Lemoine v. W.B. Mason Company, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michelle Lemoine
v. 	Case No. 20-cv-924-PB
Opinion No. 2021 DNH 013
W.B. Mason Company, Inc.
ORDER
Michelle Lemoine has sued W.B. Mason Company, Inc. for
sexual orientation discrimination and retaliation in violation
of Title VII and N.H. Rev. Stat. Ann. ch. 354-A (RSA 354-A).
W.B. Mason has responded with a motion to dismiss the
retaliation claims.
Lemoine alleges that W.B. Mason placed her on a Performance
Improvement Plan (“PIP”) on June 15, 2017. 	See Compl. ¶ 19.
When she was presented with the PIP, she told her supervisor
that “she believed she was being discriminated against.” 	Compl.
¶ 38. 	W.B. Mason then terminated Lemoine approximately a month
later. 	Compl. ¶ 44. 	Lemoine asserts that she was terminated in
retaliation for opposing W.B. Mason’s discriminatory decision to
place her on a PIP.
W.B. Mason argues that Lemoine’s complaint to her
supervisor does not qualify as protected conduct under either
Title VII or RSA 354-A because it was too vague to sufficiently
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identify the type of discrimination she believed she was facing. 1
I disagree.
Neither Title VII nor RSA 354-A require the use of “magic
words” to qualify a complaint of discrimination as protected
conduct. 	Burns v. Johnson, 829 F.3d 1, 17 (1st Cir. 2016)
(quoting Tang v. Citizens Bank, N.A., 821 F.3d 206, 216 (1st
Cir. 2016)). 	Instead, “‘[w]hen an employee communicates to her
employer a belief that the employer has engaged in . . . a form
of employment discrimination, that communication’ virtually
always ‘constitutes the employee’s opposition to the activity.’”
Crawford v. Metropolitan Gov’t of Nashville & Davidson Cty.,
Tenn., 555 U.S. 271, 276 (2009) (quoting 2 EEOC Compliance
Manual §§ 8–II–B(1), (2), p. 614:0003 (Mar. 2003)); see e.g.
Rolfs v. Home Depot U.S.A., Inc., 971 F. Supp. 2d 197, 216
(D.N.H. 2013) (“Standing alone, the words ‘Come on, Gene’” are
too vague to qualify as a complaint of discrimination, but
additional evidence, including manager’s reaction to plaintiff’s
words, permitted a conclusion that plaintiff “could have
reasonably believed, in good faith” that his manager’s behavior
violated Title VII).
Here, sufficient context existed to place W.B. Mason on
notice that Lemoine was opposing an unlawful employment action.
1 Defendant’s alternative argument that Lemoine’s protected
conduct stems from a 2012 HR complaint is unavailing in light of
Lemoine’s opposition brief in which she explicitly disclaims
that incident as the basis for her retaliation claims.
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In 2012, Lemoine filed a complaint with Human Resources after
the company showed several of its employees, including Lemoine,
an offensive sales video mocking homosexual relationships.
Compl. ¶¶ 62-71. 	Additionally, Lemoine’s supervisor and other
employees in her office were aware of her sexual orientation.
Compl. ¶¶ 12, 14, 21, 24. 	Thus, Lemoine has sufficiently
alleged that she “had a good faith, reasonable belief” that her
employer was violating the law by placing her on PIP, that she
appropriately opposed such a violation by telling her supervisor
she believed she was being discriminated against, and that,
given her prior complaint, the employer was on notice that
Lemoine was complaining about discrimination based on her sexual
orientation. 2 	Accordingly, W.B. Mason’s motion to dismiss (Doc.
No. 6) is denied.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
January 19, 2021
2 To the extent that the defendant suggests in its brief that
Lemoine must allege that the defendant actually violated the law
by placing her on PIP, such an argument is contrary to
established precedent. 	See Fantini v. Salem State Coll., 557
F.3d 22, 32 (1st Cir. 2009) (“To establish the first of these
elements - participation in a protected activity - [Appellant]
need not prove that the conditions against which [s]he protested
actually amounted to a violation of Title VII. 	Appellant must
demonstrate only that [she] had a good faith, reasonable belief
that the underlying challenged actions of the employer violated
the law.”) (citations and quotations omitted).
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cc: 	Heather M. Burns, Esq.
Lauren S. Irwin, Esq.
Brooke Lois Lovett Shilo, Esq.
W. Daniel Deane, Esq.
Nathan P. Warecki, Esq.
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