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Katherine Ann Masso v. City of Manchester

March 28, 2012

KATHERINE ANN MASSO
v.
CITY OF MANCHESTER, MANCHESTER PUBLIC TELEVISION SERVICE, JASON COTE, AND MANCHESTER SCHOOL DISTRICT



The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

Opinion No. 2012 DNH 062

MEMORANDUM ORDER

In this employment discrimination action, plaintiff Katherine Masso has sued her former employer, the Manchester School District; her current employer, Manchester Public Television Service ("MPTS"); the City of Manchester, which formed MPTS; and her supervisor at MPTS, Jason Cote. Masso alleges that MPTS, acting at the City's direction, hired Cote, rather than her, as MPTS's Executive Director based solely upon their respective genders. She further alleges that although her job is similar to Cote's, he is paid more than her, and that she does not receive overtime pay despite her entitlement to it. Although the School District could have prevented these unlawful employment practices, Masso says, it failed to do so.

Masso seeks to recover from MPTS, the City, and the School District for gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., and its state-law analog, N.H. Rev. Stat. Ann. § 354-A; violation of the federal Equal Pay Act, 29 U.S.C. § 206(d)(1) ("EPA"), and its state-law analog, N.H. Rev. Stat. Ann. § 275:37; and violation of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1) ("FLSA").*fn1

This court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction) by virtue of Masso's federal statutory claims.

The City and the School District have moved for judgment on the pleadings, see Fed. R. Civ. P. 12(c), arguing that under the facts as pleaded, it was MPTS, not them, that took the allegedly unlawful employment actions, and that they are therefore not liable under any of the statutes cited. In response, Masso argues that the City and MPTS together constituted a single employer under the "integrated-enterprise" test set forth in Torres-Negron v. Merck & Co., Inc., 488 F.3d 34, 41-43 (1st Cir. 2007), and that the School District, while it did not take the actions of which she complains, can be held liable because it allowed those actions to take place. After hearing oral argument, the court grants the motion in part and denies it in part. In her amended complaint, Masso has alleged sufficient facts to proceed with her case against the City, but has not stated a plausible entitlement to relief against the School District.

I. Legal Standard

A motion for judgment on the pleadings under Rule 12(c) is evaluated under essentially the same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim, see Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir. 2009), which requires that the complaint allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

II. School District

Each statute under which Masso asserts claims against the City and School District prohibits employers from taking certain actions with respect to their employees, i.e., discriminating against them in their pay, see 29 U.S.C. § 206(d)(1); N.H. Rev. Stat. Ann. § 275:37, or their terms of their employment, see 42 U.S.C. § 2000e-2(a); N.H. Rev. Stat. Ann. § 354-A:7, or failing to adequately compensate them, see 29 U.S.C. § 207(a)(1). As just noted, Masso does not allege that the School District itself took any of these prohibited actions while she was working for it. Rather, she alleges that, while the School District had originally contracted with the City to provide public, educational, and government access television, the School District later agreed to let the City break that contract in order to form MPTS--the employer that ultimately took the actions of which she complains. The School District allowed the City to break the contract, Masso avers, even though it "knew or should have known of the terms of employment" on which Masso would be hired at MPTS, and "knew or should have known that those terms would be in violation of federal and state laws prohibiting gender discrimination, equal pay, and overtime compensation."

Even accepting at face value Masso's factually unsupported and conclusory allegation that the School District "knew or should have known" that MPTS would violate federal and state employment laws, those laws do not entitle her to relief against the School District. For Masso to state a claim, she would have to allege that the School District itself discriminated against her in her pay or terms of employment or failed to adequately compensate her. The court has found no authority so much as suggesting that the statutes under which Masso seeks to recover might create liability for failing to prevent unlawful employment actions by unrelated parties, and Masso has cited no authority to that effect.*fn2 Indeed, the First Circuit has "flatly reject[ed]" the argument that an entity that actively "impacts or interferes with an individual's employment opportunities" should be held liable under Title VII, Lopez v. Massachusetts, 588 F.3d 69, 88-89 (1st Cir. 2009), and it is difficult to see how passively standing by while an unlawful employment action occurs would be treated differently. The claims against the School District are accordingly dismissed.

III. City of Manchester

Masso's claims against the City fare considerably better. Her theory of relief against the City, as noted, is that it and MPTS together constituted a single employer, such that liability for MPTS's conduct should be imputed to the City.

In interpreting the term "employer" as it appears in federal employment statutes, courts have developed the "single employer" doctrine, under which two nominally separate entities "may be so interrelated that they constitute a single employer subject to liability." Torres-Negron, 488 F.3d at 40-41. Though more commonly used to determine whether an entity may be held liable under Title VII, see id., the doctrine has also been applied in actions under both the FLSA, see Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005), and the EPA (which is part of the FLSA), see, e.g., Chisholm v. Foothill Capitol Corp., 3 F. Supp. 2d 925, 933-34 (N.D. Ill. 1998). While the New Hampshire Supreme Court has not had occasion to address the applicability of the doctrine, that court frequently looks to the interpretation given federal employment statutes ...


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