Slater v . Verizon CV-04-303-SM 03/03/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jonathan B . Slater, Plaintiff

v. Civil N o . 04-303-SM Opinion N o .

Verizon Communications, Inc., Defendants

O R D E R

In this case, removed from the New Hampshire Superior Court,

Jonathan Slater sues for damages arising from the termination of

his employment by Telesector Resources Group d/b/a Verizon

Services Group (“Verizon”). Before the court is Verizon’s motion

to dismiss seven of the nine counts in the complaint. Plaintiff

objects. For the reasons given below, defendant’s motion to

dismiss is granted in part and denied in part.

Standard of Review

A motion to dismiss for “failure to state a claim upon which

relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the

court to conduct a 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,

3 2 , 236 (1974). When considering a motion to

dismiss under Rule 12(b)(6), the court must “accept as true the

factual allegations of the complaint and construe all reasonable

inferences therefrom in favor of [plaintiff].” Perry v . N.E.

Bus. Serv., Inc.,

(1st Cir. 2003) (citing

Beddall v . State S t . Bank & Trust Co.,

2 , 16 (1st Cir.

1998)). “A district court may grant a 12(b)(6) motion to dismiss

for failure to state a claim upon which relief can be granted

only if ‘it clearly appears, according to the facts alleged, that

the plaintiff cannot recover on any viable theory.’” Pomerleau

v . W . Springfield Pub. Sch.,

(1st Cir. 2004)

(quoting Correa-Martinez v . Arrillaga-Belendez,

9 , 52

(1st Cir. 1990)).

Background

The facts of this case, as drawn from plaintiff’s complaint,

are as follows.

Slater was hired by Verizon as a financial analyst in

December, 1996. (Compl. ¶¶ 4-5.) At all times relevant to this

2 matter, he has also served as an officer in the New Hampshire

Army National Guard, rising to the rank of Major. (Compl. ¶ 3.)

In early October, 2001, immediately following the September

11th terrorist attacks in New York, Pennsylvania, and Washington,

D.C., Slater was called to active duty. (Compl. ¶ 10.) He

promptly notified several Verizon officials of his activation,

including his direct superior, Nicholas Bonanno (Customer

Operations Financial Manager), Thomas S . Gardnier (Customer

Operations Area Manager), and Ellen Connors (Executive Assistant

to Edward Kmiec, who was superior to Bonanno and Gardnier).

(Compl. ¶¶ 10-13.) (Plaintiff does not, however, allege that he

submitted a Verizon military leave form, as is apparently

required by his employer’s policies. (Compl. ¶ 6.))

Slater served on active military duty for approximately

eight months, all in New Hampshire, as his assignment involved

securing airports in Manchester, Newington, and Lebanon. (Compl.

¶¶ 1 7 , 31.) While on active duty, Slater continued to do work

for Verizon. In the words of his complaint:

3 Mindful of the needs of his employer, Major Slater felt compelled to continue to perform work for Verizon while he was on active military duty.

Mr. Bonanno accepted Major Slater’s offer and allowed him to perform work for Verizon continuously while Major Slater was on active military duty. Major Slater, inter alia, completed reports, analyzed data, helped negotiate a large fire casualty loss, and attended meetings in and outside of New Hampshire.

(Compl. ¶¶ 1 9 , 22.) While on active duty, and while continuing

to perform work for Verizon, Slater maintained contact with

Bonanno and others by telephone, e-mail, and in person. (Compl.

¶ 23.) He submitted expense reimbursement requests, which were

approved by Verizon. (Compl. ¶ 24.) Bonanno also approved the

installation of a DSL line to Slater’s home, at Verizon’s

expense, to facilitate Slater’s ongoing work for Verizon.

(Compl. ¶ 25.) Slater performed at least some work for Verizon

during every pay period he was on active duty. (Compl. ¶ 30.)

While Slater was on active duty, he received his full

civilian salary from Verizon, in addition to his military pay.

(Compl. ¶ 27.) Under Verizon’s “Military Leave Policy,”

employees called to active military duty were entitled to be paid

4 compensation to supplement their military pay, without any

obligation to perform work for Verizon while on military duty.

(Compl. ¶¶ 15-16.)

Slater’s military duty ended, and he returned to full-time

work for Verizon, in May, 2002. (Compl. ¶ 31.) In August, 2002,

Verizon began an investigation into whether Slater had defrauded

the company during the time he was on active military duty.

(Compl. ¶ 34.) Slater cooperated with the investigation, which

took approximately one year to complete. (Compl. ¶¶ 34-35.) In

July, 2003, Slater informed Richard Jimmo, Verizon’s acting

finance manager, that he intended to return to active military

duty. (Compl. ¶ 38.) In August, 2003, approximately thirty days

after informing Jimmo of his plans to return to active duty,

Slater was discharged from Verizon. (Compl. ¶ 6.)

Slater’s notice of termination stated that he had “failed to

submit the required Verizon Military Leave forms after being

activated for Military duty.” (Compl. ¶ 6.) The termination

notice further stated: “During the period when you were on active

military duty, you also collected your full Verizon salary in

5 addition to being paid for military duty. These actions are

direct violations of Verizon’s Code of Business Conduct, and

therefore, your employment with Verizon is being terminated

effective today.” (Compl. ¶ 6.) Verizon had a company policy

related to recovery of overpayment of wages, but Slater was not

offered an opportunity under that policy to repay the amounts in

dispute. (Compl. ¶¶ 39-40.)

When asked by potential employers why he left Verizon,

Slater has given the reasons set out in his notice of

termination. (Compl. ¶ 43.) Verizon, as well, has advised

potential employers of those reasons. (Compl. ¶ 44.)

Based upon the foregoing, Slater asserts claims for wrongful

termination (Counts A - D ) , violation of N . H . R E V . S T A T . A N N . ( “ R S A ” )

§ 110-C (Count E ) , violation the Uniformed Services Employment

and Reemployment Rights Act ( “ U S E R R A ” ) , 38 U . S . C . § 4301 et seq.

(Count F ) , violation of the Fair Labor Standards Act ( “ F L S A ” ) , 29

U . S . C . § 201 et seq. (Count G ) , and defamation (Counts H and I ) .

Defendant moves to dismiss the claims for wrongful termination,

6 violation of RSA 110-C, violation of the FLSA, and one of the

defamation claims (Counts A-E, G, and I ) .

Discussion

Count A

In Count A , plaintiff asserts a claim for wrongful

termination, based upon an allegation that he was discharged

because of his membership i n , and his intent to return to active

military duty with, the Army National Guard. Defendant moves to

dismiss on grounds that New Hampshire law bars plaintiff from

asserting a common law wrongful discharge claim, due to the

availability of an adequate federal statutory remedy under

USERRA.

New Hampshire’s common law of wrongful termination is fairly

summarized as follows:

In order to 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.”

7 Wenners v . Great State Bevs., Inc.,

0 0 , 103 (1995)

quoting Short v . Sch. Admin. Unit N o . 1 6 ,

6 , 84

(1992)). Moreover, “case law [in New Hampshire] makes clear that

the public policy violated by a wrongful discharge ‘can be based

on statutory or nonstatutory policy,’” Karch v . BayBank FSB,

(2002) (quoting Cilley v . N.H. Ball Bearings, Inc.,

0 1 , 406 (1986)). And, the requisite public policy

apparently can arise from federal as well as state statutory

provisions. See, e.g., Bliss v . Stow Mills, Inc.,

(2001).

Defendant argues that the wrongful discharge claim in Count

A must be dismissed, because the public policy on which it is

based arises from USERRA, and USERRA provides plaintiff with an

adequate statutory remedy. The New Hampshire Supreme Court has

explained, as a general proposition, that “a plaintiff may not

pursue a common law remedy where the legislature intended to

replace it with a statutory cause of action.” Wenners,

(citing Howard v . Dorr Woolen Co.,

(1980)). But there appears to be no reported decision by the New

Hampshire Supreme Court in which a plaintiff’s common law

8 wrongful discharge claim has been dismissed due to the existence

of “an adequate statutory remedy.”1 Indeed, in two recent cases,

plaintiffs have been allowed to pursue common law wrongful

discharge claims in which the public policy element has been

1 In Wenners, the defendant sought dismissal of a wrongful discharge claim on grounds that plaintiff asserted that he had been dismissed in contravention of a public policy arising from the federal bankruptcy code.

. The Supreme Court held that because the bankruptcy code prohibited the employer’s alleged conduct, but “does not evidence an intent to supplant a common law cause of action for wrongful termination,”

, the code both provided an adequate public policy to support a wrongful discharge claim, and did not bar the plaintiff’s common law cause of action.

. In Howard, the principal opinion on which Wenners relies for the proposition that “a plaintiff may not pursue a common law remedy where the legislature intended to replace it with a statutory cause of action,”

, the plaintiff asserted a claim for wrongful discharge, alleging he had been discharged “because of his age, his suffering from angina, and for the purpose of denying him his accrued retirement benefits,” Howard,

. In affirming the trial court’s decision to grant the defendant’s motion to dismiss, the Supreme Court explained that discharge due to sickness or due to age falls outside the category of discharge for “perform[ing] an act that public policy would encourage, or refus[ing] to do that which public policy would condemn.”

(citations omitted). Explaining that getting sick or growing old are not acts that public policy would encourage, for purposes of a wrongful discharge claim, the court went on to observe that “[a] discharge due to sickness . . . is generally remedied by medical insurance or disability provisions in an employment contract,”

and that “[t]he proper remedy for an action for unlawful age discrimination is provided for by statute,”

(citations omitted). (However, because the plaintiff’s claims were dismissed for failing to allege an adequate public policy, the existence of a statutory remedy for age discrimination was not necessary to the court’s decision.)

9 supplied by statutes that also provided specific remedies. In

Karch, the plaintiff was allowed to pursue a wrongful discharge

claim based upon an alleged violation of a public policy

established by the New Hampshire Whistleblowers’ Protection Act.2

. And in Bliss, the plaintiff was allowed to

pursue a wrongful discharge claim that involved a public policy

expressed by the federal Surface Transportation and Assistance

Act of 1982 (“STAA”). 3

(holding that the STAA

did not preempt common law cause of action for wrongful

discharge, and regarding preemption analysis as dispositive of

defendant’s Wenners argument).

Based upon Karch and Bliss, it is evident that the rule

established in Wenners provides no basis for dismissing Count A .

2 The Whistleblowers’ Protection Act, RSA 275-E, provides, inter alia, that an employee claiming to have been discharged for reporting, in good faith, an employer’s violation of the law, is entitled to a hearing before the commissioner of labor and an appeal pursuant to RSA 541. The statute affords remedies in the form of back pay, reinstatement, and other equitable relief. 3 The STAA contains an anti-retaliation provision that gives truck drivers the right to file complaints with the Secretary of Labor if they believe they have been discharged for reporting their employers’ STAA violations. Bliss,

.

10 Moreover, while USERRA provides individuals such as plaintiff

with a cause of action, it also specifically provides that

[n]othing in this chapter shall supercede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, pla n , practice, or other matter that establishes a right or benefit that is more beneficial t o , or is in addition t o , a right or benefit provided for such person in this chapter.

(a). The federal statute providing the public

policy for the wrongful discharge claim in Bliss appears to

contain no such provision and, therefore, seems even less

amenable than USERRA to parallel state and federal remedies.

Given the rather plain language of USERRA, it is apparent that

Congress did not intend to replace any common law remedy that

might also be available to plaintiff.4 Thus, neither the rule

stated in Wenners, nor preemption principles, provide a basis

upon which to dismiss Count A .

4 USERRA does have a preemption provision, but that provision applies only to state laws that limit the rights or benefits available thereunder, or that impinge upon the exercise of those rights, see

(b), not to state laws that expand upon or supplement the rights available under the USERRA.

11 None of the three cases cited by defendant requires, or even

supports, a contrary result. In Harris v . City of Montgomery,

(M.D. Ala. 2004), the court granted

defendants’ motion for summary judgment on plaintiff’s Fourteenth

Amendment equal-protection claim, arising from alleged

discrimination based upon the plaintiff’s military status, on

grounds that the constitutional claim, if one existed at all,

duplicated a USERRA claim the plaintiff had asserted in the same

action. In Satterfield v . Borough of Schuylkill Haven,

(E.D. P a . 1998), the court relied upon the doctrine

of constitutional claim preemption to dismiss the plaintiff’s

equal-protection claim, brought under

, ruling

that the plaintiff could not bypass USERRA’s “comprehensive

enforcement mechanism . . . by alleging a constitutional

violation and bringing suit directly under § 1983.” Id. at 437.

While both Harris and Satterfield stand for the proposition that

USERRA “provides a comprehensive remedial scheme for

discrimination on the basis of military service,” Harris,

, thus depriving a USERRA plaintiff of a separate

constitutional claim arising out of the same operative facts,

neither case holds that Congress intended USERRA to replace

12 common law remedies, which, under New Hampshire law (i.e.,

Wenners), is the determinative issue.

Similarly, in Schmauch v . Honda of America Manufacturing,

Inc.,

(S.D. Ohio 2003), the court relied upon

Ohio law to dismiss the plaintiff’s common law wrongful discharge

claim as duplicative of his USERRA claim, but did so because

USERRA “provides adequate remedies such that the public policies

established by the USERRA are not jeopardized by denying Schmauch

the ability to pursue a tort action for a violation of public

policy,”

. But again, the determinative factor under

New Hampshire law, as established in Wenners, is not whether

USERRA provides an “adequate remedy,” but rather, whether the

legislature, in this case the U.S. Congress, intended to replace

common law remedies, a question not addressed by the court in

Schmauch, and a question specifically answered by the Congress:

it had no such intent; in fact it intended that no such remedies

would be adversely affected.

13 Count B

In Count B , plaintiff makes a claim for wrongful

termination, asserting he was discharged because he insisted upon

being paid his full salary for each pay period in which he

performed work, as was his right as an exempt, salaried employee.

Defendant moves to dismiss on grounds that New Hampshire law bars

plaintiff from making a common law claim, due to the existence of

a statutory remedy under the Fair Labor Standards Act. Defendant

is entitled to dismissal of Count B , but for a different and more

fundamental reason than the one identified, namely, the absence

of a public policy that was offended by his alleged dismissal for

demanding to be paid in full for every pay period during which he

performed any work for his employer.

“[O]rdinarily, the issue of whether a public policy exists

is a question for the jury, [but] at times the presence or

absence of such a public policy is so clear that a court may rule

on its existence as a matter of law . . .” Short,

(citing Cloutier v . Great Atl. & Pac. Tea Co.,

(1981)). This is such a time. While the “case law [in New

Hampshire] makes clear that the public policy violated by a

14 wrongful discharge ‘can be based on statutory or nonstatutory

policy,’” Karch,

(citation omitted), the statute

to which plaintiff looks for a public policy to support his claim

simply does not provide the right he thinks it does. The FLSA

does not grant exempt salaried employees a right to be paid their

full salaries for every pay period during which they perform any

work for their employers.

The source of confusion is probably the Code of Federal

Regulations, which does include the following language: “an

exempt employee must receive the full salary for any week in

which the employee performs any work without regard to the number

of days or hours worked.”

(previously

codified at

). However, the quoted language

does not confer a right upon salaried employees; it is actually

part of the “salary basis” test for determining whether an

employee is exempt from the FLSA overtime requirements. It

provides that if an employer wants to treat an employee as exempt

from the FLSA’s overtime requirements, then that employee must be

paid on a salary basis rather than an hourly wage basis. Because

the FLSA does not afford exempt employees the right to be paid

15 their full salaries for every period in which they perform some

work for their employers, the FLSA does not provide a statutory

basis for the public policy upon which plaintiff relies to

support his wrongful discharge claim in Count B . And, because

plaintiff does not attempt to suggest a nonstatutory basis for

that public policy, Count B must necessarily be dismissed for

failure to identify a public policy that encouraged him to insist

on full payment of his civilian salary while on military duty.

Count C

In Count C , plaintiff asserts a claim for wrongful

termination, saying he was fired because he refused to misstate

the nature of the work he did for Verizon while on active

military duty, and because he insisted upon payment for that

work. Defendant moves to dismiss on grounds that plaintiff has

failed to identify any public policy sufficient to support a

wrongful discharge claim, and that even if he had identified an

adequate public policy, Count C is barred by virtue of the

comprehensive remedial schemes available under USERRA and the

FLSA.

16 To the extent Count C is based upon plaintiff’s alleged

insistence on being paid salary he was due, that claim is

subsumed in Count B and the analysis set forth above applies

equally to Count C . To the extent Count C is based upon

plaintiff’s alleged “refus[al] to misstate the nature of the work

he performed for Verizon while on active military duty” (Compl. ¶

6 8 ) , defendant is entitled to dismissal. Nowhere in his

complaint does plaintiff identify any instance in which he was

asked to misstate anything to anyone, much less that he refused

to do s o . Defendant makes that point in its motion to dismiss,

and it is persuasive.

Plaintiff counters with an argument that is difficult to

paraphrase and s o , is set out in full:

Reading plaintiff’s Count C and giving him the benefit of all reasonable inferences related thereto, the Court can assume that plaintiff’s claim is as follows. Major Slater was asked to work for Verizon while he was on active military duty because his work group was understaffed. Major Slater refused to work for Verizon in secret, but instead insisted that he work openly and be paid for his work. Later, Major Slater’s direct superior, Bonanno, disclaimed knowledge that Slater was being paid. Major Slater, who was the subject of an investigation, refused to disclaim that he was paid or that he worked without permission. In other words, Major Slater acted truthfully in working,

17 demanding that he be paid, and in asserting that he worked with permission and for pay during the investigation. He was then fired for not filing a military leave form and for collecting his Verizon salary while on active duty. Plaintiff’s claim assumes that he would not have been fired had his statements been believed by Verizon. Verizon’s bad faith is established by Bonanno’s failure to support Slater when Slater had Bonanno’s direct permission to work and be paid. The act that triggered the termination was Slater’s telling the investigators truthfully what he had done.

(Pl.’s Mem. of Law at 16.)

Whatever else plaintiff may be asserting in his memorandum

of law, he sheds no light on the essential claim in Count C , that

he was terminated because he refused to misstate the nature of

the work he did for Verizon while on military duty. Plaintiff

does not indicate when (or even that) he was asked to make a

false statement. In the passage quoted above, plaintiff says he

refused to work in secret, but not that he was ever asked to do

so. And at the end of the passage, he claims he was terminated

for telling the truth to investigators, but does not claim that

he was ever asked, by anyone, to tell investigators anything

other than the truth. Thus, plaintiff has failed to allege facts

sufficient to support an assertion that he was terminated for

18 refusing to misrepresent the truth, either at the time of his

military service or during the course of the investigation of his

having worked for Verizon while on active military duty.

What plaintiff does appear to argue is that he was

terminated for telling the truth when questioned by Verizon

investigators. But, based upon the facts alleged, it would be

more accurate to say that plaintiff told the truth and was then

terminated - not so much for telling the truth, but because the

truth justified his discharge in the eyes of his employer.

Consider the following scenario. An employee steals from his

employer. The employer investigates. The employee truthfully

admits his theft, and is terminated. The employee has been

terminated for stealing, not for “telling the truth” to

investigators. So it is in this case; plaintiff has failed to

allege any facts to support a claim that he was terminated for

“telling the truth,” but only facts supporting a conclusion that

he was terminated for collecting his full Verizon salary while on

active military duty.

19 Count D

In Count D, plaintiff asserts a claim for wrongful

termination, based upon an allegation that he was discharged as a

result of an unfair investigation. Defendant moves to dismiss on

grounds that plaintiff has failed to identify a public policy

adequate to support his claim.

“Inquiry into the public policy component must focus on the

acts of the employee and their relationship to public policy, not

on the mere articulation of a public policy by the employee.”

Frechette v . Wal-Mart Stores, Inc.,

5 , 98 (D.N.H.

1995) (citation omitted). Here, Count D alleges no conduct by

plaintiff, favored by public policy, that led to his dismissal by

Verizon. To the contrary, Count D focuses entirely upon

Verizon’s alleged malfeasance in the investigation it conducted

into plaintiff’s activities. Accordingly, plaintiff has failed

to state a claim on which relief can be granted.

Count E

Defendant moves to dismiss Count E , plaintiff’s RSA 110-C

claim, on grounds that plaintiff has failed to exhaust his

20 administrative remedies. Defendant, however, is entitled to

dismissal for a different and more fundamental reason. Plaintiff

has not alleged – and could not allege in good faith – that he

was called to active duty by the state, rather than by the

federal government, which is a necessary prerequisite to his

having any rights under RSA 110-C. As the statute expressly

provides, “[i]t is the intention of this section to eliminate the

differences in benefits, rights, and protections in employment

between individuals called to active duty by the federal

government and those called to active duty by the state.” RSA

110-C:1, I . As plaintiff has not alleged that he was called to

active duty by the state (and likely was n o t ) , he has no

reemployment rights under RSA 110-C. Count E is dismissed.

Count G

In Count G, plaintiff asserts that Verizon violated his

rights under the Fair Labor Standards Act by discharging him in

retaliation for asserting, in good faith, his right under the

FLSA to be paid his full salary for each pay period during which

he performed any work for Verizon. Defendant moves to dismiss on

grounds that: (1) generalized and/or informal complaints about

21 wages cannot give rise to retaliation claims under the FLSA; and

(2) too much time elapsed between plaintiff’s assertion of his

right to be paid and his termination to support an inference of

retaliation.

The anti-retaliation provision of the FLSA provides as

follows:

[I]t shall be unlawful for any person–

to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding . . .

(a)(3). “The elements of a retaliation claim

under the FLSA require, at a minimum, a showing that (1) the

plaintiff engaged in a statutorily protected activity, and (2)

his employer thereafter subjected him to an adverse employment

action (3) as a reprisal for having engaged in protected

activity.” Claudio-Gotay v . Becton Dickinson Caribe, Ltd.,

9 , 102 (1st Cir. 2004) (citing Blackie v . Maine,

(1st Cir. 1996)). “[T]he assertion of statutory rights

22 . . . by taking some action adverse to the company . . . that is

the hallmark of protected activity under § 215(a)(3).” Claudio-

Gotay,

(quoting McKenzie v . Renberg’s Inc.,

(10th Cir. 1996); citing EEOC v . HBE Corp.,

, 544 (8th Cir. 1998)).

Because the right plaintiff alleges he asserted – the right

to be paid his full salary for each pay period during which he

performed any work for Verizon – is not a right guaranteed under

the FLSA, termination in retaliation for asserting that “right”

cannot constitute a violation of the FLSA. That i s , plaintiff

asserted a “right” of his own invention, not a statutory right

granted him under the FLSA. Accordingly, he has failed to state

a valid retaliation claim under

(a)(3).

However, even if the FLSA did extend the right on which

Count G is based, defendant would still be entitled to dismissal.

Plaintiff says that he “asserted his rights to his full salary in

good faith” (Compl. ¶ 87) and that he “was terminated as a result

of his good faith assertion of his rights under the Fair Labor

Standards Act” (Compl. ¶ 8 8 ) . Nowhere does the complaint offer

23 any additional allegations as to when, how, or to whom plaintiff

asserted his rights to be paid his full salary. Moreover, in his

memorandum of law, plaintiff does not argue that he was

terminated because he asserted, prospectively, a right to be paid

his full salary – by all accounts plaintiff had been paid his

full salary long before he asserted any right to collect i t .

Rather, he urges “the Court to infer that plaintiff objected to

his termination for collecting both military and Verizon pay

because he in good faith believed he was entitled to receive both

and had Bonanno’s permission.” (Pl.’s Mem. of Law at 22

(emphasis added).) Given plaintiff’s characterization of his

termination as “effective on the day it was announced to him,”

(Compl. ¶ 7 ) , it appears that plaintiff is alleging that he

asserted his FLSA rights in response to being terminated, not

that he was terminated in response to asserting his FLSA rights.5

While plaintiff alleges that he asserted his right to be paid his

full salary, and argues that he had such a right under the FLSA,

5 According to plaintiff, “there was nothing about which to complain until the investigation was completed and Slater was fired.” (Pl.’s Mem. of Law at 22.) Thus, under plaintiff’s own theory of the case, he never asserted his right to be paid full salary until after he had been terminated, thus undercutting any claim that his termination was in retaliation for asserting that right.

24 he does not allege that he ever informed Verizon that the source

of the right he was attempting to assert was the FLSA. Cf.

Valerio v . Putnam Assocs. Inc.,

5 , 38 (1st Cir. 1999)

(quoting plaintiff’s letter to employer which states, inter alia,

“I demand under FLSA that I be reclassified as non-exempt and

paid for all overtime hours worked.”).

Because plaintiff has failed to allege facts sufficient to

support a claim that he was terminated because he asserted his

rights as an employee, and because the right on which Count G is

based does not exist under the FLSA, defendant is entitled to

dismissal of Count G.

Count I

Count I is a defamation claim. Plaintiff alleges that

defendant effectively forced him to re-publish to potential

employers the false and defamatory statements defendant made

regarding its reasons for terminating his employment. Defendant

moves to dismiss on grounds that New Hampshire does not recognize

a cause of action for “forced re-publication” or “compelled self-

defamation.”

25 The New Hampshire Supreme Court has yet to decide whether it

will recognize a cause of action for defamation resulting from

forced re-publication (or compelled self-defamation). Thus, it

is necessary to predict how that court would likely rule. See

Bogosian v . Woloohojian Realty Corp.,

5 , 71 (1st Cir.

2003) (citing Nieves ex rel. Nieves v . Univ. of P.R.,

7 0 ,

274-75 (1st Cir. 1993)).

Plaintiff concedes that the self-defamation theory has been

adopted by only a minority of the courts that have considered i t .

Moreover, decisions adopting the theory generally pre-date those

that reject i t , evidencing a trend away from recognizing the

theory of forced re-publication. See Cweklinsky v . Mobil Chem.

Co.,

5 4 , 159 (2d Cir. 2002); but see Carey v . M t .

Desert Island Hosp.,

, 11 (D. M e . 1995) (“A growing

number of jurisdictions recognize the theory of compelled self-

publication.) (citations omitted). Illustrating the trend away

from recognizing the self-defamation theory, one of the first

states to adopt i t , Georgia, has since reversed course. See

Sigmon v . Womack,

5 4 , 257 (Ga. C t . App. 1981)

26 (overruling Colonial Stores, Inc. v . Barrett,

(Ga.

C t . App. 1946)).

Not only does the doctrine represent a minority position, it

has been largely discredited. See Olivieri v . Rodriguez,

(7th Cir. 1997) (Posner, J . ) . Among those

jurisdictions explicitly rejecting the doctrine is Massachusetts,

see White v . Blue Cross & Blue Shield of Mass., Inc.,

(Mass. 2004), a state to which the New Hampshire Supreme

Court often turns for guidance when New Hampshire decisional law

is not well-developed, see, e.g., In re Juvenile 2003-195,

4 4 , 652 (2004); Claremont Sch. Dist. v . Governor,

(1993); Chase v . Dorais,

0 0 , 602 (1982). The

doctrine has also been rejected by the Restatement (Second) of

Torts, see White,

, which the New Hampshire

Supreme Court often recognizes as persuasive, see, e.g., Remsburg

v . Docusearch, Inc.,

4 8 , 158 (2003); Buckingham v . R.J.

Reynolds Tobacco Co.,

2 2 , 829 (1998).

The signposts seem sufficiently clear; if the New Hampshire

Supreme Court were presented with the question, it would decline

27 to adopt the self-defamation theory on which Count I is based.

Accordingly, plaintiff has failed to state a claim on which

relief can be granted.

Conclusion

For the reasons given, defendant’s motion to dismiss

(document n o . 7 ) is granted in part (Counts B , C , D, E , G, and I

are dismissed), and denied in part (Count A is not dismissed).

SO ORDERED.

Steven J. McAuliffe Jnited States District Judge

March 3, 2005

cc: Andru H. Volinsky, Esq. Brian H. Lamkin, Esq. Daniel P. Schwarz, Esq. Timothy P. Van Dyck, Esq.

28