count III), and breach of good faith and fair dealing (Count

IV). Murdy bases her claims on defendant's decision to assign

her to a non-preferential course schedule despite her 31 years of

teaching in the Nashua School District. The parties have agreed

to dismiss Counts III and IV. For the reasons set forth below, I

deny defendant's motion for summary judgment with respect to

Count I and grant it with respect to Count II.

I. BACKGROUND

Murdy was 55 years old in the fall of 2003. She began

teaching for the Nashua School District in September 1971. From 1971 through 1995, Murdy taught general business courses at the

high school level. In 1981, she began teaching accounting and

went on to enhance and improve the District's business course

offerings.

In June 1995, still one of the least senior business

teachers, the District "pink slipped" her out of the business

department and into the health department. Murdy had some prior

experience in health and took additional classes to earn a health

teaching certificate. Murdy taught health classes for the next

seven years, serving as department-head for five.

In April 2002, the District granted Mur d y 's request to

return to the business department and assigned her to teach two

health classes, two desktop publishing (graphics) classes and six

introduction to computers classes. Murdy had no experience in

graphics and had to teach both graphics and computers without

instructional materials, properly functioning computers, or

support from the administration for one semester. When she

finally received one set of 25 textbooks for the second semester,

she had to carry all 25 books from class to class in a hallway

full of students.

- 2 - Murdy preferred teaching accounting classes because they

were high level courses, students were motivated and tended to

continue on to college, and parents were generally more involved.

The computer courses she had instead been assigned were generally

considered less desirable classes.

In April 2003, Murdy learned that Department Chairman,

Marshall Derry, had discussed schedule requests with other

business teachers for the forthcoming year, but not with her.

Defendant had offered six accounting classes to 36-year-old

Kathryn Tremblay and 45-year-old Michele Bolton, even though they

each had only two years of teaching experience. Both Tremblay

and Bolton declined the offers. When Murdy later pulled Derry

aside to request the accounting classes, Derry informed her that

he had no business schedule for her because he had assumed that

she would be returning to the health department. Believing she

would again end up with what she perceived as an undesirable

course schedule, Murdy became upset and physically ill.

Murdy subsequently made several more requests for the

accounting schedule and filed a grievance with then-Principal

Patrick Corbin. Corbin and Associate Principal Timothy Kelley

explained that they were keeping desirable courses open for

- 3 - younger teachers and a yet-to-be-named new hiree. They said they

could not give a new or young1 teacher a homogenous, undesirable

schedule because it would cause them to leave the school district

for other more desirable jobs. Corbin also repeatedly referred

to veteran teachers as "gray hairs" during regular staff

meetings. Upon receipt of an e-mail from Corbin in May 2003

explaining his reason for keeping the accounting positions open,

Murdy became physically ill and was taken by ambulance to the

hospital where she stayed overnight.

In June 2003, defendant hired 26-year-old Corey Laird as a

continuing substitute teacher and assigned him the six accounting

classes Murdy had requested. Murdy filed a grievance about her

schedule. In response she received two of the accounting classes

originally assigned to Laird.

In June 2004, Murdy again requested accounting classes.

Despite her request, defendant assigned her to teach eight

introduction to computer classes for the 2004-05 school year.

For the same period, defendant assigned six accounting classes to

36-year-old Tremblay, one to 28-year-old Blossom Dodge (new to

1 Defendant claims that by "young" it meant "less experienced." See Corbin deposition at pg. 63.

- 4 - the District), and a full schedule of accounting classes to 52-

year-old Paul Pollard (an experienced, qualified teacher).

Murdy became depressed and suffered several anxiety attacks,

which she and her therapist credited to her work situation.

Convinced the same problems would continue in 2005-06, she

resigned on or about February 1, 2005.

II. STANDARD OF REVIEW

Summary judgment is appropriate "if 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). In ruling on a motion for summary judgment, I construe

the evidence in the light most favorable to the nonmovant.

Navarro v. Pfizer Corp.,

(1st Cir. 2001).

The party moving for summary judgment "bears the initial

responsibility of . . . identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact." Celotex Corp. v. Catrett,

,

- 5 - 323 (1986). Once the moving party has met its burden, the burden

shifts to the adverse party to "produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for it; if that party cannot produce such

evidence, the motion must be granted." Avala-Gerena v. Bristol

Myers-Sguibb Co.,

(1st Cir. 1996).

Ill. ANALYSIS

A. Age Discrimination

Murdy alleges in Count I that the defendant discriminated

against her based on her age in violation of the Age

Discrimination in Employment Act,

et seq. , and

the New Hampshire Law Against Discrimination, N.H. Rev. Stat.

Ann. ("RSA") § 354-A.2 As a prima facie element of either claim,

Murdy must prove that she suffered an adverse employment action.

See Cordero-Soto v. Island Finance, Inc.,

(1st

2 On the face of her complaint, Murdy also asserts that defendant violated Title VII, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Because Title VII is plainly inapplicable here and because both parties concede as much by addressing only age discrimination in Count I, I construe Count I to allege only ADEA and RSA § 354-A violations.

- 6 - Cir. 2005); In re Seacoast Fire Equip. Co..

(2001) (stating that New Hampshire courts apply same burden

shifting analysis and prima facie standard to discrimination

actions brought under § 354-A as they do to federal

discrimination actions). The parties dispute at length whether

she has made such a showing here.

Defendant argues that a failure to obtain a desired course

schedule does not constitute a material adverse employment action

where the employee otherwise maintained the same duties, salary

and benefits. Murdy contends that her non-preferential course

assignment was a material adverse employment action because it

effectively denied her promotions, subjected her to physically

and emotionally more demanding course assignments, and ultimately

constituted a constructive discharge. I decline to grant

defendant's motion for summary judgment because facts that are

material to this issue remain in genuine dispute.

B. Constructive/Wrongful Termination

Murdy contends in Count II that defendant constructively and

wrongfully terminated her in violation of law. Specifically, she

claims that she was forced to resist because defendant's actions

- 7 - constituted severe and pervasive harassment, based upon her age,

that no reasonable person would be expected to endure. Complaint

at 53-57. Defendant argues that M u r d y s common law claim is

precluded because Congress and the New Hampshire legislature

intended to supplant such causes of action with relevant

statutory remedies. In response, Murdy claims that the mere

existence of an available statutory scheme does not preclude her

wrongful termination claim. I agree with defendant.

Under New Hampshire law, a plaintiff "may not pursue a

common law remedy where the legislature intended to replace it

with a statutory cause of action." Wenners v. Great State

Beverages, Inc.,

(1995); Howard v. Dorr Woolen

C o .,

(1980). Such legislative intent is

apparent where a statute provides a remedy for its violations and

sets forth procedures for pursuing such action.

The ADEA

and RSA §354-A codify the public policy against age-based

discrimination, create private rights of action to remedy

violations of that policy, and establish mature procedures for

pursuing such an action. See

2 6 (c)(1)-(2); RSA §

354-A:21-a, 22. Thus, the existence of these remedies precludes

Murdy from asserting a common law claim for wrongful discharge based on alleged age discrimination here. See, e.g.. Smith v.

F.W. Morse & Co., Inc.,

(1st Cir. 1996)(holding

Title VII private right of action precluded plaintiff from

asserting gender-based wrongful discharge claim); Howard,

(holding RSA § 354-A private cause of action

precluded plaintiff from asserting age-based wrongful termination

claim). Accordingly, I grant defendant's motion for summary

judgment on Count II.

IV. CONCLUSION

For the reasons stated, defendant's Motion for Summary

Judgment (Document No. 18) is denied with respect to Count I and

granted with respect to Count II.

SO ORDERED.

/s/Paul Barbadoro_______ Paul Barbadoro United States District Judge

December 19, 2006

cc: Leslie H. Johnson, Esq. Mark T. Broth, Esq. - 10 -