Melvin v . NextEra Energy 09-CV-249-JD 01/06/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brendan Melvin

v. Civil N o . 09-cv-249-JD Opinion N o .

NextEra Energy Seabrook, LLC f/k/a FPL Energy Seabrook, LLC

O R D E R

Brendan Melvin filed a complaint against NextEra Energy

Seabrook, LLC f/k/a FPL Energy Seabrook, LLC (hereinafter,

“NextEra”), after NextEra fired him for poor judgment and

violating the company’s code of conduct. Melvin complains that

NextEra’s actions constituted wrongful termination and negligent

infliction of emotional distress. NextEra moved to dismiss both

claims.

Standard of Review

When considering a motion to dismiss for “failure to state a

claim upon which relief can be granted,” under Federal Rule of

Civil Procedure 12(b)(6), a trial court “must assume the truth of

all well-plead[ed] facts and give the plaintiff the benefit of

all reasonable inferences therefrom.” Ruiz v . Bally Total

Fitness Holding Corp.,

, 5 (1st Cir. 2007). “[T]o survive a motion to dismiss, a complaint must establish ‘a

plausible entitlement to relief,’” Vernet v . Serrano-Torres,

5 4 , 258 (1st Cir. 2009) (quoting Bell Atl. Corp. v .

Twombly,

4 4 , 559, (2007)), and “must contain ‘enough

facts to raise a reasonable expectation that discovery will

reveal evidence’ supporting the claims.” Fantini v . Salem State Coll.,

2 , 26 (1st Cir. 2009) (quoting Bell Atlantic,

550 U.S. at 5 4 4 ) . “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not

suffice.” Ashcroft v . Iqbal, -- U.S. ---, 129 S . C t . 1937, 1949

(2009) (citation omitted).

Discussion

In his complaint, Melvin explains that he was employed at

NextEra’s nuclear power station in Seabrook, New Hampshire, first

as a contracts supervisor and later as a “Manager Sourcing.” On

April 6, 2009, NextEra fired Melvin, allegedly for “poor judgment

in a leadership role and violation of the Code of Conduct.”

Compl. ¶ 9. Melvin explains that this refers to the fact that he

did not fire Michele Machula, one of Melvin’s supervisees who

worked in Cedar Rapids, Iowa, after she sent emails to coworkers

containing vulgar language and sexual innuendos. Melvin states

that he had no knowledge that Machula had done this, although he

2 admits that he received emails from Machula that “were intended

as jokes.” Compl. ¶ 1 3 .

According to Melvin, NextEra also fired Machula on April 6,

2009. Melvin asserts that this was in retaliation for Machula’s

complaints regarding “unethical behavior by [a] co-worker.”

Compl. ¶ 1 5 . Melvin complains that vulgar and sexual communications were “rampant” among NextEra employees, including

executive management personnel, during the time when he and

Machula were employed there. He claims that the communications

were accepted by the management and that those who communicated

in this fashion in the past were “never disciplined or terminated

for such behavior.” Compl. ¶ 1 6 .

Melvin’s complaint contains one count of wrongful

termination and one count of negligent infliction of emotional

distress. NextEra moves to dismiss both claims, arguing that Melvin does not and cannot state a claim upon which relief can be

granted.

A. Wrongful Termination

Count I of Melvin’s complaint alleges wrongful termination.

Under New Hampshire law, the claim of wrongful termination exists

as a judicially crafted exception to the common law doctrine of

employment at will. See Harper v . Healthsource New Hampshire,

3 Inc.,

7 0 , 774 (1996). Under that doctrine, “hiring is

presumed to be at will and terminable at any time by either

party.” Monge v . Beebe Rubber Co.,

3 0 , 132 (1974); see

also MacDonald v . Tandy Corp.,

(D.N.H.

1992). It is not clear from what he has filed whether Melvin’s

employment was at-will. This is significant because “wrongful termination [is] a cause of action by at-will employees against

employers.” Cilley v . New Hampshire Ball Bearings, Inc.,

0 1 , 405 (1986) (citing Monge,

3 3 ) ; see also

Jordan v . Verizon New England, Inc., N o . 05-cv-146-SM,

, at *4 n.2 (D.N.H. July 5 , 2005) (explaining that

“wrongful termination [is] a cause of action available only to

employees at will”). In order to give Melvin “the benefit of all

reasonable inferences,” the court will assume that his employment

was at-will. Ruiz,

. Under New Hampshire law, a wrongful termination claim has

two elements. In order to prevail, the plaintiff must establish

“(1) [that] his termination was motivated by bad faith,

retaliation or malice; and (2) that he was terminated for

performing an act that public policy would encourage or for

refusing to do something that public policy would condemn.”

MacKenzie v . Linehan,

(2009) (citing Lacasse v .

Spaulding Youth Ctr.,

(2006)).

4 In its motion to dismiss, NextEra focuses on the second

element of this two-pronged test, arguing that Melvin does not

and cannot articulate any public policy that was violated.

In his complaint, Melvin alleges two grounds to meet the

public policy requirement: NextEra’s firing of Melvin with “no

basis to terminate him” and “termination of Plaintiff for his failure to discipline and/or terminate Michele Machula when he

had no knowledge of her alleged inappropriate . . .

communications.” Compl. ¶ 22. 1 Put more simply, Melvin argues

that public policy does not condone NextEra’s groundless firing

of Melvin and would not condone Melvin’s firing of Machula if he

had no knowledge of her misdeeds, because the firing would be

groundless.

Melvin’s allegations do not support the public policy

requirement. Melvin alleges that NextEra violated public policy by firing him with no basis to do s o , but this was an act taken

by NextEra, not by Melvin. The public policy prong of a wrongful

1 In his objection to NextEra’s motion to dismiss, Melvin argues that an additional act violated public policy: “terminating [Melvin] for failing to supervise or terminate a subordinate who engaged in inappropriate behavior . . . but [not terminating or reprimanding] other management employees who committed the same acts.” Pl.’s O b j . ¶ 9. Even if he had raised this theory in his complaint, it would not suffice because the act was undertaken by NextEra, not Melvin. As discussed below, the public policy element may only be satisfied by acts performed by the employee, not the employer.

5 termination claim “pertains to the employee’s action,” not the

employer’s. Scannell v . Sears Roebuck & Co., N o . 06-cv-227-JD,

, at *3 (D.N.H. Sept. 6, 2006) (emphasis in

original) (citing Porter v . City of Manchester,

0 , 38

(2004)). Because the allegedly groundless firing was an action

taken by NextEra, it cannot satisfy the public policy element of Melvin’s wrongful termination claim.

Melvin also alleges that he was fired for failing to

discipline Machula when he had no knowledge of her misdeeds, but

he fails to state a public policy that would support this

failure. “[A] plaintiff must articulate a public policy in order

to make out a claim for wrongful termination.” Short v . School

Admin. Unit N o . 1 6 ,

6 , 86 (1992); see also Duhy v .

Concord General Mut. Ins. Co., N o . 08-cv-192-JL,

,

at *11 (D.N.H. June 1 0 , 2009) (granting summary judgment for defendant where plaintiff “failed to persuade the court that New

Hampshire law recognizes the public policies she has suggested”).

“Although ordinarily the issue of whether a public policy exists

is a question for the jury, 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,

(citation

omitted). This case is one of those times. Melvin does not

articulate any public policy whatsoever, stating merely that

6 NextEra’s “termination of [him] for his failure to discipline

and/or terminate Michele Machula . . . is a violation of public

policy.”2 Moreover, the court does not discern a public policy

implicated by the circumstances.

In addition, to the extent Melvin argues that his employment

was terminated because he disagreed with NextEra’s allegedly selective enforcement of its policies or its management of his

supervisory role, those matters, as alleged, also would not

implicate a public policy. See, e.g., MacKenzie,

(holding that an employee’s disagreement “about whether his

conduct violated [his employer’s] rule . . . [is] not an act that

public policy would protect”); Short,

(“[A]n

employee’s expression of disagreement with a management decision

is not an act protected by public policy.”)

2 Melvin attempts to rectify this omission by stating in his objection to the motion to dismiss that “public policy would condemn . . . terminating a[n] employee on the basis of her alleged violations of company policy when Plaintiff had no knowledge of any violations and when other employees engaged in the same behavior which was condoned by NextEra.” Pls.’ O b j . ¶ 2 . This is insufficient to save Melvin’s case, however, because a motion to dismiss under Rule 12(b)(6) weighs the adequacy of the complaint only. See Vernet,

. Moreover, this purported public policy is not the type of generalized policy that New Hampshire courts recognize. See, e.g., Cloutier v . Great Atl. & Pac. Tea Co., Inc.,

(1981) (“protecting [one’s] employees” and “giv[ing] employees a day of rest”); MacKenzie,

(“truthfulness”).

7 Therefore, because Melvin failed to allege facts that would

support the public policy element of a wrongful termination

claim, that claim is dismissed.

B. Negligent Infliction of Emotional Distress

Melvin’s second claim asserts that NextEra negligently

inflicted emotional distress upon him. “[A] plaintiff’s serious

emotional injury [must be] directly caused by [the] defendant’s

negligence.” Corso v . Merrill,

4 7 , 653 (1979). “In

order to recover for negligence, a plaintiff must show that there

exists a duty, whose breach by the defendant causes the injury

for which the plaintiff seeks to recover.” Manchenton v . Auto

Leasing Corp.,

9 8 , 304 (1992) (citations omitted); see

also Waid v . Ford Motor Co.,

4 0 , 643 (1984)

(discussing, in the context of emotional distress inflicted upon

third-party bystanders, that “[t]he duty to the bystander derives

entirely from the duty of due care owed the injured loved one”).

In his complaint, Melvin alleges that NextEra violated two

duties it had to Melvin: the “duty to conduct a proper

investigation” into the propriety of Melvin’s actions or

inactions before firing him and the duty not to terminate him

without proof of some misbehavior on his part. Compl. ¶ 25-26.

Melvin is incorrect; NextEra did not have any such duties. Based

8 on the assumption that Melvin was an at-will employee, his

employment could be terminated by NextEra at any time for any

reason or no reason unless that termination constituted wrongful

termination. Therefore, the success of Melvin’s second claim

rises and falls with the success of his first, which fails. Cf.

Gwyn v. Loon Mtn. Corp., No. 01-214-B,

, at *6

(D.N.H. May 15, 2002) (reasoning that, where “plaintiffs rely on

the same breaches of duties alleged in Counts I and II in framing

Count[] III (for negligent infliction of emotional distress) . .

., Count[] III . . . cannot provide a basis for recovery unless

plaintiffs prevail on one or more of the theories advanced in

Counts I and II”).

Conclusion

For the foregoing reasons, NextEra’s motion to dismiss

Melvin’s complaint (document no. 6) is granted. The clerk of

court shall enter judgment accordingly and close the case.

SO ORDERED.

VjJoseph A.i___clerico___ Jr. United States District Judge January 6, 2010

cc: David A. Anderson, Esquire Laurie A. Lacoste, Esquire Robert A. Shaines, Esquire

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