Brown v. Town of Allenstown

• Decision Date: 20 November 1986
• Docket Number: Civ. No. 86-79-D.
• Parties: Brenda BROWN v. TOWN OF ALLENSTOWN; Gabriel Daneault; Donald Chaput; Gerald Bourcier; Paul Hill.
• Court: U.S. District Court — District of New Hampshire

648 F. Supp. 831

Brenda BROWN v. TOWN OF ALLENSTOWN; Gabriel Daneault; Donald Chaput; Gerald Bourcier; Paul Hill.

Civ. No. 86-79-D.

United States District Court, D. New Hampshire.

November 20, 1986.

COPYRIGHT MATERIAL OMITTED

Jon Meyer, Manchester, N.H., Susan V. Denenberg, Portsmouth, N.H., for plaintiff.

Timothy E. Britain, Concord, N.H., Gerald M. Zelin, Salem, N.H., for defendants.

ORDER

DEVINE, Chief Judge.

Brenda Brown, a former part-time police officer for the Town of Allenstown, has brought this action against the Town of Allenstown ("Allenstown"); Gabriel Daneault, Donald Chaput, and Gerald Bourcier, Selectmen for Allenstown at the time the alleged events took place; and Paul Hill, a former police officer for Allenstown, alleging employment discrimination, violation of her civil rights under color of state law, and various state law claims sounding in tort. All claims are asserted against the named defendants in their official capacities, and claims are asserted against defendants Chaput, Daneault, and Hill in their personal capacities. In a nine-count, 60-paragraph complaint (as amended), plaintiff alleges that defendants deprived her of rights protected by: the First Amendment to the United States Constitution; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 ("Title VII"); the Civil Rights Act of 1871, 42 U.S.C. § 1983; and state law. Jurisdiction is grounded under 28 U.S.C. §§ 1331 and 1343, and the pendent jurisdiction of this Court.

Briefly, plaintiff's allegations are as follows: (1) she was repeatedly passed over by the Allenstown Board of Selectmen ("Board") for the position of full-time police officer because she was female, despite being more qualified than the successful applicants and despite being recommended by the Police Department; (2) she was sexually harassed by defendant Hill at the time he was an officer of the Police Department; (3) she was suspended by the Board for allegedly criticizing them and for filing a complaint with the New Hampshire Commission for Human Rights; (4) after being reinstated to her position by order of the New Hampshire Superior Court, she was constructively terminated through a pattern of deliberate harassment by a member of the Board; (5) members of the Board attempted to destroy her reputation and emotional well-being by making slanderous and false statements about her; and (6) the actions of defendants Chaput, Daneault, and Hill toward her were malicious, intentional, and undertaken with reckless or callous indifference to her federally protected rights. Plaintiff seeks injunctive relief, monetary damages, prejudgment interest, and her reasonable attorney's fees and expenses.

Three motions and objections thereto are currently before the Court: (1) defendants' motion pursuant to Rule 12(b)(6), Fed.R. Civ.P., for partial dismissal of the complaint;¹ (2) defendants' motion pursuant to Rule 56, Fed.R.Civ.P., for partial summary judgment on Count VI to the extent that it asserts a right to recover against Chaput and Daneault; and (3) plaintiff's motion pursuant to Rule 41, Fed.R.Civ.P., for voluntary dismissal of claims against Bourcier in his official capacity. Resolution of the legal issues raised by these motions will be decided on the documents as filed.²

Applicable Standards of Law

A motion to dismiss based on Rule 12(b)(6), Fed.R.Civ.P., is viewed with disfavor because, rather than a dismissal based on pleadings, the objective of our system of justice is that each litigant obtain a determination on the merits. Intake Water Co. v. Yellowstone River Compact Comm'n, 590 F.Supp. 293, 296 (D.Mont.1983), aff'd 769 F.2d 568 (9th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 2288, 90 L.Ed.2d 729 (1986). Consequently, in considering a motion to dismiss, the nonmoving party is afforded nearly every benefit of the doubt. "The material facts alleged in the complaint are to be construed in the light most favorable to the plaintiff and taken as admitted, with dismissal to be ordered only if the plaintiff is not entitled to relief under any set of facts he could prove." Chasan v. Village Dist. of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983) (citations omitted), aff'd without opinion, 745 F.2d 43 (1st Cir.1984). The issue the Court must address is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." V.S.H. Realty, Inc. v. Texaco, Inc., 757 F.2d 411, 414 (1st Cir.1985) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)).

In reviewing motions to dismiss the Court's consideration is limited to the allegations of the complaint itself. Litton Indus., Inc. v. Colon, 587 F.2d 70, 74 (1st Cir.1978). However, in the instant case matters outside the pleadings have been presented to the Court with regard to the motions to dismiss in Counts I and III and the motion to dismiss the official-capacity claims against Bourcier and Hill. As all parties have had reasonable opportunity to present pertinent material, the Court will deal with these motions under Rule 56.³

Under Rule 56(c), Fed.R.Civ.P., summary judgment "shall be rendered forthwith if 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." The moving party must affirmatively demonstrate that there is no genuine, relevant factual issue, and the Court must look at the record in the light most favorable to the party opposing the motion and indulge all inferences favorable to that opposing party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); General Office Products Corp. v. M.R. Berlin Co., Inc., 750 F.2d 1, 2 (1st Cir. 1984). Summary judgment must be denied where there remains the "slightest doubt" as to any material fact. United States v. Del Monte De Puerto Rico, Inc., 586 F.2d 870, 872 (1st Cir.1978).

The Court is able to render a ruling on Counts II, IV, VII, and the motion to dismiss claims for punitive and enhanced damages on the standard for a motion to dismiss; with regard to Counts I, III, VI, and the motion to dismiss official-capacity claims against Bourcier and Hill, the Court will follow the summary judgment standard.

Rulings of Law

Count I — The Timeliness Issue

Defendants have moved to dismiss Count I⁴ to the extent that Count I asserts a right to recover for actions which were not timely filed with appropriate administrative agencies. Asserting that such claims are barred, defendants seek dismissal on the ground that plaintiff has failed to state a claim upon which relief can be granted. Material outside the pleadings has been presented for consideration; therefore, the Court applies the standards applicable to a motion for summary judgment.

Both federal and New Hampshire law require employment discrimination claims to be filed within 180 days after the alleged unlawful act. 42 U.S.C. § 2000e-5(e); RSA 354-A:9 III. Plaintiff filed her first complaint with an administrative agency on July 5, 1984. Therefore, defendants contend that their alleged misconduct prior to January 7, 1984, is beyond the claims limitations period and not actionable.

Plaintiff contends that her claims based on defendants' unlawful conduct occurring prior to January 7, 1984, are not barred because the acts were part of a "continuing violation" of her rights and, as such, her filing was timely with regard to all discriminatory acts falling within the continuing violation alleged. Alternatively, plaintiff asserts that timely filing is not a jurisdictional prerequisite, but, even if treated as such, is subject to waiver, estoppel, and equitable tolling.

Plaintiff's "continuing violation" theory is recognized in this circuit, see Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980), and in other circuits, see Annotation, Time Requirements for Civil Action for Violation of Equal Employment Opportunities Provisions Under § 706 of Civil Rights Act of 1964 (42 U.S.C. § 2000e-5), 4 A.L.R.Fed. 833 § 9 (1970 & Supp.1985). In Goldman, the Court of Appeals for the First Circuit explained the nature and elements of a continuing violation:

Courts have held that if a Title VII or ADEA violation is of a continuing nature, the charge of discrimination filed with the appropriate agency may be timely as to all discriminatory acts encompassed by the violation so long as the charge is filed during the life thereof or within the statutory period (e.g., 180 days) which commences upon the violation's termination.

To state such a continuing violation, however, a complaint must indicate that not only the injury, but the discrimination, is in fact ongoing.

Goldman, supra, 607 F.2d at 1018 (citations omitted).

The complaint states that Allenstown has hired only one other female special police officer aside from plaintiff and has never employed a full-time female officer. The complaint further alleges that Selectmen Daneault and Chaput made statements that Allenstown was not ready to hire a full-time woman police officer and that women were not qualified as officers. Throughout the complaint plaintiff alleges and infers a past and ongoing pattern of sexual discrimination. Furthermore, plaintiff testified at her deposition that Chief of Police Connor made an equivocal statement which indicates that a genuine issue of material fact exists as to whether Allenstown's failure to hire the plaintiff was improperly motivated.⁵

A repeated refusal to hire an individual does not per se establish a continuing violation. Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir.), cert. denied, 459 U.S. 971, 103 S.Ct. 309, 74 L.Ed.2d 283 (1982). However, if the plaintiff can show that a discriminatory...