United States District Court, D. New Hampshire
Joan Salisbury, Plaintiff, Pro se, Nashua, NH.
For The Home Depot, Defendant: M. Amy Carlin, LEAD ATTORNEY, PRO HAC VICE, Jeffrey S. Siegel, Morgan Brown & Joy LLP, Boston, MA.
Joseph A. DiClerico, Jr., United States District Judge.
Joan Salisbury, proceeding pro se, brought suit in state court against her former employer, Home Depot, U.S.A., Inc., alleging that she was sexually harassed while working at Home Depot, that she lost her job, and that she was wrongfully arrested for trespassing. Home Depot removed the case to this court and moved to dismiss Salisbury's claims. Salisbury was granted extensions of time to allow her to find representation and to respond to the motion to dismiss. As the last deadline has passed, the motion is resolved as follows.
Standard of Review
In considering a motion to dismiss, the court must " accept the well-pleaded factual allegations in the complaint and draw all reasonable inferences therefrom in [the plaintiff's] favor." Van Wagner Boston, LLC v. Davey, 770 F.3d 33, 2014 WL 5326518, at *6 (1st Cir. 2014). The court then determines " whether the complaint 'state[s] a claim to relief that is plausible on its face.'" Debnam v. FedEx Home Delivery, 766 F.3d 93, 96 (1st Cir. 2014) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Legal conclusions and mere statements of the elements of a cause of action are not factual allegations and are not credited.
Medina-Velázquez v. Hernández-Gregorat, 767 F.3d 103, 109-110 (1st Cir. 2014).
After her employment was terminated by Home Depot in April of 2011, Salisbury filed a charge of discrimination with the New Hampshire Commission for Human Rights, stating that she was terminated in retaliation for complaining about sexual harassment by a fellow employee. Her charge was investigated by the Commission. The investigation report, dated June 19, 2012, concluded that there was no evidence to support Salisbury's report of an incident of sexual harassment in 2009 and insufficient evidence to support her other allegations. The report also stated: " Further the Complainant's credibility on all of the issues is undermined by the fact that the Complainant reported to the Commission and signed and verified a charge form stating that she was told she was terminated for retaliating against the Respondent when the record clearly shows that she was terminated for taking retaliatory action . . . toward another employee." Doc. no. 5-3 at 3.
Joni Esperian, Executive Director of the Commission, sent Salisbury a letter dated July 2, 2012. Esperian stated that the investigating commissioner had found no probable cause to support Salisbury's charge and that the Commission would close its file on her charge. The letter informed Salisbury about appealing the finding and about requesting review from the EEOC.
Salisbury, proceeding pro se, filed a complaint in state court on May 12, 2014. The complaint is a form provided by the New Hampshire state court system. On line 3, the form asks the plaintiff to state the " first thing that happened, " which is to be provided in one sentence. Salisbury responded: " physically/sexually groped." Line 4 asks for the second thing that happened, and Salisbury stated: " verbally harassed w/ sexual comments." On line 5, as the third thing that happened, Salisbury wrote: " Sexually harassed/Lost my job & was wrongfully arrested for trespassing. I did not trespass." Salisbury then stated that she wanted " Justice & closure" and that she was seeking " monetary compensation."
Home Depot moved to dismiss the complaint on the grounds that Salisbury's discrimination claims are time barred and that all of her claims lack sufficient factual allegations to state a claim. In response, Salisbury filed a statement that she objected to the motion to dismiss and also filed a motion for a two month extension to allow her time to obtain counsel. Home Depot did not respond to Salisbury's motion. The court granted Salisbury's motion, but before that time expired, Salisbury again moved for time to find counsel, and again Home Depot did not respond. The court allowed ...