United States District Court, D. New Hampshire
OPINION NO. 2015 DNH 049.
JOSEPH N. LAPLANTE, District Judge.
Faced with a pro se lawsuit from one of its faculty members alleging various forms of employment discrimination in violation of federal law, Franklin Pierce University (joined by several of its administrators who have also been named as defendants) has moved to dismiss the complaint, arguing that it fails to state a claim for relief. See Fed.R.Civ.P. 12(b)(6). This court has jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction).
Dismissal under Rule 12(b)(6), as the defendants acknowledge, is appropriate only when the complaint "lacks sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, '" i.e., when "the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). As explained below, the complaint readily meets that standard, except insofar as it (1) attempts to hold the university administrators individually liable for alleged violations of federal employment statutes which, under case law from our Court of Appeals, do not contemplate such liability, see infra Part II.A.4, and (2) makes a state-law negligence claim based on the defendants' failures to prevent the allegedly discriminatory or retaliatory acts that Gascard suffered, because that claim is barred by the exclusivity provision of the workers' compensation law, N.H. Rev. Stat. Ann. § 281-A:8, I(b), see infra Part II.A.5. Following oral argument, the defendants' motion to dismiss is granted as to the claims against the administrators, as well as the negligence claim, but is otherwise denied.
After the defendants' motion to dismiss was fully briefed, Gascard filed a motion to amend and to supplement her complaint. See Fed.R.Civ.P. 15(a)(2), (d). Through the motion-which the defendants oppose-Gascard seeks to add claims against the university and its dean for (1) retaliation against Gascard for taking leave under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2615(a)(1), and (2) intentional infliction of emotional distress at common law. Following oral argument, and as explained below, the motion is granted as to the FMLA retaliation claim, but denied as to the intentional infliction of emotional distress claim-which, as the defendants argue, would be futile.
In ruling on the defendants' motion, the court accepts the following factual allegations as true. See, e.g., Medina-Velazquez v. Hernandez-Gregorat, 767 F.3d 103, 108 (1st Cir. 2014). The plaintiff, Lorettann Gascard, has served as professor of art history at the university (and its sole art historian) since 1997, and as the director of the university art gallery since 1998. In late 2011, she took about two and one-half months of short-term disability leave due to "situational stress, " but returned to teaching in early 2012. Later that year, in October, Gascard applied for the position of coordinator for the department of fine arts, a position for which she is "completely qualified." Nevertheless, the university awarded the post to one of Gascard's colleagues, a man under the age of 40 who had worked there only since 2010.
Shortly thereafter, in December 2012, Gascard provided her immediate supervisor with a note from a physician "stating that because of stress-related factors" she was "restrict[ing] Gascard from meeting attendance [and] assemblies." In response, the university gave Gascard permission only to "leave meetings if she fe[lt] symptoms of situational stress"-an arrangement which her physician "found precarious."
Later, in March 2013, Gascard "brought to the attention" of university administrators that "bullying during departmental meetings [was] a central cause of [her] situational stress, " but received the "off-handed" response that "body language and mimicry do not constitute bullying." Gascard further alleges that the university has granted three of her colleagues "[b]lanket accommodation waivers... regarding the attendance of meetings." Nevertheless, the university has "not offered adequate accommodations" and has "continued to ignore [Gascard's] physician's warning." Gascard further complains that, without her consent, the university "disseminated" the doctor's note and other "medical information of hers" by providing it to one of her colleagues (who is also a "union officer").
In February 2013, Gascard filed a charge of disability discrimination against the university with the Equal Employment Opportunity Commission ("EEOC"). That same month, she "was the sole volunteer to offer her services to a committee of long trusted colleagues"-which Gascard identifies in her objection to the motion to dismiss as the "General Liberal Education Committee"-but was "without discussion denied this position." Instead, the position was awarded to "a male colleague who had not volunteered, " with the explanation that he "needed more committee work." A few months later, Gascard received a performance review where her "requirement for more service to the [u]niversity is pointedly indicated" (quotation marks omitted).
In May 2013, Gascard amended her EEOC charge to include allegations of age and sex discrimination, as well as retaliation. Subsequently, her complaint alleges, the university "escalated its harassment, " and goes on to reference a command in an executive summary that Gascard "produce more showings" in her role as director of the university art gallery and other "unwarranted demands that [she] attend to tasks that were already completed." Gascard further alleges that, "after [she] had charged the [university] through the EEOC, " it "disseminated personal and sensitive material to a colleague in its position statement to [Gascard's] EEOC charge"-material "involving action against [her] and her family completely unrelated to the colleague's charge." In February 2014, the EEOC issued Gascard a notice of her right to sue-which she exercised by filing this action here in a pro se capacity in May 2014.
Subsequently, in October 2014, Gascard began a period of FMLA leave. She returned to work in mid-December 2014, when she began attending to matters in the campus art gallery. On January 13, 2015, however, the dean, defendant Kim McKeever, informed Gascard that "she was no longer coordinator of the art gallery, " since McKeever had given that responsibility to another faculty member while Gascard was on leave. While Gascard acknowledges that she had been scheduled to take a sabbatical during the spring semester, she points out that the semester had yet to start at the time McKeever announced that she had been relieved of her responsibilities over the gallery, and that McKeever has also suggested that he may not return those responsibilities to her even after she returns from sabbatical. Gascard alleges that McKeever has stripped her of her duties as gallery coordinator as of the spring 2015 semester in retaliation for her taking FMLA leave during the prior semester.
A. Failure to state a claim
While the organization of Gascard's original complaint is somewhat unorthodox, it appears to assert the following claims:
disability discrimination in violation of the Americans with Disabilities Act, ...