Lemieux v. Freudenberg, et al. CV-99-189-M 11/17/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Shirley Lemieux, Plaintiff
v. Civil No. 99-189-M
Freudenberg NOK General Partnership and Joseph Groleau, Defendants
O R D E R
Shirley Lemieux brings this action under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg., and New
Hampshire common law, seeking damages from her former employer,
Freudenberg NOK, and a former co-worker, Joseph Groleau, for
alleged acts of workplace sexual harassment and discrimination.
Defendant Groleau has moved to dismiss the claims against him set
forth in count 5 (negligent infliction of emotional distress) and
count 6 (intentional infliction of emotional distress), alleging
the court lacks subject matter jurisdiction and/or those claims
fail to state viable, cognizable causes of action. Plaintiff
obj ects.
Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of
limited inguiry, focusing not on "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). In considering a motion to dismiss, "the
material facts alleged in the complaint are to be construed in
the light most favorable to the plaintiff and taken as admitted,
with dismissal to be ordered only if the plaintiff is not
entitled to relief under any set of facts he could prove."
Chasan v. Village District of Eastman, 572 F.Supp. 578, 579
(D.N.H. 1983), aff'd without opinion, 745 F.2d 43 (1st Cir. 1984)
(citations omitted).
Facts
Accepting the allegations set forth in the complaint as
true, and reading them in the light most favorable to the
plaintiff, the relevant facts are as follows.
Plaintiff began working for Freudenberg NOK in October,
1986. After 10 years on the job, she was terminated, ostensibly
for insubordination (based upon her alleged refusal to
participate in a mandatory exercise program), in October, 1996.
During the course of her employment, plaintiff claims to have
been subjected to repeated and pervasive sexual solicitations by
defendant Groleau and another (female) employee. She claims,
among other things, that Groleau repeatedly made unwelcome sexual
advances toward her, touched her in a sexual and inappropriate
manner, and made rude and offensive sexually charged remarks to
and about her. On October 2, 1996, plaintiff claims that, during
an employee exercise period, Groleau approached her from behind
2 and grabbed her breast. The following day, she says she reported
the incident to her supervisor and told him that she was no
longer comfortable participating in the exercise program with
Groleau nearby. Plaintiff claims that her supervisor undertook
no investigation and implemented no remedial action and,
notwithstanding its actual knowledge of Groleau's repeated and
continuing unlawful conduct, her employer, Freudenberg NOK, did
nothing to stop it.
Five days after reporting Groleau's conduct to her
supervisor, plaintiff was terminated. Freudenberg NOK's stated
basis for her discharge included plaintiff's refusal "to join the
other cell members for the mandatory exercise program."
Discussion
Groleau asserts that plaintiff's common law tort claims
against him are barred by the exclusivity provisions of New
Hampshire's Workers' Compensation Act, N.H. Rev. Stat. Ann.
("RSA") ch. 281-A. That statute provides, in relevant part, as
follows:
An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee's personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:
(a) Against the employer or the employer's insurance carrier or an association or group
3 providing self-insurance to a number of employers; and
(b) Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers.
RSA 281-A:8 I (emphasis supplied).
This court has repeatedly held that New Hampshire's Workers'
Compensation Act precludes an employee from pursuing common law
claims for both negligent and intentional torts against his or
her employer. See, e.g.. Miller v. CBC Companies, Inc., 908
F.Supp. 1054, 1068 (D.N.H. 1995). See also O'Keefe v. Associated
Grocers of N.E., Inc., 120 N.H. 834, 835-36 (1980); Censullo v.
Brenka Video, Inc., 989 F.2d 40, 43-44 (1st Cir. 1993).
With regard to claims against fellow employees, however, the
statute does not preclude a party from suing a co-worker for
intentional torts. See RSA 281-A:8, 1(b). See also Rossi v.
Town of Pelham, 35 F.Supp.2d 58, 75 (D.N.H. 1997) (holding that
New Hampshire's Workers' Compensation Act "permits plaintiff's
claim for intentional infliction of emotional distress against
the individual defendants."); Yale v. Town of Allenstown, 969
F.Supp. 798, 800 (D.N.H. 1997) ("The exclusivity provision does
not bar intentional tort claims against co-employees.").
4 Nevertheless, Groleau claims that the court should dismiss
plaintiff's claim for intentional infliction of emotional
distress, asserting that "the conduct of Mr. Groleau, . . . does
not rise, or rather descend, to that level of behavior which
. . . may be characterized as 'extreme and outrageous' for the
purpose of satisfying the elements of the tort [of intentional
infliction of emotional distress]." Defendant's motion to
dismiss (document no. 7) at 9. The court disagrees.
Assuming the truth of plaintiff's allegations, and
construing them in the light most favorable to her, the conduct
in which Groleau is alleged to have engaged (e.g., physically
grabbing plaintiff's breasts; exposing himself to her; making
sexually graphic comments to her; soliciting sexual favors from
her; etc.) easily meets the pleading reguirements necessary to
set forth a viable claim for intentional infliction of emotional
distress under New Hampshire common law. See, e.g., Duquav v.
Androscoggin Valiev Hospital, 67 Empl. Prac. Dec. 5 43,872, 1996
WL 157191 (D.N.H. 1996) (concluding that allegations that
defendant "habitually, repeatedly and intentionally subjected
[plaintiff] to sexually suggestive, demeaning and inappropriate
statements" were sufficient to state a viable claim for
intentional infliction of emotional distress.) See also
Restatement (Second) of Torts, § 46, comment h ("It is for the
court to determine, in the first instance, whether the
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Lemieux v. Freudenberg, et al. CV-99-189-M 11/17/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Shirley Lemieux, Plaintiff
v. Civil No. 99-189-M
Freudenberg NOK General Partnership and Joseph Groleau, Defendants
O R D E R
Shirley Lemieux brings this action under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg., and New
Hampshire common law, seeking damages from her former employer,
Freudenberg NOK, and a former co-worker, Joseph Groleau, for
alleged acts of workplace sexual harassment and discrimination.
Defendant Groleau has moved to dismiss the claims against him set
forth in count 5 (negligent infliction of emotional distress) and
count 6 (intentional infliction of emotional distress), alleging
the court lacks subject matter jurisdiction and/or those claims
fail to state viable, cognizable causes of action. Plaintiff
obj ects.
Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of
limited inguiry, focusing not on "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). In considering a motion to dismiss, "the
material facts alleged in the complaint are to be construed in
the light most favorable to the plaintiff and taken as admitted,
with dismissal to be ordered only if the plaintiff is not
entitled to relief under any set of facts he could prove."
Chasan v. Village District of Eastman, 572 F.Supp. 578, 579
(D.N.H. 1983), aff'd without opinion, 745 F.2d 43 (1st Cir. 1984)
(citations omitted).
Facts
Accepting the allegations set forth in the complaint as
true, and reading them in the light most favorable to the
plaintiff, the relevant facts are as follows.
Plaintiff began working for Freudenberg NOK in October,
1986. After 10 years on the job, she was terminated, ostensibly
for insubordination (based upon her alleged refusal to
participate in a mandatory exercise program), in October, 1996.
During the course of her employment, plaintiff claims to have
been subjected to repeated and pervasive sexual solicitations by
defendant Groleau and another (female) employee. She claims,
among other things, that Groleau repeatedly made unwelcome sexual
advances toward her, touched her in a sexual and inappropriate
manner, and made rude and offensive sexually charged remarks to
and about her. On October 2, 1996, plaintiff claims that, during
an employee exercise period, Groleau approached her from behind
2 and grabbed her breast. The following day, she says she reported
the incident to her supervisor and told him that she was no
longer comfortable participating in the exercise program with
Groleau nearby. Plaintiff claims that her supervisor undertook
no investigation and implemented no remedial action and,
notwithstanding its actual knowledge of Groleau's repeated and
continuing unlawful conduct, her employer, Freudenberg NOK, did
nothing to stop it.
Five days after reporting Groleau's conduct to her
supervisor, plaintiff was terminated. Freudenberg NOK's stated
basis for her discharge included plaintiff's refusal "to join the
other cell members for the mandatory exercise program."
Discussion
Groleau asserts that plaintiff's common law tort claims
against him are barred by the exclusivity provisions of New
Hampshire's Workers' Compensation Act, N.H. Rev. Stat. Ann.
("RSA") ch. 281-A. That statute provides, in relevant part, as
follows:
An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee's personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:
(a) Against the employer or the employer's insurance carrier or an association or group
3 providing self-insurance to a number of employers; and
(b) Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers.
RSA 281-A:8 I (emphasis supplied).
This court has repeatedly held that New Hampshire's Workers'
Compensation Act precludes an employee from pursuing common law
claims for both negligent and intentional torts against his or
her employer. See, e.g.. Miller v. CBC Companies, Inc., 908
F.Supp. 1054, 1068 (D.N.H. 1995). See also O'Keefe v. Associated
Grocers of N.E., Inc., 120 N.H. 834, 835-36 (1980); Censullo v.
Brenka Video, Inc., 989 F.2d 40, 43-44 (1st Cir. 1993).
With regard to claims against fellow employees, however, the
statute does not preclude a party from suing a co-worker for
intentional torts. See RSA 281-A:8, 1(b). See also Rossi v.
Town of Pelham, 35 F.Supp.2d 58, 75 (D.N.H. 1997) (holding that
New Hampshire's Workers' Compensation Act "permits plaintiff's
claim for intentional infliction of emotional distress against
the individual defendants."); Yale v. Town of Allenstown, 969
F.Supp. 798, 800 (D.N.H. 1997) ("The exclusivity provision does
not bar intentional tort claims against co-employees.").
4 Nevertheless, Groleau claims that the court should dismiss
plaintiff's claim for intentional infliction of emotional
distress, asserting that "the conduct of Mr. Groleau, . . . does
not rise, or rather descend, to that level of behavior which
. . . may be characterized as 'extreme and outrageous' for the
purpose of satisfying the elements of the tort [of intentional
infliction of emotional distress]." Defendant's motion to
dismiss (document no. 7) at 9. The court disagrees.
Assuming the truth of plaintiff's allegations, and
construing them in the light most favorable to her, the conduct
in which Groleau is alleged to have engaged (e.g., physically
grabbing plaintiff's breasts; exposing himself to her; making
sexually graphic comments to her; soliciting sexual favors from
her; etc.) easily meets the pleading reguirements necessary to
set forth a viable claim for intentional infliction of emotional
distress under New Hampshire common law. See, e.g., Duquav v.
Androscoggin Valiev Hospital, 67 Empl. Prac. Dec. 5 43,872, 1996
WL 157191 (D.N.H. 1996) (concluding that allegations that
defendant "habitually, repeatedly and intentionally subjected
[plaintiff] to sexually suggestive, demeaning and inappropriate
statements" were sufficient to state a viable claim for
intentional infliction of emotional distress.) See also
Restatement (Second) of Torts, § 46, comment h ("It is for the
court to determine, in the first instance, whether the
defendant's conduct may reasonably be regarded as so extreme and
5 outrageous as to permit recovery, or whether it is necessarily
so. Where reasonable men may differ, it is for the jury, subject
to the control of the court, to determine whether, in the
particular case, the conduct has been sufficiently extreme and
outrageous to result in liability.").
Plaintiff's allegations are sufficient to state a viable
claim against Groleau for intentional infliction of emotional
distress. Such a claim is not precluded by the exclusivity
provisions of the New Hampshire Workers' Compensation Act. She
is, therefore, entitled to present that claim to a jury.
Conclusion
In light of the foregoing, the court holds that New
Hampshire's Workers' Compensation Act bars plaintiff's negligence
claims against Groleau. It does not, however, preclude her from
pursuing her claim for intentional infliction of emotional
distress.
Accordingly, defendant Groleau's motion to dismiss (document
no. 7) is granted in part and denied in part. As to Groleau,
Count 5 (negligent infliction of emotional distress) is
dismissed.1 Plaintiff is, however, entitled to present evidence
1 To date, defendant Freudenberg NOK has not filed any dispositive motions. Accordingly, Count 5 of plaintiff's complaint remains against it.
6 in support of her common law claim for intentional infliction of
emotional distress, as set forth in Count 6.
SO ORDERED.
Steven J. McAuliffe United States District Judge
November 17, 1999
cc: Kimberly Kirkland, Esq. Daniel P. Schwarz, Esq. Lawrence M. Edelman, Esq.