UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Mara Sabinson,

Plaintiff

v. Civil No. 05-cv-424-SM

Opinion No. 2006 DNH 097

Trustees of Dartmouth College,

Defendant

O R D E R

Mara Sabinson, an associate professor at Dartmouth College,

has sued the college under Title VII of the Civil Rights Act,

asserting claims of discrimination (based on age, gender, and

religion) and unlawful retaliation. She also asserts a state law

breach of contract claim and, perhaps, a “wrongful constructive

discharge” claim. Before the court is Dartmouth’s motion to

dismiss. Sabinson objects. For the reasons given, Dartmouth’s

motion to dismiss is denied, with one exception.

A motion to dismiss for “failure to state a claim upon which

relief can be granted,” FED. R. CIV. P. 12(b)(6), requires the

court to conduct a limited inquiry, focusing not on “whether a

plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974). “A district court may grant a

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12(b)(6) motion to dismiss for failure to state a claim upon

which relief can be granted only if ‘it clearly appears,

according to the facts alleged, that the plaintiff cannot recover

on any viable theory.’” Pomerleau v. W. Springfield Pub. Sch.,

362 F.3d 143, 145 (1st Cir. 2004) (quoting Correa-Martinez v.

Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)).

This case is not amenable to resolution on a motion to

dismiss, as the court indicated when it invited motions for

summary judgment at the hearing on Sabinson’s request for

preliminary injunctive relief. Nonetheless, the pleading before

the court is a motion to dismiss, not a motion for summary

judgment, and so must be resolved in accordance with circuit

precedent governing such motions.

In her Title VII claim, plaintiff asserts that Dartmouth

discriminated against her when it subjected her to an adverse

employment action on impermissible grounds — that is, by

constructively demoting her — and when it subjected her to a

hostile work environment. She also asserts that Dartmouth is

liable for retaliating against her. Dartmouth contends, not

unreasonably, that it retains the authority, as employer, to

assign teaching duties to faculty members as it deems

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appropriate, and that changing a faculty member’s particular

teaching duties does not qualify as an “adverse employment

action” for Title VII purposes. But, “[d]etermining whether an

[employment] action is materially adverse necessarily requires a

case by case inquiry.” Simas v. First Citizens’ Fed. Credit

Union, 170 F.3d 37, 50 (1st Cir. 1999) (quoting Blackie v. State

of Maine, 75 F.3d 716, 715 (1st Cir. 1996)) (emphasis added in

Simas). The court is unable to rule, as a matter of law, that an

extensive and dramatic revision of a college professor’s teaching

responsibilities as is claimed here, i.e., the “constructive

demotion” alleged by plaintiff, can never qualify as an adverse

employment action for Title VII purposes. Moreover, given the

court of appeals’ decision in Gorski v. New Hampshire Department

of Corrections, 290 F.3d 466 (1st Cir. 2002), defendant is not

entitled to dismissal of plaintiff’s hostile work environment

claim, since the generous notice pleading rules are plainly met

by the complaint. Similar concerns, coupled with what appear to

be factual disputes over when Sabinson’s course assignments were

actually changed, militate against dismissing plaintiff’s

retaliation claim at this point. This victory, such as it is,

may prove transitory to plaintiff, but disposition of the issues

presented requires a more fully developed record.

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Plaintiff has also asserted one (or two) state law causes of

action. In her breach of contract claim, she alleges that she

had an agreement with Dartmouth concerning her course

assignments, and that the college breached that agreement when it

reassigned three of the theater courses she was scheduled to

teach and required her to teach three first-year writing

seminars. Those allegations are enough to survive a Rule

12(b)(6) motion under the plaintiff-friendly standards of federal

notice pleading. See Brown v. Credit Suisse First Boston LLC (In

re Credit Suisse First Boston Corp. Analyst Reports Secs.

Litig.), 431 F.3d 36, 46 (1st Cir. 2005) (referring to “the

generous notice pleading formulation of FED. R. CIV. P. 8(a)(2)”). 

However, to the extent Sabinson is also asserting a claim of

“wrongful constructive discharge,” (see Compl. ¶ 27), that claim

is dismissed. According to her complaint, Sabinson remains

employed by Dartmouth, so she cannot state a discharge claim,

either constructive or actual. See, e.g., Hart v. Univ. Sys. of

N.H., 938 F. Supp. 104, 106 (D.N.H. 1996) (Title VII plaintiff

alleging constructive discharge resigned her position); Porter v.

City of Manchester, 151 N.H. 30, 36 (2004) (plaintiff asserting

wrongful constructive discharge claim had left employment with

defendant); Karch v. BayBank FSB, 147 N.H. 525, 536 (2002)

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(“According to the plaintiff, these alleged bad faith acts by the

defendant rendered her work environment so intolerable that she

ultimately resigned.”); Butler v. Walker Power, Inc., 137 N.H.

432, 433 (1993) (“Although the plaintiff resigned from his

employment with the defendant, the parties agree that the

resignation, under the conditions then existing, amounted to a

constructive discharge.”).

Moreover, plaintiff fails to allege another key element of a

wrongful discharge claim — that she “was discharged because [she]

performed an act that public policy would encourage, or refused

to do something that public policy would condemn.” Porter, 151

N.H. at 38 (quoting Cloutier v. Great Atl. & Pac. Tea Co., 121

N.H. 915, 922 (1981)). 

For the reasons given, Dartmouth’s motion to dismiss

(document no. 19) is denied, except that Sabinson’s possible

claim for “wrongful constructive discharge” is dismissed.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

August 29, 2006

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cc: K. William Clauson, Esq.

George E. Spaneas, Esq.

Bruce W. Felmly, Esq.

Michael T. Pearson, Esq.

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