NHCaseLaw.com

Topics: Dismissal, Retaliation, Sexual Harassment, Title VII

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THE STATE OF NEW HAMPSHIRE
ROCKINGHAM, SS. SUPERIOR COURT

Debbie Rowe
v.
Thibeault Corporation,
Ernest Thibeault, and
John Foley

No. 06-E-554

ORDER ON MOTION TO DISMISS

The plaintiff, Debbie Rowe (“Rowe”), initiated this matter with the New Hampshire Commission for Human Rights, but, due to removal, the case is now before this Court. Rowe asserts claims against the defendants, Thibeault Corporation (“Thibeault Corp.”), Ernest Thibeault (“Thibeault”), and John Foley (“Foley”), under RSA Chapter 354-A and Title VII of the Civil Rights Act of 1964, as amended. She alleges that while she worked for Thibeault Corp. she was subjected to sexual harassment and retaliation. Rowe claims that she worked for Thibeault Corp. from March 2003 into December 2003, and that Thibeault and Foley both subjected her to sexual harassment. She further alleges that after she complained about harassment against her, and Thibeault’s claimed sexual harassment of certain other female employees, she was subjected to retaliation that ultimately led to her termination from employment. She asserts that Thibeault and Foley participated in the retaliation.

Foley has moved to dismiss the claims against him, arguing that as a supervisory employee and/or employee of Thibeault Corp. he cannot be held individually liable for

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any of Rowe’s claims. Rowe objects. For the following reasons, the motion is GRANTED in part and DENIED in part.

In ruling on a motion to dismiss, the Court must assume that all sufficiently pleaded facts are true and can be proved, construing all inferences in the light most favorable to the plaintiff. Bohan v. Ritzo, 141 N.H. 210, 213 (1996) (citation omitted). The Court must then determine whether those facts are “reasonably susceptible of a construction that would permit recovery.” Id. at 212 (quotations and citation omitted). This determination requires the Court to test the facts contained in the complaint against applicable law. Jay Edwards, Inc. v. Baker, 130 N.H. 41, 45 (1987). A court “need not accept statements in the complaint which are merely conclusions of law.” Mt. Springs Water Co. v. Mt. Lakes Vill. Dist., 126 N.H. 199, 201 (1985) (citation omitted).

The statutory provisions at issue, besides those contained in Title VII of the Civil Rights Act of 1964, as amended, are RSA 354-A:7, I, RSA 354-A:2, XV(d), and RSA 354-A:19. Rowe acknowledges that Title VII does not provide for individual liability, so to the extent Foley’s motion deals with her federal claim, his motion to dismiss is GRANTED. The Court now turns to Rowe’s claims under RSA 354-A, New Hampshire’s anti-discrimination law.

The Legislature enacted RSA chapter 354-A “to eliminate and prevent discrimination in employment, in places of public accommodation and in housing accommodations because of [among other bases] … sex . . . .” RSA 354-A:1 (Supp. 2006). The statute’s provisions are to “be construed liberally for the accomplishment of the purposes thereof. . . .” RSA 354-A:25. Some of its provisions apply to the whole chapter, while others apply only to the workplace, to housing, or to public

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accommodations. RSA 354-A:7 deals specifically with discrimination in the workplace. Rowe appears to acknowledge that RSA 354-A:7 does not provide directly, in its body, for individual liability, since in her objection to Foley’s motion she specified that he had been named as a harasser “under the aiding and abetting provision, RSA 354-A:2, XV(d) . . . and as a retaliator [under RSA 354-A:19]” without mentioning RSA 354-A:7. Pl.’s Obj. at 2.[1] Foley asserts, however, that neither the “aiding and abetting” provision nor the “retaliation” one may be read , as Rowe suggests, to allow for individual liability against him.

Statutes are to be interpreted “according to the plain meaning of the words the legislature used.” Hull v. Town of Plymouth, 143 N.H. 381, 383 (1999). In conducting its analysis, the Court “will focus on the statute as a whole, not on isolated words or phrases.” Milford Lumber Co. v. RCB Realty, 147 N.H. 15, 17 (2001) (quoting Snow v. American Morgan Horse Assoc., 141 N.H. 467, 471 (1996)). The language of both RSA 354-A:2, XV(d), and RSA 354-A:19 is broader than the language found in RSA 354-A:7, I, since neither provision applies only to “employers.” RSA 354-A:2, XV is a provision in the definition section of the statute. It defines “unlawful discriminatory practice” to include: “(d) Aiding, abetting, inciting, compelling or coercing another or attempting to aid, abet, incite, compel or coerce another to commit an unlawful discriminatory practice or obstructing or preventing any person from complying with this

[1] In this regard, the Court observes that, in part, RSA 354-A:7 makes it an unlawful discriminatory
practice:
[f]or an employer, because of the . . . sex . . . of any individual, to refuse to hire or employ or
to bar or to discharge from employment such individual or to discriminate against such
individual in compensation or in terms, conditions or privileges of employment, unless based
upon a bona fide occupational qualification.
RSA 354-A:7, I (Supp. 2006) (emphasis added). “Employer” is defined to exclude various types of
organizations, and also “does not include any employer with fewer than 6 persons in its employ . . . .”
RSA 354-A:2, VII (Supp. 2006). Individuals are not mentioned in this definition.

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chapter or any order issued under the authority of this chapter.” RSA 354-A:2, XV (Supp. 2006). The provision is silent about exactly who is prohibited from aiding and abetting unlawful discriminatory practices, so it would appear that its application is not limited to a specific group.

Foley argues that this provision cannot create a separate cause of action against individuals for aiding and abetting unlawful discrimination, because it is now merely part of the definition section. Foley asserts that the “scope” of the chapter’s pertinent employment-based anti-discrimination prohibitions may not be properly deemed to at this time extend to individual aiding and abetting liability. See Def.’s Memo. At 9-10. While the Court agrees with the general principle that definitions do not create causes of action, the Court need not rely on the definition as creating a separate cause of action; every time the chapter describes an “unlawful discriminatory practice,” the proscribed practices include aiding and abetting those practices.

In RSA 354-A:7, the language “unlawful discriminatory practice” appears before any provision limiting the prohibited activity to “employers,” and while “employers” are directly and expressly covered within the body of RSA 354-A:7, I, and not individuals, it is an “unlawful discriminatory practice” not just to be an “employer” engaging in the described practices, but also to aid or abet an “employer” in engaging in those practices. The chapter’s provisions are to be construed liberally to accomplish its purposes. See RSA 354-A:25. If the Legislature had wanted to limit liability for aiding and abetting discriminatory practices to “employers,” it could easily have included such language.

Foley argues, however, that the legislative history of RSA 354-A supports his contention that individuals like himself may not be deemed liable for aiding and abetting

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discrimination in the employment context as here asserted. When the chapter was repealed and re-enacted in 1992, the previously existing prohibition language concerning aiding and abetting unlawful discriminatory practices was taken out of RSA 354-A:7 (then codified as RSA 354-A:8) and placed, with some modifications not material here, into the definition section in RSA 354-A:2. Compare RSA 354-A:8, VI (1984), RSA 354-A:2, XV(d) (Supp. 2006). Foley argues that this means “[i]t is no longer a per se unlawful discriminatory practice for ‘any person’ to aid and abet the commission of such practices.” Def.’s Memo. at 10.

Before it was repealed and amended, however, RSA 354-A:8 contained provisions that applied to employment, housing, and public accommodations. RSA 354-A:8 (1984). At the same time the aiding and abetting language was moved to the definition section (RSA 352-A:2, XV(d) (1992)), the housing and public accommodation provisions were, among other things, moved to sections of their own. E.g. RSA 354- A:10 (1992), RSA 354-A:17 (1992). In moving the aiding and abetting language to the definition section, and in restructuring the chapter as it did, the Legislature did nothing to evidence the discontinuance of the imposition of individual liability for aiding and abetting discrimination in all three contexts, including the employment context.

The Court observes that other states besides New Hampshire have adopted employment discrimination statutes that impose individual liability for aiding and abetting discrimination in the workplace. See Cal. Gov’t Code § 12940(i); M.G.L. c. 151B § 4(5); N.J. Stat. Ann. § 10:5-12(e); N.Y. Exec. Law § 296(6); PA Cons. Stat. § 955(e). These statutes reflect policy judgments that imposing individual liability for such conduct in the workplace is appropriate to fully eliminate and prevent illegal discrimination. Foley

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points out, however, that “each of these statutes further creates individual liability by making it unlawful ‘for any person’ to aid, abet, incite, compel, or coerce the doing of any unlawfully discriminatory act or practice[,]” Def.’s Memo. at 8 (citations omitted), while RSA 354-A:2, XV(d) does not expressly specify who is prohibited from aiding and abetting discrimination, and RSA 354-A:7,I directly deals, in its body, only with “employers.” As previously discussed, however, our Legislature, in making its 1992 amendments, did not act to limit the application of the aiding and abetting language in the manner asserted by Foley, but continued its application to individuals like him.[2]

Accordingly, Foley’s motion is DENIED with respect to the Rowe’s claims against him for aiding and abetting unlawful discriminatory practices. Accord, Fleming v. N.E. Restaurant Co., Inc., No. 01-E-323 at 5-6 (N.H. Superior Ct., Rockingham, June 17, 2002, Hollman, J.).

Finally, RSA 354-A:19 states:

It shall be an unlawful discriminatory practice for any person engaged in any
activity to which this chapter applies to discharge, expel, or otherwise
retaliate or discriminate against any person because he has opposed any
practices forbidden under this chapter or because he has filed a complaint,
testified or assisted in any proceeding under this chapter.
(emphasis supplied). Unlike RSA 354-A:7, I, RSA 354-A:19 expressly applies to
“persons.” “Person” is defined broadly enough to include certain organizations, but it also
includes individuals. RSA 354-A:2, XIII (Supp. 2006).

[2] Foley asserts that the New Hampshire Human Rights Commission has not recognized liability as here
urged by Rowe. See Slade v. Ames Textile Co., ES(H) (R) 5774-96 (N.H. H.R.C. January 27, 1998)
(decision on motion to dismiss). Rowe disputes that the Commission adheres to the position on individual
liability set forth in Slade. See Teates v. Bournival, ES(H) 6044-97 (N.H. H.R.C. March 6, 1999). In any
event, the Court deems the Slade ruling not to express the Legislature’s intent as to “aiding and abetting”
individual liability.

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A United States District Court for the District of New Hampshire decision has interpreted this provision to apply only to “employers.” See Jones v. McFarland Ford Sales, Inc., No. Civ. 05CV347JD, 2005 WL 3447954, at *2 (D.N.H. 2005, DiClerico, J.) (finding that unlawful discrimination in employment is limited to actions by an employer, so “to be engaged in an activity to which chapter 354-A applies in the employment context, the retaliator necessarily would be an employer”). A number of Superior Court decisions, however, have concluded that the provision indeed may apply to individuals like Foley here. See Hodgdon v. School Admin. Unit #51, No. 06-C-239 at 6-7 (N.H. Superior Ct., Belknap, January 26, 2007, Smukler, J.); Fleming v. N.E. Restaurant Co., Inc., No. 01-E-323 at 6. The New Hampshire Supreme Court has yet to address the issue.

While RSA 354-A:7, I, in its body, is limited to “employers,” the “activity” to which this chapter applies rather broadly encompasses employment, and “employers” are not the only entities or “persons” engaged in such employment activity. RSA 354-A:19 makes it unlawful for “persons” engaged in the pertinent employment activity to retaliate against those who have opposed any practices proscribed under the chapter, without regard to whether those “persons” are also “employers” within the meaning of the chapter. If the Legislature had seen fit to limit the provision in the employment context to “employers,” as it did expressly in RSA 354-A:7,I, it could easily have done so.

Accordingly, the Court will not construe “any person” to mean only “employers,” and Foley’s motion to dismiss is DENIED with regard to the plaintiff’s claim under RSA 354-A:19.

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Foley strongly urges that Congress’ explicit protection of small employers in Title VII, as reflected in 42 U.S.C. 2000e(b), likewise exists in RSA 354-A:2, VII, and to find individual liability under the state law, as urged by Rowe, would be “inconsistent with . . . clear legislative directive.” Def.’s Memo. at 14. The Court disagrees. Insofar as it deals with workplace discrimination and retaliation, RSA 354-A differs in a number of significant ways from Title VII, including the addition of “aiding and abetting” as an illegal discriminatory practice.

For the foregoing reasons, defendant Foley’s motion to dismiss is GRANTED to the extent that claims against him under the Title VII of the Civil Rights Act of 1964, as amended, are dismissed. His motion is DENIED to the extent that claims against him for aiding and abetting an employer’s discriminatory practices under RSA 354-A:7, I, and for retaliation under RSA 354-A:19, are not dismissed.

So ORDERED.
Date: July 31, 2007 ________________________
JOHN M. LEWIS
PRESIDING JUSTICE