Bournival, Inc., and Richard Bournival
DECISION OF THE COMMISSION
1. Factual Background
Jessica Teates began work as a salesperson for Bournival Jeep, Eagle, GMC, Inc. in October 1996. At the time, complainant was 21 years of age and had no prior experience in auto sales. Richard Bournival was the owner and president of Bournival, Inc. After approximately six weeks employment with respondent, complainant quit work because she believed respondent was discriminating against her as a woman, by allowing a sexually hostile work environment to exist and by treating her differently than male sales trainees in the closing of deals and sharing of resulting commissions.
Ms. Teates quit her job on November 30, 1996. On March 20, 1997, she filed a timely charge of employment discrimination against Bournival, Inc. with the Commission for Human Rights. Bournival, Inc. was served with notice of the complaint and was represented thereafter by Attorneys Christina Nguyen and Warren Nelson of the law firm of Fisher & Phillips, of Newport Beach, California.
usual procedure, the Commission requested that complainant submit a
detailed statement of her claim, a list with information regarding each
proposed witness, and a statement of harm suffered as a result of the
alleged discrimination. On May 30, 1997, complainant's attorney, Nancy
Richards-Stower, Esquire, submitted the requested information to the
Commission. Attorney Richards-Slower, as required, sent a copy of her
client's detailed statement to respondent's attorneys. However, by error,
a copy of complainant's witness information was included in the
information sent to Fisher & Phillips.
The witness information, which is confidential pursuant to Commission Rule Hum 208.01(6), was clearly marked as such at the top of the first page. Several witnesses, including Richard Bournival, were listed by complainant. Bournival was listed as a hostile witness, and Attorney Richards-Stower included information regarding Bournival supplied by her client which she believed showed, among other things, how Bournival treated his employees, and that Bournival could have intimidated witnesses.
Respondent's counsel, upon receipt of the May 30, 1997 confidential witness information, neither notified Attorney Richards-Stower immediately, nor returned the material. Instead, Fisher & Phillips sent a copy of the material to Richard Bournival and thereafter began a campaign to remove the information from the Commission's file.
On June 11, 1997, Attorney Nguyen sent a letter by mail and facsimile to Attorney Richards-Stower notifying her that the material had been received and that the "accusations" in it were "outrageous and unsound in fact," and that Nguyen believed that publishing the statements without attempting verification was "sanctionable." On June 11, 1997 Attorney Richards-Stower faxed a response and asked Attorney Nguyen to return the letter and any copies and to remind her client that "any action taken against past or present employees in retaliation for their cooperation in an investigation of state or federal sexual harassment or gender discrimination is itself an unlawful act, subjecting the retaliating party to the full panoply of remedies."
On July 9, 1997, Fisher & Phillips, on behalf of Bournival, Inc. and Richard Bournival sent ex parte letters to each of the seven Human Rights Commissioners and requested that the complainant's confidential witness information be "excluded from the file." Respondent requested that the information regarding Richard Bournival be excluded because it was "irrelevant and false." Attorney Nguyen stated in her letter to the Commissioners that her client was currently considering independent legal action against Attorney Richards-Stower for her publication of "these slanderous lies."
On July 10, 1997, Attorney Lawrence Gormley wrote to complainant's attorney on behalf of Richard Bournival. Attorney Gormley, like Attorney Nguyen, argued that the material submitted to the Commission was untrue and irrelevant to the Commission investigation. He advised complainant's attorney to remove the material from the Commission file within two weeks or before an investigator was assigned to the case, whichever occurred earlier, and to issue a written apology to Mr. Bournival, conceding that the information was untrue and promising not to publish the information again. In return for Attorney Richards-Stower's doing as directed, Attorney Gormley indicated that he was authorized to release Richards-Stower from any further claim. If Ricliards-Stower declined, Attorney Gormley indicated he would "be required to proceed," i.e. bring legal action.
Attorney Richards-Stower then wrote to Fisher & Phillips on July 17 and to Attorney Gormley on July 18. Her message to both was the same: that she requested the return of the confidential letter sent by mistake, and that the misuse of the confidential information to attempt to pressure her into withdrawing evidence she believed to be pertinent to the proceeding before the Commission was a violation of RSA 354-A:11.
On July 29, 1997, Attorney Richards-Stower wrote to the Commission investigator assigned to the case. She enclosed with her letter copies of two police reports of complaints filed against Richard Bournival by two different individuals who alleged that Bournival had threatened them. Thus, Attorney Richards-Stower corroborated to some extent the information provided in her May 30th witness information.
On August 28, 1997, Richard Bournival filed a civil action for defamation against Attorney Richards-Slower in Rockingham County Superior Court. The stated basis for the action was the filing of complainant's confidential witness information with the Commission for Human Rights, which information Mr. Bournival believed to be "false and irrelevant," and therefore filed in order to "unfairly bias the perspective of the investigator assigned to the case."
Ms. Teates subsequently filed an amendment to her charge of discrimination charging Richard Bournival and Bournival, Inc. with violations or RSA 354-A:11, Interference, Coercion or Intimidation, and RSA 354-A:19, Retaliation.
Mr. Bournival's defamation action against Attorney Richards-Stower was dismissed by the Superior Court on December 21, 1998. Citing McGranaghan v. Dahar, 119 N.H. 758 (1979) the Court (Judge Murphy) ruled that statements made in the course of judicial proceedings are absolutely privileged from defamation actions, provided the statements are pertinent to the subject of the proceedings. Judge Murphy found the statements in complainant's May 30th witness information letter to be pertinent.
II. Legal Standards
NH RSA 354-A:11 provides that "it shall be an unlawful discriminatory act to coerce, intimidate, threaten or interfere with any person in the exercise of or enjoyment of, or on account of having exercised or enjoyed, or on account of having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this chapter."
Under RSA 354-A:19, it is an "unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to discharge, expel or otherwise retaliate or discriminate against any person because the person has opposed any practices forbidden under this chapter or because the person has filed a complaint, testified or assisted in any proceeding under this chapter."
This language of RSA 354-A:19 is nearly identical to the language in §704(a) of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §2000e-2, et seq.). Two general classes of behavior are protected: opposition to discrimination and participation in any proceeding under this chapter. Federal courts interpreting the requirement for each class have stated that, for opposition-type activity to be protected, it must be reasonable, and the complainant must have had a good faith belief that discrimination had occurred. On the other hand, protection for participation-type activity is not limited, and there is no requirement of good faith or reasonableness. See: Hochstadt v. Worcester Foundation, 13 FEP Cases 804 (1st Cir.l976).
The complainant may prevail in her discriminatory practice claim by proving a violation of law through either direct or circumstantial evidence. Direct evidence of retaliation or interference could be any written or verbal statements made by respondent or respondent's agents which on their face demonstrate a motive to retaliate or interfere and which are linked to the retaliatory or interfering action(s) complained of. It is not limited to evidence from which no inferences need be drawn; rather it is evidence that "relates to action or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of." Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990).
An unlawful employment practice is established through a showing that retaliation or interference was a motivating factor, even if other factors also motivated the respondent's actions.
Proof of discriminatory motive through direct evidence shifts the burden of persuasion to the respondent, who must then prove that it would have made the same decision absent the discriminatory motive. Smithy. F.W. Morse & Co., 76 F. 3d 413 (1st Cir. 1996), 69 FEP Cases 1687, 1691.
If evidence is insufficient to constitute direct evidence of discrimination, the complainant may establish her prima facie case through circumstantial evidence following the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.792, 802 (1973). Under this framework and on the facts alleged in this case, complainant would have to show:
(1) that she engaged in protected activities,
(2) that respondent was aware of her protected activities,
(3) that respondent took adverse employment action or otherwise retaliated against, interfered with, or attempted to interfere with complainant, and
(4) that respondent's adverse action followed complainant's protected activities within such period of time that retaliatory motivation can be inferred, or that other evidence exists which tends to show illegal motivation.
See: Hochstadt v. Worcester Foundation, 11 FEP Cases 1426, 1431 (D. Mass.) 1976.
If complainant establishes this basic circumstantial case, a rebuttable presumption of retaliation and/or interference arises. Respondent may rebut by rebutting the essential facts of the prima facie case, or by showing that it had a legitimate, nondiscriminatory reason for the action taken. If respondent articulates such a legitimate reason, complainant then has the burden of showing that respondent's reason is a pretext.
Complainant has attempted to establish both her claim of retaliation and her claim of interference through direct evidence. The evidence is clear that complainant engaged in the protected activity of opposing discrimination by filing a charge of discrimination with the Commission. Complainant engaged in the protected activity of participation in a proceeding under RSA 354-A, by hiring an attorney to represent her, and by responding to the Commission's request for further information in support of her charge, including supplying a confidential list of witnesses and witness information.
Although it had not raised this issue previously, the respondent at hearing claimed that complainant had not filed her charge in good faith. The testimony of Ms. Teates and her mother, together with the evidence contained in the investigative report on the sexual harassment charge (Respondent's Exhibit 14), clearly establish that in filing her charge, complainant was acting reasonably and had a good faith belief that discrimination occurred.
There is direct evidence that respondent Bournival, Inc. and, later, Richard Bournival took adverse action against the complainant after she engaged in protected activity, by filing a defamation action in Superior Court against her attorney. This action had the potential to force complainant's attorney to withdraw from the case. Such a withdrawal would have been devastating to complainant because of the trust she placed in her attorney and because her attorney believed her. Complainant and her mother credibly testified that had her attorney been forced to withdraw, complainant would not have continued with her charge.
Likewise, direct evidence shows that respondents attempted to interfere with complainant's ability to proceed with her claim before the Commission as follows: by demanding that material regarding witnesses which complainant believed was pertinent be withdrawn, by threatening complainant's attorney with civil action if she did not remove the witness material and apologize, by communicating ex parte with all seven Commissioners and, again, attacking complainant's attorney and attempting to get the Commissioners to remove evidence from the case file, and finally, by bringing suit against complainant's attorney when she refused to remove evidence from the file. While protesting that complainant's confidential witness information was an unfair attempt to bias the investigation, respondents attempted unfairly and inappropriately to influence the Commissioners, three of whom would sit on a panel and hear complainant's case, should the matter go forward for a hearing. The foregoing actions, evidenced by the documentary evidence submitted by both parties in this action, were reasonably likely to deter or to interfere with the protected activity engaged in by the complainant.
The third element in a direct evidence case of retaliation and/or interference is a causal connection between the protected activities of the complainant and the adverse action taken by the respondent. Here, also, the Commission believes that direct evidence supports the complainant's case. The documents submitted by each side, and, in particular, the letters from Fisher & Phillips and Attorney Gormley to Attorney Richards-Stower (Complainant's Exhibits 4, 6, 13), the letters from Fisher & Phillips to the individual Commissioners (Respondents' Exhibit 7), and the writ of summons (Complainant's Exhibit #9), state that the reason why respondent was taking the action then taken, was to obtain the removal of the confidential witness information from the Commission file, and thus prevent it from coming to the attention of the investigator or investigating Commissioner.
The improper motivation underlying the actions threatened in these documents and/or taken by respondents, was only enhanced by the testimony. Attorney Gormley's deposition was submitted as part of complainant's case. In it, Gormley confirmed that his client did not want the confidential witness material in the file at the Commission because he was concerned, in part, about the effect such allegations would have on the Commission investigator's view of the case. He was also concerned about future charges against his client which might be brought at the Commission.
At the hearing, Attorney Gormley testified as to his client's motivation in bringing the defamation action. He stated that his "first concern" was the Commission investigator who would see the allegations [in the May 30th witness information]. Although he mentioned being concerned that the letter might become part of a public record, Attorney Gormley conceded that he had not researched whether the Commission's records were accessible to the public, or whether provisions existed under the Commission's rules to prevent disclosure of such documents. Finally, although the statute of limitations on defamation actions was known by Gormley and Bournival to provide a filing period of several years, Gormley testified that waiting to file suit was not an option because the "immediate need was to deal with the Commission file," where he and his client did not want "allegations to lay around and take root."
Richard Bournival also testified at the hearing. He confirmed that the purpose of the letters his attorneys sent to individual Commissioners "was to remove the false letter from the file." He also testified that he understood that the message Attorney Gormley was sending to Attorney Richards-Slower was that he would sue her if she did not remove the letter and apologize to him. When questioned whether his attorney had sought any assurances from the Commission that the material in the May 30th letter would not be disclosed outside the Commission, Bournival stated that "it wasn't enough, we wanted it out of the record." Bournival stated that he knew that a copy of his attorneys' July 9th letter to individual Commissioners should have been copied to Attorney Richards-Stower.
Finally, while insisting that the information in the disputed May 30th letter is totally false, Bournival in his testimony conceded that there was a "grain of truth" in the rumors which made up much of the information contained in the letter.
Respondent's defense to the charges of retaliation and interference contains three elements:
1) that complainant's charges fail as a matter of law because no adverse employment action was taken and complainant wasn't an employee when her lawyer was sued; complainant engaged in no protected activity because the statements in the May 30th letter were irrelevant and false; and complainant cannot demonstrate sufficient causal connection between her protected activity and respondent's action because respondent has offered valid reasons for filing his defamation suit, whose sole intent was to assert his constitutional right to utilize the court system to redress a wrong;
2) that even if complainant can state a prima facie case, complainant cannot demonstrate pretext because respondent has a legitimate reason for his action, i.e. right to justice; and
3) complainant cannot state a claim of interference pursuant to RSA 354-A:11 because complainant had no right to defame respondent and complainant refused to remove false and irrelevant documents from the Commission file.
The Commission does not find merit in any of these arguments.
RSA 354-A:19, Retaliation, uses the terms "discharge, expel or otherwise retaliate or discriminate..." in describing prohibited actions under that section. The word "otherwise", meaning "in another way", takes retaliatory action beyond actions pertaining solely to employment. In Robinson v. Shell Oil Company, 117 S. Ct. 843 (1997) the Court ruled that the term "employee" included former employees for purposes of retaliation. Therefore, complainant can bring a claim for retaliation even though her employment has ended.
Parties must be able to submit evidence which they believe is pertinent to the proceeding before the Commission, without the requirement that it ultimately prove material. The determination whether allegations are relevant and/or supported by evidence must be made by the Commission, not by the parties.
While respondent has offered his constitutional right to redress of wrongs and clearing his reputation as valid reasons for bringing a defamation action against Attorney Richards-Stower, the evidence does not support a finding that these were respondent's reasons. The timing of respondent's suit was designed to interfere with complainant's pursuit of her sexual harassment complaint. The direct evidence, contained in letters from respondents' counsel, in deposition testimony, and hearing testimony, overwhelmingly supports a finding that respondent threatened the defamation action in order to get the May 30th letter out of the Commission file, and then brought the civil action because complainant's attorney refused to comply. Respondent had alternatives to suit, but did not explore them. Although claiming to be damaged by the publication of the information in question to the Commission, respondent re-published the information by bringing his defamation action. Finally, although claiming that his motive was solely to "redress" the wrong of publication, respondent did not simply file a defamation action. He initiated threatening letters to complainant's attorney and communicated ex parte with Commissioners, all in an effort to get the May 30th witness information out of the file.
Respondent's defense to complainant's charge of interference is similarly weak. Respondent's defamation suit has been dismissed. More importantly, parties to charges before the Commission must be able to submit unflattering information about each other without fear of defamation charges should the information ultimately prove irrelevant. Without such protection, the ability of parties to bring complaints, respondents to rebut them, or the Commission to determine the truth, will be severely, if not totally, undermined. Parties to charges of discrimination cannot unilaterally decide what evidence is "irrelevant" or "false" and demand its removal upon threat of suit. Parties cannot ignore well-known codes of conduct and approach judicial officers on an ex parte basis to demand the removal of materials from case files. The actions of the respondents in this regard constituted intimidation, threatening, and interference.
The complainant has proven her claim of retaliation and interference by direct evidence, and the basic elements have not been rebutted by respondent. Nor has respondent shown that it would have taken the same action absent the retaliatory and interfering motivation. The McDonnell Douglas framework is not applicable to this case. Even if the Commission analyzed these claims under the McDonnell Douglas framework, the evidence shows that the reason offered by respondent for its actions, defense of respondent's reputation through a defamation action, is a pretext for retaliation and interference. A defamation action, which may be appropriate and legitimate in certain circumstances, is illegitimate when filed for motives of retaliation and intimidation, as was the case here.
Accordingly, the Commission finds that Bournival, Inc. and Richard Bournival discriminated against Jessica Teates by retaliating against her in violation of RSA 354-A:19, and by intimidation, threatening, and interference, in violation of RSA 354-A:11.
V. Award of Damages
Having determined that the respondents have engaged in unlawful practices, the Commission is authorized to order the respondent to pay damages to the complainant. These damages may include compensatory damages and attorney's fees. RSA 354-A-.21, II(d); E.D. Swett, Inc. v. The Hampshire Commission for Human Rights and Leonard Briscoe, 124 NH. 404 (1983). The Commission is also authorized to order the respondents to pay an administrative fine in order to vindicate the public interest. RSA 354-A:21, II(d).
A. Compensatory Damages
The Commission finds that Jessica Teates suffered stress, tension, anxiety, sadness, and inconvenience as a result of unlawful retaliation and interference by respondents. She testified that she was mad and nervous when she learned that her attorney was being told that she could save herself by removing evidence from her client's case. She was frightened to learn that her lawyer could be sued while trying to represent her and might have to withdraw. Complainant's mother testified that complainant was terribly upset and devastated when she learned that her lawyer was being threatened with suit. She stated that for one to two months after this her daughter was unable to sleep for one or two nights at a time. Mrs. Teates stated she often observed her daughter crying at night. Accordingly, the Commission orders the respondents to pay the sum of $5,000.00 to compensate the complainant for emotional harm.
B. Administrative Fine
In determining whether to levy an administrative fine and what the amount should be, the Commission has considered the following factors: the nature and circumstances of the violation, degree of culpability, any history of prior violations, and the goal of deterrence. The Commission finds that the respondents ignored the law even after it was quoted to them by Attorney Richards-Stower, and ignored well-known codes of conduct, in their desire to remove offending evidence from the Commission's files. In order to vindicate the public interest and to deter others, the Commission orders the respondents to pay an administrative fine to the State of New Hampshire in the amount of $2,500.00.
C. Attorneys' Fees and Costs
The Commission orders the respondents to pay complainant's reasonable and necessary attorneys' fees and costs in connection with the bringing of her amended complaint of retaliation and interference. Complainant's counsel is ordered to submit a detailed, itemized statement of fees and costs within 20 days of this order. Respondent is granted 10 days from the filing of the statement to object. The Commission will then enter a final order.
D. Total Damages
Respondent is ordered to pay complainant the sum of $5,000.00 with interest plus attorneys' fees and costs to compensate her for emotional harm as a result of respondents' discriminatory practices.
ordered to pay $2,500.00 to the State of New Hampshire.
Chair for the Hearing Commissioners
John J. Coughlin, Esquire
Commissioner Maureen R. Manning, Esquire
FINDINGS OF FACT AND RULINGS OF LAW
SUBMITTED BY COMPLAINANT
Proposed Findings of Fact:
2. Granted, as to complainant's feeling, without finding that the actions constituted sexual harassment
11. Denied, the letter speaks for itself
17 a. Granted
23 a-j Granted
First 24a Granted
24e Granted, but change words "the other motivation" to "another motivation"
Second 24a Granted
as to intimidation, threatening and interference, but not coercion
25a. Granted but substitute "offered not to file defamation suit" for "offered to not prosecute her"
27. Granted, but delete words "substantial" "humiliation"and "loss of enjoyment of life"
30e. Granted, but delete "not only", insert a period after "Richards-Stower", and delete everything after the period.
31 . Granted, but delete "extremely", insert a period after "new counsel", and delete everything after the period.
32. (first #32) Granted
33. (Second #32) Granted
34. (First #33) Granted
35. (Second #33) Granted
Conclusions of Law
la. Denied, unclear
4. Granted, deleting the word "coercion".
5. Granted 6a. Granted 6b. Granted
7. Granted as follows: "An otherwise appropriate lawsuit filed for inappropriate reasons such as retaliation or an intent to interfere, threaten, coerce or intimidate, constitutes retaliation under Title VII and the provisions of RSA 354-A:19 and 354-A:11."
12. Granted, with the word "coercion" deleted
14. Granted, with words "pain", "humiliation", "loss of enjoyment of life" deleted.
19. Granted, but second sentence deleted.
as follows: "Accordingly, the Commission awards the complainant: $5000 in
compensatory damages for stress, tension, anxiety, sadness, and
inconvenience. The Commission makes no award of enhanced compensatory
21 a. Granted
22. Granted, relating to complainant's lawyer's representation of her in the retaliation and interference claims only.
23a. Granted, although the Commission placed little weight on such evidence
23a. (second) Granted
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