Rand v. Exeter

Rand v . Exeter                     11-cv-55-PB           10/2/13

                      UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW HAMPSHIRE



Brenda L . Rand

   v.                                   Case N o . 11-cv-55-PB
                                        Opinion N o . 

Town of Exeter, et a l .


                           MEMORANDUM AND ORDER


     Brenda Rand has sued her former employer, the Town of

Exeter, as well as a former coworker and four of her former

supervisors.      She alleges that the coworker sexually assaulted

her while they were both working at the Town’s waste transfer

station. She also claims that the Town and her supervisors

failed to properly respond to her sexual harassment complaint

and retaliated against her when she complained of the

harassment. She has brought claims under Title V I I , New

Hampshire’s Law Against Discrimination, and state common law.

     The defendants have moved for summary judgment.



                              I.   BACKGROUND

     Brenda Rand was employed as a solid waste transfer operator

in the Town’s highway department. Doc. Nos. 22-2, 3 0 . The

position required Rand to work alone at the Town’s transfer
station assisting residents with the disposal and recycling of

household waste. George McAllister worked as a laborer in the

same department. Jay Perkins, Jennifer Perry, Donna Cisewski,

and Russell Dean were employed by the Town in supervisory

positions superior to both Rand and McAllister.   

A.   Sexual Harassment

     On November 1 2 , 2009, McAllister opened the transfer

station shortly before Rand arrived several minutes late as a

result of a prior engagement. Doc. Nos. 22-2, 3 0 . Rand thanked

McAllister for his assistance by either patting him on the

shoulder or giving him a hug and a kiss on the cheek.   Doc. N o .

18-4.   Immediately thereafter, Rand alleges that McAllister

grabbed her waist, pulled her body close to his, and fondled her

breast.   Doc. Nos. 22-2, 3 0 . When Rand attempted to pull away,

McAllister grabbed her hand and pressed it against his clothed,

erect penis while laughing and repeating various lewd remarks.

McAllister then dragged Rand by her wrist approximately forty

feet across the parking lot toward a location shielded from

public view.   The incident ended abruptly when a Town resident

pulled into the transfer station. Rand and McAllister were the

only eyewitnesses to these events.   

     Rand maintained a log book at the transfer station and

noted the incident in an entry dated November 1 2 , 2009.   Doc.
                                 2
N o . 22-4. She told her husband about it the following day, and

he recommended that she report it to her immediate supervisor,

Perkins.   Doc. N o . 18-4. On November 1 7 , 2009, Rand first

confided in one of her coworkers, Walter Dow, regarding the

incident before reporting it to Perkins, Perry, and Cisewski

later that day.    Doc. Nos. 22-2, 22-4, 22-13, 3 0 . When Rand

lodged her complaint, she provided the Town with her log book

containing the relevant entry.    

   Cisewski immediately

informed Rand and Perkins that McAllister would be prohibited

from visiting the transfer station during the pendency of the

investigation.    Doc. N o . 18-4. Cisewski and Perkins then agreed

that McAllister would be placed on administrative leave if he

admitted to the allegations.    

     As the Town’s Human Resources Director, Cisewski was tasked

with investigating Rand’s complaint in accordance with the

Town’s Anti-Harassment Policy (“the Policy”), Doc. N o . 23-2,

which contains the following relevant provisions. Among other

examples of sexual harassment, “sexual . . . propositions” and

“unwanted physical contact” are prohibited.     Employees who feel

that they have been harassed must report each incident to the

Town’s Human Resources Director (Cisewski) or the Town Manager

(Dean).    When a complaint is filed, the Town must promptly

initiate an investigation.    Complaints must be kept confidential
                                  3
except to the extent that disclosure is required to complete the

investigation.   An investigation typically includes interviews

with the complainant, the alleged harasser, and any relevant

witnesses.   An alleged harasser may be suspended pending

investigation.   If the complainant is dissatisfied with the

investigation, she must inform the Town Manager.   

     The Policy also forbids employees from retaliating against

an employee who files a “good faith” complaint of sexual

harassment or assists in a subsequent investigation.     Employees

who engage in retaliatory behavior are subject to disciplinary

action.   As with sexual harassment complaints, allegations of

retaliation must be brought to the Town’s Human Resources

Director or the Town Manager.     

     In accordance with the Policy, Cisewski conducted two

private interviews each with Rand, McAllister, and Dow.     Doc.

N o . 18-3. In each case, Cisewski took handwritten notes during

the interview and had the interviewee read and sign every page

to acknowledge that the notes accurately reflected the substance

of the interview.   Each interview was guided by a series of pre-

printed questions tailored either to the complainant, the

alleged harasser, or the witness. The interviews also provided

an opportunity for the interviewee to recount the relevant

events in narrative form.   

                                  4
     Cisewski conducted interviews with Rand on November 17 and

2 0 , 2009.   Doc. N o . 22-2. Rand testified to the events as

described above, except she asserted that she had patted

McAllister on the shoulder rather than hugging him and giving

him a kiss on the cheek.     Doc. Nos. 18-4, 22-5, 22-9. Rand

informed Cisewski that she was nervous, scared, and would not

know what to do if McAllister were to come to the transfer

station again.      

     Cisewski and Rand dispute whether, during the first

interview, Rand showed Cisewski certain gouges, abrasions, and

bruises on her right hand which allegedly resulted from the

assault.      Doc. Nos. 18-4, 22-2, 22-4. Rand submitted a written

narrative of the incident at the first interview, and Cisewski

and a second Town employee took photographs of Rand’s hand

during the second interview.     Rand also took photographs of her

hand and gave them to Cisewski, who informed Rand that they were

of inadequate quality and would be thrown away.       No photographs

have been produced in discovery.       

   During the second

interview, Cisewski presented Rand with a copy of the Town’s

Policy for her to read and sign. Doc. N o . 22-5. Rand had not

previously been made aware of the Policy despite having been

employed by the Town for three and a half years.        

     When Cisewski interviewed McAllister on November 1 8 , 2009,
                                   5
McAllister testified that, as a result of his poor eyesight, he

had stumbled while following too closely behind Rand in the

transfer station’s parking lot and reached out to break his

fall.    Doc. Nos. 18-4, 22-4. This caused his hand to

accidentally brush against Rand’s breast. In a subsequent

interview on November 2 0 , McAllister testified that his hand had

brushed against Rand’s breast when he stumbled after she hugged

him.    McAllister testified that there was no discussion between

himself and Rand regarding this contact. After assisting Rand

for a few minutes, McAllister left the transfer station.      

McAllister’s personnel record contains no information prior to

the alleged assault regarding behavior that would place the Town

on notice that he might violate the Town’s Policy.     Doc. N o . 23-

2.   His personnel record contains a copy of the Policy, signed

and acknowledged by McAllister shortly after the Town hired him

in 2001.    

       Cisewski interviewed Dow on November 18 and 2 0 , 2009.   Doc.

Nos. 18-4, 22-4. Dow confirmed that Rand had described

essentially the same events as those Rand had related to

Cisewski in her two interviews. Dow testified, however, that

Rand had informed him that she had thanked McAllister for

opening the transfer station by hugging him and kissing him on

the cheek rather than patting him on the shoulder, as Rand had
                                  6
stated in her interviews. Dow told Cisewski that he could not

believe McAllister would behave as Rand alleged, and that he had

not believed Rand’s description of the events.        

     While the investigation proceeded, Rand requested a meeting

with Cisewski, Perkins, and McAllister to discuss her

allegations in person with the alleged harasser. Doc. N o . 22-4.

That meeting never occurred, and on November 2 5 , 2009, Cisewski

submitted a written report of the results of the investigation

to Dean. On December 8 , 2009, Rand attended a meeting with

Cisewski, Perkins, and Perry to discuss the findings. Doc. Nos.

18-12, 22-2, 3 0 . Cisewski informed Rand that the Town was

unable to find merit in Rand’s complaint, and therefore

McAllister would not be disciplined and Rand should return to

work.   

   Cisewski informed Rand that this finding was due to

a lack of credible evidence corroborating Rand’s version of

events, as well as inconsistencies in Rand’s interview

testimony.    Doc. N o . 22-4.

     Upon receiving this news, Rand became extremely upset and

abruptly left the meeting to seek out McAllister.        Doc. Nos. 18-

1 0 , 3 0 . Perkins summoned the police to remove her from the

premises.     

   Cisewski, Perkins, and Perry then collected

written statements from Town employees who had witnessed Rand’s

behavior following the meeting.        Doc. N o . 22-4. The next day,
                                   7
Perry placed Rand on administrative leave with pay and informed

her that she might be required to attend anger management

counseling before returning to work.   Doc. Nos. 18-12, 22-2, 3 0 .

B.   Retaliation

     On November 2 4 , 2009, one week after Rand informed the Town

of the alleged sexual harassment, Dean received an emailed

complaint from a Town resident who alleged that Rand had been

rude to her at the transfer station two days earlier. Doc. Nos.

20-12, 20-13, 22-2, 22-4, 3 0 . Perry and Perkins reprimanded

Rand for her behavior as described in the email, as well as for

violating Town rules prohibiting smoking in Town buildings. In

response, Rand provided a notebook to Perkins that contained her

own account of the incident, maintaining that she behaved

appropriately in the face of a resident’s abusive conduct.      The

same day, Perkins wrote in a memorandum to Rand’s personnel file

that Rand “is not a good fit at our transfer station and should

be replaced.”   

     Rand alleges that in early December, two male coworkers

told her that Perkins had instructed some Town employees to

“watch out for” Rand.   Doc. Nos. 20-9, 20-10, 22-2, 22-4, 3 0 .

During the same period, she also learned that a different

coworker had been informed of Rand’s sexual harassment complaint

in violation of the Policy’s confidentiality provisions.     After
                                 8
she filed her complaint, Rand noticed that several coworkers

became less friendly toward her.    

     Rand claims that Perkins, whom she alleges was biased

toward McAllister due to a preexisting outside business

relationship, began closely scrutinizing Rand’s job performance

after she filed her complaint. Doc. Nos. 22-2, 22-4. She

further claims that Perkins instructed Rand to perform her job

responsibilities in a manner that she believed would violate

state environmental protection laws.      Rand asserts that Perkins

considered her a “troublemaker,” having twice passed her over

for promotion after he had previously promised her a full-time

position when one became available.    

     On December 3 , 2009, Perry and Rand spoke by telephone

about the need for Rand to improve her ability to defuse

altercations with difficult town residents. Doc. N o . 22-4.

Perry implied that Perkins had instructed Rand regarding this

issue on numerous prior occasions, which Rand disputes.      

That same day, Perkins documented two additional complaints

lodged by residents in the preceding weeks. Doc. Nos. 18-10,

22-4.   The first alleged that Rand was rude to a resident who

arrived at the transfer station just prior to its closing time.

The second alleged that Rand had failed to assist an elderly

resident who had needed help to dispose of waste that she had
                                9
brought to the transfer station.       

      On December 1 2 , 2009, Rand’s attorney filed a written

request for Rand’s personnel file. Doc. Nos. 22-5, 22-10, 22-

12.   The Town did not begin to deliver sections of Rand’s file

until two months later. Also on December 1 2 , Rand’s attorney

provided formal written notice to Dean that Rand was

dissatisfied with the investigation, in accordance with the

Town’s Policy.     The Town never responded.   

   That same day,

Rand filed the first of two complaints with the New Hampshire

Commission for Human Rights and the Equal Employment Opportunity

Commission (EEOC).    Doc. N o . 22-2.

      The Town repeatedly extended Rand’s paid administrative

leave over the following five months. Doc. Nos. 18-12, 22-3,

22-4, 22-5. On January 1 5 , 2010, Perry and Rand spoke by

telephone regarding a certificate issued by the state Department

of Environmental Services noting Rand’s attendance at a workshop

required to maintain a necessary license. Perry informed Rand

that her license would not be renewed because Rand had admitted

to altering the date on the attendance certificate. Rand denies

that she altered the date or that she told Perry that she had

done s o .   

      On May 1 9 , 2010, while Rand was still on administrative

leave, Perry called Rand and asked her to attend a meeting the
                                  10
following day regarding her future employment with the Town.

Doc. Nos. 18-12, 22-3, 22-4, 3 0 . Rand informed Perry that her

attorney would be unable to accompany her to the meeting on such

short notice, that she would not attend the meeting without her

attorney, and that she would prefer that the meeting be

rescheduled.   Perry informed Rand that her attorney was not

invited.   When Rand did not attend the meeting the following

day, Dean consulted with Perkins, Perry, and Cisewski prior to

terminating Rand’s employment on the basis of several alleged

violations of the Town’s Personnel Plan.1   

     Rand asserts that each of the stated reasons for her

termination is groundless. Doc. Nos. 22-3, 3 0 . Prior to her

sexual harassment complaint on November 1 7 , 2009, Rand had

received positive performance reviews, and she asserts that she

had never received a reprimand before lodging the complaint.

Doc. Nos. 22-2, 22-6, 22-13, 3 0 . Rand claims that a memorandum

in her personnel file dated April 2 2 , 2009, memorializing an

incident in which Rand was the subject of multiple complaints by

1
  The stated reasons include “[u]nnecessary violence or indignity
to a citizen,” “[d]isobedience or violation of any department
regulation, rule, order, instruction or memorandum,”
“[i]ndecent, profane or unnecessary [sic] harsh language,”
“[c]onduct tending to cause ill repute on [sic] the Town,”
“[f]alsifying any Town record or report,” and “[t]hreatening,
intimidating, coercing or interfering with any fellow employees
on Town premises or during working hours.” Doc. N o . 20-8.

                                11
Town residents regarding her poor job performance, was in

reality drafted after Rand filed the sexual harassment

complaint. Doc. Nos. 18-10, 22-4. Rand claims that Perkins

fabricated this memorandum in an effort to develop additional

documentary support to fire her.         

     Rand alleges that she suffered various economic, emotional,

and reputational injuries as a result of the sexual assault and

the Town’s subsequent actions from November 1 2 , 2009 until May

2 0 , 2010. Doc. N o . 3 0 .



                         II.   STANDARD OF REVIEW

     Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”         Fed. R. Civ. P.

56(a).    The court must consider the evidence submitted in

support of the motion in the light most favorable to the

nonmoving party, drawing all reasonable inferences in its favor.

See Navarro v . Pfizer Corp., 

 0 , 94 (1st Cir. 2001).

     A party seeking summary judgment must first identify the

absence of any genuine dispute of material fact. Celotex Corp.

v . Catrett, 

 1 7 , 323 (1986).      A material fact is one

“that might affect the outcome of the suit under the governing

law.”    Fed. Deposit Ins. Corp. v . Estrada-Rivera, 

 0 ,
                                    12
54 (1st Cir. 2013) (quoting Anderson v . Liberty Lobby, Inc., 

 4 2 , 248 (1986)).   If the moving party satisfies this

burden, the burden shifts to the nonmoving party to “produce

evidence on which a reasonable finder of fact, under the

appropriate proof burden, could base a verdict for i t ; if that

party cannot produce such evidence, the motion must be granted.”

Ayala-Gerena v . Bristol Myers-Squibb Co., 

 6 , 94 (1st

Cir. 1996); see Celotex, 

.      “Conclusory

allegations and rank speculation, even if couched in pejorative

language, will not suffice to defeat a properly supported

summary judgment motion.”     Hannon v . Beard, 

 5 , 48 (1st

Cir. 2011).



                             III.   ANALYSIS

     Rand’s seven-count complaint asserts Title VII claims for

hostile work environment sexual harassment, 42 U.S.C. § 2000e-2,

and retaliation, § 2000e-3(a) (Count I ) ; state law claims of

hostile work environment sexual harassment, 

-A:7, and retaliation, § 354-A:19 (Count I I ) ; assault and

battery (Count I I I ) ; intentional and negligent infliction of

emotional distress (Count I V ) ; wrongful termination of

employment (Count V ) ; defamation (Count V I ) ; and intentional

interference with contract and advantageous business relations
                                    13
(Count V I I ) .   I begin by examining defendants’ challenge to

Rand’s harassment and retaliation claims.

A.    Counts I and I I : Sexual Harassment Claims2

      1.     Harassment Claims Against the Town

      Under both Title VII and state law, the appropriate

standard governing employer liability for hostile work

environment sexual harassment depends on whether a supervisor or

coworker initiated the harassment. See Vance v . Ball State

Univ., 133 S . C t . 2434, 2439 (2013); see also Madeja v . MPB

Corp., 

 7 1 , 3 7 8 , 

 (2003)

(interpreting section 354-A:7 of the New Hampshire Revised

Statutes in accordance with relevant Title VII employer

liability standards for coworker sexual harassment).         It is

2
   Count II also asserts that defendants are liable under 

 et seq., prohibiting wage
discrimination and discrimination on the basis of tobacco use in
employment. Rand alleges that she was not paid for two hours
when she was interviewed during the investigation of her sexual
harassment complaint and that other Town employees received
higher pay for nighttime work than she did. Doc. Nos. 22-2, 22-
4 . Rand does not allege that the Town paid male employees for
the time they were required to be interviewed, and she provides
no evidence that male employees were paid at a different rate
for nighttime work than she was. Rand was also reprimanded for
smoking in Town buildings, but she provides no evidence that
other employees were permitted to smoke in these buildings.
Because the statute requires a comparison between similarlysituated employees of both sexes, see Bartholomew v . Delahaye
Grp., Inc., N o . 95-20-B, 

, at *7 (D.N.H. Nov. 8 ,
1995), the Town’s motion for summary judgment with respect to
this claim is granted.

                                    14
undisputed that McAllister was Rand’s coworker; thus, she “must

demonstrate that the employer knew or should have known about

the harassment yet failed to take prompt and appropriate

remedial action.”    Espinal v . Nat’l Grid NE Holdings 2 , LLC, 

 1 , 36 (1st Cir. 2012) (quoting Wilson v . Moulison N .

Corp., 

 , 7 (1st Cir. 2011)); accord 

(d).

     The Town did not know, and could not have known, of the

alleged conduct until Rand reported her allegations on November

1 7 , 2009.   McAllister had not previously engaged in similar

conduct or otherwise behaved in a manner to indicate he was

likely to violate the Town’s Anti-Harassment Policy.     He had

read and signed a copy of the Policy when the Town first hired

him, and his performance reviews were generally positive

thereafter.

     Once the Town was on notice of the allegations, it took

prompt remedial action. See Wilson, 

.

Immediately after the Town received Rand’s complaint, it

prohibited McAllister from going to Rand’s worksite.     Within

three days, Cisewski had twice interviewed the three employees

with knowledge of the events. Notes from each interview were

recorded and acknowledged, and Cisewski utilized an interviewing

guide tailored to each interviewee. Five days after the final
                                  15
interview, Cisewski delivered a written report of her findings

to Dean, and two weeks later, Rand was informed of the

investigation’s outcome.

     This process comported with the Town’s Policy, which

provides at least minimally adequate remedial procedures

following a complaint of sexual harassment. As the Ninth

Circuit has noted,

     [W]here the proof of harassment is weak and disputed .
     . . the employer need not take formal disciplinary
     action simply to prove that it is serious about
     stopping sexual harassment in the workplace. Where,
     as here, the employer takes prompt steps to stop the
     harassment, liability cannot be premised on perceived
     inadequacies in the investigation.

Swenson v . Potter, 

 (9th Cir. 2001)

(footnote omitted).   By immediately separating Rand and

McAllister and commencing a prompt investigation, the Town took

effective steps to prevent and deter subsequent harassment, and

there is no allegation that any further sexual harassment

occurred.3   See Espinal, 693 F.3d at 3 7 ; Wilson, 

 .



3
   The alleged harassment took place prior to Rand’s initial
complaint, and no harassment is alleged to have occurred after
the complaint. Thus, it is also far from clear that “the
harassment [was] causally connected to some negligence on the
employer’s part.” See Wilson, 

 (quoting Noviello
v . City of Bos., 

 6 , 95 (1st Cir. 2005)). Because the
Town’s response was prompt, appropriate, and not negligent as a
matter of law, I need not address the causation issue.

                                  16
     Rand is understandably frustrated that the Town did not

accept her version of what happened at the transfer station, but

state and federal antidiscrimination laws do not require an

employer to adopt the complainant’s account of a disputed sexual

harassment claim.4   What matters is whether the employer was

negligent in allowing the harassment to occur and whether it

took reasonable steps to respond to the claim that harassment

had occurred.   Here, the undisputed evidence demonstrates that

the Town had an adequate antidiscrimination policy in place, it

had no reason to anticipate McAllister’s assault, and it took

prompt and effective action to respond to Rand’s complaint.     As

a result, the Town cannot be held liable for sexual harassment

under either federal or state law simply because it failed to

accept Rand’s account of the harassment. I therefore grant the

Town’s motion for summary judgment on the federal and state law

sexual harassment claims.

     2.   Harassment Claims Against Rand’s Supervisors




4
  Rand alleges that the Town’s investigation was “a sham,”
“tainted,” “negligent,” “half-hearted,” “totally-ineffectual,”
and “calculated not so much to ascertain the truth as to create
a self-serving, counterfeit record . . . [to] insulate the Town
from civil liability.” Doc. Nos. 22-2, 22-4. But such
speculation is not sufficient to overcome a motion for summary
judgment when the record otherwise illustrates prompt and
appropriate remedial action.
                                17
     Consistent with the view in the majority of circuits, the

First Circuit has determined that Title VII does not provide a

cause of action against individual employees. Fantini v . Salem

State Coll., 

 2 , 28-31 (1st Cir. 2009).    Thus, Rand’s

supervisors cannot be held individually liable for any alleged

harassment under federal law.

     The New Hampshire Supreme Court has not yet determined

whether individual employees may be held liable for sexual

harassment or retaliation under sections 354-A:7 and 354-A:19 of

the New Hampshire Revised Statutes. Decisions of this court,

however, have consistently found that these statutes do not

permit individual employee liability.5      Wilson v . Port City Air,

Inc., N o . 13-cv-129-JD, 

, at *1-2 (D.N.H. June

1 2 , 2013); Jones v . McFarland Ford Sales, Inc., N o . 05-cv-347-

JD, O p . N o . 

.   On the basis of the reasoning in

those decisions, the individual defendants are entitled to

summary judgment on Rand’s federal and state law sexual

harassment claims.

B.   Counts I and I I : Retaliation Claims

5
   A New Hampshire Superior Court Judge has reached a contrary
conclusion. D’Keefe v . Keene Senior Ctr., Inc., N o . 09-C-0016,

, at *1 (N.H. Sup. C t . Oct. 1 3 , 2009); Rowe v .
Thibeault Corp., N o . 06-E-554, 

, at *1 (N.H. Sup.
C t . July 3 1 , 2007). Nevertheless, I find Judge DiClerico’s
reasoning in Port City Air and Jones to be persuasive, and I
adopt it here.
                                  18
     1.   Retaliation Claims Against the Town

     Employer liability for retaliation under Title VII and

state law is governed by McDonnell Douglas Corp. v . Green’s

burden shifting framework.    See 

 9 2 , 802-04 (1973); see

also Madeja, 

, 

(interpreting section 354-A:19 of the New Hampshire Revised

Statutes in accordance with Title VII employer liability

standards for retaliation).    As the First Circuit recently

explained:

     [A] plaintiff must first establish . . . that (1) she
     engaged in protected conduct, ( 2 ) she was subject to
     an adverse employment action, and (3) a causal
     connection existed between the first and second
     elements. The burden then shifts to the defendant to
     articulate a legitimate, non-discriminatory reason for
     its challenged actions. . . . [I]f the defendant does
     s o , the ultimate burden falls on the plaintiff to show
     that the proffered legitimate reason is in fact a
     pretext and that the job action was the result of the
     defendant's retaliatory animus.

Colon v . Tracey, 

 3 , 49 (1st Cir. 2013) (footnote,

citations, and internal quotation marks omitted).

     The Town challenges the retaliation claim by arguing that

the evidence will not support a finding that the adverse

employment actions Rand complains of occurred because she had

engaged in protected conduct. I disagree.

     Rand began receiving reprimands for her job performance one

week after filing her complaint with the Town. She learned that
                                 19
employees had been instructed to avoid her a week later, and she

was placed on administrative leave the following week.    The Town

refused to turn over her personnel record immediately after she

filed her complaint with the EEOC, refused to renew her license

one month later, kept her on administrative leave for months,

and terminated her employment five months later. A reasonable

jury could find that there was sufficient temporal proximity

between these events to support an inference of causation.     See

Jones v . Walgreen Co., 

 (1st Cir. 2012)

(permitting an inference of causation when three and a half

months elapsed between protected activity and an adverse

employment action).

     Although the Town has articulated legitimate, non-

discriminatory reasons for the adverse employment actions of

which Rand complains, Rand has responded with sufficient

evidence to support a triable claim that its proferred reasons

for its actions were a mere pretext for unlawful retaliation.

     Proof of pretext is not governed by a “mechanical formula”

and may be presented in several different ways.   Che v . Mass.

Bay Transp. Auth., 

 1 , 39 (1st Cir. 2003).   One

appropriate method is “showing that the employer’s proffered

explanation is unworthy of credence.”   

 (quoting Reeves v .

Sanderson Plumbing Prods., Inc., 

 (2000)).
                                20
Rand points to evidence of pretext beyond mere temporal

proximity to show that the Town’s explanation is not credible.

Rand’s only performance review prior to the complaint was

positive, and she asserts that she was never reprimanded prior

to the time that she filed her complaint. The one reprimand in

her file dated before the complaint is not time-stamped or

signed by Rand, and she alleges that it was placed in the file

after she lodged her complaint. In addition, the Town had not

taken any action in response to a resident’s oral complaint

regarding an incident prior to Rand’s sexual harassment

allegations, but subsequently documented that complaint and

reprimanded Rand after she made her allegations. Rand has also

presented evidence from the state Department of Environmental

Services that she attended the workshop documented by her

attendance certificate as proof that she would have no motive to

falsify the certificate’s date. Finally, it is unclear why the

Town would not permit Rand’s attorney to attend a meeting

regarding her employment given that an EEOC investigation was in

process, and it is also not clear that it was reasonable for the

Town to refuse to temporarily postpone a meeting scheduled on

less than a day’s notice given Rand’s previous five months on

indefinite administrative leave.



                               21
     Rand has produced sufficient evidence in support of her

claim to survive summary judgment. Because “[d]eterminations of

motive and intent, particularly in discrimination cases, are

questions better suited for the jury,” McDonough v . City of

Quincy, 

 , 19 (1st Cir. 2006)   (quoting Mulero–

Rodriguez v . Ponte, 

 7 0 , 677 (1st Cir. 1996)), I deny

the Town’s motion for summary judgment with respect to Rand’s

federal and state law retaliation claims against the Town.

     2.    Retaliation Claims Against Rand’s Supervisors

     Neither federal nor state law provides for individual

employee liability in retaliation cases. See Fantini, 557 F.3d

at 28-31; Port City Air, 

, at * 1 - 2 ; Jones, 

.   I therefore grant the supervisors’ motion for

summary judgment with respect to these claims.

C.   Count III: Assault and Battery

     The New Hampshire Supreme Court has not defined the

elements of the common law intentional torts of assault or

battery.   Decisions of this court have relied on the Restatement

to explicate the required elements.

     A successful assault claim requires that “(1) the defendant

. . . intended to cause harmful or offensive contact to the

plaintiff, and (2) the plaintiff must have been put in imminent

apprehension of such contact.”    King v . Friends of Kelly Ayotte,
                                 22


 1 8 , 129-30 (D.N.H. 2012) (quoting Yale v . Town

of Allenstown, 

 9 8 , 801 (D.N.H. 1997) (citing

Restatement (Second) of Torts § 21(1) (1965))).     A defendant may

be held liable for battery if “(a) he acts intending to cause a

harmful or offensive contact with the person of the other or a

third person, or imminent apprehension of such a contact, and

(b) a harmful contact with the person of the other directly or

indirectly results.”   Hudson v . D r . Michael J. O’Connell’s Pain

Care Ctr., Inc., 

 4 , 94 (D.N.H. 2011) (quoting

United Nat’l Ins. C o . v . Penuche’s, Inc., 

 8 , 32 (1st

Cir. 1997) (citing Restatement (Second) of Torts § 13 (1977))).

A reasonable jury crediting Rand’s version of events could

surely find McAllister liable for assault and battery.

     It is an entirely different question whether the Town may

be held vicariously liable for these intentional torts. As the

New Hampshire Supreme Court has explained,

     [A]n employer may be held vicariously responsible for
     the tortious acts of its employee if the employee was
     acting within the scope of his or her employment when
     his or her tortious act injured the plaintiff. . . .
     [C]onduct falls within the scope of [an employee’s]
     employment i f : (1) it is of the kind she is employed
     to perform; (2) it occurs substantially within the
     authorized time and space limits; and (3) it is
     actuated, at least in part, by a purpose to serve the
     employer.




                                  23
Porter v . City of Manchester, 

, 1 5 2 , 

 (2007).   There is no dispute that the alleged events

occurred during the authorized time and space limits of

McAllister’s employment. But no reasonable jury could conclude

that McAllister, a laborer, was employed by the Town to assault

and batter others, or that McAllister was motivated, even in

part, to serve the Town when he allegedly engaged in this

activity.

     Accordingly, I deny summary judgment to McAllister and

grant summary judgment to the Town with respect to Rand’s

assault and battery claim.

D.   Count IV: Intentional Infliction of Emotional Distress

     A defendant is liable for intentional infliction of

emotional distress if he or she, “by extreme and outrageous

conduct, intentionally or recklessly cause[d] severe emotional

distress to another.”   Tessier v . Rockefeller, 

 2 4 ,

341, 

, 1131 (2011) (alteration in original) (quoting

Morancy v . Morancy, 

, 

 (1991)).

The conduct must be “so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of decency, and

to be regarded as atrocious, and utterly intolerable in a

civilized community.”   

 (quoting Mikell v . Sch. Admin. Unit

N o . 3 3 , 

, 

 (2009)).   A reasonable
                                 24
jury could find that McAllister’s alleged verbal and physical

conduct was sufficiently extreme and outrageous. C f . Miller v .

CBC Cos., Inc., 

 (D.N.H. 1995) (denying

motion to dismiss intentional infliction of emotional distress

claim when defendant supervisor engaged in “disturbing verbal

commentaries and personal attacks”).    Further, Rand has alleged

that she suffered severe emotional distress necessitating

extensive psychological treatment.

     On the other hand, none of the alleged conduct committed by

the Town or by her supervisors comes close to the required

“atrocious or utterly intolerable” standard.    See, e.g., Konefal

v . Hollis/Brookline Coop. Sch. Dist., 

, 2 6 0 , 

 0 , 33 (1998) (holding illegal discharge insufficient to

meet the standard).   In addition, for the reasons discussed in

Section C , the Town and its supervisors cannot be held

vicariously liable for emotional distress caused by McAllister

while acting outside the scope of his employment.6


6
  To the extent that Rand asserts a negligent infliction of
emotional distress claim, she must prove “(1) causal negligence
of the defendant; (2) foreseeability; and (3) serious mental and
emotional harm accompanied by objective physical symptoms.”
Tessier, 

 (quoting O’Donnell v . HCA Health Servs.
of N.H., Inc., 

 0 8 , 6 1 1 , 

 (2005)). It is
not necessary to consider the first two elements, because Rand
has provided no evidence of objective physical symptoms
accompanying her mental and emotional distress. I therefore
grant summary judgment to McAllister and the Town with respect
                                    25
     Accordingly, I deny summary judgment to McAllister and

grant summary judgment to the Town with respect to Rand’s

intentional infliction of emotional distress claims.

E.   Count V : Wrongful Termination

     The New Hampshire Supreme Court has articulated a two-part

test for wrongful termination claims:

     First, the plaintiff must show that the defendant was
     motivated by bad faith, malice, or retaliation in
     terminating the plaintiff’s employment. . . . Second,
     the plaintiff must demonstrate that he was discharged
     because he performed an act that public policy would
     encourage, or refused to do something that public
     policy would condemn.

Porter v . City of Manchester, 

 0 , 3 8 , 

(2004) (citation and internal quotation marks omitted) (quoting

Cloutier v . Great Atl. & Pac. Tea Co., 

, 

 (1981)).    As discussed in Section B , Rand has

presented sufficient evidence to permit a reasonable jury to

find that the Town’s legitimate, nondiscriminatory reasons for

her termination were in fact a pretext for retaliatory animus.

New Hampshire has established a public policy encouraging

employees to report allegations of sexual harassment to their

employers and to relevant administrative agencies and to

actively participate in subsequent investigations. See 

-A:1, : 1 9 . Because Rand’s wrongful


to this claim.
                                 26
termination claim must be considered by a jury in conjunction

with her retaliation claims, I deny the Town’s motion for

summary judgment on this count.

F.   Count V I : Defamation

     Rand premises her defamation claim on the letter that the

Town sent to her terminating her employment.7         The letter

contained allegations, disputed by Rand, that she had violated

various Town rules. It is not necessary to consider whether

these allegations were false or defamatory, because there is no

evidence in the record that the letter or the allegations

therein were published to anyone other than Rand.             C f . Thomas v .

Tel. Publ’g Co., 

 1 4 , 3 2 1 , 

 (2007)

(defamation requires “publi[cation of] a false and defamatory

statement of fact about the plaintiff to a third party”).

Without publication, there can be no liability for defamation.

See Indep. Mech. Contractors, Inc. v . Gordon T . Burke & Sons,

Inc., 

 1 0 , 1 1 8 , 

 8 7 , 492 (1993).

7
  To the extent that Rand intends to incorporate her allegations
that the Town and her supervisors told other employees about her
complaint and instructed them to avoid her, there is no evidence
in the record that these statements were false. First, an
instruction to avoid a person cannot be characterized as either
true or false. Second, Rand did in fact file a complaint, and
although her employer may have violated its own confidentiality
policy by allegedly discussing that fact with Rand’s coworkers,
that does not mean that Rand was defamed. See Thomas v . Tel.
Publ’g Co., 

 1 4 , 335, 

 (2007).

                                     27
     Accordingly, I grant summary judgment to all defendants

with respect to Rand’s defamation claim.

G.   Count VII: Intentional Interference with Contract and
     Advantageous Business Relations8

     Although not denominated as such, Rand appears to assert a

claim of intentional interference with prospective contractual

relations.9   See Wilcox Indus. Corp. v . Hansen, 

 (D.N.H. 2012) (distinguishing between existing and

prospective contractual relations claims).     To establish

liability for this tort, Rand must prove that “(1) [she] had an

economic relationship with a third party; (2) the defendant[s]

knew of this relationship; (3) the defendant[s] intentionally

and improperly interfered with this relationship; and (4) [Rand]

was damaged by such interference.”     M & D Cycles, Inc. v . Am.

8
  Count VII asserts that the defendants “intentionally
and/or negligently interfered” with Rand’s contractual and
business relations. New Hampshire does not recognize the tort
of negligent interference with contract. Ferrero v . Coutts, 

 9 2 , 295, 

 (1991) (citing Blue
Cross/Blue Shield of N.H.-Vt. v . S t . Cyr, 

 3 7 , 143, 

 (1983)). The parties do not cite, and I am not
aware o f , any authority recognizing a New Hampshire tort of
negligent interference with advantageous business relations.
Therefore, I grant defendants’ motion for summary judgment with
respect to these claims.
9
  Because Rand was an at-will employee without an employment
contract, she cannot state a claim for interference with
existing contractual relations. See Alt. Sys. Concepts, Inc. v .
Synopsys, Inc., 

 0 , 73 (D.N.H. 2002) (citing
Roberts v . Gen. Motors Corp., 

 3 2 , 539, 

(1994)), aff’d, 

 (1st Cir. 2004).
                                28
Honda Motor Co., Inc., 

 (D.N.H. 2002)

(citing Montrone v . Maxfield, 

 2 4 , 726, 

(1982); Baker v . Dennis Brown Realty, 

 4 0 , 6 4 4 , 

 (1981)), aff’d, 

 (1st Cir. 2003).

     Rand’s claim fails at the first prong.       When Rand’s

supervisors allegedly interfered with her “reasonable

expectation of economic advantage” by terminating her

employment, they did so as agents of the Town acting within the

scope of their employment. C f . Preyer v . Dartmouth Coll., 

 0 , 26 (D.N.H. 1997) (quoting Heritage Home Health,

Inc. v . Capital Region Health Care Corp., N o . 95-558-JD, 

, at *4 (D.N.H. Oct. 1 , 1996)).     Because Rand’s

supervisors were standing in the shoes of the Town when they

fired her, there was no third party relationship to interfere

with.10


10
  The supervisors could be held liable if they acted outside the
scope of their employment and were motivated by actual malice,
which is defined as “bad faith, personal ill will, spite,
hostility, or a deliberate intent to harm the plaintiff.” See
Preyer, 968 F. Supp. at 26 (quoting Soltani v . Smith, 

 (D.N.H. 1993)). Rand has failed to allege
sufficient facts to show that her supervisors were not acting,
at least in part, in furtherance of the Town’s business when
they fired her. C f . Peck v . NGM Ins. Co., N o . 94-90-B, 

, at *9-10 (D.N.H. June 2 1 , 1995); Soltani, 

. In contrast, if she had succeeded in making such a
showing, the Town could not be held vicariously liable for
purposes of the wrongful termination claim. Rand cannot have it
both ways.
                                  29
      Accordingly, I grant summary judgment to the supervisors

with respect to the intentional interference with prospective

contractual relations claim.



                          IV.   CONCLUSION

      Defendants’ motion for summary judgment (Doc. N o . 18) is

granted with respect to all claims except Rand’s retaliation

claims against the Town (Counts I and I I ) , her assault and

intentional infliction of emotional distress claims against

McAllister (Counts III and I V ) , and her wrongful termination

claim (Count V ) .

      SO ORDERED.


                                /s/Paul Barbadoro
                                Paul Barbadoro
                                United States District Judge

October 2 , 2013

cc:   Duncan J. MacCallum, Esq.
      William G. Scott, Esq.
      Daniel J. Mullen, Esq.




                                  30