Bruning v . D.E. Salmon, Inc. CV-03-352-JD 12/18/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Keith Bruning

v. N o . 03-352-JD Opinion N o .

D.E. Salmon, Inc.

O R D E R

Keith Bruning claims that his former employer, D.E. Salmon, Inc., wrongfully terminated him in retaliation for complaining to a regional manager that other employees were using illegal drugs. D.E. Salmon has moved to dismiss Bruning’s first amended complaint on the ground that reporting the drug use of fellow employees to management is not an act which public policy encourages and that Bruning has therefore failed to state a claim for wrongful termination under New Hampshire law (document n o . 12). D.E. Salmon has also sought dismissal of Bruning’s claim to the extent he seeks non-economic damages on the ground that the workers’ compensation statute precludes such recovery. Bruning objects (document n o . 1 3 ) . 1

1 Bruning does not object to the dismissal of count II of his first amended complaint, which seeks recovery under the New Hampshire Whistleblower’s Protection Act, Revised Statutes Annotated (“RSA”) 275-E. Standard of Review

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of

limited inquiry, focusing not on “whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

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

(1974). Accordingly, the court must take the factual averments contained in the complaint as true, “indulging every

reasonable inference helpful to the plaintiff’s cause.” Garita

Hotel Ltd. P’ship v . Ponce Fed. Bank,

5 , 17 (1st Cir.

1992); see also Dartmouth Review v . Dartmouth Coll.,

3 ,

16 (1st Cir. 1989). In the end, the court may grant a motion to

dismiss 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, 958 F.2d at 17 (quoting Correa-

Martinez v . Arrillaga-Belendez,

9 , 52 (1st Cir. 1990)).

Background

The following facts are drawn from Bruning’s first amended

complaint (the “complaint”). D.E. Salmon operated a fish farm in

Bristol, New Hampshire, where Bruning started working in 1980.

At the farm, very small fish were placed in a series of tanks and

grown until large enough to sell. Bruning had attained the rank

of assistant manager at the fish farm by January 2001, earning

2 around $50,000 in annual salary and benefits.

In the summer of 2000, D.E. Salmon’s regional manager, Dean

Guest, met several times with employees at the Bristol facility.

During these meetings, Guest stated that D.E. Salmon had a “zero

tolerance” policy toward employee drug use. Apparently, this

prompted Bruning to alert Guest “several times” over the course

of the meetings that a number of employees did, in fact, use

illegal drugs regularly, including while at work. Bruning

alleges that “[g]iven the hazardous nature of some duties at the

fish farm, the drug use created a serious risk of harm to [him]

and the other workers.” Bruning named the farm’s manager, who

was his immediate supervisor, as one of the “regular drug users.”

Guest responded by asking Bruning to put his complaints in

writing. Bruning obliged, supplying Guest with “two or three

memos, roughly on a monthly basis, complaining of drug use by the

manager and other employees.” D.E. Salmon, however, took no

action against any of these employees, who continued using drugs

during working hours. In January 2001, after another employee

complained to Bruning about drug use by fish farm personnel,

Bruning telephoned Guest so that the employee could communicate

his complaint directly. During this call, Bruning reiterated his

own complaints about drug use by the manager and others.

A few days later, Guest visited the Bristol facility and met

3 separately with Bruning and the other employee who had complained

about drug use at the farm. Bruning alleges that his co-

complainant told Guest, in response to a question on the subject,

that promoting Bruning to manager “would make the work

environment and the work moral [sic] better.” Nevertheless, on

January 1 6 , 2001, Guest returned to Bristol and fired Bruning, telling him that D.E. Salmon “did not need two managers for such

a small farm . . . .” Bruning claims that he was better

qualified than the then-manager, who ended up quitting two weeks

after Bruning was fired. D.E. Salmon abandoned operations at the

Bristol facility the next spring.

Bruning subsequently brought this lawsuit, claiming that

D.E. Salmon wrongfully terminated him in retaliation for

complaining about drug use by his manager and fellow employees.

He alleges that public policy encourages reporting the drug use of co-workers, “particularly when such drug use may reasonably

affect the health and safety of the drug users and/or their

[other] co-workers.” Bruning seeks lost wages and “non-economic

damages caused by the wrongful termination.”

4 Discussion I. Whether Bruning Has Alleged a Public Policy Sufficient to Support a Wrongful Discharge Claim

“To establish a wrongful discharge claim, a plaintiff must

allege and prove that: (1) the termination of employment was

motivated by bad faith, retaliation or malice; and (2) that she

was terminated for performing an act that public policy would

encourage or for refusing to do something that public policy

would condemn.” Karch v . BayBank FSB,

(2002).

D.E. Salmon contends that Bruning has failed to satisfy the

second element of this test, arguing that public policy as a

matter of law does not encourage “complaints to management of co-

worker criminality.” Bruning responds that his complaints that

employees used drugs at work “implicate public health and safety

issues given the dangerous nature of the fish farming industry.”

D.E. Salmon acknowledges that the existence of a public

policy sufficient to support a wrongful discharge claim ordinarily presents a question for the jury. Cilley v . N.H. Ball

Bearings, Inc.,

0 1 , 406 (1986); Cloutier v . Great Atl.

& Pac. Tea Co.,

(1981). It nevertheless

maintains that in this case, “the absence of such a public policy

is so clear that a court may rule on its existence as a matter of

law.” Short v . Sch. Admin. Unit N o . 1 6 ,

6 , 84 (1992).

5 In support of this argument, D.E. Salmon relies heavily on this

court’s decision in Bourque v . Town of Bow,

(D.N.H. 1990), which it characterizes as holding that “complaints

to management of co-worker criminality are not ‘encouraged’ by

any articulated public policy.”

It is true that the plaintiff in Bourque complained to his

employer, the local board of selectmen, that his supervisor had

engaged in conduct on the job which might have been illegal,

namely “setting off firecrackers behind the plaintiff while he

was in the process of completing a welding job.”

.

The selectmen later fired the plaintiff after he expressed an

inability to continue working under the supervisor. See

The

plaintiff in Bourque, however, does not appear to have alleged

that this behavior posed a threat to workplace safety.2 This

fact alone distinguishes Bourque from the instant case, where

Bruning claims that his fellow employees’ drug use, apart from being illegal, made working at the fish farm more dangerous.

2 Although the plaintiff in Bourque alleged that his supervisor’s misuse of firecrackers was part of a pattern of harassment which endangered his “health and life,” he did not argue that the illegal activity itself posed a threat to his well-being.

. Moreover, unlike Bruning, the employee in Bourque does not appear to have alleged that the apparent illegal activity jeopardized not only his own safety, but that of his fellow employees as well.

6 In fact, the plaintiff in Bourque does not appear to have

argued that he was fired for complaining about his supervisor’s

illegal activity, or even sought to characterize the activity as

illegal. Instead, he contended that he was wrongfully terminated

for refusing to continue working with his allegedly ill-behaved

boss, when public policy dictated that the selectmen fire his

supervisor or at least investigate the charges against him. See

. The court disposed of this argument through the

language on which D.E. Salmon now relies, concluding that the

plaintiff was “complain[ing] about an internal, not public,

policy . . . .”

Here, although Bruning’s complaint suggests

that D.E. Salmon should have retained him instead of the “drug

using” manager, this personnel decision does not form the basis

of his wrongful termination claim. Bourque therefore provides

limited guidance in this dispute, where Bruning claims that D.E.

Salmon acted contrary to public policy by firing him for complaining about his co-workers’ drug use.3

D.E. Salmon also relies on a number of cases applying the

law of other states in support of its theory that “an employee

3 The court finds similarly distinguishable the other cases cited by D.E. Salmon in which courts have ruled, as a matter of New Hampshire law, that the plaintiff’s termination did not raise an issue of public policy. See, e.g., Frechette v . Wal-Mart Stores, Inc.,

5 , 98 (D.N.H. 1995) (public policy does not encourage charging alcohol to company credit card).

7 report to company management of a co-worker’s illegal conduct

does not raise public policy concerns unless it implicates public

health or public safety issues.” This argument is irrelevant at

this stage because Bruning has alleged that the unlawful

activities of his fellow employees, i.e., using drugs during

working hours, does raise public safety issues given the

assertedly hazardous nature of some of the work at the farm. See

Cloutier,

(declining to hold as a matter of

law that no public policy encouraged manager to disregard company

procedures which jeopardized the safety of his employees). The

out-of-state cases on which D.E. Salmon relies are therefore

inapposite.4 See, e.g., Rivera v . Nat’l R.R. Passenger Corp.,

(9th Cir. 2003) (upholding summary judgment

for employer where only interest served by reporting co-workers’

4 Furthermore, as Bruning points out, these authorities apply a more stringent standard for determining the existence of a public policy than that used in New Hampshire. Compare, e.g., Mullins v . Int’l Union of Operating Eg’rs,

(E.D. V a . 2002) (granting summary judgment on wrongful discharge claim based on reporting drug use by co-workers because “[o]nly if Maryland law compelled [plaintiff] to report drug use would she have a legally cognizable claim”) (emphasis added) and Hayes v . Eateries, Inc.,

7 8 , 789-790 (Okla. 1995) (requiring plaintiff to allege termination for performing an act “consistent with a clear and compelling public policy” or for refusing to act “in violation of an established and well-defined public policy”) (emphasis added) with Cloutier,

(refusing to adopt “strong and clear public policy” as standard for wrongful discharge claim).

8 drug use to superior, prevention of crime, was insufficient

public policy to support tortious discharge claim under

California l a w ) ; Fox v . MCI Communications Corp.,

5 7 ,

861 (Utah 1997) (public policy did not encourage reporting

churning of customer accounts to employer when, though assertedly

illegal, churning caused customers no harm). This court has generally declined to determine the existence

of a public policy as a matter of law in the context of a motion

to dismiss a wrongful discharge claim. See, e.g., Sheeler v .

Select Energy,

,

, at *8 (D.N.H. July

2 8 , 2003); Scerano v . Cmty. Corr. Corp.,

,

, at *2 (D.N.H. July 1 9 , 2001); Pooler v . Anheuser-Busch

Recycling Corp.,

, at *1 (D.N.H. Nov. 2 8 , 1995);

Peterson v . APV Crepaco, Inc.,

, at *3 (D.N.H. June

1 4 , 1994); Chamberlin v . 101 Realty, Inc.,

(D.N.H. 1985); Fulford v . Burndy Corp.,

8 , 80-81

(D.N.H. 1985); accord Cilley,

(reversing

dismissal of wrongful discharge claim). Consistent with this

approach, the court concludes that Bruning’s allegation that

public policy encourages a worker to alert his employer that his

fellow employees are using drugs during working hours when the

work in question is dangerous suffices to withstand a motion to

9 dismiss.5 D.E. Salmon’s motion to dismiss Bruning’s complaint in

its entirety is therefore denied.

II. Whether the Workers’ Compensation Law Precludes the Recovery of Non-Economic Damages for Wrongful Discharge

As Bruning points out, the New Hampshire Supreme Court

expressly held in Karch that the exclusivity provision of the

state Workers’ Compensation Law, RSA 281-A:8, does not apply to

claims for wrongful discharge.

. D.E. Salmon

argues to the contrary despite its obvious awareness of Karch

(which it cites in its memorandum for a related proposition) and

without providing any basis for distinguishing or not following

that binding precedent. Such an argument is utterly lacking in

merit. D.E. Salmon’s motion to dismiss Bruning’s request for

non-economic damages arising out of his termination is denied.

Conclusion

For the foregoing reasons, D.E. Salmon’s motion to dismiss

Bruning’s first amended complaint (document n o . 12) is DENIED

except as to count I I , as to which it is GRANTED by assent.

Pursuant to Fed. R. Civ. P. 15(a), D.E. Salmon shall file a

5 In light of this ruling, the court need not reach Bruning’s argument that RSA 275-E “provides a sufficient source of public policy on which [he] can rest his claim.”

10 response to the first amended complaint within ten days of the

date of this order.

SO ORDERED.

Joseph A . DiClerico, J r . District Judge December 1 8 , 2003

cc: Michael J. Sheehan, Esquire Lawrence M . Edelman, Esquire

11