mossey v . Shaw's Supermarkets CV-96-2-SD 04/18/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Belynda J. Mossey

v. Civil N o . 96-2-SD

Shaw's Supermarkets, Inc.

O R D E R

Defendant Shaw's Supermarkets, Inc. (Shaw's) moves to

dismiss Count IV of the plaintiff's complaint. Document 1 1 .

Plaintiff has not filed an objection to the motion.

1. Background

Invoking the Americans with Disabilities Act of 1990,

, et seq.,1 together with pendent state claims,

plaintiff Belynda J. Mossey asserts that she was discriminated against and constructively discharged from her employment as a

cashier with Shaw's. Count IV of her complaint seeks to ground

recovery on New Hampshire Revised Statutes Annotated (RSA) 354-A,

1 Plaintiff claims affliction by reflex sympathetic dystrophy, "a series of changes caused by the sympathetic nervous system, marked by pallor or rubor, pain, sweating, edema, or osteoporosis, following muscle sprain, bone fracture, or injuries to nerves or blood vessels. . . ." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 520-21 (28th ed. W . B . Saunders C o . 1994). known as "the law against discrimination."

§ 1 .

Defendant contends that RSA 354-A (1) does not create a

private right of action, and also contends that it (2) does not

require that an employer make accommodation for the limitations

of handicapped persons. Finding that the first of these grounds

is sufficient to grant the relief sought, the court does not consider the latter.2

2. Discussion

a. The Motion to Dismiss Standard

The task of a court presented with a motion to dismiss filed

under Rule 12(b)(6), Fed. R. Civ. P., "is necessarily a limited

one. The issue is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to

support the claims." Scheuer v . Rhodes,

3 2 , 236

(1974). Thus, the court takes all of plaintiff's factual

averments as true and indulges every reasonable inference in plaintiff's favor. Talbott v . CR Bard, Inc.,

5 , 27 (1st

Cir. 1995); Dartmouth Review v . Dartmouth College,

3 ,

16 (1st Cir. 1989).

2 The court finds it unnecessary to and accordingly has not considered the attachments to the motion, and thus does not convert the motion to dismiss into a motion for summary judgment.

2 b. RSA 354-A

As this court has had occasion to make clear in its prior

rulings, RSA 354-A establishes an administrative process as a

precursor to judicial review. It does not create a private right

of action for individuals aggrieved by unlawful discriminatory

factors. Tsetseranos v . Tech Prototype, Inc.,

(D.N.H. 1995); Doukas v . Metropolitan Life Ins. Co.,

(D.N.H. 1995). Accordingly, the motion to

dismiss as to Count IV of plaintiff's complaint must be granted.

3. Conclusion

As there is no private right of action afforded in cases of

the type here presented, defendant's motion to dismiss as to

Count IV has been granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court April 1 8 , 1996 cc: All Counsel

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