Burnap v. Somersworth Sch. Dist.

172 N.H. 632

232 A.3d 390

Amy M. BURNAP

v.SOMERSWORTH SCHOOL DISTRICT

No. 2018-0624

Supreme Court of New Hampshire.

Argued: September 18, 2019

Opinion Issued: October 25, 2019

Haughey, Philpot & Laurent, P.A., of Laconia (Samantha M. Jewett on the brief and orally), for the plaintiff.

CullenCollimore, PLLC, of Nashua (Brian J. S. Cullen on the brief and orally), for the defendant.

DONOVAN, J.

The plaintiff, Amy M. Burnap, appeals an order of the Superior Court (Howard, J.) granting summary judgment to the Somersworth School District (District) on her claim of employment discrimination based upon her sexual orientation. She argues that the trial court erred because there are disputed material facts that could allow a jury to determine that the District's stated reason for firing her — sexual harassment — was a pretext for unlawful sexual orientation discrimination because: (1) her colleagues' alleged discriminatory animus infected the District's decision to fire her; and (2) a preliminary investigation conducted prior to the District's decision was a "sham." We affirm because there are insufficient facts in the record from which a jury could find, under either argument, that the District fired the plaintiff because of her sexual orientation and used sexual harassment as a pretext.

I. Facts

The following facts are drawn from the evidence presented to the trial court. The District hired the plaintiff as the Dean of Students at Somersworth High School for a one-year period beginning in July 2015. It is undisputed that the plaintiff "is a member of a protected class of Lesbian, Gay, Bisexual, and Transgender individuals." In January 2016, several instances of purported misconduct involving the plaintiff came to light, setting in motion a sequence of events that culminated in her termination.

On January 15, 2016, a school secretary reported to her supervisor, another dean at the school, that the secretary gestured to the plaintiff with her middle finger, commonly referred to as "flipping someone off." The plaintiff reportedly responded to this gesture by saying "I'm going to say something inappropriate. I probably shouldn't, but I will anyway. I prefer two or three." The secretary interpreted this comment as having a sexual connotation.

Later that day, two other staff members reported to the dean two other incidents involving the plaintiff. In one incident, the plaintiff reportedly stated "that's so hot" when she observed two female staff members hug. In the other incident, the plaintiff reportedly commented "I don't do straight" in response to a student calling her attention to a wall decoration that was hanging off-kilter.

On January 19, 2016, the dean reported these allegations to the District superintendent, who decided to inform the school principal when the principal returned to the school later that week. On January 22, 2016, another staff member reported to the dean that, on the preceding day, the plaintiff made a sexual comment when a school resource officer, during a discussion about handcuff use on students, placed handcuffs on a staff member to see if she could slip out of them. The dean reported this allegation to the principal, and together they presented the superintendent a written summary of the four incidents described above.

Later that day, the superintendent informed the plaintiff that she was being placed on leave until the allegations had been investigated. The superintendent assigned the school principal and the Title IX coordinator to investigate. They interviewed at least nine staff members, and interviewed the plaintiff twice. Their interviews confirmed the allegations and unearthed other instances of purported misconduct. During one such instance, the school secretary described how, when she was dressed in a Batman costume as part of a theme day, the plaintiff looked her up and down and made a sound of approval, which the secretary interpreted as having a sexual connotation. Another staff member reported that on another occasion the plaintiff stated, "it turns me on" when the plaintiff sat in a certain chair, and on yet another occasion the plaintiff commented that the staff member was "smart for a blonde."

During her first interview, the plaintiff acknowledged making the statements "I prefer two or three" and "I don't do straight," but denied making a sexual comment during the handcuff incident, and stated that she did not remember the other incidents. During their second interview with the plaintiff, the investigators believed that the plaintiff intended to intimidate them when she kicked a door stop to close the door to the interview room, and as a result included in their report an allegation of retaliation and intimidation against the plaintiff.¹

The investigators prepared a twelve-page report that described and found credible the allegations of misconduct and retaliation, and recommended that the plaintiff be terminated for violating the District's sexual harassment and ethics policies. On January 29, 2016, the report was submitted to the superintendent, who agreed with its conclusions and recommendation. The superintendent then submitted a recommendation that the plaintiff be terminated to the District School Board for a final decision.

In March 2016, the Board held a hearing over the course of three nights, during which it heard sworn testimony from thirteen witnesses, closing arguments from both parties, and considered exhibits submitted by the parties. Prior to the hearing, the school investigators' report was disseminated to the District's witnesses. The witnesses' testimony recapitulated the instances of alleged misconduct described above. The plaintiff testified and was represented by counsel, who cross-examined the witnesses at length. The Board concluded, in a ten-page decision, that six of the alleged incidents of misconduct were substantiated and violated both the District's sexual harassment and ethics policies. It also found that one allegation, the "I don't do straight" comment, did not violate either of those policies, and that the allegation of retaliation by the plaintiff was unfounded. The Board decided that the plaintiff's actions merited termination.

The plaintiff then brought a breach of contract claim against the District in the superior court, and concurrently pursued a discrimination claim with the New Hampshire Commission for Human Rights and the United States Equal Employment Opportunity Commission. After receiving a notice of the right to sue, the plaintiff filed a discrimination claim and various tort claims in the superior court, which were consolidated with her breach of contract claim. The District then moved for summary judgment on the discrimination and tort claims. In support of its motion, the District submitted affidavits from the nine Board members involved in the determination to terminate the plaintiff, averring that they did not consider the plaintiff's sexual orientation in reaching their decision. In support of her motion opposing summary judgment, the plaintiff submitted an affidavit denying that she did or said any of the acts which the school investigators found constituted sexual harassment.

The trial court concluded that "the evidence does not support a finding that [the District] or its employees were motivated by a discriminatory animus," noting that there was no evidence that the Board members considered the plaintiff's sexual orientation in reaching their decision. Accordingly, the trial court granted the District's motion.² The plaintiff appeals that order, but only with respect to the discrimination claim.

II. Standard of Review

We review the trial court's grant of summary judgment de novo. Clark v. N.H. Dep't of Emp't Sec., 171 N.H. 639, 650, 201 A.3d 652 (2019). Summary judgment is appropriate when the evidence is devoid of genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. We consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Id. Nonetheless, the party opposing summary judgment must do more than merely deny the facts in the moving party's affidavits. Omiya v. Castor, 130 N.H. 234, 237, 536 A.2d 194 (1987). Rather, she must set forth "specific facts showing the existence of a genuine issue for trial." Lake v. Sullivan, 145 N.H. 713, 715, 766 A.2d 708 (2001) (quotation omitted).

In employment discrimination cases, courts must exercise caution when evaluating "elusive concepts such as motive or intent" or whether an employer's stated reason for an employment decision is a pretext. Hodgens v. General Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998). However, summary judgment is appropriate if the plaintiff "rests merely upon conclusory allegations, improbable inferences, and unsupported speculation."

Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015) (quotation omitted).

III. Analysis

The New Hampshire Law Against Discrimination prohibits an employer from discriminating against an individual on the basis of sexual orientation. RSA 354-A:7, I (Supp. 2018). In interpreting RSA chapter 354-A, we are aided by the experience of the federal courts in construing the similar provisions of Title VII of the 1964 Civil Rights Act. See Scarborough v. Arnold, 117 N.H. 803, 807, 379 A.2d 790 (1977).

Federal courts have described two ways a plaintiff can survive summary judgment in employment discrimination cases. See Nichols v. Southern Illinois Univer.-Edwardsville, 510 F.3d 772, 779 (7th Cir. 2007) ; Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). First, a plaintiff can demonstrate "direct evidence" of discrimination. Griffith, 387 F.3d at 736. Direct evidence — which does not, in this context, mean the converse of circumstantial evidence — suggests a strong causal link between the alleged discriminatory animus and the challenged employment decision "sufficient to...