UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jack Vaughan

v. Civil No. 05-cv-223-JD

Bernice A. Ray

Elementary School et al.

O R D E R

Proceeding pro se and in forma pauperis, plaintiff Jack

Vaughan has filed a complaint, alleging that he has been

subjected to gender-based disparate treatment in violation of 

Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. §

2000e et seq. He also alleges claims for defamation and breach

of contract under New Hampshire state law. Named as defendants

are the Bernice A. Ray Elementary School (“Ray School”) and three

of its employees: Kenneth Greenbaum, Superintendant; Bruce

Williams, Principal; and Janice Lavoie, Assistant Principal.

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See United States District Court

for the District of New Hampshire Local Rule (“LR”) 4.3(d)(1)(B). 

For the reasons stated below, I find that Vaughan has alleged

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sufficient facts to state a cause of action under Title VII.

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

plaintiff and inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(stating the “failure to state a claim” standard of

review and explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988).

Background

Construing the allegations in the complaint in the light

most favorable to Vaughan, the material facts are as follows.

Vaughan was employed as a teacher’s assistant with the Ray School

during two academic years: September 2002 through June 2003 and

September 2003 through March 2004. During the first year, he

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received an excellent performance evaluation. During the second

year, four second-grade teachers filed complaints against him,

accusing him of engaging in inappropriate behavior with female

students and failing to set appropriate boundaries with those

students. As a result of the complaints filed against him,

Vaughan was subjected to mandatory counseling sessions with

school officials, suspension from the Ray School and eventual

discharge from employment. 

Counseling Sessions

In November 2003, Vaughan was called into a meeting without

notice by two school officials, Principal Bruce Williams and

Psychologist Lois Roland, and was counseled to reduce the amount

of time he spent with a group of six second-grade students

(referred to as his “shadow kids”) during recess. Williams

directed him to set boundaries with the children, two of whom

allegedly liked to hold Vaughan’s hands while they walked around

the playground. Roland forcefully and repeatedly directed

Vaughan to spend more time supervising boys rather than girls,

and Williams allegedly endorsed her statements. According to

Vaughan, each day he supervised 50 boys and 50 girls during the

first recess period and 100 boys and 100 girls during the second

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period. Roland allegedly showed no interest in Vaughan

supervising the remaining 45 to 90 girls who were not “shadowing”

him. She explained to Vaughan that the public was more

suspicious of men (rather than women) supervising girls. Over

the next two months Vaughan complied with directives, thereby

reducing the amount of time spent with the “shadow kids” and

increasing the amount of time supervising boys. According to

Vaughan, he was never advised that his behavior was inappropriate

and only on rare occasions held the hands of the two shadow kids.

In January 2004, Williams and Assistant Principal Janice

Lavoie summoned Vaughan to a meeting without notice and pressured

him to resign on the basis that three teachers had filed

complaints against him. Without identifying the complainants or

charges filed, Williams and Lavoie asked Vaughan to resign. When

Vaughan refused he was suspended from the Ray School. 

Complaints Filed Against Vaughan

Two weeks after his suspension, Vaughan was informed of the

substance of the complaints filed against him by three secondgrade teachers. First, Barbara MacNamee complained that he waved

to two “shadow kids” at a sing-a-long and allowed one of the

girls to give him a hug. Vaughan contends that MacNamee never

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objected when he received hugs from boys and that MacNamee too

received hugs from students. He further contends that “the music

teacher had a long standing tradition of allowing students to

give her hugs as they left the School at the end of the day.” 

Second, Judy Harvey, complained that Vaughan “entrapped” students

by wrapping his arms around them. She further complained that

Vaughan wrote a story for the students that contained 

inappropriate violence and an unnerving message, even though

Harvey evaluated the story beforehand and invited Vaughan to read

it on several occasions. Harvey also accused Vaughan of

presenting an inappropriate photograph that inspired the story

even though she had previously approved his use of the

photograph. Third, Jane Metcalf complained that Vaughan

“entrapped” students by holding their hands and ordering students

to stand at attention inside the Ray School lobby on one

occasion. Each of the above-named complainants allegedly worked

with Vaughan but never notified him of the purported impropriety

of his behavior or otherwise advised him of any problems.

Background Investigation

Vaughan consented to and passed a standard background

investigation prior to being hired. After complaints were filed

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against him, however, the Ray School conducted a second and more

extensive background investigation without his consent. The

second investigation revealed that he was terminated by a former

employer, the Croydon School, for “boundary issues.” Internal

documents and memos generated during the course of the second

investigation allegedly confirm that Vaughan was terminated by

the Ray School because of his dismissal from the Croydon School. 

Following Vaughan’s dismissal on March 10, 2004, the Ray School

allegedly sent notices to several parents, alerting them that

Vaughan was considered dangerous to children. Greenbaum, the

Superintendent of Ray School, allegedly wrote to government

officials in New Hampshire and Vermont, asking them to ban

Vaughan from working with children. Vaughan subsequently was

banned from public libraries and child care centers in New

Hampshire and Vermont, where previously he was granted permission

to read stories to children.

Employment Agreement

Without providing any supporting documents, Vaughan broadly

alleges that the Roy School breached its employment agreement

with him. He claims that “the School failed to honor its Union

contract with me and the employment agreement it forged with all

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of us educational aides.” (Complt. ¶ 20) He further claims that

defendants breached the employment agreement by suspending and

terminating him without adequate written notice and by failing to

provide him with copies of written statements that formed the

basis of the disciplinary actions initiated against him. As a

result of defendants’ actions, Vaughan allegedly was denied the

opportunity to respond to the complaints filed against him.

Federal Proceedings

 Vaughan now brings this suit, alleging that defendants’

actions constitute gender-based discrimination in violation of

Title VII. As a predicate to bringing a civil action in federal

court, Title VII requires a complainant to first file an

administrative charge with the Equal Employment Opportunity

Commission (“EEOC”) setting forth the claim and its factual

basis. See Clockedile v. New Hampshire Dep’t of Corr., 245 F.3d

1, 6 (1st Cir. 2001). Without providing any relevant dates or

supporting documents, Vaughan alleges that his administrative

remedies have been fully exhausted before the New Hampshire

Commission for Human Rights and the EEOC. Accepting his

allegations as true, I conclude for purposes of preliminary

review that his claims have been administratively exhausted.

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Discussion

Vaughan alleges that he was discriminated against on the

basis of gender while employed as a teacher’s assistant at the

Ray School. He allegedly was subjected to disparate terms and

conditions of employment and discriminatory discharge.

Accordingly, I construe his complaint to allege a claim for

gender-based disparate treatment in violation of Title VII of the

Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq.

“Title VII makes it unlawful for an employer ‘to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . sex.’” Reed v. MBNA Mktg.

Sys., 333 F.3d 27, 31 (1st Cir. 2003) (quoting 42 U.S.C. § 2000e2(a)(1)). “‘Disparate treatment’ is the most easily understood

type of discrimination. The employer simply treats some people

less favorably than others because of their . . . sex.” Rosa v.

Park West Bank & Trust Co., 214 F.3d 213, 215 (1st Cir. 2000)

(quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,

335 n.15 (1977)). “The core inquiry in . . . disparate treatment

cases is whether the defendant intentionally discriminated

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against the plaintiff because of [his or] her gender.’” Sullivan

v. Stanley, No. 03-cv-387-SM, 2005 WL 1074275, at *4 (D.N.H.

April 29, 2005) (quoting Rathbun v. Autozone, Inc., 361 F.3d 62,

71 (1st Cir. 2004)). 

Absent any direct evidence of discrimination, a plaintiff’s

claim must be analyzed under ‘the burden-shifting analysis first

established by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).’” Chungchi Che v. Mass. Bay Transp.

Auth., 342 F.3d 31, 38 (1st Cir. 2003)).

Under the McDonnell Douglas analysis, a plaintiff must

establish a prima facie case, which in turn gives rise

to an inference of discrimination. See Dichner v.

Liberty Travel, 141 F.3d 24, 29-30 (1st Cir. 1998). 

The employer then must state a legitimate,

nondiscriminatory reason for its decision. See ZapataMatos v. Reckitt & Colman, Inc., 277 F.3d 40, 44 (1st

Cir. 2002). If the employer can state such a reason,

the inference of discrimination disappears and the

plaintiff is required to show that the employer’s

stated reason is a pretext for discrimination. See id.

at 45.

Ugurhan Akturk Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st

Cir. 2003)). “Generally a plaintiff establishes a prima facie

case by showing that (1) he is a member of a protected class; (2)

he was qualified for the job; (3) the employer took an adverse

employment action against him; (4) the position remained open or

was filled by a person with similar qualifications.” Id. at 212-

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13 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506

(1993) (applying and redefining the McDonnell Douglas analysis in

a case alleging discriminatory demotion and discharge) and

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54

(1st Cir. 2000)(applying McDonnell Douglas standard to sex

discrimination case alleging discriminatory discharge)).

Under this standard, Vaughan has stated sufficient facts to

allege a gender-based disparate treatment claim in violation of

Title VII. He alleges that defendants subjected him to disparate

treatment and discriminatory discharge on the basis of gender. 

Although the record is silent as to his qualifications, Vaughan 

received an excellent performance evaluation during his first

year of employment. Defendants subsequently took adverse actions

against him by pressuring him to resign, suspending him when he

refused to resign and terminating him without adequate written

notice. Other similarly situated female employees were treated

more favorably than Vaughan. While it is unclear whether his

former position remains open or was filled by a person with

similar qualifications, for purposes of preliminary review I

conclude that Vaughan has stated sufficient facts to allege a

gender-based disparate treatment claim in violation of Title VII.

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II. State Law Claims

A federal court exercising original jurisdiction over

federal claims has “supplemental jurisdiction over all other

claims that are so related to the claims in the action within

such original jurisdiction that they form part of the same case

or controversy . . .” 28 U.S.C.A. § 1367(a). See also United

Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966) (holding that

supplemental jurisdiction exists where the state and federal

claims derive from a common nucleus of operative facts); accord

Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1175-77 (1st

Cir. 1995). Because Vaughan’s state law claims for defamation

and breach of contract stem from the same core of operative facts

that give rise to his federal claims, I recommend that

supplemental jurisdiction be exercised over them. 

Conclusion

Without commenting on the merits of the complaint, I find

that Vaughan has sufficiently alleged a cause of action under

Title VII premised upon gender-based disparate treatment and

therefore order the complaint served on the defendants. See LR

4.3(d)(1)(B)(iii).

Accordingly, I direct the Clerk’s Office to issue plaintiff

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the necessary summonses. See LR 4.3(d)(1). Plaintiff may effect

service of process within 120 days, in accordance with Fed. R.

Civ. P. 4. Service shall include a copy of the complaint and a

copy of this order. Defendants shall answer or otherwise plead

within twenty (20) days of acceptance of service. See Fed. R.

Civ. P. 12(a)(2).

Plaintiff is referred also to Fed. R. Civ. P. 5, which

requires that every pleading and every written motion, notice,

and similar paper be served on defendants, which service shall be

made by mailing the document to defendants’ attorney(s).

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 16, 2005

cc: Jack Vaughan, pro se

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