The following is an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases are not binding on the New Hampshire Supreme Court but do interpret New Hampshire law.
Slater was employed by the town as police prosecutor. Previous police prosecutors had been part-time employees, paid hourly and required to punch a time clock. Slater was the first full-time, salaried prosecutor. Nevertheless, Kane, the chief of police, required her to punch the time clock, and she was closely monitored to make sure she worked forty hours per week. Slater resented this and also noted that she had to park across the street from the police station, with the non-salaried clerical staff, all female, while the salaried sworn police officers, all male, parked near the station. Slater also had to drive to the court house in a salvaged Toyota, sometimes used as an undercover vehicle, while her male predecessor had been allowed to ride in a police cruiser.
Slater complained about the time clock to her immediate supervisor, a police lieutenant, and to the human resources director and the town manager, who both told her that the time clock was unnecessary for a salaried employee and that she should check with Chief Kane to see if it was an oversight. Kane learned of the complaint and loudly and angrily confronted Slater. Kane accused her of being petty and ungrateful and also criticized her job performance and alleged abuse of sick time. Kane told Slater she should be concerned about her job and described how he had once relentlessly pursued the decertification of a terminated police officer. However, he ended the meeting by telling Slater she would only need to punch the clock until the first anniversary of her employment, about three months away.
Slater concluded that Chief Kane intended to terminate her employment directly or make things so difficult she would be unable to stay, and Slater resigned the following week. She filed a complaint with the Human Rights Commission and then filed suit in the U.S. District Court alleging:
•Gender discrimination in violation of Title VII, 42 U.S.C. 2000e-2 (a) (1) and RSA 354-A:7, I
•Retaliation in violation of 42 U.S.C. 2000e-3 (a) and RSA 354-A:19
•Violation of her constitutional right to equal protection of laws
•Violation of her constitutional right to procedural due process
•Breach of her employment contract with the town
•Intentional interference with contractual and economic relations
The defendants filed for summary judgment, seeking the dismissal of all claims.
Title VII bans employment practices that “discriminate against any individual with respect to his … compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” The New Hampshire “Law Against Discrimination,” RSA 354-A, contains an identical provision. “Terms, conditions, or privileges of employment” include a variety of “adverse employment actions,” including demotions, transfers, refusals to promote, unwarranted negative evaluations and toleration of harassment by other employees. The Court held that the time clock procedure and other conditions that Slater complained about were not sex discrimination but, quoting Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir. 2008), only “the kind of petty slights or minor annoyances that often take place at work and that all employees experience and that, consequently, fall outside the scope of the anti-discrimination laws.” The Court also dismissed the Equal Protection claim on the same basis.
Title VII and RSA 354-A also ban retaliation by an employer when an employee makes a complaint of sex discrimination. Slater claimed that Kane’s outburst and the other town officials’ failure to support Slater in the situation made the working conditions so difficult that a reasonable person in her position would have felt compelled to resign, amounting to a “constructive discharge.” The Court contrasted Slater’s case with two New Hampshire Supreme Court decisions involving “constructive discharge.” In Porter v. Manchester, 151 N.H. 30 (2004), the plaintiff’s supervisor made numerous threats to fire him, objected to his return from a leave of absence, physically prevented him from reporting an incident to the human resources department and finally suspended him. In Lacasse v. Spaulding Youth Center, 154 N.H. 246 (2006), the key fact was that the supervisor had told the plaintiff in the initial job interview that the supervisor did not fire employees she disliked but, instead, made their lives miserable until they quit. When the supervisor began to mistreat the plaintiff, it was reasonable to view it as the beginning of a campaign of abuse that would continue until she quit. In Slater’s case, the Court found that the behavior of Chief Kane did not justify her resignation. The Court cited language from the Porter decision: “Relatively minor abuse of an employee is not sufficient for a constructive discharge. Rather, the adverse working conditions must generally be ongoing, repetitive, pervasive, and severe.”
Slater argued that, even if Kane’s conduct did not constitute “constructive discharge,” it was, nevertheless, unlawful retaliation. However, angry criticism for filing a discrimination claim is not sufficient. There must be an adverse employment action or direct threat of it. The Court found that Kane’s behavior did not rise to the level of prohibited retaliation.
Because the Court concluded that Slater had voluntarily resigned, all the other claims, based on contract, were also dismissed.