UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Priscilla DeHotman

v. Civil No. 04-cv-114-JD

New Hampshire Department

of Corrections

O R D E R

Priscilla DeHotman brings a claim against her former

employer, New Hampshire Department of Corrections, alleging

violation of Title VII of the Civil Rights Act of 1964 due to a

sexually abusive work environment that she contends caused her

constructive discharge. The Department moves for summary

judgment on the grounds that it is not liable for the conduct at

issue and that the conduct was not sufficiently severe or

pervasive to be actionable. DeHotman objects to the Department’s

motion.

Background

Priscilla DeHotman was hired by the Department as a

correctional officer and began work at the Women’s Prison in

Goffstown on February 23, 2001. As part of her training, she was

assigned to work at the Men’s Prison from March 16 to April 8,

2001, before she attended the Corrections Academy. She attended

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The parties did not provide Sgt. Lacerte’s first name. 1

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the Academy from April 9, 2001, through June 1, 2001, when she

was again assigned to the Women’s Prison.

During her assignment at the Men’s Prison, DeHotman worked

on the same shift with Corporal Douglas Tower. Tower frequently

invited DeHotman to go out for coffee after their shifts and

offered to carpool with her, but she declined. He followed her

around while they were at work, and he would at times get close

to her, gesturing and making sighing noises. DeHotman found that

Tower’s behavior was sexually suggestive and offensive. DeHotman

discussed Tower’s conduct with another female employee, who had

similar experiences with Tower, but did not report his conduct to

anyone else.

Beginning in June of 2001, DeHotman worked on the second

shift at the Women’s Prison, which runs from 3 p.m. to 11 p.m. 

The second shift security staff members at that time were

Sergeant Rita Fournier, Sergeant Lacerte, Corporal Gerard

Lagasse, Corrections Officer Tina Furgal, Corrections Officer

Tricia Ford, Corrections Tina Caza (Pettine), and DeHotman.1

Lacerte and Lagasse were the only male staff members on the

second shift. Nurse Jean Chapman also worked on the second

shift. While DeHotman was there, Fournier moved to first shift;

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Lacerte was promoted to lieutenant and moved to first shift, and

Sergeant Vincent Watts replaced Lacerte. Ford was promoted to

corporal, and Corrections Officer Wanda Davis was added to the

second shift staff. In addition, on January 4, 2001, Douglas

Tower was promoted to sergeant and assigned to the second shift

at the Women’s Prison. 

The second shift socialized together after work and tried to

include DeHotman in their weekly gathering at Lagasse’s home. 

DeHotman always declined their invitations, although she felt

pressured to participate with them. DeHotman felt that the other

staff members thought she was not a team player. She also heard

about the socializing at work when the staff discussed their

gatherings and drinking activities.

The second shift staff planned a brunch for Fournier in

October of 2001 when she moved to the first shift. DeHotman was

invited and was assigned to bring a fruit salad. She contributed

to the gift, which was lingerie from Victoria’s Secret, and

signed the card for Fournier. The brunch was held at Lagasse’s

home, where the staff usually socialized. While Fournier opened

her gifts, the staff, other than DeHotman, reminded her of the

“rule” that she try on the lingerie. Fournier then put on the

lingerie and modeled it for the staff. Furgal and Chapman also

modeled the lingerie, and pictures were taken that were then

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brought to work. DeHotman was very embarrassed by the activities

at the party.

In November of 2001, the second shift staff organized a

Christmas party at a Chinese restaurant in Manchester. Fournier

told DeHotman that she was ordered to attend. The staff

exchanged gifts through a “Secret Santa” format. Lacerte

received edible underwear as his gift. Lagasse put the underwear

on DeHotman’s head, which embarrassed and upset her, and a

photograph was taken of her with the underwear on her head. 

Lacerte then put the underwear on over his jeans, and two female

staff members ate the underwear, while kneeling in front of him. 

Lagasse stuffed dinner rolls into the front of his shorts. When

Chapman pulled on a lace jumpsuit she had received as a gift and

began to get up on a table, DeHotman decided to leave. Pictures

of the activities at the Christmas party were brought to work. 

After the Christmas party, DeHotman became more aware of the

sexual overtones in conversations at work. In one incident, 

Lacerte was standing next to DeHotman, and she asked him if he

needed her for something. He answered, “I do, but I’m married –

you know, I’m already married.” DeHotman states that similar

remarks and banter occurred all the time.

When DeHotman learned that Tower was being transferred to

the second shift at the Women’s Prison, she told Ford, Lagasse,

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Fournier, and Lacerte that she could not work with Tower because

he had sexually harassed her when she was in training at the

Men’s Prison. Fournier told DeHotman that she should put up with

him and try to get reassigned to first shift. The others

responded “that’s just the way he is,” that he was just stupid,

and that he had “the Concord mentality.” Despite her complaints,

Tower joined the second shift with DeHotman. He immediately

began asking her out, standing close to her and breathing

heavily, making remarks about her, and following her around the

prison. He asked her to go out for dinner on her birthday and

wanted to bring a cake into work, but DeHotman declined. Tower

brought cake in anyway.

On February 15, 2002, during a second shift briefing

conducted by Tower, he referred to the second shift correctional

officers as “my girls.” DeHotman told him that his remark

offended her, and he said, “Well, my kids.” When DeHotman said

that also offended her, he said, “All right. My bitches.” At a

subsequent briefing, Tower said that he was sorry if he had

offended anyone, but then made comments about looking at inmates’

and officers’ breasts because their name tags were located above

the left breast. Tower also attempted to read sexual jokes to

DeHotman and when she walked away into the briefing room, he

followed and continued to read the jokes during briefing. After

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her complaint to Tower during the briefing on February 15,

DeHotman felt that the other staff members thought she was not a

team player.

During the same time period, DeHotman heard allegations from

inmates that certain staff members were having sexual

relationships with inmates. On Friday, February 22, 2002,

DeHotman talked with Warden Gerry about what she had heard. The

Warden asked DeHotman to speak with the inmates, write down their

statements, and put the report in his mail box by Monday morning. 

One of the inmates was scheduled to be released Monday morning,

February 25, 2002, and DeHotman had arranged to talk with her 

Sunday evening, February 24, 2002. No one else was aware of her

assignment to gather information.

On February 24, 2002, toward the end of the second shift,

Ford ordered DeHotman to accompany an inmate who was being

transported to the hospital by ambulance. Because of her plan to

meet with the inmate, DeHotman refused to go and told Ford to

find someone else. DeHotman did not explain her assignment from

the Warden but instead said she had to leave work by 11 p.m.

because of another commitment after work. When Ford insisted

that DeHotman make the ambulance run, DeHotman agreed to go but

told Ford that she was quitting and cleaned out her locker. Ford

reported the incident, recommending that DeHotman be terminated

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for insubordination. 

DeHotman was not scheduled to work on Monday February 25 and

Tuesday February 26, 2002. Fournier called DeHotman on Monday

morning asking what had happened. DeHotman told Fournier that

she could not work at the prison anymore because Tower was

sexually harassing her. Fournier asked her to come back on

Wednesday, and DeHotman agreed to come in. When she arrived on

Wednesday, she found that her name was not on the duty roster. 

She then talked with the Warden and told him that Tower had been

sexually harassing her and that the others were retaliating

against her. The Warden put his hands over his ears and said

that he was only going to deal with the issue of her

insubordination and nothing else. The Warden gave her a letter

of warning, which was placed in her file, and a three-day

suspension without pay. DeHotman’s appeal of the discipline was

denied. DeHotman resigned on March 17, 2002.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show 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.” Fed. R. Civ. P.

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56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

Discussion

DeHotman contends that she was sexually harassed during her

employment at the New Hampshire Department of Corrections in

violation of Title VII. The Department seeks summary judgment on

the grounds that the conduct was not sufficiently severe or

pervasive to be actionable and was not perpetrated by a

supervisor, that the off-duty socializing was not part of

DeHotman’s employment, that the conduct was not discriminatory,

that no tangible or constructive employment action occurred, and

that no retaliation claim has been alleged or could be proven. 

DeHotman provides no developed response to the issue of a

retaliation claim, which is deemed to be waived, but otherwise

objects to the Department’s motion.

Title VII prohibits discrimination because of sex. Oncale

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v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998). 

Sexual harassment in the workplace that is sufficiently severe or

pervasive violates Title VII. Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 67 (1986). To prove a Title VII claim of a

hostile work environment due to sexual harassment, 

a plaintiff must establish: (1) that she (or he) is a

member of a protected class; (2) that she was subjected

to unwelcome sexual harassment; (3) that the harassment

was based upon sex; (4) that the harassment was

sufficiently severe or pervasive so as to alter the

conditions of plaintiff’s employment and create an

abusive work environment; (5) that sexually

objectionable conduct was both objectively and

subjectively offensive, such that a reasonable person

would find it hostile or abusive and the victim in fact

did perceive it to be so; and (6) that some basis for

employer liability has been established.

Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1st Cir. 2002).

A. Employer Liability

The standard for employer liability depends on whether the

hostile work environment was caused by a supervisor or a coworker. Noviello v. City of Boston, 398 F.3d 76, 95 (1st Cir.

2005). If the plaintiff’s supervisor is responsible, the

employer is vicariously liable unless an affirmative defense is

available. Lee-Crespo v. Schering-Plough, 354 F.3d 34, 43 (1st

Cir. 2003). If the harasser is the plaintiff’s non-supervisory

co-employee, the employer is liable only “if the harassment is

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causally connected to some negligence on the employer’s part.” 

Noviello, 398 F.3d at 95. 

The Department contends that none of the people involved in

the sexual conduct cited by DeHotman was a supervisor within the

meaning of the Title VII. For purposes of Title VII, supervisory

status depends on whether the person has “the authority to affect

the terms and conditions of the victim’s employment,” which

“primarily consists of the power to hire, fire, demote, promote,

transfer, or discipline an employee.” Id. at 96 (internal

quotation marks omitted). In contrast, supervisory nomenclature

or authority to direct work-related tasks are insufficient alone

to show supervisory status. Id. 

In this case, it is undisputed that many of the people

involved in the objectionable conduct held ranks higher than

DeHotman. She was subject to their directions and orders in the

course of her work. The circumstances of this case also show

that failure to comply with the orders of a superior officer

could result in charges of insubordination and a recommendation

of discipline, including termination. The Department

establishes, however, through the affidavits of the Warden and

the Department’s Human Resources Administrator, that none of the

employees involved in the conduct DeHotman describes, despite

their ranks as corporal, sergeant, and lieutenant, had authority

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The Department’s argument is based largely on P. v. Delta 2

Air Lines, Inc., 102 F. Supp. 2d 132 (E.D.N.Y. 2000), which was

reversed by Ferris v. Delta Air Lines, Inc., 277 F.3d 128 (2d

Cir. 2001), where the court held that “[i]t does not follow,

however, that the off-duty nature of the rapes absolved Delta of

all responsibility to take reasonable care to protect co-workers

. . . .” Id. at 137.

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to hire, fire, transfer, demote, promote, or discipline a

correctional officer such as DeHotman. DeHotman provides no

evidence to the contrary. Therefore, no material factual dispute

exists as to whether any of the employees involved in the conduct

pertinent to this case, other than the Warden, were supervisors.

B. Off-Duty Conduct

The Department argues that the conduct that occurred at the

two parties cannot be considered as part of the harassment or

hostile work environment because it did not occur in the

workplace. Contrary to the Department’s argument, courts have

not drawn a bright line between harassment that occurs in the

workplace and harassment that continues outside of the workplace

for purposes of considering a Title VII claim. See, e.g., Reed 2

v. MBNA Marketing Sys., Inc., 333 F.3d 27, 30 (1st Cir. 2003)

(including incident at harasser’s home as part of actionable

conduct); Crowley, 303 F.3d at 307-99 (describing harasser’s

conduct outside of work as part of actionable conduct); see also

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Ferris, 277 F.3d at 137; Dowd v. United Steelworkers of Am.,

Local No. 286, 253 F.3d 1093, 1102 (8th Cir. 2001); CromerKendall v. District of Columbia, 326 F. Supp. 2d 50, 59 (D.D.C.

2004); Parrish v. Sollecito, 246 F. Supp. 2d 342, 350 (S.D.N.Y.

2003). Therefore, the conduct at the two parties is not excluded

simply because it occurred outside of the workplace. 

C. Harassment Based upon Sex

Title VII does not provide a general civility code or

prohibit all verbal or physical harassment in the employment

context. Oncale, 523 U.S. at 80. To be actionable, the

challenged conduct must be based upon the victim’s gender,

meaning that the harassment must expose members of one sex “to

disadvantageous terms or conditions of employment to which

members of the other sex are not exposed.” Id. (internal

quotation marks omitted). 

It is undisputed that both men and women participated in the

sexually suggestive conduct at the two parties. Their conduct

was not particularly aimed at DeHotman. Tower did not attend

either of the parties. Nothing in the record presented here

suggests that the conduct at the two parties exposed DeHotman to

conditions of employment, because she is female, that male

employees did not experience. Her concerns about the clique

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mentality of her fellow employees does not show discrimination

based on her gender. Therefore, the conduct at the parties is

not actionable as sexual harassment.

D. Severe and Pervasive

DeHotman contends that she was sexually harassed by Tower

both while she was a trainee and when Tower was assigned to the

second shift at the Women’s Prison in January of 2002. To be

actionable under Title VII, plaintiffs “must show harassing

behavior sufficiently severe or pervasive to alter the conditions

of their employment.” Penn. State Police v. Suders, 124 S. Ct.

2342, 2346 (2004). The Department argues that Tower’s conduct

does not meet that standard. While the record does not strongly

support DeHotman’s claim, there is enough evidence to allow a

jury to decide whether Tower’s conduct was sufficiently severe or

pervasive to constitute sexual harassment.

E. Constructive Discharge

DeHotman also contends that the Department violated Title

VII by causing her constructive discharge. To prove that claim,

DeHotman must show that both that the harassment was sufficiently

severe or pervasive to meet the Title VII standard for

discrimination and the “working conditions [were] so intolerable

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that a reasonable person would have felt compelled to resign.” 

Suders, 124 S. Ct. at 2354 (internal quotation marks omitted). 

In addition, the offending behavior leading to a constructive

discharge must discriminate against the plaintiff because of her

gender. Lee-Crespo, 354 F.3d at 44 n.5.

In her resignation letter, DeHotman listed several reasons

for her decision to resign. Although sexual harassment by Tower

was one of the reasons, it was not the only reason. The

insubordination charge and resulting discipline, a lack of

attention to her allegations of misconduct by prison staff with

inmates, and what DeHotman perceived as a hostile work

environment were listed as equally important reasons. DeHotman

said that Tower’s harassment had “subsided for a short period,

but has changed very little and is still as offensive.” 

The problems DeHotman cites, aside from Tower’s harassment,

were not gender-based and cannot be considered as part of her

constructive discharge claim. While Tower’s conduct, as

described in the record, may be enough to support a claim of

sexual harassment, that conduct, by itself, was not the reason

DeHotman resigned and is not sufficient to show that her working

conditions were so intolerable that any reasonable person would

have resigned. In fact, DeHotman did not find it necessary to

resign until after the insubordination incident and her concerns

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arose about the Warden’s response to her allegations of

misconduct by staff with inmates. Therefore, the Department is

entitled to summary judgment to the extent DeHotman’s claim is

based on a constructive discharge theory.

Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 8) is granted in part, to the

extent the plaintiff’s claim was based on theories of

retaliation, constructive discharge, or a hostile environment due

to conduct at two parties, and is otherwise denied. Therefore,

the plaintiff’s claim is limited to a theory of sexual harassment

by Sgt. Tower. With the issues raised for summary judgment

resolved, the parties should now use their best efforts to reach

a settlement. The plaintiff’s motion to seal (document no. 10),

to which the defendant filed no objection, is granted.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 3, 2005

cc: Michael J. Sheehan, Esquire

Nancy J. Smith, Esquire

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