M. Jeanne Trott, Esquire

v.

Stephen R. Fine, Esquire and Stephen R. Fine
and Associates

ES(P) 4905-93

DECISION OF THE COMMISSION

Attorney M. Jeanne Trott filed a complaint of discrimination against Attorney Stephen R. Fine and Stephen R. Fine and associates. The complaint alleged discrimination based on her gender, female, in that Attorney Fine had discharged her due to her pregnancy in violation of RSA 354-A:7. Following an investigation. Commissioner Barry J. Palmer found probable cause to believe discrimination had occurred. Because conciliation was unsuccessful, a public hearing was conducted.

A. Background

Attorney Trott began her association with Attorney Fine in 1986. They met at Vermont Law School where the complainant was a law student and respondent was an occasional lecturer. Attorney Trott had been trained as a Registered Nurse and because Attorney Fine concentrated his practice on personal injury and medical malpractice claims, her experience was very valuable to the firm.

The two lawyers developed a positive working relationship in which Attorney Trott's role was to screen new clients, interview them and open new cases. Attorney Fine's role was to be the tactician and overseer. He would also be lead counsel for cases in which litigation was required. The firm generally conducted one trial per year. This arrangement resulted in a successful and lucrative practice. Attorney Fine described the complainant as an excellent attorney and by far the best associate he had ever worked with.

The seeds of the discrimination claim were planted in the fall of 1991. While Attorney Trott was on vacation. Attorney Fine hired an additional associate, contrary to a prior understanding between the two. When Attorney Trott announced that she was pregnant, she perceived a change of attitude on Attorney Fine's part and believed that more work was being shifted to the new male associate.

She left for her pregnancy leave in May, 1992 after her doctor ordered a reduction in work hours due to phlebitis and high blood pressure. After she began her leave. Attorney Fine continued to contact her regarding pending cases, asked her to evaluate additional cases and complained about certain financial issues.

On June 1, 1992, Attorney Trott's baby was born. On June 19, 1992, Attorney Fine called Attorney Trott at home regarding another financial matter. Specifically, he wanted her to return moneys paid to her as commission in a case which had settled. In another aspect of the same case, Attorney Fine was facing a large sum of unreimbursed costs. His call was to ask Attorney Trott to contribute $7500 toward those costs.

An argument ensued in which Attorney Trott stated that she felt cheated as the result of a prior commission distribution in the same case. She asked that the issue be taken up at a later date. Attorney Trott 's husband was upset and became quite vocal as he witnessed his wife's reaction to the telephone call and heard her end of the conversation with Attorney Fine.

In September, 1992, Attorney Trott returned from leave to find her duties drastically reduced. She no longer received incoming calls from potential clients and was given no new cases. Her work was limited to legal research. In a meeting on October, 12, 1992 Attorney Fine informed her that they could no longer work together and that he would not renew her employment contract which expired on October 15, 1992. Subsequently, on April 8, 1993 Attorney Trott filed this complaint of pregnancy discrimination.

B. Legal Analysis

New Hampshire RSA 354-A:7 declares that it is an unlawful discriminatory practice for an employer to discharge or to discriminate against any individual in the terms, conditions or privileges of employment because of that individual's sex. The word "sex" includes pregnancy and medical conditions which result from pregnancy. RSA 354-A:7, VI (a). The statute also requires an employer to permit a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions. When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by the employer unless business necessity makes this impossible or unreasonable. RSA 354-A:7, VI (b).

In determining the parties' respective burdens of proof, the New Hampshire Supreme Court has relied on federal court decisions construing Title VII of the Civil Rights Act of 1964, a statute analogous to RSA 354-A. E.D. Swell, Inc. v. New Hampshire Commission for Human Rights and Leonard Briscoe, 124 N.H. 404 (1983); Helen Burns v. Town of Gorham, 122 N.H. 401 (1982); Scarborough v. Arnold, 117 N.H. 803, 807 (1977).

The complainant may prove discrimination either by establishing direct evidence or through circumstantial evidence. Where direct evidence of discriminatory motive can be shown, the burden of persuasion shifts to the employer to present an affirmative defense that it would have made the same decision even if the prohibited factor had not been considered. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). This analysis applies to the so-called "mixed-motive" cases, where an employer's decision may have been based on both permissible and impermissible reasons.

Lacking evidence in the nature of a "smoking gun", as is the case most commonly, a complainant can still prevail based on indirect or circumstantial evidence by employing the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Swett, supra. Under this approach, complainant can establish a prima facie case of pregnancy discrimination byshowing that (1) she is pregnant, (2) her job performance has been satisfactory, but (3) the employer nonetheless dismissed her from her position while (4) continuing to have her duties performed by a comparably qualified person. Smith v. F.W. Morse & Co., 69 FEP Cases 1687 (1st Cir. Feb. 12, 1996). Establishing the prima facie case raises a rebuttable presumption that the adverse employment action was caused by discrimination and shifts to the employer a burden to present a legitimate, nondiscriminatory defense. If the employer can carry this relatively light burden, the complainant must then prove that the employer's reason is a pretext for discrimination. Complainant retains the ultimate burden of persuasion on the issue of discriminatory intent throughout. Morse, supra at 1691.

C. Discussion

Complainant urges the Commission to follow the Price Waterhouse standard in this case because she asserts she established direct evidence of respondent's discriminatory motive. While it is apparent that the First Circuit Court of Appeals has yet to adopt a clear definition of what constitutes direct evidence of gender discrimination, Morse. 69 FEP cases at 1700 (Bownes concurring), Justice 0'Connor's concurring opinion in Price Waterhouseindicates that "stray remarks in the workplace, statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional process itself" do not constitute direct evidence. Price Waterhouse, 490 U.S. at 277 (O'Connor concurring).

Attorney Trott attempted to establish direct evidence of several types. First, complainant tried to show that Attorney Fine had a negative attitude toward female employees with children by screening applicants through discriminatory questioning and by refusing to accommodate the needs of female employees to care for their children.

The evidence failed to establish this pattern of behavior. If anything, the testimony and documents on this issue suggested the contrary. Numerous witnesses testified to Attorney Fine's positive attitude toward children and his willingness to accommodate the work schedules of employees with young children.

Witness Genii Sanford, a former employee of Fine's testified that Laurie (Badger) Masse, Fine's secretary, made numerous statements to the effect that Attorney Fine decided to fire Attorney Trott upon learning of Attorney Trott's pregnancy. Ms. Masse denied making any such statements. Even if Ms. Sanford's testimony is accepted over Ms. Masse's, there was no probative evidence introduced that Ms. Masse was speaking for the respondent, no link to him was established. Therefore these statements would be characterized, at best, as statements by a non-decisionmaker.

Attorney Trott also alleges that she was treated in a manner inferior to that of the new male associate in that he was given greater responsibility in the major trial the firm was engaged in. While he was asked to draft some procedural motions, evidence showed that he sat in the courtroom during the trial, while Attorney Trott sat at the counsel table and examined witnesses. Her responsibilities clearly were greater.

Complainant argues that respondent's request that she go to the office late at night to type a document and that she go to the office early in the morning to photocopy documents while pregnant constitutes direct evidence of discrimination and was demeaning.

Respondent testified that he did not recall the two incidents specifically but that it sounded like something he might do given that Attorney Trott's residence was close to the office. The Commission finds that this practice was not discriminatory but that this kind of effort can be expected in a small office where everyone must pitch in.

Attorney Trott also complains that Fine's persistent and annoying telephone calls while she was on maternity leave amounted to direct evident of discrimination. Her apparent theory is that this harassing conduct during a vulnerable time was designed to goad her into an unpleasant confrontation. The Commission views this sequence of events differently. The respondent's continuing to involve her in office matters suggests that he expected to continue the working relationship, not to sever it.

The unfortunate set of circumstances which ended the parties' working relationship was actually a confluence of stressful situations. The law office had been very stressful due to the intense preparation including long work hours necessary to prepare for two major trials. Both trials concluded in verdicts for the opposing parties. In the second trial, their client had declined a seven figure settlement offer in favor of going to trial. On the morning of June 19, 1992, Attorney Fine had just been informed by the client that the client was refusing to pay some $80,000 in out-of-pocket costs. Attorney Fine then placed his call to Attorney Trott seeking return of a portion of commission she had previously received.

Attorney Trott was still recovering from childbirth. Her child was not sleeping well. She had informed Attorney Fine in a telephone call the previous day that she was physically and mentally exhausted. Understandably, she was upset by his phone call.

Attorney Fine was very upset by Attorney Trott's statements. In credible testimony. Attorney Fine stated that he interpreted her comments to mean that Attorney Trott did not respect, trust or like him as a colleague and as a person. He felt deeply hurt and insulted. After some thought and consultation, he decided to terminate her employment. He chose to permit her to return from her maternity leave and to work out the balance of her contract. He did not inform Attorney Trott of his decision to terminate their association because he felt it would be imprudent to do so from a business perspective.

Attorney Trott's theory that Attorney Fine decided to terminate her upon learning of pregnancy is not supported by the facts. Had that decision been made prior to her leave, Attorney Fine would not have allowed Attorney Trott to continue to meet almost all of their new clients and to open their new cases. Moreover, during her leave, he referred new cases to her for evaluation and consulted her regarding ongoing matters. While Attorney Fine's conduct, on occasion, could be characterized as insensitive, overbearing and demanding, the Commission does not find that his conduct was discriminatory based on Attorney Trott's pregnancy.

D. Conclusion

Because the Commission does not find direct evidence of discrimination, the Price Waterhouse framework is inapposite. Applying the McDonnell Douglas analysis, the Commission finds that: the complainant has established a prima facie case in that (1) she was pregnant (2) her job performance was satisfactory, but (3) the employer discharged her while (4) continuing to have her duties performed by a comparatively qualified person. The Commission finds that the respondent has rebutted this presumption by establishing a legitimate, non-discriminatory defense, that he declined to renew Attorney Trott's contract because he felt insulted by her remarks to the point he felt unable to work with her any longer. The Commission does not find that complainant has carried her burden to establish the reason for termination was a pretext.

The Respondent's action in terminating the parties' association was unfortunate. It left deep emotional wounds in both parties as is evident from their testimony. Ms. Trott's legal skills and her efforts on the firm's behalf clearly benefited Attorney Fine. Ms. Trott was well compensated for her efforts. Continuing their association may have been in the interest of both parties. The Commission finds that the roots and reasons which led to the filing of this Complaint are not the result of any illegal or discriminatory act by the Respondent but were the result of an unresolved dispute over a commission, which led to a breakdown in the parties' personal and professional relationships at a time when the Respondent and the Complainant appear to have been under considerable emotional strain.

RULING ON COMPLAINANT'S REQUESTS
FOR FINDINGS OF FACT
AND RULINGS OF LAW

FINDINGS OF FACT:

1. Granted.

2. Granted.

3. Granted.

4. Granted in regard to the first sentence.
Denied as to the second sentence.

5. Neither granted nor denied due to evidence which was insufficient and contradictory.

6. Denied.

7. Denied.

8. Denied.

9. Denied.

10. Denied.

11. Denied.

12. Granted.

13. Denied.

14. Denied.

15. The Commission makes no ruling on number 15 because the Commission was not asked to find facts but to rule whether complainant "provided examples" of alleged disparate treatment. The record can speak for itself on the question of whether complainant so testified. A finding that complainant "provided examples" would not be tantamount to finding that the examples constituted facts. Most of these examples are addressed in the decision.

16. The first two sentences are granted. The section stating "although she sent out resumes for weeks, she was not invited for interviews", is denied. The remainder of the sentence is granted.

16-A. Denied.

17. Granted insofar as the law office operated at a net loss during 1993 and 1994.

18. Denied.

19. Denied as speculative and inconsistent, with respondent's tax statements.

20. Denied.

21. Denied.

22. Denied.

RULINGS OF LAW

1. Granted.

2. Granted with the addition of the phrase "unless business necessity makes this impossible or unreasonable". RSA 354-A:7 Vl(b).

3. Denied.

5. Denied.

The Commission will issue no order with respect to numbers 4, 6, 7 and 8.

So ordered.

Commissioner Michael Chamberlain
Commissioner John Coughlin
Commissioner Ralph Brickett

Commissioner Michael Chamberlain
Hearing Chair for the Commission

3/22/96

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