Byrd v. Appalachian Mtn. Club

• Court: District Court, D. New Hampshire
• Decided: May 13, 1996
• Docket: CV-95-625-JD
• Status: Published

Opinion

Byrd v. Appalachian Mtn. Club CV-95-625-JD 05/13/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Betsy Byrd, et al.

v. Civil No. 95-625-JD

Appalachian Mountain Club

O R D E R

The defendant Appalachian Mountain Club ("AMC") has moved to

dismiss counts one through five of the amended complaint pursuant

to Fed. R. Civ. P. 12 (b) (6) .

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, 416 U.S.

232, 236 (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. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st

Cir. 1992); see also Dartmouth Review v. Dartmouth College, 889

F.2d 13, 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.1" Garita, 958 F.2d at 17 (quoting Correa-Martinez v. Arrillaqa-Belendez, 903 F.2d 49, 52

(1st Cir. 1990) ) .

In count one the plaintiff, Betsy Byrd ("plaintiff"), claims

she was constructively discharged wrongfully because she reported

incidents of sexual harassment by an applicant for AMC employment

to a member of the AMC Board of Directors and to the AMC Human

Resources manager. The plaintiff claims that it is contrary to

public policy to be constructively discharged from employment for

reporting incidents of sexual harassment to AMC officials. The

defendant, relying on the case of Smith v. FW Morse & Co., Inc.,

No. 95-1556, 1996 WL 46919 (1st Cir. Feb. 12, 1996), asserts that

the plaintiff's claim is barred. The defendant's reliance on

Smith is misplaced. The plaintiff recognizes that Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000-e:(b) exempts

nonprofit corporations from coverage under Title VII. In count

one of her amended complaint, the plaintiff does not bring a

Title VII claim but rather sets forth a claim for wrongful

discharge. While the plaintiff may not have a claim under Title

VII, Title VII does not preclude her from bringing a common law

wrongful discharge claim. The court rejects the argument

asserted by the defendant that Title VII's exclusion of nonprofit

corporations from the application of its provisions establishes a

policy that employees of nonprofit corporations cannot seek

2 redress under the common law for being wrongfully discharged for

reporting sexual harassment. See Gardner v. Blue Mountain Forest

Assoc., No. CV-94-599-M, 1995 WL 623279 (D.N.H. July 27, 1995).

Therefore, the defendant's motion to dismiss count one is denied.

The defendant has moved to dismiss count two which alleges a

claim for intentional infliction of emotional distress. The

motion is granted. The court relies on the reasoning set forth

in Miller v. CBC Cos., Inc., No. CV-95-24-SD, 1995 WL 704989, at

*11 (D.N.H. Nov. 29, 1995); Frechette v. Wal-Mart Stores, Inc.,

No. CV-94-430-JD (D.N.H. Sept. 26, 1995); and Foster v. Wal-Mart,

Inc., No. CV-94-571-JD (D.N.H. Mar. 15, 1996).

The defendant has moved to dismiss the negligent supervision

claim in count three. The plaintiff alleges that the AMC did not

exercise due care in training, supervising and controlling

Blackmer and others superior to the plaintiff in order to protect

her rights and to enforce A M C 's policies protecting employees'

rights. The plaintiff seeks damages for out-of-pocket expenses,

lost income, severe emotional distress with resulting physical

symptoms, loss of reputation, self-esteem and standing. She also

seeks enhanced compensatory damages. The plaintiff's negligent

supervision claim arises directly out of her employment

relationship with AMC and with her co-employees, and the gravamen

of the claim is that she was wrongfully discharged for reporting

3 incidents of sexual harassment. To the extent that under this

claim she seeks damages for emotional distress, the claim is

barred by the exclusivity provisions of N.H. Rev. Stat. Ann. §

281-A:8. See Foster v. Wal-Mart, Inc., supra. With respect to

the other damages she is seeking, the plaintiff cannot recast

what is essentially a wrongful discharge claim as a negligent

supervision claim and thereby change the essential elements she

must prove in order to prevail. New Hampshire law provides a

remedy for wrongful discharge and that is the remedy the

plaintiff must pursue. C f . Peck v. MGM Insurance Co., et al..

No. CV-94-90-B (D.N.H. June 21, 1995) (court granted defendant's

motion for summary judgment on negligent supervision claim on

ground that under the circumstances alleged the New Hampshire

Supreme Court had not yet recognized a cause of action). The

court grants defendant's motion to dismiss count three.

In count four, the plaintiff alleges that AMC breached

implied covenants of good faith and fair dealing. The court

grants defendant's motion to dismiss count four relying on the

reasoning in Frechette v. Wal-Mart Stores, Inc., supra; Robinson

v. Coronia, No. CV-92-306-B (D.N.H. Jan. 4, 1996); and Douglas v.

Coca-Cola Bottling Co. of Northern N.E., et al.. No. CV-94-97-M

(D.N.H. Nov. 6, 1995) .

4 The defendant's motion to dismiss count five is denied since

count one remains.

Summary

Defendant A M C 's motion to dismiss is denied as to counts one

and five, and granted as to counts two, three, and four. The

clerk shall schedule a status conference at which counsel shall

be prepared to discuss settlement.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge May 13, 1996

cc: Christopher E. Grant, Esguire Paul McEachern, Esguire Martha V. Gordon, Esguire