Masso v. City of Manchester et al
Filing
34
///ORDER granting in part and denying in part 14 Motion for Judgment on the Pleadings. Masso's claims against the Manchester School District are dismissed, and the School District is terminated as a party to this action. Masso's claims against the City of Manchester may proceed. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Katherine Ann Masso
v.
Civil No. 11-cv-370-JL
Opinion No. 2012 DNH 062
City of Manchester,
Manchester Public Television
Service, Jason Cote, and
Manchester School District
MEMORANDUM ORDER
In this employment discrimination action, plaintiff
Katherine Masso has sued her former employer, the Manchester
School District; her current employer, Manchester Public
Television Service (“MPTS”); the City of Manchester, which formed
MPTS; and her supervisor at MPTS, Jason Cote.
Masso alleges that
MPTS, acting at the City’s direction, hired Cote, rather than
her, as MPTS’s Executive Director based solely upon their
respective genders.
She further alleges that although her job is
similar to Cote’s, he is paid more than her, and that she does
not receive overtime pay despite her entitlement to it.
Although
the School District could have prevented these unlawful
employment practices, Masso says, it failed to do so.
Masso seeks to recover from MPTS, the City, and the School
District for gender discrimination in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., and
its state-law analog, N.H. Rev. Stat. Ann. § 354-A; violation of
the federal Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”), and its
state-law analog, N.H. Rev. Stat. Ann. § 275:37; and violation of
the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1) (“FLSA”).1
This court has subject-matter jurisdiction under 28 U.S.C. §§
1331 (federal question) and 1367 (supplemental jurisdiction) by
virtue of Masso’s federal statutory claims.
The City and the School District have moved for judgment on
the pleadings, see Fed. R. Civ. P. 12(c), arguing that under the
facts as pleaded, it was MPTS, not them, that took the allegedly
unlawful employment actions, and that they are therefore not
liable under any of the statutes cited.
In response, Masso
argues that the City and MPTS together constituted a single
employer under the “integrated-enterprise” test set forth in
Torres-Negrón v. Merck & Co., Inc., 488 F.3d 34, 41-43 (1st Cir.
2007), and that the School District, while it did not take the
actions of which she complains, can be held liable because it
allowed those actions to take place.
After hearing oral
argument, the court grants the motion in part and denies it in
part.
In her amended complaint, Masso has alleged sufficient
facts to proceed with her case against the City, but has not
1
Masso has also asserted a separate claim for retaliation
under 42 U.S.C. § 2000e-2 against Cote individually. The
propriety of that claim, which arises from different actions, is
not presently before the court.
2
stated a plausible entitlement to relief against the School
District.
I.
Legal Standard
A motion for judgment on the pleadings under Rule 12(c) is
evaluated under essentially the same standard as a Rule 12(b)(6)
motion to dismiss for failure to state a claim, see Simmons v.
Galvin, 575 F.3d 24, 30 (1st Cir. 2009), which requires that the
complaint allege “enough facts to state a claim to relief that is
plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
II.
School District
Each statute under which Masso asserts claims against the
City and School District prohibits employers from taking certain
actions with respect to their employees, i.e., discriminating
against them in their pay, see 29 U.S.C. § 206(d)(1); N.H. Rev.
Stat. Ann. § 275:37, or their terms of their employment, see 42
U.S.C. § 2000e-2(a); N.H. Rev. Stat. Ann. § 354-A:7, or failing
to adequately compensate them, see 29 U.S.C. § 207(a)(1).
As
just noted, Masso does not allege that the School District itself
took any of these prohibited actions while she was working for
it.
Rather, she alleges that, while the School District had
originally contracted with the City to provide public,
3
educational, and government access television, the School
District later agreed to let the City break that contract in
order to form MPTS--the employer that ultimately took the actions
of which she complains.
The School District allowed the City to
break the contract, Masso avers, even though it “knew or should
have known of the terms of employment” on which Masso would be
hired at MPTS, and “knew or should have known that those terms
would be in violation of federal and state laws prohibiting
gender discrimination, equal pay, and overtime compensation.”
Even accepting at face value Masso’s factually unsupported
and conclusory allegation that the School District “knew or
should have known” that MPTS would violate federal and state
employment laws, those laws do not entitle her to relief against
the School District.
For Masso to state a claim, she would have
to allege that the School District itself discriminated against
her in her pay or terms of employment or failed to adequately
compensate her.
The court has found no authority so much as
suggesting that the statutes under which Masso seeks to recover
might create liability for failing to prevent unlawful employment
actions by unrelated parties, and Masso has cited no authority to
that effect.2
Indeed, the First Circuit has “flatly reject[ed]”
2
Attempting to salvage at least one of her claims against
the School District, Masso suggests in a footnote that the School
District could be held liable under N.H. Rev. Stat. Ann. § 354A:2, XV(d) for “[a]iding, abetting, inciting, compelling, or
4
the argument that an entity that actively “impacts or interferes
with an individual’s employment opportunities” should be held
liable under Title VII, Lopez v. Massachusetts, 588 F.3d 69, 8889 (1st Cir. 2009), and it is difficult to see how passively
standing by while an unlawful employment action occurs would be
treated differently.
The claims against the School District are
accordingly dismissed.
III. City of Manchester
Masso’s claims against the City fare considerably better.
Her theory of relief against the City, as noted, is that it and
MPTS together constituted a single employer, such that liability
for MPTS’s conduct should be imputed to the City.
In interpreting the term “employer” as it appears in federal
employment statutes, courts have developed the “single employer”
doctrine, under which two nominally separate entities “may be so
interrelated that they constitute a single employer subject to
liability.”
Torres-Negrón, 488 F.3d at 40-41.
Though more
coercing another . . . to commit an unlawful discriminatory
practice.” But Masso does not explain, and the court does not
see, how the conduct alleged constitutes “aiding, abetting,
inciting, compelling, or coercing” MPTS to commit an unlawful
discriminatory practice--particularly because knowledge of and
failure to prevent another’s misconduct ordinarily does not give
rise to liability under New Hampshire law. See, e.g., Clearview
Software Int’l, Inc. v. Ware, 2011 DNH 139, 22-24 (citing Coan v.
N.H. Dep’t of Enviro. Servs., 161 N.H. 1 (2010); Marquay v. Eno,
139 N.H. 708 (1995)).
5
commonly used to determine whether an entity may be held liable
under Title VII, see id., the doctrine has also been applied in
actions under both the FLSA, see Arculeo v. On-Site Sales &
Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005), and the EPA (which
is part of the FLSA), see, e.g., Chisholm v. Foothill Capitol
Corp., 3 F. Supp. 2d 925, 933-34 (N.D. Ill. 1998).
While the New
Hampshire Supreme Court has not had occasion to address the
applicability of the doctrine, that court frequently looks to the
interpretation given federal employment statutes when
interpreting its own employment laws, see, e.g., Madeja v. MPB
Corp., 149 N.H. 371, 378 (2003), and for purposes of the present
motion, the parties agree that the doctrine applies in
interpreting those laws as well.
The court of appeals “has not yet decided what test is
appropriate to determine whether an employer is liable under the
single employer theory, but it has identified three recognized
methods for determining whether a single employer exists . . . :
the integrated-enterprise test, the corporate law ‘sham’ test,
and the agency test.”
Torres-Negrón, 488 F.3d at 42 n.8.
The
City’s motion assumes that the integrated-enterprise test
applies, and Masso does not argue for a different test.
“The
factors considered in determining whether two or more entities
are a single employer under the integrated-enterprise test are:
(1) common management; (2) interrelation between operations; (3)
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centralized control over labor relations; and (4) common
ownership.”
Id. at 42.
“All four factors, however, are not
necessary for single employer status,” and “the test should be
applied flexibly, placing special emphasis on the control of
employment decisions.”
Id.
Evaluating the amended complaint3 in
light of the four factors set forth in Torres-Negrón, Masso has
alleged enough facts to state a plausible claim that the City and
MPTS were a single employer under the integrated-enterprise test.
The amended complaint alleges that the City controls MPTS’s
funding, providing it with the sums necessary to pay for its
equipment, facilities, salaries, and other operating expenses.
It further alleges that City employees are responsible for MPTS’s
management, and that the City’s Finance Department and Board of
Mayor and Aldermen manage MPTS’s daily financial operations.
In
addition, the amended complaint alleges that the City itself
established MPTS’s Board of Directors.
Taken together, these
allegations suggest that there is at least some degree of common
management, common ownership, and interrelation between MPTS’s
operations and those of the City.
3
And with respect to the
Both parties have submitted materials that are outside the
pleadings, and not necessarily cognizable on a Rule 12 motion.
Rather than convert the motion to one for summary judgment, see
Fed. R. Civ. p. 12(d), the court has elected to exclude those
materials from its consideration. The court notes, however, that
consideration of these materials would not have changed its
ruling.
7
control of employment decisions--the most important factor in the
analysis, see Torres-Negrón, 488 F.3d at 42--the amended
complaint alleges that it was the City itself, through the Board
of Mayor and Aldermen, that decided the positions that Masso and
Cote would hold and the salary and benefits they would receive.
Indeed, it was allegedly a committee of the Board of Mayor and
Aldermen that met with plaintiff to inform her of the terms of
her employment with MPTS.4
The court cautions that this ruling should not be taken to
suggest that Masso can necessarily satisfy the integratedenterprise test even if every one of these allegations is true.
The degree to which the City controls MPTS’s funding, management,
and operating expenses, and the nature of its influence over
MPTS’s employment decisions, will ultimately determine whether
the City and MPTS constitute a single employer.
The court’s
denial of the City’s motion merely reflects the reality that
4
Counsel for MPTS suggested at oral argument that because
MPTS did not yet exist in May 2010, when the City allegedly took
the unlawful employment actions, MPTS and the City could not
possibly have constituted a single employer at that time. The
amended complaint does not allege exactly when MPTS was created,
though, and this issue was not briefed (MPTS did not file a
memorandum in response to the City’s motion), so the court is
hesitant to address it at this time. In any event, as Masso’s
counsel noted at oral argument, this point may actually cut in
her favor: if MPTS did not exist as a separate entity in May
2010, but decisions regarding employment there were nonetheless
being made at that time, then it would certainly seem as though
the City exercised a great degree of control over MPTS.
8
“because the ‘integrated enterprise’ test involves a detailed
fact driven analysis,” whether a defendant can be held liable as
an employer often cannot be determined on the basis of the
pleadings alone.
Rutter v. Picerne Dev. Corp. of Fla., No. H-07-
3002, 2007 WL 4333618, at *3 (S.D. Tex. Dec. 10, 2007) (citing
cases).
IV.
Conclusion
For the reasons set forth above, the motion for judgment on
the pleadings5 is GRANTED in part and DENIED in part.
Masso’s
claims against the Manchester School District are dismissed, and
the School District is terminated as a party to this action.
Masso’s claims against the City of Manchester may proceed.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:
March 28, 2012
Leslie C. Nixon, Esq.
Robert J. Meagher, Esq.
Allison C. Ayer, Esq.
John C. Kissinger, Esq.
5
Document no. 14.
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