Morin v. Bearings

2020 DNH 218

Robert J. Morin v. Eastern Bearings, Inc. d/b/a Eastern Industrial Automation

Case No. 20-cv-615-PB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

December 16, 2020

MEMORANDUM AND ORDER

Robert Morin filed a complaint in New Hampshire state court against his former employer, Eastern Bearings, Inc. ("Eastern"), alleging federal and state law causes of action for retaliation, discrimination, and harassment, as well as claims for violations of the Family and Medical Leave Act. After removing the action to federal court, Eastern moved to dismiss the complaint for failure to state a claim upon which relief may be granted. For the following reasons, I grant in part and deny in part Eastern's motion.

I. BACKGROUND

Morin worked for Eastern from 2014 until 2018 as an associate in its domestic sales department in Manchester, New Hampshire. Compl. ¶¶ 7, 10. During most of that time, he worked under the supervision of James Ordeshook. Compl. ¶ 10.

Morin is part Native American and was thirty years old at the start of his employment. Compl. ¶¶ 3, 31. Ordeshook "frequently made fun of" Morin's age, made him feel stupid for asking questions, and expressed hatred for "millennials," complaining about their work ethic and claiming they "could not do anything right." Compl. ¶ 30. Ordeshook also made racist and derogatory comments about many different groups. For example, every year around Columbus Day, Ordeshook referred to Native Americans as "spear chuckers" and "useless leeches on society." Compl. ¶ 31. Morin does not allege, however, that Ordeshook was aware of his Native American heritage.

During his employment at Eastern, Morin associated with his fiancé's autistic brother. Compl. ¶¶ 16, 63. When Morin took time off work to attend a Special Olympics golf tournament with his fiancé's brother, Ordeshook ridiculed him. Compl. ¶ 19. Ordeshook also used the word "retard" frequently within Morin's earshot. Compl. ¶ 18.

Morin's son, who was an infant at the time, had "chronic medical issues," including "ear infections and complications" that required frequent medical appointments. Compl. ¶¶ 11, 37. Whenever Morin took time off work due to his son's illness, Ordeshook either made fun of him, called him derogatory names, refused to speak with him, took commission orders away from him, assigned him non-commission work, told him that other people came to work when their kids were sick, or told his co-workers how much Morin was earning. Compl. ¶¶ 13-14, 21-27. On manyoccasions he denied Morin's requests for unpaid time off to care for his son and never offered him FMLA leave. Compl. ¶ 28. When Morin inquired about paternity leave, Ordeshook ridiculed him. Compl. ¶¶ 25-26. On one occasion in April 2018, Ordeshook instructed Human Resources not to pay Morin for a sick day Morin had taken to care for his ill son. Compl. ¶¶ 37-40. After Morin contacted Human Resources and the Department of Labor about the issue, he was paid for that day. Compl. ¶¶ 39, 41.

On May 16, 2018, Morin sent an email to Human Resources, complaining about "Ordeshook's racist comments, inappropriate and harassing behavior in the office, bullying, and many other issues, including being harassed for requesting information about paternity leave and taking time to attend to relatives with both disabilities and illnesses." Compl. ¶ 45. The next day, Morin met with a representative of Human Resources and elaborated on Ordeshook's offending behavior. Compl. ¶ 46.

On May 18, Human Resources informed Morin that he could be transferred to a position in Eastern's international sales department at a nearby location. Compl. ¶ 52. The new position, however, involved an estimated $15,000-$20,000 less in commissions than Morin was earning at the time, as well as potential international travel, which was unappealing to Morin due to his family obligations. Compl. ¶ 53. When Eastern formally offered him that position on May 21, Morin declined.Compl. ¶¶ 55, 57. The next day, Eastern informed Morin "that it was not an option for [him] to stay where he was, and that he was being moved to the [new position] the next day." Compl. ¶ 58. Later that day, Morin gave Eastern notice that he was resigning effective June 5. Compl. ¶ 59. He was fired the next morning. Compl. ¶ 60. This lawsuit followed.

The complaint alleges six counts: (1) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. ("Title VII"), and its state-law analog, Chapter 354-A of the New Hampshire Revised Statutes, N.H. Rev. Stat. Ann. § 354-A:7 ("Chapter 354-A"); (2) discrimination and harassment on account of age under Chapter 354-A; (3) association discrimination under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and Chapter 354-A; (4) harassment based on race and national origin under Title VII and Chapter 354-A; (5) interference and retaliation under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"); and (5) "intersectional discrimination" under Title VII, the ADA, and Chapter 354-A. Eastern seeks dismissal on all counts. Morin objects. I held a hearing on the motion on August 18, 2020.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must make factual allegationssufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Id. A claim is facially plausible if it pleads "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In testing a complaint's sufficiency, I employ a two-step approach. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I screen the complaint for statements that "merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action." Id. (internal quotation marks and alterations omitted). A claim consisting of little more than "allegations that merely parrot the elements of the cause of action" may be dismissed. Id. Second, I credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then determine if the claim is plausible. Id. The plausibility requirement "simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of illegal conduct. Twombly, 550 U.S. at 556. The "make-or-break standard" is that those allegations and inferences, "taken as true, must state a plausible, not a merely conceivable, case forrelief." Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).

In a discrimination suit, a plaintiff is not required to "plead facts sufficient to establish a prima facie case at the pleading stage." Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). "But this does not mean 'that the elements of the prima facie case are irrelevant to a plausibility determination . . . .'" Germanowski v. Harris, 854 F.3d 68, 72 (1st Cir. 2017) (quoting Rodriguez-Reyes, 711 F.3d at 54). Rather, those elements "may be used as a prism to shed light upon the plausibility of the claim," bearing in mind that plausibility requires pleading "enough facts to make entitlement to relief plausible in light of the evidentiary standard that will pertain at trial — in a discrimination case, the prima facie standard." Rodriguez-Reyes, 711 F.3d at 54.

III. ANALYSIS

Eastern argues that each of Morin's claims fails to state a claim upon which relief may be granted. I address the claims in turn and conclude that Morin has adequately pleaded claims for retaliation under Title VII and Chapter 354-A, as well as age-based discrimination and harassment under Chapter 354-A. The remaining claims are legally deficient.

A. Retaliation (Count I)

Morin claims that Eastern retaliated against him for reporting Ordeshook's harassment by demoting him to a position with less favorable conditions, including significantly less pay and international travel. He contends that this conduct violated both Title VII and Chapter 354-A.

Title VII "prohibits employers from retaliating against employees who report violations of that title." Carlson v. Univ. of New Eng., 899 F.3d 36, 43 (1st Cir. 2018) (citing 42 U.S.C. § 2000e-3(a)). The parties agree that the same standard applies to Morin's Title VII and Chapter 354-A claims. See Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 856 (1st Cir. 2008) ("The New Hampshire Supreme Court looks to and finds 'instructive' federal standards established under Title VII . . . in resolving retaliation claims under N.H. Rev. Stat. Ann. § 354-A."). To establish a prima facie case of retaliation under either law, a plaintiff must show that (1) he engaged in protected conduct; (2) he experienced an adverse employment action; and (3) there was a causal connection between the protected conduct and the adverse employment action. Id. at 856-57. In this context, an adverse employment action is one that "a reasonable employee would have found . . . materially adverse," meaning that such action "well might have 'dissuaded a reasonable worker from making or supporting a charge ofdiscrimination.'" Morales-Vallellanes v. Potter, 605 F.3d 27, 36 (1st Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 54 (2006)); see Madeja v. MPB Corp., 149 N.H. 371, 378-80 (2003). This is an objective standard that requires more than "petty slights or minor annoyances." Carlson, 899 F.3d at 43 (quoting Burlington, 548 U.S. at 68). Examples of actionable conduct include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of...