Weeden v. Sears, Roebuck & Co. CV-98-435-JD 05/25/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald W. Weeden

v. Civil No. 98-435-JD

Sears, Roebuck & Co.

O R D E R

The plaintiff, Ronald Weeden, brought this case against the

defendant. Sears Roebuck & Company, asserting claims under the

Family Medical Leave Act,

, and state

law. Before the court is the defendant's motion for judgment on

the pleadings on the plaintiff's claims asserting intentional

infliction of emotional distress, negligent infliction of

emotional distress, wrongful termination, and enhanced damages

(counts II, III, IV, and V) (document no. 7).

Background

The plaintiff was employed by Sears Roebuck in various

positions in its Newington, Salem, and Manchester, New Hampshire,

stores from 1990 through 1996. In 1996, the plaintiff was

promoted to the position of automotive manager in the defendant's

South Portland, Maine, store. The plaintiff held this position

from April 26, 1996, through May 22, 1997. During this period of

time the plaintiff received consistently favorable evaluations. In late April or early May 1997, the plaintiff began to

experience severe anxiety. He suffered episodes of

uncontrollable shaking and found concentrating difficult. He

also suffered from insomnia and an inability to eat which

resulted in his losing thirty pounds. The district manager,

Michael Ryan, refused his reguest to take accumulated vacation

and personal time. At a meeting in early May, Ryan observed the

plaintiff's repeated episodes of uncontrolled shaking and his

inability to distinguish between numbers on pages before him.

Ryan's cognizance of the plaintiff's guestionable health was

acknowledged by his inguiries into the plaintiff's well-being.

On May 12, 1997, the plaintiff called the defendant's human

resources department and explained he felt as though he were

having some kind of a breakdown. He reguested to speak to a

doctor or therapist immediately. The human resources

representative arranged an appointment with Roberta Hirshon,

L.C.S.W., who recommended that he see a physician for medication

for his anxiety.

On May 14, 1997, the plaintiff saw a physician who diagnosed

him as suffering from an "acute situational anxiety-depressive

reaction." On the same day the plaintiff called his work and

explained that he was not well and would not be at work for the

next two or three days. On May 19, 1997, the plaintiff again saw

2 his physician. The physician provided a note stating that the

plaintiff suffered from acute situational anxiety-depressive

reaction and would not be able to work until further notice. The

plaintiff then called the store manager for the South Portland

store, Dick Grimes. He explained to Grimes that his physician

had diagnosed him with acute anxiety-depressive reaction and that

he would not return to work until further notice. On May 21,

1997, the plaintiff telecopied the physician's note to Grimes at

the South Portland Maine store. On May 22, 1997, the defendant

sent the plaintiff a notice indicating that he had been

terminated for violation of the defendant's "no show/no call"

policy. On July 16, 1998, the plaintiff filed this action

asserting that the defendant is liable for: (1) violating the

Family Medical Leave Act; (2) intentional infliction of emotional

distress; (3) negligent infliction of emotional distress; (4)

enhanced damages; and (5) wrongful termination.

Discussion

A. Standard of Review

Under Federal Rule of Civil Procedure 1 2 (c), a party may

move for judgment on the pleadings "[a]fter the pleadings are

closed but within such time as not to delay trial." Fed. R. Civ.

P. 12(c). "In reviewing such a motion, the district court must

3 accept all of the nonmoving party's well-pleaded factual

averments as true and draw all reasonable inferences in [his]

favor." Feliciano v. Rhode Island,

(1st Cir.

1998). "Judgment on the pleadings under Rule 12(c) may not be

entered unless it appears beyond a doubt that the nonmoving party

can prove no set of facts in support of [him] claim which would

entitle [him] to relief."

B. Intentional and Negligent Infliction of Emotional Distress

The defendant first argues that the exclusivity provision of

the New Hampshire Workers' Compensation statute bars the

plaintiff's claims of intentional infliction of emotional

distress and negligent infliction of emotional distress. "In New

Hampshire an employee who is eligible to receive workers'

compensation benefits is 'conclusively presumed . . . to have

waived all rights of action whether at common law or by statute

or otherwise: Against [his or her] employer . . . .'" Leeman v.

Bovlan,

(1991) (guoting New Hampshire Revised

Statutes Annotated § 281-A:8 ("RSA")). An employer's "[i]mmunity

from employee tort suits is concomitant with the borrowing

employer's obligation to provide workers' compensation insurance

coverage." Benoit v. Test Systems, Inc.,

(N.H.

1997) .

4 The New Hampshire Workers' Compensation Statute provides:

"Injury" or "personal injury" as used in and covered by this chapter means accidental injury or death arising out of and in the course of employment, or any occupational disease or resulting death arising out of and in the course of employment, including disability due to radioactive properties or substances or exposure to ionizing radiation. "Injury" or "personal injury" shall not include diseases or death resulting from stress without physical manifestation.

RSA § 281-A:2(XI). Pursuant to this section, "[t]o be compensable

under the Workers' Compensation Law, the petitioner's injury must

have 'aris[en] out of and in the course of employment.'" Appeal

of Griffin,

(1996). Claims asserting inten­

tional or negligent infliction of emotional distress arising from

the allegedly wrongful termination of an employee fall within the

parameters of "injury" under RSA § 281-A:2(XI) and are barred by

the exclusivity provision of RSA § 281-A:8. See Schrepfer v.

Framatone Connecters USA, Inc., 98-89-JD (D.N.H. Jan. 7, 1999);

Frechette v. Wal-Mart Stores,

(D.N.H. 1995);

Kopf v. Chloride Power Electronics, Inc.,

(D.N.H. 1995) (overruled on other grounds, Wenner Great State

Beverages, Inc.,

(1996), (recognized by Smith v.

F .W . Morse & C o .,

, 429 n.ll (1st Cir. 1996)).

Although New Hampshire superior courts may hold differing views,

given the long standing jurisprudence of this court, the court

finds contrary superior court holdings unpersuasive.

5 C. Wrongful Discharge

The defendant next moves for judgment on the plaintiff's

wrongful discharge claim asserting that it is precluded by a

statutory remedy under the FMLA. The common law remedy of

wrongful discharge under New Hampshire law has two elements:

"'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, Inc.,

(1995) (guoting

Short v. School Admin. Unit 16,

(1992)).

The issue of statutory preclusion under New Hampshire law of

a common law wrongful discharge claim was recently addressed in

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

(1st Cir. 1996). In

Smith, the plaintiff sought to pursue a common law wrongful

discharge claim premised upon gender discrimination. Sguarely

before the court was "the guestion of whether [a wrongful

discharge] cause of action lies where, as here, the public policy

at stake is codified in a statute that itself provides a private

right of action to remedy transgressions."

.

The statute at issue. Title VII, "not only codifie[d] the public

6 policy . . . but also create[d] a private right of action to

remedy violations . . . and limn[ed] a mature procedure for

pursuing such an action."

. The Smith court concluded

that "[u]nder Wenners, the existence of [a statutory] remedy

precludes [the assertion of] a common law claim for wrongful

discharge." Smith,

(1st Cir. 1996).

The FMLA provides "a series of substantive rights" including

an entitlement of up to "twelve weeks of unpaid leave per year"

for employees in certain circumstances, such as where an employee

suffers a serious health condition rendering the employee unable

to perform his employment functions. Hodgens v. General Dynamics

Corp.,

(1st Cir. 1998); see also,

(a) (West 1999). The FMLA also provides "protection in the

event an employee is discriminated against for exercising those

rights." Hodgens,

; see also,

, 2616, 2617 (West 1999) (establishing prohibition against

retaliation, investigative procedures, and private cause of

action). This court has held that a wrongful discharge cause of

action does not lie where the claim arises from an employer's

retaliatory termination of an employee for exercising her rights

under the FMLA.1 See Phelan v. Town of Derry, 98-013-JD, slip

1The court notes that the complaint implies the termination was in retaliation for exercising rights under the FMLA and the

7 op. at 5-6 (D.N.H. Dec. 9 , 1998); see also. Cooper v. Thompson Newspapers, Inc.,

(D.N.H. 1998) ("to state

a claim for wrongful discharge, [the plaintiff] must allege that

her employer terminated her because she performed an act public

policy would encourage, and for which there is no statutory

remedy"). To the extent that New Hampshire superior courts hold

to the contrary, the court finds such holdings unpersuasive.2

D. Enhanced Damages

The defendant seeks judgment on the plaintiff's claim for

enhanced damages. The plaintiff objects to the defendant's

motion only on the basis that the plaintiff's state law claims

should not be dismissed. Because the court finds against the

plaintiff on his state law claims, the court grants the

plaintiff contests other factual basis for the termination. See Plf's . Obj. at 11.

2The plaintiff contests the issue of preclusion and argues that under Wenners, a court must consider whether the legislature intended to supplant a common law remedy with a statutory remedy. In concluding that there was no such intent under section 525(b) of the Bankruptcy Code, the Wenners court found dispositive the fact that although a federal prohibition of employment termin­ ation existed, federal law provided no remedy for violations of the prohibition and no procedures for pursuing a violation. See 140 N.H. at 102, 103. In this case the factors considered by the Wenners court would indicate a clear intent to supplant. The FMLA not only provides a statutory prohibition, but it also provides a remedy and procedures for pursuing statutory violations. defendant's motion for judgment on the plaintiff's enhanced

damages claim as well.

Conclusion

In light of the above discussion, the court grants the

defendant's motion for judgment on the pleadings on counts II,

III, IV, and V (document no. 7).

SO ORDERED.

Joseph A. DiClerico, Jr, District Judge

May 25, 1999

cc: Kimberly Kirkland, Esguire Eric G. Falkenham, Esguire