Page v. Development Services CV-97-622-JD 05/07/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Catherine Page, et al.

v. Civil No. 97-622-JD

Developmental Services of Strafford County, et al.

O R D E R

The plaintiffs, Catherine Page and Estelle Thibodeau, have

filed this employment discrimination action against the

defendants. Developmental Services of Strafford County, Inc.

("DSSC"), their former employer, and Raymond Blodgett, their

former supervisor. The case was originally filed in the Superior

Court for Stafford County, New Hampshire, but, pursuant to

and 1446, DSSC removed the case to this court.

Before the court is DSSC's motion for judgment on the pleadings

against it in counts II, III, V, VII, and VIII (document no. 9) .1

Background2

The plaintiffs allege that they were actually or

constructively terminated from their employment at DSSC both

defendant Blodgett has not joined DSSC's motion for judgment on the pleadings.

2The facts relied on by the court in the resolution of the instant motion are not in dispute. because of a hostile work environment based on sexual harassment

and in retaliation for reporting incidents of sexual harassment

by defendant Blodgett during the course of their employment. The

plaintiffs presented their sexual harassment claims to the Egual

Employment Opportunity Commission ("EEOC") and obtained a right

to sue notice.

The plaintiffs' complaint alleges the following claims:

violation of Title VII of the Civil Rights Act of 1964 ("Title

VII"), 42 U.S.C. §§ 2000e to 2000e-17, (count I); common law

wrongful termination (count II); breach of the covenant of good

faith and fair dealing (count III); violation of personnel

policies (count IV); violation of the Americans with Disabilities

Act ("ADA"),

, (count V); violation of

the Family and Medical Leave Act of 1993,

,

(count VI); intentional infliction of emotional distress (count

VII); and negligent infliction of emotional distress (count

VIII). DSSC has moved for judgment on the pleadings on the

claims against it in counts II, III, V, VII, and VIII.

Discussion

A motion for judgment on the pleadings will be granted if,

accepting all of the plaintiffs' factual averments contained in

the complaint as true, and drawing every reasonable inference

2 helpful to the plaintiffs' cause, "it appears beyond doubt that

[they] can prove no set of facts in support of [their] claim

which would entitle [them] to relief." Rivera-Gomez v. de

Castro,

(1st Cir. 1988); see Republic Steel

Corp. v. Pennsylvania Enq'q Corp.,

(7th Cir.

1986) (standard for evaluating Rule 12(c) motion is essentially

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

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

[plaintiffs] will ultimately prevail but whether [they are]

entitled to offer evidence to support the claims." Scheuer v.

Rhodes,

(1974) (motion to dismiss under Fed. R.

Civ. P. 12 (b) (6)) .

A. Wrongful Termination and Breach of the Covenant of Good Faith and Fair Dealing

In count I, the plaintiffs allege that DSSC violated their

rights under Title VII both by creating a hostile work

environment and by retaliating against the plaintiffs for

reporting the sexual harassment by Blodgett. In counts II and

III, the plaintiffs allege claims against DSSC for wrongful

termination and breach of the covenant of good faith and fair

dealing, respectively, based on the alleged retaliation. DSSC

urges that it is entitled to judgment on the pleadings on the

3 plaintiffs' claims in counts II and III because these common law

claims have been replaced by statutory remedies. The plaintiffs

contend that neither Title VII nor New Hampshire Rev. Stat. Ann.

("RSA") § 354-A was intended to supplant the plaintiffs' common

law claims.

The Supreme Court of New Hampshire has ruled that "a

plaintiff may not pursue a common law remedy where the

legislature intended to replace it with a statutory cause of

action." Wenners v. Great State Beverages, Inc.,

,

(1995); accord Miller v. CBC Cos.,

(D.N.H. 1995). The First Circuit, faced with

the question of whether an available Title VII remedy for gender

discrimination supplanted a New Hampshire common law wrongful

discharge claim based on the same conduct, has held as follows:

Under Wenners, the existence of [a Title VII] remedy precludes the [plaintiffs], in the circumstances of this case, from asserting a common law claim for wrongful discharge.

Smith v. F.W. Morse & Co.,

(1st Cir. 1996). The

plaintiffs assert that the First Circuit's conclusion in Smith is

"clearly inconsistent" with Wenners and invite the court to

"revisit" the First Circuit's holding on that basis. See Pis.'

Mem. of Law in Supp. of Objection to DSSC's Mot. for J. on

Pleadings ("Pis.' Mem.") at 4 n.l. However, there is no

4 principled basis for the court not to apply controlling First

Circuit precedent and therefore DSSC is entitled to judgment on

the pleadings on the plaintiffs' wrongful termination claim. See

also Foster v. Wal-Mart, Inc., Civil No. 94-571-JD, slip op. at

2-5 (D.N.H. Mar. 15, 1996) (dismissing wrongful discharge claim

as supplanted by RSA § 354-A).

The plaintiffs' claim for breach of the covenant of good

faith and fair dealing fares no better. The plaintiffs, pointing

to Frechette v. Wal-Mart Stores, Inc.,

(D.N.H. 1995), argue that they are entitled to bring the claim

because they can satisfy the public policy element of the action.

They base this argument on the following statement by the court:

It follows that any claim of a terminated at-will employee based on a contract theory must still be brought under the rubric of wrongful termination and, as such, must satisfy the public policy component of that cause of action. Accordingly, the court holds that a separate contractual remedy is not available to an at-will employee who alleges that she was terminated in bad faith but cannot satisfy the public policy prong of the wrongful termination cause of action.

Although the guoted language could be interpreted to provide

some support for the plaintiffs' position, taken in context, it

does not stand for the proposition they advocate. The fact that

a plaintiff may not bring a claim for breach of the covenant of

good faith and fair dealing without satisfying the public policy

reguirement does not mean that every plaintiff who is able to

5 satisfy the public policy requirement may bring such a claim.

Although Wenners and Howard v. Dorr Woolen Co.,

,

(1980), upon which Wenners relied, dealt only

with wrongful termination claims, the language in Wenners

indicates that not only wrongful termination but also other

common law remedies may be replaced by statutory causes of

action. See

,

("[A] plaintiff may

not pursue a common law remedy where the legislature intended to

replace it with a statutory cause of action . . .") (emphasis

added). Here, as in Robinson v. Caronia Corp., the plaintiffs'

"claims for wrongful discharge and good faith and fair dealing

are indistinguishable." See Civil No. 92-306-B, slip op. at 6

(D.N.H. Jan. 4, 1996). The conduct alleged by the plaintiffs in

count III is the same prohibited retaliation alleged in counts I

and II. Under these circumstances, the same rule to be applied

to the plaintiffs' wrongful termination claim must also be

applied to their claim for breach of the covenant of good faith

and fair dealing -- both common law actions are supplanted by

statutory remedies. Accordingly, DSSC's motion for judgment on

the pleadings in counts II and III is granted.

6 B. Americans With Disabilities Act Claim

In count V, plaintiff Page alleges that DSSC discriminated

against her on the basis of a disability in violation of the

American with Disability Act ("ADA"). DSSC asserts that it is

entitled to judgment on the pleadings in this count because Page

failed to comply with the administrative filing reguirements of

42 U.S.C. § 2000e-5, which have been held to be applicable to ADA

cases. See Moher v. Chemfab Corp.,

(D.N.H.

1997). Page's rebuttal to this allegation is twofold: first, by

failing to state this particular defense in its pleading DSSC has

waived the defense; and second, the charge that she filed with

the Egual Employment Opportunity Commission ("EEOC") satisfies

the administrative filing reguirement by providing reasonable

notice that Page intended to pursue an ADA claim.

The memoranda filed by the parties make it appear that Page

included in her claim to the EEOC an assertion that she suffered

post-traumatic stress disorder ("PTSD") but did not check off the

box on the charge of discrimination form indicating that she was

pursuing a claim for disability discrimination. See Pis.' Mem.

at 8; DSSC's Reply Mem. in Supp. of Mot. for J. on the Pleadings

at 4. However, in this case the pleadings of the parties and

supporting exhibits lack even the most cursory details about

Page's ADA claim. Assuming arguendo that DSSC did preserve its

7 right to raise lack of compliance with the administrative filing

reguirement as an affirmative defense, the parties have failed to

provide appropriate supporting documentation necessary for the

court to adjudicate the merits of the argument. Most notably

absent from the filings are copies of the plaintiff's charge of

discrimination form and the EEOC's right to sue letter. Without

this information, at a minimum, the court cannot ascertain in the

context of this motion for judgment on the pleadings that Page

can prove no set of facts in support of her claim which would

entitle her to relief. Therefore, DSSC's motion for judgment on

the pleadings in count V is denied.

C. Intentional and Negligent Infliction of Emotional Distress

DSSC has also moved for judgment on the pleadings on the

plaintiffs' claims against it for intentional infliction of

emotional distress and negligent infliction of emotional distress

in counts VII and VIII, respectively. The plaintiffs have

assented to dismissal of these counts as to DSSC but assert that

the counts against Blodgett should not be dismissed. Blodgett

has not joined in DSSC's motion. The court grants DSSC's motion

for judgment on the pleadings in counts VII and VIII. Conclusion

For the reasons stated above, DSSC's motion for judgment on

the pleadings (document no. 9) is granted as to counts II, III,

VII, and VIII and denied as to count V.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

May 7, 1998

cc: Benjamin T. King, Esguire Mark T. Broth, Esguire Warren C. Nighswander, Esguire Debra Weiss Ford, Esguire