UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Martha Soderman

v. Civil No. 17-cv-076-PB Opinion No.

Shaw’s Supermarkets, Inc. et al

MEMORANDUM AND ORDER

Martha Soderman has moved to remand her claims against

Shaw’s Supermarkets, Inc. and Christian Poulin to state court.

Soderman’s claims are based exclusively on state law. Because

she and Poulin are citizens of the same state, Soderman argues

that the case must be remanded because this court lacks

diversity of citizenship jurisdiction over her complaint.

Defendants respond by claiming that Poulin’s citizenship is

irrelevant because he was fraudulently joined.

I. BACKGROUND

Soderman was an employee of the Shaw’s grocery store in

Derry, New Hampshire, for more than 26 years until she was

terminated on March 7, 2014. Doc. No. 1-1 at 3. At the time,

Soderman was the manager of the Customer Service Department.

at 4–5. Poulin served as the Derry Store Director and was

responsible for the store’s operations and supervision of all

managers, including Soderman. Id. at 4. While on medical leave, Soderman appeared at the Derry

store and delivered fifty handmade Christmas gift bags to other

employees, some of which contained nips of alcohol. Id. at 5.

She and other Shaw’s employees had been openly gifting alcohol

to co-workers for years, and Poulin was aware of the practice.

Id. at 5–7. During the same visit, Soderman handed Franco

DiAgostino a bottle of wine as a token of appreciation for

covering her position while she was on leave. Id. at 6. Poulin

commented that it was a nice bottle and they should have some

during a break. Id. Upon returning from medical leave on March

3, 2014, Soderman was informed that she was under investigation

for violating Shaw’s’ Standards of Conduct and was being

suspended. Id. at 7. Four days later, Shaw’s terminated her

employment. Id. Shaw’s informed Soderman that it terminated

her because she violated the company’s Standards of Conduct,

which barred employees from gifting alcohol to other employees.

Id.

Following Soderman’s termination, Shaw’s hired DiAgostino

to fill Soderman’s position as the company’s new Customer

Service Department manager. Id. DiAgostino was in his mid-

twenties. Id. at 5. Another qualified Shaw’s employee, who was

over the age of forty, applied for the position and did not get

it. Id. at 7. Poulin told the applicant that she was denied

the position because the company desired a younger person for

2 the job. Id. Soderman alleges that the stated reason for

terminating her was merely a pretext, and she was actually

terminated because of her age.

On May 12, 2014, Soderman filed a complaint with the New

Hampshire Commission for Human Rights (“Commission”), alleging

that Shaw’s discriminated against her based on her age. Id. at

8; Doc. No. 6-2. The Commission did not act on her complaint

between its filing in 2014 and early 2017. See Doc. Nos. 6–1 at

8, 6-2, 6-3. On January 11, 2017, Soderman removed the action

to Rockingham County Superior Court, added a wrongful

termination claim, and named Poulin as an additional defendant.

Doc. No. 1-1. On January 17, after receiving notice of the

state court action, the Commission dismissed Soderman’s

administrative complaint without prejudice. Doc. No. 6-3. On

February 22, the defendants removed the state court action to

this court. Doc. No. 1.

II. STANDARD OF REVIEW

A defendant may remove a case to federal court only if the

court has subject matter jurisdiction over the claims on which

the case is based. See

; see Mills v. Harmon

Law Offices, P.C.,

(1st Cir. 2003). Subject

matter jurisdiction exists over Soderman’s complaint if the

amount in controversy exceeds $75,000 and there is diversity of

3 citizenship between the parties. See

.

Diversity jurisdiction requires that “the citizenship of each

plaintiff is diverse from the citizenship of each defendant.”

Quigley v. Precision Castparts Corp., No. 16-cv-90-PB,

, at *3 (D.N.H. July 14, 2016) (quoting Caterpillar Inc.

v. Lewis,

(1966) (emphasis added)); see §

1332(a).

To address the concern that a plaintiff might seek to avoid

removal of a case from state to federal court by “adding bogus

claims against a nondiverse defendant . . . courts developed the

doctrine of ‘fraudulent joinder.’” Quigley,

, at

*3. Fraudulent joinder “permits courts to disregard the

citizenship of a fraudulently joined defendant when determining

whether diversity of citizenship exists.”

While fraudulent joinder can be shown through evidence of

actual fraud in the plaintiff’s pleading, see

it can also

be proved by showing that “there is no reasonable possibility

that the state’s highest court would find that the complaint

states a cause of action upon which relief may be granted

against the non-diverse defendant.” Universal Truck & Equip.

Co., Inc. v. Southworth-Milton, Inc.,

(1st

Cir. 2014). The removing party “carries the extremely heavy

burden of showing that there is no reasonable possibility of a

cause of action through clear and convincing evidence.” Nordin

4 v. PB&J Resorts, LLC, No. 15-cv-509-JL,

, at *3

(D.N.H. May 12, 2016) (citations and internal quotation marks

omitted). In a fraudulent joinder analysis, “contested factual

issues and any doubt as to the propriety of the removal must be

resolved in favor of remand.”

(quoting Renaissance Mktg.,

Inc. v. Monitronics Int’l, Inc.,

(D.P.R.

2009)). When a court examines a fraudulent joinder claim, it

may “consider additional evidence beyond the claims made in the

pleadings, including affidavits of the parties.”

(quoting

Phillips v. Medtronic, Inc.,

(D. Mass.

2010)).

III. ANALYSIS

Soderman’s motion to remand hinges on whether she properly

joined Poulin in her state court complaint. Shaw’s argues that

Poulin was fraudulently joined for two reasons. First, Shaw’s

contends that Soderman’s claim against Poulin necessarily fails

because she did not exhaust her administrative remedies as

required by statute. In the alternative, Shaw’s argues that the

claim is defective because the complaint does not adequately

allege that Poulin aided or abetted discrimination. I address

each argument in turn.

A. Administrative Exhaustion

New Hampshire Revised Statutes Annotated § 354-A prohibits

5 employers from discriminating against employees on the basis of

age. See N.H. Rev. Stat. Ann. (“RSA”) § 354-A:7, I. Before

bringing an action in state court, however, the aggrieved

employee must file a complaint with the Commission naming all

respondents. See RSA §§ 354-A:21-a, I, -A:21, I(a); Wilson v.

Port City Air, Inc., No. 13-cv-129-JD,

, at *2

(D.N.H. June 12, 2013). Shaw’s argues that Soderman’s § 354-A

claim against Poulin cannot possibly succeed because she did not

name Poulin as a respondent in her administrative complaint.

Soderman responds by claiming that she was not required to name

Poulin because it would have been futile to seek administrative

relief against him.

The New Hampshire Supreme Court has not yet determined

whether § 354-A’s exhaustion requirement is subject to a

futility exception but the Court has declined in other contexts

to require a plaintiff to exhaust administrative remedies where

any exhaustion would be futile. See Dembiec v. Town of

Holderness,

, 133–34 (2014) (recognizing futility

exception in zoning cases). Accordingly, it is at least

conceivable that the court would also recognize a futility

exception to the exhaustion requirement in § 354-A cases.

Soderman also argues that the New Hampshire Supreme Court

could reasonably conclude that exhausting administrative

remedies would be futile in the present case. Under the

6 Commission’s regulations, an administrative complaint must be

filed on either a U.S. Equal Employment Opportunity Commission

(“EEOC”) charge of discrimination form or in a “letter that

adopts the form’s ‘preprinted list of choices’ for identifying

the respondent’s relationship to the claimant.” See Carney,

, at *8 n.11; N.H. Code Admin. R. Hum. 202.02(a)-

(b). Soderman contends that she could not have named Poulin in

her complaint to the Commission because the relevant complaint

form offers a pre-printed list of choices to identify the

complainant’s relationship with the respondent, but lacks the

option of naming an individual employee. See N.H. Code Admin.

R. Hum. 202.02(a)-(b). In making this argument, Soderman relies

on this court’s decision in Carney, where Judge McCafferty found

that the pre-printed list of choices made it futile for the

plaintiff to seek administrative remedies against an individual.

Carney,

, at *7–8 & n.11.

In response, Shaw’s advances several arguments for why the

futility exception does not apply. First, Shaw’s asserts that,

unlike in Carney, there is no evidence that Soderman intended to

charge Poulin with discrimination when she filed her complaint

with the Commission. But Carney did not conclude that the

plaintiff’s intent to charge the individual defendant was

essential to its futility analysis. See

Instead, the court

looked to the requirements imposed upon complainants by the

7 applicable regulations. See

Second, Shaw’s contends that Soderman’s futility argument

is based on an incorrect premise because the commission does not

expressly prohibit claims against employees. I agree with Judge

McCafferty’s conclusion in Carney, however, that the

“Commission's regulations appear to prohibit a complainant from

naming an employee or company agent . . . as a respondent to an

administrative complaint.” See id. at *8. The regulations

require a complainant to file either an EEOC charge of

discrimination form or a “letter that adopts that form’s ‘pre-

printed list of choices’ for identifying the respondent’s

relationship to the complainant.” Id. at *8 n.11; see N.H. Code

Admin. R. Hum. 202.02(a)-(b). The available choices are limited

to the complainant’s “[e]mployer,” “[l]abor organization,”

“[e]mployment agency,” “[a]pprenticeship committee,” or

“agency.” Id. A reasonable reading of these regulations thus

would not permit a complainant to name an individual supervisor

or co-worker.

Until very recently, courts in this district had held that

a victim of discrimination could not maintain a § 354-A claim

against an individual employee. See, e.g., Rand v. Town of

Exeter,

(D.N.H. 2013); Wilson,

, at *1–2. Although the New Hampshire Supreme Court

recently construed § 354-A to permit such claims in certain

8 circumstances, see U.S. Equal Employment Opportunity Commission

v. Fred Fuller Oil Company, Inc.,

, 608–12 (2016),

the 180-day period during which Soderman could file an

administrative claim against Poulin had passed by the time that

Fuller was decided. See RSA § 354-A:21, III. Moreover, even

after Fuller, the regulations appearing to bar Soderman from

naming Poulin remain in force, regardless of whether the

Commission accepts such complaints in practice. For these

reasons, there is at least a reasonable possibility that the New

Hampshire Supreme Court would find that the claim against Poulin

is not barred by the administrative exhaustion requirement.

Accordingly, I reject Shaw’s primary argument for fraudulent

joinder.

B. Aiding and Abetting under RSA 354-A

Shaw’s argues in the alternative that even if the

administrative exhaustion requirement does not bar Soderman’s

action against Poulin, her state court complaint fails to

adequately allege that Poulin aided and abetted age

discrimination. I disagree.

Section 354-A prohibits employers both from engaging in any

“unlawful discriminatory practice” and from aiding or abetting

such a practice. RSA §§ 354-A:2, XV, -A:7, I (“It shall be an

unlawful discriminatory practice . . . [f]or an employer,

because of the age . . . of any individual, . . . to discharge

9 from employment such individual . . . .”). The New Hampshire

Supreme Court recently extended liability beyond employers to

individuals who aid or abet workplace discrimination. Fuller,

. In doing so, the court explained that

“any act of aiding, abetting, inciting, compelling or coercing

another to commit an unlawful discriminatory practice, or

attempting to do so, or obstructing or preventing any person

from complying with the chapter is itself an unlawful

discriminatory practice.”

.

In assessing whether the New Hampshire Supreme Court would

dismiss the aiding and abetting claim against Poulin as

inadequately pled, I look not the federal plausibility standard,

but instead to the state’s more liberal pleading standard. See

Quigley,

, at *3, 7. New Hampshire courts assume

that all properly pled allegations are true and construe all

reasonable inferences in the light most favorable to the

plaintiff. Snierson, 145 N.H. at 76-77. Dismissal is

inappropriate if the pleadings are “reasonably susceptible” of a

reading that would permit relief. Id.

Under this standard, the facts pled by Soderman are

sufficient to establish a reasonable possibility that the New

Hampshire Supreme Court would find a viable claim against Poulin

under the state pleading standard. Poulin was the store

director and supervised all department managers, including

10 Soderman. Doc. No. 1-1 at 4. Poulin knew that Soderman had

been providing holiday gift bags to co-workers for years and

that any violation of Shaw’s’ Standards of Conduct was

unintentional, and he tacitly encouraged her to violate the

policy by sharing alcohol with him. Id. at 6, 10. Further,

Poulin failed to share his knowledge that Soderman’s violation

of the alcohol policy was unintentional with others in the

company, including while consulting with a human resources

manager about the investigation of her alleged misconduct. See

id. at 10–11. Finally, Poulin expressly told a qualified

applicant who was over the age of 40 and had interviewed for

Soderman’s position that the applicant was not hired because the

company wanted a younger person for the job. Id. at 7.

Based on these allegations, a court applying the New

Hampshire pleading standard could reasonably conclude that the

complaint adequately alleges that age discrimination contributed

to Shaw’s’ decision to terminate Soderman, and through an act or

omission Poulin aided, abetted, or incited the discriminatory

termination, or at least attempted to do so.1 Because there is a

1 New Hampshire case law is unsettled as to whether discrimination must be the but-for cause for termination in order to violate § 354-A. In the Title VII context, however, the United States Supreme Court has held that an employee alleging discrimination may show that “the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in 11 reasonable possibility that the New Hampshire Supreme Court

would conclude that Soderman states a viable claim against

Poulin, I reject Shaw’s alternative argument for fraudulent

joinder.

IV. CONCLUSION

For the reasons set forth above, I conclude that the court

lacks diversity of citizenship jurisdiction over Soderman’s

complaint. I therefore grant her motion to remand (Doc. No. 6).

SO ORDERED.

/s/Paul Barbadoro___________ Paul Barbadoro United States District Judge August 30, 2017

cc: Keith Diaz, Esq. K. Joshua Scott, Esq. Debra Weiss Ford, Esq.

the employer’s decision.” Univ. of Texas Sw. Med. Ctr. v. Nassar,

, 2522–23 (2013). 12