US Equal Employment Opportunity Commission v. Coca-Cola Beverages Northeast, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
U.S. Equal Employment Opportunity
Commission
v. Case No. 1:26-cv-115-PB-AJ
Opinion No. 2026 DNH 149
Coca-Cola Beverages Northeast, Inc.
MEMORANDUM AND ORDER
The United States Equal Employment Opportunity Commission
(“EEOC”) brings this action against Coca-Cola Beverages Northeast, Inc.
(“Coca-Cola”) under Title VII of the Civil Rights Act of 1964 and Title I of the
Civil Rights Act of 1991. It claims that Coca-Cola violated Title VII by
denying male employees the opportunity to attend Coca-Cola’s Women’s
Forum, a two-day conference that Coca-Cola asserts was “focused on
increasing the pool of qualified candidates for promotion.” Doc. 6-1 at 2.
Coca-Cola moves to dismiss, primarily arguing that the EEOC fails to allege
actionable harm arising from the Women’s Forum in its complaint. For the
reasons set forth below, I deny Coca-Cola’s motion.
I. BACKGROUND
The EEOC brings this action on behalf of the charging party, a male
who works as a production employee at Coca-Cola’s Londonderry, New
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Hampshire facility. Doc. 1 at 3. On September 10 and 11, 2024, Coca-Cola
sponsored a trip and networking event labeled the “Women’s Forum” at the
Mohegan Sun and Casino in Connecticut. Id. Coca-Cola contends that the
purpose of the Forum was to “focus[] on increasing the pool of qualified
candidates for promotion.” Doc. 6-1 at 2. The Forum included a social
reception, team-building exercises, recreational activities, and an opportunity
to hear executives from Coca-Cola and elsewhere speak about their career
paths. Doc. 1 at 3. Female employees were invited to the Forum, and those
who attended the event were excused from their normal work duties on those
days. Id. at 4. Coca-Cola paid female employees who attended the Forum
their usual salary or wages without requiring them to use paid time off on
the days of the conference, paid for their hotel charges during the conference,
and provided food and beverages to attendees. Id. Male employees were not
invited to attend the Forum; the charging party and other male employees
say they would have attended the event had they been invited. Id. at 3-4. As
a result, the EEOC alleges that Coca-Cola did not provide male employees
with any of the benefits associated with attendance at the Forum, and that
male employees consequently suffered damages. Id. at 4.
The EEOC argues that Coca-Cola’s exclusion of male employees from
the Forum constitutes a denial of equal compensation, terms, conditions, or
privileges of employment on the basis of sex. Id. It further alleges that Coca-
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Cola’s unlawful employment practices were intentional and done with malice
or reckless indifference to the federally protected rights of its male
employees. Id.
In response, Coca-Cola moves to dismiss the charges against it for
failure to state a claim on which relief can be granted. Doc. 6. In that motion,
it argues that the EEOC fails to allege any actionable harm arising from the
one-time Forum, nor alleges any facts to support an award of punitive
damages. Coca-Cola also contends that the Forum was a lawful effort to
address imbalances in its workforce by expanding the pool of applicants for
promotion.
II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim, a plaintiff
must allege facts sufficient to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if it pleads
“factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
In testing a complaint’s sufficiency, I employ a two-step approach. See
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I
screen the complaint for statements that “merely offer legal conclusions
couched as fact or threadbare recitals of the elements of a cause of action.” Id.
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(cleaned up). A claim consisting of little more than “allegations that merely
parrot the elements of the cause of action” may be dismissed. Id. Second, I
credit as true all of the plaintiff’s non-conclusory factual allegations and the
reasonable inferences drawn from those allegations, and then determine if
the claim is plausible. Id. The plausibility requirement “simply calls for
enough fact to raise a reasonable expectation that discovery will reveal
evidence” of illegal conduct. Twombly, 550 U.S. at 556. The “make-or-break
standard” is that those allegations and inferences, “taken as true, must state
a plausible, not a merely conceivable, case for relief.” Sepulveda-Villarini v.
Dep’t of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).
III. ANALYSIS
Coca-Cola’s principal argument is that the EEOC’s failure to allege any
actionable harm respecting an identifiable term, condition, or privilege of
employment arising from male employees’ exclusion from the Forum
precludes it from proceeding on its Title VII claim. Coca-Cola also argues that
it cannot be held liable under Title VII because the Women’s Forum was a
nondiscriminatory effort to expand the pool of qualified candidates for
promotion. Finally, Coca-Cola contends that the EEOC’s request for punitive
damages must be dismissed because the complaint fails to allege facts
sufficient to support such an award. I assess the sufficiency of the EEOC’s
complaint with respect to each of Coca-Cola’s arguments below.
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A. Title VII Adverse Employment Action
Title VII, in relevant part, makes it unlawful for an employer to
“discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s . . . sex.”
42 U.S.C. § 2000e-2(a)(1). To establish a claim for employment discrimination
under Title VII, “a plaintiff must show, among other things, that he suffered
an adverse employment action on account of a protected ground.” Morales-
Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010) (cleaned up).
As the language of Title VII requires, an adverse employment action
must relate to the “terms, conditions, or privileges of employment.” § 2000e-
2(a)(1). The Supreme Court has consistently made clear that the statute’s
language “evinces a congressional intent ‘“to strike at the entire spectrum of
disparate treatment of men and women”’ in employment.” Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 64 (1986) (quoting L.A. Dep’t. of Water & Power
v. Manhart, 435 U.S. 702, 707 n.13 (1978)). Accordingly, the Court has
explained that the “‘terms [or] conditions’ phrase . . . is not used ‘in the
narrow contractual sense’; it covers more than the ‘economic or tangible.’”
Muldrow v. City of St. Louis, 601 U.S. 346, 354 (2024) (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) and then Meritor,
477 U.S. at 64). Similarly, “[a] benefit that is part and parcel of the
employment relationship” is a “privilege” under Title VII and “may not be
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doled out in a discriminatory fashion, even if the employer would be free
under the employment contract simply not to provide the benefit at all.”
Hishon v. King & Spalding, 467 U.S. 69, 75-76 (1984).
Until recently, multiple courts, including the First Circuit, required an
adverse employment action to be “material” in order to be actionable,
meaning that “the challenged conduct was ‘more disruptive than a mere
inconvenience or an alteration of job responsibilities.’” Walsh v. HNTB Corp.,
169 F.4th 330, 339 (1st Cir. 2026) (quoting Marrero v. Goya of P.R., Inc., 304
F.3d 7, 23 (1st Cir. 2002)). But in a 2024 decision entitled Muldrow v. City of
St. Louis, 601 U.S. 346 (2024), the Supreme Court rejected the materiality
requirement. Instead, the Court imposed a lower standard: a plaintiff “must
show some harm respecting an identifiable term or condition of employment”
to establish a discrimination claim under Title VII, but the harm need not be
“significant.”1 Id. at 354-55 (emphasis added). Interpreting Muldrow, the
1 As the very phrase “some harm” indicates, Muldrow does not altogether
eliminate the need for a Title VII plaintiff to make some showing of harm
separate from the discrimination itself. In its response to Coca-Cola’s motion
to dismiss, the EEOC invokes Justice Kavanaugh’s contrary view that “the
text of Title VII does not require a separate showing of some harm” because
“[t]he discrimination is harm.” Doc. 9 at 10 (citing Muldrow, 601 U.S. at 365
(Kavanaugh, J., concurring)). But Justice Kavanaugh’s view is neither
binding authority nor in line with the Court’s holding in Muldrow. As the
Court explained, a plaintiff must still demonstrate that the challenged
employer conduct “brought about some ‘disadvantageous’ change in an
employment term or condition.” 601 U.S. at 354 (emphasis added) (quoting
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First Circuit has held that an adverse employment action is “any employment
event, regardless of its severity, in which an employer’s conduct leaves an
employee (1) ‘worse off’ (2) with respect to the ‘terms [or] conditions’ of their
employment.” Walsh, 169 F.4th at 339 (quoting Muldrow, 601 U.S. at 354-
55).
The question of whether an employee has suffered an adverse
employment action sufficient to support a Title VII claim is a question of law
for the court. See Morales-Vallellanes, 605 F.3d at 33. Here, the EEOC’s core
allegation is that Coca-Cola’s exclusion of male employees from the Forum
constituted an adverse employment action under Muldrow. In response,
Coca-Cola argues that the EEOC has failed to allege facts sufficient to satisfy
the Muldrow standard—in other words, that the EEOC has failed to
demonstrate that Coca-Cola’s male employees suffered “some harm” because
of their exclusion. 601 U.S. at 355.
Oncale, 523 U.S. at 80). Recent First Circuit cases have affirmed this reading
of Muldrow, requiring plaintiffs to point to some disadvantageous
consequence of their alleged disparate treatment. See, e.g., Rios v. Centerra
Group LLC, 106 F.4th 101, 112-13 (1st Cir. 2024) (citing Muldrow, 601 U.S.
at 354-55) (rejecting claim of adverse employment action where instance of
disparate treatment had no “consequences” and thus “[did] not represent any
disadvantageous change in the terms or conditions of the plaintiff’s
employment”); O’Horo v. Bos. Med. Ctr. Corp., 131 F.4th 1, 18 (1st Cir. 2025)
(same).
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The EEOC alleges that the charging party and similarly situated male
Coca-Cola employees suffered harm of three sorts due to their exclusion from
the Forum. First, it alleges that male employees’ inability to attend the
Forum’s speaker presentations and networking events—a “social reception,
team-building exercises, and recreational activities”—could plausibly
constitute harm related to “compensation, terms, conditions, or privileges of
employment.” Doc. 1 at 3; Doc. 9 at 9-10. Second, it argues that “male
employees were denied the same paid time off that the female employees
received to attend the event,” and that denial of paid time off is itself an
adverse employment action under Title VII. Doc. 9 at 10-11. Finally, it
contends that male employees were harmed by being denied the tangible
benefits incidental to Forum attendance, which included an overnight hotel
stay and “food and/or beverages.” Doc. 1 at 4.
Construing the complaint in the light most favorable to the EEOC, I am
unable to conclude at this early stage that these facts fail to present any
plausible claim of harm sufficient to satisfy the Muldrow standard. The
EEOC’s three allegations of harm at least raise a plausible inference that
Coca-Cola’s exclusion of male employees from the Forum may have left them
“(1) ‘worse off’ (2) with respect to the ‘terms [or] conditions’ of their
employment.” Walsh, 169 F.4th at 339 (quoting Muldrow, 601 U.S. at 354-
55). As the Supreme Court explained in Muldrow, a Title VII plaintiff need
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only demonstrate “some harm” stemming from the challenged employer
conduct, even if that harm is insignificant or immaterial. 601 U.S. at 354-55.
Here, at least for purposes of surviving a motion to dismiss, the EEOC has
plausibly met that standard by pointing to missed networking opportunities,
the potential deprivation of paid time off, and the denial of perks including a
company-paid hotel stay, food, and beverages. And the fact that these alleged
injuries occurred in connection with a formal, employer-sponsored event
supports the EEOC’s position that the differential treatment at issue here
relates to the “terms, conditions, or privileges of employment,” especially in
light of the Supreme Court’s consistently broad reading of that language in
the Title VII context. Doc. 9 at 9-10; § 2000e-2(a)(1); see Muldrow, 601 U.S. at
354; see also Strong v. Fort Myer Constr. Corp., 2025 WL 2643457, at *3
(D.D.C. 2025) (“[T]he alleged exclusion from team activities by immediate
supervisors plausibly constitutes worse treatment with respect to the terms
or conditions of [the plaintiff’s] employment.” (cleaned up)).
Because the alleged facts “raise a reasonable expectation” that
discovery may produce evidence that proves the EEOC’s Muldrow-based
claims, I cannot at this stage grant Coca-Cola’s motion on this basis.
Twombly, 550 U.S. at 556.
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B. Coca-Cola’s Candidate Pool Expansion Argument
Separate from its contention that male employees did not suffer
cognizable harm, Coca-Cola argues that the Forum was a lawful effort to
expand the company’s pool of qualified candidates for promotion by
encouraging female employees to seek professional advancement at the
company. Doc. 6-1 at 5-7. Specifically, Coca-Cola contends that because the
Forum was designed to expand the company’s pool of candidates and Forum
attendance has never had any bearing on the promotion selection process
itself, Coca-Cola’s hosting of the Forum “is not discriminatory and not
actionable.” Id. at 7. In service of this argument, Coca-Cola relies primarily
on three district court cases recognizing the lawfulness of inclusive pool-
expanding recruitment efforts that had no bearing on hiring or promotion
decisions.2 Id. at 5-7 (citing Raso v. Lago, 958 F. Supp. 686 (D. Mass. 1997);
2 Coca-Cola at various points invokes a handful of other authorities
seemingly in support of the same or a similar argument. It alleges, for
example, that Executive Order 11246 required it to take affirmative steps to
correct the imbalance of women in its workforce. Doc. 6-1 at 1-2. Coca-Cola
also argues that it relied in good faith on 29 C.F.R. § 1608, a now-rescinded
EEOC regulation that provided guidelines for employers implementing
affirmative action programs, and on other EEOC advocacy regarding the
permissibility of pool expansion efforts. See id. at 2-3, 13. To the extent that
Coca-Cola attempts to argue that its hosting of the Forum was compliant
with either or both of these authorities such that it cannot be held liable
under Title VII, it does not sufficiently develop that argument here. And
regardless, even if Coca-Cola did adequately present that argument, I agree
with the EEOC that dismissal based on those contentions would be
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Shuford v. Alabama State Bd. of Educ., 897 F. Supp. 1535 (M.D. Ala. 1995);
Barbera v. Metro-Dade Cnty. Fire Dep’t., 117 F. Supp. 2d 1331 (S.D. Fla.
2000)).
I am not persuaded that any of the three cases Coca-Cola cites offers a
roadmap for dismissing the EEOC’s Title VII claim. In each cited case, the
respective court held that recruitment efforts are not discriminatory where
their only effect is to expand the pool of candidates—or in other words, simply
because they force non-minority applicants to compete against additional
minority applicants during the hiring or promotion process.3 But here, the
premature at this stage, where the applicability of any such defense is not
clear from the face of the EEOC’s pleadings. See Blackstone LLC v. FDIC,
244 F. 3d 193, 197 (1st Cir. 2001) (“[F]or dismissal to be allowed on the basis
of an affirmative defense, the facts establishing the defense must be clear on
the face of the plaintiff’s pleadings.” (cleaned up)); see also Facet Tech. Corp.,
v. TomTom Int’l B.V., 2025 WL 315390, at *6-7 (D.N.H. Jan. 28, 2025)
(rejecting defense raised in motion to dismiss because it amounted to “an
evidentiary contention that is underdeveloped and far from clear from the
face of [the plaintiff’s] pleadings”).
3 In Raso v. Lago, the court considered whether the defendant land
developers discriminated against a group of predominantly white plaintiffs by
affirmatively soliciting minority applicants for an apartment development in
Boston’s West End. 958 F. Supp. at 689. The court ultimately rejected the
plaintiffs’ discrimination claims because the plaintiffs had not been denied
any benefit as a result of the developers’ recruitment strategies and had not
demonstrated any discriminatory intent. Id. at 703-04. In Shuford v.
Alabama State Board of Education, the court assessed the legality of several
consent decree provisions that were aimed at including more women in the
candidate selection pool in order to resolve the underrepresentation of female
employees in Alabama’s postsecondary education system. 897 F. Supp. at
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EEOC does not allege that the Forum produced discrimination in Coca-Cola’s
promotion process, nor does it argue that pool expansion itself is an improper
or discriminatory practice.4 Rather, the crux of the EEOC’s argument is that
the means by which Coca-Cola sought to expand its candidate pool deprived
male employees of opportunities and benefits in ways that constituted harm
to the male employees’ terms, conditions, or privileges of employment. Doc. 9
at 9-10. None of the cases Coca-Cola cites considered such an argument.5 And
none authorize an employer to utilize a recruitment tactic that discriminates
1545-47. Noting that there was “no suggestion” that the consent decree’s
inclusive recruitment strategies “will cause any harm to qualified applicants
other than increased competition,” the court approved the provisions as legal.
Id. at 1553-54. Finally, in Barbera v. Metro-Dade County Fire Department,
the court reviewed modifications to a fire department’s physical assessment
test that made it easier for women to pass the test and therefore become
eligible for employment. 117 F. Supp. 2d at 1332-34. Explaining that the test
modifications’ only effect was to “increase[] the number of qualified female
applicants in the hiring pool” without actually impacting the hiring selection
process itself, the court held that the modifications were nondiscriminatory
and legal. Id. at 1338.
4 The EEOC explicitly concedes that its “[c]omplaint does not allege
disparate treatment in hiring or promotion and includes no allegations
concerning [Coca-Cola’s] hiring practices whatsoever.” Doc. 9 at 16.
5 In Shuford, for example, the court specifically noted that “the decree
does not require that any current employee be terminated or adversely
affected in his or her employment for the sake of achieving [the employer’s
diversity] goals.” 897 F. Supp. at 1546 (emphasis added). And in Barbera, the
court highlighted that the defendant-employer’s effort to include more women
in the hiring pool “ha[d] only one effect on male applicants,” which was to
force them to compete with qualified female candidates. 117 F. Supp. 2d at
1336 (emphasis added).
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against certain of its current employees with respect to their terms,
conditions, or privileges of employment for the sake of broadening its pool of
candidates for promotion. Thus, even accepting as true Coca-Cola’s
contentions that the Forum’s purpose was to address a gender imbalance in
its workforce and that Forum attendance ultimately had no impact on the
company’s promotion decisions, I am not persuaded that those facts shield it
from the specific Title VII challenge the EEOC has raised here. Accordingly, I
cannot grant Coca-Cola’s motion to dismiss on this basis.
C. Punitive Damages
Finally, Coca-Cola moves to dismiss the EEOC’s request for punitive
damages, arguing that the complaint fails to provide facts sufficient to
support such an award. Although the complaint does not appear to allege
facts that would support an award of punitive damages in this case, I
ultimately agree with my colleague’s reasoning in Mount Prospect Academy,
Inc. v. Philadelphia Indemnity Insurance Co., 823 F. Supp. 3d 183 (D.N.H.
2026), that punitive damages are “a form of relief” rather than a “claim,” and
that a “12(b)(6) motion is not an appropriate vehicle to test a plaintiff’s
entitlement to a particular form of relief.” Id. at 189 (quoting Johnson v.
Rapid Sheet Metal, LLC, 560 F. Supp. 3d 623, 629-30 (D.N.H. 2020)).
Because dismissal of the EEOC’s request for punitive damages would be
improper at this stage, I reject Coca-Cola’s argument for dismissal of that
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request without prejudice to Coca-Cola’s right to contest the appropriateness
of punitive damages at a later point in the proceedings.
IV. CONCLUSION
For the reasons explained above, I conclude that the EEOC has
plausibly alleged that Coca-Cola’s conduct amounts to actionable harm under
Title VII. As such, I deny Coca-Cola’s motion to dismiss without prejudice to
its right to renew its arguments in a properly supported motion for summary
judgment.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
October 16, 2026
cc: Counsel of Record
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