U.S. Equal Employment Opportunity Commission & A. v. Fred Fuller Oil Company, Inc. & A

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

U.S. District Court
No. 2015-0258

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION & a.

v.

FRED FULLER OIL COMPANY, INC. & a.

Argued: September 24, 2015
Opinion Issued: February 23, 2016

Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H.
Johnson on the brief and orally), and Purcell Law Office, PLLC, of Portsmouth
(Ellen Purcell on the brief), for plaintiffs Beverly Mulcahey and Nichole Wilkins.

Jackson Lewis P.C., of Portsmouth (Martha Van Oot and K. Joshua Scott
on the brief, and Ms. Van Oot orally), for defendant Frederick J. Fuller.

Law Offices of Nancy Richards-Stower, of Merrimack (Nancy Richards-
Stower on the brief), and Backus, Meyer and Branch, LLP, of Manchester (Jon
Meyer on the brief), for the New Hampshire Chapter of the National
Employment Lawyers Association, as amicus curiae.
 CONBOY, J. Pursuant to Supreme Court Rule 34, the United States
District Court for the District of New Hampshire (Barbadoro, J.) certified to us
the following questions of law:

1. Whether sections 354-A:2 and 354-A:7 of the New Hampshire
Revised Statutes impose individual employee liability for aiding
and abetting discrimination in the workplace.

2. Whether section 354-A:19 of the New Hampshire Revised
Statutes imposes individual employee liability for retaliation in the
workplace.

For the reasons stated below, we answer both questions in the affirmative.

The federal district court’s order sets forth the following facts regarding
the federal court case that led to the certified questions. The plaintiffs, Nichole
Wilkins and Beverly Mulcahey, sued their former employer, Fred Fuller Oil
Company, Inc. (Fuller Oil), for sexual harassment and retaliation. See 42
U.S.C. § 2000e (2012) (Title VII); RSA ch. 354-A (2009 & Supp. 2015). The
plaintiffs also sued Frederick J. Fuller, an employee of Fuller Oil, individually
(hereinafter referred to as the defendant). See RSA ch. 354-A.

Prior to trial, the defendant sought to prohibit the plaintiffs from
asserting claims against him under RSA chapter 354-A in his individual
capacity. The district court thereafter informed the parties that it would not
allow the plaintiffs to assert such claims. Subsequently, Fuller Oil filed for
bankruptcy protection and, therefore, the case against Fuller Oil was stayed;
thereafter the case was reopened as to claims against the defendant. Because
the questions of whether an employee can recover damages from another
employee for aiding and abetting sexual harassment or for retaliation under
RSA chapter 354-A concern unresolved issues of New Hampshire law, the
district court certified the questions to this court. Neither named plaintiff U.S.
Equal Employment Opportunity Commission nor the other named defendant,
Fuller Oil, is a party to this certification proceeding.

Responding to the certified questions requires us to engage in statutory
interpretation. We are the final arbiters of the legislature’s intent as expressed
in the words of the statute considered as a whole. Steir v. Girl Scouts of the
U.S.A., 150 N.H. 212, 214 (2003). We begin by examining the language of the
statute, and if possible, ascribe the plain and ordinary meanings to the words
used. Id. When a statute’s language is plain and unambiguous, we need not
look beyond it for further indication of legislative intent, and we decline to
consider what the legislature might have said or to add language that the
legislature did not see fit to incorporate in the statute. Id. We do not consider
words and phrases in isolation; rather, we consider them in the context of the
statute as a whole. Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 585

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(2003). This enables us to better discern the legislature’s intent and to
interpret statutory language in light of the policy or purpose sought to be
advanced by the statutory scheme. Id.

RSA chapter 354-A, known as the “Law Against Discrimination,”
prohibits unlawful discrimination based upon age, sex, race, creed, color,
marital status, familial status, sexual orientation, physical or mental disability
or national origin in employment, housing accommodations, and places of
public accommodations as provided therein. See RSA 354-A:1 (2009) (title and
purposes of chapter), :6-:7 (2009) (equal employment), :8-:15 (2009 & Supp.
2015) (fair housing), :16-:17 (2009) (public accommodations). The New
Hampshire Commission for Human Rights (HRC) is the agency charged with
eliminating and preventing discrimination under RSA chapter 354-A, see RSA
354-A:1, and is authorized “[t]o receive, investigate and pass upon complaints
alleging violations of [the] chapter.” RSA 354-A:5, VI (2009). When considering
the questions posed by the district court, we are mindful of the legislative
directive to liberally construe the statutory scheme in RSA chapter 354-A to
effectuate its purpose. See RSA 354-A:25 (2009).

I. Aiding and Abetting Unlawful Discrimination in the Workplace

We begin by addressing the first question of whether RSA 354-A:2 (2009)
and RSA 354-A:7 impose liability upon individual employees for aiding and
abetting discrimination in the workplace. RSA 354-A:2 provides definitions for
terms used throughout the chapter. Under RSA 354-A:2, XV(a), an “‘[u]nlawful
discriminatory practice’” includes “[p]ractices prohibited by RSA 354-A.”
Unlawful employment discrimination is one of the practices prohibited under
RSA chapter 354-A. See RSA 354-A:1, :6, :7. As relevant here, RSA 354-A:7
provides:

It shall be an unlawful discriminatory practice:

I. For an employer, because of the age, sex, race, color, marital
status, physical or mental disability, religious creed, or national
origin of any individual, to refuse to hire or employ or to bar or to
discharge from employment such individual or to discriminate
against such individual in compensation or in terms, conditions or
privileges of employment, unless based upon a bona fide
occupational qualification. In addition, no person shall be denied
the benefit of the rights afforded by this paragraph on account of
that person’s sexual orientation.

RSA 354-A:7, I. “‘Employer’” is defined, in relevant part, as “not includ[ing] any
employer with fewer than 6 persons in its employ.” RSA 354-A:2, VII. Under
RSA 354-A:2, XV(d), “‘[u]nlawful discriminatory practice’” also includes
“[a]iding, abetting, inciting, compelling or coercing another or attempting to aid,

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abet, incite, compel or coerce another to commit an unlawful discriminatory
practice or obstructing or preventing any person from complying with this
chapter or any order issued under the authority of this chapter.”

Both RSA 354-A:7, I, and RSA 354-A:2, XV(d) describe actions that
constitute unlawful discriminatory practices under RSA chapter 354-A. RSA
354-A:7, I, identifies certain acts committed by an employer as unlawful
discriminatory practices. RSA 354-A:2, XV(d) specifies that any act of aiding,
abetting, inciting, compelling or coercing another to commit an unlawful
discriminatory practice, or attempting to do so, or obstructing or preventing
any person from complying with the chapter is itself an unlawful
discriminatory practice. As applied in the employment context, RSA 354-A:2,
XV(d) makes it an unlawful discriminatory practice to aid and abet an employer
to commit an unlawful discriminatory practice under RSA 354-A:7, I. Nothing
in the language of RSA 354-A:2, XV(d), however, specifies who may be liable for
aiding and abetting an unlawful discriminatory practice. We, therefore, look to
other provisions of the statutory scheme for guidance. Cf. In the Matter of
B.T., 153 N.H. 255, 260 (2006) (“Where a term or phrase is not specifically
defined, we look to other provisions of the statutory scheme for guidance.”
(quotation omitted)).

RSA 354-A:21 (2009) governs procedures on complaints under RSA
chapter 354-A. RSA 354-A:21, I(a) states:

Any person claiming to be aggrieved by an unlawful
discriminatory practice may make, sign and file with the [HRC] a
verified complaint in writing which shall state the name and
address of the person, employer, labor organization, employment
agency or public accommodation alleged to have committed the
unlawful discriminatory practice complained of and which shall set
forth the particulars thereof and contain such other information as
may be required by the [HRC]. The attorney general or one of the
commissioners may, in like manner, make, sign, and file such
complaint.

(Emphasis added.); see RSA 354-A:21-a, I (2009) (permitting “[a]ny party
alleging to be aggrieved by any practice made unlawful under this chapter” to
“bring a civil action for damages or injunctive relief or both, in the superior
court for the county in which the alleged unlawful practice occurred or in the
county of residence of the party” after a specified period of time from the filing
of the complaint with the HRC or sooner if the HRC consents in writing). If the
claimant can prove that the respondent alleged to have committed the unlawful
discriminatory practice has, in fact, engaged in any unlawful discriminatory
practice as defined under the chapter, RSA 354-A:21, II(d) empowers the HRC
to take action against the respondent. RSA 354-A:21, II(d).

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 Reading RSA 354-A:21, I(a) in conjunction with RSA 354-A:2, XV(d) and
RSA 354-A:7, I, we conclude that any person may file a complaint against a
“person, employer, labor organization, employment agency or public
accommodation alleged to have committed the unlawful discriminatory
practice,” RSA 354-A:21, I(a) (emphasis added), of aiding and abetting
discrimination in the workplace, RSA 354-A:2, XV(d); RSA 354-A:7, I.
“‘Person’” is defined as including “one or more individuals, partnerships,
associations, corporations, legal representatives, mutual companies, joint-stock
companies, trusts, trustees in bankruptcy, receivers, and the state and all
political subdivisions, boards, and commissions thereof.” RSA 354-A:2, XIII
(emphasis added). Thus, individuals may be liable for aiding and abetting
unlawful employment discrimination under RSA 354-A:2 and :7.

The defendant argues that liability for aiding and abetting unlawful
discrimination under RSA 354-A:2, XV(d) is necessarily limited to employers.
Relying upon the definition of employer in RSA 354-A:2, VII, he contends that it
would be illogical for the legislature to exempt employers with fewer than six
employees from liability for unlawful discriminatory practices, but subject
individual employees of such exempt employers to liability for aiding and
abetting. The legislature’s decision to limit the liability of employers to those
employers with six or more employees, however, does not require a conclusion
that it intended to exclude all individual employees from liability, regardless of
whether their employer is exempt. The defendant’s interpretation would
absolve an individual employee from any liability for aiding and abetting his
employer to commit an unlawful act of discrimination under RSA 354-A:7, I,
which action by the employee is specifically defined as an unlawful
discriminatory practice under RSA 354-A:2, XV(d). Such an interpretation is
plainly inconsistent with the stated intent of RSA chapter 354-A “to eliminate
and prevent discrimination in employment.” RSA 354-A:1.

Nevertheless, for an individual to be liable for aiding and abetting
unlawful employment discrimination under RSA 354-A:2, XV(d), it must be
proven that the individual aided and abetted an unlawful discriminatory
practice committed by an employer as specified in RSA 354-A:7, I. Thus, if
there is no unlawful discriminatory practice by an employer, there can be no
individual employee liability for aiding and abetting. Because “employers” with
fewer than six employees are exempt from liability under the chapter, see RSA
354-A:2, VII, “unlawful discriminatory practice” under RSA 354-A:7, I, does not
include acts committed by an “employer” with fewer than six persons in its
employ. It follows, therefore, that an individual employee of an “employer” with
fewer than six employees would not have committed an unlawful
discriminatory practice under RSA 354-A:2, XV(d).

Accordingly, pursuant to a plain reading of the statute, individual
employees may be liable for aiding and abetting discrimination in the

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workplace under RSA 354-A:2, XV(d) and RSA 354-A:7. We, therefore, answer
the first question in the affirmative.

II. Retaliation in the Workplace

We next turn to the second question, which asks whether RSA 354-A:19
(2009) imposes individual employee liability for retaliation in the workplace.
Because the district court has interpreted the claim in the plaintiffs’ complaint
as alleging that “Fuller retaliated against [plaintiff Mulcahey] in violation of”
RSA 354-A:19, we answer the broad question posed as to whether an
individual employee can be liable under RSA 354-A:19.

RSA 354-A:19 provides:

It shall be 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 he has opposed any practices forbidden under this
chapter or because he has filed a complaint, testified or assisted in
any proceeding under this chapter.

RSA 354-A:19 (emphasis added).

The defendant argues that “[t]he only logical and rational way to construe
RSA 354-A:19” is to interpret the phrase “person engaged in any activity to
which this chapter applies” as referring only to the “‘persons’ in each of the
three activities of employment, housing and public accommodations to whom
the Legislature specifically concluded that liability for discrimination should
attach.” He maintains that as to employment, the only “person engaged in any
activity to which this chapter applies” is an employer and, therefore, only
employers can be liable for retaliation. However, we do not read the phrase
“engaged in any activity to which this chapter applies,” RSA 354-A:19, as
limiting liability for retaliation to employers.

As explained above, RSA 354-A:2, XIII defines “‘[p]erson’” as including
“one or more individuals.” Thus, RSA 354-A:19 applies to “any person,”
including “one or more individuals,” engaged in any of the activities to which
RSA chapter 354-A applies. In the context of this case, the chapter applies to
the activity of “employment.” Therefore, any person who retaliates against
another person in the workplace because he or she has taken any of the
specified protected actions is liable, under RSA 354-A:19, for an unlawful
discriminatory practice.

The defendant’s interpretation of the statute would require us to ignore
the statutory definition of “person.” This we will not do. “It is a basic precept
of statutory construction that the definition of a term in a statute controls its

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meaning.” Manchenton v. Auto Leasing Corp., 135 N.H. 298, 303 (1992)
(quotation omitted). We presume the legislature knew the meaning of the
words it chose, and that it used those words advisedly. See Roberts v. Town of
Windham, 165 N.H. 186, 190 (2013). We will not modify, through judicial
construction, the legislature’s explicit definition of the word “person” as used in
RSA chapter 354-A. See Manchenton, 135 N.H. at 303. Had the legislature
intended to limit liability for retaliation in the workplace to employers, it could
have expressly done so. Instead, as relevant in the employment context, the
legislature specified that any “person” may be held liable for retaliation without
regard to whether that person is also an “employer” within the meaning of the
chapter.

The defendant asserts that, under our interpretation, “a putative
retaliator does not even need to be employed by the plaintiff’s employer to be
liable under RSA 354-A:19.” The question before us in this case is whether
RSA 354-A:19 imposes liability upon individual employees for retaliation in the
workplace. We have answered that it does. Thus, we have no occasion today
to address the question of whether individuals who are not employed by the
plaintiff’s employer may be liable for retaliation under the statute.

Nonetheless, we agree with the defendant that it would be illogical to
hold individual employees liable for retaliation when they are employed by an
employer that is exempt from liability under the chapter. See State v. Rollins-
Ercolino, 149 N.H. 336, 341 (2003) (court will not interpret statute to require
an illogical result). RSA 354-A:19 relates to those persons “engaged in any
activity to which this chapter applies.” The chapter applies only to those
employers with six or more employees. See RSA 354-A:2, VII. Thus, consistent
with our interpretation of liability under RSA 354-A:2 and RSA 354-A:7, I, we
interpret RSA 354-A:19 as imposing liability for retaliation on individual
employees in the workplace of a qualifying employer under the chapter. See id.

The defendant further argues that interpreting RSA 354-A:19 as applying
to individual persons engaged in the activity of employment, housing, or public
accommodations leads to an absurd or illogical result because it is possible
that those persons the legislature intended to protect from unlawful
discrimination under the chapter could themselves be liable for unlawful
retaliation. However, an employee who otherwise enjoys the protection of the
statute is not, for that reason, shielded from liability for retaliatory conduct
prohibited by the statute. Cf. Martin v. Irwin Indus. Tool Co., 862 F. Supp. 2d
37, 38, 38-40 (D. Mass. 2012) (rejecting co-worker defendant’s argument that
retaliation provision in Massachusetts’ anti-discrimination law applied only to
“employers and those ‘persons’ who exercise similar degrees of authority” and
finding that statutory language allowed for a co-employee to be held liable);
Beaupre v. Cliff Smith & Associates, 738 N.E.2d 753, 764, 764-67 (Mass. App.
Ct. 2000) (recognizing that plain language of retaliation provision in

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Massachusetts’ anti-discrimination statute “provides on its face for individual
personal liability” and upholding jury verdict against employee under statute).

Finally, we note that, if the legislature disagrees with our interpretation
of RSA 354-A:19, it is, of course, “free to amend the statute as it sees fit.”
State v. Mandatory Poster Agency, Inc., 168 N.H. ___, ___ 126 A.3d 844, 849
(2015) (quotation omitted).

For these reasons, we conclude that individual employees may be held
liable for retaliation in the workplace under RSA 354-A:19. We, therefore,
answer the second certified question in the affirmative.

Remanded.

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

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