Wilson v. Calamar Management Group, LLC

Filing 19

ORDER denying 12 Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Vicki Wilson
v.

Civil No. 18-cv-551-JD
Opinion No. 2019 DNH 155

Calamar Management Group, LLC
O R D E R
Vicki Wilson brought suit in state court against her
former employer, Calamar Management Group, LLC, alleging claims
under federal and state law that she was not paid for overtime
and commissions she earned and that she was terminated because
of her age and because she requested her commissions.

Calamar

removed the case to this court and moves for summary judgment on
Wilson’s age discrimination claim under New Hampshire Revised
Statutes Annotated (“NH RSA”) chapter 354-A.

Wilson objects.

Standard of Review
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also

Thomas v. Harrington, 909 F.3d 483, 490 (1st Cir. 2019).

For

purposes of summary judgment, the court considers the facts in
the light most favorable to the plaintiff and draws all
reasonable inferences in her favor.

Roy v. Correct Care

Solutions, LLC, 914 F.3d 52, 57 (1st Cir. 2019).

“An issue is

genuine if it can be resolved in favor of either party, and a
fact is material if it has the potential of affecting the
outcome of the case.”

Leite v. Bergeron, 911 F.3d 47, 52 (1st

Cir. 2018) (internal quotation marks omitted).

“A genuine issue

of material fact only exists if a reasonable factfinder,
examining the evidence and drawing all reasonable inferences
helpful to the party resisting summary judgment, could resolve
the dispute in that party’s favor.”

Town of Westport v.

Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal
quotation marks omitted); Flood v. Bank of Am. Corp., 780 F.3d
1, 7 (1st Cir. 2015).

Background
Calamar provided a factual statement in support of its
motion for summary judgment, and Wilson provided a factual
statement in support of her objection.
taken from those statements.

The following summary is

The facts are undisputed unless

otherwise noted.
Calamar Management Group, LLC hired Vicki Wilson in August
of 2015 as a community manager in the property management
department of the company to work in Londonderry, New Hampshire.
Wilson was fifty-nine years old when she was hired.

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Calamar

represents that of its fourteen community managers, eleven are
over forty years old and three are over sixty years old.
Wilson was paid by salary, which was based on experience
and the cost of living in the job location.

Because of the

increase based on location, Londonderry was one of the highest
salaries for property managers.

Marc Guizzo, who became

Wilson’s supervisor, told her that she was highly paid.
During her employment with Calamar, Wilson worked overtime,
and her overtime hours were approved by management.

For some of

the time she had an administrative assistant, who also worked
forty hours each week.

In November of 2016, after the

Department of Labor changed the overtime rules for salaried
employees, Wilson was changed to an hourly pay base.

Calamar

also ended the administrative assistant’s position.
In February of 2017, Wilson’s manager began to criticize
her for failing to complete her work within forty hours.
Despite the criticism, Wilson continued to submit time sheets
for work in excess of forty hours.

Her manager continued to

approve her hours.
Wilson was terminated in April of 2017, and her overtime
hours were identified as a reason for her termination.

After

her termination, two other property managers filled in her
position while maintaining their own jobs.

Wilson’s position

was then filled with a person who was under forty years old.
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Discussion
Calamar moves for summary judgment on Wilson’s age
discrimination claim under NH RSA 354-A:7, Count I.

The statute

provides as follows:
It shall be an unlawful discriminatory practice:
I. For an employer, because of the age, sex, gender
identity, race, color, marital status, physical or
mental disability, religious creed, or national origin
of any individual, to refuse to hire or employ or to
bar or to discharge from employment such individual or
to discriminate against such individual in
compensation or in terms, conditions or privileges of
employment, unless based upon a bona fide occupational
qualification. In addition, no person shall be denied
the benefit of the rights afforded by this paragraph
on account of that person's sexual orientation.
NH RSA 354-A:7, I.

Therefore, under New Hampshire law, it is

unlawful for an employer to discriminate against an employee
because of her age.
In support of its motion for summary judgment, Calamar
notes that the New Hampshire Supreme Court has looked to federal
cases interpreting federal discrimination laws to interpret NH
RSA chapter 354-A:7, I.

See Madeja v. MPB Corp., 149 N.H. 371,

378-79 (2003) (involving sexual harassment and retaliation) (“As
this is an issue of first impression under RSA chapter 354-A, we
rely upon cases developed under Title VII to aid in our
analysis.”); Scarborough v. Arnold, 117 N.H. 803, 807 (1977)
(involving sex discrimination in hiring) (“In considering what
constitutes proof of discriminatory failure to hire under our

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‘Law Against Discrimination,’ RSA 354-A, . . . it is helpful to
look to the experience of the federal courts in construing the
similar provisions of Title VII of the 1964 Civil Rights Act.”).
Calamar argues that this court should rely on federal cases
addressing the federal Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-34, and should apply the ADEA
standard to Wilson’s age discrimination claim under NH RSA 354A:7, I.

That standard requires a plaintiff to show that age was

the “but for” cause of her termination.

See Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 177 (2009).

Calamar argues that

Wilson cannot prove her age discrimination claim under NH RSA
354-A:7, I, when that standard is applied.
In her objection, Wilson contends that the standard under
Title VII of the federal Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., applies to her claim under NH RSA 354-A:7, I.
That standard provides that a discriminatory motive is shown
“when the complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also
motivated the practice.”

42 U.S.C. § 2000e-2(m).

Wilson

contends that a material factual dispute exists in this case as
to whether her age was a motiving factor in Calamar’s decision
to fire her.

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Wilson also contends the motion for summary judgment must
be denied because Calamar failed to provide evidence to support
its stated reason for firing her.

Calamar filed a reply,

asserting that Wilson lacks evidence to show that her age was a
motivating factor in the decision to terminate her so that her
claim also fails under the Title VII standard.
The New Hampshire Supreme Court has not decided a claim of
age discrimination under NH RSA 354-A:7, I, and, therefore, the
standard applicable to the employer’s motivation for that type
of employment action has not been determined.1

For that reason,

this court, like the New Hampshire Supreme Court, would look to
federal cases addressing discrimination claims under federal law
for guidance as to the applicable standard.

Madeja, 149 N.H. at

378-79; Carney v. Town of Weare, 2017 WL 680384, at *6 (D.N.H.
Feb. 21, 2017) (explaining that federal case law is instructive
when interpreting similar issues under NH RSA chapter 354-A).
As is discussed below, when necessary, New Hampshire uses a
three-step burden-shifting framework to decide cases under NH

In Merrill v. Fall Mountain Regional School District – SAU
60, EA 0313-06, 16D-2006-10091, (signed in September of 2010)
the New Hampshire Commission for Human Rights issued a decision
holding, based on state law policy grounds, that the Gross “but
for” standard did not apply to age discrimination claims under
RSA 354-A:7, I, and instead, the Title VII mixed motive
standard, which has been used for other discrimination claims
under 354-A:7, applied. The Commission also predicted the New
Hampshire Supreme Court would so hold.
1

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RSA chapter 354-A.

The legal standard applicable to the first

two steps of the burden-shifting framework is not disputed.

The

question whether the “but for” standard or the “motivating
factor” standard applies arises at the third step of the burdenshifting framework.

A.

Framework for Deciding NH RSA Chapter 354-A:7 Claims

When direct evidence of discrimination is lacking for a
claim under NH RSA chapter 354-A, the New Hampshire Supreme
Court uses the McDonnell Douglas burden-shifting framework to
evaluate circumstantial evidence.

In re Seacoast Fire Equip.

Co., 146 N.H. 605, 608 (2001) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03 (1973)); E.D. Swett, Inc. v. N.H.
Comm’n for Human Rights, 124 N.H. 404, 409 (1983).

In the first

step of the burden-shifting framework, a plaintiff must make a
prima facie case of discrimination by satisfying four elements
to show discriminatory action.

Id.

The four elements used to

make a prima facie case vary depending on the nature of the
discrimination alleged, beginning with a showing that the
plaintiff is in a protected class.

Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 512 (2002); McDonnell Douglas, 411 U.S. at 802.
If a prima facie case of employment discrimination is made,
a rebuttable presumption of discrimination arises.
124 N.H. at 409-10.

E.D. Swett,

The burden then shifts to the employer in
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the second step to produce evidence that the employment decision
was made for a legitimate and nondiscriminatory reason.

Id.

If

the presumption is rebutted, then, at the third step, the
plaintiff resumes her burden of persuasion to show that the
employer’s stated reason was not the true reason for the
employment decision and that the true reason was discriminatory.
Burns v. Town of Gorham, 122 N.H. 401, 408-09 (1982).

B.

Prima Facie Case

To make a prima facie case of age discrimination, Wilson
must show that she was of advanced age when she was terminated,2
that she was qualified for the job and was meeting Calamar’s
reasonable expectations, that she was terminated, and that
Calamar filled her position with someone younger or did not
treat age neutrally in that selection.

Rodriguez-Cardi, 2019 WL

4010293, at *5; Del Valle-Santana v. Servicios Legales de P.R.,
Inc., 804 F.3d 127, 129-30 (1st Cir. 2015).

Wilson has

satisfied those criteria, and Calamar does not dispute her prima

For purposes of age discrimination under the federal ADEA,
persons who are at least forty years old are protected. 29
U.S.C. § 631(a). NH RSA 354-A:7, I, however, does not include a
minimum protected age. Wilson used the age of forty to show
that she was a member of a protected class based on age. For
purposes of showing a protected class, based on age, the
prohibition against age discrimination in NH RSA 354-A:7, I
would protect persons of advanced age, even though the
protection is not limited to those over forty.
2

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facie case.3

Therefore, a rebuttable presumption of

discrimination based on age has been created.

C.

Calamar’s Reason

To rebut the presumption at the second step of the burdenshifting framework, Calamar must provide a legitimate,
nondiscriminatory reason for terminating Wilson’s employment.
See E.D. Swett, 124 N.H. at 410; Rivera-Rivera v. Medina &
Medina, Inc., 898 F.3d 77, 88 (2018).

Calamar must provide

credible evidence to support the reason it provides.

E.D.

Swett, 124 N.H. at 410; see also Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 257 (1981) (employer must provide
evidence “which would allow the trier of fact rationally to
conclude that the employment decision had not been motivated by
discriminatory animus”).

If Calamar fails to provide credible

evidence to rebut the presumption, the presumption stands, and
Wilson has properly supported her claim.

E.D. Swett, 124 N.H.

410-11.
Calamar states in its memorandum that its legitimate
nondiscriminatory reason for terminating Wilson was that

Calamar does not address the elements of a prima facie
case. Instead, without citing any authority in support, Calamar
argues that because it had other older employees and Wilson
lacks evidence of any harassment based on age, she cannot show
that her termination was motivated by her age. Calamar does not
explain how those observations relate to the prima facie case.
3

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“despite efforts to assist her, multiple warnings and multiple
chances, Ms. Wilson was not managing her time well and was not
completing her job duties.”

Doc. no. 12-1, at *6.

Calamar

cites no evidence to show that the stated reason is credible.
Although Wilson pointed out the lack of evidence in her
response, Calamar did not remedy the lack of evidence in its
reply.4
Because Calamar presents no evidence to support its reason
for the termination, it did not satisfy its burden of production
at the second step.

The analysis stops at the second step, with

the presumption of discrimination unrebutted.5

For that reason,

Calamar has not shown that it is entitled to judgment as a
matter of law on Wilson’s age discrimination claim under NH RSA
354-A:7, I.

Calamar argues, citing Dwyer v. Sperian Eye & Face
Protection, Inc., 10-cv-255-JD, 2012 WL 16463, at *4 (D.R.I.
Jan. 3, 2017), that Wilson bore the burden of providing evidence
at the second step. Calamar is mistaken. The cited part of the
Dwyer decision addressed the third step, after the defendants
provided record facts to support its reason for termination and
rebutted the presumption of discrimination. Id. at *3.
Therefore, Dwyer does not support Calamar’s argument.
4

Because the analysis in this case does not reach the third
step of the burden-shifting framework, the court need not
address the question of whether the Gross “but for” standard or
the Title VII motivating factor standard would apply to the
determination of discriminatory motive in this case. However,
this issue will need to be resolved in the event this case goes
to trial.
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Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 12) is denied.
SO ORDERED.

______________________________
Joseph A. DiClerico, Jr.
United States District Judge
September 19, 2019
cc: Counsel of Record

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