1 Because the United States is not an employer for purposes

of the Americans With Disabilities Act (“ADA”), see 42 U.S.C. §

12111(5)(B)(I), Count II is necessarily limited to a claim under

the Rehabilitation Act, notwithstanding the inclusion of both the

Rehabilitation Act and the ADA in the caption to Count II.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Brenda K. Taite,

Plaintiff

v. Civil No. 08-cv-258-SM

Opinion No. 2009 DNH 005

James B. Peake, Secretary,

Department of Veterans Affairs,

Defendant

O R D E R

Brenda Taite is suing her former employer in six counts,

asserting claims under the Fair Labor Standards Act (Count I),

the Rehabilitation Act (Count II),1 Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq. (Count III), and the

common law of New Hampshire (Counts IV, V, and VI). Before the

court is defendant’s motion to dismiss Counts IV, V, and VI. 

Plaintiff objects. Defendant’s motion is granted in part and

denied in part.

Background

The relevant facts, drawn from plaintiff’s complaint, are as

follows. Brenda Taite is of African-American descent. She began

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2

working in the business office of the United States Department of

Veterans Affairs Medical Center (“VAMC”) in April, 2006. She

shared an office suite with Paula Morin who is Caucasian. Taite

and Morin had the same job title: GS-6 Claims Assistant Office

Automation.

On her first day of work, Taite told her manager, Stephen

Willoughby, that because of her prosthetic leg, she needed a

reasonable accommodation for her disability and a modified work

station. Willoughby responded by providing Taite with a raised

desk, a special chair, and a way to elevate her feet. 

In June, 2006, Taite was involved in a work-related dispute

with Morin. Two days later, Willoughby met with Morin alone in

his office for three hours. Willoughby then had Taite join them

in his office. Morin made a false accusation against Taite, and

Willoughby told them both: “I don’t care if you two hate each

other. Get out of my office and go to work!” (Compl. ¶ 14.) 

Subsequently, Taite complained to Patty Healy, the VAMC Equal

Employment Opportunity (“EEO”) Officer, about her dispute with

Case 1:08-cv-00258-SM Document 16 Filed 01/12/09 Page 2 of 10
2 At a hearing in a civil action Taite brought against

Morin, Taite testified that she had mistakenly reported Morin to

Healey. See Taite v. Morin, Civ. No. 06-cv-428-JM, 2007 WL

1181640, at *4 (D.N.H. Apr. 18, 2007).

3

Morin,2 and further complained that Willoughby had shown

favoritism toward Morin.

In September, 2006, Taite told Willoughby that Morin had

been referring to her as a “girl.” Willoughby responded with a

smile and said: “Oh, I cannot refer to you as my girl?” (Compl.

¶ 16.) Taite objected, stating that she was not a “girl” but a

woman. Willoughby took no action against Morin for calling Taite

a girl.

Later, Taite told Willoughby that Morin, as her timekeeper,

had inaccurately posted overtime to her (Taite’s) paycheck. 

Willoughby told Taite that he was not going to pay her overtime. 

He had, however, paid Morin overtime.

On September 26, 2006, while delivering office supplies,

Morin threw a calendar at Taite which hit her in the face. In

response, Taite telephoned Healey, Assistant Manager Wendy

Decoff, Business Manager Joan Wilmot, Kathy Mason, and Gary

DaGasta to report the incident. When none of them came to her

office quickly enough, Taite telephoned the VA police. Sgt.

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4

Richardson arrived within a few minutes, followed by Decoff and

Wilmot. Wilmot sent Taite home for the rest of the day. While

Sgt. Richardson was questioning Taite about the incident, Decoff

was across the hall with Morin in another office, from which the

sound of laughter was audible.

The day after the calendar incident, Taite went to the Human

Resources office to speak with Kathy Mason. Taite told Mason she

would feel more comfortable if “parameters” could be put in place

to protect her from Morin. Mason telephoned Wilmot, to tell

Wilmot that Taite had come to Human Resources. Shortly

thereafter, Willoughby arrived at Mason’s office. Willoughby

shouted at Taite: “Come on. Come with me. I am not playing

those games.” (Compl. ¶ 23.) Willoughby then escorted Taite to

the Emergency Room (“ER”) of the VAMC where another employee,

Cheryl Stancil, shouted at Taite, saying that she “acts like a

child and that she [Stancil] hopes that she [Taite] loses her

office.” (Compl. ¶ 24.) Taite left the ER crying and, from her

automobile, telephoned Assistant United States Attorney (“AUSA”)

Libby Woodcock, and informed Woodcock of the hostile work

environment she was encountering. The U.S. Attorney declined to

prosecute Morin for the calendar incident. After speaking with

AUSA Woodcock, Taite returned to the ER. She telephoned Mason to

complain about the makeshift office she had been given in the ER,

Case 1:08-cv-00258-SM Document 16 Filed 01/12/09 Page 4 of 10
5

and to inform Mason of Willoughby’s refusal to provide her with

an accommodation for her disability. Mason told Taite that Human

Resources had “no service line authority.” (Compl. ¶ 25.) That

same day, Taite filed an EEO complaint based upon the calendar

incident and her removal to an office without accommodations. 

On September 29, Taite returned to her former office to

retrieve personal items. There, she asked Willoughby whether he

had moved her, rather than Morin, because Morin is white and she

(Taite) is black. Willoughby became angry, nasty, abusive, and

threatening, and moved close enough to Taite to cause her to step

back. Taite then asked him whether he was going to hit her. He

replied: “I don’t play those games and I don’t want you back in

this office.” (Compl. ¶ 27.) That same day, Taite asked Wilmot

to assign her a timekeeper other than Morin, explaining that

after the calendar incident, she did not want Morin to have

access to her personal information. Wilmot ignored the request.

On October 2, Taite told Willoughby that her new desk had

not been modified to accommodate her disability, and she asked

him why he had refused to modify it. Willoughby responded by

reiterating his previous statement that he did not want Taite

back in the business office. About a week later, Willoughby

moved Taite from the ER to another location. Again, he told

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6

Taite that he did not want her to be in the business office. 

Several days later, Taite asked Wilmot a second time, by e-mail,

to change her timekeeper. Wilmot told Taite that any such

decision was Willoughby’s to make, and she also forwarded a copy

of Taite’s e-mail to another VAMC employee who was not one of

Taite’s managers.

On October 26, Taite was purposefully excluded from a staff

meeting in the business office. At around that same time, she

began to experience back and leg pain she attributes to working

in an office without accommodations, and that was located further

from her parking space than her original office had been. Taite

continued to complain to Wilmot about Willoughby’s discriminatory

treatment, and Wilmot repeatedly referred Taite back to

Willoughby. In late October, Willoughby stopped picking up

Taite’s completed work, which she was not able to deliver to him,

because he had barred her from the business office. 

Shortly thereafter, Taite resigned. She describes her

resignation:

The discriminatory conduct and hostile work

environment created by the VAMC managers, namely, Mr.

Willoughby, Joan Wilmot, Kathy Mason, and Sandra

Davidson, and their failure to accommodate the

Plaintiff’s disability and deal with Ms. Morin’s

assault and the refusal of Mr. Willoughby to pay

overtime pay, forced Plaintiff to involuntarily resign

Case 1:08-cv-00258-SM Document 16 Filed 01/12/09 Page 6 of 10
3 Defendant does not argue that plaintiff is barred from

claiming that she was constructively discharged, for the purpose

of establishing an adverse employment action on which to base her

Title VII claim. Rather, defendant argues only that plaintiff

may not maintain state common-law claims arising out of the same

conduct that supports her Title VII claim.

7

her position as a GS-6 Claims Assistant Office

Automation with the Veteran[s] Affairs Medical Center

in White River Junction, Vermont.

(Compl. ¶ 37.)

Discussion

Defendant argues that Counts IV, V, and VI should all be

dismissed because those claims are preempted by Title VII, due to

plaintiff’s status as a federal employee at the time of the acts

of which she complains. Plaintiff, apparently misunderstanding

defendant’s argument,3 objects to dismissal of Count IV, citing

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). In

Suders, the Supreme Court recognized “that Title VII encompasses

employer liability for a constructive discharge.” Id. at 143. 

But, the Court said nothing about whether a former federal

employee making a Title VII claim based on a constructive

discharge may also maintain a state common-law claim based on the

same conduct. Thus, Suders does not support plaintiff’s commonlaw claims.

Case 1:08-cv-00258-SM Document 16 Filed 01/12/09 Page 7 of 10
8

Defendant, on the other hand, raises an argument with some

merit. Under Title VII, federal employees are protected “from

any discrimination based on race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-16(a). Title VII, however,

“provides the exclusive judicial remedy for claims of

discrimination in federal employment.” Brown v. Gen. Servs.

Admin., 425 U.S. 820, 835 (1976) (emphasis added). Thus, to the

extent that Counts IV, V, and VI assert claims arising out of the

conduct underlying plaintiff’s Title VII claim, and are based

upon defendant’s allegedly discriminatory actions, those claims

are preempted by Title VII. See Pfau v. Reed, 125 F.3d 927, 932

(5th Cir. 1997), vacated and remanded on other grounds, 525 U.S.

801 (1998), pertinent holding reinstated, 167 F.3d 228, 229 (5th

Cir. 1999) (“[W]hen a complaint against a federal employer relies

on the same facts to establish a Title VII claim and a non-Title

VII claim, the non-Title VII claim is ‘not sufficiently distinct

to avoid’ preemption.”); Roland v. Potter, 366 F. Supp. 2d 1233,

1235-36 (S.D. Ga. 2005) (dismissing claim for intentional

infliction of emotional distress that was “wholly derivative from

the alleged conduct giving rise to . . . Title VII claims”)

(citing Chergosky v. Hodges, 975 F. Supp. 799, 801 (E.D.N.C.

1997)).

Case 1:08-cv-00258-SM Document 16 Filed 01/12/09 Page 8 of 10
4 Count IV is captioned “constructive discharge,” but there

is no such cause of action under the common law of New Hampshire. 

Because a claim for wrongful termination may rest on a

constructive discharge, see Lacasse v. Spaulding Youth Ctr., 154

N.H. 246-248-49 (2006) (citing Karch v. BayBank FSB, 147 N.H.

525, 536 (2002)), Count IV is construed as a claim for wrongful

termination under the theory described in Cloutier v. Great

Atlantic & Pacific Tea Co., 121 N.H. 915 (1981).

9

If plaintiff had asserted only a Title VII claim along with

common-law claims arising out of the same conduct or based on the

same basic theory of liability, then defendant would be entitled

to dismissal of Counts IV, V, and VI. But plaintiff has done

more than that. 

In Count IV, her constructive discharge claim,4 plaintiff

asserts that her working conditions were made intolerable by

racial discrimination, disability discrimination, and

Willoughby’s failure to pay her overtime that she was due under

the Fair Labor Standards Act. Thus, the common-law claim

asserted in Count IV is not co-extensive with the Title VII

claim; it is materially broader. So, too, with plaintiff’s

claims for negligent and intentional infliction of emotional

distress stated in Counts V and VI. Read fairly, those claims

assert that plaintiff was unlawfully subjected to emotional

distress resulting from conduct that violated Title VII, the

Rehabilitation Act, and the Fair Labor Standards Act. As with

Count IV, both Counts V and VI arise out of alleged conduct

Case 1:08-cv-00258-SM Document 16 Filed 01/12/09 Page 9 of 10
10

prohibited by federal statutes other than Title VII. Thus, the

preemptive effect of Title VII does not reach the entirety of

plaintiff’s common-law claims. Rather, it merely precludes

plaintiff from proving her common-law claims with evidence of

conduct, such as racial discrimination, that is prohibited by

Title VII. 

For the reasons given, and to the extent described above,

defendant’s motion to dismiss Counts IV, V, and VI (document no.

5) is granted in part and denied in part. Whether the claims

raised in Counts IV, V, and VI are otherwise valid is a question

for another day; the only question before the court now is the

one posed by defendant’s motion to dismiss, i.e., whether Counts

IV, V, and VI are preempted by Title VII.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 12, 2009

cc: Brenda K. Taite, pro se

Seth R. Aframe, Esq.

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