Foster v . Wal-Mart, Inc. CV-94-571-JD 03/15/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Arlene Foster

v. Civil N o . 94-571-JD

Wal-Mart, Inc.

O R D E R

The plaintiff, Arlene Foster, has filed this employment

discrimination action against her former employer, defendant Wal-

Mart, Inc. The plaintiff asserts a violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (count o n e ) ;

common law wrongful discharge (count t w o ) ; intentional and

negligent infliction of emotional distress (count three);

enhanced compensatory damages (count four); and unlawful

discriminatory employment practices in violation of the state

human rights act, N.H. Rev. Stat. Ann. ("RSA") § 354-A e t . seq. (count five). Before the court is the defendant's partial motion

to dismiss (document n o . 1 3 ) .

Discussion

The defendant has already filed an answer to the plaintiff's

complaint and, as such, the pleadings have closed within the

meaning of Rule 7 ( a ) . Accordingly, the court will treat the defendant's motion to dismiss under Rule 12(b)(6) as a motion for

judgment on the pleadings under Rule 12(c).

A motion for judgment on the pleadings will be granted i f ,

accepting all of the plaintiff's factual averments contained in

the complaint as true, and drawing every reasonable inference

helpful to the plaintiff's cause, "it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Rivera-Gomez v . de Castro,

3 1 , 635 (1st Cir. 1988); see Republic Steel Corp. v .

Pennsylvania Eng'g Corp.,

7 4 , 182 (7th Cir. 1986)

(standard for evaluating Rule 12(c) motion is essentially the

same as the standard for evaluating motion under Rule 12(b)(6)).

The court's inquiry is a limited one, focusing not on "whether a

plaintiff will ultimately prevail but whether [she] is entitled

to offer evidence to support the claims." Scheuer v . Rhodes,

3 2 , 236 (1974) (motion to dismiss under Fed. R. Civ. P.

12(b)(6)).

A. Count Two: Common Law Wrongful Termination

Count two asserts a common law claim for wrongful

termination. The plaintiff alleges that the defendant knowingly

permitted her supervisor, Ed Griswold, to subject her to

intolerable levels of sexual harassment and discrimination.

2 Complaint at ¶¶ 38-40. The plaintiff further alleges that she

became disabled from working under these conditions and that she

was constructively discharged because she "refused to tolerate

and submit to sexual harassment and discrimination." Id. at ¶¶

39-41. The plaintiff claims damages related to physical and

emotional injury and financial loss.

Under New Hampshire common law, [i]n order to have a valid claim for wrongful termination, the plaintiff must show: "one, that the employer terminated the employment out of bad faith, malice, or retaliation; and two, that the employer terminated the employment because the employee performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn." Wenners v . Great State Beverages,

0 0 , ___,

(1995) (quoting Short v . School Admin. Unit 1 6 ,

6 , 8 4 ,

6 4 , 370 (1992)), cert. denied, 116 S . C t . 926

(1996). However, "[t]he Supreme Court of New Hampshire has

recently stated [that] 'a plaintiff may not pursue a common law remedy where the legislature intended to replace it with a

statutory cause of action.'" Miller v . CBC Companies, Inc.,

(D.N.H. 1995) (quoting Wenners,

,

2 5 ) ; see Smith v . F.W. Morse & Co., Inc., N o .

95-1556, slip o p . 29-32 (1st Cir. Feb. 1 2 , 1996). Such legis-

lative intent is apparent where "a statute provides a remedy for

its violation and sets forth procedures pursuing such action."

3 Miller,

; see Howard v . Dorr Woolen Co.,

,

(1980) (wrongful discharge

claim barred where "proper remedy for age discrimination is

provided by [federal and state] statute.").

The plaintiff's wrongful discharge claim is based squarely

on allegations of sexual harassment and discrimination, and her

inability to tolerate o r , in the alternative, her constructive

discharge for refusing to tolerate, such workplace conditions.

See Complaint at ¶¶ 37-42. New Hampshire explicitly has

proscribed such conduct: Unlawful Discriminatory Practices. It shall be an unlawful discriminatory practice:

I . For an employer, because of age, sex, race, color, marital status, physical or mental disability or national origin of any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based on bona fide occupational qualifications.

RSA § 354-A:7 (Supp. 1994). Moreover, the human rights act

provides a remedy for such a violation and specific procedures for those seeking redress. See RSA § 354-A:21, 22 (discussing

complaint procedures and judicial review). This statutory anti-

discrimination scheme provides the exclusive state law remedy for

the unlawful conduct alleged by the plaintiff. This conclusion

comports with the language of the statute, interpretation of the

statute by the state courts, and recent First Circuit case

4 authority. See F.W. Morse, slip o p . at 29-32 (existence of

federal Title VII remedy for gender-based and pregnancy

discrimination precludes common law wrongful discharge claim);

RSA § 354-A:25 (indicating that the act is exclusive remedy "as

to acts declared unlawful by this chapter"); Howard,

,

(1980) (common law wrongful discharge

claim barred where based on allegations of age discrimination);

c f . Miller,

(common law wrongful discharge

claim not barred where "plaintiff has not stated a claim for

which a statute provides a remedy or sets forth procedures for

pursuing such action"); Wenners,

,

(common law wrongful discharge claim not barred where federal

statute did prohibit the unlawful conduct alleged but did not

provide a remedy or procedures for pursuing such illegality

against private employer). 1 Accordingly, the wrongful discharge

claim asserted in count two is dismissed.

1 The plaintiff relies on Godfrey v . Perkins-Elmer Corp.,

(D.N.H. 1992), for the proposition that common law wrongful termination claims co-exist with the statutory remedies. Plaintiff's Memorandum at 4-6. The reliance is misplaced given the overwhelming weight of contrary authority, discussed supra, and the First Circuit's recent suggestion that, at least with respect to their non-exclusive remedy holdings, Godfrey and Kopf v . Chloride Power Electronics, Inc.,

(D.N.H. 1995), are "consign[ed] to the scrap heap." F.W. Morse, slip o p . at 31 n . 1 1 .

5 B. Count Three: Infliction of Emotional Distress

Count three asserts claims for the intentional and negligent

infliction of emotional distress. The plaintiff alleges that

Griswold, with the defendant's knowldge, "intentionally and

recklessly subjected [the plaintiff] to sexual harassment and

verbal abuse" of an extreme and outrageous nature and that the

defendant was aware of this conduct. Complaint at ¶¶ 43-47. As

a result, the plaintiff allegedly suffered significant physical

and emotional injury as well as financial harm. Id. at ¶¶ 47-48.

This court has repeatedly and consistently ruled that claims

for emotional distress, whether sounding in negligence or

intentional tort, are barred by the exclusivity provisions of the

state workers' compensation statute, RSA § 281-A:8(I). See,

e.g., Sweet v . Hadco Corp., N o . 95-576-M, slip o p . at 3-4 (D.N.H.

Jan. 1 8 , 1996) (citing Miller v . CBC Companies, N o . 95-24-SD,

slip o p . (D.N.H. Nov. 2 9 , 1995)); Bartholomew v . Delhaye, N o . 95-

20-B, slip o p . (D.N.H. Nov. 8 , 1995)); Frechette v . Wal-Mart

Stores, N o . 94-430-JD, slip o p . at 10-11 (D.N.H. Sept. 2 6 , 1995)

(citing Brewer v . K.W. Thompson Tool Co.,

(D.N.H. 1986)).

The plaintiff responds that the "workers' compensation

statute does not bar an employee from suing co-employees for

intentional torts. Because the plaintiff alleged in her

6 complaint that Ed Griswold, a Wal-Mart employee intentionally

inflicted emotional distress upon her, RSA § 281-A:8 does not bar

her claims." Plaintiff's Objection to Motion to Dismiss at ¶ 3 .

The argument fails. The only defendant to this action is Wal-

Mart, the plaintiff's employer. Thus, it is entirely irrelevant

that an unasserted claim against an unnamed defendant would not

be barred by the statute. The plaintiff's remaining arguments,

including her analogy to

, are also without

merit. Accordingly, the intentional and negligent infliction of

emotional distress claims asserted in count three are dismissed.

C. Count Five: Claim Under RSA § 354-A

Count five asserts liability for a violation of the New

Hampshire human rights act, RSA § 354-A e t . seq.. The plaintiff

concedes that the claim is barred by Judge Devine's ruling in

Tsetseranos v . Tech Prototype, Inc.,

(D.N.H.

1995). See Plaintiff's Memorandum in Opposition to Motion to Dismiss at 1 2 . Accordingly, count five is dismissed.

Conclusion

The defendant's partial motion to dismiss (document n o . 13)

is granted with respect to the state law claims asserted in

counts two, three, and five. The dismissal of each state law

7 claim forecloses recovery of enhanced compensatory damages and,

as such, count four is dismissed as well. The sole remaining

claim is asserted under Title VII (count o n e ) .

SO ORDERED.

Joseph A . DiClerico, J r . Chief Judge March 1 5 , 1996 cc: Vincent A . Wenners Jr., Esquire E . Tupper Kinder, Esquire

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