UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Maria Dalomba

v. Civil No. 15-cv-272-PB Opinion No.

Edwin Simonsen, et al.

MEMORANDUM AND ORDER

Maria Dalomba and her family, who are African-American,

camped for several seasons at Hidden Valley RV Park in Derry,

NH. During their time at Hidden Valley, the family experienced

a series of racially-charged taunts and threats, largely from

another camper and a park “security guard.” When Dalomba

brought these incidents to the attention of defendants Edwin

Simonsen and Catherine Kierstead, the park’s managers, they

responded with their own provocative comments and what Dalomba

perceived as a threat to throw them out of the park.

Dalomba now brings suit against Simonsen, Kierstead, and

Hidden Valley under

, arguing that the

defendants interfered, on account of Dalomba’s race, with her

contractual right to stay at the park. The defendants move to

dismiss pursuant to Rule 12(b)(6). They claim, among other

things, that the entire action is barred by the applicable

statute of limitations, and that Dalomba failed to allege sufficient facts to show that Simonsen and Kierstead

individually took any racially-motivated action against her.

For the reasons that follow, I grant the defendants’ motion in

part and deny it in part.

I. BACKGROUND1

Maria Dalomba, her partner Larry Barrows, and their five

children are “Black persons of African heritage.” Doc. No. 1 at

3. For the summer and early fall each year from 2007 to 2011,

the family rented a space at the Hidden Valley RV Park in Derry,

NH and camped there together under a seasonal contract. During

the years they camped at Hidden Valley, Dalomba and her family

were the only campers of African heritage at the park.

From 2008 to 2011, a camper named Sean Piper, a Caucasian,

rented the site adjacent to Dalomba. Sometime during the summer

of 2008, Dalomba’s oldest child, Troy, was walking with a group

of friends when Piper called over to Troy and yelled the word

“mongrel.” Id. at 4. Piper also told a girl who had been

walking with Troy to “watch out or you will have mongrel

1 The facts are drawn primarily from Dalomba’s complaint (Doc. No. 1) and are construed in the light most favorable to Dalomba. See Rivera v. Centro Medico de Turabo, Inc.,

(1st Cir. 2009).

2 babies.”

Another camper who witnessed the incident

mentioned it to Dalomba, who reported it to the then-campground

manager Stephanie Simonsen, the now-deceased wife of defendant

Edwin Simonsen. Stephanie Simonsen apologized to Dalomba and

promised to speak with Piper about the incident, although no one

associated with Hidden Valley followed up with Dalomba or took

corrective action. Id. at 5. Dalomba and her family were very

upset by the incident and Troy left the campground, returning

“only rarely” after the encounter. Id. at 4.

In addition to the “mongrel” incident, Piper continued to

give Dalomba and her family a difficult time. Later that summer

of 2008, Piper complained to a park security guard identified in

Dalomba’s complaint as “Francis”2 about music that Dalomba and

her family were playing, even though the music was not playing

loudly. Id. at 6. Francis came over to Dalomba’s campsite and

demanded that Dalomba turn down the radio, even though “quiet

time” had not begun at the park. Id. In addition, Francis came

over on several occasions and demanded that the family put out

their campfire early, before 9:00 p.m., despite the campground

2 The complaint does not disclose the security guard’s full name. See generally Doc. No. 1 at 6-18. It notes only that “Francis” was a “camper-security guard employee of Hidden Valley.” Id. at 8.

3 rule allowing fires until 10:30 or 11:00 p.m. Id. Francis also

followed Barrows, Dalomba’s partner, around the golf course when

Barrows played golf. Francis did not follow white golfers

around the golf course in the same manner. Id.

During the 2009 and 2010 camping seasons, Piper continued

to harass Dalomba and her family. On multiple occasions, when

they were cooking on their grill, Piper yelled over: “what are

we having, fried chicken and watermelon?” followed by a burst of

laughter. Id. at 7. Similarly, when Dalomba and her children

entered the campground lake to swim, Piper yelled to his son to

“[c]ome out of the water, because you don’t want to catch

anything.” Id. To avoid these encounters, Dalomba took her

kids to a smaller and less desirable pond to swim. Id.

The summer of 2011 brought more racially-charged incidents.

On June 26, 2011, Francis called out “nigger campers!” in the

direction of Dalomba’s campsite during a conversation with other

campers. Id. at 8. The following day, a “new security guard,”

who the complaint identifies as “Jeremy/James”3 Kierstead, came

by Dalomba’s campsite and told Dalomba and Barrows that he had

3 The complaint does not indicate why this individual is referred to as “Jeremy/James,” but it notes that he was the son of defendant Catherine Kierstead and the grandson of defendant Edwin Simonsen. Doc. No. 1 at 8.

4 “heard about what happened last night.” Id. Jeremy/James said

that he was surprised that Barrows had not physically assaulted

Francis for his comment about “nigger campers.” Id. Dalomba

and Barrows responded by explaining to Jeremy/James their

history of racial harassment from Piper, including the comments

about “mongrels,” fried chicken, and watermelon. Id. at 8-9.

They noted that they felt intimidated when they left their

trailer and that Piper was also harassing them about the

location of their flower bed. Id. at 9.

In response, Jeremy/James assured Dalomba that his mother,

defendant Kierstead, and his grandfather, defendant Simonsen,

were aware of Piper’s harassment and would “take action.” Id.

Barrows also reported the incident directly to Simonsen and

Kierstead during a conversation about why Barrows and family did

not attend camp dances. Barrows responded that he did not want

to hear comments about watermelon and preferred to stay home.

Id. at 9-10.

Another confrontation occurred about a week later, on July

2, 2011. Elijah, Dalomba’s son, was riding his bike on a narrow

path when Piper drove up to him in a golf cart, nearly forced

him off the path, and told Elijah to “move it monkey!” Id. at

10. Piper then sped away. Elijah returned home upset and

5 explained to Dalomba what had happened. Later, in response,

Barrows went over to Piper’s trailer and told him “if you ever

touch my kid I will break your _______ neck!”4 Id. Simonsen

then arrived on the scene and witnessed a neighbor of Piper’s

named Wayne (Wally) McFarland threaten Barrows, saying “[i]f you

people want trouble, we’ll bring it;” “[y]ou’d better move or

you’re going to have problems;” and “I have people I can call.

Don’t make me make the call!” Id. at 11. Piper’s girlfriend

Lisa Carson was also on the scene, and made an obscene gesture

at Dalomba, who was nearby. Id. Dalomba responded by swearing

at Carson. Id.

After Dalomba responded to Carson’s gesture, Simonsen

intervened and yelled at Dalomba to “Calm down because when you

people get upset you start shooting.” Id. The following

exchange ensued:

Dalomba: “Are you kidding me?” Simonsen: “Calm down, young lady!” Dalomba: “Don’t you see that we’re being threatened?” Simonsen: “No, I don’t, and if you don’t calm down, you’ll be thrown out.” Dalomba: “We can’t calm down, he’s a racist and called our son a monkey.” Simonsen: “I don’t know about that, but you need to calm down.”

4 I quote verbatim from the complaint, which includes “_____,” presumably shorthand for an expletive.

6 Id. Simonsen did not tell the other campers to calm down,

despite their repeated comments and threats.

A week later, on July 9, 2011, Dalomba and her family

discovered a large, inflated plastic monkey hanging from its

neck from a tree located within the campsite of Francis, the

security guard. Id. at 12-13. As Dalomba and Barrows gathered

their children into the trailer and prepared to confront

Simonsen and Kierstead about the monkey, another security guard

named John Dusombre approached them in a golf cart and ordered

Dalomba to move her garden. Id. at 13. Dalomba announced that

she was going to the campground office.

When Dalomba arrived at the office, no one was there, so

she knocked on the door of the campground residence. Kierstead

came to the door and Dalomba asked her if she had seen the

monkey hanging from the tree. Instead of responding about the

monkey, Kierstead pointed a finger in Dalomba’s face and asked

her if Dalomba was going to move her garden. Id. Dalomba

stated that she was there to talk about the monkey, not a

garden, and demanded to know whether Kierstead was going to take

down the monkey. Id. at 14. Kierstead responded that she would

not take down the monkey, and said that “the monkey was for the

children’s entertainment.” Id. Dalomba replied, “Are you

7 serious? If you think that the monkey is for entertainment, you

are a racist _____.” Id. In response, Kierstead pointed at

Dalomba’s face again. Dalomba told her to remove her finger but

Kierstead yelled “I can point my fingers at your face because I

can.” Id. Then Kierstead said, “If you don’t move your garden

today, you’ll be out of here.” Id. Dalomba replied that she

would move the garden when Kierstead took the monkey down, and

requested that Kierstead “please stop pretending that this

wasn’t a race issue about the monkey.” Id. Kierstead

responded, “You guys are fighting about flower beds.” Id.

Dalomba insisted that her issue was the monkey hanging from

a tree, not flower beds. Finally, Kierstead “promis[ed] that

she would have her father throw them out.” Id. at 15. Dalomba

responded that they would leave, and requested that Kierstead

write her a check for the prorated amount for leaving early.

Kierstead indicated that that would not be a problem but that

Dalomba and her family would have to clean the site before they

left. Id. Dalomba agreed, and continued to emphasize that the

issue they had was racism and the monkey, while Kierstead

insisted it was the flower bed.

Dalomba returned to her family and informed them that they

had been kicked out of the campground because “we are Black and

8 we spoke up.” Id. at 15. They then cleaned their campsite with

the help of other neighbors. Jeremy/James, the security guard,

came by once they were finished and remarked at how clean the

site looked. Id. at 16. Barrows received a refund check that

appeared to cover the entire month of July, which was more than

they were entitled to, so he went to speak with Kierstead. Id.

Kierstead said that she was giving him a refund for the entire

month because “I just want you out of here.” Id. The family

departed that day, although they left the trailer behind because

they needed a few extra days to contact a trailer moving

company. Id.

At some point soon after Dalomba and family had left Hidden

Valley, Jeremy/James removed the lug nuts from Dalomba’s trailer

despite Barrows asking him not to. Id. at 17. Jeremy/James

claimed that he had removed the lug nuts to help inflate the

trailer’s tires. Id. This impeded Barrows’s ability to remove

the trailer from Hidden Valley. Id.

Six days after Dalomba and her family left Hidden Valley,

on July 15, 2011, Dalomba discovered that the refund check

issued them by Kierstead had a “stop payment” on it and was

subject to a $35 fee by the bank. Id. Barrows called

Kierstead, who informed him that she had placed the “stop

9 payment” on the check because their campsite was not clean. Id.

Barrows responded that he had pictures of their site, and it was

clean. Id. Eventually, a new check was issued without the

“stop payment” notification. Id.

The next month, on August 26, 2011, Dalomba filed a charge

of discrimination with the New Hampshire Commission for Human

Rights. Id. at 18. A copy of the document was sent to Hidden

Valley. A week later, on September 2, 2011, Jeremy/James called

Dalomba and stated that Dalomba’s “suing” would “get nowhere”

since “we donate so much money to the State of New Hampshire.”

Id.

Nearly four years after these events, on July 11, 2015,

Dalomba brought suit in this court against Simonsen, Kierstead,

and Hidden Valley, for alleged violations of

.

The defendants filed a motion to dismiss under Rule 12(b)(6).

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, a plaintiff must allege

sufficient facts to “state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal,

(2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007).

A claim is facially plausible if it provides “factual content

10 that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

This

plausibility standard “asks for more than a sheer possibility

that a defendant has acted unlawfully,”

but “simply calls

for enough fact to raise a reasonable expectation that discovery

will reveal evidence” of wrongdoing. Twombly,

.

I employ a two-step approach in deciding a Rule 12(b)(6)

motion. See Ocasio-Hernandez v. Fortuno-Burset,

(1st Cir. 2011). First, I screen the complaint for statements

that “merely offer legal conclusions couched as fact or

threadbare recitals of the elements of a cause of action.”

(citations, internal punctuation, and alterations omitted). I

then accept as true all non-conclusory factual allegations and

the reasonable inferences drawn from them, and determine whether

the claim is plausible.

In an appropriate case, an affirmative defense, including

the statute of limitations, may be adjudicated on a Rule

12(b)(6) motion to dismiss. See In re Colonial Mortg. Bankers

Corp.,

(1st Cir. 2003). An appropriate case is

one in which two conditions are met. See

First, “the facts

that establish the defense must be definitively ascertainable

from the allegations of the complaint . . . .” Id.; Blackstone

11 Realty LLC v. FDIC,

(1st Cir. 2001). Second,

“the facts so gleaned must conclusively establish the

affirmative defense.” In re Colonial Mortg.,

;

see also Edes v. Verizon Commc’ns, Inc.,

(1st

Cir. 2005) (“Granting a motion to dismiss based on a limitations

defense is entirely appropriate when the pleader's allegations

leave no doubt that an asserted claim is time-barred.”) (quoting

LaChapelle v. Berkshire Life Ins. Co.,

(1st

Cir. 1998)).

III. ANALYSIS

Dalomba brings suit under

, a

Reconstruction-era federal statute that prohibits racial

discrimination in the “mak[ing] and enforc[ing]” of contracts.

(a). Section 1981 claims are often, though not

exclusively, brought in the employment context, since disputes

over discriminatory hiring and firing generally implicate

employment contracts. See Young v. Int'l Tel. & Tel. Co.,

, 760 (3d Cir. 1971) (“In the context of the

Reconstruction it would be hard to imagine to what contract

right [besides employment] the Congress was more likely to have

been referring.”). Over time, section 1981 jurisprudence has

12 thus been influenced by case law interpreting Title VII of the

Civil Rights Act of 1964, see 42 U.S.C. § 2000e, although

meaningful differences exist between the statutes. See CBOCS

W., Inc. v. Humphries,

(2008) (noting that

“the remedies available under Title VII and under § 1981,

although related, and although directed to most of the same

ends, are separate, distinct, and independent.”) (quoting

Johnson v. Railway Express Agency, Inc.,

(1975)); Smith v. Bray,

(7th Cir. 2012) (“The

substantive standards and methods of proof that apply to claims

of racial discrimination and retaliation under Title VII also

apply to claims under § 1981.”); Madison v. IBP, Inc.,

(8th Cir. 2003) (Applying “similar standards . . .

under both Title VII and § 1981” and noting that the “two

statutes have substantially identical legal theories of

recovery”) (internal alterations and quotations omitted).

Like Title VII claims, § 1981 claims are generally brought

under one of three distinct theories: (1) purposeful

discrimination; (2) a hostile work environment based on racial

harassment; or (3) retaliation. Each cause of action carries

its own elements and body of supporting case law. To state a

claim for purposeful discrimination under § 1981, a plaintiff

13 must show: (1) that she is a member of a racial minority, (2)

that the defendants possessed an intent to discriminate on the

basis of race, and (3) that the discrimination implicated one or

more of the activities enumerated in the statute. King v.

Friends of Kelly Ayotte,

(D.N.H.

2012) (citing Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,

, 1087 (2d Cir. 1993) (per curiam)). To state a viable

racial harassment claim under § 1981, the plaintiff must

establish that she is a member of a racial minority and that the

defendant intentionally interfered with her ability to make or

enforce a contract by engaging in severe or pervasive racial

harassment of the plaintiff. See generally Crowley v. L.L.

Bean, Inc.,

(1st Cir. 2002) (discussing racial

harassment claims under § 1981 in the employment context).5

5 Although this case arises outside the employment context – Dalomba was essentially a lessee, not a Hidden Valley employee – the legal rationale underpinning § 1981 hostile work environment claims applies with equal force here. Section 1981 prohibits racial discrimination in the making and enforcing of contracts.

(a). Although employment contracts are the most common form of contractual relationship at issue in § 1981 cases, the statute “does not limit itself, or even refer, to employment contracts but embraces all contracts.” Danco, Inc. v. Wal-Mart Stores, Inc.,

(1st Cir. 1999) (emphasis added). Additionally, courts have recognized, at least in the employment context, that the creation or tolerance of a racially hostile environment may constitute impairment of a contractual relationship sufficient to allow a claim under § 1981. See PowerComm, LLC v. Holyoke Gas & Elec. Dep't,

Finally, to state a claim for retaliation in the context of the

present case, the plaintiff must show that she complained to the

defendant of racial discrimination or harassment, that the

defendant interfered with her ability to make or enforce a

contract, and that her complaint and the defendant’s

interference are causally connected. See generally Humphries,

(holding that § 1981 applies to claims of

retaliation); Pina v. Children's Place,

(1st Cir. 2014) (describing a § 1981 retaliation claim in the

employment context); Ellis v. Houston,

(8th

Cir. 2014) (same).

Here, Dalomba’s complaint is broken into two counts, both

under § 1981: Count I alleges “discriminatory harassment” and

Count II alleges “retaliation.” Doc. No. 1 at 18-24. Dalomba

bases both counts on substantially the same evidence and the

31, 37 (1st Cir. 2011) (“[i]t is common ground that hostile work environment claims, charging violation of § 1981 or Title VII, can be based on racial bias”); Lopez v. S.B. Thomas, Inc.,

(2d Cir. 1987) (“[t]he cause of action for a hostile working environment has also been recognized under § 1981”). Thus, a hostile environment that impairs a contractual relationship in the employment context may conceivably impair a contractual relationship outside that context as well. See, e.g., Danco,

(“One could say that avoiding a hostile work environment is an implicit contractual benefit or term . . . .”).

15 parties do not differentiate between the counts in their briefs.6

In response to Dalomba’s claims, the defendants present two

primary arguments. First, they contend that the suit is barred

by the four-year statute of limitations that applies to

defendants’ claims. Second, they argue that neither Simonsen

nor Kierstead displayed the racial animus necessary to state a

claim under § 1981.7 I consider each argument in turn.

A. Statute of Limitations

Section 1981 claims are subject to the four-year federal

6 In addition, neither party discusses whether Count I should be construed as a purposeful discrimination claim or a harassment claim. Construing the count generously in favor of the plaintiff, however, I understand her to assert a hostile environment racial harassment claim.

7 The defendants also argue, relying largely on cases analyzing Title VII claims, that § 1981 does not allow claims for individual liability. See doc. no. 20-1 at 5-9. This argument is unpersuasive. Although the First Circuit has not explicitly addressed the issue, at least five circuits have held that § 1981 permits claims for individual liability. See Whidbee v. Garzarelli Food Specialties, Inc.,

(2d Cir. 2000); Allen v. Denver Pub. Sch. Bd.,

, 983 (10th Cir. 1991); Jones v. Cont'l Corp.,

, 1231 (6th Cir. 1986); Taylor v. Jones,

(8th Cir. 1981); Faraca v. Clements,

(5th Cir. 1975). The defendants seek to overcome this persuasive authority by citing cases holding that Title VII discrimination claims do not encompass individual liability. See, e.g., Gascard v. Franklin Pierce Univ.,

. More would be required, however, to persuade me to disregard the carefully-considered decisions of the other circuit courts that have construed § 1981 differently.

16 “catchall” statute of limitations set forth in

.

See Jones v. R.R. Donnelley & Sons Co.,

(2004). Dalomba filed this action on July 11, 2015. Most of

the alleged discriminatory incidents, including Dalomba’s

departure from Hidden Valley, occurred before July 11, 2011 –

outside the four year period. The parties agree that only three

relevant actions took place after July 11, 2011: (1)

Jeremy/James Kierstead removed the lug nuts from Barrows’

trailer; (2) Catherine Kierstead placed a “stop payment” on the

refund check; and (3) Jeremy/James called Dalomba to state that

her lawsuit would “get nowhere.” See doc. nos. 23 at 1-2; 26 at

1-2 (noting that the parties appear to agree that only these

three incidents fell within the four year period).

Defendants argue that the statute of limitations bars

Dalomba from basing her claims on any actions that occurred

prior to July 11, 2011. Moreover, they claim, the three

remaining timely acts are not themselves discriminatory, and

therefore Dalomba fails to state a viable § 1981 claim. Dalomba

counters that the defendants’ actions must be viewed as a

“continuum of racial harassment” that developed over time and

created a racially hostile environment at the camp. She invokes

the “continuing violations” doctrine, arguing that as long as

17 one discriminatory act is timely, the court may consider all

related acts as part of a pattern of repeated conduct.

To analyze these claims, I apply National Railroad

Passenger Corp. v. Morgan, which provides the current framework

of the “continuing violations” doctrine.8

(2002). To determine when events are barred by the

statute of limitations, Morgan distinguishes between “discrete

acts of discrimination or retaliation” and hostile environment

claims.

. On the one hand, in claims involving a

“discrete retaliatory or discriminatory act,” Morgan holds that

a party must file a claim within the applicable limitations

period or lose the ability to recover for it. See

.

On the other hand, claims alleging a hostile environment need

only involve “a single act of discrimination or harassment”

8 Morgan considered a racial discrimination claim brought under Title VII, not § 1981, but as the parties have discussed, Title VII closely resembles § 1981 and generally applies the same analytical framework. See Conward v. Cambridge Sch. Comm.,

(1st Cir. 1999) (noting that claims under section 1981 and Title VII hinge upon “identical legal standards”). As a result, although Morgan’s “continuing violations” doctrine is most often employed in Title VII cases, it applies with equal force to claims based on § 1981. See, e.g., Tademy v. United Pac. Corp.,

(10th Cir. 2008) (noting that “the Seventh, Eighth, and Eleventh Circuits have all concluded that Morgan's analysis of the Title VII statute of limitations for hostile environment claims should be applied to § 1981 claims”).

18 within the statutory filing period to satisfy the statute of

limitations. Id. at 115. This is because “[h]ostile

environment claims are different in kind from discrete acts.

Their very nature involves repeated conduct.” Id.; Madison,

. Thus, “[p]rovided that an act contributing to the

claim occurs within the filing period, the entire time period of

the hostile environment may be considered by a court for the

purposes of determining liability.”9 Morgan,

.

This distinction proves important here because Count I of

Dalomba’s complaint alleges an ongoing pattern of racial

harassment that continued into the limitations period, whereas

Count II alleges retaliation based on discrete acts, most of

which occurred more than four years before Dalomba filed her

complaint. Accordingly, when considering the sufficiency of

Count I, if Dalomba alleges that “a single act of discrimination

9 The First Circuit traditionally applied the continuing violations doctrine by distinguishing between “serial” and “systemic” violations, with a separate analysis for each category. See Provencher v. CVS Pharmacy,

, 14 (1st Cir. 1998). Morgan analyzes the issue by using different terminology. See

. Thus, it is no longer necessary to determine whether the continuing violation doctrine applies by considering whether a violation is serial or systemic. Crowley,

(“Morgan supplants our jurisprudence on the continuing violation doctrine in hostile work environment claims, making it no longer necessary to distinguish between systemic and serial violations”).

19 or harassment” occurred within the filing period, I must

consider “the entire time period of the hostile environment.”

Id. at 115, 117. As stated above, three acts of alleged

harassment indisputably fell within the filing period: the lug

nut removal, the stop payment order, and the threatening phone

call. Dalomba argues that each of these acts constituted

harassment because they continued a pattern of racially-

motivated unfair treatment. For the purposes of this motion,

where I draw all reasonable inferences in Dalomba’s favor, I

agree. All of the events before and after July 11, 2011 may

therefore be considered when evaluating Dalomba’s hostile

environment claim.

Dalomba’s retaliation claim is different. According to

Dalomba, Simonsen and Kierstead retaliated against her for

complaining about the racist comments Dalomba and her family

endured. Dalomba identifies a number of actions that allegedly

constituted “retaliation:” her constructive eviction from the

campground; the defendants’ refusal to address any of the racist

comments from third parties like Piper; the removal of the lug

nuts; the stop payment order; and Jeremy/James’s intimidating

20 phone call.10 Her complaint does not highlight any one of these

acts as a “discrete act” of retaliation, but appears to view all

these incidents as one broad continuum of racially-motivated

“retaliation.”

Morgan, however, clearly distinguishes between retaliation

claims involving discrete acts and hostile environment claims

involving patterns of discriminatory conduct. See

. Following that guidance here, I must view each of the

defendants’ alleged acts of retaliation as separate, discrete

acts. It therefore becomes clear that acts before July 11,

2011, including the constructive termination of Dalomba’s lease,

are time-barred and may not be considered for Dalomba’s

retaliation claim. See

(“[D]iscrete discriminatory

acts are not actionable if time barred, even when they are

related to acts alleged in timely filed charges.”). Acts after

July 11, 2011, however, may serve as a basis for a retaliation

claim because they fell within the filing period. Dalomba’s

10Dalomba’s complaint makes it somewhat difficult to discern which events allegedly constituted “retaliation,” and which were mere contributors to a racially-hostile environment. See Doc. No. 1 at 20-23. She does not, for example, point solely to the constructive discharge as an example of retaliation. As a result, I consider all the possible events that she recites as potential discrete acts of retaliation.

21 retaliation claim may therefore proceed solely on the basis of

the three timely acts: the lug nut removal, the stop payment

order, and the phone call.11

B. Discriminatory Intent

The defendants next contend that Dalomba fails to show that

Simonsen and Kierstead individually possessed the discriminatory

intent necessary to state a claim under § 1981.

Generally, “[a] claim under section 1981 requires proof of

intentional or purposeful discrimination.” Erebia v. Chrysler

Plastic Prods. Corp.,

(6th Cir. 1985)

(citing Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania,

(1982)). “Conclusory allegations of generalized

racial bias do not establish discriminatory intent.” King,

-28 (quoting Flagg v. Control Data,

(E.D. Pa. 1992)). Moreover, “[a] claim seeking

personal liability under section 1981 must be predicated on the

actor's personal involvement;” there must be “some affirmative

link to causally connect the actor with the discriminatory

action.” See Whidbee,

(quoting Allen v. Denver

11To the extent that Dalomba intends Count I to assert a claim for discrimination that is distinct from her hostile environment claim, the statute of limitations affects that claim in the same way that it affects her retaliation claim in Count II.

22 Pub. Sch. Bd.,

, 983 (10th Cir. 1991)). I bear in

mind, however, that “[t]he element of intent required in section

1981 . . . can be proved circumstantially.” Erebia,

. Indeed, “it is the exceptional case where there is clear,

direct evidence of racial animus . . . in the typical case, the

discriminatory racial purpose must be divined from inferences

and implications arising out of circumstantial evidence.”

Little v. United States,

(C.D. Ill.

1980).

To survive this motion, Dalomba’s complaint must allege

that Simonsen and Kierstead harbored racial animus towards

Dalomba and her family. Dalomba must further show that Simonsen

and Kierstead were personally involved in racially-motivated

discrimination; passive racial bias unconnected to

discriminatory action will not suffice. See Whidbee,

. For the purposes of determining discriminatory intent, I

do not distinguish between timely and time-barred acts, and am

permitted to examine all the conduct alleged in the complaint.

See Morgan,

(noting that an employee may use

time-barred discriminatory acts “as background evidence in

support of a timely claim”); Tobin v. Liberty Mut. Ins. Co., 553

, 142 (1st Cir. 2009).12

1. Simonsen

According to the complaint, during the first several years

of Dalomba’s stay at Hidden Valley, Simonsen was not directly

involved in any racially-charged incidents. Although he was

allegedly made aware of Piper and others’ comments, see doc. no.

1 at 9, he apparently took no action himself. On July 2, 2011,

however, Simonsen became directly involved in a confrontation

between Dalomba and Barrows on one side, and Piper, Wayne

McFarland, and Lisa Carson on the other. The dispute arose

after Piper allegedly called Dalomba’s son a “monkey” and tried

to force him off the road with a golf cart. Id. at 10-11.

During that confrontation, Simonsen reportedly yelled at Dalomba

to “calm down because when you people get upset you start

shooting.” Id. at 11. Dalomba protested that she and her

family were being threatened by Piper, who was “racist” and had

called her son a “monkey.” Id. Yet rather than question Piper

12Much of the racial harassment that Dalomba allegedly endured was inflicted on her by other tenants at the trailer park. The question as to whether a landlord such as Hidden Valley may be held liable on a harassment theory for failing to prevent harassment by other tenants is an issue that the parties have not briefed and that I need not address to resolve the present motion.

24 about his conduct, Simonsen allegedly told Dalomba to calm down

or “you’ll be thrown out [of the park].” Id. Simonsen did not

tell the other campers to calm down or threaten to have them

removed, even though these campers were allegedly hurling

threats and insults. Id.

In the broader context of this case, Simonsen’s actions

could reasonably be interpreted to show racial animus towards

Dalomba and her family. Simonsen allegedly knew that Dalomba

and her family had received racial taunts; a week prior to the

July 2 confrontation, Jeremy/James Kierstead, Simonsen’s

grandson, “assured” Dalomba that Simonsen “[was] aware” of

Piper’s harassment. Id. at 9. Even if not, however, he became

aware of the racialized nature of Dalomba’s and Piper’s dispute

when he arrived at the scene and heard from Dalomba that Piper

was “racist” and “called our son a monkey.” Id. at 11. Faced

with these comments, Simonsen responded by stating that “when

you people” – presumably meaning Dalomba and her family, the

only African-Americans present – “get upset you start shooting.”

Id. A jury could reasonably infer that this comment was racial

in nature. Moreover, when Dalomba protested that Piper was the

one threatening them, Simonsen responded by threatening to throw

Dalomba out of the park – but took no action against Piper, who

25 was white and reportedly instigated the conflict.

Viewed in isolation, these facts alone might not be

sufficient to demonstrate that Simonsen intended to discriminate

against Dalomba on the basis of race. Yet viewed in context –

Dalomba’s family were the only African-Americans at the park;

they had complained of racist treatment in the past; the present

dispute was explicitly racial in nature – Simonsen’s actions

could plausibly reflect racial animus. Moreover, Simonsen’s

“you people” comment and his threat to remove Dalomba provide

the necessary “affirmative link to causally connect” Simonsen

“with the discriminatory action.” See Whidbee,

.

As such, Dalomba has plead sufficient facts to state a claim

against Simonsen.

2. Kierstead

Dalomba makes a similar case against Kierstead. Again,

Dalomba does not allege that Kierstead took any personally

discriminatory actions during the first few years Dalomba camped

at Hidden Valley. Like Simonsen, however, Kierstead allegedly

knew that Dalomba and her family had been the target of racial

epithets. Doc. No. 1 at 9. Then, on July 9, 2011, Dalomba

confronted Kierstead with what could be interpreted as a racial

threat: an inflatable monkey hanging from a tree. Id. at 13.

26 Dalomba demanded to know what Kierstead would do about the

monkey, and told Kierstead that she interpreted the monkey as a

racist gesture. Id. In response, Kierstead pointed her finger

in Dalomba’s face and told her that the “monkey was for the

children’s entertainment.” Id. at 14. When Dalomba replied

that she believed the monkey was a racist symbol, Kierstead

allegedly pointed her finger at Dalomba again and threatened to

throw her out of the park if she did not move her garden. Id.

Dalomba asked Kierstead to “stop pretending this wasn’t a race

issue,” but Kierstead insisted that Dalomba was “fighting about

flower beds,” despite circumstantial evidence to the contrary.

Id.

Later, after Dalomba agreed to leave the park, Kierstead

gave her a prorated check that was apparently too much, and when

asked, Kierstead stated that “I just want you out of here.” Id.

at 16. Then, after Dalomba and her family had left, Kierstead

allegedly placed a “stop payment” on the refund check and told

Dalomba it was because her campsite had not been cleaned, when

it was in fact clean. Id. at 17.

Taken in context, Kierstead’s actions, like Simonsen’s,

allow a reasonable inference that Kierstead herself acted with

racial animus. Dalomba confronted Kierstead with a monkey

27 hanging from a tree – a symbol that Dalomba interpreted as a

threat to violence. Yet, Kierstead denied the racial

implications of the monkey and instead threatened to throw

Dalomba out of Hidden Valley. Kierstead later stated that

“[she] just want[ed] [Dalomba] out of here,” which could

indicate that her actions were motivated by personal hostility.

Id. at 16. Drawing all reasonable inferences in Dalomba’s

favor, as I must, the complaint states a plausible claim that

Kierstead intended to discriminate and took sufficient direct

action against Dalomba to causally connect her to the alleged

discrimination. As such, Dalomba has plead sufficient facts to

state a claim against Kierstead.

IV. CONCLUSION

For the reasons stated above, the motion to dismiss (doc.

no. 20) is granted in part and denied in part. As to Dalomba’s

Count I, I deny the defendant’s motion to dismiss and hold that

the parties may consider all the events that allegedly

contributed to the hostile environment in litigating this claim.

As to Dalomba’s Count II, I deny the defendant’s motion to

dismiss but rule that only the events following July 11, 2011

may be considered. All three defendants – Simonsen, Kierstead,

28 and Hidden Valley LLC – remain in the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 30, 2016

cc: Nancy Richards-Stower, Esq. Jeremy Eggleton, Esq.

29