Slater v . Town of Exeter et a l . CV-07-407-JL 3/20/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Elyssa B . Slater

v. Civil N o . 07-cv-407-JL Opinion N o .

Town of Exeter and Richard Kane

O R D E R

The defendants, the Town of Exeter and its Chief of Police,

Richard Kane, move for summary judgment on claims by the

plaintiff, Elyssa B . Slater, the Town’s former police prosecutor.

Slater claims sex discrimination and retaliation in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-

2(a)(1), 2000-e-3(a), and its state-law analog,

-A:7, I , 354-A:19, as well as her rights to equal

protection and procedural due process under the federal

constitution, and common-law breach of contract and intentional

interference with contractual relations. Among other things, the

defendants argue that, as a matter of law, Slater cannot show any

adverse employment action, including a constructive discharge,

sufficient to support any of her claims.

The court has jurisdiction over this matter under

(federal question) and 1367 (supplemental jurisdiction). After hearing oral argument, and for the foregoing reasons, the

court grants the motion for summary judgment.

I. Applicable legal standard

Summary judgment is appropriate where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). This rule “mandates the entry of summary

judgment . . . against a party who fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case . . . , since a complete failure of proof

concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Celotex Corp.

v . Catrett,

1 7 , 320 (1986). In making this

determination, the “court must scrutinize the record in the light

most flattering to the party opposing the motion, indulging all

reasonable inferences in that party’s favor.” Mulvihill v . Top-

Flite Golf Co.,

5 , 19 (1st Cir. 2003). The following

background facts are set forth in accordance with this standard.

2 II. Background

In May 2006, following her graduation from law school,

Slater began working for the Town as its police prosecutor. She

was hired based in part on Chief Kane’s recommendation. The

police prosecutor job was a full-time, salaried position, i.e.,

the pay did not depend on how many hours were worked. Slater was

nevertheless required to keep track of those hours by punching in

and out on a time clock. The two employees who had held the

police prosecutor job immediately prior to her--one woman and one

man--had also been required to use the clock, but, unlike Slater,

they were part-time employees paid by the hour. Slater was

informed of this requirement when she commenced her employment,

and made no complaint.

Slater alleges, however, that her supervisor, Lieutenant

Christopher Fenerty, soon ordered that she in fact work forty

hours each week, during regular business hours. She further

alleges that Fenerty “closely monitored” her compliance with the

forty-hour minimum, demanding that she give advance notice of her

absences and that she make up any time she missed. Slater

contrasts this treatment with that of other full-time employees

of the Town’s police department, all of whom were male.1

1 Slater also recounts two other instances of perceived disparate treatment on account of her sex. In the first, Kane

3 Kane, for his part, says that he merely “requested that M s .

Slater try to work approximately a 40 hour work week during

regular business hours” to justify the Town’s decision to hire

her as its first full-time police prosecutor. But Slater

maintains that this rationale was never communicated to her. In

fact, Slater recalls, after repeatedly complaining to L t . Fenerty

in fall 2006 about the perceived disparate treatment, Fenerty

conveyed Kane’s explanation that Slater needed to use the time

clock because “the prosecutor always has.” Fenerty also invited

Slater to discuss the matter directly with Kane.

In preparation for this discussion, Slater spoke to the

Town’s director of human resources, Julie Lund, who expressed her

belief that none of the Town’s salaried employees was required to

instructed her to park across the street from her office in a municipal parking lot used by the police department’s “non- salaried secretarial staff, all of whom are female,” while the department’s salaried employees, all of whom were male, were allowed to park right outside the station. Chief Kane explains that he had simply allocated that parking, which was at a premium, to “emergency vehicles and personnel,” namely, the department’s sworn officers as opposed to its civilian employees like Slater. In the second instance of perceived disparate treatment, L t . Fenerty told Slater to use what she describes as “a previously damaged and salvaged Toyota” to travel to and from court, while her male predecessor had been offered the use of a police cruiser for that purpose. Kane does not deny this, but explains that Slater never complained about having to use the Toyota, which was also regularly used by officers “for business- related travel and for undercover operations.” It is undisputed, in fact, that Slater never complained about either of these instances while she was working for the Town.

4 use the time clock. Lund confirmed this by checking with the

Town Manager, who suggested that Lund “check with Chief Kane on

this, [as] it could simply be an oversight.” Lund relayed to

Slater that the Town Manager knew of no specific reason for

Slater to be using the time clock. Slater also located a copy of

the Town’s standard operating procedure on “Time Cards/Hours

Worked,” which, by its terms, imposed time-keeping requirements

on “hourly and part-time employees only.”2

Armed with this information, Slater spoke to L t . Fenerty

again on February 2 3 , 2007, inquiring why she was required to use

the time clock when the Town’s other salaried employees were not

and, as she puts i t , “express[ing] concern that I was being

discriminated against either because I am a woman or because I am

young.” In response, Slater recalls, Fenerty discouraged her

from raising that concern with Chief Kane, adding that she should

“pick and choose her battles,” “watch [her] demeanor,” and “not

use words like ‘grievance’” if she chose to speak to Kane about

the matter. Fenerty, who disputes parts of this account,

nevertheless agreed to arrange a meeting between Slater and Kane.

2 The policy also requires, however, “full-time employees to be on the job for eight (8) hours (normal work schedule),” exclusive of lunch breaks. 5 Slater acknowledges that she had not previously had any problems

with either Fenerty or Kane.

Later that afternoon, Slater recalls, Chief Kane “stormed

into my office and slammed the door behind him. He then accosted

me in a loud voice and in an aggressive matter. He kept yelling

‘You want to speak with me?’” After she started to explain her

concern over having to use the time clock, Slater says, Kane

claimed that she had agreed to do s o , which she denied, then

asked whether she would have a problem with the practice if it

were extended to all employees, to which she said n o . Kane also

demanded to know whether Slater intended to file a grievance with

the Town Manager, whom--to Kane’s clear displeasure--had already

become involved as a result of Slater’s inquires to the Town’s

director of human resources.

Slater adds that when she asked Chief Kane to stop yelling,

he did so but “adopted a mocking and sarcastic tone.” When

Slater’s cell phone rang at one point, Kane threatened to “take

it from [her] and throw it out the window.” Jabbing his finger

at Slater, Kane called her a “petty woman,” and accused her of

lacking gratitude “for all he had done for [her].” Kane further

complained--for the first time, according to Slater--about her

job performance, and in particular, her allegedly excessive use

of sick time. Kane questioned whether Slater had in fact been

6 too sick to work on those occasions, which she took as an affront

to her integrity.3 According to Slater, Kane also “told me

directly that I should be concerned about my job.”

Chief Kane also predicted that “he would ‘win,’” citing to

an example of a former police officer for the Town who had been

terminated and over whom Kane had shown an “obsession” with

having decertified. Slater recalls that:

by [Kane’s] demeanor and in the context of his other comments, I could tell that he would engage in similar retribution by making my life miserable and by tormenting m e . I knew from [his] statement and the manner on which he delivered them [sic] that I had crossed the line with him. I knew that he was either going to terminate my employment either directly or by making things so difficult I could not continue to stay.

Kane also told her, however, “that once I had been employed for a

full year that he would no longer require me to punch the

timecard”--at that point, she had been employed for less than ten

months. And Slater says that she “reluctantly agreed as I felt

intimidated and it seemed as if I had no choice.”

But on the next night, which was a Saturday, Slater went to

the police department to retrieve her personal belongings from

her office. On the coming Monday, she went to the town hall to

report her confrontation with Kane to Lund, the human resources

3 Slater points out that, at the time of this confrontation, she had used less than one-third of her accrued sick time.

7 director. Lund summoned the Town Manager, who said he was too

busy to talk with Slater that day. Slater submitted a letter of

resignation to Lund that day, though it is unclear whether she

did this before or after she had spoken with the Town Manager.

Slater never did file a grievance against Chief Kane; she

points out the Town’s employee grievance policy does not apply to

complaints for violations of its anti-harassment policy, which

includes a prohibition on sex discrimination. She also points

out that the Town’s personnel plan allows it to “dismiss any

employee for inefficiency or incapacity, insubordination,

offenses against the law or other similar just cause,” and that

“[s]uch action shall be in accordance with the provisions of [the

plan] and Due Process.” The Town acknowledges that Slater had

the benefit of these protections by virtue of her elevation from

probationary to permanent employment status in November 2006,

though there is no direct evidence that she was aware of this at any time prior to her resignation.4

Slater reports that, in the wake of her confrontation with

Kane, she experienced trouble sleeping and other distress. She

was eventually diagnosed as suffering from anxiety and

4 At oral argument, counsel for Chief Kane argued forcefully that the circumstantial evidence in the summary judgment record supports a finding that Slater was in fact aware of these protections at that time.

8 depression, and prescribed drugs to treat those conditions. In

due course, Slater filed a charge of discrimination against the

Town with the New Hampshire Human Rights Commission. After

receiving a notice of her right to sue, Slater brought this suit.

III. Analysis

Slater’s complaint asserts eight numbered counts:

• gender discrimination in violation of Title V I I , 42 U.S.C. § 2000e-2(a)(1) against the Town (Count 1 ) ;

• retaliation in violation of Title V I I , 42 U.S.C. § 2000e-3(a) against the Town (Count 2 ) ;

• gender discrimination in violation of the New Hampshire Law Against Discrimination,

-A:7, I against the Town (Count 3 ) ;

• retaliation in violation of the New Hampshire Law Against Discrimination,

-A:19 against the Town (Count 4 ) ;

• violation of her right to equal protection under the federal Constitution against the Town and Kane (Count 5);

• breach of her employment contract against the Town (Count 6 ) ;

• violation of her right to procedural due process under the federal constitution against the Town and Kane (Count 7 ) ; and

• “intentional interference with contractual and economic relations” against Kane (Count 8 ) .

The defendants have moved for summary judgment on all of these

claims, raising a variety of arguments. These include, as noted

9 above, that Slater cannot show the materially adverse employment

action necessary to recover on any of her claims, because she

voluntarily resigned from her job. Slater, in response, argues

that she has come forward with sufficient proof for a jury to

find that (1) having to use the time clock amounted to an adverse

employment action, (2) she did not willingly resign, but was

constructively discharged, and (3) even if her treatment did not

rise to the level of constructive discharge, it nevertheless

amounted to actionable retaliation. The court will discuss these

arguments in turn.

A. Employment Discrimination/Equal Protection

Title VII bans employment practices that “discriminate

against any individual with respect to his . . . compensation,

terms, conditions, or privileges of employment, because of such

individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The New

Hampshire Law Against Discrimination contains a prohibition that

is identical in all relevant respects.

-A:7, I . The “terms, conditions, or privileges of

employment” language of these provisions “encompasses a variety

of adverse employment actions, including demotions,

disadvantageous transfers or assignments, refusals to promote,

unwarranted negative job evaluations, and toleration of

10 harassment by other employees.” Hernandez-Torres v . Intercont’l

Trading, Inc.,

3 , 47 (1st Cir. 1998); accord Madeja v .

MPB Corp.,

7 1 , 380 (2003) (adopting First Circuit’s

view that “actions falling short of ultimate employment decisions

. . . may constitute adverse employment actions” under RSA 354-

A).5 The language, as it appears in these statutes and analogous

employment discrimination laws, also encompasses a “constructive

discharge.” See, e.g., Suarez v . Pueblo Int’l, Inc.,

9 , 54 (1st Cir. 2000).

Slater argues that, her alleged constructive discharge

aside, she experienced discrimination in the terms, conditions,

or privileges of her employment which caused her to complain to

Kane in the first place. But that complained-of treatment, viz.,

having to punch a time clock (alone or in conjunction with having

to work at least forty hours a week during business hours) was

only “the kind of ‘petty slights or minor annoyances that often

take place at work and that all employees experience’ and that,

5 As this court has observed, “the New Hampshire Supreme Court relies on federal case law developed under Title VII in analyzing claims under chapter 354-A.” Dolan v . SunGard Sec s . Fin., LLC,

, 4 n.1 (citing Madeja, 149 N.H. at 3 7 8 ) . Yet, as the court’s discussion at Part III.B infra demonstrates, this does not foreclose the possibility that the state supreme court might interpret certain provisions of RSA 345-A more broadly than its state-law analog. C f . Madeja, 149 N.H. at 379 (calling “federal law developed under Title VII instructive,” rather than “controlling”).

11 consequently, fall outside the scope of the anti-discrimination

laws.”6 Billings v . Town of Grafton,

9 , 54 (1st Cir.

2008) (quoting Burlington N . & Santa Fe Ry. C o . v . White,

3 , 68 (2006)).

Slater argues that making her account for her time by using

the time clock amounted to actionable “[d]isparate treatment on

the basis of gender in the assignment of professional respect.”7

6 Slater does not characterize having to park across the street from her office or drive the salvaged Toyota, see note 1 , supra, as materially affecting her employment--only as evidence of the defendants’ alleged discriminatory animus. In any event, those deprivations also did not rise to the level of adverse employment actions, either individually or in conjunction with having to account for her time on the clock. 7 In support of this argument, Slater relies on 4 Joseph G. Cook & John L . Sobieski, Jr., Civil Rights Actions § 21.22[C][2], at 21-363--21-364 (1992 & 2008 supp.), but that treatise does not support her view. Cook and Sobieski discuss a law review article arguing that an employee’s exclusion from certain social activities, e.g., “‘golfing with the boss or having lunch with the supervisor,’” should count as adverse action under Title VII because they often “bear directly upon an employee’s assignments, working conditions, raises and promotion.” Id. at (quoting Theresa M . Beiner, Do Reindeer Games Count as Terms, Conditions, or Privileges of Employment Under Title VII?, 37 B.C. L . Rev. 643, 645 (1996)). The question raised by the title of this article has been answered, in large part, by the Supreme Court’s decision in Burlington Northern, which observed that “excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement” could amount to an adverse action, at least under Title VII’s anti- retaliation provision. 548 U.S. at 6 9 . Because Slater does not allege that having to account for her time by using the clock hindered her “professional advancement”--and it is difficult to imagine how it could have--this theory is wholly inapposite here.

12 A lack of “respect,” however, does not equate with an adverse

employment action. See, e.g., Marrero v . Goya of P.R., Inc.,

, 25 (1st Cir. 2002); Melendez-Arroyo v . Cutler-Hammer de

P.R. Co.,

0 , 36 (1st Cir. 2001). Indeed, that is true

even when the disrespect is occasioned by some tangible job

action, such as a lateral transfer, see

and Slater

experienced nothing like that. C f . Billings,

(ruling that a lateral transfer to a job with the same pay and

benefits, but with less prestige because of a lower ranked

supervisor, less contact with elected officials and members of

the public, and lower requirements, could constitute an adverse

employment action).

What Slater did experience before her confrontation with

Chief Kane was not, as a matter of law, an adverse employment

action under Title VII or RSA 354-A:7. See, e.g., Marrero,

(ruling that supervisors’ “extreme supervision” of

plaintiff was not adverse as a matter of l a w ) . Furthermore,

because the court of appeals generally applies the same standard

both to equal protection and Title VII claims arising out of

public employment, see Lipsett v . Univ. of P.R.,

8 1 ,

896 (1st Cir. 1988), Slater’s failure to create a genuine issue

as to any adverse employment action supporting her employment

13 discrimination claims is likewise fatal to her equal protection

claim, see, e.g., Mitchell v . Pope,

1 1 , 913-14

& n.2 (11th Cir. 2006) (unpublished disposition). The defendants

are entitled to summary judgment on those claims.

B. Constructive Discharge

Slater also claims that, when she complained about the

perceived disparate treatment, she was subjected to a

constructive discharge in violation of the anti-retaliation

provisions of both Title VII and RSA 354-A, as well as her

constitutional rights to procedural due process and at common

law. Though the court has ruled, as a matter of law, that the

complained-of treatment did not rise to the level of actionable

employment discrimination, that ruling does not make that

treatment irrelevant to the constructive discharge question, that

i s , whether Slater’s “working conditions were so difficult or

unpleasant that a reasonable person in [her] shoes would have

felt compelled to resign.” Torrech-Hernandez, 519 F.3d at 50

(internal quotation marks omitted). Due to the essentially

trivial nature of having to account for one’s time by punching a

clock, however, that requirement does not add much to her

constructive discharge claim, for which “[i]t is not enough that

a plaintiff suffered ‘the ordinary slings and arrows that workers

14 routinely encounter in a hard, cold world.’” Lee-Crespo v .

Schering-Plough Del Caribe Inc.,

4 , 45-46 (1st Cir.

2003) (quoting Suarez,

4 ) .

Because the constructive discharge theory essentially treats

“a seemingly voluntary resignation [as] a termination,” it

requires a plaintiff to show not only that “‘working conditions

. . . were difficult or unpleasant,’” but that “‘his employer did

not allow him the opportunity to make a free choice regarding his

employment relationship. Thus, in order for a resignation to

constitute a constructive discharge, it effectively must be void

of choice or free will.” Torrech-Hernandez v . Gen. Elec. Co.,

1 , 50 (1st Cir. 2008) (quoting Exum v . U.S. Olympic

Comm.,

(10th Cir. 2004)). And “[t]he

standard for addressing a constructive discharge claim ‘is an

objective one: it cannot be triggered solely by the employee’s

subjective beliefs, no matter how sincerely held.’”

(quoting

Marrero,

8 ) .

Slater argues that the confrontation by Kane created a

constructive discharge because “a reasonable employee standing in

[her] shoes would have believed that [her] termination was

imminent.” Torrech-Hernandez,

1 . Employment law

recognizes this theory, protecting “the employee who ‘decides to

quit rather than wait around to be fired,’”

(quoting Bragg v .

15 Navistar Int’l Transp. Corp.,

(7th Cir. 1998).

The theory is a narrow one: “apprehension of future termination

is insufficient to establish constructive discharge--instead, an

employee ‘is obliged not to assume the worst, and not to jump to

conclusions too fast.’”

at 52 (quoting Agnew v . BASF Corp.,

0 7 , 310 (6th Cir. 2002) (further internal quotation

marks omitted)).

Slater offers little to support her constructive discharge

theory beyond her subjective belief that Kane “was going to

terminate my employment either directly or by making things so

difficult I could not continue to stay.”8 She does not claim,

for example, that Kane asked her to quit, told her she would be

fired if she did not quit first, c f . Acrey v . Am. Sheep Indus.

Ass’n,

(10th Cir. 1992) (cited in Torrech-

Hernandez,

1 ) , or threatened to fire her if she

proceeded with her complaints of disparate treatment, c f .

Henderson v . Simmons Foods, Inc.,

1 2 , 615-16 (8th Cir.

2000). According to Slater’s version of the confrontation, in

fact, the closest Kane ever came to overtly threatening her

8 This subjective belief--that the Chief had decided, as of that day, to terminate her, as opposed to threatening to do so if she persisted with workplace complaints in the future--although rejected by the court as objectively unreasonable, is significant to the court’s analysis of her retaliation claim. See infra Part III, C and n . 1 4 .

16 continued employment was when he “told me directly that I should

be concerned about my job” in the context of criticizing her

performance. But telling an employee, in essence, to “shape up

or ship out” does not amount to a constructive discharge, even if

the criticism is unjustified. See Agnew,

(cited

in Torrech-Hernandez,

1 ) ; see also, e.g., Fischer v .

Andersen Corp.,

(8th Cir. 2007) (collecting

cases).

Slater also suggests that Chief Kane indirectly threatened

her job by mentioning “his self-described obsession with efforts

to punish and decertify a former member of the police department

with the obvious implication that he would engage in similar

retribution toward” Slater and, similarly, asking her how she

would like having her job performance “nitpicked.” Slater

grounds her understanding of these remarks in Kane’s “demeanor”

and “manner,” but “an ‘employee’s subjective interpretation that

continued employment would be uncomfortable and demeaning and

would lead to demotion or termination in the future does not

constitute constructive discharge.’”

at 51 (quoting Alfieri

v . SYSCO Foods Servs.-Syracuse,

4 , 24 (W.D.N.Y.

2001)). In any event, even if Slater’s interpretation of these

comments is accepted, “[a]n employee who quits a job in

17 apprehension that conditions may deteriorate later is not

constructively discharged.” Agnew,

; see also

1 Barbara T . Lindemann & Paul Grossman, Employment Discrimination

Law § 20.IV.B, at 1444 ( C . Geoffrey Welch, ed., 4th ed. 2007)

(“even when the employee is faced with what he or she anticipates

will be an intolerable job environment, courts generally hold

that the employee should remain to see whether those fears in

fact do materialize” before quitting) (footnote omitted).

Moreover, these comments did not occur in isolation, but in

the context of an exchange that concluded with Kane’s announcing

that Slater would have to keep using the time clock only until

she had been working for the Town for a full year, when at that

point she had been working for the Town for less than ten months.

No reasonable employee could think termination was imminent based

on statements from her supervisor expressing an intent that she

continue working there.9 To the contrary, “an employee who

leaves his employment when he has been presented with legitimate

options for continued employment with that employer . . . is

9 At oral argument, the Town emphasized that, due to Slater’s status as a permanent employee at that point, Kane had no authority to fire her anyway, and any firing would have been only for cause and preceded by notice and a hearing. As noted above, however, there is no evidence that Slater knew this at that time.

18 precluded from claiming constructive discharge.” LaPointe v .

United Autoworkers Local 6 0 0 ,

(6th Cir. 1996).

And there is no question that having to keep using the time

clock for another two months was a “legitimate option,” given

that the practice was at most a “petty slight” or “minor

annoyance” in the first place, as just discussed. Indeed, the

very fact that Chief Kane proposed this option undermines

Slater’s theory that the inadequacy of the Town’s response to her

complaints justified her resignation so as to make it a

constructive discharge. While “the evaluation of a constructive

discharge claim takes into account how the employer responded to

the plaintiff’s complaints and whether it was likely that the

harassment would continue,” Lee-Crespo, 354 F.3d at 4 5 , that

factor does not fairly support such a claim here. By Slater’s

own account, her immediate supervisor, L t . Fenerty, was

responsive to her gripes, going to Kane for an explanation and

ultimately inviting her to speak to the chief herself. The same

is true of the Town’s director of human resources and town

manager, who promptly answered Slater’s inquiries about having to

use the clock despite her full-time status.10

10 It is true that the town manager later said he was too busy to speak with Slater about her difficulties with Chief Kane, but that did not occur until after Slater had already cleaned out her office, and possibly after she had already tendered her

19 Though, ultimately, Chief Kane responded to news of Slater’s

complaints by angrily confronting her about them, it cannot be

ignored that, at the end of that confrontation, he offered to end

the complained-of practice within two months’ time. So the

totality of the defendants’ response to Slater’s complaint

cannot, as a matter of law, support her theory that she

“reasonably believed that her working conditions . . . would not

change and that she could only anticipate more of the same

intolerable” treatment. Marrero,

(upholding

verdict of constructive discharge where employer ignored

plaintiff’s complaints of sexual harassment until she filed them

with the EEOC, and even then only changed her supervisor without

moving her desk away from the harasser). Indeed, those

conditions were not “intolerable” in the first place because, as

resignation as well. The town manager’s response to Slater, then, could not have factored into her decision to quit and is therefore essentially irrelevant to the constructive discharge question. See Jaetzold v . Glazer’s Wholesale,

(5th Cir. 1999) (unpublished disposition) (“post-resignation events are not probative of the issue of whether pre-resignation work conditions were so intolerable that a reasonable employee would have felt compelled to resign”) (footnote omitted). The same is true of Slater’s charge that “[t]here was no prompt and effective investigation” of Kane’s alleged tirade; that is hardly surprising given that Slater resigned within seventy-two hours.

20 discussed in Part III.A, supra, they did not amount to actionable employment discrimination.11

Slater also argues that, even if her constructive discharge

claim fails under federal law, it could succeed under New

Hampshire law which, she posits, “has adopted a lenient standard

for constructive discharge.” Slater bases this argument on two

cases, neither of which suggests a standard lenient enough to

encompass her allegations.

In the first case, Porter v . City of Manchester,

(2004), the New Hampshire Supreme Court upheld a jury’s finding

of constructive discharge based on the plaintiff’s long series of

run-ins with his supervisor.

at 4 2 . Among other things, the

supervisor made numerous comments threatening the plaintiff’s

firing to others; made similar comments to the plaintiff himself,

11 This is in the starkest contrast to Henderson, supra, a case that Slater nevertheless calls “similar.” There, a coworker harassed the plaintiff “almost continuously from 1994 to 1995, and throughout 1997 . . . with a barrage of sexual vulgarities.”

. “He also groped her . . . rubbed his pelvis up against her backside,” and “shoved a broom handle into the crotch area between her legs.”

Yet the employer repeatedly ignored the plaintiff’s complaints, even reassigning the harasser to a station near the plaintiff’s after he had been moved for an unrelated reason and threatening to fire the plaintiff; when the employer finally launched an investigation, it consisted of interviewing non-English speaking employees without the aid of an interpreter.

How that treatment is “similar” to the indignities perceived by Slater--the worst of which Kane offered to cease in a mere two months--is lost on the court.

21 including, “We’ll see how long you last”; objected to the

plaintiff’s return from a medical leave of absence; physically

prevented the plaintiff from going to the human resources

department in response to an argument between them; and,

ultimately, suspended him.

. Here, in contrast,

Slater’s allegedly objectionable treatment by Kane was limited,

by her own admission, to the one confrontation and that--unlike

the plaintiff’s in Porter--included no tangible employment

action, like a suspension. Indeed, the court in Porter

explicitly held that “[r]elatively minor abuse of an employee is

not sufficient for a constructive discharge. Rather, the adverse

working conditions must generally be ongoing, repetitive,

pervasive, and severe.”

(internal quotation marks and

citation omitted).

In Lacasse v . Spaulding Youth Center,

(2006),

the plaintiff’s supervisor yelled at her twice, once “for several

minutes,” and “treated [her] gruffly” over a two-day span, then,

as part of her annual performance review, “was critical of the

plaintiff’s job performance.”

. Putting aside the

fact that here, Slater was yelled at only once and never given a

negative review, Lacasse reversed the entry of summary judgment

for the employer on the plaintiff’s constructive discharge claim

due largely to another fact absent here: the supervisor’s having

22 warned the plaintiff, during her job interview, that if the

supervisor “comes across anything she dislikes about [an

employee], she makes it miserable enough for them [sic] to quit,

that she does not fire anyone.”

. The court reasoned

that, in light of this “threat,” a “reasonable jury might find

that a reasonable person in the plaintiff’s position would

conclude that [the supervisor] was trying to drive her out, and

that the relatively short period of mistreatment was only the

beginning of a campaign of abuse that would continue until she

quit.”

The record here lacks comparable evidence of any analogous

self-fulfilling prophesy. First, because Slater quit immediately

after receiving the threat, she did not experience her boss’s

starting to put those words into action--in contrast to both the

plaintiff in Lacasse and successful constructive discharge

plaintiffs in general, see 1 Lindemann & Grossman, supra,

§ 20.IV.B, at 1444. Second, and more significantly, Kane’s

perceived threat was coupled with an expressed intention to

continue employing Slater and, after two months, ceasing the

objected-to practice--also in contrast to Lacasse in both the

substance of the threat and the manner in which it was apparently

being carried out (which, there, included a negative performance

review). Slater cannot show constructive discharge as a matter

23 of law under either federal or state standards. See Costa

Precision Mfg. Corp. v . Farris,

0 , 6, 9-11 (ruling that

employee failed to state constructive discharge claim under New

Hampshire law despite a threat that he would be fired and would

“lose everything,” because no previous threats had been made and

“nothing suggests that the threatening conduct had, in fact, been

ongoing, repetitive, pervasive, or even severe”).

C. Retaliation

Slater also argues that, the constructive discharge standard

aside, she can show actionable retaliation under Title VII. The

Supreme Court has indeed explained that because “Title VII’s

substantive provision and its antiretaliation provision are not

co-terminus,” conduct may “discriminate against [an] employee[]

. . . because he has opposed any practice made unlawful” under

Title V I I , 42 U.S.C. § 2000e-3(a), even if it does not

“discriminate . . . with respect to his . . . compensation,

terms, conditions, or privileges of employment,” 42 U.S.C.

§ 2000e-2(a)(1). Burlington Northern, 548 U.S. at 6 7 .

Nevertheless, the “antiretaliation provision protects an

individual not from all retaliation, but from retaliation that

produces an injury or harm.” Id. So “a plaintiff must show that

a reasonable employee would have found the challenged action

24 materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination.”12 Id. at 68 (internal quotation marks

omitted). “[N]ormally petty slights, minor annoyances, and simple

lack of good manners will not create such deterrence.” Id.

As this standard makes clear, the manner in which Chief Kane

allegedly reacted to Slater’s complaint--by confronting her with

a raised voice on one occasion--does not approach the materially

adverse employment action necessary for a retaliation claim. A

supervisor’s “upbraiding” or “criticizing” an employee for

pursuing a discrimination claim generally does not amount to

actionable retaliation as a matter of law. Billings,

(ruling that defendant supervisor did not retaliate as a

matter of law by calling plaintiff into his office and accusing

her of trying to embarrass him before his superiors). Indeed,

“[t]he Supreme Court . . . has emphasized that sporadic verbal

12 The New Hampshire Supreme Court has yet to consider whether to use the Burlington Northern standard for retaliation claims under RSA 354-A:19. This court will assume that the New Hampshire Supreme Court would do s o , given its usual practice of looking to federal anti-discrimination law in interpreting New Hampshire anti-discrimination law. See note 5 , supra. Slater does not argue that New Hampshire would use a test for retaliation which is more favorable to her, and the state supreme court, albeit in a pre-Burlington Northern decision, did not in fact use a more favorable test, see Madeja, 149 N.H. at 378-80.

25 altercations or disagreements do not qualify as adverse actions

for purposes of retaliation claims.” Baloch v . Kempthorne,

(D.C. Cir. 2008) (ruling that a boss’s

“profanity-laden yelling”--including threats to have plaintiff

removed from the workplace in handcuffs--did not show actionable

retaliation, citing Burlington Northern, 548 U.S. at 6 8 ) ; see

also Hardage v . CBS Broad., Inc.,

, 1189 (9th Cir.

2005) (upholding summary judgment for defendant on a retaliation

claim based on a superior’s “snide remarks and threats, such as

‘your number’s up’ and ‘don’t forget who got you where you are,”

ruling that they would not “deter reasonable employees from

complaining about Title VII violations”) (further internal

quotation marks omitted), amended,

(9th Cir. 2005).

At oral argument, Slater emphasized that her retaliation

theory was based more on what Kane said than on how he said i t ,

in particular, his threat to subject her to “nitpicking.” The

court agrees that a threat, depending on its severity, could

constitute retaliation in the sense that “it well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination,” Burlington Northern, 548 U.S. at 6 7 . See,

e.g., EEOC v . Creative Networks, LLC, N o . 05-3032,

, at *6 (D. Ariz. Mar. 9, 2009); Martin v . Gates, N o . 07-

26 513,

, at *5 (D. Haw. Oct. 2 0 , 2008); Thomas v .

iStar Fin., Inc.,

4 8 , 366 (S.D.N.Y. 2006). 13

A threat to subject an employee to heightened scrutiny would

not have that deterrent effect, however, because heightened

scrutiny is not itself an adverse employment action sufficient to

show retaliation. See, e.g., Billings,

4 ;

Hernandez-Torres,

7 ; see also Novack,

, at *3 (ruling that plaintiff could not establish

retaliation based on a threatened transfer because the transfer

would not have been an adverse action anyway). In contrast,

threats that have been found sufficiently adverse to support

retaliation claims include “I could fire you right now,” Creative

Networks,

, at * 6 , or “a combination of threats and

actions taken with the design of imposing both economic and

psychological harm,” Williams v . W.D. Sports, N.M., Inc., 497

13 There is substantial authority--some of it post-dating Burlington Northern--that a threat cannot amount to an adverse employment action unless the threat is carried out. See, e.g., Dick v . Phone Directories Co.,

(10th Cir. 2005); Novack v . Principi, N o . 04-40,

, at *3 (N.D. Fla. Mar. 1 9 , 2007); Davis v . Emery Worldwide Corp.,

(D. M e . 2003); Helgeson v . Am. Int’l Group, Inc.,

(S.D. Cal. 1999); Chisholm v . Foothill Capital Corp.,

, 937-38 & n.5 (N.D. Ill. 1998). This court need not decide whether to adopt such a broad rule here, but notes that its blanket nature appears to be inconsistent with Burlington Northern’s teaching that “the significance of any given act of retaliation will often depend upon the particular circumstances.” 548 U.S. at 6 9 .

(10th Cir. 2007) (threats to spread false rumors

about the employee’s sexual activity and ruin her marriage,

coupled with opposition to the plaintiff’s claim for unemployment

benefits based on a false charge of sexual harassment).14

This is not to suggest that a threat does not rise to the

level of retaliation unless it is explicitly directed at the

plaintiff’s continued employment. Taken as a whole, however,

Chief Kane’s comments to Slater do not approach the standard for

retaliatory adverse action. Again, Kane concluded his comments

by offering to cease the very practice that Slater had

challenged, albeit in two months instead of immediately. It is

difficult to see how an employer “well might have dissuaded a

reasonable worker from making or supporting a charge of

discrimination” through an exchange that, while no doubt

14 The same is true of threatening an employee with firing if she persists with the protected activity. See, e.g., Beckel v . Wal-Mart Assocs., Inc.,

2 1 , 624 (7th Cir. 2002). But that is not Slater’s theory here. She argues that, as a result of her protected activity, she “had crossed the line with” Kane, who was determined to fire her or force her to quit--as opposed to giving her an ultimatum to stop complaining or be fired. The court repeatedly pressed Slater’s counsel on this point at oral argument, and counsel stated without equivocation that Slater believed to a certainty that her confrontation with the Chief manifested his decision to terminate her, as opposed to threaten her termination if she persisted with her workplace complaints in the future.

28 unpleasant, concluded in an agreement that the employee would

soon be free of the alleged discrimination.

To be sure, few employees, particularly those new to the job

or career, would look forward to a showdown with a supervisor

like the one Slater recounts, but “[a]n employee’s decision to

report discriminatory behavior cannot immunize that employee from

those petty slights or minor annoyances that often take place at

work and that all employees experience.” Burlington Northern,

548 U.S. at 6 8 . And the fact is that a boss’s yelling at an

employee, subjecting the employee to unjustifiable criticism,

and calling into question his or her future on the job is a

common employee experience.15 Furthermore, there is ample

evidence that Slater found the encounter personally upsetting,

but the Supreme Court has instructed that, for retaliation

claims, the “standard for judging harm must be objective,” not

based on a plaintiff’s “subjective feelings.” Id. at 68-69.

Slater cannot show retaliatory conduct as a matter of law.16

15 Indeed, this scene has been captured in popular fiction ranging from James Joyce’s Dubliners (the “Counterparts” story”) to Scott Adams’s Dilbert. 16 The cases on which Slater relies in support of her retaliation claim, like those on which she relies in support of her constructive discharge claim, are distinguishable in ways that make them inapposite. See Thomas v . Tex. Dep’t of Crim. Justice,

(5th Cir. 2000) (upholding plaintiff’s verdict on retaliation claim based on failure to promote or

29 D. The remaining claims

Finally, because Slater was not fired, but quit--and because

she cannot show that she was forced to quit by way of a

constructive discharge--she cannot prevail on any of her

remaining claims that do not arise out of employment law, namely,

those alleging violations of her constitutional right to

procedural due process and common-law breach of contract and

intentional interference with contractual relations.

By the Town’s own admission, Slater had a constitutionally

protected property interest in her continued employment that

would have entitled her to procedural due process, but she

transfer); Howard v . Bd. of Educ.,

(N.D. Ill. 1995) (ruling that allegations that principal responded to teacher’s sexual harassment complaint by telling her “to let the harassment continue or heads would roll,” and that she was constructively discharged, while “a bit thin, even under the federal notice pleading standards, . . . minimally allege a prima facie case of retaliation”). Two of those cases, including one from the court of appeals, recognize a theory of retaliatory harassment, see Noviello v . City of Boston,

6 , 89-94 (1st Cir. 2005); Elvig v . Calvin Presbyterian Church,

5 1 , 965 (9th Cir. 2004), which Slater appears to disclaim in her objection to the summary judgment motion. In any event, to prove retaliatory harassment, a plaintiff must prove conduct that would amount to a hostile work environment, i.e., “severe or pervasive harassment that materially altered the conditions of her employment” as opposed to “the ordinary, if occasionally unpleasant, vicissitudes of the workplace.” Noviello,

2 . Slater’s single unpleasant encounter with Kane does not fit the bill. See Pomales v . Celulares Telefonica, Inc.,

9 , 83-84 (1st Cir. 2006

30 voluntarily gave up those rights when she resigned. She

therefore cannot maintain a procedural due process claim. See

Mercado-Alicea v . P.R. Tourism Co.,

6 , 53 (1st Cir.

2005). By the same reasoning, the Town did not breach Slater’s

employment contract by “terminating” her without cause because

she was not terminated, either actually or constructively. See

Karch v . BayBank FSB,

(2002).

Nor can Slater prevail on her claim of intentional

interference with contractual or economic relations against Kane,

which requires her to prove, inter alia, that the allegedly

improper interference caused her damages. See Singer Asset Fin.

C o . v . Wyner,

6 8 , 478 (2007). The only damages Slater

claims from Kane’s alleged interference with her purported

contract with the Town are her “constructive discharge and the

termination of her employment,” but, again, she cannot prove

constructive discharge as a matter of law, so the loss of her job

was her own doing, not Kane’s. Slater acknowledged at oral

argument, in fact, that her intentional interference claim was

dependent on her constructive discharge theory. The defendants

are entitled to summary judgment on all of Slater’s claims.

31 IV. Conclusion

Even when Slater’s version of her confrontation with Chief

Kane is accepted as true, that confrontation, though no doubt

intimidating to a new lawyer in her position, is simply not

tantamount to employment discrimination or retaliation. As the

court of appeals has instructed, “a supervisor’s unprofessional

managerial approach and accompanying efforts to assert [his]

authority are not the focus of the discrimination laws.” Lee-

Crespo, 354 F.3d at 4 6 . Accordingly, the defendants’ motion for

summary judgment (document n o . 13) is GRANTED because Slater has

not demonstrated a genuine issue of fact as to whether she was

constructively discharged or otherwise suffered an adverse

employment action. All other pending motions are DENIED as moot.

The clerk shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N . Laplante United States District Judge

Dated: March 2 0 , 2009

cc: Craig L . Staples, Esq. Elaine M . Michaud, Esq. Donald L . Smith, Esq. Charles P. Bauer, Esq.

32