Wilson v. Port City Air, Inc. et al

Filing 23

///ORDER granting 18 Motion to Dismiss for Failure to State a Claim. Counts XII through XIX are dismissed. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

George Wilson
v.

Civil No. 13-cv-129-JD

Port City Air, Inc., et al.
O R D E R
George Wilson brought suit against his former employer, Port
City Air, Inc.; its chief executive officer, Ned Denney; its
president, Robert Jesurum, and another employee.

The complaint

alleges discrimination and retaliation claims under RSA 354-A,
wrongful discharge under New Hampshire common law, and unlawful
employment practices in violation of 42 U.S.C. § 2000e, et seq.,
(“Title VII”).
against them.

Jesurum and Denney move to dismiss the claims
Wilson objects.

Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a defendant
to move to dismiss a claim because it fails “to state a claim
upon which relief may be granted.”

“To survive a motion to

dismiss for failure to state a claim, a complaint . . . ‘must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.’”

Gianfrancesco

v. Town of Wrentham, 712 F.3d 634, --- (1st Cir. 2013) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (additional internal
quotation marks omitted).

The court “separate[s] the factual

allegations from the conclusory statements in order to analyze
whether the former, if taken as true, set forth a plausible, not
merely a conceivable, case for relief.”

Juarez v. Select

Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st Cir. 2013)
(internal quotation marks omitted).

Discussion
Wilson alleges claims under RSA 354-A against Jesurum and
Denney in Counts XII through XIX.

Jesurum and Denney move to

dismiss those claims on the grounds that RSA 354-A does not
provide individual liability for employment claims, because
neither Jesurum nor Denney were named as respondents in the
administrative proceeding, and because the claims are timebarred.

In response, Wilson argues that RSA 354-A does authorize

claims against individuals and that he followed the required
administrative procedures.

A.

Individual Liability Under RSA 354-A:7
RSA 354-A prohibits discriminatory practices in employment,

housing, and public accommodation.
A:17.

RSA 354-A:7; 354-A:10; 354-

Unlawful discriminatory practices include aiding and
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abetting another to commit an unlawful discriminatory practice.
RSA 354-A:2, XV(d).

In addition, RSA 354-A:19 prohibits

retaliation by employers and persons providing housing and public
accommodations against anyone who opposes unlawful practices,
files a complaint, or assists with a proceeding under RSA 354-A.
Wilson alleges that he was discriminated against because of
his race.

RSA 354-A:7 prohibits discriminatory practices, based

on race, by employers, but does not prohibit discrimination by
employees who are not employers.

In Counts XV and XIX, Wilson

alleges that Jesurum and Denney discriminated against him in the
terms and conditions of his employment because of his race.
Wilson mentions in his objection that RSA 354-A:11 also provides
grounds for his hostile work environment claim.1
Port City Air was Wilson’s employer, and Jesurum and Denney
are employees of Port City Air.

Because Jesurum and Denney are

1

RSA 354-A:11 provides: “It shall be an unlawful
discriminatory act to coerce, intimidate, threaten or interfere
with any person in the exercise or enjoyment of, or on account of
having exercised or enjoyed, or on account o having aided or
encouraged any other person in the exercise or enjoyment of, any
right ranted or protected by this chapter.”
RSA 354-A:11 is part of the subdivision of RSA 354-A that
pertains to housing. Given its context, it is far from clear
that RSA 354-A:11 applies to RSA 354-A:7,I. Even if it were
construed to apply, Wilson has not shown that RSA 354-A:11 would
support individual liability in the employment context.
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fellow employees, not Wilson’s employer, they are not liable for
discriminatory practices in employment under RSA 354-A:7,I.2
Despite the plain language of RSA 354-A:7,I, Wilson argues
that the provisions in RSA 354-A for aiding and abetting and
retaliation provide grounds for individual liability for
employment discrimination.

1.

Aiding and Abetting

In Counts XII and XVI, Wilson alleges that Jesurum and
Denney aided and abetted racial discrimination by creating a
hostile work environment for Wilson.

RSA 354-A:2, XV(d) includes

aiding and abetting in discrimination as an unlawful
discriminatory practice.

The New Hampshire Supreme Court has not

addressed individual liability under RSA 354-A:2, XV(d) in the
employment context.
As is noted above, only employers are liable for unlawful
discriminatory employment practices under 354-A.

RSA 354-A:7,I.

Therefore, only employers are liable for the unlawful employment
practice of aiding and abetting discrimination as provided by RSA
354-A:2, XV(d).

See Tuxford v. Vitts Networks, Inc., 2002 WL

2

To the extent Wilson argues that Jesurum and Denney should
be deemed to be his employer, he has not demonstrated that to be
the case. See Bates v. Private Jet Comm. Group, Inc., 2013 WL
865849, at *1 (D.N.H. Mar. 7, 2013).
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31689346, at *3-*4 (D.N.H. Nov. 18, 2002) (discussing RSA 354A:2, XV(d) in show cause order).

As explained above, because

Jesurum and Denney were not Wilson’s employer, they cannot be
liable for aiding and abetting in employment discrimination under
RSA 354-A.

2.

Retaliation

In Counts XIII, XIV, XVII, and XVIII, Wilson alleges that
Jesurum and Denney retaliated against him because he complained
of racial discrimination and filed a charge with the New
Hampshire Commission on Human Rights and the Equal Employment
Opportunity Commission.

RSA 354-A:19 makes it an unlawful

discriminatory practice under RSA 354-A to retaliate for opposing
discriminatory practices and for filing a complaint.

The New

Hampshire Supreme Court also has not addressed the issue of
whether RSA 354-A:19 provides individual liability for employment
claims.
This court has determined that RSA 354-A:19 does not provide
individual liability in the employment context.

Jones v.

McFarland Ford Sales, Inc., 2005 WL 3447954, at *1-*2 (D.N.H.
Dec. 15, 2005).

The reasoning in Rowe v. Thibeault Corp., 2007

WL 3236169 (N.H. Super. July 31, 2007), does not compel a
different conclusion here.
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Because Jesurum and Denney were not Wilson’s employer,
neither is liable for discrimination, retaliation, or aiding and
abetting under RSA 354-A.

B.

Administrative Proceedings
A plaintiff may bring a claim under RSA 354-A as long as

“certain preconditions are met.”

Munroe v. Compaq Computer

Corp., 229 F. Supp. 2d 52, 67 (D.N.H. 2002) (citing RSA 354-A:21a).

RSA 354-A:21-a,I requires that the plaintiff first make a

timely filing of the complaint with the New Hampshire Commission
on Human Rights.

If the administrative procedures are met, the

court may award damages or other relief to the same extent as the
Commission.

RSA 354-A:21-a,I.

“New Hampshire’s statutory scheme, like those adopted by
other states, and like its federal counterpart--Tile VII,
requires a complainant to name all potentially liable parties in
his or her original administrative charge of discrimination.”
Tuxford v. Vitts Networks, Inc., 2003 WL 118242, at *2 (D.N.H.
Jan. 13, 2003).

Failure to do so precludes a claim under RSA

354-A in court.

Id. at *4.

Wilson did not charge Jesurum or Denney in his complaint
filed with the Commission although both were discussed in the
particulars of the complaint, along with other employees.
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In

fact, the form provided by the Commission does not provide space
to name individuals charged with discrimination who are not an
employer, labor organization, employment agency, apprenticeship
committee, or agency.

While Wilson argues that Jesurum and

Denney were on notice of his claims against them based on the
allegations in his complaint, the court is not persuaded that
merely mentioning individuals within the particulars of the
administrative complaint suffices to meet the requirements of RSA
354-A:21-a.
In any case, it is unnecessary to decide whether the
administrative requirements were met, because no cause of action
is available under RSA 354-A against Jesurum and Denney.

Conclusion
For the foregoing reasons, the defendants’ motion to dismiss
(document no. 18) is granted.
Counts XII through XIX are dismissed.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 12, 2013
cc:

Matthew T. Broadhead, Esquire
Adam Clark, pro se
Jacob John Brian Marvelley, Esquire
Paul McEachern, Esquire
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