Saunders et al v. Shaws Supermarket Company
///ORDER granting 3 Motion to Dismiss for Failure to State a Claim; denying 6 Motion to to Return Case Back to Keene Superior Court; denying as moot 5 Motion to Extend All Deadlines by 25 days; denying as moot 16 Mot ion for Simple Notice; denying as moot 17 Motion for Help in Having a Court Appointed Lawyer; denying as moot 20 Motion to Delay Ruling on LR 7.1. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe.(lw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
and Teneshia Bonds,
Case No. 21-cv-648-SM
Opinion No. 2021 DNH 161
Shaw’s Supermarkets, Inc.,
O R D E R
James Saunders and Teneshia Bonds originally filed this
action against Shaw’s Supermarkets in the Cheshire County
Superior Court, advancing more than a dozen constitutional,
statutory, and common law claims.
Shaw’s removed the action,
invoking this court’s federal question jurisdiction as well as
its diversity jurisdiction.
Plaintiffs move the court to remand
the case to state court, while Shaw’s moves to dismiss the
complaint for failure to state any viable causes of action.
For the reasons discussed, plaintiffs’ motion to remand is
denied and Shaw’s motion to dismiss is granted.
Standard of Review
In considering a motion to dismiss, the court accepts all
well-pleaded facts alleged in the complaint as true, disregards
any legal conclusions, and draws all reasonable inferences in
the plaintiffs’ favor.
155 (1st Cir. 2017).
Galvin v. U.S. Bank, N.A., 852 F.3d 146,
To avoid dismissal, the complaint must
allege sufficient facts to support a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
standard is satisfied if the facts alleged in the complaint,
along with reasonable inferences drawn from those allegations,
show more than a mere possibility of liability – “a formulaic
recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Germanowski v. Harris, 854 F.3d 68, 71 (1st Cir. 2017).
other words, the complaint must include factual allegations
that, if assumed to be true, allow the court to draw the
reasonable and plausible inference that the defendant is liable
for the misconduct alleged.
See Tasker v. DHL Retirement
Savings Plan, 621 F.3d 34, 38-39 (1st Cir. 2010).
Although the precise factual backdrop to plaintiffs’ claims
is not entirely clear, the essence of the allegations set forth
in their complaint (document no. 1-1) is as follows.
is a white man over the age of forty.
Bonds is an African
American woman over the age of forty.
Both say they suffer from
They met at a special needs program
at Lexington High School, from which they both graduated in
After staying in touch for many years, they began a
relationship approximately four years ago.
In the summer of 2008, Saunders began working for Shaw’s in
Harwich, Massachusetts, where he was employed for about five
After a brief period of employment elsewhere, Saunders
returned to Shaw’s and worked at its store in Yarmouth,
Saunders then helped Bonds get a job at the same
Shaw’s supermarket, where they both worked while living with
In the summer of 2017, Saunders moved to
Keene, New Hampshire, but he continued working in Yarmouth.
Eventually, Bonds joined him in Keene, and both began working at
the Shaw’s supermarket in Hillsborough.
By letter dated September 9, 2020, Shaw’s terminated
Saunder’s employment, effective the following day.
explained the reasons for Saunder’s discharge as follows:
As you are aware, on August 3, 2020, we sent you a
letter in which we notified you we had conducted an
investigation into your conduct on May 17, 2020, and
wanted to discuss the results of that investigation
with you. Before we could have that discussion, you
requested time off from work to obtain treatment. We
granted your reasonable accommodation request and
postponed the discipline process, provided that you
complete a mandatory referral for treatment with our
Employee Assistance Program (EAP), comply with a
treatment plan, and provide a release so that we could
communicate with EAP.
Even though we had provided you with information about
the EAP employee benefit in the past, it is our
understanding that you have not voluntarily taken
advantage of the services. As of the date of this
letter, you have not responded to our letter dated
August 3, 2020 requesting a release, except to
indicate that you had received the letter. Since you
have not provided the release, despite being given 5
weeks to do so, we are forced to assume that you do
not intend to comply.
Therefore, as indicated in our August 3, 2020 letter,
you cannot return to work because you were noncompliant. As a result, we must now report to you in
this letter the results of our investigation into your
conduct on May 17, 2020. The investigation conducted
included your input, interviews with you and a review
of written correspondence that you supplied, as well
as interviews with witnesses. Based on that
information and after due consideration, we have
determined that on May 17, 2020, you came to the store
while you were on vacation and not on the timeclock,
berated the seafood clerk on duty who was closing the
department for the first time, and entered the
department without a hairnet or face mask, which was
contrary to our Food Safety and Sanitation and COVID19 policies. In addition, you inspected the
department, performing off the clock work without
accounting for your time which is contrary to the law
and our policies. Finally, we have determined that
you told the clerk “you are too slow, you are [fu...d]
if I tell you that you are [fu...d] then you are
[fu...d].” Your reported conduct was completely
contrary to our code of business conduct.
Regrettably, this is not your first violation of
Company policies, including our code of conduct. As
recently as January 6, 2020, you were issued a final
written warning for similar conduct, including the use
of the “F” word. As you know, a final warning is the
last step in our progressive disciplinary process
before termination of employment.
Please be advised that your employment has been
terminated effective September 10, 2020 for all of the
reasons outlined in this letter and based on your noncompliance with the mandatory referral (which was
granted in response to your accommodation request).
Dismissal Letter (document no. 3-3).
It appears that Bonds is still employed part-time at the
Shaw’s in Hillsborough.
Plaintiffs’ complaint includes a narrative of how Saunders
and Bonds met, as well as a lengthy recounting of numerous
interactions – both good and bad – that Saunders had with his
superiors, co-workers, and customers at the various Shaw’s
stores at which he had been employed.
Attached to the complaint
is a 32-page, single-spaced email authored by Saunders and
entitled “court part 3 and last chapter, number 5;” a brief note
from Daron Friedman, the counsellor to whom Saunders was
referred by Shaw’s; and a summary statement of the several
claims plaintiffs advance.
As articulated by plaintiffs, those
Violation of Labor Laws
Violation of Free Speech
Violation of Freedom of Assembly
Violation of Personal Happiness
Complaint (document no. 1-2) at 63.
Plaintiffs seek somewhere
between $1.3 and $1.6 Million in damages.
Removal was Proper.
Turning first to plaintiffs’ motion to remand, that motion
must necessarily be denied.
This court has federal question
subject matter jurisdiction because plaintiffs allege claims
under both federal law and the United States Constitution.
28 U.S.C. § 1331.
The court also has diversity subject matter
jurisdiction because the parties are diverse and the amount in
controversy exceeds $75,000.
See 28 U.S.C. § 1332(a)(1).
Shaw’s properly removed the case from state court.
U.S.C. §§ 1441 and 1446.
Plaintiffs appear to claim that Shaw’s defamed and
slandered Saunders when a supervisor “wrongly wrote [him] up for
being off the clock and left out all the details/facts.”
Complaint at 60.
There are, however, no factual allegations
from which the court might plausibly infer that Saunders was
“wrongfully” disciplined or that Shaw’s “failed to exercise
reasonable care in publishing a false and defamatory statement
of fact about [him] to a third party.”
LLC v. Am. Bankers Ass’n, 172 N.H. 528, 532 (2019) (quoting
Cluff-Landry v. Roman Catholic Bishop of Manchester, 169 N.H.
670, 678 (2017)).
As to their claims of racial, gender, age, and disability
discrimination, plaintiffs have failed to allege (and the court
has discerned no evidence in the record) that they exhausted
their administrative remedies by filing a timely charge of
discrimination with either the EEOC or the New Hampshire
Commission for Human Rights.
See, e.g., Thornton v. United
Parcel Serv., Inc., 587 F.3d 27, 31 (1st Cir. 2009)
(“As an initial matter, it is well-settled that an employee
alleging discrimination must file an administrative claim with
the EEOC or with a parallel state agency before a civil action
may be brought.”) (citations omitted).
The time for filing such
charges seems to have expired (at least as they relate to
And, the complaint does not appear to admit of any
equitable exceptions to the exhaustion requirement.
generally Perez-Abreu v. Metropol Hato Rey LLC, 5 F.4th 89, 9192 (1st Cir. 2021) (noting that while the administrative filing
requirement is compulsory, it is not jurisdictional; that
requirement is, then, subject to limited equitable exceptions).
The bases for plaintiffs’ claims of “retaliation,”
“harassment,” and “financial harassment” are unclear.
liberally construed, the allegations in the complaint fail to
set forth the essential elements of any viable causes of action
under either state or federal law.
Similarly, plaintiffs’ claim for “wrongful termination”
fails to state a viable cause of action.
To articulate a trial-
worthy claim that he was wrongfully terminated, Saunders must
plausibly allege: first, that Shaw’s was “motivated by bad
faith, malice, or retaliation in terminating [his] employment,”
Cloutier v. Great Atl. & Pac. Tea Co., 121 N.H. 915, 921 (1981)
(citing Monge v. Beebe Rubber Co., 114 N.H. 130, 133 (1974)),
and, second, that “he was discharged because he performed an act
that public policy would encourage, or refused to do something
that public policy would condemn.”
Cloutier, 121 N.H. at 921
(citing Howard v. Dorr Woolen Co., 120 N.H. 295, 297 (1980)).
While one might conceivably infer the presence of malice from
the allegations set forth in the complaint, there is no
assertion that Saunder’s was fired because he performed an act
that public policy would encourage or because he refused to
perform an act that public policy would condemn.
plaintiffs’ unsupported assertion that Shaw’s violated
unspecified “labor laws” is insufficient to state a viable cause
Finally, plaintiffs’ constitutional claims based upon
asserted violations of their rights to freedom of speech,
freedom of assembly, and personal happiness fail because
plaintiffs have not plausibly alleged that Shaw’s is a state
See generally 42 U.S.C. § 1983.
As this court has
Ordinarily, a federal constitutional violation does
not arise when a private citizen acts. For example,
barring unusual circumstances, a private employer does
not violate the First Amendment rights of its
employees by implementing a policy preventing
employees from displaying political placards, slogans,
or bumper stickers in their offices. See generally
Denver Area Educ. Telecoms. Consortium v. FCC, 518
U.S. 727, 737, 116 S. Ct. 2374, 135 L. Ed. 2d 888
(1996) (“We recognize that the First Amendment, the
terms of which apply to governmental action,
ordinarily does not itself throw into constitutional
doubt the decisions of private citizens to permit, or
to restrict, speech.”); Hudgens v. NLRB, 424 U.S. 507,
513, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976) (“It is,
of course, a commonplace that the constitutional
guarantee of free speech is a guarantee only against
abridgment by government, federal or state. Thus,
while statutory or common law may in some situations
extend protection or provide redress against a private
corporation or person who seeks to abridge the free
expression of others, no such protection or redress is
provided by the Constitution itself.”) (citation
In other words, the First Amendment protects
individuals against governmental action; it does not
restrict the conduct of private citizens, nor is it
violated when one private actor “suppresses” the
speech of another.
Douglass ex rel. Douglass v. Londonderry Sch. Bd., 372 F. Supp.
2d 203, 207–08 (D.N.H. 2005).
For the foregoing reasons, as well as those set forth in
defendant’s various memoranda, the court is constrained to
conclude that plaintiffs’ complaint fails to plausibly allege
the essential elements of any viable claims.
to Dismiss (document no. 3) is, therefore, necessarily granted.
Plaintiffs’ Motion to Remand to State Court (document no. 6) is
All other pending motions are denied as moot.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
Steven J. McAuliffe
United States District Judge
October 7, 2021
James Saunders, pro se
Teneshia Bonds, pro se
Samuel H. Martin, Esq.
Martha Van Oot, Esq.
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