Real v. Riverbend Comm. MH CV-98-334-JD 01/26/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael J. Reale

v. Civil No. 98-334-JD

Riverbend Community Mental Health Inc., et al.

O R D E R

The plaintiff, Michael Reale, brings this action against the

defendants, Riverbend Community Mental Health Inc. and Karl

Boisvert, asserting violations of the Americans with Disabilities

Act and the federal Rehabilitation Act, and state law claims of

intentional infliction of emotional distress, breach of contract,

wrongful discharge, defamation, intentional interference with

contractual relations, and a violation New Hampshire's Law

Against Discrimination. Before the court now is the defendants'

motion to dismiss, or in the alternative, for judgment on the

pleadings (document no. 6) .

Background

The plaintiff was initially hired by Riverbend Community

Mental Health Inc. ("Riverbend") on June 16, 1986, although the

record does not reveal his position at that time. Over the next

ten years the plaintiff was repeatedly promoted, ultimately achieving the position of administrative coordinator of

residential services.

For the majority of his tenure at Riverbend, the plaintiff

received favorable evaluations and high praise and commendations

for his work. For example, in a 1993 evaluation by Dr. James

Wells, the plaintiff was found to perform oustandingly in

community relations and marketing, to consistently meet

expectations in the area of professional growth, and to perform

at an above-average level or better in all remaining areas. The

plaintiff also received unsolicited praise from colleagues and

others for his performance at Riverbend.

In 1994, Riverbend's employees discovered that the plaintiff

suffered from Attention Deficit Hyperactivity Disorder, or ADD.1

They also came to perceive the plaintiff as suffering from a

manic-depressive or bipolar disorder. At this juncture,

Riverbend's employees' perceptions of the plaintiff's performance

and abilities declined. His superior, Boisvert, came to regard

the plaintiff as incapable of producing timely, guality written

work. Boisvert and another employee prevented the plaintiff from

participating in employment-related meetings with individuals

that the plaintiff had worked with. The plaintiff was relegated

1The plaintiff uses the terms ADD and Attention Deficit Hyperactivity Disorder interchangeably.

2 to working from a broom closet, and his mental health became the

subject of Boisvert's and other employees' humor. Moreover,

Boisvert dismissed the plaintiff's work-related decisions as

irrational emotional obstructions and the product of the

plaintiff's emotional disposition. Boisvert asserted that the

plaintiff was unable to think and communicate rationally.

Meanwhile, the plaintiff received an unsolicited letter of thanks

from Corinne Stuttz for his helpfulness, presumably for the

manner in which he fulfilled his employment obligations.

After the positive 1993 evaluation of the plaintiff, a lapse

of otherwise routine evaluations ensued. In 1996, Boisvert

initiated a "special review" of the plaintiff in which the

plaintiff received poor evaluations. Boisvert also stated that

"[the plaintiff] has demonstrated a pattern of emotional reaction

in situation [sic] that creates significant obstacles," and was

"impulsive." Compl. at 8. Boisvert refused to provide specific

instances as examples. He also refused to submit the special

evaluation for review by other peers or staff, or to allow for a

second evaluation, as reguired by Riverbend policies.

In June of 1996, Boisvert stated that no one liked or

trusted the plaintiff and claimed that the plaintiff fabricated

information. He gave the plaintiff an ultimatum that he resign

with dignity, change, or be fired. Boisvert's intentions were to

3 exacerbate the situation and take advantage of the plaintiff's

real and perceived difficulties. The plaintiff sought

accommodations to ameliorate the situation, including acguiring

an administrative assistant. Boisvert refused the reguest for an

administrative assistant, although the position had already been

funded. On June 14, Boisvert withdrew his offer to allow the

plaintiff to change his performance and reguired him to resign or

be fired.

The plaintiff, at his doctor's "reguest," asked for a two

week medical leave for health related reasons, providing the

plaintiff an opportunity to recuperate. The plaintiff had

already accumulated two weeks of compensation time and arranged

for contingencies. Boisvert repeatedly called the plaintiff and

demanded that he return immediately, despite the acknowledged

lack of emergency at work. Boisvert wished to interrogate the

plaintiff, but refused to state the subject of the interrogation.

On July 5, 1996, the locks on the plaintiff's office were

changed, and a letter of termination issued on July 11, 1996.

The stated basis for termination was that plaintiff had directed

staff to be uncooperative, shared personnel information with

staff, and destroyed program files. The plaintiff had never

received any other notice of such infractions.

The plaintiff was not offered the process provided in

4 Riverbend's Employee Handbook, and he was never given an

opportunity to hear specific details of the accusations or review

evidence in support of the accusations. He was not paid minimum

severance pay in a timely manner.

On July 12, 1996, Boisvert issued a letter prohibiting staff

from allowing the plaintiff access to Riverbend grounds. The

intent was to create a false impression that the plaintiff was

dishonest, and to embarrass, shame, and injure the plaintiff.

On May 26, 1998, the plaintiff filed this action in the

United States District Court for the District of New Hampshire.

The plaintiff alleges violations of, inter alia, the Americans

with Disabilities Act, the federal Rehabilitation Act, and New

Hampshire's Law Against Discrimination, and brings various state

claims. The defendants move for dismissal or judgment on the

pleadings on all counts. The court addresses the defendants'

arguments seriatim.

Discussion

A. Standard of Review

The defendant moves for judgment on the pleadings under

Federal Rule of Civil Procedure 1 2 (c). Pursuant to Rule 1 2 (c), a

motion for judgment on the pleadings will be granted if,

accepting all of the plaintiff's factual averments contained in

5 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,

(1st Cir. 1988) . The court's inquiry is a

limited one, focusing not on "whether a plaintiff will ultimately

prevail but whether [he or she] is entitled to offer evidence to

support the claims." Scheuer v. Rhodes,

(1974)

(motion to dismiss under Fed. R. Civ. P. 12(b)(6)).2

B Federal Claims: Americans with Disabilities Act and the

_____ Rehabilitation Act

The plaintiff alleges that Riverbend harassed, mistreated,

discriminated against, and terminated the plaintiff because the

plaintiff actually suffers from ADD and because Riverbend

perceived the plaintiff to suffer from a manic-depressive or

bipolar disorder. Riverbend moves for judgment on the pleadings

on the Americans with Disabilities claim and the Rehabilitation

Act claim on the ground that the plaintiff has failed to allege

2The defendants also move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). "In considering a motion to dismiss for lack of subject matter jurisdiction, a court must accept as true all material factual allegations in the complaint and refrain from drawing inferences in favor of the party contesting jurisdiction." Curtis v. Airborne Freight Corp., No. 98 Civ. 4062,

at *2 (S.D.N.Y. Dec. 17, 1998)

6 that he suffers from a disability as defined by

(2). Specifically, Riverbend contends that the plaintiff

has failed to allege that he has an impairment, or is perceived

as having an impairment, that substantially limits a major life

activity. The plaintiff contends that he is disabled under the

Americans with Disabilities Act and the Rehabilitation Act both

on account of an actual impairment that substantially limits a

major life activity, and on account of a perception of such an

impairment. The court addresses each basis for finding a

disability separately.

I. Perceived Disability

Under the Americans With Disabilities Act "disability" is

defined as:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

(2) (West 1995); see also,

(g) (1998).3 At issue in this section is whether the

3The parties do not dispute that the definition of the reguisite disabilities under the Americans with Disabilities Act and the Rehabilitation Act are the same for present purposes. See

(1998) (providing elements under Rehabilitation Act).

7 plaintiff has sufficiently alleged a disability pursuant to part

(C), premised upon the defendant's perception of an impairment

that substantially limits a major life activity.

A mental impairment includes "any mental or psychological

disorder, such as mental retardation, organic brain syndrome,

emotional or mental illness, and specific learning disabilities."

(h)(2)(1998). Under proper circumstances,

bipolar and manic-depressive disorders and ADD have been found to

gualify as impairments. See Den Hartog v. Wasatch Academy,

(10th Cir. 1997) (bipolar disorder mental

disability); Bultemever v. Fort Wavne Community Schools,

(7th Cir. 1996) (bipolar disorder mental disability);

Miller v. Nat'l Cas. Co.,

(8th Cir. 1995) (manic-

depressive impairment). The appendix to

(j) (2)

(1998), identifying certain factors useful in evaluating the

substantiality of an impairment, provides that impairments which

significantly restrict a major life activity as compared to the

average person are substantially limiting. Under

(2) subsection (C) "[a] person is regarded as having such

an impairment if others treat [him] as if [he] is disabled."

Cody v. Cigna Healthcare,

(8th Cir. 1998); see

also, C.F.R. § 1630.2(1) (1998).

The plaintiff argues that the major life activities at issue in this case are working, learning, and societal interaction.

See

(1) (1998). Although learning is a major

life activity, and the court assumes societal interaction is a

major life activity for the purposes of this order, there are no

allegations in the complaint regarding these activities, nor are

there allegations from which interference with these activities

can be inferred. Therefore, to be successful, the plaintiff's

claim must depend on a substantial impairment, or the perception

of a substantial impairment, in the major life activity of

working. See

(working a major life activity).

The plaintiff has alleged that Riverbend and its employee

Boisvert perceived him as suffering from a manic-depressive or

bipolar disorder and knew of his ADD, and that he was harassed

and ultimately terminated as a result of this knowledge and

perception. Specifically, he has either expressly alleged, or

such allegations are reasonably inferred from his complaint, that

Boisvert, upon learning of the plaintiff's ADD and perceiving a

manic-depressive or bipolar disorder, inter alia: (1) stated

"[the plaintiff] has demonstrated a pattern of emotional reaction

in situation [sic] that creates significant obstacles," Compl.

at 8; (2) stated the plaintiff was "impulsive," id.; (3)

prohibited him from participating in aspects of his employment as

a result of such held perceptions and knowledge, id.; (4) rejected the plaintiff's work and decisions as the product of the

plaintiff's perceived and known disabilities, id.; and (5)

ultimately terminated the plaintiff because of such perceptions.

Given reasonable inferences, the plaintiff alleges that

Riverbend's employees perceived him as suffering from manic-

depressive or bipolar disorder, knew of his ADD, and conseguently

treated or regarded him as significantly restricted compared to

an average person, and therefore substantially limited, in his

capacity to work. Because the defendant moved for dismissal on

counts one and two on the same ground, the motion is denied as to

both counts as regards the defendant's perception of the

plaintiff's impairment.

II. Actual Impairment

To establish a disability in fact under the Americans with

Disabilities Act, the plaintiff must show that he has a physical

or mental impairment that substantially limits a major life

activity. See

(2)(A); Lowry v. Cabletron Svs.

Inc.,

(D.N.H. 1997). As discussed above,

courts have found bipolar and manic-depressive disorders and ADD

to gualify as impairments. Again, working is a major life

activity and is the life activity at issue in this case. See

(i) (1998).

10 Pursuant to the regulations implementing the Americans with

Disabilities Act, a person is substantially limited in the major

life activity of working if he is:

significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

(j)(3) (1998). More generally, the regulations

provide that in evaluating whether an impairment is substantially

limiting, courts should consider:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the impairment; and

(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

(j) (2) (1998).

The plaintiff has failed to allege that he is significantly

restricted in his ability to perform a class of jobs or a broad

range of jobs in comparison to the average person similarly

trained, nor has he alleged facts from which one could infer such

a restriction. Indeed, the only allegations in his complaint

relating to his work abilities are associated with his employment

at Riverbend and support a contrary inference, that the plaintiff

is not significantly impaired as he purportedly performed well in

11 the positions he held at Riverbend. The one exception is the

plaintiff's medical leave which he took near the end of his

employment, although this alone, in the context of this case,

cannot support a reasonable inference that the plaintiff was

substantially impaired in his ability to work. This is so

because, among other things, the complaint and reasonable

inferences drawn therefrom lead to a conclusion that the medical

leave was the result of allegedly intentional and improper

conduct on the part of Boisvert to discriminate against and

antagonize the plaintiff. There is no direct relation alleged

nor reasonably inferred between the plaintiff's need for the

medical leave, his impairment, and the duties and reguirements of

his employment.

Nor do the factors identified in

(j)(2)

support an inference of substantial impairment. Beyond

identifying his affliction as ADD, the plaintiff does not allege

facts regarding the nature or severity of his impairment. Nor

has the defendant alleged facts from which one could discern the

permanent or long term impact on the plaintiff resulting from the

plaintiff's impairment. On the other hand, given the nature of

ADD in general, it is reasonably inferred that the impairment has

been life-long and will continue to afflict the defendant. See

Criado v. IBM Corp.,

(1st Cir. 1998).

12 The court concludes that the plaintiff has failed to allege

sufficient facts regarding the severity of his impairment, its

impact on him, and his resultant ability to perform either a

class of jobs or a broad range of jobs in various classes to

withstand the defendant's motion. The court therefore holds that

the plaintiff has failed to state a cause of action that he

actually has a physical or mental impairment that substantially

limits him in the major life activity of working. The court

dismisses this as a basis for liability in counts one and two.

The plaintiff misses the point when he argues that his

ability to compensate for his impairment at Riverbend does not

mean he was not substantially impaired. The relevant guestion at

this point is not whether the facts support an inference that he

could function in his employment at Riverbend, but instead, it is

the broader guestion of whether the plaintiff has alleged facts

from which one could reasonably infer he was substantially

impaired in the major life activity of working. While not

conclusive of the issue, his allegations about his work at

Riverbend, when combined with the dearth of other allegations

regarding his ability to perform in a class of jobs or a broad

range of jobs, fail to state a claim. Similarly, the mere

allegation of the existence of an impairment such as ADD is

insufficient to state a claim as it does not reach the issue of

13 whether the impairment substantially impairs the plaintiff's

ability to work.

C. State Law Claims

As a preliminary issue, the defendants assert that the

plaintiff's state law claims asserting intentional interference

with contractual relations, breach of contract, wrongful

discharge, and defamation should be dismissed as the court lacks

jurisdiction over the claims. The defendants assert that there

is no common nucleus of operative facts, or, in the alternative,

if the court concludes there is a common nucleus of operative

facts, the court in its discretion should decline to exercise

jurisdiction.

In United Mine Workers of America v. Gibbs,

(1966), the United States Supreme Court delineated the extent

of a federal court's supplemental jurisdiction.

[A] federal claim must have substance sufficient to confer subject matter jurisdiction on the court. . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.

Gibbs,

(citations omitted) (speaking in context

14 of pendent jurisdiction).4 Even where supplemental jurisdiction

does lie, such jurisdiction is discretionary. It

need not be exercised in every case in which it is found to exist. It has consistently been recognized that [such] jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims.

Gibbs,

.

Section 1367 states that a court may decline to exercise its

jurisdiction where: (1) a novel or complex issue of state law

has been raised; (2) the state claims substantially predominate

over the federal claims; (3) the district court has dismissed all

claims over which it had original jurisdiction; or (4) there are

exceptional circumstances presenting compelling reasons for

declining jurisdiction. Seeking to apply the "common nucleus of

operative facts" standard and advance the policy of efficiency

behind supplemental jurisdiction, courts inguire into both the

relevant facts and the evidentiary overlap likely to occur in

trying the federal and state claims. Lyon v. Whisman,

U.S.C.A. § 1367 (West 1998), providing that a district court with original jurisdiction over any civil action "shall have 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," essentially codified Gibbs. See Rodriguez v. Doral Mortgage Corp.,

(1st Cir. 1995).

15 758, 762 (3d Cir. 1995) .

In this case the plaintiff alleges violations of the

Americans with Disabilities Act and the Rehabilitation Act over

which the court has original jurisdiction. The plaintiff's

claims all arise out of his employment relationship with

Riverbend and Boisvert. Although this alone may well be an

inadeguate basis for exercising supplemental jurisdiction, see

Nicol v. Imagematrix, Inc.,

(E.D. Va.

1991), in the circumstances of this case, facts and evidence

relevant to the federal claims will likely overlap considerably

with facts and evidence pertinent to the contested state law

claims.

The existence and nature of an employer/employee

relationship between Riverbend and the plaintiff is relevant to

his federal claims and, inter alia, his state law contract and

wrongful discharge claims. The nature of Boisverts' actions

during the plaintiff's employment, including, among other things,

statements made, inferences intended, and circumstances

surrounding the ultimate decision to terminate, will raise common

factual guestions bearing on the federal discrimination claim and

the state claims of intentional interference with contractual

relations, defamation, and wrongful discharge.

Although issues are factually bound in each case, other

16 courts in this circuit presented with analogous circumstances

have reached similar conclusions. See August v. Offices

Unlimited, Inc.,

, 578 n.l (1st Cir. 1992)

(jurisdiction over state claims conferred by

(a) where claims included, inter alia, state and

federal claims of unlawful discrimination and state claims of

intentional infliction of emotional distress, breach of

employment contract, and wrongful discharge); Godfrey v. Perkin-

Elmer,

(D.N.H. 1992) (jurisdiction

appropriate in Title VII case over state law claims alleging

slander, wrongful discharge, and intentional infliction of

emotional distress).5 Therefore, the court concludes that power

to exercise supplemental jurisdiction exists.

The court also rejects the defendants' argument that the

court should decline to exercise its supplemental jurisdiction.

The defendants do not assert, nor does the court find, the issues

of state law presented by this case to be new or novel.6 See

5Ihe court does not find the cases cited by the defendants compelling due to the varying factual circumstances and legal conclusions of the other courts. See, e.g.. Mason v. Richmond Motor C o ., Inc.,

(E.D. Virginia 1986).

6Ihe plaintiff does raise a legal issue not previously addressed by the New Hampshire Supreme Court in his claim of defamation, addressed infra in § C(IV). However, given the thorough treatment of the issue by other state courts, indications provided by the New Hampshire Supreme Court as to conclusion it would come to if presented with the issue, the fact

17 Godfrey,

(issues of wrongful discharge,

intentional and negligent infliction of emotional distress,

defamation, not new or novel). The plaintiff's state claims do

not predominate, nor has the court dismissed the federal claims.

See

. Indeed, in light of the common factual

and evidentiary issues between the claims, "given the duplication

and waste of judicial resources that separate trials would

entail, plaintiff would be expected to try them all in a single

proceeding." Godfrey,

.

Nor does the court agree that dismissal is appropriate

because of the threat of jury confusion. All other factors

discussed above indicate that jurisdiction should be asserted.

Moreover, the court must presume the jury capable of following

instructions and sorting through evidence. See United States v.

Lomeli,

(7th Cir. 1996). Therefore, the

defendants' motion to dismiss the state law claims on the basis

of the court's alleged lack of jurisdiction is denied.

I. Count Three, New Hampshire Law Against Discrimination

The plaintiff asserts a claim pursuant to the New Hampshire

that the court will exercise jurisdiction over the other state claims asserted, and the discretion provided for by

(c), the court will exercise its jurisdiction over the defamation claim as well.

18 Law Against Discrimination, New Hampshire Revised Statues

Annotated Chapter ("RSA") § 354-A:l-26 (1995). The defendants

contend that no private cause of action exists under the statute.

In Tsetseranos v. Tech Prototype, Inc.,

(D.N.H. 1995), the court concluded that there was no

private cause of action under the statute. In its analysis, the

court found that the administrative process the statute provides,

which requires that a complainant first exhaust his

administrative remedies before seeking judicial review, and

judicial review must be sought in the state courts, compelled the

conclusion that there was no private cause of action under the

statute.

.7 Other courts have since followed this

conclusion. See Carparts Distribution Center, Inc., v.

Automotive Wholesaler's Ass'n, Inc.,

(D.N.H.

1997); Evans v. Work Opportunities Unlimited, Inc.,

(D.N.H. 1996). This court finds the reasoning of

Tseteranos convincing and grants the defendants' motion as to

count three.

II. Intentional Infliction of Emotional Distress

7The statute also specifically provides that upon bringing "an action in federal court arising out of the same claims of discrimination which formed the basis of an order or decision of the commission," said order or decision is to be vacated. RSA § 354-A:22, V (1995).

19 In count four, the plaintiff asserts a claim against the

defendants for the intentional infliction of emotional distress.

The defendants have moved for judgment on three grounds: (1) the

plaintiff has not alleged that the defendants' conduct was

extreme and outrageous; (2) the plaintiff has not alleged severe

emotional distress; and (3) as to defendant Riverbend, the

plaintiff's claim runs afoul of the workers' compensation bar.

New Hampshire recognizes the tort of intentional infliction

of emotional distress:

One who by extreme and outrageous conduct intentionally or recklessly causes severe 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 v. Morancv,

(1991) (guoting Restatement

(Second) of Torts § 46 (1965)). Liability can be imposed upon

the defendants:

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!"

Restatement (Second) of Torts § 46, cmt. d. The court, not the

jury, is initially responsible for determining whether the

defendants' conduct is sufficiently "extreme and outrageous as to

permit recovery." Id. at cmt. h.

20 As to the first ground for the defendants' motion on this

count, the severity of the plaintiff's distress, the court

concludes that judgment on the pleadings would be inappropriate.

The plaintiff has alleged that he has suffered "great" emotional

distress. The fact that he has not alleged "severe emotional

distress" explicitly is not dispositive. Moreover, although he

has alleged few specific facts indicating the severity of his

distress, the plaintiff has asserted that his doctor directed him

to take a medical leave of absence from his employment to

maintain his health and recuperate. Given the doctor's

directive, one may reasonably infer that the plaintiff's

emotional distress was sufficiently extreme to support his claim

for intentional infliction of emotional distress at this stage of

the proceeding.

The defendants next assert that the conduct alleged was not

sufficiently egregious to support the plaintiffs' claim. For

defendant Boisvert, the court concludes that ambiguity in the

record surrounding the exact nature of his conduct, when viewed

in light of the court's duty to provide all reasonable inferences

in favor of the plaintiff, precludes a conclusion at this time

that the conduct was not extreme or outrageous.

The analysis for Riverbend is complicated by the New

Hampshire Workers Compensation Law. Riverbend argues that the

21 plaintiff's common law tort claim is barred by the New Hampshire

Workers' Compensation Law, see RSA § 281-A:8 (Supp. 1997), and

the plaintiff concedes that its emotional distress claim against

Riverbend is barred as long as there was an employment

relationship between himself and Riverbend.8 However, the

plaintiff argues that the date of his termination is a guestion

for the jury in this case, and that Riverbend's conduct after the

plaintiff's termination provides an independent and sufficient

ground for a claim of intentional infliction of emotional

distress. The conduct forming the predicate of the plaintiff's

claim vis-a-vis Riverbend is therefore more limited than against

Boisvert.

The record indicates that on June 14, 1996, Boisvert gave

8RSA § 281-A:8 provides:

An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions hereof and on behalf of himself, or his personal or legal representatives, to have waived all rights of action whether at common law or by statute or otherwise:

I. Against the employer or the employer's insurance carrier; and

II. Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier.

RSA § 281:12 (1987), amended bv RSA § 281-A:8 (Supp. 1994).

22 the plaintiff an ultimatum that he resign or be fired. The

plaintiff then left for a two week medical leave during which

Boisvert repeatedly phoned him, demanding his return to

Riverbend. On July 5, 1996, the lock on the plaintiff's office

was changed. A termination letter was issued on July 11, 1996.9

On July 12, 1996, a letter was circulated by Riverbend to its

employees prohibiting the plaintiff's access to the premises.

Although the plaintiff argues that one could infer the

plaintiff was terminated as of June 14, 1996, the record does not

reasonably support such an inference. The plaintiff himself

described his absence from Riverbend as a medical leave. He

further asserts that he had accumulated two weeks leave and had

arranged for contingencies. Indeed, it is in part the repeated

demands that he return to work, at least for guestioning, on

which he bases his claim of intentional infliction of emotional

distress. Moreover, at one point in his complaint, the plaintiff

himself alleges that he was terminated on July 13, 1996, by a

letter dated July 11, 1996. See Compl. at 4. Given the

inconsistencies of the plaintiff's allegations and arguments and

reading the allegations in the light most favorable to the

91he plaintiff first alleges he was terminated on July 13, 1996, by a letter dated July 11, 1996, see Compl. at 4, and later alleges that a termination letter issued July 11, 1996, see Compl. at 12.

23 plaintiff, the court finds it is reasonable to infer that the

plaintiff was effectively terminated on July 5, 1996, when the

lock on the plaintiff's office was changed. The court therefore

reviews conduct occurring subseguent to July 5, 1996, as the

basis for the plaintiff's claim against Riverbend.

To state a claim for intentional infliction of emotional

distress, the predicate conduct must be so outrageous and extreme

as to "go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community." Restatement (Second) of Torts, § 4 6 cmt. d. The

plaintiff has premised his claim of intentional infliction of

emotional distress in part upon the employer/supervisor and

employee relations between the parties, and upon the repeated and

continuous nature of the defendants' actions. However, these

factors supporting the plaintiff's claim as to Boisvert are

undermined as to Riverbend by the plaintiff's subseguent

assertion that liability should be premised upon limited acts in

a narrow frame of time after the termination of the employment

relationship.

Allegations in this complaint that Riverbend failed to pay

the plaintiff or use its own procedural reguirements, or that it

circulated a letter prohibiting the plaintiff's access to the

grounds after he was terminated, do not rise to the level of

24 intolerable conduct necessary for the claim. Nor, on this

record, are there allegations of accusations or intimations

occurring after July 5, 1996, that support such as claim.

Therefore, the plaintiff's claim asserting intentional infliction

of emotional distress against Riverbend is dismissed. Nor does a

claim of vicarious liability stand. See Censullo, 989 F.2d at

43-4 (1st Cir. 1993).

III. Intentional Interference With Contractual Relations

Defendant Boisvert has also moved for judgment on the

plaintiff's claim that he intentionally interfered with

contractual relations. Under New Hampshire law, the elements of

a claim of intentional interference with contractual relations

are:

(1) the plaintiff had an economic relationship with a third party; (2) the defendant knew of this relationship; (3) the defendant intentionally and improperly interfered with this relationship; and (4) the plaintiff was damaged by such interference.

Jav Edwards, Inc. v. Baker,

(1987) (quoting Emery

v. Merrimack Valiev Wood Products,

(1st Cir.

1983) (emphasis in original)).

Defendant Boisvert contends that as the plaintiff's

supervisor he cannot be liable for intentional interference with

the plaintiff's contractual relations with Riverbend because he

25 was acting as Riverbend's agent, thereby eliminating the third

party necessary to state a claim. Boisvert argues that "a

supervisor is privileged to interfere in a subordinate's

employment relationship." Defs.' Mem. of Law in Support of Mot.

to Dismiss and/or Judgment on the Pleadings at 17. The plaintiff

counters that Boisvert's actions, if motivated by malice and bad

faith, do not fall within the scope of his employment at

Riverbend, and that therefore Boisvert was not acting as

Riverbend's agent when he engaged in such conduct.

In Soltani v. Smith,

(D.N.H. 1993),

this court concluded that where an individual's decision "'was

motivated by actual malice' , where 'actual malice' is defined as

'bad faith, personal ill-will, spite, hostility, or a deliberate

intent to harm the plaintiff,'" the individual was not acting

within the scope of his employment. Soltani,

(guoting Piekarski v. Home Owners Sav. Bank,

,

1495 (8th Cir. 1992)). The court in Soltani determined that such

an approach was consistent with New Hampshire's common law

regarding agency, citing Daigle v. City of Portsmouth,

(1980). In Daigle, the New Hampshire Supreme Court

concluded that an individual's actions could not be in the scope

of employment unless it was performed in furtherance of the

26 employer's business. See

.10 The court in

Soltani was in turn followed by Birkmaier v. Rockingham Venture,

Inc., CV-94-429-SD (D.N.H. 1995). See also, 8 Stuart M.

Speiser, et al.. The American Law of Torts § 31:41 at 1260

(1991) .

The court concurs with the reasoning of the Soltani court

and the Eighth Circuit in Piekarski. A reasonable person could

infer from the plaintiff's allegations that the ultimate decision

to terminate the plaintiff was the culmination of a pattern of

conduct undertaken with actual malice, as defined in Soltani, to

harass and discriminate against the plaintiff. Such conduct

would fall outside Boisvert's agency relationship with Riverbend,

making Riverbend the third party the plaintiff had contractual

relations with. The court therefore denies the defendant's

motion on this claim.

The defendant's reliance on Alexander v. Fujitsu Bus.

Communication Svs.,

(D.N.H. 1993) is

unavailing. In Alexander the court was not presented with

allegations that a supervisor acted with malice, bad faith,

10The First Circuit has similarly interpreted New Hampshire law to provide that an act is within the scope of employment "if it was authorized by the employer or incidental to authorized duties; if it was done within the time and space limits of employment; and if it was actuated at least in part by a purpose to serve an objective of the employer." Aversa v. United States, 99 F .3d 1200, 1210 (1st Cir. 1996).

27 personal ill-will, spite or hostility. The court therefore did

not consider the issue of whether actions so motivated were

removed from the scope of the agency relationship.11

IV. Defamation

_____ In count eight the plaintiff asserts that Riverbend and

Boisvert disseminated and published defamatory information to

third parties regarding the plaintiff, his ability to work, and

his honesty. The defendants seek dismissal because, as a matter

of law, one agent of a corporation cannot be considered to have

published a statement to a third party, as necessary for a

defamation cause of action, where the statement was made to

another agent of the same corporation.12

The New Hampshire Supreme Court has not specifically

addressed the issue whether an agent of a corporation can be

liable for defamation where that agent made allegedly defamatory

statements solely to other agents of the same corporation as in

the circumstances of this case. The Restatement (Second) of

“Although the plaintiff pleads in one part of his complaint that Boisvert was acting as the agent of Riverbend, Federal Rule of Civil Procedure 8(e) provides for pleading in the alternative.

“Although the defendant's argument is vague, the court does not understand the defendant to present an argument of privilege. In any event privilege is subject to abuse, see Bals v. Verduzco,

(Ind. 1992), and on this record judgment on the issue at this time would be inappropriate.

28 Torts, § 577 Comment (i) (1977), provides that "[t]he

communication within the scope of his employment by one agent to

another agent of the same principal is a publication not only by

the first agent but also by the principal and this is true

whether the principal is an individual, a partnership or a

corporation."

New Hampshire has repeatedly followed § 577 of the

Restatement. See Keeton v. Hustler Magazine, Inc.,

(1988) (following Restatement § 577A); Duchesnave v. Munro

Enterprises, Inc.,

(1984) (following

Restatement § 577 cmts. (b) and (c)); Thomson v. Cash,

(1979) (following § 577 cmt. (c)). Although there is a

division on this issue, a substantial number of states that

follow the Restatement's version of defamation law have concluded

that the publication reguirement is met where defamatory

statements are made between agents of a corporation. See Pirre

v. Printing Devs., Inc.,

(S.D.N.Y. 1979); Bals

v. Verduzco,

(Ind. 1992) ; Heselton v. Wilder,

(Me. 1985); Luttrell v. United Tel. System,

Inc.,

(Kan. 1984); Bander v. Metropolitan Life Ins.

C o .,

(Ma. 1943) . As the Maine Supreme Court stated

"[t]hose jurisdictions have concluded that there is no good

reason to protect a corporation as opposed to a partnership or

29 individual enterprise." Staples v. Bangor Hydro-Electric Co.,

(Me. 1993). Leading commentators have

attributed the division among states regarding whether intra­

corporate communications constitute publication "to a confusion

between publication and privilege." Prosser and Keeton on the

Law of Torts § 113, 798 n. 15 (5th ed. 1984) . Indeed, the older

rule providing absolute immunity for intra-corporate communica­

tions is increasingly falling into disfavor as courts are

concluding that the issue is one of privilege. See Richard

Larson, 5 Hofstra Labor Law Journal 41, 50-51 (1987) . This court

predicts that were the New Hampshire Supreme Court presented with

the issue, the court would hold that intra-corporate communica­

tions meet the reguirement of publication but are subject to

gualified privilege. See Erie R.R. Co. v. Tompkins,

(1938). The court therefore denies the defendants' motion as

to the plaintiff's defamation claim.

Conclusion

In accordance with the preceding discussion, the court

grants the defendants' motion to dismiss the plaintiff's claims:

(1) under the Americans with Disabilities Act and the federal

Rehabilitation Act in so far as the claims are premised upon an

actual impairment substantially limiting a major a life activity,

30 see

(2)(A); (2) under the New Hampshire Anti-

Discrimination Act; and (3) against Riverbend alleging

intentional infliction of emotional distress. The court denies

the motion in all other regards (document no. 6).

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

January 26, 1999

cc: Tony F. Soltani, Esguire James L. Kruse, Esguire

31