United States District Court, D. New Hampshire
J. McAuliffe United States District Judge.
Patricia Kratz, filed this suit against her employer, Richard
J. Boudreau & Associates, LLC. (“RJBA”). She
seeks damages against Boudreau under Title VII and NH RSA
354-A for sexual harassment and retaliation, and asserts
those identical claims against Schlee and Stillman, LLC
(“Schlee & Stillman”) as a
“successor” to Boudreau. (Schlee & Stillman
purchased all of Boudreau's assets in April of 2015.)
Schlee & Stillman moves for summary judgment on
Kratz's claims. While it is a close call, on the record
as it has been presented, the motion is necessarily denied.
ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most
favorable to the nonmoving party, and to draw all reasonable
inferences in the nonmoving party's favor.”
Block Island Fishing, Inc. v. Rogers, 844 F.3d 358,
360 (1st Cir. 2016) (citation omitted). 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).
context, a factual dispute “is ‘genuine' if
the evidence of record permits a rational factfinder to
resolve it in favor of either party, and ‘material'
if its existence or nonexistence has the potential to change
the outcome of the suit.” Rando v. Leonard,
826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
Consequently, “[a]s to issues on which the party
opposing summary judgment would bear the burden of proof at
trial, that party may not simply rely on the absence of
evidence but, rather, must point to definite and competent
evidence showing the existence of a genuine issue of material
fact.” Perez v. Lorraine Enters., 769 F.3d 23,
29-30 (1st Cir. 2014). In other words, if the nonmoving
party's “evidence is merely colorable, or is not
significantly probative, ” no genuine dispute as to a
material fact has been proved, and summary judgment may be
granted. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986) (citations omitted).
defeat a properly supported motion for summary judgment, the
non-movant must support his or her factual claims with
evidence that conflicts with that proffered by the moving
party. See generally Fed.R.Civ.P. 56(c). It
naturally follows that while a reviewing court must take into
account all properly documented facts, it may ignore a
party's bald assertions, speculation, and unsupported
conclusions. See Serapion v. Martinez, 119 F.3d 982,
987 (1st Cir. 1997). See also Scott v. Harris, 550
U.S. 372, 380 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”).
the record in the light most favorable to plaintiff, and
resolving all reasonable inferences in her favor, the
relevant facts appear to be as follows.
began business as a debt collection law firm in 2001. Richard
Boudreau owned 99 percent of RJBA; the remaining one percent
was owned by Keith Mitchell, who began working for RJBA as
its head of litigation in 2006, and then worked as its
Managing Attorney until RJBA's closure in April, 2015. At
its peak, the firm had ten offices in several different
states, including New Hampshire, Massachusetts, Rhode Island,
Connecticut, Virginia, North Carolina, South Carolina,
Georgia and Texas. See Document No. 32-2 at 64:1-4;
Document No. 32-4 at 8:4-14.
and Schlee & Stillman
around 2013, RJBA saw its business begin to decline.
Concerned that RJBA might not survive the decline, Boudreau
attempted to consolidate RJBA's business operations in
Woburn, Massachusetts, and decreased its workforce by
approximately 40 percent. However, Boudreau's efforts to
save the firm were unsuccessful, and eventually RJBA was
the firm dissolved, however, RJBA began negotiating an asset
purchase agreement with Schlee & Stillman. As part of
those negotiations, Schlee & Stillman reached out to and
negotiated facilitating agreements with several of RJBA's
creditors. Specifically, Schlee & Stillman resolved
potential issues with: (1) Cummings Properties, the owner of
property that RJBA leased for its office in Woburn,
Massachusetts; (2) Pentucket Bank, RJBA's main creditor,
which had extended RJBA a $1.3 million line of credit in
return for a security interest in RJBA's assets,
including its capital, receivables and equipment; and (3)
Brooks Properties, the holders of a mortgage on property RJBA
had purchased in Salem, New Hampshire. While the record is
not entirely clear, Schlee and/or Stillman also spoke with
Mitchell concerning a pending litigation matter against RJBA
involving Citizens Bank. See Document No. 32-4 at
49:19 - 50:1; 14:16 - 15:9.
April 1, 2015, an asset purchase agreement between RJBA and
Schlee & Stillman was executed. Under the agreement's
terms, Schlee & Stillman paid $15, 000 directly to
Pentucket Bank in return for all of RJBA's assets. The
asset purchase agreement between RBJA and Schlee &
Stillman included a provision that released Schlee &
Stillman from “all liabilities and obligations of
[R]BA] with respect to current or former employees.”
Document No. 32-3 at 2.
same day, April 1, 2015, Schlee & Stillman opened a
Woburn branch, hiring the majority of RJBA's employees.
Those employees included Boudreau, who became Schlee &
Stillman's regional attorney manager, and Mitchell.
Robert O'Brien, a litigation attorney who had been
working with RJBA for several years, had already begun
working as an attorney for Schlee & Stillman, as of
January 1, 2015. Schlee & Stillman assumed RJBA's
lease of the property in Woburn, and began operating its
newly established branch out of that same office.
Kratz & RJBA
Kratz began working for RJBA as a debt collector on April 21,
2014, about one year before its dissolution. Shortly after
starting work, Kratz says she was subjected to frequent
sexual harassment by her training manager, Richard Fradette.
For example, she says Fradette would take hold of her hand
and not let go; would touch her hair; rub her head, shoulders
and back; and would pinch her on the side of the waist. In
addition, Fradette made comments to Kratz that were sexual in
nature, including telling her that he took Viagra; that she
was beautiful, and should be a model; and that he was
celibate in his marriage and wanted a new wife. Fradette also
allegedly propositioned Kratz, asking her for a hug, or that
she go out for drinks with him, and not tell her husband.
15, 2014, Kratz complained to Greg Ormond, RJBA's
Director of Operations, that she was being sexually harassed
by Fradette. Kratz then met with Ormand and a Human Resources
representative concerning her complaint. However, no remedial
action was taken.
Kratz's complaint, she was ridiculed by other RJBA
employees, including managers, for complaining about sexual
harassment. In addition, she was given poor quality leads to
call. Eventually, on June 2, 2014, Kratz was fired,
purportedly for not meeting her assigned quota. Because other
RJBA employees who did not meet their quota were not
terminated, Kratz contends that her discharge was retaliatory
- that she was actually fired because she complained about
12, 2014, Kratz filed a formal Charge with the New Hampshire
Commission for Human Rights and the Equal Employment
Opportunity Commission (“EEOC”). Notice of the
Charge was sent to RJBA on June 19, 2014. RJBA filed an
answer to the Charge on August 18, 2014, which was signed and
sworn to by Mitchell.
November 12, 2014, the parties engaged in an unsuccessful
mediation proceeding. Robert O'Brien appeared at the
mediation as RJBA's attorney, and Mitchell spoke with the
mediator by phone. The parties exchanged settlement
proposals, but no resolution was reached. Following the
mediation, the Charge remained under investigation at the
Human Rights Commission and the EEOC until after the asset
purchase was completed. On April 13, 2015, Kratz obtained a
Right to Sue letter.
18, 2015, Kratz filed this suit, asserting claims against
RJBA under Title VII and NH RSA 354-A for sexual harassment
and retaliation, and against Schlee & Stillman based on a
“successor liability” theory.
Claim and ...