Dressler v. Daniel

United States Court of Appeals
For the First Circuit
No. 01-2569

DIANE DRESSLER,

Plaintiff, Appellant,

v.

KEVIN J. DANIEL and DANIEL’S PUB, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and B. Fletcher,* Senior Circuit Judge.

Nancy S. Tierney on brief for appellant.
Debra Weiss Ford, William R. Bagley Jr. and Devine,
Millimet & Branch P.A. on brief for appellees.

January 9, 2003

*
The Honorable Betty B. Fletcher, of the Ninth Circuit,
sitting by designation.
 B. FLETCHER, Senior Circuit Judge. Plaintiff-Appellant

Diane Dressler ("Dressler") appeals the summary judgment order

entered on behalf of Defendants-Appellees Kevin J. Daniel

("Daniel") and Daniel's Pub, Inc. ("Daniel's Pub") (collectively

"employer") on an action arising under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII").

Dressler claims that she is the victim of retaliation by her former

employer, after initiating a sexual harassment claim against

Daniel. See 42 U.S.C. § 2000e-3(a). Dressler asserts that due to

the retaliatory actions taken by her former employer, she was

denied future employment opportunities and subjected to a hostile

work environment. We have jurisdiction pursuant to 28 U.S.C. §

1292. For the reasons stated below, we affirm.

I.

While attending college in 1988, Dressler met Daniel, and

the two engaged in a relationship that Dressler alleges was non-

sexual but romantic. There was little contact between Dressler and

Daniel after their relationship ended until 1996, when Dressler

moved to Henniker, New Hampshire and contacted Daniel. Thereafter,

Dressler claims that she and Daniel engaged in a romantic, sexual

relationship which lasted approximately two months. Dressler

informed Daniel that the relationship would end in December 1996,

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after she accepted employment at his restaurant, Daniel's Pub.1

Dressler worked at Daniel's Pub from December 15, 1996 to December

31, 1996, when she terminated her employment. Shortly thereafter,

she contacted the New Hampshire Center for Human Rights to pursue

charges of sexual harassment against Daniel. A negotiated

settlement was reached between Dressler and the employer.

From July 1997 to September 1998, Dressler alleges that

she and Daniel again engaged in a discreet romantic and sexual

relationship. After the relationship ended, Dressler took a job as

a planning room aide at Kearsarge Middle School ("KMS") in London,

New Hampshire, where Daniel's daughter attended school.

Dressler quit her job at KMS in December 1998 contending

that comments were broadcast in the school that subsequently

affected her job responsibilities and work environment. A former

co-worker at Daniel's Pub, who also worked at KMS, informed the

Vice-Principal that there may be some concerns over the propriety

of Dressler working with Daniel's daughter. The Vice-Principal

stated that this comment had no impact on his evaluation of

Dressler. Nothing in the evidence suggests that Daniel made any

comments to KMS.

While employed at KMS, Dressler applied for a position at

the Equity Group in New London, New Hampshire. She attributed her

1
Daniel was the president, general manager, and director of
Daniel's Pub during Dressler's employment.

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rejection for employment at the Equity Group to statements made by

Daniel to her prospective employer. James Ward, the owner of the

Equity Group, attested in an affidavit that he contacted Daniel and

recalls from his conversation with Daniel that "the parting of ways

[between Daniel's Pub and Dressler] was on somewhat less than

favorable terms and this did not prevent me from hiring her, as

there were other issues." Dressler claims that she was told by

James Ward that he did not want claims filed against him. Daniel

claims that he has never been asked to provide a reference

concerning Dressler by a prospective or current employer and has

not offered unsolicited information with respect to her

qualifications.

In March 1999, Daniel filed a complaint with the Henniker

and Newbury Police Departments relating to a stalking charge he

planned to file against Dressler. Daniel believed that statements

to the police would not be public information but would serve

investigatory purposes only. Dressler learned about the complaints

in August 1999 when she was contacted by the police department.

Dressler filed an action in federal district court

against appellees alleging violations of Title VII, 42 U.S.C. §

2000e, et seq., § 1981 and/or § 1981a, as well as pendent state

law claims. The district court granted summary judgment in favor

of appellees on the federal claims and declined to assert

supplemental jurisdiction over the state claims. Dressler appeals

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from the summary judgment order denying her Title VII retaliation

claim.

II.

It is unlawful for an employer to retaliate against an

employee for initiating an action under Title VII. 42 U.S.C. §

2000e-3(a) provides:

It shall be an unlawful employment practice for an
employer to discriminate against any of his employees .
. . because he has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this title.

To establish a prima facie case of retaliation, Dressler must prove

by a preponderance of the evidence that "(1) [s]he engaged in

protected conduct under Title VII; (2) [s]he suffered an adverse

employment action; and (3) the adverse action is causally connected

to the protected activity." White v. New Hampshire Dep't of Corr.,

221 F.3d 254, 262 (1st Cir. 2000) (quoting Hernandez-Torres v.

Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998));

Hoeppner v. Crotched Mountain Rehab. Ctr., 31 F.3d 9, 14 (1st Cir.

1994); see also Kearney v. Town of Wareham, No. 02-1264, slip op.

at 11-12 (1st Cir. Dec. 10, 2002).

Reporting sexual harassment or initiating a charge of

sexual harassment is a protected activity under Title VII.

Hoeppner, 31 F.3d at 14. Dressler initiated a complaint against

Daniel for sexual harassment that occurred while she was working at

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Daniel's Pub in December of 1996. Therefore, Dressler satisfies

the first prong of a Title VII retaliation claim.

Dressler claims that she suffered an adverse employment

action because of her hostile work environment at KMS and because

she was denied prospective employment. She contends that her

employment at KMS suffered because she lost job responsibilities

and her working environment became hostile as a result of Daniel's

actions, which eventually forced her to terminate her employment at

KMS. Dressler also claims that Daniel interfered with future job

opportunities through his conversation with a prospective employer.

Dressler, however, provides no proof that Daniel affected her

employment or future employment. Discussing the specific details

of these two allegations is unproductive since these acts are

barred by the filing period for retaliation claims under Title VII.

Title VII requires that an aggrieved individual exhaust

his or her administrative remedies as a prerequisite to filing suit

in federal court. The individual must file a charge with the EEOC

within 180 days after the alleged unlawful employment practice

occurred. 42 U.S.C. § 2000e-5(e)(1). The filing period operates

as a statute of limitations. In a deferral state, such as New

Hampshire, the filing period is extended to 300 days. Id.; 29

C.F.R. § 1601.74. Any claim for retaliatory acts beyond the filing

period is barred because "[e]ach discrete discriminatory act starts

a new clock for filing the charges alleging the act." National

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R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2072 (2002)

(holding that discrete discriminatory or retaliatory acts must be

filed within the appropriate time period, but that in hostile work

environment claims, the time limitation will not exclude acts that

are part of the same unlawful employment practice if at least one

act falls within the time period); see also Provencher v. CVS

Pharmacy, Div. Of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998).

Since Dressler filed a complaint with the EEOC on May 15,

2000, the limitations period extends back to July 20, 1999.2

Dressler claims that she was retaliated against (1) when she was

denied a prospective employment opportunity at the Equity Group in

the fall of 1998, (2) when she perceived a hostile work environment

at KMS that resulted in her termination in December 1998, and (3)

when Daniel filed complaints against her with the Henniker and

Newbury Police Departments in March 1999.3 The first two discreet

acts of alleged retaliation fall outside the filing period; and as

noted above, these acts are time barred. See Morgan, 122 S.Ct. at

2077. As to the third act, however, Dressler claims that she was

not aware that the police complaints had been filed until August 3,

2
The district court mistakenly stated in footnote one that the
limitations period extended to July 20, 2000. This was a
typographical error and did not affect the court's analysis.
3
The district court incorrectly noted that Daniel filed his
complaints in March 2000 instead of March 1999 and that Dressler
did not find out about the complaints until August 2000 instead of
August 1999. This, however, did not affect the district court's
analysis.

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1999. The district court assumed arguendo that Dressler's

complaint was filed timely with regard to the police department

complaints since she did not find out about the complaints until

August 1999. We will also assume for analytical purposes that

Dressler's EEOC complaint was filed timely as to the police

department complaints. Therefore, the only relevant actions by the

employer within the filing period are the complaints filed by

Daniel with the police departments.

The district court assumed arguendo that the complaints

to the police departments were sufficiently "adverse" to constitute

actionable retaliation. See Hoeppner, 31 F.3d at 14-15. If we

accept the district court's assumption that the filing of police

complaints by Daniel constituted an adverse employment action, such

action must be causally connected to the protected activity to

maintain an action for a Title VII violation. White, 221 F.3d at

262. Dressler's claim can only survive if the evidence on the

record could support a claim that Daniel's true motive for filing

the complaints with the police department was Dressler's initiation

of a sexual harassment claim in January 1997. See Hoeppner, 31

F.3d at 14; Kearney, No. 02-1264, slip op. at 12.

The district court properly found that the close temporal

proximity to support a finding of retaliation was lacking. Since

the initiation of the 1997 sexual harassment claim, the parties had

a rather unusual relationship. Dressler claims that she and Daniel

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engaged in a sexual relationship extending for over one year after

the sexual harassment claim had been settled. The adverse actions

charged by Dressler occurred after this sexual/romantic

relationship had ended. Two years had elapsed between the time

Dressler engaged in the protected activity of initiating a sexual

harassment complaint against Daniel and the time of the alleged

adverse action, Daniel's filing of the police complaints against

Dressler. The district court found--and we agree--that no

"reasonable trier of fact could conclude, by a preponderance of the

evidence, that the 1999 complaints to the police were caused by the

1997 sexual harassment charge." Moreover, the inference of a

causal connection becomes tenuous with the passage of time. Lewis

v. Gillette Co., 22 F.3d 22, 25 (1st Cir. 1994) (granting summary

judgment where more than two years elapsed between the protected

conduct and the alleged retaliation); Mesnick v. General Elec.

Corp., 950 F.2d 816, 828 (1st Cir. 1991) (holding that the nine

month period between the protected conduct and alleged retaliation

undermined the inference of causation).

Construing the record in the light most favorable to

Dressler and resolving all reasonable inferences in her favor, we

conclude that the record does not support a finding that Daniel's

motive for filing a complaint was in response to Dressler's sexual

harassment claim. See Gorski v. New Hampshire Dep't of Corr., 290

F.3d 466, 471 (1st Cir. 2002). In fact, the record suggests that

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the nature of the interactions between the parties was such that,

as the district court wrote, "events more recent than the

discrimination charge were far more likely than the charge to have

informed the state of the parties' relationship in March 1999."

After the conclusion of the parties' sexual/romantic relationship

in 1998, Daniel claims that Dressler contacted his wife and

informed her of their sexual relationship. This call coupled with

constant calls and visits to Daniel at his place of business and

home were the foundation for the complaints to the police by

Daniel.

III.

Dressler has not adduced evidence that would support a

causal connection between the initiation of a sexual harassment

action against Daniel and Daniel's filing of police complaints

against Dressler. Therefore, the district court's order granting

summary judgment is affirmed.

Affirmed.

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