Scott v . NH Police Standards CV-12-435-PB 3/8/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David B . Scott

v. Case N o . 12-cv-435-PB Opinion N o .

NH Police Standards and Training Council, et a l .

O R D E R

David Scott was offered a job as a full-time police officer

with the Barnstead, New Hampshire, Police Department. He later

enrolled at the New Hampshire Police Academy, but he did not

graduate because he was unable to pass the Academy’s final

fitness test. As a result, he is not eligible to work as a

full-time police officer in New Hampshire.

Scott has sued the New Hampshire Police Standards and

Training Council and the State of New Hampshire. He argues that

defendants are liable under Title VII because the Academy’s

final fitness test improperly discriminates against male cadets.

Defendants have moved to dismiss the complaint for failure to

state a claim. Their principle argument is that they are not

subject to Title VII because they do not qualify as Scott’s

“employers.” Title VII provides a cause of action against employers.1 It

does not authorize claims against third parties who interfere

with employment relationships. Lopez v . Massachusetts,

9 , 89 (1st Cir. 2009). In determining whether a defendant

qualifies as an employer, a court must look to common law agency

principles to determine the existence of an employer-employee

relationship.

at 8 3 .

In the present case, Scott does not cite any facts that

would support a claim that either of the defendants could be

considered his employer under common law standards. Instead, he

argues that defendants should be treated as employers because

they set standards that he must meet in order to be eligible for

employment by others. This is nothing more than a contention

that the defendants should be treated as his employers for

purposes of Title VII because they interfered with his attempt

to obtain employment elsewhere as a local police officer.

Because the First Circuit has expressly rejected the theory of

liability on which Scott’s claim is based, I agree with the

defendants that Scott’s complaint must be dismissed.

1 Title VII also covers employment agencies and labor unions. See Lopez v . Massachusetts,

9 , 83 n.12 (1st Cir. 2009) (citing 42 U.S.C.§§ 2000e(c)-(d)). Scott has failed to present any credible argument that defendants qualify under either provision.

2 The motion to dismiss (Doc. N o . 5 ) is granted. The clerk

shall enter judgment for the defendants and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 8 , 2013

cc: David B . Scott, pro se Nancy J. Smith, Esq.

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