Melvin v . NextEra Energy 09-CV-249-JD 01/06/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brendan Melvin
v. Civil N o . 09-cv-249-JD Opinion N o . 2010 DNH 004 NextEra Energy Seabrook, LLC f/k/a FPL Energy Seabrook, LLC
O R D E R
Brendan Melvin filed a complaint against NextEra Energy
Seabrook, LLC f/k/a FPL Energy Seabrook, LLC (hereinafter,
“NextEra”), after NextEra fired him for poor judgment and
violating the company’s code of conduct. Melvin complains that
NextEra’s actions constituted wrongful termination and negligent
infliction of emotional distress. NextEra moved to dismiss both
claims.
Standard of Review
When considering a motion to dismiss for “failure to state a
claim upon which relief can be granted,” under Federal Rule of
Civil Procedure 12(b)(6), a trial court “must assume the truth of
all well-plead[ed] facts and give the plaintiff the benefit of
all reasonable inferences therefrom.” Ruiz v . Bally Total
Fitness Holding Corp., 496 F.3d 1 , 5 (1st Cir. 2007). “[T]o survive a motion to dismiss, a complaint must establish ‘a
plausible entitlement to relief,’” Vernet v . Serrano-Torres, 566
F.3d 2 5 4 , 258 (1st Cir. 2009) (quoting Bell Atl. Corp. v .
Twombly, 550 U.S. 5 4 4 , 559, (2007)), and “must contain ‘enough
facts to raise a reasonable expectation that discovery will
reveal evidence’ supporting the claims.” Fantini v . Salem State Coll., 557 F.3d 2 2 , 26 (1st Cir. 2009) (quoting Bell Atlantic,
550 U.S. at 5 4 4 ) . “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v . Iqbal, -- U.S. ---, 129 S . C t . 1937, 1949
(2009) (citation omitted).
Discussion
In his complaint, Melvin explains that he was employed at
NextEra’s nuclear power station in Seabrook, New Hampshire, first
as a contracts supervisor and later as a “Manager Sourcing.” On
April 6, 2009, NextEra fired Melvin, allegedly for “poor judgment
in a leadership role and violation of the Code of Conduct.”
Compl. ¶ 9. Melvin explains that this refers to the fact that he
did not fire Michele Machula, one of Melvin’s supervisees who
worked in Cedar Rapids, Iowa, after she sent emails to coworkers
containing vulgar language and sexual innuendos. Melvin states
that he had no knowledge that Machula had done this, although he
2 admits that he received emails from Machula that “were intended
as jokes.” Compl. ¶ 1 3 .
According to Melvin, NextEra also fired Machula on April 6,
2009. Melvin asserts that this was in retaliation for Machula’s
complaints regarding “unethical behavior by [a] co-worker.”
Compl. ¶ 1 5 . Melvin complains that vulgar and sexual communications were “rampant” among NextEra employees, including
executive management personnel, during the time when he and
Machula were employed there. He claims that the communications
were accepted by the management and that those who communicated
in this fashion in the past were “never disciplined or terminated
for such behavior.” Compl. ¶ 1 6 .
Melvin’s complaint contains one count of wrongful
termination and one count of negligent infliction of emotional
distress. NextEra moves to dismiss both claims, arguing that Melvin does not and cannot state a claim upon which relief can be
granted.
A. Wrongful Termination
Count I of Melvin’s complaint alleges wrongful termination.
Under New Hampshire law, the claim of wrongful termination exists
as a judicially crafted exception to the common law doctrine of
employment at will. See Harper v . Healthsource New Hampshire,
3 Inc., 140 N.H. 7 7 0 , 774 (1996). Under that doctrine, “hiring is
presumed to be at will and terminable at any time by either
party.” Monge v . Beebe Rubber Co., 114 N.H. 1 3 0 , 132 (1974); see
also MacDonald v . Tandy Corp., 796 F. Supp. 623, 626 (D.N.H.
1992). It is not clear from what he has filed whether Melvin’s
employment was at-will. This is significant because “wrongful termination [is] a cause of action by at-will employees against
employers.” Cilley v . New Hampshire Ball Bearings, Inc., 128
N.H. 4 0 1 , 405 (1986) (citing Monge, 114 N.H. at 1 3 3 ) ; see also
Jordan v . Verizon New England, Inc., N o . 05-cv-146-SM, 2005 WL
1568860, at *4 n.2 (D.N.H. July 5 , 2005) (explaining that
“wrongful termination [is] a cause of action available only to
employees at will”). In order to give Melvin “the benefit of all
reasonable inferences,” the court will assume that his employment
was at-will. Ruiz, 496 F.3d at 5 . Under New Hampshire law, a wrongful termination claim has
two elements. In order to prevail, the plaintiff must establish
“(1) [that] his termination was motivated by bad faith,
retaliation or malice; and (2) that he was terminated for
performing an act that public policy would encourage or for
refusing to do something that public policy would condemn.”
MacKenzie v . Linehan, 158 N.H. 476, 480 (2009) (citing Lacasse v .
Spaulding Youth Ctr., 154 N.H. 246, 248 (2006)).
4 In its motion to dismiss, NextEra focuses on the second
element of this two-pronged test, arguing that Melvin does not
and cannot articulate any public policy that was violated.
In his complaint, Melvin alleges two grounds to meet the
public policy requirement: NextEra’s firing of Melvin with “no
basis to terminate him” and “termination of Plaintiff for his failure to discipline and/or terminate Michele Machula when he
had no knowledge of her alleged inappropriate . . .
communications.” Compl. ¶ 22. 1 Put more simply, Melvin argues
that public policy does not condone NextEra’s groundless firing
of Melvin and would not condone Melvin’s firing of Machula if he
had no knowledge of her misdeeds, because the firing would be
groundless.
Melvin’s allegations do not support the public policy
requirement. Melvin alleges that NextEra violated public policy by firing him with no basis to do s o , but this was an act taken
by NextEra, not by Melvin. The public policy prong of a wrongful
1 In his objection to NextEra’s motion to dismiss, Melvin argues that an additional act violated public policy: “terminating [Melvin] for failing to supervise or terminate a subordinate who engaged in inappropriate behavior . . . but [not terminating or reprimanding] other management employees who committed the same acts.” Pl.’s O b j . ¶ 9. Even if he had raised this theory in his complaint, it would not suffice because the act was undertaken by NextEra, not Melvin. As discussed below, the public policy element may only be satisfied by acts performed by the employee, not the employer.
5 termination claim “pertains to the employee’s action,” not the
employer’s. Scannell v . Sears Roebuck & Co., N o . 06-cv-227-JD,
2006 WL 2570601, at *3 (D.N.H. Sept. 6, 2006) (emphasis in
original) (citing Porter v . City of Manchester, 151 N.H. 3 0 , 38
(2004)). Because the allegedly groundless firing was an action
taken by NextEra, it cannot satisfy the public policy element of Melvin’s wrongful termination claim.
Melvin also alleges that he was fired for failing to
discipline Machula when he had no knowledge of her misdeeds, but
he fails to state a public policy that would support this
failure.
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Melvin v . NextEra Energy 09-CV-249-JD 01/06/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brendan Melvin
v. Civil N o . 09-cv-249-JD Opinion N o . 2010 DNH 004 NextEra Energy Seabrook, LLC f/k/a FPL Energy Seabrook, LLC
O R D E R
Brendan Melvin filed a complaint against NextEra Energy
Seabrook, LLC f/k/a FPL Energy Seabrook, LLC (hereinafter,
“NextEra”), after NextEra fired him for poor judgment and
violating the company’s code of conduct. Melvin complains that
NextEra’s actions constituted wrongful termination and negligent
infliction of emotional distress. NextEra moved to dismiss both
claims.
Standard of Review
When considering a motion to dismiss for “failure to state a
claim upon which relief can be granted,” under Federal Rule of
Civil Procedure 12(b)(6), a trial court “must assume the truth of
all well-plead[ed] facts and give the plaintiff the benefit of
all reasonable inferences therefrom.” Ruiz v . Bally Total
Fitness Holding Corp., 496 F.3d 1 , 5 (1st Cir. 2007). “[T]o survive a motion to dismiss, a complaint must establish ‘a
plausible entitlement to relief,’” Vernet v . Serrano-Torres, 566
F.3d 2 5 4 , 258 (1st Cir. 2009) (quoting Bell Atl. Corp. v .
Twombly, 550 U.S. 5 4 4 , 559, (2007)), and “must contain ‘enough
facts to raise a reasonable expectation that discovery will
reveal evidence’ supporting the claims.” Fantini v . Salem State Coll., 557 F.3d 2 2 , 26 (1st Cir. 2009) (quoting Bell Atlantic,
550 U.S. at 5 4 4 ) . “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v . Iqbal, -- U.S. ---, 129 S . C t . 1937, 1949
(2009) (citation omitted).
Discussion
In his complaint, Melvin explains that he was employed at
NextEra’s nuclear power station in Seabrook, New Hampshire, first
as a contracts supervisor and later as a “Manager Sourcing.” On
April 6, 2009, NextEra fired Melvin, allegedly for “poor judgment
in a leadership role and violation of the Code of Conduct.”
Compl. ¶ 9. Melvin explains that this refers to the fact that he
did not fire Michele Machula, one of Melvin’s supervisees who
worked in Cedar Rapids, Iowa, after she sent emails to coworkers
containing vulgar language and sexual innuendos. Melvin states
that he had no knowledge that Machula had done this, although he
2 admits that he received emails from Machula that “were intended
as jokes.” Compl. ¶ 1 3 .
According to Melvin, NextEra also fired Machula on April 6,
2009. Melvin asserts that this was in retaliation for Machula’s
complaints regarding “unethical behavior by [a] co-worker.”
Compl. ¶ 1 5 . Melvin complains that vulgar and sexual communications were “rampant” among NextEra employees, including
executive management personnel, during the time when he and
Machula were employed there. He claims that the communications
were accepted by the management and that those who communicated
in this fashion in the past were “never disciplined or terminated
for such behavior.” Compl. ¶ 1 6 .
Melvin’s complaint contains one count of wrongful
termination and one count of negligent infliction of emotional
distress. NextEra moves to dismiss both claims, arguing that Melvin does not and cannot state a claim upon which relief can be
granted.
A. Wrongful Termination
Count I of Melvin’s complaint alleges wrongful termination.
Under New Hampshire law, the claim of wrongful termination exists
as a judicially crafted exception to the common law doctrine of
employment at will. See Harper v . Healthsource New Hampshire,
3 Inc., 140 N.H. 7 7 0 , 774 (1996). Under that doctrine, “hiring is
presumed to be at will and terminable at any time by either
party.” Monge v . Beebe Rubber Co., 114 N.H. 1 3 0 , 132 (1974); see
also MacDonald v . Tandy Corp., 796 F. Supp. 623, 626 (D.N.H.
1992). It is not clear from what he has filed whether Melvin’s
employment was at-will. This is significant because “wrongful termination [is] a cause of action by at-will employees against
employers.” Cilley v . New Hampshire Ball Bearings, Inc., 128
N.H. 4 0 1 , 405 (1986) (citing Monge, 114 N.H. at 1 3 3 ) ; see also
Jordan v . Verizon New England, Inc., N o . 05-cv-146-SM, 2005 WL
1568860, at *4 n.2 (D.N.H. July 5 , 2005) (explaining that
“wrongful termination [is] a cause of action available only to
employees at will”). In order to give Melvin “the benefit of all
reasonable inferences,” the court will assume that his employment
was at-will. Ruiz, 496 F.3d at 5 . Under New Hampshire law, a wrongful termination claim has
two elements. In order to prevail, the plaintiff must establish
“(1) [that] his termination was motivated by bad faith,
retaliation or malice; and (2) that he was terminated for
performing an act that public policy would encourage or for
refusing to do something that public policy would condemn.”
MacKenzie v . Linehan, 158 N.H. 476, 480 (2009) (citing Lacasse v .
Spaulding Youth Ctr., 154 N.H. 246, 248 (2006)).
4 In its motion to dismiss, NextEra focuses on the second
element of this two-pronged test, arguing that Melvin does not
and cannot articulate any public policy that was violated.
In his complaint, Melvin alleges two grounds to meet the
public policy requirement: NextEra’s firing of Melvin with “no
basis to terminate him” and “termination of Plaintiff for his failure to discipline and/or terminate Michele Machula when he
had no knowledge of her alleged inappropriate . . .
communications.” Compl. ¶ 22. 1 Put more simply, Melvin argues
that public policy does not condone NextEra’s groundless firing
of Melvin and would not condone Melvin’s firing of Machula if he
had no knowledge of her misdeeds, because the firing would be
groundless.
Melvin’s allegations do not support the public policy
requirement. Melvin alleges that NextEra violated public policy by firing him with no basis to do s o , but this was an act taken
by NextEra, not by Melvin. The public policy prong of a wrongful
1 In his objection to NextEra’s motion to dismiss, Melvin argues that an additional act violated public policy: “terminating [Melvin] for failing to supervise or terminate a subordinate who engaged in inappropriate behavior . . . but [not terminating or reprimanding] other management employees who committed the same acts.” Pl.’s O b j . ¶ 9. Even if he had raised this theory in his complaint, it would not suffice because the act was undertaken by NextEra, not Melvin. As discussed below, the public policy element may only be satisfied by acts performed by the employee, not the employer.
5 termination claim “pertains to the employee’s action,” not the
employer’s. Scannell v . Sears Roebuck & Co., N o . 06-cv-227-JD,
2006 WL 2570601, at *3 (D.N.H. Sept. 6, 2006) (emphasis in
original) (citing Porter v . City of Manchester, 151 N.H. 3 0 , 38
(2004)). Because the allegedly groundless firing was an action
taken by NextEra, it cannot satisfy the public policy element of Melvin’s wrongful termination claim.
Melvin also alleges that he was fired for failing to
discipline Machula when he had no knowledge of her misdeeds, but
he fails to state a public policy that would support this
failure. “[A] plaintiff must articulate a public policy in order
to make out a claim for wrongful termination.” Short v . School
Admin. Unit N o . 1 6 , 136 N.H. 7 6 , 86 (1992); see also Duhy v .
Concord General Mut. Ins. Co., N o . 08-cv-192-JL, 2009 WL 1650024,
at *11 (D.N.H. June 1 0 , 2009) (granting summary judgment for defendant where plaintiff “failed to persuade the court that New
Hampshire law recognizes the public policies she has suggested”).
“Although ordinarily the issue of whether a public policy exists
is a question for the jury, at times the presence or absence of
such a public policy is so clear that a court may rule on its
existence as a matter of law.” Short, 136 N.H. at 84 (citation
omitted). This case is one of those times. Melvin does not
articulate any public policy whatsoever, stating merely that
6 NextEra’s “termination of [him] for his failure to discipline
and/or terminate Michele Machula . . . is a violation of public
policy.”2 Moreover, the court does not discern a public policy
implicated by the circumstances.
In addition, to the extent Melvin argues that his employment
was terminated because he disagreed with NextEra’s allegedly selective enforcement of its policies or its management of his
supervisory role, those matters, as alleged, also would not
implicate a public policy. See, e.g., MacKenzie, 158 N.H. at 481
(holding that an employee’s disagreement “about whether his
conduct violated [his employer’s] rule . . . [is] not an act that
public policy would protect”); Short, 136 N.H. at 84 (“[A]n
employee’s expression of disagreement with a management decision
is not an act protected by public policy.”)
2 Melvin attempts to rectify this omission by stating in his objection to the motion to dismiss that “public policy would condemn . . . terminating a[n] employee on the basis of her alleged violations of company policy when Plaintiff had no knowledge of any violations and when other employees engaged in the same behavior which was condoned by NextEra.” Pls.’ O b j . ¶ 2 . This is insufficient to save Melvin’s case, however, because a motion to dismiss under Rule 12(b)(6) weighs the adequacy of the complaint only. See Vernet, 566 F.3d at 258. Moreover, this purported public policy is not the type of generalized policy that New Hampshire courts recognize. See, e.g., Cloutier v . Great Atl. & Pac. Tea Co., Inc., 121 N.H. 915, 922 (1981) (“protecting [one’s] employees” and “giv[ing] employees a day of rest”); MacKenzie, 158 N.H. at 480 (“truthfulness”).
7 Therefore, because Melvin failed to allege facts that would
support the public policy element of a wrongful termination
claim, that claim is dismissed.
B. Negligent Infliction of Emotional Distress
Melvin’s second claim asserts that NextEra negligently
inflicted emotional distress upon him. “[A] plaintiff’s serious
emotional injury [must be] directly caused by [the] defendant’s
negligence.” Corso v . Merrill, 119 N.H. 6 4 7 , 653 (1979). “In
order to recover for negligence, a plaintiff must show that there
exists a duty, whose breach by the defendant causes the injury
for which the plaintiff seeks to recover.” Manchenton v . Auto
Leasing Corp., 135 N.H. 2 9 8 , 304 (1992) (citations omitted); see
also Waid v . Ford Motor Co., 125 N.H. 6 4 0 , 643 (1984)
(discussing, in the context of emotional distress inflicted upon
third-party bystanders, that “[t]he duty to the bystander derives
entirely from the duty of due care owed the injured loved one”).
In his complaint, Melvin alleges that NextEra violated two
duties it had to Melvin: the “duty to conduct a proper
investigation” into the propriety of Melvin’s actions or
inactions before firing him and the duty not to terminate him
without proof of some misbehavior on his part. Compl. ¶ 25-26.
Melvin is incorrect; NextEra did not have any such duties. Based
8 on the assumption that Melvin was an at-will employee, his
employment could be terminated by NextEra at any time for any
reason or no reason unless that termination constituted wrongful
termination. Therefore, the success of Melvin’s second claim
rises and falls with the success of his first, which fails. Cf.
Gwyn v. Loon Mtn. Corp., No. 01-214-B, 2002 WL 1012929, at *6
(D.N.H. May 15, 2002) (reasoning that, where “plaintiffs rely on
the same breaches of duties alleged in Counts I and II in framing
Count[] III (for negligent infliction of emotional distress) . .
., Count[] III . . . cannot provide a basis for recovery unless
plaintiffs prevail on one or more of the theories advanced in
Counts I and II”).
Conclusion
For the foregoing reasons, NextEra’s motion to dismiss
Melvin’s complaint (document no. 6) is granted. The clerk of
court shall enter judgment accordingly and close the case.
SO ORDERED.
VjJoseph A.i___clerico___ Jr. United States District Judge January 6, 2010
cc: David A. Anderson, Esquire Laurie A. Lacoste, Esquire Robert A. Shaines, Esquire