Lowry v. Cabletron CV-96-452-SD 05/28/97 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Doris Lowry
v. Civil No. 96-452-SD
Cabletron Systems, Inc,
O R D E R
In this civil rights action, plaintiff claims that defendant
discharged her from her supervisory position on the basis of her
sex, age, and physical disability. Plaintiff's seven-count
complaint includes claims under the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101, et seg., Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000, et seg., and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et
seg., as well as four counts grounded in state law.
Presently before the court is defendant's motion to dismiss.
Plaintiff filed an objection, arguing primarily that defendant's
motion was premature since plaintiff had not yet had an
opportunity to perform discovery. Factual Allegations in Complaint
Plaintiff Doris Lowry was born on January 24, 1944, and
has suffered from carpal tunnel syndrome, muscle spasms, back
injuries, knee problems, and arthritis for several years. These
conditions were caused by and/or aggravated by the work she
performed as a supervisor at defendant Cabletron Systems, Inc.
Cabletron was aware of Lowry's condition during the entire course
of her employment, which began on a date not mentioned in the
complaint.
On July 5, 1995, Lowry was informed by her supervisor and by
a member of Cabletron's personnel department that she was being
terminated because of unsatisfactory work performance. Lowry
previously had been promoted several times and had received the
highest possible salary increase following her periodic
performance reviews. In terminating her, Cabletron deviated from
its personnel policies, which reguired a warning and other
procedures.
Cabletron later told the Egual Employment Opportunity
Commission (EEOC) that Lowry was terminated following her arrest
for possession of marijuana. However, by immediately terminating
Lowry, Cabletron did not follow its own policy of counseling and
otherwise aiding employees with drug-related problems.
The complaint alleges that the actual reason for Lowry's
2 dismissal was her disabilities. In support of this contention,
the complaint alleges that during the course of Lowry's
employment she freguently was asked by her immediate supervisor,
Rick Nichols, to fill in on a production line that reguired
physical work that was not part of her regular duties. Lowry
refused each time because her physical ailments prevented such
work. In addition, Nichols and other supervisory personnel told
Lowry's subordinates that "they were just looking for an excuse
to get rid of her." Complaint 5 15.
Plaintiff filed a charge of discrimination based onsex,
age, and physical ability with the New Hampshire Commission for
Human Rights on December 29, 1995. The NHCHR did not process or
investigate plaintiff's charge, but instead directed her to file
her claims with the EEOC. She then filed a charge with the EEOC
on March 22, 1996. Plaintiff received a notice of dismissal and
right to sue from the EEOC on May 23, 1996, giving her 90 days
from that date to file a suit in federal court. Shefiled her
complaint in this court on August 21, 1996.
Discussion
1. Rule 12(b)(6) Standard
To resolve defendants' Rule 12(b) (6) motion, the court
must "take the well-pleaded facts as they appear in the
3 complaint, extending plaintiff every reasonable inference in
[her] favor." Pihl v. Massachusetts Pep'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)) . A Rule 12 (b) (6) dismissal is
appropriate "'only if it clearly appears, according to the 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) (guoting Correa-MartInez
v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)).
2. The ADA, Title VII, and ADEA Claims
The ADA was enacted to provide "a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities." 42 U.S.C. § 12101(b)(1). The
employment provisions contained in Title I of the ADA prohibit
"covered entit[ies]" from discriminating against "a gualified
individual with a disability because of the disability" with
respect to a term, condition, or privilege of employment. 42
U.S.C. § 12112 (a) .
To establish a claim of disability discrimination under the
ADA, Lowry must prove by a preponderance of the evidence (1) that
she was "disabled" within the meaning of the Act; (2) that she
was able to perform the essential functions of her job, with or
4 without reasonable accommodation; and (3) that her employer
discharged her in whole or in part because of her disability.
Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996)
(citing Katz v. City Metal Co., 87 F.3d 26, 30 (1st Cir. 1996)).
The ADA mentions three general categories of "disability":
The term "disability" means with respect to an individual-- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
42 U.S.C. § 12102 (2).1 The allegations in the complaint indicate
that plaintiff's claim is that she was discriminated against on
the basis of an actual disability, as described in subsection
(A). To establish a disability in fact, plaintiff must show
three elements: (1) a physical or mental impairment (2)
substantially limiting (3) a major life activity. 42 U.S.C. §
12102(2 ) .
For purposes of this discussion, the court will assume that
plaintiff's carpal tunnel syndrome, arthritis, back problems, and
other physical conditions constitute a "physical impairment"
"Disability" as defined under the ADA is substantially eguivalent to "disability" as defined under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797, and the court will look to case law interpreting both statutes when analyzing plaintiff's evidence of "disability". See Nedder v. Rivier College, 908 F Supp. 66, 74 n.7 (D.N.H. 1995).
5 under the Act. The present issue is whether her condition
"substantially limits" a major life activity. Although plaintiff
does not expressly identify a major life activity that is limited
by her impairments, it appears that her claim concerns the major
life activity of working. See Complaint 5 14. The gravamen of
plaintiff's claim is that she was discharged as a result of her
inability to perform production line work, a job that was not
part of her regular duties as a supervisor.2 Defendant asserts
that the inability to perform the narrow range of production line
work would not constitute a substantial limitation of a major
life activity, particularly as such work was not an essential
part of Lowry's position as supervisor.
Under the EEOC regulations implementing the ADA, a person is
substantially limited in the major life activity of working when
Her complaint states,
Lowry's job induced disability was one of the true reasons for the actions of Cabletron and its supervisors. This subject had been a point of contention with Lowry's immediate supervisor, Rick Nichols. Nichols would freguently ask[] Lowry to set aside her duties as a supervisor to fill in on production line physical work. These jobs were not part of the regular duties of the supervisory position held by Lowry. Lowry would have to refuse, since her disabilities prevented such labor.
Complaint 5 14.
6 he or she is "significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable
training, skills and abilities." 29 C.F.R. § 1630 .2 (j) (3) .
This section further provides that "[t]he inability to perform a
single, particular job does not constitute a substantial
limitation in the major life activity of working." Id. Thus,
impairments that affect a person's ability to perform a narrow
range of jobs are not considered "substantially limiting." See
McKay v. Tovota-Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th
Cir. 1997) .
When determining whether an impairment is "substantially
limiting," the court should consider the following factors:
(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (ill) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
29 C.F.R. § 1630.2(j)(2). In addition, when determining whether
the plaintiff is substantially limited in the major life activity
of "working," the court may consider,
(A) The geographical area to which the individual has reasonable access; (B) The job from which the individual has been disgualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual
7 is also disqualified because of the impairment (class of jobs); and/or (C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizinq similar traininq, knowledqe, skills or abilities, within that qeoqraphical area, from which the individual is also disqualified because of the impairment (broad ranqe of jobs in various classes) .
29 C.F.R. § 1630.2(j)(3)(ii).
Stripped to its essentials, defendant's arqument is that
plaintiff is not limited in her ability to perform the major life
activity of workinq because she can perform work as a supervisor
and therefore her employment opportunities are not limited.
Defendant's Memorandum at 7-8. The requlations indicate,
however, that when considerinq whether a plaintiff is
substantially limited in his or her ability to work, the focus
should be not on what he can do, but on what he is precluded from
doinq. The "Interpretive Guidance" to 29 C.F.R. § 1630.2(j)
states:
"An individual is substantially limited in workinq if the individual is siqnificantly restricted in the ability to perform a class of jobs or a broad ranqe of jobs in various classes, . . . . For example, an individual who has a back condition that prevents the individual from performinq any heavy labor job would be substantially limited in the major life activity of workinq, . . . . This would be so even if the individual were able to perform jobs in another class."
Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996) (quoting "Interpretive Guidance" accompanying 29 C.F.R. §
1630.2(j)) (emphasis added). The complaint alleges that
plaintiff's impairments precluded her from performing production
line work. Giving plaintiff every inference in her favor, such
limitation may well have concerned a broad range of work, as
opposed to a narrow class.
Defendant relies on McKay v. Toyota Motor Mfg., U.S.A., 878
F. Supp. 1012 (E.D. Ky. 1995), which was affirmed by McKay,
supra, 110 F.3d 369 (6th Cir. 1997), after the filing of
defendant's motion. In McKay, the ADA plaintiff alleged she was
terminated from her assembly-line position because of her carpal
tunnel syndrome. Id. at 369. The circuit court affirmed the
lower court's entry of summary judgment for defendant on the
ground that plaintiff's impairment only precluded her from
performing the narrow range of assembly line manufacturing jobs
that require repetitive motion or frequent lifting of more than
ten pounds. Id. at 373. The court found that plaintiff's
impairment did not significantly restrict "her ability to perform
a broad range of jobs in various classes." Id.
In contrast to the plaintiff in McKay, Lowry does not allege
that she was unable to perform a subclass of production line
work; rather, she appears to allege she was generally precluded
from performing all production line work. Compare Cochrum v. Old Ben Coal C o ., 102 F.3d 908, 911 (7th Cir. 1996) (finding that
evidence that former roof bolter's shoulder condition prevented
him from doing all work reguiring heavy lifting precluded summary
judgment on the issue of his being "disabled," even though
magistrate judge assumed plaintiff could find alternative
employment) with Butcher v. Ingalls Shipbuilding, 53 F.3d 723,
727 (5th Cir. 1995) (finding that welder who was prevented from
performing welding jobs that reguired substantial climbing was
not prevented from performing welding jobs in general).
Defendant next argues that the ADA specifically excludes
from the definition of disabled employees "any employee or
applicant who is currently engaging in the illegal use of drugs,
when the covered entity acts on the basis of such use." 42
U.S.C. § 12114(a). However, from the court's reading of the
complaint, plaintiff has alleged that her employer acted on the
basis of her asserted disability, which is unrelated to her
illegal use of drugs.
Finally, defendant argues that the allegations of the
complaint do not suffice to show causation, or discrimination on
the basis of disability, sex, or age. The court finds that for
purposes of surviving a Rule 12(b)(6) motion, the allegations of
10 the complaint suffice.3
3. The State Law Claims
Defendant also seeks dismissal of plaintiff's state law
claims. The complaint alleges violations of New Hampshire's Law
Against Discrimination, New Hampshire Revised Statutes Annotated
(RSA) 354-A (Counts IV-VI) and also contains a claim for wrongful
discharge and breach of employment contract (Count VIII). This
court has previously concluded that RSA 354-A does not provide a
private right of action. Tsetseranos v. Tech Prototype, Inc.,
893 F. Supp. 109, 120 (D.N.H. 1995). Instead, individuals
alleging unlawful employment discrimination are limited to
"seeking relief through the administrative process created by the
statute and to obtaining judicial review of the results thereof
in state court." Id. Accordingly, the court dismisses
plaintiff's RSA 354-A claim.
An at-will employee seeking to establish a wrongful
discharge claim under New Hampshire law must show:
"one, that the employer terminated the employment out of bad faith, malice, or retaliation; and two, that the employer terminated the employment because the employee performed acts which public
However, although it is unclear whether plaintiff has brought a claim pursuant to 42 U.S.C. § 1983 as part of Count VII of the complaint, the court grants defendant's motion to dismiss such claim on the grounds that plaintiff fails to allege state action and that the facts do not give rise to an inference of same.
11 policy would encourage or because he refused to perform acts which public policy would condemn."
Tsetseranos, supra, 893 F. Supp. at 120 (quoting Short v. School
Admin. Unit No. 16, 136 N.H. 76,84, 612 A.2d 364, 370 (1992)).
The factual allegations of the complaint do not suggest that
plaintiff was terminated for performing an act that public policy
would encourage or for refusing to do an act against public
policy. Accordingly, the court grants defendant's motion to
dismiss plaintiff's wrongful discharge claim.
In addition to the wrongful discharge claim under the at-
will employee doctrine, the complaint contains a claim for breach
"of the express and implied terms of the employment agreement
between the parties, as such agreement was reflected in the
written and unwritten policies of the employer, as well as
Cabletron's customary employment practices." Complaint 5 23.
Under New Hampshire law, "the at-will status of an
employment relationship is 'one of prima facie construction.'"
Smith v. F.W. Morse & Co., 76 F.3d 413, 426 (1st Cir. 1996)
(quoting Panto v. Moore Business Forms, Inc., 130 N.H. 730, 739,
547 A.2d 260, 267 (1988)). Stated another way, "unless an
employment relationship explicitly provides for a definite
duration, it is presumed to be at-will." Id. (citing Butler v.
Walker Power, Inc., 137 N.H. 432, 435-36, 629 A.2d 91, 93
(1993)). An employer can thus discharge an at-will employee at
12 any time and for any or no reason, "unless a statute, a
collective bargaining agreement, or some aspect of public policy
proscribes firing the employee on a particular basis." Id.
From the complaint, plaintiff appears to claim that an
implied employment contract has arisen from a modification of her
at-will employment status. Applying standard contract
principles, before a contract can arise, "the 'offer must be so
definite as to its material terms or reguire such definite terms
in the acceptance that the promises and performances to be
rendered by each party are reasonably certain.'" Id. Unilateral
offers, such as those within employee handbooks, at times may
create limitations on the manner in which an employer can
terminate its employees. See Butler, supra, 137 N.H. at 435-36,
629 A.2d at 93; Panto, supra, 130 N.H. at 737-79, 547 A.2d at
265-67. For example, a lay-off policy which provides post
termination benefits may be considered an offer to modify an
employment contract, which then may be accepted by an employee by
continuing to work for the employer. See, e.g.. Panto, supra,
130 N.H. at 731, 547 A.2d at 261-62. Significant to this case,
the at-will relationship may be changed by the distribution of an
employee handbook that provides for some administrative due
13 process before termination. See id. at 737, 547 A.2d at 265-66.4
According to the complaint, Lowry did not receive "the
warnings and due process she was entitled to by Cabletron's
personnel policies" before she was terminated. Complaint 5 12.
The complaint further alleges that, in violation of its own
policies, Cabletron failed to give Lowry drug counseling and
related aid before her termination. The court finds that
plaintiff's contentions suffice to allege the existence of an
employment contract. The court therefore denies defendant's
motion to dismiss plaintiff's breach of contract claim.
The complaint further alleges that defendant breached the
implied covenant of good faith and fair dealing inherent in
plaintiff's employment contract. Such an implied duty is
recognized in three situations: (1) contract formation; (2)
termination of at-will employment; and (3) discretion in contract
performance. Centronics Corp. v. Genicom Corp., 132 N.H. 133,
139, 562 A.2d 187, 190 (1989). The complaint appears to be
asserting a claim under either the second or third category. To
the extent that plaintiff is asserting an implied duty relating
to the termination of her at-will employment, such claim is
subsumed by her wrongful discharge claim. Plaintiff's category-
An employer wishing to avoid creating an employment contract through its policies has the ability to do so via a disclaimer. Id. at 742, 547 A.2d at 268.
14 two claim for breach of the implied covenant must therefore be
dismissed for the reasons animating the court's decision to
As for the category relating to discretion in contract
performance, the general rule is as follows:
[U]nder an agreement that appears by word or silence to invest one party with a degree of discretion in performance sufficient to deprive another party of a substantial proportion of the agreement's value, the parties' intent to be bound by an enforceable contract raises an implied obligation of good faith to observe reasonable limits in exercising that discretion, consistent with the parties' purpose or purposes in contracting.
Id. at 143, 562 A.2d at 193. An essential prereguisite to such
claim is that the employer's promise be "subject to such a degree
of discretion that its practical benefit could seemingly be
withheld." Id. at 144, 562 A.2d at 193. As the complaint fails
to allege facts to support the conclusion that defendant had such
discretion, under either an express or an implied term of the
contract, a category-three claim for breach of the implied
covenant of good faith and fair dealing must be dismissed.
Conclusion
For the reasons stated above, the court grants defendant's
motion to dismiss the 42 U.S.C. § 1983 claim, the RSA 354-A
claim, the wrongful discharge claim, and the claim for breach of
15 the implied covenant of good faith and fair dealing. The
remainder of defendant's motion is denied. Accordingly, the ADA,
ADEA, Title VII, and breach-of-contract claims remain viable.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
May 28, 1997
cc: Sven D. Wiberg, Esg. Andru H. Volinsky, Esg.