Faulkner v. Mary Hitchcock Memorial

2013 DNH 152

• Court: District Court, D. New Hampshire
• Decided: November 13, 2013
• Docket: 12-CV-482-SM
• Status: Published

Opinion

Faulkner v . Mary Hitchcock Memorial 12-CV-482-SM 11/13/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Christyna Faulkner, M D , Plaintiff

v. Case N o . 12-cv-482-SM Opinion N o . 2013 DNH 152 Mary Hitchcock Memorial Hospital; Dartmouth Hitchcock Medical Center; Marc L . Bertrand, M D , Associate Dean for Graduate Medical Education; Peter K. Spiegel, M D , Chair of Radiology; Anne M . Silas, M D , Director of Radiology Residency Program; and Jocelyn D. Chertoff, MD Associate Program Director of Radiology Residency Program, Defendants

O R D E R

Plaintiff, D r . Christyna Faulkner, brings this suit against

Mary Hitchcock Memorial Hospital and several of its physicians.

She alleges that defendants unlawfully disclosed her medical

disability to third parties without her consent and wrongfully

terminated her from the hospital’s residency program as a result

of their unwillingness to reasonably accommodate that disability.

Defendants filed a Partial Motion to Dismiss (document n o . 1 9 ) .

During the course of briefing on the motion, the parties narrowed

the issues to one: whether plaintiff’s common law wrongful

discharge claim is displaced by New Hampshire’s anti-

discrimination statute, N.H. Rev. Stat. Ann. (“RSA”) 354:A-7. “To prevail upon h[er] wrongful discharge claim, the

plaintiff . . . [must] establish that: (1) h[er] termination was

motivated by bad faith, retaliation or malice; and (2) that [s]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, 158 N.H. 476, 480 (2009).

Defendants assert that the public policy on which plaintiff

relies to meet the second element of her wrongful discharge claim

is the state prohibition against discrimination on the basis of

disability, as embodied in RSA 354:A-7. Relying on Smith v . F.W.

Morse & Co., 76 F.3d 413 (1st Cir. 1996), defendants argue that

plaintiff may not pursue her wrongful discharge claim because the

legislature, in RSA 354:A-7, has provided an exclusive remedy for

discharge on the basis of disability. In Smith, the court of

appeals for this circuit held that New Hampshire law does not

permit a wrongful discharge cause of action where a statute

“codifies the public policy . . . [and] also creates a private

right of action to remedy violations of that policy.” Smith, 76

F.3d at 429.

The post-Smith decisions in Bliss v . Stow Mills, Inc., 146

N.H. 550 (2001), and Karch v . BayBank FSB, 147 N.H. 525 (2002),

clarify that the question of statutory displacement is one of

legislative intent. In Stow Mills and Karch, “the state supreme

2 court determined that a common law wrongful discharge claim could

be maintained, notwithstanding that a statute (a federal statute

in Stow Mills; a state statute in Karch) provided both the public

policy element of the common law claim and a remedy for the

policy's transgression.” True v . DJQ Enters., Inc., 2011 WL

794330, at *1 (D.N.H. March 2 , 2011). The “critical issue” under

Stow Mills and Karch is not whether there exists a statutory

alternative, but whether the legislature “intended to substitute

[that] statutory remedy for the common law wrongful discharge

cause of action.” (explaining the import of Bliss and Karch)

(emphasis added). Id. Unless defendant shows such legislative

intent, the common law claim is not displaced. Id. (citing Weeks

v . Wal–Mart Stores, Inc., 2010 WL 3703254, at *3 (D.N.H. Sept. 6,

2010); Slater v . Verizon Communications, Inc., 2005 WL 488676

(D.N.H. March 3 , 2005)).

Defendants suggest, but have not shown, that the state

legislature intended RSA 354:A-7 to displace the common law cause

of action for wrongful discharge in discrimination cases.

Although they invoke a recent unpublished state superior court

decision to support their view of what the legislature intended,

they do not discuss the reasoning of that decision, and did not

attach the case for the court’s review. Nor do defendants

mention Stow Mills and Karch, or distinguish their case from the

3 recent decision in Keele v . Colonial Imports Corp., 2012 WL

1000387, at *2 (D.N.H. March 2 3 , 2012) (DiClerico, J . ) , in which

this court found that defendant failed to demonstrate that the

state legislature intended causes of action under RSA 354-A to

displace claims for common law wrongful discharge. See also

True, 2011 WL 794330, at * 1 ; Weeks v . Wal-Mart Stores, Inc., 2010

WL 3703254, at *3-4 (D.N.H. Sept. 1 6 , 2010); Schomburg v . Dell,

2006 WL 2864048, at * 1 , n.2 (D.N.H. Oct. 4 , 2006).

Plaintiff’s wrongful discharge claim is not, therefore,

subject to dismissal on the single ground advanced by defendants

– that RSA 354:A-7 is plaintiff’s exclusive state law remedy.

Because the defendants do not raise or brief i t , the court does

not reach the perhaps dispositive issue of whether plaintiff

states a viable wrongful discharge claim in the first place. See

e.g., Schomburg, 2006 WL 2864048, at *1 (“A condition that is

protected by public policy, such as sickness, disability, and

age, as distinguished from acts by the employee that are

protected by public policy, does not satisfy the second element

of a wrongful discharge claim.”) (emphasis in original) (citing

Howard v . Dorr Woolen Co., 120 N.H. 295, 297 (1980)).

4 Conclusion

For these reasons, defendants’ Partial Motion to Dismiss

(document n o . 19) is denied.

SO ORDERED.

Steven J. McAuliffe XTV-, .; J- ^ J o -I- -, -I- ^ ^ r^ -; ^ -i- ^ Jnited States District Judge

November 13, 2013

cc: George T . Campbell, III, Esq. Edward M . Kaplan, Esq. Christopher J. Pyles, Esq.