Maureen McPadden, Plaintiff v. Wal-Mart Stores East, L.P., and Jennifer Fonseca, Defendants

2015 DNH 074

• Court: District Court, D. New Hampshire
• Decided: April 2, 2015
• Docket: 14-cv-475-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Maureen McPadden, Plaintiff

v. Case No. 14-cv-475-SM Opinion No. 2015 DNH 074 Wal-Mart Stores East, L.P., and Jennifer Fonseca, Defendants

O R D E R

For 18 years, Wal-Mart employed Maureen McPadden as a

pharmacist at its store in Seabrook, New Hampshire. It

terminated her employment - ostensibly for misplacing a key to

the pharmacy - in November of 2012. Not long thereafter,

McPadden filed a charge of discrimination with the New Hampshire

Commission for Human Rights. And, subsequently, she filed this

suit, in which she advances both state and federal claims that

include workplace discrimination, retaliation, failure to

accommodate her disability, invasion of privacy, and negligence.

Wal-Mart moves to dismiss three of McPadden’s pending

claims, asserting that they are barred by New Hampshire’s

Workers’ Compensation law. For the reasons discussed, that

motion is denied. Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences in

favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st

Cir. 2010). Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each

of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal

punctuation omitted).

Background

In her amended complaint, McPadden advances two types of

claims against Wal-Mart. Those in the first category arise out

of her employer-employee relationship with Wal-Mart (e.g.,

workplace discrimination, wrongful termination, etc.). The

second category of claims - those which are implicated in the

pending motion to dismiss - arise out of McPadden’s status as a

customer of Wal-Mart’s pharmacy in the Salem store, where she had

her personal prescriptions filled.

2 McPadden says that becoming a customer of Wal-Mart’s

pharmacy was not a condition of her employment; rather, she chose

to have her personal prescriptions filled at that location. She

also says that in order to be a customer, she was required to

(and did) provide private and protected health information as

part of her pharmacy patient profile record. She claims that in

the fall of 2012, defendant Jennifer Fonseca, a Wal-Mart pharmacy

technician at the Seabrook store, accessed McPadden’s private

health information and discovered that she suffered from a

serious medical condition. McPadden goes on to allege that

Fonseca subsequently disclosed that private and protected medical

information to other employees of the Seabrook store - conduct

McPadden says violated her privacy rights under the common law

and the Health Insurance Portability and Accountability Act (also

known as “HIPAA”).

In her amended complaint, McPadden advances three claims

that arise out of that (alleged) conduct: invasion of privacy;

negligent supervision; and negligent infliction of emotional

distress. Those three counts are the subject of Wal-Mart’s

motion to dismiss.

3 Discussion

In support of its motion to dismiss, Wal-Mart asserts that

McPadden’s tort claims are barred by the exclusivity provisions

of New Hampshire’s Workers’ Compensation Statute, N.H. Rev. Stat.

Ann. (“RSA”) 281-A:8. To be sure, “[a]s a general rule, any

claim based upon negligence by an employer or co-employee for

personal injuries arising out of or in the course of employment

is barred by RSA 281-A:8, I(b).” Karch v. BayBank FSB, 147 N.H.

525, 530 (2002). The dispositive question is, then, whether the

claims and asserted injuries at issue “arise out of” McPadden’s

employment by Wal-Mart. They do not.

The New Hampshire Supreme Court has held that for an injury

to be subject to the state’s workers’ compensation law, the party

seeking such coverage must prove:

(1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment; and (2) that the injury arose in the course of employment by demonstrating that (A) it occurred within the boundaries of time and space created by the terms of employment; and (B) that it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, or an activity of mutual benefit to employer and employee.

Murphy v. Town of Atkinson, 128 N.H. 641, 645-46 (1986) (emphasis

supplied) (citations omitted). Here, it is plain that Fonseca’s

alleged disclosure of McPadden’s confidential medical

4 information, and McPadden’s resulting injuries, did not result

from a risk created by McPadden’s employment by Wal-Mart. Nor

did her injuries arise in the course of that employment.

McPadden’s tort claims (with the obvious exception of her

wrongful termination claim) arise out of her status as a customer

of Wal-Mart’s pharmacy, not her status as an employee of Wal-

Mart. Wal-Mart does not argue otherwise. Such claims are not

barred by New Hampshire’s Workers’ Compensation Law.

Conclusion

For the foregoing reasons, as well as those set forth in

McPadden’s legal memorandum (document no. 15), defendants’ motion

to dismiss counts seven, eight, and nine of the amended complaint

(document no. 13) is denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

April 2, 2015

cc: Richard E. Fradette, Esq. Joseph A. Lazazzero, Esq. Christopher B. Kaczmarek, Esq.