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Rand v. Town of Exeter

United States District Court, D. New Hampshire

October 2, 2013

Brenda L. Rand
v.
Town of Exeter, et al

Page 66

For Brenda L. Rand, Plaintiff: Duncan J. MacCallum, MacCallum Law Office, Portsmouth, NH.

For Exeter, NH, Town of, New Hampshire, Defendant: William G. Scott, Boynton Waldron Doleac Woodman & Scott PA, Portsmouth, NH.

For George McAllister, Defendant: Daniel J. Mullen, Ransmeier & Spellman, Concord, NH.

For Jay Perkins, Donna Cisewski, Russell Dean, Consol Defendants: William G. Scott, Boynton Waldron Doleac Woodman & Scott PA, Portsmouth, NH.

For Jennifer Perry, Consol Counter Defendant: William G. Scott, Boynton Waldron Doleac Woodman & Scott PA, Portsmouth, NH.

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MEMORANDUM AND ORDER

Paul Barbadoro, United States District Judge.

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 VII, 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, 30. 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. Id.

A. Sexual Harassment

On November 12, 2009, McAllister opened the transfer station shortly before Rand arrived several minutes late as a result of a prior engagement. Doc. Nos. 22-2, 30. 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. No. 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, 30. 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

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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. Id.

Rand maintained a log book at the transfer station and noted the incident in an entry dated November 12, 2009. Doc. No. 22-4. She told her husband about it the following day, and he recommended that she report it to her immediate supervisor, Perkins. Doc. No. 18-4. On November 17, 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, 30. When Rand lodged her complaint, she provided the Town with her log book containing the relevant entry. Id. Cisewski immediately informed Rand and Perkins that McAllister would be prohibited from visiting the transfer station during the pendency of the investigation. Doc. No. 18-4. Cisewski and Perkins then agreed that McAllister would be placed on administrative leave if he admitted to the allegations. Id.

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. No. 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 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. Id.

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. Id.

In accordance with the Policy, Cisewski conducted two private interviews each with Rand, McAllister, and Dow. Doc. No. 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 preprinted 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. Id.

Cisewski conducted interviews with Rand on November 17 and 20, 2009. Doc. No. 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. Id.

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,

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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. Id. During the second interview, Cisewski presented Rand with a copy of the Town's Policy for her to read and sign. Doc. No. 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. Id.

When Cisewski interviewed McAllister on November 18, 2009, 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 20, 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. Id. 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. No. 23-2. His personnel record contains a copy of the Policy, signed and acknowledged by McAllister shortly after the Town hired him in 2001. Id.

Cisewski interviewed Dow on November 18 and 20, 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 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. Id.

While the investigation proceeded, Rand requested a meeting with Cisewski, Perkins, and McAllister to discuss her allegations in person with the alleged harasser. Doc. No. 22-4. That meeting never occurred, and on November 25, 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, 30. 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. Id. 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. No. 22-4.

Upon receiving this news, Rand became extremely upset and abruptly left the meeting to seek out McAllister. Doc. Nos. 18-10, 30. Perkins summoned the police to remove her from the premises. Id. Cisewski, Perkins, and Perry then collected written statements from Town employees who had witnessed Rand's behavior following the meeting. Doc. No. 22-4. The next day, Perry placed Rand on administrative leave with pay and informed her that she might be required to attend anger management counseling before returning

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to work. Doc. Nos. 18-12, 22-2, 30.

B. Retaliation

On November 24, 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, 30. 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 ...


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