Bergstrom v. University of N.H.

• Decision Date: 21 June 1996
• Docket Number: Civil No. 95-267-JD.
• Citation: 943 F.Supp. 130
• Parties: Carol Ann BERGSTROM v. UNIVERSITY OF N.H., et al.
• Court: U.S. District Court — District of New Hampshire

943 F.Supp. 130

Carol Ann BERGSTROM v. UNIVERSITY OF N.H., et al.

Civil No. 95-267-JD.

United States District Court, D. New Hampshire.

June 21, 1996.

Edward W. Kaplan, Sulloway & Hollis, Concord, NH, for Plaintiff.

Martha V. Gordon, Nelson, Kinder, Mosseau & Gordon, P.C., Manchester, NH, for Defendants.

ORDER

DiCLERICO, Chief Judge.

The plaintiff, Carol Ann Bergstrom, has filed this employment discrimination action against her former employers, defendants University of New Hampshire and the University System of New Hampshire (collectively "UNH"), and against a former supervisor, defendant Roger Beaudoin. The plaintiff asserts violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New Hampshire equal pay act, N.H.Rev. Stat. Ann. ("RSA") § 275:36 et seq. Before the court is the defendants' motion for summary judgment (document no. 17).

Background¹

The plaintiff has been employed in various professional, administrative, and technical ("PAT") capacities at UNH since August 6, 1979.² During her years at the university she has been subjected to a variety of adverse employment actions because of her gender, including intentional acts of sex discrimination. The most recent discriminatory act is alleged to have occurred on April 9, 1993, when UNH "informed Bergstrom that no action would be taken to remedy the discriminatory treatment by Beaudoin and [Steve] Larson," another UNH supervisor. Complaint at ¶ 37.

For several years the plaintiff attempted to resolve these employment concerns through direct negotiation with the university. She first notified senior management, including the office of the university president, of the discriminatory conduct in 1988. Since that time, UNH administrators have made verbal and written assurances to the plaintiff that the situation would be reviewed and remedied if the plaintiff were to forego legal action. Although the plaintiff was transferred to another department with the understanding that she would assume the title and responsibilities of an associate director, such a promotion "never materialized" and "from 1988 through 1993, administrators and officials at the University failed to meet their repeated promises that they would remedy the discrimination plaintiff suffered." On January 31, 1994, 297 days after the last incident of discrimination, the plaintiff filed a formal charge of discrimination with the New Hampshire Human Rights Commission ("NHHRC"), which also served as a timely filing with the Equal Employment Opportunity Commission ("EEOC").

The court incorporates other facts, infra, as necessary for its analysis of the legal issues presented by the instant motion.

Discussion

The role of summary judgment is "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Snow v. Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir.1993) (quoting Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993)), cert. denied, ___ U.S. ___, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994). The court may only grant a motion for summary judgment where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of establishing the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 227-28 (1st Cir.1992). The court must view the entire record in the light most favorable to the plaintiff, "`indulging all reasonable inferences in that party's favor.'" Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990)), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). However, once the defendant has submitted a properly supported motion for summary judgment, the plaintiff "may not rest upon mere allegation or denials of [her] pleading but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (citing Fed.R.Civ.P. 56(e)).

I. Count II Is Not Barred

In their motion the defendants assert that count II, a Title VII sexual harassment claim, is barred because the alleged misconduct underlying the claim occurred outside the Title VII limitations period. See Defendants' Memorandum of Law in Support of Motion for Summary Judgment ("Defendants' Memorandum") at 2-3.³ The defendants reason that because the plaintiff "does not contend that anyone other than Beaudoin sexually harassed her or that the alleged sexual harassment continued after April, 1988," the alleged harassment cannot be actionable unless it bears a "substantial relationship" to an act of harassment that did occur within the limitations period. Id. at 1-2.

The plaintiff responds that each of her allegations is actionable as part of a continuing violation that also encompassed conduct occurring within the limitations period. See Plaintiff's Memorandum of Law in Opposition to Summary Judgment ("Plaintiff's Memorandum") at 6-8. In the alternative, the plaintiff urges that the limitations period "should be equitably tolled because the University mislead [her] into refraining from legal action by repeatedly promising to provide her with a remedy." Id. at 8.

To maintain a Title VII action a plaintiff must file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), or its designee, within a specified time period. See Bergstrom v. University of New Hampshire, No. 95-267-JD, slip op. at 5-8 (D.N.H. Jan. 9, 1996) (citing 42 U.S.C. § 2000e-5(e)(1) and other authority).⁴ However, the First Circuit permits Title VII litigants to "reach back and recover for a series of acts outside the limitations period" under either of two continuing violation theories, the serial violation theory and the systemic violation theory. Lawton v. State Mutual Life Ass. Co. of America, 924 F.Supp. 331, 339-40 (D.Mass.1996) (citing Sabree v. United Brotherhood of Carpenters and Joiners, 921 F.2d 396, 400-01 (1st Cir.1990)); accord Douglas v. Coca-Cola Bottling Co., No. 94-97-M, slip op. at 9-10, 1995 WL 907759 (D.N.H. Nov. 6, 1995).⁵

A serial "violation is composed of a number of discriminatory acts emanating from the same discriminatory animus, each act constituting a separate actionable wrong under Title VII." Sabree, 921 F.2d at 400 (quoting Jensen v. Frank, 912 F.2d 517, 522 (1st Cir.1990)). To proceed under this theory, the plaintiff must show a "substantial relationship" between the time-barred acts and at least one act of harassment that occurred within the limitations period. E.g., Sabree, 921 F.2d at 401 (citing Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir.1983), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986)); Lawton, 924 F.Supp. 331, 339-40; Douglas, slip op. at 9-10. The most important factor to consider when assessing the substantiality of the relationship between the timely and untimely conduct is whether "the act outside the limitations period `has the degree of permanence which should trigger an employee's awareness and duty to assert her rights.'" Lawton, 924 F.Supp. at 340 (quoting Desrosiers v. Great Atlantic & Pacific Tea Company, 885 F.Supp. 308, 312 (D.Mass.1995)); see Jensen, 912 F.2d at 522 ("What matters is whether, when and to what extent the plaintiff was on inquiry notice"); Douglas, slip op. at 9-10 (permanence found where plaintiff "unable to appreciate that [she was] being discriminated against until [she had] lived through a series of acts" (quoting Sabree, 921 F.2d at 402)). Thus, courts in this circuit have rejected a serial violation theory where the plaintiff "admitted that he believed, at every turn, that he was discriminated against," Sabree, 921 F.2d at 402, and where the plaintiff "fail[ed] to offer any evidence that [the timely and untimely] actions were motivated by the same discriminatory animus or were related in any way," Lawton, 924 F.Supp. at 340.

The court finds that the plaintiff has alleged acts and adduced ample evidence to support her theory of a serial violation. The complaint, liberally construed in accordance with Rules 8(a) & (e), alleges an ongoing pattern of harassment which began several years prior to the statutory time limit but did not terminate until a date within the time period, i.e., April 9, 1993. The pattern alleged not only involves individual acts of direct harassment, such as those attributed to Beaudoin, e.g. Complaint at ¶¶ 22-31, but also encompasses less explicit conduct, such as that involving other members of university management, e.g. id. at ¶¶ 32-37, 58. For example, the university's failure to remedy the plaintiff's complaints of Beaudoin's harassment notwithstanding specific requests to do so arguably constitutes a purposeful extension, ratification, or amplification of the unlawful conduct. Moreover, the plaintiff's requests for assistance from others within the university administration and, in turn, their false assurances that the situation would be remedied, supports the inference that the plaintiff herself did not recognize the full nature and extent of the pattern of harassment until the pattern concluded in April 1993.

Finally, each incident of unlawful conduct arguably emanated from the same discriminatory animus in that each involved job-related harassment initiated by the plaintiff's superiors or others in positions of authority, each allegedly precipitated the...