Evans v. Work Opportunities Unlimited

• Court: District Court, D. New Hampshire
• Decided: April 24, 1996
• Docket: CV-96-24-SD
• Status: Published

Opinion

Evans v. Work Opportunities Unlimited CV-96-24-SD 04/24/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Marcia Evans

v. Civil No. 96-24-SD

Work Opportunities Unlimited, Inc.; Paul Wilson; Joseph Leddv

O R D E R

In this civil action, plaintiff Marcia Evans brings a four-

count complaint for alleged workplace discrimination against her

employer. Work Opportunities Unlimited, Inc. (WOU), and two

individuals, Paul Wilson and Joseph Leddy, employed by WOU as

supervisory personnel.

Presently before the court is defendants' motion to dismiss

portions of the complaint, to which plaintiff has objected.

1. Background

In 1989 plaintiff Marcia Evans was hired by WOU as a

vocational specialist in its Concord, New Hampshire, office.

Complaint 5 18. WOU "is in the business of placing disabled

clients with third-party employers . . . [and] employs vocational specialists to supervise its disabled clients working" for such

third-party employers. Id. 5 17. Plaintiff's immediate

supervisor at WOU was defendant Paul Wilson, id. 5 19, who was

himself supervised by defendant Joseph Leddy, id. 5 30.

At all times relevant to the instant litigation, "plaintiff

suffered from bilateral ankle instability and permanent physical

impairment of her right leg." Id. 5 15. Although her treating

physician has classified her disability as "permanent," id.,

plaintiff is able to work full-time with limitations on the

amount of "bending, kneeling, standing, or walking" she can

perform and absolute restrictions on any "sguatting or climbing

. . . .," id.

On or about March 20, 1994, plaintiff's long-standing work

assignment changed. Id. 5 22. She now supervised an individual

who could not perform his job reguirements, primarily janitorial

services, without "significant assistance" from the plaintiff,

assistance which included lifting and carrying. Id. 5 23. In or

about May or June 1994, plaintiff informed defendant Wilson that

neither she nor the individual she supervised could perform the

duties reguired of them. Id. 5 24. Defendant Wilson's alleged

accommodation consisted of shortening their work day from four to

three hours. Id. 5 25.

Plaintiff maintains that her medical disability was so

2 aggravated by her new employment conditions that she needed to

take a one-week "medical leave of absence from her job to

recuperate." Id. 5 27. Upon returning from such medical leave,

plaintiff's employment was terminated. Id. 5 28. Subseguent

complaints to defendant Leddy were to no avail, as he "refused to

revoke said termination." Id. 5 30.

Thereafter, plaintiff filed a charge of discrimination with

the New Hampshire Commission for Human Rights on December 2,

1994. A notice of right to sue was subseguently issued on

October 18, 1995. On January 16, 1996, plaintiff filed suit in

this federal court, seeking recovery from all defendants for

their alleged violations of the Americans with Disabilities Act

of 1990 (ADA), 42 U.S.C. §§ 12112(a), 12112(b)(1),

12112(b) (5) (A), 12112(b) (B) , and 12112(d) (1), as well as New

Hampshire Revised Statutes Annotated (RSA) 354-A. Plaintiff

further seeks punitive and enhanced compensatory damages.

2. Discussion

a. The Motion to Dismiss Standard

The task of a court presented with a motion to dismiss filed

under Rule 12(b)(6), Fed. R. Civ. P., "is necessarily a limited

one. The issue is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to

3 support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236

(1974). Thus, the court takes all of plaintiff's factual

averments as true and indulges every reasonable inference in

plaintiff's favor. Talbott v. C.R. Bard, Inc., 63 F.3d 25, 27

(1st Cir. 1995), petition for cert, filed, 64 U.S.L.W. 3593 (U.S.

Feb. 16, 1996) (No. 95-1321); Dartmouth Review v. Dartmouth

College, 889 F.2d 13, 16 (1st Cir. 1989).

b. ADA Claims and "Agents"

Individual defendants Wilson and Leddy move to dismiss

plaintiff's ADA allegations against them, arguing that as agents

of WOU, liability under the ADA does not attach to their alleged

actions. This court has recently canvassed the legal landscape

regarding Title VII's "agent" language* and has concluded that

"instead of intending to impose personal liability. Congress

included the 'agent' working merely to emphasize that employers

are subject to the principles of respondeat superior." Miller v.

CBC Cos., Inc., 908 F. Supp. 1054, 1065 (D.N.H. 1995) (emphasis

added) (collecting cases).

Accordingly, the court herewith grants individual defendants

*Noting that the relevant language is similar in both Title VII and the ADA, the First Circuit has indicated that resort to Title VII cases is appropriate in order to determine the issue of personal liability under the ADA. See Carparts Distrib. Ctr. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 16 (1st Cir. 1994) .

4 Wilson's and Leddy's motion to dismiss Count I as it pertains to

them.

c. RSA 354-A

All defendants move the court to dismiss plaintiff's

putative claim asserted pursuant to RSA 354-A. As this court has

had occasion to make clear in its prior rulings, RSA 354-A

establishes an administrative process as a precursor to judicial

review. It does not create a private right of action for

individuals aggrieved by unlawful discriminatory factors.

Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119-20

(D.N.H. 1995); Doukas v. Metropolitan Life Ins. Co., 882 F. Supp.

1197, 1200-01 (D.N.H 1995). Accordingly, the motion to dismiss

as to Count II of plaintiff's complaint must be granted in favor

of all defendants.

d. Punitive and Enhanced Compensatory Damages

Although under certain circumstances recovery of punitive

damages is permissible under the ADA, see 42 U.S.C. § 12117

(referencing Title VII recovery provisions); 42 U.S.C. § 1981a;

Braverman v. Penobscot Shoe Co., 85 9 F. Supp. 596, 604 (D. Me.

1994), having granted Wilson's and Leddy's motion to dismiss

Count I, upon which the claim for punitive damages is contingent.

5 the court herewith further grants their motion to dismiss Count

III.

Furthermore, except in certain statutorily identified

instances not here relevant, punitive damages are not permitted

under New Hampshire law. See RSA 507:16 (Supp. 1994). However,

"the New Hampshire Supreme Court [has] authorized the

augmentation of compensatory damages in certain cases." DCPB,

Inc. v. City of Lebanon, 957 F.2d 913, 915 (1st Cir. 1992)

(citing Vratsenes v. N.H. Auto, Inc., 112 N.H. 71, 289 A.2d 66

(1972)). In conseguence of the court's dismissal of the RSA 354-

A claim, the court further grants defendants' motion to dismiss

Count IV, the state-law claim for enhanced compensatory damages,

as to all defendants.

Conclusion

For the reasons set forth herein, defendants' motion to

dismiss (document 6) is granted. Counts I (ADA) and III

(punitive damages) are dismissed as to individual defendants

Wilson and Leddy. Counts II (RSA 354-A) and IV (enhanced

compensatory damages) are dismissed as to all defendants.

Accordingly, defendants Wilson and Leddy are to be removed from

6 the caption, and the case will thus proceed against defendant

Work Opportunities Unlimited, Inc., as the sole named defendant.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 24, 1996

cc: Kimberly Kirkland, Esg. Jill K. Blackmer, Esg.