UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert J. Morin

v. Case No. 20-cv-615-PB Opinion No.

Eastern Bearings, Inc. d/b/a Eastern Industrial Automation

MEMORANDUM AND ORDER

Robert Morin filed a complaint in New Hampshire state court

against his former employer, Eastern Bearings, Inc. (“Eastern”),

alleging federal and state law causes of action for retaliation,

discrimination, and harassment, as well as claims for violations

of the Family and Medical Leave Act. After removing the action

to federal court, Eastern moved to dismiss the complaint for

failure to state a claim upon which relief may be granted. For

the following reasons, I grant in part and deny in part

Eastern’s motion.

I. BACKGROUND

Morin worked for Eastern from 2014 until 2018 as an

associate in its domestic sales department in Manchester, New

Hampshire. Compl. ¶¶ 7, 10. During most of that time, he

worked under the supervision of James Ordeshook. Compl. ¶ 10.

Morin is part Native American and was thirty years old at

the start of his employment. Compl. ¶¶ 3, 31. Ordeshook “frequently made fun of” Morin’s age, made him feel stupid for

asking questions, and expressed hatred for “millennials,”

complaining about their work ethic and claiming they “could not

do anything right.” Compl. ¶ 30. Ordeshook also made racist

and derogatory comments about many different groups. For

example, every year around Columbus Day, Ordeshook referred to

Native Americans as “spear chuckers” and “useless leeches on

society.” Compl. ¶ 31. Morin does not allege, however, that

Ordeshook was aware of his Native American heritage.

During his employment at Eastern, Morin associated with his

fiancé’s autistic brother. Compl. ¶¶ 16, 63. When Morin took

time off work to attend a Special Olympics golf tournament with

his fiancé’s brother, Ordeshook ridiculed him. Compl. ¶ 19.

Ordeshook also used the word “retard” frequently within Morin’s

earshot. Compl. ¶ 18.

Morin’s son, who was an infant at the time, had “chronic

medical issues,” including “ear infections and complications”

that required frequent medical appointments. Compl. ¶¶ 11, 37.

Whenever Morin took time off work due to his son’s illness,

Ordeshook either made fun of him, called him derogatory names,

refused to speak with him, took commission orders away from him,

assigned him non-commission work, told him that other people

came to work when their kids were sick, or told his co-workers

how much Morin was earning. Compl. ¶¶ 13-14, 21-27. On many

2 occasions he denied Morin’s requests for unpaid time off to care

for his son and never offered him FMLA leave. Compl. ¶ 28.

When Morin inquired about paternity leave, Ordeshook ridiculed

him. Compl. ¶¶ 25-26. On one occasion in April 2018, Ordeshook

instructed Human Resources not to pay Morin for a sick day Morin

had taken to care for his ill son. Compl. ¶¶ 37-40. After

Morin contacted Human Resources and the Department of Labor

about the issue, he was paid for that day. Compl. ¶¶ 39, 41.

On May 16, 2018, Morin sent an email to Human Resources,

complaining about “Ordeshook’s racist comments, inappropriate

and harassing behavior in the office, bullying, and many other

issues, including being harassed for requesting information

about paternity leave and taking time to attend to relatives

with both disabilities and illnesses.” Compl. ¶ 45. The next

day, Morin met with a representative of Human Resources and

elaborated on Ordeshook’s offending behavior. Compl. ¶ 46.

On May 18, Human Resources informed Morin that he could be

transferred to a position in Eastern’s international sales

department at a nearby location. Compl. ¶ 52. The new

position, however, involved an estimated $15,000-$20,000 less in

commissions than Morin was earning at the time, as well as

potential international travel, which was unappealing to Morin

due to his family obligations. Compl. ¶ 53. When Eastern

formally offered him that position on May 21, Morin declined.

3 Compl. ¶¶ 55, 57. The next day, Eastern informed Morin “that it

was not an option for [him] to stay where he was, and that he

was being moved to the [new position] the next day.” Compl.

¶ 58. Later that day, Morin gave Eastern notice that he was

resigning effective June 5. Compl. ¶ 59. He was fired the next

morning. Compl. ¶ 60. This lawsuit followed.

The complaint alleges six counts: (1) retaliation in

violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e–2 et seq. (“Title VII”), and its state-law

analog, Chapter 354-A of the New Hampshire Revised Statutes,

-A:7 (“Chapter 354-A”); (2)

discrimination and harassment on account of age under Chapter

354-A; (3) association discrimination under Title I of the

Americans with Disabilities Act,

et seq.

(“ADA”), and Chapter 354-A; (4) harassment based on race and

national origin under Title VII and Chapter 354-A; (5)

interference and retaliation under the Family and Medical Leave

Act,

et seq. (“FMLA”); and (5) “intersectional

discrimination” under Title VII, the ADA, and Chapter 354-A.

Eastern seeks dismissal on all counts. Morin objects. I held a

hearing on the motion on August 18, 2020.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss for failure to

state a claim, a plaintiff must make factual allegations

4 sufficient to “state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal,

(2009) (quoting

Bell Atlantic Corp. v. Twombly,

(2007)). This

standard “demands more than an unadorned, the defendant-

unlawfully-harmed-me accusation.”

A claim is facially

plausible if it pleads “factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.”

In testing a complaint’s sufficiency, I employ a two-step

approach. See Ocasio–Hernández v. Fortuño-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.”

(internal quotation marks and alterations omitted). A claim

consisting of little more than “allegations that merely parrot

the elements of the cause of action” may be dismissed.

Second, I credit as true all non-conclusory factual allegations

and the reasonable inferences drawn from those allegations, and

then determine if the claim is plausible.

The plausibility

requirement “simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence” of illegal

conduct. Twombly,

. The “make-or-break

standard” is that those allegations and inferences, “taken as

true, must state a plausible, not a merely conceivable, case for

5 relief.” Sepúlveda–Villarini v. Dep’t of Educ. of P.R.,

(1st Cir. 2010).

In a discrimination suit, a plaintiff is not required to

“plead facts sufficient to establish a prima facie case at the

pleading stage.” Rodriguez-Reyes v. Molina-Rodriguez,

(1st Cir. 2013) (citing Swierkiewicz v. Sorema N.A.,

(2002)). “But this does not mean ‘that the

elements of the prima facie case are irrelevant to a

plausibility determination . . . .’” Germanowski v. Harris,

(1st Cir. 2017) (quoting Rodriguez-Reyes,

). Rather, those elements “may be used as a prism to shed

light upon the plausibility of the claim,” bearing in mind that

plausibility requires pleading “enough facts to make entitlement

to relief plausible in light of the evidentiary standard that

will pertain at trial — in a discrimination case, the prima

facie standard.” Rodriguez-Reyes,

.

III. ANALYSIS

Eastern argues that each of Morin’s claims fails to state a

claim upon which relief may be granted. I address the claims in

turn and conclude that Morin has adequately pleaded claims for

retaliation under Title VII and Chapter 354-A, as well as age-

based discrimination and harassment under Chapter 354-A. The

remaining claims are legally deficient.

6 A. Retaliation (Count I)

Morin claims that Eastern retaliated against him for

reporting Ordeshook’s harassment by demoting him to a position

with less favorable conditions, including significantly less pay

and international travel. He contends that this conduct

violated both Title VII and Chapter 354-A.

Title VII “prohibits employers from retaliating against

employees who report violations of that title.” Carlson v.

Univ. of New Eng.,

(1st Cir. 2018) (citing 42

U.S.C. § 2000e-3(a)). The parties agree that the same standard

applies to Morin’s Title VII and Chapter 354-A claims. See

Dennis v. Osram Sylvania, Inc.,

(1st Cir.

2008) (“The New Hampshire Supreme Court looks to and finds

‘instructive’ federal standards established under Title VII

. . . in resolving retaliation claims under N.H. Rev. Stat. Ann.

§ 354–A.”). To establish a prima facie case of retaliation

under either law, a plaintiff must show that (1) he engaged in

protected conduct; (2) he experienced an adverse employment

action; and (3) there was a causal connection between the

protected conduct and the adverse employment action. Id. at

856-57. In this context, an adverse employment action is one

that “a reasonable employee would have found . . . materially

adverse,” meaning that such action “well might have ‘dissuaded a

reasonable worker from making or supporting a charge of

7 discrimination.’” Morales-Vallellanes v. Potter,

(1st Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v.

White,

(2006)); see Madeja v. MPB Corp.,

(2003). This is an objective standard that

requires more than “petty slights or minor annoyances.”

Carlson,

(quoting Burlington,

).

Examples of actionable conduct include “termination of

employment, a demotion evidenced by a decrease in wage or

salary, a less distinguished title, a material loss of benefits,

significantly diminished material responsibilities, or other

indices that might be unique to a particular situation.”

Morales-Vallellanes,

.

Eastern does not dispute that Morin engaged in statutorily

protected conduct when he complained about Ordeshook’s

harassment to Human Resources. It maintains, however, that

Morin did not suffer an adverse employment action after his

complaint. In the alternative, Eastern contends that any

adverse action was not causally connected to Morin’s protected

activity. Eastern is wrong on both scores.

Morin has plausibly alleged that Eastern’s action in

transferring him to the international sales department

constituted a materially adverse employment action. The

transfer allegedly involved a significant decrease in his

commission-based pay and thus constituted a demotion that would

8 have deterred a reasonable employee from reporting harassment.

See Morales-Vallellanes,

. The allegation that

the demotion occurred mere days after Morin complained to Human

Resources about Ordeshook’s behavior suffices to show a

plausible connection between the protected activity and the

adverse employment action. See Garayalde-Rijos v. Municipality

of Carolina,

(1st Cir. 2014) (noting that

“temporal proximity” between adverse employment action and

protected conduct can help establish causation); Sánchez–

Rodríguez v. AT&T Mobility P.R., Inc.,

(1st Cir.

2012) (same). Accordingly, Morin has stated a claim for

retaliation under Title VII and Chapter 354-A.1

B. Age-Based Discrimination and Harassment (Count II)

Morin alleges that Eastern is also liable for age-based

discrimination and harassment in violation of Chapter 354-A. In

support of his claim, Morin, who was between thirty and thirty-

four years old during his employment, cites Ordeshook’s comments

making fun of Morin’s young age and his disparaging comments

1 Eastern also argues that Morin cannot establish but-for causation on his retaliation claim because he alleges that his demotion was also caused by various forms of discrimination. But a plaintiff is permitted to plead multiple alternative claims, even if his claims are inconsistent. See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim . . . alternatively. . . .”);

(d)(3) (“A party may state as many separate claims . . . as it has, regardless of consistency.”). 9 about millennials. Eastern argues that youth is not a protected

class under Chapter 354-A and that, in any event, Morin has not

pleaded the elements of those claims.

Chapter 354-A makes it unlawful for an employer to “refuse

to hire or employ or bar or to discharge from employment [an]

individual” or to “discriminate against such individual in

compensation or in terms, conditions or privileges of

employment” because of the individual’s “age.”

-A:7. Unlike the federal Age Discrimination in

Employment Act (“ADEA”), which expressly protects only persons

who are at least forty years old, see 29 U.S.C. 631(a), Chapter

354-A does not define the term “age.” The New Hampshire Supreme

Court has not had an opportunity to construe the term either.

Although that court has looked to decisions under analogous

federal statutes when interpreting Chapter 354-A, see, e.g.,

Burnap v. Somersworth Sch. Dist.,

, 637 (2019), it

is difficult to predict whether it would do so in this instance.

Because the parties have not adequately briefed this unresolved

question of state law, I decline to address it at this stage.

Instead, for purposes of the motion to dismiss, I assume that

Chapter 354-A protects younger workers, without prejudice to the

defendant’s right to renew its argument at a later stage or to

request certification of the question to the New Hampshire

Supreme Court.

10 Assuming youth is a protected class, Morin has pleaded a

minimally sufficient claim for age-based discrimination under

Chapter 354-A. The complaint, read as a whole, plausibly

alleges that Morin was “discriminate[d] in . . . terms,

conditions or privileges of employment” on account of his age.

See

-A:7. Ordeshook’s comments

reflect a discriminatory animus based on Morin’s age. The

complaint alleges that Morin’s age “played a part in his”

demotion, Compl. ¶ 76, which, as discussed above, adversely

changed the terms and conditions of his employment. Although it

may prove difficult for Morin to establish a causal link between

the demotion and his young age, considering that he was four

years older at the time of his demotion than when he was hired,

I cannot say that the alleged causal link is so attenuated to

render his claim legally deficient at the pleadings stage.

Morin’s allegations that Ordeshook’s age-based harassment

created a hostile work environment are likewise minimally

sufficient to state a claim under Chapter 354-A. To be

actionable, harassment must be “sufficiently severe [or]

pervasive to alter the terms and conditions of [one’s]

employment.” Madeja,

.2 The challenged conduct

2 Although the New Hampshire Supreme Court has not expressed an opinion on this precise point, it is clear from the cases cited in Madeja that allegations of either severe or pervasive harassment may state a claim of a hostile work environment under 11 must be “objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that

the victim in fact did perceive to be so.” Noviello v. City of

Bos.,

(1st Cir. 2005) (quoting Faragher v. City

of Boca Raton,

(1998)). In determining

whether a reasonable person would find conduct hostile or

abusive, courts must consider the totality of the circumstances,

including “frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Harris v.

Forklift Sys.,

(1993). Further, courts must

bear in mind that questions of severity and pervasiveness are

typically questions of fact “[s]ubject to some policing at the

outer bounds.” Gorski v. N.H. Dep’t of Corr.,

(1st Cir. 2002).

Morin alleges that Ordeshook “made fun of . . . his young

age” and commented that he “hated millennials” because they

lacked a good work ethic and “could not do anything right.”

Compl. ¶ 30. The harassment allegedly occurred almost daily for

Chapter 354-A, as is the case under Title VII. See Madeja,

(citing Marrero v. Goya of P.R., Inc.,

(1st Cir. 2002); Stutler v. Ill. Dep’t of Corr.,

(7th Cir. 2001); Richardson v. N.Y. State Dep’t of Corr. Serv.,

(2d Cir. 1999); Gunnell v. Utah Valley State Coll.,

(10th Cir. 1998)). 12 four years. Compl. ¶ 30. Although hearing such comments on

isolated occasions likely would not rise to the level of

severity necessary to demonstrate an objectively hostile work

environment, I cannot say the same about such incidents

occurring at the alleged frequency. See Rivera-Rivera v. Medina

& Medina, Inc.,

(1st Cir. 2018) (reversing grant

of summary judgment in employer’s favor on age-based hostile

work environment claim under Title VII and ADEA on pervasiveness

grounds where plaintiff “was taunted about her age nearly every

single day for over two years” by being called “vieja” (old) or

“worthless”). Accepting as true the frequency of the comments,

they were sufficiently pervasive to state an age-based hostile

work environment claim under state law.

C. Association Discrimination (Count III)

Morin next alleges that Eastern discriminated against him

on account of his association with his fiancé’s autistic

brother, in violation of the ADA and Chapter 354-A.3 The parties

assume that the ADA standard applies to the state law claim.

The ADA prohibits “excluding or otherwise denying equal

jobs or benefits to a qualified individual because of the known

disability of an individual with whom the qualified individual

3 The complaint also alleges association discrimination based on Morin’s association with his son, but his counsel conceded at oral argument that this claim is not adequately pleaded. 13 is known to have a relationship or association.”

(b)(4). The relationship need not be familial but can

extend to business, social or other relationships or

associations. See

. The ADA defines

disability as (1) a physical or mental impairment that

substantially limits a major life activity; (2) a record of such

an impairment; or (3) being regarded as having such an

impairment.

(2). To establish a prima facie

case of association discrimination, a plaintiff must show that

(1) he experienced an adverse employment action; (2) he was

qualified to perform his job at the time; (3) the employer knew

the employee associated with a disabled person; and (4) the

circumstances of the adverse employment action give rise to a

reasonable inference that this association was a determining

factor in the employer’s decision. St. Hilaire v. Morgan

Stanley Smith Barney, LLC,

,

, at *7

(D.N.H. May 11, 2012); see Oliveras–Sifre v. P.R. Dep’t of

Health,

(1st Cir. 2000).

At most, the complaint alleges that Eastern knew Morin once

attended a Special Olympics event with his fiancé’s brother.

There is no allegation that Eastern knew his fiancé’s sibling

had a disability. Further, the complaint’s allegations

concerning Morin’s demotion do not give rise to a reasonable

inference that his association with his fiancé’s brother had any

14 effect on Eastern’s decision to demote him, let alone that it

was a determining factor in the adverse employment action. The

complaint, therefore, does not plead sufficient facts to support

a plausible inference that Morin was discriminated against based

on his association with a disabled person.4

D. Harassment Based on Race and National Origin (Count IV)

Morin contends that Ordeshook’s disparaging comments about

Native Americans created a hostile work environment actionable

under Title VII and Chapter 354-A. Here, too, the parties agree

that the federal and state standards are essentially the same.

To state a hostile work environment claim under Title VII,

a plaintiff must allege, among other elements, that the

offending conduct occurred because of his membership in a

protected class. Garmon v. Nat’l R.R. Passenger Corp.,

(1st Cir. 2016); Rivera v. P.R. Aqueduct & Sewers

Auth.,

, 189 (1st Cir. 2003). Where membership in a

protected class is not obvious or documented, the plaintiff must

allege that the employer knew he belonged to the protected

class. See O’Connor v. Northshore Int’l Ins. Servs.,

To the extent Morin alleges that he was harassed on account of his association with a disabled person, this claim must also fail. Assuming such a claim is cognizable, absent allegations that Eastern knew Morin’s fiancé’s brother was disabled, Morin cannot plausibly allege that he was harassed on the basis of his association with a disabled person.

15 App’x 722, 724 (1st Cir. 2003) (per curiam); Hunter v. United

Parcel Serv., Inc.,

(8th Cir. 2012); Geraci v.

Moody-Tottrup, Int’l, Inc.,

(3d Cir. 1996).

Morin’s counsel conceded at oral argument that Morin does

not “look like” someone who is Native American and that his

complaint fails to allege that Eastern knew about his Native

American heritage. These concessions are fatal to the claim

that Morin was harassed because of his race and national origin.

Absent such knowledge, Morin has not plausibly alleged that the

harassment was motivated by his membership in the protected

class.5

E. FMLA Interference and Retaliation (Count V)

Morin asserts that Eastern unlawfully interfered with his

rights under the FMLA and retaliated against him for exercising

those rights. In support of his claims, Morin alleges that

Ordeshook knew he was frequently missing work to care for a sick

child, harassed him and once docked his pay for doing so, and

failed to give him a copy of the company’s sick leave policy.

Those allegations do not state a viable claim under the FMLA.

5 Although count IV of the complaint arguably also asserts a claim for discrimination based on race and national origin, Morin’s counsel confirmed at oral argument that he is asserting only a hostile work environment claim. In any event, a discrimination claim would fail on the same ground. 16 The FMLA entitles an “eligible employee” to take twelve

weeks of leave during any twelve-month period for, among other

reasons, the care of a family member with a “serious health

condition.”

(a)(1)(C). The statute makes it

unlawful for “any employer to interfere with, restrain, or deny

the exercise of” an FMLA-protected right.

§ 2615(a)(1). To

make out a prima facie case for FMLA interference, a plaintiff

must show that (1) he was an eligible employee; (2) his employer

was covered by the FMLA; (3) he was entitled to FMLA leave; (4)

he gave his employer notice of his intention to take FMLA leave;

and (5) his employer denied him FMLA benefits to which he was

entitled. Carrero–Ojeda v. Autoridad de Energía Eléctrica,

, 722 n.8 (1st Cir. 2014); Ferreira v. Monadnock Paper

Mills, Inc.,

,

, at *2 (D.N.H. Feb.

25, 2014).

Morin has alleged that he was an eligible employee and that

Eastern was a covered employer. See Compl. ¶ 8 (alleging that

Morin worked the requisite length of time and number of hours

and that Eastern had the requisite number of employees).

However, the complaint’s allegations do not give rise to a

reasonable inference that Morin was entitled to leave under the

FMLA to care for his ill son. The statute defines a “serious

health condition” for which leave may be sought as one requiring

“inpatient care” or “continuing treatment by a health care

17 provider.”

, 2611(11). “The continuing

treatment test for a serious health condition is met if [a

person] is incapacitated . . . for more than three consecutive

days and . . . is treated by a health care provider on two or

more occasions.” Ferreira,

, at *3 n.3 (internal

quotation marks omitted). The complaint merely alleges that

Morin’s son had “chronic medical issues requiring frequent

medical appointments” and had “repeated medical issues with ear

infections and complications.” Compl. ¶¶ 11, 37. These

allegations do not lend themselves to a reasonable inference

that his son’s condition required inpatient care or met the

continuing treatment test.

Further, the complaint does not allege sufficient facts to

permit a reasonable inference that Morin provided Eastern the

requisite notice of his intention to use FMLA benefits. See

Ferreira,

, at *3;

(a-b). No

magic words are needed to give such notice, but the employee

must do more than tell the employer he needs to take a sick

child to the doctor, which is all Morin allegedly did. See

Germanowski,

(noting that the employee does not

satisfy the burden of notifying the employer of the need to take

FMLA leave “merely by calling in sick”).

Morin’s FMLA retaliation claim fares no better. To make

out a prima facie case of FMLA retaliation, a plaintiff must

18 show that (1) he “availed [himself] of a protected FMLA right;

(2) he was “adversely affected by an employment decision;” and

(3) “there was a causal connection between [his] protected

conduct and the adverse employment action.”

at 73 (quoting

Carrero-Ojeda,

). The complaint alleges that

Ordeshook retaliated against Morin for taking a sick day to care

for his son by docking his pay. As discussed above, the

complaint does not allege sufficient facts to permit a

reasonable inference that Morin was entitled to FMLA benefits to

care for his sick son. Therefore, his FMLA retaliation claim

necessarily fails.

F. Intersectional Discrimination (Count VI)

Finally, Morin alleges he was a victim of “intersectional

discrimination” because he was discriminated against on the

bases of age, association with a disabled person, as well as his

race and national origin. He has cited no legal support for the

proposition that “intersectional discrimination” is viable as a

separate count of a complaint. See Giordano v. Pub. Serv. Co.

of N.H.,

,

, at *5 (D.N.H. May 12,

2020). Accordingly, I dismiss the claim.

IV. CONCLUSION

For the foregoing reasons, I deny Eastern’s motion to

dismiss (Doc. No. 4) with respect to counts I and II of the

complaint and grant it with respect to counts III through VI.

19 SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

December 16, 2020

cc: Leslie H. Johnson, Esq. Brian H. Lamkin, Esq. Julie B. Brennan, Esq.

20