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U.S. Equal Employment Opportunity Commission v. Fred Fuller Oil Co., Inc.

Supreme Court of New Hampshire

February 23, 2016


Argued: September 24, 2015

U.S. District Court

Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H. Johnson on the brief and orally), and Purcell Law Office, PLLC, of Portsmouth (Ellen Purcell on the brief), for plaintiffs Beverly Mulcahey and Nichole Wilkins.

Jackson Lewis P.C., of Portsmouth (Martha Van Oot and K. Joshua Scott on the brief, and Ms. Van Oot orally), for defendant Frederick J. Fuller.

Law Offices of Nancy Richards-Stower, of Merrimack (Nancy Richards-Stower on the brief), and Backus, Meyer and Branch, LLP, of Manchester (Jon Meyer on the brief), for the New Hampshire Chapter of the National Employment Lawyers Association, as amicus curiae.


Pursuant to Supreme Court Rule 34, the United States District Court for the District of New Hampshire (Barbadoro, J.) certified to us the following questions of law:

1. Whether sections 354-A:2 and 354-A:7 of the New Hampshire Revised Statutes impose individual employee liability for aiding and abetting discrimination in the workplace.
2. Whether section 354-A:19 of the New Hampshire Revised Statutes imposes individual employee liability for retaliation in the workplace.

For the reasons stated below, we answer both questions in the affirmative.

The federal district court's order sets forth the following facts regarding the federal court case that led to the certified questions. The plaintiffs, Nichole Wilkins and Beverly Mulcahey, sued their former employer, Fred Fuller Oil Company, Inc. (Fuller Oil), for sexual harassment and retaliation. See 42 U.S.C. § 2000e (2012) (Title VII); RSA ch. 354-A (2009 & Supp. 2015). The plaintiffs also sued Frederick J. Fuller, an employee of Fuller Oil, individually (hereinafter referred to as the defendant). See RSA ch. 354-A.

Prior to trial, the defendant sought to prohibit the plaintiffs from asserting claims against him under RSA chapter 354-A in his individual capacity. The district court thereafter informed the parties that it would not allow the plaintiffs to assert such claims. Subsequently, Fuller Oil filed for bankruptcy protection and, therefore, the case against Fuller Oil was stayed; thereafter the case was reopened as to claims against the defendant. Because the questions of whether an employee can recover damages from another employee for aiding and abetting sexual harassment or for retaliation under RSA chapter 354-A concern unresolved issues of New Hampshire law, the district court certified the questions to this court. Neither named plaintiff U.S. Equal Employment Opportunity Commission nor the other named defendant, Fuller Oil, is a party to this certification proceeding.

Responding to the certified questions requires us to engage in statutory interpretation. We are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Steir v. Girl Scouts of the U.S.A., 150 N.H. 212, 214 (2003). We begin by examining the language of the statute, and if possible, ascribe the plain and ordinary meanings to the words used. Id. When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we decline to consider what the legislature might have said or to add language that the legislature did not see fit to incorporate in the statute. Id. We do not consider words and phrases in isolation; rather, we consider them in the context of the statute as a whole. Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 585 (2003). This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id.

RSA chapter 354-A, known as the "Law Against Discrimination, " prohibits unlawful discrimination based upon age, sex, race, creed, color, marital status, familial status, sexual orientation, physical or mental disability or national origin in employment, housing accommodations, and places of public accommodations as provided therein. See RSA 354-A:1 (2009) (title and purposes of chapter), :6-:7 (2009) (equal employment), :8-:15 (2009 & Supp. 2015) (fair housing), :16-:17 (2009) (public accommodations). The New Hampshire Commission for Human Rights (HRC) is the agency charged with eliminating and preventing discrimination under RSA chapter 354-A, see RSA 354-A:1, and is authorized "[t]o receive, investigate and pass upon complaints alleging violations of [the] chapter." RSA 354-A:5, VI (2009). When ...

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