1In the same order, the court granted, in part, SunGard's

motion to strike certain paragraphs in Dolan's affidavit and

granted Dolan's motion to exclude certain evidence for purposes

of summary judgment. 

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Gary Dolan

v. Civil No. 06-cv-43-JD

Opinion No. 2008 DNH 051

SunGard Securities Finance, LLC

O R D E R

Gary Dolan, proceeding pro se, brought claims against his

former employer, SunGard Securities Finance, LLC, and a company

that handled SunGard employees' workplace complaints, Global

Compliance Services, Inc. The claims against Global were

resolved in Global's favor on summary judgment. Dolan alleged

claims against SunGard of unlawful discrimination and retaliation

under Title VII of the Civil Rights Act of 1964 and New Hampshire

Revised Statutes Annotated ("RSA") chapter 354-A. Dolan also

alleged related state law claims against SunGard.

On January 8, 2008, the court granted SunGard's motion for

summary judgment in part.1 The court interpreted Dolan's pro se

complaint to allege a gender discrimination claim that SunGard

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2The court interpreted Dolan's discrimination claim to

include an issue of whether SunGard discriminated against him by

promoting his female co-worker instead of him. Dolan asserts in

his motion for reconsideration, however, that the court's

2

treated him less favorably than a female co-worker and subjected

him to a hostile work environment. The court also interpreted

Dolan's retaliation claim to include an allegation that SunGard

denied him promotion in retaliation for his complaints against

his supervisor. SunGard interpreted Dolan's claims differently. 

Because of the differences, the court provided SunGard an

opportunity to address Dolan's claims as the court had

interpreted them. In addition, the court provided Dolan an

opportunity to address his claim under RSA 275:56 to show that an

implicit cause of action for damages is available under the

statute.

Dolan has moved for reconsideration of the court's order

granting partial summary judgment in favor of SunGard. SunGard

has filed an objection.

Discussion

In support of his motion for reconsideration, Dolan contends

that the court erroneously found that SunGard addressed his

complaints of a hostile work environment and erroneously resolved

his retaliation claim in favor of SunGard.2 He also contends

Case 1:06-cv-00043-JD Document 95 Filed 03/06/08 Page 2 of 9
interpretation of his complaint was error. Instead, he contends

the incident that led to the promotion was abusive of him. See

Mot. for Recon. at 5. 

3

that his state law claim of wrongful discharge was erroneously

decided on summary judgment and that his claims of fraudulent and

negligent misrepresentation were not resolved. Dolan also

addresses his unresolved claim under RSA 275:56.

To be successful on an interlocutory motion for

reconsideration, the moving party must "demonstrate that the

order was based on a manifest error of fact or law." LR 7.2(e). 

A manifest error occurs only if the court "misapprehended some

material fact or point of law." Palmer v. Champion Mortgage, 465

F.3d 24, 30 (1st Cir. 2006). A motion for reconsideration

ordinarily is not a "vehicle for revisiting a party's case and

rearguing theories previously advanced and rejected." Id. For

that reason, "[t]he granting of a motion for reconsideration is

'an extraordinary remedy which should be used sparingly.'" Id.

(quoting 11 Charles Alan Wright et al., Federal Practice &

Procedure § 2810.1 (2d ed. 1995)).

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3Dolan mistakenly asserts that the court found he had

engaged in protected activity for purposes of his retaliation

claim. Instead, the court assumed a disputed issue as to whether

his complaints were protected activity under Title VII and

addressed the other elements of his retaliation claim. Because

Dolan could not show a material factual dispute on other

elements, SunGard was entitled to summary judgment. 

4

A. Hostile Work Environment

As SunGard points out, the court did not grant summary

judgment on Dolan's federal and state hostile work environment

claims. Therefore, to the extent he seeks reconsideration of

those claims, he misunderstood the order on summary judgment.

Alternatively, Dolan appears to seek reconsideration of that

part of the summary judgment order which addressed Dolan's claim

that SunGard retaliated against him by failing to address his

complaints of a hostile work environment.3 Specifically, Dolan

cites page 27 of the summary judgment order where the court

analyzed his claim that SunGard's failure to investigate his

hostile work environment complaints constituted an adverse

employment action for purposes of his retaliation claims. The

court stated: 

Even assuming that failing to properly investigate

workplace complaints would be an adverse employment

action in certain circumstances, the record does not

support Dolan's claim that SunGard failed to

investigate his complaints. Although Dolan disagrees

with the way his complaints were handled and the

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4Dolan refers to an affirmative defense available to an

employer when a supervisor harasses an employee, resulting in a

hostile work environment in violation of Title VII, which would

make the employer vicariously liable "unless the employer can

successfully assert the affirmative defense that it took

reasonable care to promptly correct the situation or that the

plaintiff unreasonably failed to take advantage of the corrective

or preventive measures provided by the employer." Fontanez-Nunez

v. Janssen Ortho LLC, 447 F.3d 50, 56 (1st Cir. 2006) (internal

quotation marks omitted). 

5

outcome, he cannot dispute that SunGard addressed them. 

Therefore, Dolan's dissatisfaction with the

investigation is not a basis for an adverse employment

action in this case.

Doc. 80 at 27. Dolan argues that the requirements of the

Burlington defense apply in the context of determining whether

SunGard's response to his complaints about a hostile work

environment constituted an adverse employment action for purposes

of his retaliation claim.4 

SunGard did not raise the affirmative defense Dolan refers

to as the Burlington defense. The summary judgment order did not

address that defense. Therefore, it is not appropriate for Dolan

to raise the issue on reconsideration.

In addition, Dolan does not contend that he suffered a

hostile work environment in retaliation for complaining about his

supervisor, Wendy St. Louis. See Noviello v. City of Boston, 398

F.3d 76, 94 (1st Cir. 2005). Instead, he contends the opposite,

that he complained that St. Louis was subjecting him to a hostile

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6

work environment and that in retaliation for those complaints

SunGard did not investigate whether his complaints were true. 

The Burlington defense is inapposite to Dolan's motion for

reconsideration.

Dolan also argues that a material factual dispute remains as

to whether SunGard's reasons for firing him were a pretext for

retaliation. He relies on an implausible and unpersuasive

inference from evidence that was excluded from the summary

judgment record and on revisiting evidence that was considered

for purposes of summary judgment. Dolan also disagrees with the

court's summary judgment ruling on his retaliation claim in other

respects. He has not demonstrated, however, that the ruling was

based on a manifest error of fact or law.

B. Wrongful Discharge

Dolan argues that his state law wrongful discharge claim was

dismissed on summary judgment because it was preempted by Title

VII, which he contends was error because summary judgment was

granted on his Title VII claim. Dolan is mistaken. Summary

judgment was granted on his wrongful discharge claim, not based

on preemption, but because he failed to show a material factual

dispute as to the reason for his termination. 

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7

C. Misrepresentation and Fraud

Dolan asserts that SunGard moved for summary judgment on

misrepresentation and fraud claims that he did not allege,

leaving those claims unresolved. Specifically, Dolan represents: 

"The Defendant's motion for summary judgment on these claims

misrepresented these complaints to state something I did not

allege; that their personnel manager (Jeffers) deceived me by not

telling me who he worked for. Since the Defendant did not

address these claims properly summary judgment should not have

been granted because of a mistake of fact in the record." Mot.

for Recon. at 21-22. He asserts that he "effectively alleged"

that SunGard defeated his EEOC complaint by fraud. Therefore, he

contends, no ruling was made on his fraud and misrepresentation

claims.

In Counts 10 and 11 of his amended complaint, Dolan alleged

claims of intentional and negligent misrepresentation based on

his allegation that Jeffers misrepresented himself as working for

Global Compliance Services rather than as a vice president at

SunGard. He alleged a separate fraud claim in Count 13 based on

circumstances surrounding his EEOC complaint. All of Dolan's

fraud and misrepresentation claims were considered in the summary

judgment order, and summary judgment was entered on those claims

in favor of SunGard.

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8

D. RSA 275:56

In the summary judgment order, the court explained that

while Dolan was seeking money damages for SunGard's alleged

violation of RSA 275:56, neither party had addressed an implicit

cause of action under the statute that would permit that remedy.

Dolan was given an opportunity to address the question of whether

his asserted cause of action existed under the statute. In

response, Dolan states in his motion for reconsideration that 

his "intent of adding RSA 275 as a claim was not to get some

separate remedy but to prove there was a retaliatory motive for

the Defendants' actions." Mot. for Recon. at 24. As such, it

appears that Dolan is withdrawing and waiving any claim under RSA

275:56.

Conclusion

For the foregoing reasons, the plaintiff's motion for

reconsideration (document no. 81) is denied. If, contrary to his

statements in the motion, the plaintiff intended to file a

supplemental memorandum to support his claim under RSA 275:56 by

showing that an implicit cause of action for damages exists under

the statute, he shall make that filing on or before March 19,

2008, and the defendant will have twenty days from the date that

memorandum is filed to file its response.

Case 1:06-cv-00043-JD Document 95 Filed 03/06/08 Page 8 of 9
9

The plaintiff moved for an extension of time to respond to

the defendant's supplemental motion for summary judgment,

contending that his motion for reconsideration, if granted, would

affect issues raised in the supplemental motion. The plaintiff

is granted an extension of time to file his response which shall

be filed within twenty days from the date of this order.

Therefore, the plaintiff's motion for an extension of time

(document no. 93) is granted in part as stated herein.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 6, 2008

cc: Kenneth J. Barnes, Esquire

Matthew A. Caffrey, Esquire

William E. Hannum, III, Esquire

Shannon M. Lynch, Esquire

Gary Dolan, pro se

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