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Cheryl Bentley v. City of Lebanon

December 13, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 200


Cheryl Bentley filed a writ of summons against the City of Lebanon and three City employees in state court. Defendants removed the case to this court. Doc. No. 1-2. Bentley includes state law claims for defamation (Counts I and II); sexual harassment in violation of N.H. Rev. Stat. Ann. § 354-B (Counts III and IV); and intentional and negligent infliction of emotional distress (Counts V and VI). Reading the complaint generously, she also claims gender discrimination in violation of Title VII and the Fourteenth Amendment's Equal Protection Clause (Counts VII and VIII). *fn1

Defendants have moved for summary judgment. For the reasons set forth in this Memorandum and Order, I determine that the defendants are entitled to summary judgment with respect to Bentley's federal law claims. I also decline to exercise supplemental jurisdiction over her state law claims and remand what remains of the case to state court.


Cheryl Bentley worked for the United States Department of Agriculture, Animal, Plant and Health Inspection Service, Wildlife Services (the "USDA") as a Wildlife Specialist from sometime in 1997 until April 2, 2008. The USDA had a contract with the City of Lebanon for a bird control and monitoring project to reduce hazards to air traffic associated with gulls using the landfill. Doc. No. 31-3. The USDA assigned Bentley to monitor and control seagulls at the landfill and surrounding restaurants in Lebanon, New Hampshire.*fn2 Bentley concedes that the Town did not supervise her work on behalf of the USDA.

Bentley's issues at the landfill began in November 2006 when the interim landfill manager, John Daniels, went on vacation and Ed DeNike temporarily filled in for him. DeNike confronted Bentley in the lunch room and asked her about her pay and questioned whether her job was necessary. Bentley described this as a "hostile interrogation." Doc. No. 31-8.

Around January 2007, rumors began to circulate that Bentley and Daniels were having an affair. Bentley heard about the rumors from landfill employees, including Daniels, Frank Kimball, and Mike Cole. For example, in February 2007, Bentley learned of a rumor that Daniels' domestic partner walked into their house and found Bentley and Daniels kissing on the couch.*fn3

Shortly after, Kimball apologized to Bentley for spreading rumors about her and Daniels. In early September, a rumor circulated that Daniels put Bentley's name on his mailbox. Bentley believes Kimball started this rumor.

On September 5, 2007, USDA director John McConnell, who was also Bentley's supervisor, learned that the landfill manager, Mark Morgan, was dissatisfied with Bentley's performance and wanted her to be replaced. Prior to September 2007, Bentley had received "fully successful" ratings on performance reviews from her supervisor at USDA. Docs. No. 34-9, 10, 11.

On September 6, 2007, McConnell told Bentley that the USDA was not going to renew her contract because she was negatively impacting the morale at the landfill and her job performance was unsatisfactory. She was replaced with a younger and less experienced male employee. There is no evidence in the record, however, that any of the defendants in this action played any role in the hiring of Bentley's replacement.


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., 261 F.3d 90, 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, 477 U.S. 317, 323 (1986). A material fact "is one 'that might affect the outcome of the suit under the governing law.'" United States v. One Parcel of Real Prop. with Bldgs., 960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 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 it; if that party ...

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