Trudell v. Spaulding Composites CV-97-181-SD 01/12/98

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Vicki Trudell

v. Civil No. 97-181-SD

Spaulding Composites Company; Kim A. Sullivan

O R D E R

The plaintiff Vicki Trudell filed this sexual harassment and

employment discrimination claim against her former employer,

Spaulding Composites Company (Spaulding), and former supervisor,

Kim Sullivan. Plaintiff alleges violations of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count I),

common law wrongful discharge and constructive wrongful discharge

(Counts II and III), intentional and negligent infliction of

emotional distress (Counts IV, V, VI, and VII), and assault and

battery (Count VIII). Presently before the court is defendant

Spaulding's motion to dismiss Counts II and III as precluded by

the Title VII claim and Counts IV, VI, and VIII as barred by the

New Hampshire Workers' Compensation Act's exclusivity provision.

Defendant Sullivan also has moved to dismiss for lack of subject

matter jurisdiction or, in the alternative, under Rule 12(b)(6). Background

Spaulding hired Trudell as an accountant in March of 1995.

On various occasions Sullivan, one of Trudell's supervisors,

touched her and made unwelcome and inappropriate comments to her.

Trudell reported these incidents to the accounting supervisor,

Paulette DeDomenico. When Sullivan's touching continued despite

her complaints, Trudell gave her resignation, stating that she

could not longer work for a company that tolerated sexual

harassment. After receiving Trudell's resignation. Human

Resources Manager Dave Marshall conducted an investigation and

told Trudell that Sullivan had received a written warning.

Trudell subsequently rescinded her resignation. Spaulding,

however, reconsidered the resignation and terminated Trudell.

Discussion

I. Standard for Dismissal

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

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 [her] favor." Pihl v. Massachusetts Dep't of Educ.,

(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)).

II. Spaulding's Motion to Dismiss

a. Wrongful Discharge

Spaulding contends that Title VII supplants Trudell's claims

for wrongful termination. Under New Hampshire law an employer

cannot terminate an at-will employee for a reason that violates

public policy. See Monge v. Beebe Rubber Co.,

,

(1974). "[T]o 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.

3 denied,

(1996). Because a termination only

violates the law if it is based on the employee's act or refusal

to act, the law does not cover a situation in which the employer

fires an employee because of his or her status. See Howard v.

Dorr Woolen C o .,

,

(1980).

Thus, if Trudell's claim is that Spaulding fired her based upon

her sex, she does not state a claim for wrongful termination.

Trudell, however, argues that Spaulding discharged her in

retaliation for her complaints. Thus the question is whether

Title VII precludes this claim. The United States Court of

Appeals for the First Circuit has stated that under New Hampshire

law, "the existence of . . . a [statutory] remedy . . . precludes

. . . a common law claim for wrongful discharge." Smith v. F.W.

Morse & Co.,

(1st Cir. 1996). Therefore,

Trudell's wrongful discharge claim is barred because Title VII

provides a remedy for such retaliatory discharge. See 42 U.S.C.

§ 2000e-3(a) (making it unlawful to discriminate against employee

who opposes practice made unlawful by Title VII or makes a charge

under Title VII).

b. Workers' Compensation Exclusivity Provision

Spaulding argues that Trudell's emotional distress claims

are barred by the exclusivity clause of New Hampshire's Workers'

Compensation Law, which states, "An employee . . . shall be

4 conclusively presumed to have accepted the provisions hereof and

. . . to have waived all rights of action whether at common law

or by statute . . . against the employer . . . RSA 281:12

(1987)

The workers' compensation law prevents employees from

bringing common law claims against their employers for personal

injuries arising out of the employment relationship. O'Keefe v.

Associated Grocers of New England, Inc,

,

(1980). Emotional distress is considered a

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

exclusive remedy. See Censullo v. Brenka Video,

(1st Cir. 1993) (interpreting New Hampshire law). 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, Inc.,

(D.N.H.

1995). In some cases, courts will allow an employee to sue an

employer when the employer personally and intentionally caused an

injury. See 6 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 § 68.00 (1997) .

However, when a co-employee intentionally causes an injury, the

exclusivity provision bars suits against the employer. Thus

Trudell's claims of negligent and emotional distress against

Spaulding are barred.

Because Trudell's assault and battery claims against

Spaulding are also claims against the employer for torts

5 committed by a co-worker, they are barred by the workers'

compensation exclusivity provision.

III. Sullivan's Motion to Dismiss

Because the New Hampshire Workers' Compensation Act bars all

suits against co-workers unless based upon an intentional tort,

Trudell's negligent infliction of emotional distress claim

clearly is barred. See RSA 281:12, supra. Of course, the

workers' compensation bar does not prohibit Trudell's claim of

intentional infliction of emotional distress against Sullivan.

Sullivan, however, argues that the court should decline to

exercise jurisdiction over Trudell's claim of intentional

infliction of emotional distress. In a civil action in which the

court has original jurisdiction, it also has "supplemental

jurisdiction over all other claims that are so related to claims

in the action within such original jurisdiction that they form

part of the same case or controversy. . . ."

(a)

(1994). Section 1367, however, provides narrow instances in

which the court may decline to exercise its supplemental

jurisdiction. See

§ 1367(c). One of these exceptions allows

the court to decline jurisdiction when a case presents a novel or

complex issue of state law. See id. According to Sullivan,

Trudell's claim of intentional infliction of emotional distress

6 presents a novel or complex issue of state law over which the

court should decline to exercise its supplemental jurisdiction.

The court does not believe that the tort of intentional

infliction of emotional distress is sufficiently novel or complex

to warrant refusing jurisdiction. The New Hampshire Supreme

Court explicitly has recognized intentional infliction of

emotional distress, and has defined its elements. See Morancv v.

Morancv,

,

(1991)

(quoting R e s t a t e m e n t (S e c o n d ) o f T o r t s § 46 (1965) ) . This court also

has previously dealt with claims of intentional infliction of

emotional distress. See, e.g., Godfrey v. Perkin-Elmer Corp.,

(D.N.H. 1992); Orono Karate, Inc. v .

Fred Villari Studio of Self Defense, Inc.,

(D.N.H. 1991) .

In the alternative, Sullivan argues that the court should

dismiss Trudell's intentional infliction of emotional distress

claim under Rule 12(b)(6). According to Sullivan, Trudell's

complaint does not allege sufficiently "outrageous" conduct, or

emotional distress severe enough to support a claim for

intentional infliction of emotional distress.

The New Hampshire Supreme Court, relying on 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 has set forth the elements of intentional

infliction of emotional distress as follows:

"One who by extreme and outrageous conduct intentionally or recklessly causes severe

7 emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

Morancv, supra,

,

(quoting

R estatement (S e c o n d ) o f T o r t s § 46 (1965) ) .

To survive the instant motion to dismiss, plaintiff need not

establish the likelihood of success on the merits, but only that

she is entitled to offer evidence to support her claim. See

(citing

). "In that regard, she must set forth 'factual

allegations, either direct or inferential, respecting each

material element necessary to sustain recovery' under the theory

of intentional infliction of emotional distress. . . ."

(quoting Roth v. United States,

(1st Cir.

1991)) .

New Hampshire has adopted the R e s t a t e m e n t ' s definition of

outrageous conduct. See Jarvis v. Prudential Ins.,

,

(1982) (citing R e s t a t e m e n t with approval).

The R e s t a t e m e n t provides that conduct is outrageous when "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!'" Restatement, supra, § 46, comment d. When

determining whether conduct is "outrageous," the context is

relevant. Thus,

8 though the social context may make some questionable conduct tolerable, the same social context may make other acts especially outrageous. Sexual harassment on the job is undoubtedly an intentional infliction of emotional distress, for example, and harassment is probably more readily found in the acts of a supervisor than in the acts of acquaintances at a dinner party.

Pro ss er and K eeton on the La w of T orts § 12 (5th ed. Supp. 1988) .

Based upon Trudell's allegation that Sullivan continually made

offensive sexual statements and unconsented physical contact, the

court finds that the conduct alleged is sufficiently outrageous

to support a claim for intentional infliction of emotional

distress.

New Hampshire also has adopted the R e s t a t e m e n t ' s definition of

severe emotional distress. "Complete emotional tranquillity is

seldom attainable in this world, and some degree of transient and

trivial emotional distress is a part of the price of living among

people. The law intervenes only where the distress inflicted is

so severe that no reasonable man could be expected to endure it."

Morancv, supra,

,

(citing

R estatement supra, § 46, comment j) . At this juncture, the court

is satisfied that Trudell's allegation that she suffered

emotional anguish with physical manifestations is sufficient to

survive Sullivan's motion to dismiss.

9 Conclusion

For the abovementioned reasons, Spaulding's motion to

dismiss the state law claims (document no. 7) is granted, thereby

dismissing Counts II, III, IV, VI, and VIII against defendant

Spaulding. Sullivan's motion to dismiss (document no. 9) is

granted in part and denied in part. Count VII against Sullivan

is dismissed.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

January 12, 1998

cc: Leslie H. Johnson, Esq. Lawrence M. Edelman, Esq. Daniel P. Schwarz, Esq.

10