Jaffe v. Catholice Med. Center CV-02-246-JD 11/04/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jonathan Jaffe, M.D.
v. Civil No. 02-246-JD Opinion No. 2002 DNH 199 Catholic Medical Center, et al.
O R D E R
The plaintiff, Jonathan Jaffe, brings a claim under the
Americans with Disabilities Act ("ADA") and related state law
claims against his former employer. Catholic Medical Center
Physician Practice Associates ("Associates"), Catholic Medical
Center ("CMC"), and Raymond Bonito. The defendants move to
dismiss all of the claims against Bonito and CMC and to dismiss
the state law claims against Associates. Jaffe agrees to dismiss
his claim under New Hampshire Revised Statutes Annotated § 354-A,
Count II, but otherwise objects to the motion.
Standard of Review
In considering a motion to dismiss, pursuant to Federal Rule
of Civil Procedure 12(b)(6), the court accepts the facts alleged
in the complaint as true and draws all reasonable inferences in
favor of the plaintiff. Calderon-Ortiz v. Laboy-Alvarado, 300
F.3d 60, 63 (1st Cir. 2002). The court must determine whether
the complaint, construed in the proper light, "alleges facts sufficient to make out a cognizable claim." Carroll v. Xerox
Corp., 294 F.3d 231, 241 (1st Cir. 2002). All that is required
is a short and plain statement of the claim. See Gorski v. N.H.
Dep't of Corrections, 290 F.3d 466, 473 (1st Cir. 2002) (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
Discussion
The defendants contend that the ADA claim must be dismissed
as to Raymond Bonito because he was not named in Jaffe's EEOC
complaint and because individuals are not subject to liability
under the ADA. The defendants move to dismiss the ADA claim and
breach of contract claims against CMC on the ground that CMC was
not Jaffe's employer. They also move to dismiss the breach of
contract claims against Bonito because he was not a party to the
contract. The defendants argue that the wrongful termination
claim does not state a cause of action.
A. ADA Claim
Despite the defendants' assertion to the contrary, it
appears that Bonito was charged in Jaffe's EEOC complaint.
Therefore, the defendants' argument that Jaffe failed to exhaust
administrative remedies is not supported by the record.
The ADA prohibits disability discrimination by an employer.
2 See 42 U.S.C. § 12112(a). Although the First Circuit has not yet
ruled on the question, this court and other district courts
within the First Circuit have concluded that the ADA does not
subject individuals to liability. See, e.g., Orell v. Umass.
Mem. Med. Ctr., Inc., 203 F. Supp. 2d 52, 64 (D. Mass. 2002); Lee
v. Trs. of Dartmouth Coll., 958 F. Supp. 37, 45 (D.N.H. 1997) .
Therefore, Jaffe's ADA claim against Bonito is dismissed.
The defendants contend that CMC was not Jaffe's employer and
should be dismissed as to the ADA claim. Jaffe acknowledges that
his employment agreement was with Associates, not CMC, but argues
that the two entities are the same as to their dealings with him.
Jaffe relies on a theory of "integrated enterprise."
Two entities may be considered to be a single employer
under the integrated enterprise test if there is a sufficient
interrelation of operations, common management, centralized
control of labor decisions, and common ownership. Romano v. U-
Haul Int'1, 233 F.3d 655, 662 (1st Cir. 2000); see also Russell
v. Enter. Rent-A-Car Co., 160 F. Supp. 2d 239, 255-56 (D.R.I.
2001). The most important criterion of the test is the control
of labor decisions. Id. at 666. Control, in this context, is
measured by the interrelation of employment decisions between the
two entities, but does not require total control or ultimate
authority in the hiring process. Id.
3 The complaint alleges that CMC and Associates are
effectively the same entity. In support of that theory, Jaffe
alleges that CMC owns Associates, CMC officials operate and
represent Associates and do not distinguish between their roles,
and most of the employment documents, other than the employment
agreement, show that Jaffe was a CMC employee. Jaffe also
alleges that particular employment decisions relating to him were
made by Bonito who was a Senior Vice President and CEO of CMC.
As such, Jaffe has alleged sufficient facts to support an
integrated enterprise theory that CMC and Associates were the
same entity for purposes of the ADA.
B. Breach of Contract Claims
Jaffe alleges that the defendants breached his employment
contract, and the implied covenant of good faith and fair
dealing, by reguiring him to work longer hours than he agreed,
failing to consult with him, and failing to provide certain
arrangements and tools that he believed were necessary for his
practice. Bonito and CMC move to dismiss the breach of contract
claims against them because they did not sign the employment
agreement. Jaffe acknowledges that the agreement is signed by
Associates but contends that CMC and Bonito should be considered
to be the same as Associates.
4 Jaffe apparently invokes an alter ego theory to support his
contention that Bonito, CMC, and Associates acted as one entity.
New Hampshire recognizes such a theory under appropriate
circumstances. See, e.g., Terren v. Butler, 134 N.H. 635, 639-40
(1991); Leeman v. Bovlan, 134 N.H. 230, 234 (1991); Drudinq v.
Allen, 122 N.H. 823, 827 (1982). "[T]he corporate veil may be
pierced by finding that the corporate identity has been used to
promote an injustice or fraud on the plaintiffs." Terren, 134
N.H. at 639. Jaffe alleges facts pertaining to the relationship
between CMC and Associates that could support an alter ego
theory. Jaffe alleges no facts, however, that suggest that
Bonito acted in his personal capacity in such as way as to make
him an alter ego of Associates. Therefore, the breach of
contract claims as to Bonito are dismissed.
C. Wrongful Termination Claim
Jaffe alleges that he was fired because of his disability or
his perceived disability. He also alleges that he was fired in
bad faith or "in violation of the public policy that governs
employer-employee relations generally and that governs such
relationships when the employee, like plaintiff, is a doctor who
has patients that may be affected by the employer's wrongful
conduct." Compl. 5 46. The defendants move to dismiss the
5 wrongful termination claim as precluded by the availability of a
cause of action under the ADA.
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Jaffe v. Catholice Med. Center CV-02-246-JD 11/04/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jonathan Jaffe, M.D.
v. Civil No. 02-246-JD Opinion No. 2002 DNH 199 Catholic Medical Center, et al.
O R D E R
The plaintiff, Jonathan Jaffe, brings a claim under the
Americans with Disabilities Act ("ADA") and related state law
claims against his former employer. Catholic Medical Center
Physician Practice Associates ("Associates"), Catholic Medical
Center ("CMC"), and Raymond Bonito. The defendants move to
dismiss all of the claims against Bonito and CMC and to dismiss
the state law claims against Associates. Jaffe agrees to dismiss
his claim under New Hampshire Revised Statutes Annotated § 354-A,
Count II, but otherwise objects to the motion.
Standard of Review
In considering a motion to dismiss, pursuant to Federal Rule
of Civil Procedure 12(b)(6), the court accepts the facts alleged
in the complaint as true and draws all reasonable inferences in
favor of the plaintiff. Calderon-Ortiz v. Laboy-Alvarado, 300
F.3d 60, 63 (1st Cir. 2002). The court must determine whether
the complaint, construed in the proper light, "alleges facts sufficient to make out a cognizable claim." Carroll v. Xerox
Corp., 294 F.3d 231, 241 (1st Cir. 2002). All that is required
is a short and plain statement of the claim. See Gorski v. N.H.
Dep't of Corrections, 290 F.3d 466, 473 (1st Cir. 2002) (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
Discussion
The defendants contend that the ADA claim must be dismissed
as to Raymond Bonito because he was not named in Jaffe's EEOC
complaint and because individuals are not subject to liability
under the ADA. The defendants move to dismiss the ADA claim and
breach of contract claims against CMC on the ground that CMC was
not Jaffe's employer. They also move to dismiss the breach of
contract claims against Bonito because he was not a party to the
contract. The defendants argue that the wrongful termination
claim does not state a cause of action.
A. ADA Claim
Despite the defendants' assertion to the contrary, it
appears that Bonito was charged in Jaffe's EEOC complaint.
Therefore, the defendants' argument that Jaffe failed to exhaust
administrative remedies is not supported by the record.
The ADA prohibits disability discrimination by an employer.
2 See 42 U.S.C. § 12112(a). Although the First Circuit has not yet
ruled on the question, this court and other district courts
within the First Circuit have concluded that the ADA does not
subject individuals to liability. See, e.g., Orell v. Umass.
Mem. Med. Ctr., Inc., 203 F. Supp. 2d 52, 64 (D. Mass. 2002); Lee
v. Trs. of Dartmouth Coll., 958 F. Supp. 37, 45 (D.N.H. 1997) .
Therefore, Jaffe's ADA claim against Bonito is dismissed.
The defendants contend that CMC was not Jaffe's employer and
should be dismissed as to the ADA claim. Jaffe acknowledges that
his employment agreement was with Associates, not CMC, but argues
that the two entities are the same as to their dealings with him.
Jaffe relies on a theory of "integrated enterprise."
Two entities may be considered to be a single employer
under the integrated enterprise test if there is a sufficient
interrelation of operations, common management, centralized
control of labor decisions, and common ownership. Romano v. U-
Haul Int'1, 233 F.3d 655, 662 (1st Cir. 2000); see also Russell
v. Enter. Rent-A-Car Co., 160 F. Supp. 2d 239, 255-56 (D.R.I.
2001). The most important criterion of the test is the control
of labor decisions. Id. at 666. Control, in this context, is
measured by the interrelation of employment decisions between the
two entities, but does not require total control or ultimate
authority in the hiring process. Id.
3 The complaint alleges that CMC and Associates are
effectively the same entity. In support of that theory, Jaffe
alleges that CMC owns Associates, CMC officials operate and
represent Associates and do not distinguish between their roles,
and most of the employment documents, other than the employment
agreement, show that Jaffe was a CMC employee. Jaffe also
alleges that particular employment decisions relating to him were
made by Bonito who was a Senior Vice President and CEO of CMC.
As such, Jaffe has alleged sufficient facts to support an
integrated enterprise theory that CMC and Associates were the
same entity for purposes of the ADA.
B. Breach of Contract Claims
Jaffe alleges that the defendants breached his employment
contract, and the implied covenant of good faith and fair
dealing, by reguiring him to work longer hours than he agreed,
failing to consult with him, and failing to provide certain
arrangements and tools that he believed were necessary for his
practice. Bonito and CMC move to dismiss the breach of contract
claims against them because they did not sign the employment
agreement. Jaffe acknowledges that the agreement is signed by
Associates but contends that CMC and Bonito should be considered
to be the same as Associates.
4 Jaffe apparently invokes an alter ego theory to support his
contention that Bonito, CMC, and Associates acted as one entity.
New Hampshire recognizes such a theory under appropriate
circumstances. See, e.g., Terren v. Butler, 134 N.H. 635, 639-40
(1991); Leeman v. Bovlan, 134 N.H. 230, 234 (1991); Drudinq v.
Allen, 122 N.H. 823, 827 (1982). "[T]he corporate veil may be
pierced by finding that the corporate identity has been used to
promote an injustice or fraud on the plaintiffs." Terren, 134
N.H. at 639. Jaffe alleges facts pertaining to the relationship
between CMC and Associates that could support an alter ego
theory. Jaffe alleges no facts, however, that suggest that
Bonito acted in his personal capacity in such as way as to make
him an alter ego of Associates. Therefore, the breach of
contract claims as to Bonito are dismissed.
C. Wrongful Termination Claim
Jaffe alleges that he was fired because of his disability or
his perceived disability. He also alleges that he was fired in
bad faith or "in violation of the public policy that governs
employer-employee relations generally and that governs such
relationships when the employee, like plaintiff, is a doctor who
has patients that may be affected by the employer's wrongful
conduct." Compl. 5 46. The defendants move to dismiss the
5 wrongful termination claim as precluded by the availability of a
cause of action under the ADA.
To state a wrongful termination claim under New Hampshire
law, a plaintiff must allege facts showing that "(1) the
termination of employment was motivated by bad faith, retaliation
or malice; and (2) that she was terminated for performing an act
that public policy would encourage or for refusing to do
something that public policy would condemn." Karch v. BavBank
FSB, 794 A.2d 763, 774 (N.H. 2002). A plaintiff may not maintain
a New Hampshire wrongful discharge claim if the same claim is
addressed by a statutory cause of action such as the ADA. See,
e.g.. Cooper v. Thomson Newspapers, Inc., 6 F. Supp. 2d 109, 115
(D.N.H. 1998) (discussing Wenners v. Great State Beverages, 140
N.H. 100, 103 (1995)); see also Smith v. F.W. Morse & Co., 7 6
F.3d 413, 429 (1st Cir. 1996) (same in Title VII context).
Jaffe contends that his wrongful termination claim does not
depend on the alleged disability discrimination that is the basis
of his ADA claim. Instead, Jaffe argues that his wrongful
termination claim alleges that he was terminated in bad faith
"without regard to the policy that militates against such a
termination due to its affect [sic] upon a doctor's relationship
with his patients, in an improper attempt to 'steal' plaintiff's
practice from him by taking advantage of plaintiff's health
6 problems and perceived physical issues to concoct a reason to
trigger the termination clause in the contract." Obj. 5 18.
Allegations of the defendants' intent to "steal" Jaffe's
practice are not included in the complaint. In addition, even if
that theory were alleged, it does not meet the reguirements of
wrongful termination under New Hampshire law. To state a claim,
Jaffe must allege facts that show that he was terminated because
he performed a protected act or refused to do something that
public policy would condemn. See Karch, 794 A.2d at 774. In the
absence of such allegations, Jaffe has failed to state a claim of
wrongful termination. See Cooper, 6 F. Supp. 2d at 115.
Conclusion
For the foregoing reasons, the defendants' motion to dismiss
(document no. 3) is granted to the extent that the ADA claim in
Count I and breach of contract claims in Counts III and IV are
dismissed as to defendant Bonito and Counts II and V are
dismissed entirely. The motion is otherwise denied.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge November , 2 002 cc: Michael J. Sheehan, Esguire Alexander J. Walker, Esguire