Carroll v. Venturi Holding Co. CV-97-324-SD 02/09/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Michael P. Carroll, et al

v. Civil No. 97-324-SD

Venturi Holding Company, I n c ., et al

O R D E R

Plaintiffs Michael P . , Sherrie, Michael A . , and Bryan

Carroll (the Carrolls) initiated this civil action against

defendants Venturi Holding Company, d/b/a/ The Williams Group

(TWG), and Michael Williams for damages caused by defendants'

termination of the employment of Michael P. Carroll (Carroll).

Plaintiffs allege that TWG and Williams discriminated against

Carroll because of disability in violation of the Americans with

Disabilities Act,

, et seq. (ADA), and the New

Hampshire Law Against Discrimination, Revised Statutes Annotated

(RSA) 354-A:2 (Counts I and II). Plaintiffs also allege breach

of contract (Count III), intentional infliction of emotional

distress (Count IV), loss of consortium (Count V ) , and loss of

parental support (Count V I ) . Currently before the court is

defendants' motion to dismiss all counts under Rule 12(b)(6),

Fed. R. Civ. P. Background

TWG develops and manages commercial real estate. On

April 10, 1995, TWG engaged Carroll as an independent consultant

to work at its Newfields, New Hampshire, location. TWG

subsequently hired Carroll as a regular employee, naming him

Controller on April 30, 1995. On May 17, 1995, TWG promoted

Carroll to Chief Financial Officer. In August 1995, TWG gave

Carroll the additional title of Chief Operating Officer and

indicated that it was pleased with Carroll's work and would

adjust his $75,000 salary to reflect that he was performing the

functions of both CFO and COO. TWG increased Carroll's salary on

October 17, but the adjustment was less than half of the increase

Carroll had recommended.

In October of 1995 Carroll was diagnosed with a potentially

fatal form of cancer that interferes with the functioning of the

pancreas. Carroll informed TWG of his diagnosis. On October 28,

1995, Carroll entered the hospital to undergo surgery for a

pancreatic tumor and was out of work for three weeks following

his surgery. Carroll returned to work on November 20, and began

a course of chemotherapy and radiation treatments on November 27.

In January of 1996 the relationship between Carroll and

Williams became strained. At a meeting on February 5, 1996,

Williams told Carroll that performing the duties of CFO and COO

was too much work, and he should go back to the role of CFO only.

TWG decreased Carroll's salary to $60,000.

2 On April 1 , 1996, TWG terminated Carroll's employment and

informed Carroll in writing that he would be paid until the end

of June, that he could retain the company vehicle until that

time, and that TWG would continue to provide full health

insurance coverage until he had completed his follow-up care

after surgery, which was scheduled for June 4, 1996. Despite

these assurances, TWG contacted Carroll on May 31 in an attempt

to repossess the car. After Carroll refused to return the

vehicle until June 28, TWG made several attempts to repossess the

vehicle by contacting the police and canceling the insurance on

the car.

On September 25, 1996, Carroll filed a charge of

discrimination with the New Hampshire Commission for Human Rights

and the Equal Employment Opportunity Commission (EEOC). On

October 22, the New Hampshire Commission for Human Rights

referred his complaint to the EEOC. Carroll received

notification of the EEOC's final determination of his charge on

March 31, 1997. Carroll filed suit in this court on June 30,

1997.

Discussion

1. Standard for Dismissal Under Rule 12(b)(6)

When a court is presented with a motion to dismiss filed

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

limited one. The issue is not whether a plaintiff will

3 ultimately prevail but whether the claimant is entitled to offer

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

(1974).

To resolve defendants' Rule 12(b)(6) motions, the court must

"take the well-pleaded facts as they appear in the complaint,

extending plaintiff every reasonable inference in his favor."

Pihl v. Massachusetts Dep't of E d u c . ,

(1st Cir.

1993) (citing Coyne v. City of Somerville,

(1st Cir. 1992)). The court may properly dismiss a claim under

Rule 12(b)(6) "'only if it clearly appears, according to the

facts alleged, that the plaintiff cannot recover on any viable

theory.'" Garita Hotel Ltd. Partnership v. Ponce Fed. Bank,

F.S.B.,

(1st Cir. 1992) (quoting Correa-Martinez

v. Arrillaga-Belendez,

(1st Cir. 1990)).

2. ADA Claim

Defendants assert that Carroll's ADA claim is untimely.

According to 42 U.S.C. § 2000e-5(f)(1), any suit brought pursuant

to that chapter must be filed within ninety days after receipt of

the EEOC's final disposition of the claim. Defendants argue that

because Carroll's right-to-sue letter was dated March 26, the

court must presume that Carroll received it three days later.

Thus, if Carroll received the letter on March 29, the time for

filing suit would have expired before he initiated this case on

June 30. However, as defendants acknowledge in their memorandum,

4 "there is a presumption, absent evidence presented by the

plaintiff to the contrary, that such receipt occurs three days

after posting of the right-to-sue letter." Defendants'

Memorandum of Law in Support of Motion to Dismiss the Plaintiffs'

Complaint at 5 (emphasis added). In this case, Carroll has

presented evidence that the right-to-sue letter was received on

March 31, 1996. Specifically, Carroll has produced the affidavit

of his attorney's receptionist, who opened the letter and stamped

it received, as well as a copy of the envelope bearing the date

stamp. Thus, in the presence of evidence of the actual date of

receipt, the court has no need to apply a presumption.

3. New Hampshire Law Against Discrimination

Defendants ask the court to dismiss Carroll's claim under

RSA 354-A:21, because the court lacks jurisdiction to decide the

claim. As this court has held previously, RSA 354-A:21 does not

create a cause of action in a federal court. See Tsetseranos v.

Prototype, I n c .,

(D.N.H. 1995). "[U]nder

RSA 354-A, . . . individuals are limited to seeking relief

through the administrative process created by the statute and to

obtaining judicial review of the results thereof in state court."

5 4. Contract Claim

Defendants argue that the court should dismiss Carroll's

breach of contract claim because "no contract of any kind existed

as to Mr. Carroll's employment." Defendants' Memorandum at 8.

However, defendants concede that "the plaintiffs have alleged

that an employment contract existed," and "TWG disputes this

allegation." Id. n.7. Thus, by defendants' own admission,

Carroll's complaint does state a claim upon which relief may be

granted. Defendants simply dispute the claim.

In their memorandum, however, plaintiffs assert that even if

Carroll did not have an employment contract, his termination

violated public policy, and therefore was actionable under New

Hampshire law. The court, however, finds that the complaint does

not state a claim based upon wrongful discharge. "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,

,

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

,

(1992)), cert, denied.

(1996).

The United States Court of Appeals for the First Circuit has

stated that under New Hampshire law, "the existence of [a

6 statutory] remedy . . . precludes ... a common law claim for

wrongful discharge." Smith v. F.W. Morse & C o . ,

(1st Cir. 1996). Thus, to state a claim for wrongful discharge,

the plaintiff must allege that his employer terminated him

because he performed an act public policy would encourage, and

for which there is no statutory remedy. The complaint in this

case does not allege that Carroll was terminated for performing

an act public policy would encourage. Furthermore, the ADA

provides a remedy for the conduct Carroll alleges. Thu s ,

although Count III does state a claim for breach of contract,it

does not state a claim for wrongful discharge.

5. The Workers' Compensation Exclusivity Provision

Defendants correctly argue that "the plaintiffs are

precluded by N.H. RSA 281-A:8 from bringing a common-law action

for personal injury against TWG . . . ." Defendants' Memorandum

at 10. The workers' compensation law prevents employees from

bringing common-law claims against their employers for personal

injuries arising out of the employment relationship, and

precludes employees' spouses from bringing loss of consortium

claims based on such injuries. See Young v. Prevue Products,

Inc..

,

(1987); O'Keefe v.

Associated Grocers of New England I n c ,

,

(1980). Emotional distress is considered a

"personal injury," for which workers' compensation is the

7 exclusive remedy. See Censullo v. Brenka V i d e o ,

(1st Cir. 1993) (interpreting New Hampshire L a w ) . Furthermore,

the bar applies to suits against employers, regardless of whether

the claim is based on negligence or an intentional tort. See

Miller v. CBC Companies, In c . ,

(D.N.H.

1995).

The Carrolls, however, assert that their intentional

infliction of emotional distress claim is against Williams in his

individual capacity, rather than against TWG. The court finds

that, drawing every inference in the Carrolls' favor, their

complaint does state a claim against Williams. The Workers

Compensation exclusivity provision explicitly provides that

employees are presumed to have waived their right to sue "except

for intentional torts, against any . . . employee acting on

behalf of the employer. . . ." RSA 281:8, I. Thus, if Williams

was acting as an employee of TWG, he may still be sued under the

common law for his intentional torts. Although Williams may

dispute the assertion that he was acting as a co-employee rather

than as Carroll's employer, this issue cannot be decided at this

juncture in the litigation.

Furthermore, even if Williams was Carroll's employer, the

Carrolls' claim arguably may fall within an exception that allows

employees to maintain a common-law action against their employer

when the employer personally causes an intentional injury.

Numerous jurisdictions have held that an injury intentionally caused "by the employer upon the employee, when the employer acts

in person as distinguished from constructively through an agent,

will ground a common-law action for damages." 6 A rt h u r La r s o n ,

L a r s o n 's W o r k e r s ' C o m p e n s a t i o n L a w § 68.11 (1997) . There are two

strains of reasoning supporting this rule. First, courts reason

that because state workers' compensation laws only apply to

accidental injuries, an injury intentionally caused by the

employer is outside the scope of the system. Although an

intentional tort committed by a co-employee is accidental from

the employer's perspective, when the employer intentionally

causes the injury it can no longer be considered accidental. See

id. Second, as a policy matter, some courts are reluctant to

allow employers to injure employees intentionally and then evoke

the exclusivity bar of the Workers' Compensation Act. See id.

New Hampshire, however, has not explicitly recognized this

exception to the workers' compensation exclusivity provision, and

this court cannot decide whether this exception is recognized

under New Hampshire law until properly presented with the issue.

6. Loss of Parental Support

Defendants argue that New Hampshire law does not recognize a

claim for loss of parental support. According to the R e s t a t e m e n t

(S e c o n d ) o f T o r t s § 707A (1976) , "One who by reason of his tortious

conduct is liable to a parent for illness or other bodily harm is

not liable to a minor child for resulting loss of parental support and care." In the absence of compelling evidence that

New Hampshire would depart from this established rule, this court

will not recognize such a claim.

Conclusion

For the abovementioned reasons. Defendants' Motion to

Dismiss the Plaintiffs' Complaint (document 5) is denied in part

and granted in part. The defendants' motion is denied as to

Counts I, III, IV, and V.1 Counts II and VI are hereby

dismissed.2

SO ORDERED.

Shane Devine, Senior Judge United States District Court

February 9, 1998

cc: Jennifer A. Lemire, Esq. Alexander J. Walker, Esq.

1To the extent that counts IV and V state claims against TWG they are dismissed against TWG.

2Thus Bryan and Michael A. Carroll are not longer parties to this suit, as their only claim has been dismissed.

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