Higgins v. Toys 'R' Us CV-98-18-SD 6/23/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Robin Higgins
v. Civil No. 98-18-SD
Toys 'R' Us
O R D E R
Plaintiff Robin Higgins filed this sexual harassment and
employment discrimination claim against her former employer. Toys
'R' Us. Plaintiff alleges violations of New Hampshire Revised
Statutes Annotated (RSA) 354-A and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. (Counts I and V ) ;
intentional and negligent infliction of emotional distress
(Counts II and III); negligent retention (Count IV); and
negligent supervision (Count V I ) . Plaintiff seeks punitive
damages (Count VII) and enhanced compensatory damages (Count
VIII). Presently before the court is a motion by defendant Toys
'R' Us to dismiss (1) Higgins' claims for violations of RSA 354-
A:21 in Counts I and V; (2) Counts II, III, IV, and VI as barred
by the New Hampshire Workers' Compensation Act's exclusivity provision; and (3) Higgins' claim for enhanced compensatory
damages in Count VIII.
Background
Toys 'R' Us hired Higgins in November 1991 to work at its
Newington, New Hampshire, store. During most of Higgins'
employment, her manager was a man named Robin Foster. Foster
frequently used lewd language and made derogatory remarks about
women. Higgins, embarrassed and humiliated by Foster's language,
complained to managers Jan Carter and Renee Kyc. Foster then
stopped using lewd language when speaking to Higgins, but
continued to use lewd language in Higgins' presence while
addressing her coworkers. Other employees were amused by
Foster's language and stopped speaking to Higgins.
During the time that Foster was harassing Higgins, another
employee was injured at work in an unrelated incident. Higgins
had some knowledge of the incident, so, at the employee's
request, Higgins appeared as a witness at the employee's workers'
compensation hearing. At some point after this hearing, managers
Kyc and Foster gave Higgins a written warning for having a poor
attitude and for not being a team player. Higgins met with
Carter a second time because she thought Kyc and Foster were
retaliating against her for complaining about Foster and for
associating with and supporting the coworker who had been
2 injured. Two months after Higgins met with Carter, Higgins
received a negative annual evaluation from the management team.
Shortly thereafter, Higgins was demoted from her position as
department head at the Newington store. Higgins was offered a
position as department head in the Concord store, but was told
she would receive no pay raises in the next two years. Higgins
finally resigned because of the continual harassment.
Discussion
I. Standard for Dismissal
When a court is presented with a motion to dismiss filed
under Rule 12(b)(6), Fed. R. Civ. P., "its task 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 support the claims." Scheuer v. Rhodes, 416 U.S.
232, 236 (1974).
To resolve defendant's Rule 12(b)(6) motions, 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 Dep't of Educ., 9 F.3d 184, 187 (1st Cir.
1993) (citing Coyne v. City of Somerville, 972 F.2d 440, 442-43
(1st Cir. 1992)). The court may properly dismiss a claim under
Rule 12(b)(6) "'only if it clearly appears, according to the
3 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) (quoting Correa-Martinez
v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)).
II. Defendant's Motion to Dismiss
_____ a. RSA 354-A Claims
Toys 'R/ Us seeks to dismiss plaintiff's RSA 354-A claims.
It is well-settled law that RSA 354-A provides no private right
of action in federal court. See, e.g., Lowry v. Cabletron, 973
F. Supp. 77, 82 (D.N.H. 1997). Higgins' RSA 354-A claims
therefore must be dismissed.
_____ b. Workers' Compensation Exclusivity Provision
Toys 'R' Us moves to dismiss Higgins' state tort claims
under the exclusivity clause of New Hampshire's workers'
compensation law, which bars an employee covered under workers'
compensation insurance from suing his or her employer for state
torts based on accidental job-related injuries. See RSA 281-A:8
("An employee . . . shall be conclusively presumed to have
accepted the provisions of this chapter and . . . to have waived
all rights of action whether at common law or by statute . . .
against the employer . . . ."). See also, O'Keefe v. Associated
4 Grocers of New England, Inc., 120 N.H. 834, 835-36, 424 A.2d 199,
201 (1980). Higgins concedes that Counts II, IV, and VI are
barred, but argues that her intentional infliction of emotional
distress claim is not based on an accidental injury, and thus
survives the exclusivity provision.
The New Hampshire workers' compensation law applies only to
"accidental injury or death arising out of and in the course of
employment . . . ." RSA 281-A:2. Intentional injury inflicted
by an employer on an employee is not accidental, and thus is
outside the scope of the exclusivity provision. However, a
common law action will lie only if the employer personally
intends the injury. It is insufficient to show that a co
employee intended to injure a plaintiff. See 6 A r t h u r L a r s o n ,
L a r s o n 's W o r k e r s ' C o m p e n s a t i o n L a w § 68.14 (1997) . A co-employee's
intent may not be imputed to the employer unless that employee is
the alter ego of the corporate employer. Id. § 66.22. Thus an
action will not lie against the employer "merely because the co
employee [who intends injury] occupied supervisory status in
relation to the [plaintiff]." Id. § 68.00, at 13-1. This
remains so, even when the employer negligently fails to protect
an employee from a co-employee. L a r s o n 's W o r k e r s ' C o m p e n s a t i o n L a w , a
well-known employment law treatise, notes that "[e]ven if the
[employer's] alleged conduct goes beyond aggravated negligence,
5 and includes such elements as knowingly permitting a hazardous
work condition to exist, this still falls short of the kind of
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Higgins v. Toys 'R' Us CV-98-18-SD 6/23/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Robin Higgins
v. Civil No. 98-18-SD
Toys 'R' Us
O R D E R
Plaintiff Robin Higgins filed this sexual harassment and
employment discrimination claim against her former employer. Toys
'R' Us. Plaintiff alleges violations of New Hampshire Revised
Statutes Annotated (RSA) 354-A and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. (Counts I and V ) ;
intentional and negligent infliction of emotional distress
(Counts II and III); negligent retention (Count IV); and
negligent supervision (Count V I ) . Plaintiff seeks punitive
damages (Count VII) and enhanced compensatory damages (Count
VIII). Presently before the court is a motion by defendant Toys
'R' Us to dismiss (1) Higgins' claims for violations of RSA 354-
A:21 in Counts I and V; (2) Counts II, III, IV, and VI as barred
by the New Hampshire Workers' Compensation Act's exclusivity provision; and (3) Higgins' claim for enhanced compensatory
damages in Count VIII.
Background
Toys 'R' Us hired Higgins in November 1991 to work at its
Newington, New Hampshire, store. During most of Higgins'
employment, her manager was a man named Robin Foster. Foster
frequently used lewd language and made derogatory remarks about
women. Higgins, embarrassed and humiliated by Foster's language,
complained to managers Jan Carter and Renee Kyc. Foster then
stopped using lewd language when speaking to Higgins, but
continued to use lewd language in Higgins' presence while
addressing her coworkers. Other employees were amused by
Foster's language and stopped speaking to Higgins.
During the time that Foster was harassing Higgins, another
employee was injured at work in an unrelated incident. Higgins
had some knowledge of the incident, so, at the employee's
request, Higgins appeared as a witness at the employee's workers'
compensation hearing. At some point after this hearing, managers
Kyc and Foster gave Higgins a written warning for having a poor
attitude and for not being a team player. Higgins met with
Carter a second time because she thought Kyc and Foster were
retaliating against her for complaining about Foster and for
associating with and supporting the coworker who had been
2 injured. Two months after Higgins met with Carter, Higgins
received a negative annual evaluation from the management team.
Shortly thereafter, Higgins was demoted from her position as
department head at the Newington store. Higgins was offered a
position as department head in the Concord store, but was told
she would receive no pay raises in the next two years. Higgins
finally resigned because of the continual harassment.
Discussion
I. Standard for Dismissal
When a court is presented with a motion to dismiss filed
under Rule 12(b)(6), Fed. R. Civ. P., "its task 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 support the claims." Scheuer v. Rhodes, 416 U.S.
232, 236 (1974).
To resolve defendant's Rule 12(b)(6) motions, 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 Dep't of Educ., 9 F.3d 184, 187 (1st Cir.
1993) (citing Coyne v. City of Somerville, 972 F.2d 440, 442-43
(1st Cir. 1992)). The court may properly dismiss a claim under
Rule 12(b)(6) "'only if it clearly appears, according to the
3 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) (quoting Correa-Martinez
v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)).
II. Defendant's Motion to Dismiss
_____ a. RSA 354-A Claims
Toys 'R/ Us seeks to dismiss plaintiff's RSA 354-A claims.
It is well-settled law that RSA 354-A provides no private right
of action in federal court. See, e.g., Lowry v. Cabletron, 973
F. Supp. 77, 82 (D.N.H. 1997). Higgins' RSA 354-A claims
therefore must be dismissed.
_____ b. Workers' Compensation Exclusivity Provision
Toys 'R' Us moves to dismiss Higgins' state tort claims
under the exclusivity clause of New Hampshire's workers'
compensation law, which bars an employee covered under workers'
compensation insurance from suing his or her employer for state
torts based on accidental job-related injuries. See RSA 281-A:8
("An employee . . . shall be conclusively presumed to have
accepted the provisions of this chapter and . . . to have waived
all rights of action whether at common law or by statute . . .
against the employer . . . ."). See also, O'Keefe v. Associated
4 Grocers of New England, Inc., 120 N.H. 834, 835-36, 424 A.2d 199,
201 (1980). Higgins concedes that Counts II, IV, and VI are
barred, but argues that her intentional infliction of emotional
distress claim is not based on an accidental injury, and thus
survives the exclusivity provision.
The New Hampshire workers' compensation law applies only to
"accidental injury or death arising out of and in the course of
employment . . . ." RSA 281-A:2. Intentional injury inflicted
by an employer on an employee is not accidental, and thus is
outside the scope of the exclusivity provision. However, a
common law action will lie only if the employer personally
intends the injury. It is insufficient to show that a co
employee intended to injure a plaintiff. See 6 A r t h u r L a r s o n ,
L a r s o n 's W o r k e r s ' C o m p e n s a t i o n L a w § 68.14 (1997) . A co-employee's
intent may not be imputed to the employer unless that employee is
the alter ego of the corporate employer. Id. § 66.22. Thus an
action will not lie against the employer "merely because the co
employee [who intends injury] occupied supervisory status in
relation to the [plaintiff]." Id. § 68.00, at 13-1. This
remains so, even when the employer negligently fails to protect
an employee from a co-employee. L a r s o n 's W o r k e r s ' C o m p e n s a t i o n L a w , a
well-known employment law treatise, notes that "[e]ven if the
[employer's] alleged conduct goes beyond aggravated negligence,
5 and includes such elements as knowingly permitting a hazardous
work condition to exist, this still falls short of the kind of
actual intention to injure that robs the injury of accidental
character." Id. at 13-55, 70.
In the case at bar, plaintiff alleges that her co-employee,
supervisor Foster, intended to cause her severe emotional
distress. However, Foster's intent to injure plaintiff cannot be
imputed to Toys 'R' Us because Foster was not the alter ego of
that corporation. He was simply a manager of a local chain store
and had no ownership interest in or control over company
operations. See Vargus v . Dunkin' Donuts, No. 92-301-SD (D.N.H.
June 7, 1993). Toys 'R' Us, at most, was negligent in not
protecting plaintiff from ongoing verbal harassment by Foster.
Through its failure to protect. Toys 'R' Us clearly did not
deliberately and consciously intend to injure plaintiff, thus
her injury was accidental and falls within the scope of the
workers' compensation law. Her state tort action for intentional
infliction of emotional distress is thus barred by the
exclusivity provision.
_____ c. Enhanced Compensatory Damages
"It is generally settled that enhanced compensatory damages
are not available under Title VII." Godfrey v. Perkin-Elmer
6 Corp., 794 F. Supp. 1179 (D.N.H. 1992) (citation omitted). Since
only Title VII claims remain, Higgins' claim for enhanced
compensatory damages must be dismissed.
Conclusion
For the reasons above, defendant's motion to dismiss
(document 3) is granted as to the RSA 354-A claims in Counts I
and V and as to Counts II, III, IV, VI, and VIII.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
June 23, 1998
cc: Byron J. Siegal, Esq. James R. Williams, Esq. Mark T. Broth, Esq.