UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Katherine Gatsas,

Plaintiff

v. Civil No. 05-cv-315-SM

Opinion No. 2006 DNH 127

Manchester School District

also known as School 

Administrative Unit No. 37,

Defendant

O R D E R

Katherine Gatsas brings this discrimination suit against

Manchester School District, also known as School Administrative

Unit No. 37 (“the District”), claiming that she was subjected to

disparate treatment based on gender, in violation of 42 U.S.C.

2000e-2(a) (Count I) and a related state statute (Count II). She

also asserts claims of retaliation (Count III) and wrongful or

retaliatory discharge (Count IV).

Defendant moves for summary judgment. For the reasons set

forth below, defendant’s motion for summary judgment is denied.

STANDARD OF REVIEW

Summary judgment is appropriate when the record demonstrates

“that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

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FED. R. CIV. P. 56(C). In considering a motion for summary

judgment, the court must view the record “in the light most

hospitable” to the nonmoving party. Euromodas, Inc. v. Zanella,

Ltd., 368 F.3d 11, 17 (1st Cir. 2004) (citing Houlton Citizens’

Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999);

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). An

issue is “‘genuine’ if the parties’ positions on the issue are

supported by conflicting evidence.” Int’l Ass’n of Machinists &

Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196,

200 (1st Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986)). An issue is “‘material’ if it potentially

affects the outcome of the suit.” Id. at 199-200. 

In support of its summary judgment motion, the moving party

must “identify[] those portions of [the record] which . . .

demonstrate the absence of a genuine issue of a material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the

moving party successfully demonstrates the lack of a genuine

issue of material fact, “the burden shifts to the nonmoving party

. . . to demonstrate that a trier of fact reasonably could find

in [its] favor.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st

Cir. 1997) (citing Celotex, 477 U.S. at 322-25). Once the burden

shifts, the nonmoving party “may not rest upon mere allegation[s]

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or denials of his [or her] pleading, but must set forth specific

facts showing that there is a genuine issue for trial.” 

Anderson, 477 U.S. at 256.

BACKGROUND

The facts, set forth in the light most favorable to Gatsas

are as follows. Gatsas has worked for the District since 1998,

starting out as a long-term substitute teacher and later becoming

a member of the full-time staff, teaching primarily sixth grade

science. (Def.’s Mot. Summ. J., Ex. A (Gatsas Employment R.)) 

Gatsas earned a bachelor’s degree in 1978 and a master of

education degree in 1990, both from Notre Dame College in

Manchester, New Hampshire. (Gatsas Employment R.) Gatsas also

holds elementary education and principal certifications, (Gatsas

Employment R.), as well as a general special education

endorsement, from the New Hampshire Department of Education. 

(Def.’s Mot. Summ. J., Ex. Q.) 

In early 2003, the District posted a job vacancy

announcement seeking an interim assistant principal for Hillside

Middle School (“Hillside” or “the School”), the school at which

Gatsas taught. (Def.’s Mot. Summ. J., Ex. B (Job Posting.)) The

announcement disclosed that the job qualifications included a

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masters degree in educational administration “or equivalent

required for certification,” New Hampshire certification as a

principal, a statement of eligibility, or enrollment in an

accredited certification program, and experience as a certified

teacher. (Job Posting.) The posting also indicated that the

successful candidate would be a “visionary” as well as a

“collaborator who utilizes the strengths of staff, students,

parents, and community in creating a quality learning

environment.” (Job Posting.) Notwithstanding the qualifications

described in the job posting, “when the District considers

candidates for interim positions, [it is] often more flexible

with respect to hiring criteria.” (Def.’s Mot. Summ. J., Ex. C

(Bass Aff.) ¶ 4.)

Six people, three men and three women, including Gatsas,

applied for the position. (Writ ¶ 12.) Of the six, four were

already employed at Hillside in various other capacities. 

(Def.’s Mot. Summ. J., Ex. D (Donohue Aff.) ¶ 4. Each candidate

was interviewed by Stephen Donohue, the principal of the School,

and Joseph Ferrisi, the assistant principal, who selected two

finalists, William Dupere and Stephen Harrises, for consideration

by a final selection committee. (Donohue Aff. ¶ 8.) After the

screening committee reviewed the candidates, the superintendent

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and assistant superintendent made the ultimate decision to

appoint Mr. Dupere, then a guidance counselor at Hillside, to

fill the interim assistant principal vacancy. (Writ ¶ 12.)

Following Dupere’s appointment to the interim position,

Gatsas’s teaching assistant at the time, Martha Folopoulos, had a

casual conversation with Hillside assistant principal Joseph

Ferrisi during which he agreed with a comment made by Folopoulos

to the effect that the principal “would have never hired somebody

like Kathie [Gatsas] because she’s a strong . . . woman.” (Pl.’s

Mot. Opp. Summ. J., Ex. 18 (Folopoulos Depo.) 11-12.) 

Believing that she had been passed over for the interim

position because of her gender, and to express her

dissatisfaction with the District’s hiring decision, Gatsas

placed advertisements in several local newspapers criticizing the

District and Principal Donohue for the decision, and alleging

that Dupere was unqualified for the job and that the District

discriminates on the basis of gender. (Def’s. Mot. Summ. J.,

Ex. G.)

On or about April 14, 2003, Gatsas filed charges with both

the New Hampshire Commission for Civil Rights and the federal

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Equal Employment Opportunity Commission (“EEOC”), alleging gender

discrimination. (Writ ¶ 7.) 

At the end of the 2002-2003 school year, after placing the

newspaper advertisements and filing discrimination complaints,

Gatsas received notification that her teaching assignment had

been changed for the following school year. (Writ ¶ 13.) 

Instead of teaching sixth grade science, as she had in the past,

she was slated to teach seventh grade language arts, and was to

be relocated to a different classroom, Room G25, which was

located in the school’s basement and was generally considered to

be undesirable. (Writ ¶ 14.) In August, just prior to the start

of the 2003-2004 school year, Gatsas raised concerns about her

new assignment with her union representative. As a result, her

reassignment was rescinded. (Writ ¶ 18.) Gatsas never taught a

seventh grade class nor did she ever teach in Room G25. (Def.’s

Mot. Summ. J., Ex. K (Gatsas Depo.) 66.) On or about August 13,

2003, Gatsas amended her complaint with the EEOC to include a

charge of retaliation, presumably related to the reassignment. 

(Writ ¶ 7.)

Gatsas also sought other assignments within the District,

including two long-term substitute teaching assignments, but was

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1 There is some dispute as to the status of Gatsas’s

employment. In her complaint, Gatsas characterizes her departure

as “an unpaid medical leave of absence” as a result of workplace

stress. (Writ ¶ 22.) In its Memorandum of Law in Support of

Motion for Summary Judgment, the District notes that “although

[Gatsas] has never been terminated, she has never been granted an

approved leave of absence,” (Def.’s Mot. Summ. J., Ex. N.),

because “the District requested that [Gatsas] complete FMLA forms

in order to approve her leave status, [but] she never submitted

those forms.” (Def.’s Mot. Summ. J., Ex. N.)

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unsuccessful. (Writ ¶ 21.) Upon her return to the class in

September 2003, Gatsas experienced what she characterized as

“rude and hostile” behavior by members of the school

administration, which included “refusing to speak to her, failure

to provide her with requested teaching supplies, and jostling her

in the hallways of the school.” (Writ ¶ 19.) In November 2003

Gatsas began using her allotted sick time, subsequently providing

“a letter from her psychiatrist indicating that she felt unable

to work.”1 (Def.’s Mem. Summ. J., Ex. L.) Gatsas has been “out

of work” since December 2003. (Writ ¶ 23.) 

On January 5, 2005, Gatsas notified the District that she

was ready to return to work, and that she would prefer to be

placed somewhere other than Hillside. (Def.’s Mot. Summ J.,

Ex. O.) A letter from Gatsas’s psychologist indicated that she

was interested in pursuing employment as an “Out of District

Placement Monitor,” a position for which the District agreed to

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interview Gatsas. (Def.’s Mot. Summ. J., Ex. P.) But, because

she lacked reliable transportation, a necessity, Gatsas was

unable to pursue the position. (Gatsas Depo. 130-31.)

On or about May 11, 2005, the EEOC issued a Notice of Right

to Sue. (Writ ¶ 8.) Because she believed she had been denied

the interim assistant principal position, and suffered

retaliatory treatment because of her accusations of gender

discrimination, Gatsas brought this four-count complaint against

the District for violating her rights under 42 U.S.C. 2000e-2(a)

and related state statutes.

DISCUSSION

Defendant moves for summary judgment on all four counts. 

With respect to Counts I and II, the District says Gatsas has

failed to demonstrate that its proffered nondiscriminatory reason

for its decision to hire someone else for the interim position

was a pretext for unlawful gender discrimination. Regarding

Count III, the District contends that Gatsas has failed to

establish that she suffered an adverse employment action, or

alternatively, that she cannot demonstrate any causal connection

between her protected activity and the allegedly retaliatory

conduct. Finally, regarding Count IV, defendant asserts that

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state law precludes a common law wrongful termination action

where a statutory cause of action is available to redress the

same complaint, as it is here.

I. Disparate Treatment - Title VII (Count I)

“The operative provision of Title VII makes it unlawful to

‘discriminate against any individual with respect to his [or her]

compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . [race, color, religion, sex,

or national origin].’” Noviello v. City of Boston, 398 F.3d 76,

89 (1st Cir. 2005) (quoting 42 U.S.C. § 2000e-2(a)(1)). “[I]n a

disparate treatment case, ‘[t]he central focus of the inquiry

. . . is always whether the employer is treating some people less

favorably than others because of their race, color, religion,

sex, or national origin.’” Thomas v. Digital Equip. Corp., 880

F.2d 1486, 1490 (1st Cir. 1989) (quoting Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577 (1978)) (internal quotation marks

omitted).

The parties dispute which analytical framework better fits

this case. Gatsas argues that because she has put forth direct

evidence of discrimination, this case should be considered a

mixed-motive case, as described in Price Waterhouse v. Hopkins,

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2 There remains some uncertainty as to whether the

distinction between direct and circumstantial evidence still

exists in light of the Supreme Court’s recent decision in Desert

Palace, Inc. v. Costa, 539 U.S. 90 (2003). Under Desert Palace,

a plaintiff no longer needs direct evidence of discrimination to

trigger mixed-motive analysis, but instead must simply “present

sufficient evidence for a reasonable jury to conclude, by a

preponderance of the evidence, that race, color, religion, sex,

or national origin was a motivating factor for any employment

practice.” Id. at 101 (quotation marks omitted). Whether this

new evidentiary standard applies at the summary judgment stage

remains an open question, however. LEX K. LARSON, LARSON’S EMPLOYMENT

DISCRIMINATION § 8.09 (2d ed. 1994). Although the Court of Appeals

for the First Circuit has yet to address the issue, the Eighth

Circuit recently explained that Desert Palace simply indicates

that a plaintiff bringing an employment discrimination

claim may succeed in resisting a motion for summary

judgment where the evidence, direct or circumstantial,

establishes a genuine issue of fact regarding an

unlawful motivation for the adverse employment action

. . . even though the plaintiff may not be able to

create genuine doubt as to the truthfulness of a

different, yet lawful, motivation.

Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1018 (8th Cir.

2005).

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490 U.S. 228 (1989). The District counters that Gatsas has

proffered only circumstantial evidence of discrimination, so the

familiar burden-shifting framework set out in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), is more appropriate.

Generally the Price Waterhouse mixed-motives framework is

reserved for cases in which a plaintiff puts forth direct

evidence of discrimination. Patten v. Wal-Mart Stores E., Inc.,

300 F.3d 21, 25 (1st Cir. 2002).2 Direct evidence is that which

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3 The Supreme Court’s decision in Desert Palace has also

given rise to uncertainty as to whether the McDonnell-Douglas

burden-shifting framework remains valid. Hillstrom v. Best

Western TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003). The First

Circuit noted recently “that in Raytheon Co. v. Hernandez, 540

11

“consists of statements by a decisionmaker that directly reflect

the alleged animus and bear squarely on the contested employment

decision.” Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60

(1st Cir. 2000). In such cases, “plaintiff’s burden is tempered

so that [he or] she need prove only that the discriminatory

action was a motivating factor in an adverse employment

decision.” Patten, 300 F.3d at 25. Upon proving that the

employment decision was based, at least in part, upon

discriminatory animus, “the employer has a limited affirmative

defense that does not absolve it of liability, but restricts the

remedies available to a plaintiff.” Desert Palace, 539 U.S. at

94. “In order to avail itself of the affirmative defense, the

employer must ‘demonstrate that [it] would have taken the same

action in the absence of the impermissible motivating factor.’” 

Id. at 94-95 (quoting 42 U.S.C. § 2000e-5(g)(2)(B) (replaced text

in original)).

In cases where only circumstantial evidence of

discrimination is presented, the McDonnell-Douglas analysis is

appropriate.3 Under that test, 

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U.S. 44 (2003), the Supreme Court used the McDonnell-Douglas

framework without commentary in a post-Desert Palace case.” Id.

12

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.

Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st Cir. 2003).

In deciding which analytical framework better fits this

case, the court must consider whether Gatsas has put forth

sufficient evidence from which a reasonable jury could conclude

by a preponderance that the District’s hiring decision was

motivated, in part, by discriminatory animus.

Gatsas argues that by agreeing to (and adopting)

Folopoulos’s assertion that the District did not (or would not)

hire her because she was a “strong, aggressive woman,” Ferrisi

effectively made a statement that reflected a discriminatory

animus bearing directly on the challenged decision. The District

counters that Ferrisi’s agreement referred not to the gender

aspect of Folopoulos’s remark, but rather, the personality

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aspect. That is, that Donohue would not have hired anyone – male

or female – who exhibited aggressive personality characteristics

such as those attributed to Gatsas.

In considering whether particular remarks constitute direct

evidence of gender discrimination, the court must exclude “‘mere

background noise’ and ‘stray remarks.’” Patten, 300 F.3d at 25

(quoting Febres, 214 F.3d at 61). Moreover, “‘[a] statement that

can plausibly be interpreted two different ways – one

discriminatory and the other benign – does not directly reflect

illegal animus . . .’” Id. (quoting Fernandes v. Costa Bros.

Masonry, Inc., 199 F.3d 572, 583 (1st Cir. 1999)). On the other

hand, “[t]he mere fact that a fertile mind can conjure up some

innocent explanation for such a comment does not undermine its

standing as direct evidence.” Febres, 214 F.3d at 61.

Here, the District asserts that the Folopoulos remark, with

which Ferrisi allegedly agreed, can be plausibly interpreted two

different ways. Although the discriminatory interpretation

suggests that Gatsas was not given the job because she was an

aggressive woman, the benign interpretation speaks only to the

personality characteristic of assertiveness, rather than to her

gender. Facially, the distinction is a fine one, but the context

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in which the comment was made, especially when considered in the

light most favorable to the plaintiff, is sufficient to permit a

reasonable jury to conclude that the District’s decision not to

hire Gatsas was motivated, in part, by a discriminatory animus.

In addition to that modest direct evidence of gender

discrimination, Gatsas points to the other factors — e.g., that a

male candidate was selected over a female candidate — as indirect

evidence of discriminatory animus. She points out that not only

was a male hired, but that both male finalists for the position,

Dupere and Harrises, were unqualified for the position, because

they lacked the required educational credentials and state

certifications as described in the job posting. 

In brief, the job posting described the minimum

qualifications for the position as including a masters degree in

educational administration, state certification as a principal or

eligibility for such certification, as well as experience as a

certified teacher. Harrises, one of the finalists, had

experience as a certified teacher, but lacked a masters degree or

principal certification, although he was enrolled in a masters

program in school administration which would lead to such

certification. (Def.’s Mot. Summ. J., Ex. F (Donohue Aff. II)

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¶ 2.) Dupere held a masters degree and was certified by the

state as a guidance counselor, but apparently lacked

certification as a principal, and was not then eligible for

certification. (Pl.’s Obj. Summ. J., Ex. 16.) To cure this

obvious deficiency, Dupere agreed to, and in fact did,

subsequently enroll in a masters program in school administration

to obtain his principal’s certification. (Donohue Aff. II ¶ 2.)

The job posting plainly required that the successful

candidate hold a masters degree or its equivalent; it neither

stated nor implied that enrollment in a program leading to the

degree would be sufficient. Moreover, Dupere’s resume reveals

that while he had substantial experience as a guidance counselor,

he had little or no experience as a classroom teacher, as called

for in the job posting. Gatsas, however, satisfied all of the

disclosed requirements.

The District seeks to justify its consideration of facially

unqualified candidates by explaining that it often relaxes its

standards when hiring for interim positions. Such a practice

might well be prudent and necessary if, for example, few

qualified persons applied and the need to quickly fill the

position outweighed the need to fill it with a fully qualified

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candidate. On the other hand, circumstances might be that the

only facially qualified applicants are so deficient in other

qualities necessary to successful performance that a superior but

facially unqualified person should be hired.

Here, defendant had at least one applicant, Gatsas, who met

all of the qualifications described in the job posting. On this

concededly undeveloped record, there appears little explanation

for relaxing the published criteria. Coupled with the

affirmation allegedly made by Ferrisi, the bare facts presented,

taken in the light most favorable to Gatsas, could support a

reasonable jury’s determination that plaintiff was denied the

interim position because of her gender. Of course, there may

well have been any number of other, valid, reasons to pass Gatsas

by, notwithstanding her facial qualification. But for purposes

of this motion the facts must be taken in the light favoring

Gatsas.

The District offers several nondiscriminatory reasons for

its decision, including Gatsas’s interview performance, her many

absences, and her poor ability to fulfill the obligations of an

administrative post, as well as the District’s interest in

minimizing disruption to students and staff by avoiding the

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creation of a short-term class vacancy by filling the interim

position with a current teacher. But these reasons are not

sufficient to avoid summary judgment, because plaintiff has put

forth sufficient evidence from which a jury could find by a

preponderance that the decision not to hire her was at least

partly based on an unlawful discriminatory motive. In short, a

genuine dispute of material fact exists as to the District’s

motivation in denying Gatsas the interim position. Accordingly,

defendant is not entitled to judgment as a matter of law, and its

motion for summary judgment as to Count I is necessarily denied.

II. Disparate Treatment - N.H. Rev. Stat. Ann. 354-A (Count II)

Plaintiff alleges defendant’s discriminatory conduct

violates New Hampshire Rev. Stat. Ann. (“RSA”) 354-A. That state

statutory claim fails, however, because the state law does not

provide for a private cause of action. See Bergstrom v.

University of New Hampshire, 943 F. Supp. 130, 132 n.3 (D.N.H.

1996). Accordingly, defendant’s motion for summary judgment as

to Count II is granted.

III. Retaliation - Title VII (Count III)

“[T]o establish a claim of retaliation, a plaintiff ‘must

show that (I) she undertook protected conduct, (ii) she suffered

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an adverse employment action, and (iii) the two were causally

linked.’” Carmona-Rivera v. Commonwealth of P.R., No. 05-2500,

2006 U.S. App. LEXIS 23257, *13 (1st Cir. September 12, 2006)

(citing Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.

2005)). 

“[T]he anti-retaliation provision of Title VII ‘is not

limited to discriminatory actions that affect the terms and

conditions of employment.’” Id. (citing Burlington N. & Santa Fe

Ry. Co. v. White, 2006 U.S. LEXIS 4895 at *20 (June 22, 2006)). 

But rather, “‘a plaintiff must show that a reasonable employee

would have found the challenged action materially adverse, which

in this context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.’” 

Id. (citing Burlington, 2006 U.S. LEXIS 4895 at *26) (quotation

marks and citations omitted). “The alleged retaliatory action

must be material, producing a significant, not trivial, harm.” 

Carmona-Rivera, 2006 U.S. App. LEXIS 23257 at *14. “An

employee’s decision to report discriminatory behavior cannot

immunize that employee from those petty slights or minor

annoyances that often take place at work and that all employees

experience.” Burlington, 2006 U.S. LEXIS 4895 at *27.

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Here, it is undisputed that plaintiff engaged in protected

conduct by filing complaints of gender discrimination with

federal and state authorities. At issue is whether plaintiff

suffered materially adverse employment actions as a direct result

of engaging in the protected conduct.

Plaintiff alleges that her announced reassignment to Room

G25, an undesirable classroom located in the basement, and to

teach seventh grade language arts instead of sixth grade science,

constituted materially adverse actions that produced substantial

harm. But plaintiff never actually taught seventh grade language

arts, and never taught in Room G25, since, after objecting

through her union representatives, the new assignments were

rescinded. 

Even if plaintiff had actually switched subjects and taught

in G25, it would be difficult to characterize such an assignment

as being materially adverse. The record indicates that teachers

are frequently reassigned from year to year, and plaintiff’s own

employment history reveals that she had been reassigned several

times in the past. The classroom, though comparatively

undesirable, was nevertheless an actively used classroom to which

someone had to be assigned. Further, aside from requiring

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additional planning and preparation at the beginning of the

academic year, there is no evidence that teaching seventh grade

language arts is any more or less burdensome than teaching sixth

grade science, or that Gatsas was unqualified to teach either. 

Thus, the announced reassignment is properly characterized as a

minor annoyance which was promptly remedied by the administration

upon learning of the objection.

Even if the reassignment was considered a materially adverse

employment action, plaintiff has failed to demonstrate a causal

connection between her filing of the complaints and the action

taken by the District. Although it is true that temporal

proximity of the protected activity and subsequent wrongful

conduct can be probative of a causal link, see Calero-Cerezo v.

U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004); see also

Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001),

here there is substantial evidence to suggest that the

reassignment announcement was made consistently with standard

practice, at the end of the school year, effective the following

school year. The mere fact that plaintiff filed her

discrimination complaints at or about the time the District

routinely announces teaching assignments for the following year

is, alone, an insufficient basis upon which to conclude that her

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reassignment was retaliatory in character or was otherwise the

product of her filing complaints of discrimination.

The other allegedly retaliatory action — being jostled in

the hallways, having Donohue visit her classroom frequently, the

threat of having certain furniture removed from the classroom,

and the lack of supplies — are all relatively trivial

vicissitudes of work life that the Burlington court sought to

omit from retaliation claims. 2006 U.S. LEXIS 4895 at *27-28. 

In the parlance of Burlington, plaintiff’s decision to report

discriminatory behavior cannot immunize her from petty slights

and minor annoyances that come with working at a large public

middle school.

As noted in Burlington, the standard for determining whether

a particular action is materially adverse is an objective one,

that is, the question is whether a reasonable person would find

the conduct to be materially adverse. 2006 U.S. LEXIS 4895 at

*28. While there is no doubt that plaintiff found some of the

allegedly retaliatory behavior to be unpleasant and offensive, no

reasonable jury could find, based on the evidence proffered by

plaintiff, that the conduct she experienced was so materially

adverse so as to constitute retaliation as comprehended by Title

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VII. Accordingly, defendant is entitled to summary judgment on

this claim, and its motion for summary judgment as to Count III

is therefore granted.

IV. Wrongful Discharge (Count IV)

Plaintiff argues that she has been effectively discharged as

a teacher with the District as a result of her reporting the

alleged gender discrimination. Defendant counters that plaintiff

is barred from bringing a common law wrongful discharge claim

because a statutory cause of action is available to her, based on

the same facts. Defendant is correct.

“In Wenners v. Great State Beverages, Inc., 140 N.H. 100

(1995), the plaintiff relied on a section of the Bankruptcy Code”

in support of its wrongful discharge claim. Smith v. F.W. Morse

& Co., 76 F.3d 413, 429 (1st Cir. 1996). In that case,

[t]he court held that “while a plaintiff may not pursue

a common law remedy where the legislature intended to

replace it with a statutory cause of action,” a

wrongful discharge action could proceed if the relevant

statutory provision did not provide a private cause of

action for its violation.

Id. (quoting Wenners, 140 N.H. at 103). 

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Further, “Title VII not only codifies the public policy

against gender-based discrimination but also creates a private

right of action to remedy violations of that policy and limns a

mature procedure for pursuing such an action.” Id. at 430. 

Here, plaintiff has brought two claims under Title VII, one for

disparate treatment and one for retaliation, each claim arising

out of the same facts as the wrongful discharge claim. Thus,

“[u]nder Wenners, the existence of such a remedy precludes

[plaintiff], in the circumstances of this case, from asserting a

common law claim for wrongful discharge.” Id. Accordingly,

defendant is entitled to judgment as a matter of law and its

motion for summary judgment is therefore granted as to Count IV.

CONCLUSION

For the reasons given, defendant’s motion for summary

judgment (document no. 17) is granted in part and denied in part. 

Specifically, judgment shall be entered in defendant’s favor on

Counts II, III, and IV. Otherwise the motion for summary

judgment is denied.

Case 1:05-cv-00315-SM Document 30 Filed 11/07/06 Page 23 of 24
24

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

November 7, 2006

cc: Leslie H. Johnson, Esq.

Kathleen C. Peahl, Esq.

Case 1:05-cv-00315-SM Document 30 Filed 11/07/06 Page 24 of 24