Martin v. Atomic Ski CV-95-583-SD 03/18/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Roland Martin

v. Civil No. 95-583-SD

Atomic Ski USA, Inc.; Randy Loubier

O R D E R

In this civil action, plaintiff Roland Martin alleges that

defendant Atomic Ski USA, Inc., a New Hampshire corporation,

engaged in discriminatory hiring practices in violation of the

Age Discrimination in Employment Act (ADEA),

, et

sea. Plaintiff further alleges that Atomic's actions amount to

the negligent infliction of severe emotional distress and that

defendant Randy Loubier, Atomic's chief financial officer,

intentionally inflicted such emotional distress. Over and above

the discrimination and emotional distress claims, plaintiff also

seeks enhanced compensatory damages.

Presently before the court is defendants' motion to dismiss

all but the federal claim, to which plaintiff objects. Background

In October 1994, at the age of 53, plaintiff applied and was

interviewed for the position of M.I.S. Manager with Atomic.

Complaint 55 5, 7. Plaintiff asserts that despite his "twenty-

five years of experience in the data processing and computer

management field,"

5 6, defendant Loubier allegedly

telephoned plaintiff subseguent to the interview and "inform[ed]

him that although he was a top candidate, he had decided to hire

. . . a person under the date of forty to fill the position of

M.I.S. Manager,"

55 10-11. Plaintiff further asserts that

subseguent to the hiring decision, "John Douglas, President of

Atomic, apologized to plaintiff for the decision not to hire

him."

5 12.

Martin thereafter timely filed a charge of discrimination

with the New Hampshire Commission for Human Rights and the Egual

Employment Opportunity Commission on March 10, 1995.

5 14.

On December 4, 1995, plaintiff filed a four-count complaint with

this federal court charging Atomic with negligent infliction of

emotional distress and a violation of the ADEA (Counts I, II),

charging Loubier with intentional infliction of emotional

distress (Count III), and seeking enhanced compensatory damages

against both defendants (Count IV).

2 Discussion

1. Motion to Dismiss Standard

When a court is presented with a motion to dismiss filed

under Rule 12(b)(6), Fed. R. Civ. P.,1 "its task 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,

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

factual averments as true and indulges every reasonable inference

in plaintiff's favor. Talbott v. C.R. Bard, Inc.,

(1st Cir. 1995) (citing Garita Hotel Ltd. Partnership v. Ponce

Fed. Bank F .S .B .,

(1st Cir. 1992), petition for

cert, filed.

(U.S. Feb. 16, 1996) (No. 95-1321);

Dartmouth Review v. Dartmouth College,

(1st Cir.

1989)) .

In the complaint, a plaintiff is merely reguired to present

"'a short and plain statement of the claim' . . . that will give

the defendant fair notice of what the plaintiff's claim is and

the grounds upon which it rests." Conley v. Gibson,

(1957) (guoting Rule 8(a)(2), Fed. R. Civ. P.); see also RTC

1The court declines plaintiff's suggestion that the instant motion be treated as one brought under Rule 1 2 (c), Fed. R. Civ. P., for judgment on the pleadings. Only the facts alleged in plaintiff's complaint will be utilized by the court in its effort to resolve the instant motion.

3 v. Driscoll,

(1st Cir. 1993) ("At the start, a

reasonable basis for belief and an outline of what one might

reasonably hope to prove may suffice to permit discovery and ward

off premature motions to dismiss.").

Although the standard hereinabove set forth may appear

minimal, Boston & Me. Corp. v. Town of Hampton,

(1st Cir. 1993), it is not nonexistent, Goolev v. Mobil Oil

Corp.,

(1st Cir. 1988) . And despite the

otherwise deferential reading accorded the complaint. Brown v.

Hot, Sexy & Safer Prods, Inc.,

(1st Cir. 1995)

(citing Vartanian v. Monsanto Co.,

(1st Cir.

1994)), cert, denied,

(U.S. Mar. 4, 1996) (No.

95-1158), the court remains resolute in ensuring that "each

general allegation [is] supported by a specific factual basis,"

Fleming v. Lind-Waldock & Co.,

(1st Cir. 1990)

(citing Dewey v. Univ. of N.H.,

(1st Cir. 1982),

cert, denied,

(1983)). Thus, "unsubstantiated

conclusions" or "subjective characterizations" are not given

serious credit. Correa-Martinez v. Arrillaqa-Belendez,

(1st Cir. 1990) (citations omitted).

4 2. Allegations of Emotional Distress

Plaintiff's complaint sets forth allegations of both the

negligent (against Atomic) and intentional (against Loubier)

infliction of emotional distress.

Insofar as plaintiff attempts to allege a claim based in

negligence, the New Hampshire Supreme Court has held "that before

a plaintiff can recover damages for emotional distress pursuant

to a negligence cause of action, he or she must prove that

physical injury resulted therefrom." Thorpe v. State,

,

(1990). Thus, a negligent infliction

of emotional distress claim will lie "if plaintiff can prove

physical injury or 'physical manifestations of his distress.'"

Orono Karate, Inc. v. Fred Villari Studio of Self Defense, Inc.,

(D.N.H. 1991) (citations omitted).2 Even

when recovery is allowed under this legal theory, "it is not

permitted for mere upset, humiliation, hurt feelings, or bad

manners."

(citations omitted) (emphasis added).

2The court is mystified by plaintiff's reading of Orono Karate, Plaintiff's Objection at 2, to the extent that it purports to describe Orono Karate as involving the New Hampshire workers' compensation statute. New Hampshire Revised Statutes Annotated (RSA) 251-A:8 (Supp. 1994). The plaintiff in Orono Karate was seeking damages under both tort and contract theories for the alleged breach of a licensing agreement. See Orono Karate, supra,

. The workers' compensation statute simply played no part in the court's analysis.

5 In pertinent part, the sum of plaintiff's negligence claim

is as follows.

20. Defendant Atomic had a duty not to subject the plaintiff to unlawful discrimination on the basis of his age. 21. Defendant Atomic breached its duty by using plaintiff's age as a determining factor in its decision not to hire plaintiff and by otherwise engaging in unlawful employment practices. 22. The conduct of defendant Atomic caused plaintiff to suffer severe emotional distress, including but not limited to, anxiety and humiliation.

Complaint 55 20-22. To the extent that plaintiff bases such

claim on any humiliation suffered, recovery is not permitted.

See Orono Karate, supra,

. Anxiety, however,

is a different matter altogether.3 If properly substantiated by

expert testimony, plaintiff's alleged anxiety condition will

substantiate a negligence-based emotional distress claim. At

this early stage of the litigation, the court cannot discount the

3Anxiety is defined as

the unpleasant emotional state consisting of psvchophvsiological responses to anticipation of unreal or imagined danger, ostensibly resulting from unrecognized intrapsychic conflict. Physiological concomitants include increased heart rate, altered respiration rate, sweating, trembling, weakness, and fatigue; psychological concomitants include feelings of impending danger, powerlessness, apprehension, and tension.

D o r l a n d 's I l l u s t r a t e d M e d i c a l D ictionary 102 (28th ed. 1994) (emphasis

added).

6 claim as alleged, and thus denies defendants' motion to dismiss

as to Count II.

Plaintiff's claim of intentional infliction of emotional

distress does not enjoy the benefit of such a lax standard. "To

state a claim for intentional infliction of emotional distress,

plaintiff must allege that through extreme and outrageous conduct

defendants intentionally or recklessly caused severe emotional

distress." Miller v. CBC Cos., Inc.,

(D.N.H. 1995) (citing Morancv v. Morancv,

,

(1991) (citing R e s t a t e m e n t (S e c o n d ) of T orts § 46

(1965))) .

The benchmark contemplated by the Restatement, and adopted in

New Hampshire, accords liability under this legal theory

only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

Restatement, supra, § 46, cmt. d. As a matter for the court to

determine in the first instance, id. § 46, cmt. h, conduct

7 falling short of being unusually outlandish or atrocious rarely

passes muster.

The basis for plaintiff's intentional infliction of

emotional distress claims is stated as follows.

24. The conduct of defendant Loubier in using plaintiff's age as a determining factor in his decision not to hire plaintiff and in otherwise engaging in unlawful employment practices was extreme and outrageous. 25. The extreme and outrageous conduct of Mr. Loubier intentionally or recklessly caused plaintiff to suffer severe emotional distress, including but not limited to, anxiety and humiliation.

Complaint 55 24-25. On the strength, or weakness, of the

conclusory allegations stated in plaintiff's complaint, the court

finds neither extreme nor outrageous nor atrocious nor "utterly

intolerable" conduct or behavior on defendant Loubier's part.

Although discriminatory hiring practices will not be tolerated in

a civilized society, plaintiff's "subjective characterizations,"

, do not properly

substantiate his claim of intentional infliction of emotional

distress. Count III accordingly is dismissed without prejudice.

3. Enhanced Compensatory Damages

Except in certain statutorily identified instances not here

relevant, punitive damages are not permitted under New Hampshire

law. See RSA 507:16 (Supp. 1994). However, "the New Hampshire Supreme Court [has] authorized the augmentation of compensatory

damages in certain cases." DCPB, Inc. v. City of Lebanon,

(1st Cir. 1992) (citing Vratsenes v. N.H. Auto,

Inc.,

,

(1972)). "In practical operation

it is only when a wrongdoer's actions are 'wanton, malicious, or

oppressive' that enhanced damages become appropriate."

(citation omitted); see also Aubert v. Aubert,

, 431

(1987) ("'when the act involved is wanton,

malicious, or oppressive, the compensatory damages awarded may

reflect the aggravating circumstances'" (guoting

,

)). That said, "[s]uch

liberal damages are not awarded in every case involving an

intentional tort, and the evidence must demonstrate actual

malice, i.e., hatred, hostility, ill will, or evil motive on the

part of the defendant." DeMeo v. Goodall,

(D.N.H. 1986) (citing Munson v. Raudonis,

, 479

(1978)).

The enhanced compensatory damages claim is therefore

dependent upon the viability of plaintiff's intentional tort

claim. Insofar as such claim has been herein dismissed, the

court further dismisses, without prejudice, the enhanced

compensatory damages claim as well (Count IV). Conclusion

For the reasons set forth herein, defendants' motion to

dismiss (document 5) is granted in part and denied in part. The

motion is denied as to the claim of negligent infliction of

emotional distress (Count II) and granted as to the claims for

intentional infliction of emotional distress (Count III) and

enhanced compensatory damages (Count IV). Counts III and IV are

herewith dismissed without prejudice.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

March 18, 1996

cc: Robert E. McDaniel, Esg. James W. Donchess, Esg.

10