Rand v. Town of Exeter
976 F. Supp. 2d 65
D.N.H.2013Background
- Plaintiff Brenda Rand, a transfer-station operator, alleged that coworker George McAllister sexually assaulted her on November 12, 2009, and logged the incident; she reported it to supervisors on November 17.
- Human Resources Director Cisewski investigated per the Town’s Anti‑Harassment Policy: interviewed Rand, McAllister, and a witness (Dow), took notes and photos, and produced a written report; the Town prohibited McAllister from the site during investigation.
- The Town concluded the complaint lacked sufficient corroboration and inconsistencies existed; no discipline was imposed and Rand was placed on administrative leave after an agitated reaction to the meeting disclosing the outcome.
- After filing complaints with the NH Commission and the EEOC, Rand remained on extended paid leave, was accused of other infractions, and was terminated on May 20, 2010; she alleges these actions were retaliatory and motivated her termination.
- Rand sued the Town, McAllister, and four supervisors asserting federal and state claims for hostile work environment and retaliation, assault and battery, intentional and negligent infliction of emotional distress, wrongful termination, defamation, and tortious interference; defendants moved for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Employer liability for coworker sexual harassment (Title VII & NH law) | Town failed to take prompt/adequate remedial action after notice of harassment | Town had policy, immediately separated parties, promptly investigated per Policy | Judgment for Town — no employer liability for harassment (investigation and remedial steps adequate) |
| Individual liability of supervisors for harassment/retaliation | Supervisors participated in adverse actions and disclosed complaint; should be liable | Federal and (court) state law do not permit individual liability under these statutes | Judgment for individual supervisors on harassment and retaliation claims |
| Retaliation (Title VII & NH law) — adverse actions after complaint | Temporal proximity plus other facts (new reprimands, leave, disclosure, termination) show causation and pretext | Town proffered legitimate nondiscriminatory reasons for actions | Denied summary judgment to Town on retaliation and wrongful termination — triable issues of causation/pretext |
| Assault, battery, and intentional infliction of emotional distress (state torts) | McAllister committed assault/battery and outrageous conduct causing severe distress | Town not vicariously liable because acts were outside scope of employment | McAllister liable issues survive; Town (and supervisors) entitled to summary judgment on vicarious liability for these torts |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard and burdens)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for discrimination/retaliation)
- Vance v. Ball State Univ., 133 S. Ct. 2434 (distinguishing supervisor vs. coworker harassment rules)
- Espinal v. Nat’l Grid NE Holdings 2, LLC, 693 F.3d 31 (employer notice and remedial duty for coworker harassment)
- Wilson v. Moulison N. Corp., 639 F.3d 1 (adequacy/timeliness of employer response to harassment)
- Swenson v. Potter, 271 F.3d 1184 (employer need not impose discipline when evidence is weak; prompt steps can suffice)
- Colon v. Tracey, 717 F.3d 43 (elements of retaliation prima facie case)
- Tessier v. Rockefeller, 33 A.3d 1118 (NH standard for intentional infliction of emotional distress)