Duguay v. Androscoggin Valley Hosp.

• Court: District Court, D. New Hampshire
• Decided: January 25, 1996
• Docket: CV-95-112-SD
• Status: Published

Opinion

Duguay v. Androscoggin Valley Hosp. CV-95-112-SD 01/25/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Marie Duguay

v. Civil No. 95-112-SD

Androscoggin Valley Hospital; Northcare, Inc.; Robert Gilligan, individually and as Vice President of Fiscal Services for Northcare, Inc.; Don Saunders, individually and as President of Northcare, Inc.

O R D E R

In this civil action, plaintiff Marie Duguay alleges she

was sexually harassed by her immediate supervisor. She seeks

recovery from defendants Androscoggin Valley Hospital ("the

Hospital"); Northcare, Inc., the parent company of the Hospital;

Robert Gilligan, Vice President of Fiscal Services for Northcare,

Inc.; and Donald Saunders, President of Northcare, Inc. The

complaint contains the following claims: (1) sexual harassment in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seg. (1994) (Count I); (2) intentional and negligent

infliction of emotional distress (Count II); (3) enhanced

compensatory damages (Count III); and (4) violation of New Hampshire's Law Against Discrimination, Revised Statutes

Annotated (RSA) 354-A, et seg. (1955 & Supp. 1994) (Count IV).

Presently before the court are two motions to dismiss

various counts of the complaint--one is submitted by Gilligan,

the other submitted by the remaining three defendants. Plaintiff

objects to both motions.

Factual Background and Procedural History

This case arises from the sexual harassment allegedly

experienced by Duguay while working at the Hospital1. Duguay

claims that Gilligan, her supervisor, sexually harassed her over

an extended period of time beginning in January of 1988 and

continuing through May 25, 1994. Complaint2 55 18-24. She

charges that Gilligan habitually and repeatedly made sexually

suggestive statements to her that had no connection to her

employment duties. I d . 5 24. Specifically, Duguay claims, among

other things, that Gilligan, on separate occasions, talked to her

1Duguay is currently Director of General Accounting for defendant Northcare, which became the employer of the Hospital's administrative staff in July 1992. Complaint 5 15; Plaintiff's Amended Objection to Defendants' Motion to Dismiss at 2.

2A11 references to the complaint relate to the complaint filed by Duguay on March 3, 1995. She filed a later complaint on May 10, 1995, seeking to consolidate her claims with those of another plaintiff; however, the court ruled the cases were to proceed separately. See Order of May 15, 1995.

2 about the freckles on her back, invited her to go on an overnight

trip unrelated to work, and asked her to model a bathing suit for

him. I d . 55 20, 21. Duguay further alleges on another occasion

Gilligan blew in her ear and pulled on her clothing. I d . 5 20.

After Duguay spoke with Saunders about Gilligan's conduct,

Saunders investigated her claim. I d . 55 25, 26. However, Duguay

claims Saunders did not follow through on his investigation and

failed to determine whether the situation had improved. Id.

5 26.

Duguay filed a charge of discrimination with the New

Hampshire Commission for Human Rights on or about December 1,

1994. I d . 5 2. The complaint was then forwarded to the Egual

Employment Opportunity Commission (EEOC), which issued a Notice

of Right to Sue on December 21, 1994. I d . 5 10. Plaintiff filed

the instant action on March 3, 1995, within ninety days of the

issuance of the Notice of Right to Sue.

Discussion

1. Rule 12(b)(6) Standard

To resolve defendants' Rule 12(b)(6) motion, the court must

"take the well-pleaded facts as they appear in the complaint,

extending plaintiff every reasonable inference in [her] favor."

Pihl v. Massachusetts P e p 't of Educ., 9 F.3d 184, 187 (1st Cir.

3 1993) (citing Coyne v. City of Somerville, 972 F.2d 440, 442-43

(1st Cir. 1982)). A Rule 12(b) (6) dismissal is appropriate

"'only if it clearly appears, according to the facts alleged,

that the plaintiff cannot recover on any viable theory.'" Garita

Hotel Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15,

17 (1st Cir. 1992) (guoting Correa-Martinez v. Arrillaqa-

Belendez, 903 F.2d 49, 52 (1st Cir. 1990)).

2. The Title VII Claim

The Hospital moves to dismiss the Title VII claim because

Duguay failed to file an administrative charge with the EEOC

within 300 days of the alleged discriminatory practice as

reguired.3 The Hospital contends it ceased to be plaintiff's

employer on July 5, 1992, when Northcare took control of the

3Title VII provides in relevant part:

[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed [with the EEOC] by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred . . . .

42 U.S.C. § 2000e-5(e)(1) (1994). Accordingly, as plaintiff initially filed a charge with the New Hampshire Commission for Human Rights, the 300-day period applies.

4 Hospital's administrative staff. According to the Hospital, a

claim against it should be filed with the EEOC no later than 300

days after the date of the transition.

Plaintiff responds that the Hospital remained her "employer"

within the meaning of Title VII even after she technically became

employed by Northcare. Plaintiff is correct that, under a number

of scenarios, the Hospital could have remained her "employer"

after the switch. For example, the Hospital could be considered

her "employer" under Title VII if it "exercised control over an

important aspect of [her] employment." See Carparts Distribution

Ctr., Inc. v. Automotive Wholesaler's Ass'n of N.E., Inc.,4 37

F.3d 12, 17 (1st Cir. 1994) (citing Spirt v. Teachers Ins. &

Annuity A s s 'n , 691 F.2d 1054, 1063 (2d Cir. 1982), vacated and

rem'd on other grounds, 463 U.S. 1223 (1983), reinstated and

modified on other grounds, 735 F.2d 23 (2d Cir. 1984), cert.

denied. 469 U.S. 881 (1984)).5

4Title VII provides, "The term 'employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . ." 42 U.S.C. § 2000e(b) (1994) . Carparts interpreted similar language contained within the Americans with Disabilities Act, 42 U.S.C. 12111(5)(A), but looked to Title VII for guidance.

5The Hospital could also be plaintiff's "employer" if it acted as Northcare's agent after the transition. See Carparts, supra, 37 F.3d at 17-18.

5 The Hospital's argument relies on information outside the

pleadings, to wit, that the Hospital ceased to be the plaintiff's

employer when Northcare took over the administrative staff in

July 1992. The complaint does not mention the Northcare

transition, but rather alleges generally that plaintiff worked at

the Hospital. Complaint 55 14, 15. As the parties rely upon

matters outside the pleading,6 the court will treat defendants'

motion as one for summary judgment on this issue alone.

Accordingly, the court gives the parties sixty days from the date

of this order to conduct discovery on the limited issue of

whether the Hospital continued to "employ" plaintiff within the

meaning of Title VII after July 1992; dispositive motions will be

due thirty days thereafter.

6Rule 12(b), Fed. R. Civ. P., provides in pertinent part.

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

6 3. Intentional and Negligent Infliction of Emotional Distress

a. Northcare

Northcare argues that the exclusivity provision of the

Workers' Compensation Law bars plaintiff's claims for intentional

and negligent infliction of emotional distress. Northcare is the

parent company of the Hospital, and at all relevant times

employed defendants Gilligan and Saunders. Complaint 55 16, 17.

The Workers' Compensation Law precludes employees from suing

employers for personal injuries arising out of the employment

relationship. See RSA 281-A:12,7 Censullo v. Brenka Video, Inc.,

989 F.2d 40, 44 (1st Cir. 1993) (interpreting New Hampshire law);

accord O'Keefe v. Associated Grocers of New England, 120 N.H.

7The "exclusivity provision" of the workers compensation law in existence at the time of plaintiff's injury provides in relevant part:

An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions hereof and on behalf of himself, or his personal or legal representatives, to have waived all rights of action whether at common law or by statute or otherwise: I . Against the employer or the employer's insurance carrier; and II. Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier.

RSA 281:12 (1987), amended by RSA 281-A:8 (Supp. 1994).

7 834, 835-36, 424 A.2d 199, 201 (1980) ("The statute clearly

prohibits an employee from maintaining a common-law action

against his employer for personal injuries arising out of the

employment relationship."). Under the statute, "personal injury"

includes claims for emotional distress. Censullo, supra, 989

F.2d at 43 (citing Bourque v. Town of B ow, 736 F. Supp. 398, 404

(D.N.H. 1990)); Kopf v. Chloride Power Electronics Inc., 8 82 F.

Supp. 1183, 1191 (D.N.H. 1995) (exclusivity clause "bars an

employee's common-law action for personal injuries, including the

intentional infliction of emotional distress arising out of an

employment relationship") (and cases cited therein). From the

language of RSA 281-A:12, and the available case law, it follows

that plaintiff is barred from seeking recovery from her employer

for both the intentional and the negligent infliction of

emotional distress claims. See RSA 281-A:12 (employee of

employer subject to Workers' Compensation Law is conclusively

presumed "to have waived all rights of action whether at common

law or by statute or otherwise" against the employer) (emphasis

added); Kopf, supra, 882 F. Supp. at 1191 (intentional infliction

of emotional distress claim precluded by Workers' Compensation

Law). Plaintiff acknowledges that the Workers' Compensation

Law would prevent her from going forward with a claim against her

employer for a co-employee's torts. See, e.g., Censullo, supra, 989 F.2d at 44 ("'when an intentional injury is committed by a

co-employee the better rule is that an action in damages will not

lie against the employer'") (guoting 2A Arthur Larson, The Law of

Workmen's Compensation § 68.00 (1992)). However, she argues the

exclusivity provision would not apply here because she has

alleged that Northcare is primarily (as opposed to vicariously)

liable for intentional and negligent infliction of emotional

distress.8

Plaintiff relies upon a distinction without a difference.

The exclusivity provision bars actions at common law against

one's employer for personal injuries "arising out of" the

employment relationship. 0'Keefe, supra, 120 N.H. at 835-36, 494

A.2d at 201 (interpreting an earlier version of the exclusivity

clause), and courts interpret this language to mean that immunity

extends to claims for the employer's torts. See Leeman v.

Boylan, 134 N.H. 230, 232-234, 590 A. 2d 610, 612 (1991) (court

noting in passing that under workers' compensation law, immunity

extended to corporate employer who allegedly breached

nondelegable duty to keep workplace safe); 0'Keefe, supra, 120

N.H. at 834-36, 424 A.2d at 200-01 (extending workers'

compensation bar to claim brought by employee against employer

Specifically, her complaint charges her emotional distress resulted in part from the failure of the Hospital and Northcare to act. for breaching a contractual duty to provide and enforce safe

working conditions); Field Co. v. Nuroco Woodwork, Inc., 115 N.H.

632, 634, 348 A.2d 716, 718 (1975) (observing that employer could

not be held liable in tort to employee allegedly injured as a

result of employer's negligence). The facts alleged here

unguestionably support that plaintiff's employer's common-law

tort "arose out of" the employment relationship, and therefore

permit plaintiff's employer to seek protection from the

exclusivity provision.

Plaintiff argues that, prior to the July 1992 transition,

Northcare was not her employer, although it employed the

individual defendants. She contends that therefore the Workers'

Compensation Law would not bar her claims for emotional distress

insofar as they are based on conduct occurring prior to that

date. Northcare neither refutes her contention nor provides

another basis to dismiss plaintiff's claims for emotional

distress.

Accordingly, as the Workers' Compensation Law would only

preclude claims against plaintiff's employer, the court finds and

herewith rules that plaintiff may proceed with her claims for

emotional distress against Northcare to the extent that they are

based on conduct preceding the July 1992 transition. In all

10 other respects, Northcare's motion to dismiss plaintiff's claims

for emotional distress is granted.

b. Saunders and Gilligan

(1) Workers' Compensation Preclusion

Saunders and Gilligan argue that plaintiff's claim for

negligent infliction of emotional distress is barred by the

exclusivity provision of the Workers' Compensation Law. Except

for intentional torts, the statute explicitly provides employees

with immunity from suits brought by co-employees arising in the

employment context. RSA 281:12, II (1987); Thompson v. Forest,

136 N.H. 215, 219, 614 A.2d 1064, 1066-67 (1992) (overruling

prior holding that this provision is unconstitutional).

Accordingly, the court grants Gilligan's and Saunders' motion to

dismiss plaintiff's claim for negligent infliction of emotional

(2) Elements of Intentional Infliction of Emotional

Distress

Gilligan and Saunders also argue that plaintiff fails to

allege sufficient facts to support a claim for intentional

infliction of emotional distress.

11 To state a claim for intentional infliction of emotional

distress, plaintiff must allege that through extreme and

outrageous conduct defendants intentionally or recklessly caused

severe emotional distress. See Morancv v. Morancv, 134 N.H. 493,

495-96, 593 A.2d 1158, 1159 (1991) (citing R estatement (S e c o n d ) of

Torts § 46 (1965)). Liability should be imposed

only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Gener­ ally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

Restatement, supra, § 4 6, c m t . d.

It is for the court, not the jury, to initially determine

whether defendants' conduct could be construed as "so extreme and

outrageous as to permit recovery." Restatement, supra, § 46,

cmt. h. The court notes that successful claims for intentional

infliction of emotional distress typically arise from conduct

that was unusually atrocious or outlandish. See, e.g., Wagenmann

v. Adams, 829 F.2d 196, 214 (1st Cir. 1987) (arresting and

imprisoning and then committing innocent man to mental

12 institution on eve of daughter's wedding constitutes outrageous

conduct) (interpreting Massachusetts law).

Duguay claims that while Gilligan was her supervisor, he

"habitually, repeatedly and intentionally subjected . . . [her]

to sexually suggestive, demeaning and inappropriate statements

. . . Complaint 5 24. These comments included remarks about

the freckles on plaintiff's back, asking plaintiff to model a

bathing suit for him, and inviting plaintiff on an overnight trip

unrelated to work. I d . 55 20, 22. Plaintiff further alleges

Gilligan offensively touched her such as by blowing into her ear

and pulling on her clothes. I d . 5 20. Arguably, plaintiff has

alleged the type of "ongoing, unadorned discrimination of an

inherently offensive nature" that this court has previously found

to be actionable. See Godfrey v. Perkin-Elmer Corp., 794 F.

Supp. 1179, 1189 (D.N.H. 1992). The outrageousness of Gilligan's

conduct is further revealed by the possibility that he "'abuse[d]

. . . a position of actual or apparent authority'" over her. See

i d . at 1190 (guoting Daemi v. Church's Fried Chicken, Inc., 931

F.2d 1379, 1388 (10th Cir. 1991)). The court finds and rules

that Gilligan's alleged conduct is sufficiently "extreme and

outrageous" to support a claim for intentional infliction of

emotional distress.

13 Plaintiff's claim for emotional distress against Saunders

is more shaky than that against Gilligan. Plaintiff alleges

Saunders was aware that Gilligan was harassing her and failed to

take adeguate measures to prevent the conduct from continuing.

Complaint 55 26, 42. However, her complaint acknowledges that

Saunders made some attempts to investigate her claims. I d . 5 26.

Nevertheless, when viewing plaintiff's allegations in the most

flattering light, they arguably support that Saunders behaved

recklessly over an extended period of time. It may well be that

discovery will reveal that Saunders' conduct is not actionable.

However, until such time, the court finds and rules that

plaintiff may maintain her claim for intentional infliction of

emotional distress against Saunders.

(3) Statute of Limitations

Finally, Gilligan argues that plaintiff's claim for

intentional infliction of distress is time-barred insofar as it

is based on conduct occurring more than three years prior to the

14 filing of the complaint.9 Gilligan cites to RSA 508:4, I (Supp.

1994), which provides in relevant part:

Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

Under the codified limitations period, a cause of action

accrues once a plaintiff has reason to know that defendant's

tortious conduct has caused her harm.10 Conrad v. Hazen, 140

N.H. ___ , 665 A.2d 372, 375 (1995). Thus, the action does not

accrue until "the plaintiff should reasonably know of the

damage[.]" I d . (citing McCollum v. D'Arcv, 138 N.H. 285, 286,

638 A.2d 797, 798 (1994)). However, if the original injury was

9Gilligan's argument is based in part on the theory of eguitable tolling. Specifically, he insists that the limitations period applicable to plaintiff's state law claims was not tolled when she filed her administrative charges. Because it does not affect the analysis of this issue, the court will accept, without deciding, that defendant's position is correct and therefore that the filing of plaintiff's administrative charges did not toll the limitations period of her state law claims.

10This principle codified what was previously known at common law as the discovery rule. See McCollum v. D'Arcv, 138 N.H. 285, 286, 638 A.2d 797, 798 (1994).

15 "'sufficiently serious to apprise the plaintiff that a possible

violation of [her] rights had taken place,'" i d . (quoting Rowe v .

John Deere, 130 N.H. 18, 22, 533 A. 2d 375, 377 (1987)), the

plaintiff would not be entitled to the benefit of the discovery

rule.

Plaintiff asserts that she has alleged Gilligan engaged in a

continuing course of conduct, the tail-end of which occurred

within the limitations period. According to plaintiff, since she

timely filed as to part of the conduct, the complaint is timely

filed as to all acts included in the pattern of harassment, even

those outside the limitations period.11 In a situation such as

11The continuing violation theory articulated by plaintiff is normally employed in conjunction with Title VII claims, but nothing therein would preclude its application to state law claims. See Bustamento v. Tucker, 607 So.2d 532, 542 (La. 1992) (applying theory to action for intentional infliction of emotional distress resulting from sexual harassment of continuous nature); but see Retherford v. AT & T Communications of Mountain States, Inc., 844 P.2d 949, 979 n.18 (Ut. 1992) (recognizing but not wholly adopting the continuing violations theory to common law claims). Under Title VII, when a plaintiff has shown discrimination continuing into the actionable period, back pay may be also based on acts antedating the limitations period so long as they are part of a persistent process of illegal discrimination. Sabree v. United Bhd. of Carpenters & Joiners, Local No. 33, 921 F.2d 396, 401 (1st Cir. 1990). The theory is based both on evidence that Congress had envisioned compensating plaintiffs for continuing acts of discrimination, and that the earlier conduct is "'simply incidents of a continuing discriminatory practice for which the defendant has [already] been found liable . . . . ' " I d . (citation omitted) (alteration in Sabree) .

16 this, plaintiff's continuing violation theory is not really

necessary to support that a violation occurred; rather, it is

needed merely to determine whether she can be compensated for the

earlier conduct. See Sabree, supra note 11, 921 F.2d at 400.

Plaintiff contends, essentially, that her emotional distress

resulted from the combined effects of defendants' entire conduct,

which occurred both within and without the limitations period.

Under this argument, defendants' tortious conduct is not composed

of separate acts, each of which is independently actionable and

gives rise to immediate injuries; instead, plaintiff arguably has

been injured by the cumulative effects of the pattern of

defendants' conduct.

The court accepts this position to a certain degree and

finds, therefore, that plaintiff cannot reasonably be said to

have been alerted to the tort and accompanying injury until the

harassment has run at least part of its course and until

plaintiff has begun to experience at least some emotional

distress. The complaint, as it is presently worded, makes clear

that plaintiff was aware of the earlier harassment, but does not

designate at what point she began to suffer emotional distress,

nor is it immediately clear whether the earlier harassment and

injury were sufficiently serious to apprise her that her rights

had been violated. If, through the process of discovery, it is

17 revealed that this crucial moment occurred after March 23, 1992

(or three years before plaintiff filed the complaint), it may

well be that plaintiff can recover for all of defendant's

unlawful conduct that was part of the course of harassment.

Accordingly, the court finds and herewith rules that Gilligan's

motion to dismiss the claim for intentional infliction of

emotional distress must be denied.

c. The Hospital

The Hospital moves to dismiss the claims for both

intentional and negligent infliction of emotional distress. Any

difficulties of plaintiff's claims for emotional distress are

compounded by the ambiguity of the role played by the Hospital in

determining the conditions of plaintiff's employment. For

reasons already expressed, if the Hospital was plaintiff's

employer12 at all relevant times, then plaintiff's claims for

emotional distress against the Hospital are precluded by the

exclusivity clause of the Workers' Compensation Law. See

Discussion, supra part 3.a. However, at the motion to dismiss

12The determination of whether the Hospital is plaintiff's "employer" for purposes of the Workers' Compensation Law reguires an examination of "'the employer's right to the employee's labor and [its] right to control the employee's performance, and the employee's corresponding right to compensation."' Leeman, supra, 134 N.H. at 233, 590 A.2d at 612 (guoting Swiezvnski v. Civiello, 126 N.H. 142, 145, 489 A.2d 634, 637 (1985)).

18 stage, the allegations of the complaint must be construed in a

light most favorable to plaintiff; the court will therefore

assume here that the Hospital was not plaintiff's employer after

July 1992. Notwithstanding this assumption, the allegations of

the complaint still fall far short of establishing a viable claim

for intentional infliction of emotional distress against the

Hospital. Indeed, outside of generally alleging that the

Hospital failed to prevent her injury, plaintiff identifies no

specific conduct of the Hospital, or of a Hospital employee, that

could support her claim for intentional infliction of emotional

distress. The only individuals identified in the complaint are

defendants Gilligan and Saunders, but they were employed by

Northcare when the harassment took place. Complaint 5 16.

The Hospital also challenges plaintiff's claim for negligent

infliction of emotional distress. In New Hampshire, as

elsewhere, a claim for negligent infliction of emotional distress

must be based on defendant's underlying negligence. See Corso v.

Merrill.13 119 N.H. 647, 651-659, 406 A. 2d 300, 303-09 (1979);

see also Douglas v. Fulis, 138 N.H. 740, 743, 645 A. 2d 76, 78

(1994) (noting that in the fifteen years since Corso was decided,

courts have found that bystanders must show defendant's

13Although Corso was discussing the standards applicable to bystanders seeking to recover emotional distress damages, its reasoning is egually applicable to the case at bar.

19 negligence before recovering for negligent infliction of

emotional distress) .

The Hospital argues that a lack of duty prevents it from

being susceptible to a claim for negligent infliction of

emotional distress. "A duty of care arises if harm is a

sufficiently probable conseguence of an act that a careful person

would avoid." Bronstein v. GZA GeoEnvironmental, Inc., N.H.

, ___ , 665 A.2d 369, 371 (1995) (citing Chiuchiolo v. New

England Wholesale Tailors, 84 N.H. 329, 332, 150 A. 540, 542

(1930)). "'The test of due care is what reasonable prudence

would reguire under similar circumstances.'" Calini v. P e p 't of

Transp., 136 N.H. 606, 610, 620 A. 2d 1028, 1030 (guoting Weldv v.

Town of Kingston, 128 N.H. 325, 330-31, 514 A. 2d 1257, 1260

(1986) ) .

Plaintiff responds that because the Hospital initially hired

all the parties, it had a duty "not to hire sexist managers" and

"an ongoing duty to control any harassing problems." Plaintiff's

Amended Objection at 13. Therefore, plaintiff's assertion of

duty depends not upon her relationship with the Hospital, but

rather on the Hospital's role in employing the individual

defendants. The Supreme Court of New Hampshire recognizes that

an employer may be liable to another for the negligent hiring or

retaining of an employee whom the employer "knew or should have

20 known was unfit for the job so as to create a danger of harm to

third persons." Marquav v. E no, ___ N.H. , , 662 A. 2d 272,

280 (1995) (citing Cutter v. Town of Farmington, 126 N.H. 837,

840-41, 498 A.2d 316, 320 (1985); LaBonte v. National Gypsum Co.,

113 N.H. 678, 631, 313 A.2d 403, 405 (1973)). The court stated

that for a cause of action for negligent hiring or retention, the

plaintiff must establish "some [causal] connection between the

plaintiff's injury and the fact of employment." I d . at ___ , 662

A.2d at 280 (guotation omitted) (alteration in Marquav) . The

court continued.

The reguirement of causal connection to employment does not mean, however, that the employee's criminal conduct must have been performed within the scope of employment, during working hours, or even while the perpetrator was an employee. See Henley v. Prince George's County, 60 Md. A p p . 24, 47 9 A.2d 1375, 1383 (Md. C t . Spec. App. 1984); Bates [v. Dorial , [150 111. App. 3d 1025,] 104 111. Dec. [191,] 195, 502 N.E.2d [454,] 458 [(1986)]; Dieter [v. Baker Service Tools 1, 739 S.W.2d [405,] 408 [(Tex. C t . App. 1987)]. Liability exists not because of when the injury occurs, but because "the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct." R e s t a t e m e n t (S e c o n d ) of T orts § 320B comment e (emphasis added) .

I d . at ___ , 662 A.2d at 280-81. The court also noted that

employers have been held liable even for the conduct of former

employees. I d . at ___ , 662 A. 2d at 281. From this legal

21 backdrop, the court reasoned that a school district owed a duty

to students who claimed they were abused and harassed by school

employees outside of school hours and even after graduation. Id.

Similarly, here, to the extent that plaintiff' claim for

negligent infliction of emotional distress against the Hospital

is not barred by the Workers' Compensation Law, her claim may

survive at this stage. Viewing the complaint in a light most

favorable to plaintiff, she has just barely set forth sufficient

allegations to support the Hospital's duty to refrain from

negligently hiring and retaining its employees extended to her

when she became employed by Northcare.

Accordingly, the court denies the Hospital's motion to

dismiss plaintiff's claim for negligent infliction of emotional

distress and grants its motion to dismiss the claim for

intentional infliction of emotional distress.

4. Enhanced Compensatory Damages

Plaintiff also seeks enhanced compensatory damages from the

Hospital, Northcare, and Gilligan. While punitive damages are

not permitted in New Hampshire, enhanced compensatory damages,

reflecting aggravating circumstances, may be awarded when the

conduct complained of is "wanton, malicious, or oppressive."

22 Panas v. Harakis, 129 N.H. 591, 608, 529 A. 2d 976, 986 (1987)

(citing Vratsenes v. N.H. Auto, Inc., 112 N.H. 71, 73, 289 A. 2d

66, 68 (1972)). Such damages are reserved for the exceptional

case and are not available for all intentional torts. Aubert v.

Aubert, 129 N.H. 422, 431, 529 A. 2d 909, 914 (1987). "'[T]here

must be 'ill will, hatred, hostility, or evil motive on the part

of the defendant.'" I d . (guoting Munson v. Raudonis, 118 N.H.

474, 479, 387 A.2d 1174, 1177 (1978)).

Northcare, the Hospital, and Gilligan all contend that they

have committed no tort for which enhanced compensatory damages

are available. Gilligan's argument has the least merit. The

allegations of the complaint suffice not only to permit plaintiff

to go forward with her claim for intentional infliction of

emotional distress, but also for her to seek compensatory

damages, appropriately enhanced, from Gilligan. Northcare and

the Hospital stand on much firmer grounds, particularly as the

court has dismissed the claims for intentional infliction of

emotional distress against them.

Accordingly, the court grants the motion to dismiss the

count for enhanced compensatory damages as to Northcare and the

Hospital, but denies Gilligan's motion.

23 5. RSA 354-A

Defendant argues, and plaintiff in fact concedes, that New

Hampshire's Law Against Discrimination, RSA 354-A, does not

provide her with a private right of action. Indeed, the court

has previously held that RSA 354-A does not create a private

right of action for individuals aggrieved by unlawful

discriminatory practices. See Tsetseranos v. Tech Prototype,

Inc., 893 F.

Supp. 109, 120 (D.N.H. 1995). In Tsetseranos, the court reasoned

as follows:

New Hampshire's "Law Against Discrimination" . . . establishes an administrative process through which a person claiming to be aggrieved by an unlawful discriminatory practice can seek relief. See RSA 354-A:21 (describing complaint procedure). Under the statute, a complainant must go through the administrative process and obtain an order or decision from the state's Human Rights Commission before she can seek judicial review. In order to obtain judicial review of a commission order or decision, the complainant must file a petition "in the superior court of the state within any county in which the unlawful practice . . . occurs . ..." RSA 354-A:22, I . The statutory provision on judicial review further provides. If the complainant brings an action in federal court arising out of the same claims of discrimination which formed the basis of an order or decision of the commission, such order or decision shall be vacated and any appeal therefrom pending in any state court shall be dismissed. RSA 354-A:22, V.

24 The court's review of the plain language of RSA 354-A leads the court to conclude that the statute does not create a private right of action for individuals aggrieved by unlawful discriminatory practices. Instead, under RSA 354-A, such individuals are limited to seeking relief through the administrative process created by the statute and to obtaining judicial review of the results thereof in state court. The court therefore concludes that it is without jurisdiction over any claim plaintiff has under RSA 354-A.

Id.

Finding that this reasoning remains sound in all respects, the

court grants defendants' motion to dismiss Count IV of the

complaint without further comment.

Conclusion

For the foregoing reasons, the court defers ruling on the

Hospital's motion to dismiss (document 22) as to the Title VII

claim (Count I) pending the outcome of further discovery. The

parties are granted until March 25, 1996, to conduct discovery on

the limited issue of whether the Hospital continued to employ

plaintiff after July 1992; dispositive motions should be filed by

April 25, 1996. Furthermore, the court grants the following:

motion to dismiss (document 22) of Northcare and the Hospital as

to the claim for intentional infliction of emotional distress

(Count II); motion to dismiss (document 22) of Saunders as to the

claim for negligent infliction of emotional distress (Count II);

25 motion to dismiss (document 24) of Gilligan as to the claim for

negligent infliction of emotional distress (Count II); motion to

dismiss (document 22) of Northcare and the Hospital as to the

claim for enhanced compensatory damages (Count III). The court

further grants, in part, the motion to dismiss (document 22) of

Northcare as to the claim for negligent infliction of emotional

distress insofar as it is based on conduct occurring after July

5, 1992. The court also grants defendants' motions to dismiss

(documents 22 and 24) as to plaintiff's claim under RSA 354-A

(Count IV). In all other respects, defendants' motions are

herewith denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

January 25, 1996

cc: Vincent A. Wenners, Jr., Esg. Mark T. Broth, Esg. Edward E. Shumaker III, Esg.