Pooler v. Anheuser-Busch CV-95-301-B 11/28/95 .P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bruce Pooler

v. Civil No. 95-301-B

Anheuser-Busch Recycling Corp.

_________________________________ O R D E R

Bruce Pooler asserts claims against Anheuser-Busch Recycling

Corporation based on the Americans with Disabilities Act,

et. seg. (West 1995) ("ADA"), and New

Hampshire's law of wrongful discharge. Anheuser-Busch has moved

to dismiss both claims. For the reasons that follow, I deny the

motion.

Anheuser-Busch first argues that Pooler's claims must be

dismissed because he failed to take advantage of the grievance

procedures reguired by his union's collective bargaining

agreement ("CBA"). In making this argument, Anheuser-Busch

relies on Gilmer v. Interstate/Johnson Lane Corporation,

(1991), which recognized that an agreement to arbitrate an age

discrimination claim is enforceable under the Federal Arbitration Act,

et seg. (West 1970 & Supp. 1995). Pooler

disagrees and argues that the issue is controlled by Alexander v.

Gardner-Denver Company,

(1974), which held that a

discharged employee may assert a Title VII claim in court even

though the facts giving rise to the claim also formed the basis

for a grievance under the employee's collective bargaining

agreement.

Although the results in Gilmer and Alexander differ, the two

decisions are not inconsistent. In Gilmer, the agreement to

arbitrate governed both claims based on the agreement itself and

independent statutory claims. Gilmer,

. In

contrast, the collective bargaining agreement in Alexander

reguired the parties to use the agreement's grievance procedures

only to resolve claims based on the agreement.

In this

case, I agree with Pooler that the CBA only reguires employees to

arbitrate claims that are based on the agreement itself.

Accordingly, I conclude that the CBA does not bar Pooler's

claims.

Anheuser-Busch next argues that Pooler's claims should be

dismissed to the extent that they are based upon the CBA.

However, since Pooler does not base either of his claims on the

CBA, I reject this argument as well.

2 Finally, Anheuser-Busch argues that Pooler's wrongful

termination claim is defective for several reasons. Notwith­

standing defendant's argument to the contrary. New Hampshire law

does not bar contract employees from asserting wrongful

termination claims. As the cases cited by the defendant note, an

implied duty of good faith and fair dealing exists in every New

Hampshire contract. See Cloutier v. Great Atl. & Pac. Tea Co.,

(1981). Since the CBA does not contain any

language that purports to disclaim Anheuser-Bush's duty to deal

with its employees in good faith. Pooler is not barred from

asserting a wrongful termination claim simply because he is a

contract employee. I also reject Anheuser-Bush's argument that

Pooler's claim is defective because it fails to allege that his

firing resulted from either performing an act that public policy

would encourage or failing to perform an act that public policy

would condemn. See, e.g., Cloutier,

(1981).

Pooler alleges that he was discharged in part because he asserted

his right to apply for workmen's compensation. This assertion is

sufficient to satisfy the public policy component of a wrongful

discharge claim.

3 The defendant's motion to dismiss (document no. 5) is

denied.

SO ORDERED.

Paul Barbadoro United States District Judge

November 28, 1995

cc: Charla B. Labbe, Esq. Edward Shumaker, III, Esq.

4