UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bonnie Usher,

Plaintiff

v. Civil No. 07-cv-42-SM

Opinion No. 2007 DNH 150

Cracker Barrel

Old Country Store, Inc.,

Defendant

O R D E R

Bonnie Usher has sued her former employer, Cracker Barrel

Old Country Store, Inc. (“Cracker Barrel”), asserting a Title VII

disparate-treatment claim (Count I), a Title VII hostile-workenvironment claim (Count II), and a state-law claim for negligent

infliction of emotional distress (Count III). Before the court

is defendant’s motion to dismiss Counts I and III, and for a more

definite statement as to Count II. Plaintiff concedes that Count

III should be dismissed, but otherwise objects to the relief

defendant requests. For the reasons given, defendant’s motion is

granted in part and denied in part.

In January 2003, Usher filed charges of discrimination

against Cracker Barrel with the New Hampshire Commission for

Human Rights (HRC), which forwarded her charges to the federal

Equal Employment Opportunity Commission (“EEOC”) for dual-filing

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purposes. In her charge, Usher claimed that Cracker Barrel

subjected her to both disparate treatment and a hostile work

environment. After an investigation, the HRC determined that

there was probable cause to believe that Usher had been subjected

to a hostile work environment from January 1, 2001, through

September 30, 2002, but that there was not probable cause to

believe that Usher had been subjected to a hostile work

environment after September 30, 2002, or that she had ever been

subjected to disparate treatment. After a hearing, the HRC found

for Cracker Barrel. Usher did not appeal to the state superior

court, as was her right under N.H. REV. STAT. ANN. (“RSA”) § 354-

A:22, I. Thereafter, Usher received a “right to sue” letter from

the EEOC. This action followed. 

Defendant contends that all of Count I and much of Count II

must be dismissed because the HRC determined that there was

probable cause only for plaintiff’s hostile-work-environment

claim, and only for a limited time period. That is, defendant

argues that plaintiff’s action in this court must be limited to

those charges and factual allegations for which the HRC found

probable cause. Plaintiff disagrees, arguing that this case is

not a state-law appeal under RSA 354-A:22, I.

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Defendant relies upon Dow v. Sears, Roebuck & Co., 143 N.H.

166 (1998), in which the New Hampshire Supreme Court held that

“because RSA 354-A:22 limits review to ‘orders’ of the commission

. . . RSA chapter 354-A does not allow for judicial review of a

commissioner’s probable cause determinations,” id. at 168

(citation omitted). Dow precludes judicial review of HRC

probable cause determinations in state court appeals, but

plaintiff is not appealing either the HRC’s probable cause

determinations or its ultimate decision. Rather, plaintiff has

brought suit under Title VII in federal court.

Turning to the federal law governing plaintiff’s claims,

Title VII “does not restrict a complainant’s right to sue to

those charges as to which the [EEOC] has made findings of

reasonable cause.” McDonnell Douglas Corp. v. Green, 411 U.S.

792, 798 (1973). Moreover, the United States Supreme Court has

expressly declined to “engraft on the statute a requirement which

may inhibit the review of claims of employment discrimination in

the federal courts.” Id. at 798-99. In addition, while the

provisions of 28 U.S.C. § 1738 require federal courts

adjudicating Title VII claims to afford full faith and credit to

final state-court judgments, see Kremer v. Chem. Constr. Corp.,

456 U.S. 461, 470 (1982), “it is clear that unreviewed

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administrative determinations by state agencies . . . should not

preclude [federal court] review even if such a decision were to

be afforded preclusive effect in a State’s own courts,” id. at

470 n.7 (citations omitted). 

The application of McDonnel Douglas and Kremer to the facts

of this case is straightforward. The HRC probable cause

determinations constitute unreviewed administrative

determinations by a state agency. Therefore, those

determinations have no preclusive effect and provide no basis for

dismissing any part of this action. Accordingly, defendant’s

motion to dismiss Counts I and II is denied. 

Defendant also moves for a more definite statement, pursuant

to Federal Rule of Civil Procedure 12(e), arguing that

plaintiff’s failure to allege the dates upon which any of the

allegedly discriminatory conduct took place makes it impossible

to determine, from the face of the complaint, whether any part of

her claim is time barred. Plaintiff objects, arguing that

“[d]efendant is well aware of the time frame during which the

allegations are alleged to have occurred due to both the prehearing discovery engaged in by the [d]efendant, the various

documents provided during pre-hearing discovery and, most

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importantly, the testimony of the various witnesses at the

[HRC]’s hearing on February 14, and April 5, 2006.” 

Defendant’s entitlement to a more definite statement is

governed by the principles described in Lewis v. Textron Auto.

Co., 935 F. Supp. 68 (D.N.H. 1996). In that case, the court

explained that “[s]ince ‘Rule 12(e) motions are designed to

strike at unintelligibility, rather than at lack of detail in the

complaint . . . a rule 12(e) motion properly is granted only when

a party is unable to determine the issues he must meet.’” Id. at

70 (quoting Cox v. Me. Maritime Acad., 122 F.R.D. 115, 116 (D.

Me. 1988)). The court further explained that “the liberal

pleading requirements of the Federal Rules of Civil Procedure

still require ‘that each general allegation be supported by a

specific factual basis.’” Id. at 70-71 (quoting Flaming v. LindWaldock & Co., 922 F.2d 20, 23 (1st Cir. 1990)).

The specific facts at issue here are the dates of the

alleged acts of discrimination which, in defendant’s view, it is

entitled to learn from the complaint, so that it might move for

dismissal of any claims that are time barred. “[T]he statute of

limitations is formally a defense,” Arturet-Vélez v. R.J.

Reynolds Tobacco Co., 429 F.3d 10, 13 (1st Cir. 2005), and

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defenses must generally be raised in responsive pleadings, see

FED. R. CIV. P. 12(b). However, a statute-of-limitations defense

may be raised in a motion to dismiss under Rule 12(b)(6). See,

e.g., Arturet-Vélez, 429 F.3d at 13; Centro Medico del Turabo,

Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (2005); LópezGonzález v. Municipality of Comerío, 404 F.3d 548, 551 (2005). 

Here, plaintiff’s forty-three paragraphs of factual

allegations do not include reference to a single date upon which

any of defendant’s allegedly discriminatory acts took place. See

Evans v. Port Authority, Civil Action No. 06-3239 (JAG), 2007 WL

3071808 (D.N.J. Oct. 17, 2007) (granting motion for more definite

statement when Title VII plaintiff’s complaint failed to provide

adequate information about dates of alleged discriminatory acts). 

Without adequate time references, the complaint – which is

generally the exclusive source of facts for a Rule 12(b)(6)

motion – fails to provide defendant with the information

necessary to support either an informed or a good faith basis for

filing a motion to dismiss based upon timeliness. It may well be

that the information defendant seeks could be found in the

administrative record from the HRC proceeding. But as plaintiff

herself points out in her objection to defendant’s attempt to

rely upon the HRC’s probable cause determination, this is not an

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appeal from the HRC decision. It is a trial de novo, see Kremer,

456 U.S. at 470, making the HRC proceeding largely irrelevant. 

Moreover, as between plaintiff and defendant, plaintiff is

obviously the better source of information about the claims she

is bringing. See Evans, 2007 WL 3071808, at *14 (“Defendant is

not expected to speculate about [when the alleged acts of

discrimination took place] in attempting to formulate a

defense.”) (citing Thomas v. Independence Twp., 463 F.3d 285, 301

(3d Cir. 2006)). Because “[r]equiring [p]laintiff[ ] to provide

dates will assist [d]efendant in framing a defense, and increase

the efficiency with which this [c]ourt resolves the dispute

between the parties,” Evans, 2007 WL 3071808, at *14, plaintiff

is ordered to amend her complaint, within thirty (30) days, to

include dates and time references from which it can be determined

when the alleged acts of disparate treatment took place, as well

as dates and time references relevant to her hostile-workenvironment claim.

Conclusion

Defendant’s motion to dismiss and for a more definite

statement (document no. 5) is granted in part and denied in part. 

Count III is dismissed. Plaintiff is ordered to file an amended

complaint, within thirty (30) days of the date of this order,

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that includes references to dates and time periods sufficient to

permit defendant to know what is claimed and when events

occurred, and to respond accordingly. Beyond that, defendant’s

motion is denied. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

December 4, 2007

cc: Jennifer R. Jones, Esq.

Lee S. MacPhee, Esq.

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