Salisbury v. The Home Depot

Filing 11

///ORDER granting 5 Motion to Dismiss for Failure to State a Claim. The claims in the complaint are dismissed. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Joan Salisbury
v.

Civil No. 14-cv-260-JD
Opinion No. 2014 DNH 248

Home Depot, U.S.A., Inc.1
O R D E R
Joan Salisbury, proceeding pro se, brought suit in state
court against her former employer, Home Depot, U.S.A., Inc.,
alleging that she was sexually harassed while working at Home
Depot, that she lost her job, and that she was wrongfully
arrested for trespassing.

Home Depot removed the case to this

court and moved to dismiss Salisbury’s claims.

Salisbury was

granted extensions of time to allow her to find representation
and to respond to the motion to dismiss.

As the last deadline

has passed, the motion is resolved as follows.

Standard of Review
In considering a motion to dismiss, the court must “accept
the well-pleaded factual allegations in the complaint and draw
all reasonable inferences therefrom in [the plaintiff’s] favor.”
Van Wagner Boston, LLC v. Davey, 770 F.3d 33, 2014 WL 5326518, at
*6 (1st Cir. Oct. 20, 2014).

The court then determines “whether

the complaint ‘state[s] a claim to relief that is plausible on

1

Joan Salisbury brought suit against “The Home Depot.” Home
Depot represents, and Salisbury does not dispute, that “Home
Depot, U.S.A., Inc.” is its correct name.

its face.’”

Debnam v. FedEx Home Delivery, 766 F.3d 93, 96 (1st

Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

Legal conclusions and mere statements of the elements

of a cause of action are not factual allegations and are not
credited.

Medina-Velazquez v. Hernandez-Gregorat, 767 F.3d 103,

109-110 (1st Cir. 2014).

Background
After her employment was terminated by Home Depot in April
of 2011, Salisbury filed a charge of discrimination with the New
Hampshire Commission for Human Rights, stating that she was
terminated in retaliation for complaining about sexual harassment
by a fellow employee.
Commission.

Her charge was investigated by the

The investigation report, dated June 19, 2012,

concluded that there was no evidence to support Salisbury’s
report of an incident of sexual harassment in 2009 and
insufficient evidence to support her other allegations.
report also stated:

The

“Further the Complainant’s credibility on

all of the issues is undermined by the fact that the Complainant
reported to the Commission and signed and verified a charge form
stating that she was told she was terminated for retaliating
against the Respondent when the record clearly shows that she was
terminated for taking retaliatory action . . . toward another
employee.”

Doc. no. 5-3 at 3.

Joni Esperian, Executive Director of the Commission, sent
Salisbury a letter dated July 2, 2012.
2

Esperian stated that the

investigating commissioner had found no probable cause to support
Salisbury’s charge and that the Commission would close its file
on her charge.

The letter informed Salisbury about appealing the

finding and about requesting review from the EEOC.
Salisbury, proceeding pro se, filed a complaint in state
court on May 12, 2014.

The complaint is a form provided by the

New Hampshire state court system.

On line 3, the form asks the

plaintiff to state the “first thing that happened,” which is to
be provided in one sentence.
“physically/sexually groped.”

Salisbury responded:
Line 4 asks for the second thing

that happened, and Salisbury stated:
sexual comments.”
Salisbury wrote:

“verbally harassed w/

On line 5, as the third thing that happened,
“Sexually harassed/Lost my job & was wrongfully

arrested for trespassing.

I did not trespass.”

Salisbury then

stated that she wanted “Justice & closure” and that she was
seeking “monetary compensation.”

Discussion
Home Depot moved to dismiss the complaint on the grounds
that Salisbury’s discrimination claims are time barred and that
all of her claims lack sufficient factual allegations to state a
claim.

In response, Salisbury filed a statement that she

objected to the motion to dismiss and also filed a motion for a
two month extension to allow her time to obtain counsel.
Depot did not respond to Salisbury’s motion.
3

Home

The court granted

Salisbury’s motion, but before that time expired, Salisbury again
moved for time to find counsel, and again Home Depot did not
respond.

The court allowed Salisbury additional time to find

counsel, but that time has now expired, and Salisbury has not
filed any additional response to Home Depot’s motion to dismiss.

A.

Timeliness of Discrimination Claims
For purposes of the motion to dismiss, Home Depot interprets

the complaint to bring employment discrimination claims under New
Hampshire’s Law Against Discrimination, RSA 354-A.

Home Depot

notes the three-year limitation period for those claims.
354-A:21-a.

See RSA

Because Salisbury’s employment was terminated on

April 29, 2011, and her complaint was filed more than three years
later, Home Depot contends that Salisbury’s claims under RSA 354A are untimely.
Although the complaint does not state the legal basis for
Salisbury’s discrimination claim, the Charge of Discrimination
that Salisbury filed with the New Hampshire Commission for Human
Rights states that she is bringing her claims under RSA 354-A.
Any claims under RSA 354-A are barred by the three-year
limitations period provided by RSA 354-A:21-a, I.

Therefore,

those claims are dismissed.
The letter to Salisbury from the Commission, notifying her
that her complaint was dismissed, states that her charge “was
filed under Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act and/or the Americans with
4

Disabilities Act.”2

Home Depot did not move to dismiss federal

claims on the grounds that they are time barred.

Therefore, to

the extent Salisbury may have intended to bring claims of sexual
harassment and retaliation under Title VII, those claims are not
dismissed as time barred.3

B.

Sufficiency of Claims
Home Depot also moves to dismiss all of Salisbury’s claims

on the ground that she has not pleaded facts to support her
claims.4

Home Depot interprets Salisbury’s complaint to allege

employment discrimination claims under RSA 354-A and a false
arrest claim.

Salisbury does not dispute that interpretation of

her complaint.

2

There is no suggestion in the complaint that Salisbury
claimed discrimination based on age or disability.
3

To avoid confusion, however, to the extent Salisbury
intended to allege a claim under Title VII, to be timely that
claim would have to have been filed within ninety days after she
received a right to sue letter. See, e.g., Taal v. Hannaford
Bros., Co., 211 F. App’x 4, 4-5 (1st Cir. 2006). The letter from
the Commission is dated July 2, 2012, and Salisbury did not file
suit until May 12, 2014. Therefore, any Title VII claim also
appears to be untimely.
4

Again, Home Depot did not address any claim under Title
VII. Because the New Hampshire Supreme Court relies on cases
developed under Title VII to interpret claims under RSA 354-A,
the same standards apply to both claims, which may be considered
together. See Madeja v. MPB Corp., 149 N.H. 371, 378 (2003); see
also Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 856-57 (1st
Cir. 2008); Taylor v. eCoast Sales Solutions, Ltd., --- F. Supp.
2d ---, 2014 WL 3844794, at *5 (D.N.H. Aug. 5, 2014). Therefore,
the claims generally are assessed together. Hubbard v. Tyco
Integrated Cable Sys., Inc., 985 F. Supp. 2d 207, 218 (D.N.H.
2013).
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1.

Discrimination

Title VII prohibits discrimination in the work place based
on sex, which includes a sexually hostile or abusive work
environment.
Cir. 2008).

Billings v. Town of Grafton, 515 F.3d 39, 47 (1st
To be actionable, however, “‘a sexually

objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive
to be so.’”

Id. (quoting Farragher v. City of Boca Raton, 524

U.S. 775, 787 (1998)).

In determining whether an environment is

objectively offensive, the court considers, among other things,
the frequency of harassment, the severity of the conduct, whether
the conduct was physically threatening or humiliating, and
whether the conduct interfered with the plaintiff’s ability to
work.

Billings, 515 F.3d at 48.

Salisbury provides few facts to support her discrimination
claims.5

She say that she was “physically/sexually groped” and

that she was “verbally harassed w/ sexual comments.”

Salisbury

provides no further information about when or how often those
things happened and she does not identify the perpetrator or
perpetrators.

Salisbury also says that she lost her job, but she

does not allege that her termination is related to her

5

Despite the extra time she was given to respond to the
motion to dismiss, Salisbury did not file an amended complaint or
file a substantive objection to the motion.
6

allegations of sexual harassment.6

In the absence of factual

detail about what happened, Salisbury has not provided a factual
basis for a plausible claim of sexual harassment.

2.

False Arrest

Salisbury alleges that she was “wrongfully arrested for
trespassing” and asserts that she did not trespass.

Home Depot

moves to dismiss the claim on the ground that Salisbury has not
alleged facts to support a viable claim.
The Fourth Amendment protects against unreasonable seizures.
U.S. Const. amend. IV.

“The constitutionality of a warrantless

arrest ‘depends . . . upon whether, at the moment the arrest was
made, the officer [] had probable cause to make it.’”

Logue v.

Dore, 103 F.3d 1040, 1044 (1st Cir. 1997) (quoting Beck v. Ohio,
379 U.S. 89, 91 (1964)); see also Holder v. Town of Sandown, 585
F.3d 500, 505 (1st Cir. 2009).

Similarly, the state tort claim

of false arrest requires proof that the plaintiff was arrested
without probable cause.

Hickox v. J.B. Morin Agency, Inc., 110

N.H. 438, 442 (1970); see also Reid v. New Hampshire, 56 F.3d
332, 341 (1st Cir. 1995).

6

“[T]o establish a prima facie case of retaliation under
either Title VII or [RSA] 354-A, the plaintiff must show that (1)
she engaged in a statutorily-protected activity; (2) she suffered
an adverse employment action; and (3) the protected activity and
the adverse employment action were causally connected.” Dennis,
549 F.3d at 856-57 (internal quotation marks omitted).
Salisbury’s allegation that she lost her job does not make out a
prima facie claim of retaliation.
7

Salisbury provides no facts about the circumstances of her
arrest.

She does not allege when or where she was arrested or by

whom she was arrested.

Without the necessary information about

the circumstances of her arrest, Salisbury has not alleged facts
to show that she was arrested without probable cause or that Home
Depot was responsible for her arrest.

Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 5) is granted.

The claims in the complaint are

dismissed.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
December 1, 2014
cc:

Joan Salisbury, pro se
M. Amy Carlin, Esq.
Jeffrey S. Siegel, Esq.

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