Miller v. CBC Companies CV-95-24-SD 11/29/95 P UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Susan Y. Miller; Michael B. Miller
v. Civil No. 95-24-SD
CBC Companies, Inc.; Credit Bureau Services of NH, Inc.; William B. Price; William H. Price
O R D E R
In this civil action, plaintiffs Susan Y. Miller (Miller)
and Michael B. Miller seek recovery from defendants CBC
Companies, Inc. (CBC); Credit Bureau Services of New Hampshire,
Inc. (CBS), a subsidiary of CBC; William B. Price, owner and
chairman of the board of CBC and CBS; and William H. Price, owner
of CBC and CBS. Plaintiff Susan Miller brings the following
claims: (1) sexual discrimination in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. (Count
I); (2) discrimination due to association with a disabled
individual in violation of Title I of the Americans with
Disabilities Act, 42 U.S.C. § 12111, et seg. (ADA) (Count II);
(3) breach of contract and wrongful discharge (Count III); (4)
intentional infliction of emotional distress (Count IV); and (5) reckless infliction of emotional distress (Count V). Plaintiff's
husband, Michael Miller, brings a separate claim for loss of
consortium (Count V I ) .
Presently before the court is defendants' motion to dismiss
Counts II, III, IV, V, and VI of the complaint, pursuant to Rule
1 2 (b)(6), Fed. R. Civ. P.
Factual Background and Procedural History
In 1983 CBS hired Susan Miller and soon after promoted her
to a management position.1 While on maternity leave in 1992
after giving birth to twins, she asked that she be considered for
another promotion. Complaint 5 22. Her employer instead gave
the position to a female co-worker with five years less seniority
than Miller. Id. 5 22. Miller alleges that when returned from
her leave, she was further denied growth opportunities and also
received undue criticism of her work. Id. 55 24, 38.
Eventually, in late December 1993, her employer formally
terminated Miller's employment, citing "a difference in
philosophy." Id. 5 26.
The complaint alleges that lurking behind these unfavorable
employment actions was unlawful discrimination in violation of.
1She was subseguently promoted again in 1987 to the position of Bureau Manager.
2 inter alia, the ADA. Defendants allegedly discriminated against
her on the basis of her association with her oldest son, who has
Down's Syndrome. In 1988, shortly after her son was born,
defendant William B. Price allegedly began to guestion Miller's
commitment to the company. Complaint 5 20. Price also allegedly
made comments such as that women should stay at home while their
husbands worked to provide for the family. Complaint 5 21.
Furthermore, when Miller was passed over for the promotion in
1992, both William B. Price and William H. Price allegedly stated
that her parental obligations to her disabled son made her
unpromotable within the company. Complaint 55 40, 41.
On February 28, 1994, Miller filed a charge of
discrimination (original charge) with the New Hampshire
Commission for Human Rights (NHCHR) and the Egual Employment
Opportunity Commission (EEOC), alleging that her employer's
conduct in refusing to promote her and ultimately in terminating
her was due to sex discrimination, under the theory that her
employer considered her three children when it made personnel
decisions and did not consider the family obligations of
similarly situated male employees. On May 10, 1994, Miller
amended the charge to include a claim under the ADA for
discrimination based on her association with her disabled son.
After the EEOC investigated the matter and issued a right-
3 to-sue letter, plaintiffs filed the instant action in this court
on January 17, 1995.
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 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. 1982)). 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. Arrillaqa-
Belendez, 903 F.2d 49, 52 (1st Cir. 1990)).
2. Americans with Disabilities Act
_____ Plaintiff alleges that defendants' conduct in refusing to
promote her and in ultimately terminating her employment violated
the ADA. Defendants challenge the ADA claim on the following
grounds: (a) plaintiff failed to file a timely charge of
discrimination with the EEOC and to exhaust her administrative
4 remedies; (2) the claim is time-barred because it is based on
conduct that occurred prior to the effective date of the ADA; and
(3) the claims against defendants William B. Price and William H.
Price are barred because the ADA does not provide for individual
liability.
a. Timeliness of EEOC Charge/Exhaustion of Remedies
Defendants first contend that the ADA claim is time-barred.
They further argue that plaintiff failed to exhaust her
administrative remedies, as aspects of her civil claim go beyond
the scope of her EEOC charge. In making both arguments,
defendants assert that plaintiff never claimed in an EEOC charge
that her December 1993 termination was due to disability
discrimination. Prior to filing a civil action under the ADA,
an aggrieved party must, inter alia, file an administrative
charge with the EEOC.2 The filing of a charge serves the dual
2The EEOC charge should be filed within 300 days of the alleged discriminatory act. The relevant statute, in pertinent part, states:
[I]n a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief . . ., such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged
5 purpose of giving
the employer notice of plaintiff's charges and providing the
agency with information and "an opportunity to eliminate the
alleged unlawful practices through informal methods of
conciliation." Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st
Cir. 1990) (citation omitted). The administrative charge affords
"'the EEOC with a "jurisdictional springboard"'" to investigate
the alleged discrimination. Id. at 38 (guoting EEOC v. General
Electric C o ., 532 F.2d 359, 364 (4th Cir. 1976) (guoting EEOC v.
Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir. 1975))).
Thus, "[a]n administrative charge is not a blueprint for the
litigation to follow," nor need the exact wording of the charge
exactly predict the subseguent judicial pleading. Id. Instead,
plaintiff's civil claims must merely "come within the 'scope of
the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.'" Id. at 39 (guoting
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.
1970)) (emphasis added).
In the amended charge, plaintiff makes the following
allegation: "I believe my differing treatment after my return
unlawful employment practice occurred . . . .
42 U.S.C. § 2000e-5(e). This clause is applicable as plaintiff initially filed a charge with NHCHR.
6 from maternity leave resulting in adverse evaluations were due to
stereotyping based on illegal sex and disability discrimination."
See May 10, 1994, Charge of Discrimination 5 12 (attached as
Exhibit 2 to Objection to Defendants' Motion to Dismiss).
Moreover, plaintiff's submission in support of her charge, which
defendants received, notes that "CBC saw me as extra baggage to
be done away with because I had family obligations, including
twins and a handicapped child." See Plaintiff's Information
Response at 8 (attached as Exhibit 3 to Objection to Defendants'
Motion to Dismiss).
In addition, plaintiffs' ADA claim arises from essentially
the same facts as the original EEOC charge for sex
discrimination, which expressly set forth a claim for unlawful
termination. Indeed, the ADA claim could be construed as a
further refinement of the sex discrimination charge which, like
the ADA claim, alleges that defendants were motivated by
plaintiff's parental responsibilities when they failed to promote
her and eventually terminated her.
The court finds and rules that plaintiff's EEOC charge gave
defendants sufficient notice that she would potentially bring an
ADA claim for her termination. As the EEOC charge was filed
7 within the 300-day time limit,3 plaintiff's ADA claim is not
time-barred to the extent it relates to her termination.
Moreover, defendants have not succeeded in showing plaintiff
failed to exhaust her administrative remedies. The ADA claim
could "reasonably be expected to grow out of the charge of
discrimination," Powers, supra, 915 F.2d at 38 (guotation
omitted) and therefore was within the scope of the EEOC charge.4
b. Retroactivity of the ADA
Defendants next argue that the ADA claim must be dismissed
because the alleged failure to promote occurred prior to the date
the ADA became effective for most employment actions, July 26,
1992. Although the alleged failure to promote occurred in April
1992, the alleged discriminatory termination occurred in December
1993, well after the ADA's effective date. Accordingly, to the
extent the ADA claim is based on plaintiff's termination.
3Plaintiff was terminated in December of 1993 and then filed EEOC charges in February and May of 1994.
defendants further argue that the portion of plaintiffs' claim relating to the failure to promote is time-barred, as this occurred in April 1992 and more than 300 days elapsed before plaintiff filed a charge. Plaintiff avers that her claim for failure to promote was timely filed because it was part of a continuing violation. The court need not address this issue, given its ruling that this portion of plaintiff's claim should be dismissed because it occurred prior to the effective date of the ADA. See infra part 2.b. defendants' motion to dismiss must be denied.
However, whether plaintiff can be compensated for the
alleged failure to promote, which occurred prior to the ADA's
effective date, presents a more difficult question. The United
States Supreme Court recommends a two-step inquiry to approach
the retroactivity question: (1) whether Congress has "expressly
prescribed the statute's proper reach" so as to displace the
presumption against retroactivity and (2) if not, whether, in the
court's determination, "the new statute would have retroactive
effect". Landgraf v. USI Film Prods., ___ U.S. , ,114
S. C t . 1483, 1505 (1994). If Congress did not clearly intend
that the statute apply retroactively, and if the new statute
would so operate, courts must apply the "traditional presumption"
against retroactivity and find the statute does not govern. Id.
(1) Retroactivity
Absent a clear statement of congressional intent, there is a
traditional presumption against giving retroactive effect to
statutes that burden private rights. Landgraf, supra, ___ U.S.
at ____, 114 S. C t . at 1499. The court must determine whether
Congress intended the ADA, which obviously affects the
substantive rights of the parties, to apply retroactively.
Most courts addressing the issue agree that Congress did not intend the ADA to apply to discriminatory conduct occurring prior
to its effective date. See, e.g., Graehlinq v. Village of
Lombard, 58 F.3d 295, 296 (7th Cir. 1995); Burfield v. Brown,
Moore & Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995) ("The ADA
is not retroactive and it does not apply to actions allegedly
taken prior to the effective date of the Act."); Vande Zande v.
Wisconsin Pep't of Admin., 44 F.3d 538, 545 (7th Cir. 1995);
O'Bryant v. City of Midland, 9 F.3d 421, 422 (5th Cir. 1993);
Bishop v. Okidata, Inc., 864 F. Supp. 416, 420-22 (D.N.J. 1994);
Gonzales v. Garner Food Servs., Inc., 855 F. Supp. 371, 373 (N.D.
G a . 1994) (noting that courts have uniformly construed Title 1 of
the ADA to have prospective application); Raya v. Maryatt Indus.,
829 F. Supp. 1169, 1172-75 (N.D. Cal. 1993) (reviewing
jurisdictions that have held ADA does not apply retroactively and
providing extensive analysis of the issue).
The ADA provides that Title 1 "shall become effective 24
months after the date of enactment [July 26, 1990] ." Section 108
of Pub. L. 101-336, U.S.S.C.A.N. (104 Stat.) 337. Courts have
interpreted this section to mean that Title 1 should only apply
to conduct occurring after July 26, 1992. Bishop, supra, 864 F.
Supp. at 421 ("Congress's postponing of the effective date
evidences an intent not to apply the new regulations until their
10 effective date."); Gonzales, supra, 855 F. Supp. at 373.5
In arguing that the ADA is retrospective, plaintiff attempts
to resurrect arguments unsuccessfully employed by the plaintiffs
in Landgraf when they contended that section 102 of the Civil
Rights Act of 1991 should be applied retroactively. Plaintiff
contends that as Congress specifically indicated in statutory
notes that an amendment to the ADA, section 109(c) of the 1991
Civil Rights Act, 42 U.S.C. § 12112(c), relating to foreign
countries, should be applied prospectively, this implies that the
rest of the Act was meant to operate retrospectively. See
Objection at 12-13. According to plaintiff, an interpretation
that the entire Act applies prospectively would render the notes
to section 109(c) redundant, a result that runs counter to the
rules of statutory construction.6
The Landgraf court rejected the idea that such a "negative
inference" could be drawn from the language of section 109(c),
5Further support for this conclusion can be found in dicta of the United States Supreme Court: "A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date." Landgraf, supra, ___ U.S. at , 114 S. C t . at 1493.
6Plaintiff also argues Congress would have expressly indicated the entire Act be applied prospectively if it had so intended. This argument does not hold up, given the "traditional presumption" against retroactivity.
11 finding that such evidence would be "a surprisingly indirect
route to convey an important and easily expressed message"
concerning the Act's retroactivity. Landgraf, supra, U.S. at
, 114 S. C t . at 1494-96. Rather, the Court considered it
more likely to support that the legislators "agreed to disagree,"
id. at 1496, about the retroactive effect of the Act, and decided
to leave the guestion to the courts. Id. at 1494, 1495. See
also Raya, supra, 829 F. Supp. at 1174 (section 109(c) "was part
of an entirely separate statute and was added to the ADA after
its enactment," and, as such, "the presence of section 109(c)
does not indicate that Congress intended the remainder of the ADA
to apply retroactively").
In addition, plaintiff, noting that the ADA has a delayed
effective date, argues7 that the date of the Act's enactment,
July 26, 1990, controls. This position is unpersuasive in light
of the principle that "the legal effect of conduct should
ordinarily be assessed under the law that existed when the
conduct took place . . . ." Landgraf, supra, ___ U.S. at ____ ,
114 S. C t . at 1497 (guotation omitted); accord Bishop, supra, 864
F. Supp. at 421 (specifically holding that ADA does not apply to
7Plaintiff also cites Clarkson v. Coughlin, 145 F.R.D. 339, 348 (S.D.N.Y. 1993), in which the court permitted interveners to amend their complaint to include a claim that pre-Act conduct violated the ADA. However, Clarkson does not provide analysis on the retroactivity guestion.
12 conduct occurring after enactment but before effective date).
Moreover, plaintiff does little to further her argument when she
resorts to the proposition that "a court is to apply the law in
effect at the time it renders its decision . . . ." See Bradley
v. Richmond School Bd., 416 U.S. 696, 711 (1974). As Landgraf
has clarified, the Court in Bradley "did not intend to displace
the traditional presumption against applying statutes affecting
substantive rights, liabilities, or duties to conduct arising
before their enactment."8 Landgraf, supra, ___ U.S. at ____ , 114
S. C t . at 1504 (citation omitted). Accordingly, the court finds
no clear expression by Congress that the ADA be retroactively
applied.
(2) 'Retroactivity' and the Continuing Violation Theory
The court now addresses the second step prescribed by
Landgraf; i.e., whether the application of the ADA here would
result in a "retroactive" effect. Landgraf provides some general
guidelines that determine whether a provision is being applied
"retroactively." The court should consider "whether [the
statute] would impair rights a party possessed when he acted.
8Unlike the statutes in guestion in Landgraf and here, Bradley concerned the issue of attorney's fee determinations, which, according to the Supreme Court, are "collateral to the main cause of action," Landgraf, supra, ___ U.S. , 114 S. C t . at 1503, and therefore have less impact on substantive rights.
13 increase a party's liability for past conduct, or impose new
duties with respect to transactions already completed."
Landgraf, supra, ___ U.S. at ____ , 114 S. C t . at 1505.
Plaintiff invokes the continuing violation theory to argue
that even assuming the nonretroactivity of the ADA, she may
recover for defendant's alleged discriminatory pre-Act conduct.
Noting that the ADA clearly applies to the December 1993
termination, plaintiff contends the ADA should also be applied to
the promotion pass-over since these violations were of a
continuing nature.
Plaintiff's argument raises the guestion of whether the
failure to promote her was a "completed act" that occurred prior
to the effective date of the ADA, or whether, instead, it was
part of one continuing wrong culminating in her ultimate
termination. Accepting, arguendo, the latter theory, the ADA
would not be applied retroactively, but, rather, prospectively to
one continued violation.
Given Lamphere v. Brown Univ., 685 F.2d 743, 751 (1st Cir.
1982), and Bazemore v. Friday, 478 U.S. 385 (1986),9 there is
little doubt the First Circuit would decline to extend the
tAlthough Bazemore and Lamphere concern the remedies available under Title VII of the Civil Rights Act of 1964, § 701, et seg., as amended, 42 U.S.C.A. § 2000e, et seg., their holdings apply directly to the case at bar because ADA remedies are coextensive with those of Title VII. See 42 U.S.C. § 12117(a).
14 continuing violation theory to permit Miller to recover for the
defendants' pre-ADA conduct.10 Lamphere involved a sex
discrimination claim brought by a professor at Brown University
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seg, as amended, which first became applicable to
educational institutions in March 24, 1972, see Pub. L. No. 92-
261, 86 Stat. 103. This amendment to Title VII has prospective
application. Lamphere, supra, 685 F.2d at 747. Plaintiff's
complaint arose from defendant's alleged discriminatory salary
practices which spanned from 1969 to 1978. While noting that "a
decision to hire an individual at a discriminatorily low salary
can, upon payment of each subseguent pay check, continue to
violate the employee's rights," id. (emphasis added), the court
concluded that plaintiff "cannot recover damages for any
discrimination she might have suffered prior to March 24, 1972
[the effective date of the Act],"11 id.
10Further support can be found in the wording of the continuing violation theory itself. To establish a serial violation (as opposed to a systemic violation) , a party must show "'a number of discriminatory acts emanating from the same discriminatory animus, each act constituting a separate [actionable] wrong.'" Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994) (guoting Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990)) (emphasis added). Where pre-Act conduct is at issue, a plaintiff obviously cannot establish a separate actionable wrong, because it was not unlawful at the time of commission.
^Although plaintiff may not recover damages for pre-Act violations, evidence of such conduct may be relevant to show "a
15 Subsequently, the United States Supreme Court in Bazemore
addressed the issue of whether public employees could recover
damages for salary disparities that occurred prior to 1972, when
Title VII was extended to public employers. The Court stated,
A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII's effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for pre- 1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed.
Bazemore, supra, 478 U.S. at 395.
In addition, other jurisdictions have expressly declined to
apply the continuing violation theory to conduct pre-dating a
statute.12 See, e.g.. Bishop, supra, 864 F. Supp. at 421 n.2
pattern of illegal conduct, purpose or motivation with regard to independent violations that occurred after the effective date of the Act." Lamphere, supra, 685 F.2d at 747.
12Courts on occasion cite to the continuing violation theory when deciding whether civil rights statutes apply to conduct antedating the act. For example, in Boyle v. Brown Univ., 881 F. Supp. 747, 750-752 (D.R.I. 1995), the court impliedly recognized that ADA claims deriving from acts occurring before the Act's effective date could be pursued if they were part of a continuing violation. Instead of rejecting the applicability of the continuing violation theory out of hand, the court applied the principle to determine whether plaintiff's ADA claim could include pre-Act conduct. Ultimately, the court rejected plaintiff's argument because plaintiff improperly alleged the existence of an ongoing violation. Id. at 752. See also Park v. Howard Univ., 863 F. Supp. 14, 15-17 (D.D.C. 1994) (applying
16 (holding ADA does not permit recovery for acts occurring prior to
its effective date even if they continue beyond this time);
Vovtek v. University of Cal., Civ. No. C-92-3465 EEL, 1994 WL
478805, at *21 (N.D. Cal. Aug. 25, 1994); see also Ascolese v.
Southeastern Pa. Transp. Auth., Civ. No. 93-1461, 1995 WL 579948,
at *5 (E.D. Pa. Sept. 28, 1995) (holding damages provisions of
Civil Rights Act of 1991 do not apply to pre-enactment conduct,
notwithstanding allegations of a continuing violation). The
continuing violation theory is generally thought to be reserved
for the statute of limitations setting, where plaintiffs recover
for discriminatory conduct that was unlawful when committed,
albeit outside the limitations period. See generally. Bishop,
supra; Vovtek, supra. This is different than the situation
presented by the case sub judice, where the pre-ADA conduct was
lawful when committed.
A closer examination of Landgraf provides further guidance
continuing violation theory to allow recovery for conduct antedating an amendment to Civil Rights Act of 1991); Bodiford v. Alabama, 854 F. Supp. 886, 891 n.3 (M.D. Ala. 1994) (although a portion of alleged unlawful conduct occurred prior to effective date, ADA claim survives because "discriminatory conduct is continuing in nature"). These cases are not controlling, however. Boyle and Bodiford provide little to no analysis on the retroactivity guestion, and neither contain an express statement that plaintiffs could potentially recover damages for pre-Act violations. Moreover, this court respectfully disagrees with the reasoning employed by the court in Park.
17 for the case at bar. Barbara Landgraf originally sought relief
under Title VII's eguitable remedy provisions for the sexual
harassment and retaliation she allegedly experienced while
employed at a USFI Film Products plant in Tyler, Texas. The
district court dismissed her complaint. While her appeal was
pending, the President signed into law the Civil Rights Act of
1991, which expanded the remedies available to certain Title VII
claimants by creating the right to compensatory and punitive
damages, as well as the right to a jury trial.13 See Rev. Stat.
§ 1977A(a), 42 U.S.C. § 1981a(a), as added by § 102 of the 1991
Act, Pub. L. 102-166, 105 Stat. 1071. On appeal, Landgraf argued
that the provisions of the new Act should apply to her suit,
although the alleged discriminatory conduct occurred before the
Act was passed.
The Court held that the plaintiff sought to apply the Act
"retroactively," even though the provision superficially
concerned solely plaintiff's remedies and did not otherwise alter
the defendants' scope of liability for previous acts. The Court
first held that the punitive damages provision could not apply to
prior conduct because it "share [s] key characteristics of
criminal sanctions" and that "retroactive imposition of punitive
13Formerly, Title VII afforded such plaintiffs only 'eguitable' remedies such as back pay. Landgraf, supra, U.S. at ___ , 114 S. Ct. at 1490.
18 damages would raise a serious constitutional question."
Landgraf, supra, ___ U.S. at __ , 114 S. C t . at 1505 .14 Although
recognizing that the imposition of compensatory damages for pre-
Act conduct presented a more difficult question, the Court also
held that this provision could not apply to pre-Act conduct. The
Court reasoned that
[u]nlike certain other forms of relief, compensatory damages are quintessentially backward-looking. Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants. They do not "compensate" by distributing funds from the public coffers, but by requiring particular employers to pay for harms they caused.
Id., ___ U.S. at ___ , 114 S. Ct. at 1506.
If the remedies at issue in Landgraf "affect[] the
liabilities of defendants," so too would applying the continuing
violation theory, which is, at a minimum, a form of remedy.
Holding the defendants accountable for conduct that occurred
prior to the enactment of the ADA would be tantamount to
"imposing new burdens on persons after the fact." Id., ___ U.S.
at ____ , 114 S. C t . at 1500. It would also likely substantially
increase the defendants' financial liability. See id., ___ U.S.
14The court also refused to apply the provision concerning the right to a jury trial where the conduct pre-dated the amendment, noting that the option "must stand or fall with the attached damages provisions." Id. at 1505.
19 at ___ , 114 S. C t . at 1507 ("Neither in Bradley itself, nor in
any case before or since in which Congress had not clearly
spoken, have we read a statute substantially increasing the
monetary liability of a private party to apply to conduct
occurring before the statute's enactment.") (citation omitted).
This court will not reach back and, post-factum, deem that
defendants could be liable for conduct that was lawful when
committed, absent a clear directive from Congress. The court
therefore holds that compensating plaintiff for her pre-Act
injuries would amount to a "retroactive" application of the ADA,
notwithstanding the continuing nature of defendants' conduct.
Accordingly, defendants' motion to dismiss the ADA claim is
granted in part (as to the failure to promote) and denied in part
(as to the termination) .15
c. Individual Liability under the ADA
Defendants argue that the ADA claims against defendants
William B. Price and William H. Price should be dismissed
"because there is no individual liability under the Americans
15The court notes that the issue of the relevance of the evidence surrounding the failure to promote has not been raised; thus, the court's ruling does not foreclose the admissibility of such evidence.
20 with Disabilities Act." See Motion to Dismiss at 10.
The legal landscape has changed considerably since this
court issued Lamirande v. Resolution Trust Corp., 834 F. Supp.
526, 528 (D.N.H. 1993), in which it stated that there was
"general agreement" among the circuits that an "'agent' of an
'employer' is subject to individual liability under Title VII."16
This understanding derived from the plain language of the
statute. Under Title VII,
[i]t shall be an unlawful employment practice for an employer-- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin;
42 U.S.C. § 2000e-2(a)(1). Title VII defines "employer" as "'a
person engaged in an industry affecting commerce who has fifteen
or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year, and any
agent of such a person 42 U.S.C. § 2000e(b) (emphasis
16In order to determine whether personal liability would attach here, it is appropriate to examine cases interpreting Title VII, which contains relevant language similar to that within the ADA. See Carparts Distrib. Ctr. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 16 (1st Cir. 1994).
21 added).
Now numerous circuits have embraced another interpretation:
instead of intending to impose personal liability. Congress
included the "agent" wording merely to emphasize that employers
are subject to the principles of respondeat superior. See Tomka
v . Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir. 1995); Birkbeck
v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.), cert.
denied, ___ U.S. , 115 S. C t . 666 (1994); Grant v. Lone Star
C o ., 21 F.3d 649, 651-53 (5th Cir.), cert, denied, ___ U.S. ___ ,
115 S. C t . 574 (1994); EEOC v. AIC Sec. Investigations, 55 F.3d
1276, 1279-82 (7th Cir. 1995); Greenlaw v. Garrett, 59 F.3d 994,
1001 (9th Cir. 1995) (citing Miller v. Maxwell's Int'l, Inc., 991
F.2d 583, 587-88 (9th Cir. 1993), cert, denied, ___ U.S. ,114
S. C t . 1049 (1994)); Busby v. City of Orlando, 931 F.2d 764, 772
(11th Cir. 1991).
The issue has been the focus of substantial debate, even
within circuits recently holding that plaintiffs cannot recover
from "agents" in their personal capacities. Our own circuit is
no exception. Compare Braverman v. Penobscot Shoe Co., 859 F.
Supp. 596, 602-03 (D. Me. 1994) (ADA permits personal liability)
and Lamirande, supra, 834 F. Supp. at 527-29 (same) with Quiron
v. L.N. Violette Co., Inc., 897 F. Supp. 18, 19 (D. Me. 1995) (no
individual liability under ADA).
22 In the absence of precedent on point by the First Circuit
Court of Appeals, this court could legitimately follow its
earlier holding and find here that an agent who exercises
supervisory control can be personally liable under the ADA.
However, given the virtual consensus among the circuit courts
addressing the issue, the court has been persuaded to change its
position. Accordingly, the court grants defendants' motion to
dismiss the ADA claim against the individual defendants.
3. Wrongful Discharge
a. The Public Policy Component
To assert a claim for wrongful discharge under New Hampshire
law, plaintiff must allege that (1) her employers were motivated
by bad faith, malice, or retaliation; and (2) they discharged her
because she performed acts that public policy would encourage or
refused to perform acts that public policy would condemn.
Wenners v. Great State Beverages, Inc., ____ N.H. ___, , 663
A.2d 623, 625 (1995) (citing Short v. Administrative Unit No. 16,
136 N.H. 76, 84, 612 A.2d 364, 370 (1992)); Cloutier v. Great
Atlantic & Pacific Tea Co., 121 N.H. 915, 921-22, 436 A.2d 1140,
1143-44 (1981).
Plaintiff asserts she was terminated, in part, because she
reguested time off from work in order "to accompany her disabled
23 child to speech therapy." See Objection at 18; Complaint 5 41.
Plaintiff maintains that such a request is encouraged by the
public policy articulated in the preamble to the ADA and in the
Family and Medical Leave Act, 29 U.S.C. § 2601, et seg. (1988 &
Supp. V 1993). Defendants argue that plaintiff's wrongful
termination claim should be dismissed because she has failed to
state a viable public policy as the alleged "public policy"
derives from the same facts underlying plaintiff's Title VII and
ADA claims; namely, her status as a mother of a disabled child.17
The Supreme Court of New Hampshire has recently stated, "a
plaintiff may not pursue a common law remedy where the
legislature intended to replace it with a statutory cause of
action," Wenners, supra, ___ N.H. at , 663 A.2d at 625. Such
an intent is indicated when a statute provides a remedy for its
violation and sets forth procedures for pursuing such action.
Id. Thus in Howard, the common law action was supplanted by a
statute which "specifically prohibits age discrimination and
details procedure[s] for pursuing such action . . . ." Wenners,
supra, ___ N.H. at ___ , 662 A.2d at 625.
17Defendants cite Kopf v. Chloride Power Elecs., Inc., 882 F. Supp. 1183, 1189-90 (D.N.H. 1995), in which this court relied upon Howard v. Dorr Woolen Co., 120 N.H. 295, 297, 414 A.2d 1273, 1274 (1980), to hold that an employee allegedly discharged based on age or disability failed to state he was wrongfully terminated in violation of public policy.
24 Unlike the plaintiffs in Howard and Kopf, the instant
plaintiff has not stated a claim for which a statute provides a
remedy or sets forth procedures for pursuing such action.18 Her
wrongful discharge claim is based solely on defendants' alleged
retaliation against her for reguesting leave to take care of her
disabled son. Title VII would not apply to these facts because
plaintiff does not here allege that the retaliation was due to
gender discrimination. Neither would the remedies or procedures
contained within the ADA be available to plaintiff for a claim
based on these facts: since she herself is not disabled, the ADA
would not reguire her employer to reasonably accommodate her
reguest for time off from work. See 29 C.F.R. p t . 1630.8, Ap p .
("It should be noted, however, that an employer need not provide
the applicant or employee without a disability with a reasonable
accommodation because that duty only applies to gualified
18Plaintiff's claim is distinguishable from that brought in Kopf for yet another reason. In Kopf (and in Howard) the alleged discharge was due to plaintiff's status as a disabled or aged person, and not to any activity he performed or refused to perform. See Kopf, supra, 882 F. Supp. at 1189-90 & n.6 ("For at least the past fifteen years. New Hampshire courts have indicated that disability or age are not acts that an employee performs or refuses to perform and thus fail to meet the public policy benchmark.") (emphasis added) (citation omitted). The instant plaintiff does not appear to be recasting a claim actually based on her status into the public policy mold. Instead, she has arguably alleged that her discharge was due to the performance of a specific act: reguesting leave in order to attend to her disabled child.
25 applicants or employees with disabilities. Thus, for example, an
employee would not be entitled to a modified work schedule as an
accommodation to enable the employee to care for a spouse with a
disability.")- Therefore, as federal remedies and procedures are
not available for the particular facts underlying plaintiff's
wrongful discharge claim, the federal statutes would not supplant
her common law claim.
Having found that plaintiff's wrongful discharge claim is
not barred by a federal statute, the court now turns to whether
plaintiff has stated a viable public policy. The public policy
may be defined by statutory or nonstatutory policy. Gilley v.
N.H. Ball Bearings, Inc., 128 N.H. 401, 406, 514 A.2d 818, 821
(1986). At the time of the alleged conduct of defendants.
Congress had not yet passed the Family and Medical Leave Act
(FMLA), 29 U.S.C. § 2601(b)(2) (Supp. 1995), which provides in
pertinent part:
(b) Purposes It is the purpose of this Act--
(2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition
26 Nonetheless, a reasonable juror19 could conclude that at that
time in New Hampshire a nonstatutory public policy existed that
would protect employees seeking leave to take care of their
disabled children. As a jury would be the most appropriate
entity to decide whether a public policy exists here, the court
denies defendants' motion to dismiss the wrongful discharge claim
for failure to state a viable public policy.
b. Individual Defendants
Defendants next argue that the wrongful discharge claims
against defendants William B. Price and William H. Price must be
dismissed because they, as individuals, did not enter into an
employment relationship with plaintiff.
Plaintiff contends that as the claim for wrongful discharge
sounds in tort, not in contract, her case does not depend on
whether an employment relationship existed with the individual
defendants.20 Plaintiff is not persuasive. Obviously, the
19Except in very clear situations, the existence of a public policy should generally be decided by the trier of fact. Short, supra, 136 N.H. at 84, 612 A.2d at 370; Cloutier, supra, 121 N.H. at 924, 436 A.2d at 1145. This is because such a determination calls for "the type of multifaceted balancing process that is properly left to the jury in most instances." Id.
20The court is not persuaded by plaintiff's citation to Chamberlin v. 101 Realty, Inc., 626 F. Supp. 865 (D.N.H. 1985), in which plaintiff asserted a wrongful discharge claim against the president of a company in his individual capacity. The court
27 existence of an employment relationship is fundamental to a claim
for wrongful discharge. See Bourque v. Town of Bow, 736 F. Supp.
398, 401 (D.N.H. 1990) (citing Vandegrift v. American Brands
Corp., 572 F. Supp. 496, 499 (D.N.H. 1983)). Thus, even assuming
a wrongful discharge claim gives rise to a tort action, see
Hutton v. Essex Group, Inc., 885 F. Supp. 331, 332 (D.N.H. 1994),
the court would not be inclined to discard the essential
reguirement that an employment relationship exist between the
parties.
Plaintiff does not allege she was employed by the individual
defendants. As such, these defendants cannot be held liable for
wrongful discharge.21 See Bourque, supra, 736 F. Supp. at 401
(granting summary judgment on wrongful discharge claim given
absence of evidence of employment relationship with individual
defendants). Accordingly, defendants' motion to dismiss the
wrongful discharge claims against individual defendants is
granted.
in Chamberlin did not address whether the president could be personally liable to the plaintiff.
21Neither is the court persuaded by plaintiff's characterization of the individual defendants as "aiders or abettors" of the wrongful discharge.
28 4. Intentional Infliction of Emotional Distress
a. Individual Defendants
To state a claim for intentional infliction of emotional
distress, plaintiff must allege that through extreme and
outrageous conduct defendants intentionally or recklessly caused
severe emotional distress. See Morancv v. Morancv, 134 N.H. 493,
495-96, 593 A.2d 1158, 1159 (1991) (citing Restatement (Second) of
Torts § 46 (1965)). Liability should be imposed
only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Gener ally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
Restatement (Second) of Torts § 46, comment d.
It is for the court, not the jury, to initially determine
whether defendants' conduct could be construed as "so extreme and
outrageous as to permit recovery." Restatement (Second) of Torts §
46, comment h. The court notes thatsuccessful claims for
intentional infliction of emotional distress typically arise from
conduct that was unusually atrocious or outlandish. Compare
Wagenmann v. Adams, 829 F.2d 196, 214 (1st Cir. 1987) (arresting
29 and imprisoning and then committing innocent man to mental
institution on eve of daughter's wedding constitutes outrageous
conduct) (interpreting Massachusetts law) with Daemi v. Church's
Fried Chicken, Inc., 931 F.2d 1379, 1387-88 (10th Cir. 1991)
(employer's conduct, which included calling employee names based
on employee' national origin, rudeness, mistreatment at seminars,
and compelling employee to terminate subordinates because of
their national origin did not rise to level of outrageous
conduct) (interpreting Oklahoma law).
After careful review of plaintiff's allegations in their
entirety, the court finds that plaintiff has just barely
satisfied her burden at this juncture. Extending Miller every
possible inference in her favor. Miller's claim for emotional
distress arises from what can be described as a series of
disturbing verbal commentaries and personal attacks levied by
defendants, who wielded professional power over her. Plaintiff
alleges defendants William B. Price and William H. Price
continually guestioned her abilities and expressed stereotypical
attitudes on the issue of whether women should stay at home to
take care of their children.
For example, defendants regularly told Miller that her
chances for promotion were limited because of what they presumed
to be her family obligations. Complaint 5 40. Plaintiff alleges
30 defendants repeatedly asked her, following the birth of one of
her children, "Are you coming back?; Are you sure you don't want
to stay home?; Can we count on you?" See Complaint 5 20.
Assuming defendants' alleged discriminatory comments were made
regularly and persistently, they may go beyond the "mere insults,
indignities, threats, annoyances, or other trivialities" which an
employee can be expected to endure. They may also indicate the
"abuse by the defendant of some relation or position which gives
him actual or apparent power to damage the plaintiff's
interests." W. Page Keeton, et al . , Prosser and Keeton on Torts § 12,
at 61 (5th ed. 1984). Therefore, the court denies defendants'
motion to dismiss plaintiff's claim for intentional infliction of
emotional distress. However, the court grants defendants' motion
to dismiss plaintiff's claim for reckless infliction of emotional
distress.22
b. Corporate Defendants
Defendants argue that the claims for emotional distress
against corporate defendants CBC and CBS are barred by the
22Plaintiff's claim for reckless infliction of emotional distress fails because New Hampshire does not recognize a separate tort for reckless infliction of emotional distress. Instead, the tort of intentional infliction of emotional distress can be satisfied by either intentional or reckless conduct. See Morancv, supra, 134 N.H. at 495-96, 593 A.2d at 1159.
31 exclusivity clause of the New Hampshire Workers' Compensation
Law.
The "exclusivity" provision provides, in pertinent part:
281:12 Employees Presumed to have Accepted. An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions hereof and on behalf of himself, or his personal or legal representatives, to have waived all rights of action whether at common law or by statute or otherwise: I . Against the employer or the employer's insurance carrier; and II. Except for intentional torts, against any officer, director, agency, servant or employee acting on behalf of the employer or the employer's insurance carrier.
RSA 281 :12 (1987).23 RSA 281:12 "clearly prohibits an employee
from maintaining a common-law action against his employer for
personal injuries arising out of the employment relationship."
O'Keefe v. Associated Grocers of New England, Inc., 120 N.H. 834,
835-36, 424 A.2d 199, 201 (1980). For the purposes of this
provision, emotional distress gualifies as a "personal injury".
Censullo v. Brenka Video, 989 F.2d 40, 43 (1st Cir. 1993)
(interpreting New Hampshire law). The statute likewise makes
plain that the prohibition extends to both intentional and
nonintentional torts. As such, it is clear that the statute
23This provision has been modified by RSA 281-A:8 (Supp. 1994), but not in any respect material to this action.
32 precludes an employee from pursuing a claim for intentional
infliction of emotional distress against his or her employer.
See id. Accordingly, the court grants the corporate defendants'
motion to dismiss the claim for intentional infliction of
emotional distress.
6. Michael B. Miller's Claim for Loss of Consortium
Defendants next move to dismiss plaintiff Michael B.
Miller's claim for loss of consortium, deriving from Miller's
Title VII claims and ADA claims, as well as from her common law
claims for wrongful discharge and intentional infliction of
The court grants defendants' motion to dismiss the
consortium claims to the extent they derive from plaintiff's ADA
and Title VII claims. The court has previously noted that "[t]he
spouse of an alleged federal civil rights victim is not permitted
an ancillary cause of action for loss of consortium." Vargus v.
Donut, No. 92-301-SD, slip op. at 2 (D.N.H. Apr. 4, 1994) (citing
Tauriac v. Polaroid Corp., 716 F. Supp. 672, 673 (D. Mass.
1989)). As nothing in the ADA language indicates otherwise, this
court finds that an ADA claim, in addition to a Title VII claim,
cannot support an ancillary claim for loss of consortium.
The court next addresses the consortium claim insofar as it
derives from Susan Miller's claim for wrongful discharge.
Defendants argue that as a claim for wrongful discharge sounds in
33 contract, Michael Miller cannot receive loss of consortium
damages, which are only recoverable in conjunction with a
spouse's tort claim.
New Hampshire permits a husband or wife to recover loss of
consortium damages "whether caused intentionally or by negligent
interference." New Hampshire Revised Statutes Annotated (RSA)
507:8-a. However, the determination of "[w]hether an action is
'on a contract or in tort is not controlled by the form of the
action but by its substance.'" Young v. Abalene Pest Control
Servs., Inc., 122 N.H. 287, 289, 444 A.2d 514, 515 (1982)
(citation omitted). Therefore, the court must determine whether
the duty allegedly violated in a wrongful discharge action
asserted by an at-will employee arises from a contractual or
tortious obligation.
The court has held in other settings that under New
Hampshire law a claim for wrongful discharge should be treated as
a tort claim. See, e.g., Frechette v. Wal-Mart Stores, Inc., No.
94-430-JD, slip op. at 3-4 (D.N.H. Sept. 26, 1995) (wrongful
discharge claim is a tort claim, for which no separate
contractual remedy is available) (interpreting New Hampshire
law). Indeed, the court has also previously found that tort
remedies such as front-pay are available to an at-will employee
alleging wrongful termination. See Hutton v. Essex Group, Inc.,
885 F. Supp. 332, 332 (D.N.H. 1994) (discussing treatment by New
Hampshire Supreme Court). In light of this precedent, the court
34 sees no reason to preclude plaintiff Michael Miller from pursuing
a tort remedy for his loss of consortium, assuming Susan Miller
prevails on her claim for wrongful termination.24
Finally, the court turns to whether Michael Miller's claim
for loss of consortium can be predicated on a claim for
intentional infliction of emotional distress. The individual
defendants argue that the loss of consortium claim is not viable
against them because plaintiff has failed to allege a physical
injury. New Hampshire reguires that one spouse suffer a physical
injury in order for the other spouse to recover loss of
consortium damages. See Hardiman v. United States, 752 F. Supp.
52, 54 (D.N.H. 1989) (citing LaBonte v. National Gypsum Co., 110
N.H. 314, 319, 269 A.2d 634, 638 (1970)). As at least one
commentator has noted, there can be no recovery of such damages
"in the absence of a basis for inferring that services or
affection were actually lost." Prosser and Keeton on Torts, supra, §
24Defendants ask that this court follow the reasoning of Young and deny plaintiff's claim; however, the circumstances of that case are distinguishable from the case at bar. In Young, the plaintiff's claims, although styled as arising in tort, were actually based on the defendant's breach of a contractual provision. The parties entered into a contract under which the defendant would inspect a home that plaintiffs, a married couple, hoped to purchase; the parties also contracted that defendant would certify whether the house was free of insects. In reliance on the defendant's certification, the plaintiffs bought the property, only to discover that it was infested with wood- destroying carpenter ants. Young, supra, 122 N.H. at 288, 444 A.2d at 515. The court determined that the defendant's underlying duty, to properly certify whether the house was free from insects, arose directly from a provision of the contract.
35 125, at 933. Here, plaintiff has alleged she suffered "severe
emotional distress and physical illness." See Complaint 5 53.
Accordingly, the court finds she has sufficiently provided a
basis for inferring that "services or affection were actually
lost." However, regarding the claim against the corporate
defendants, Michael Miller's recovery of loss of consortium
damages is plainly barred by the Worker's Compensation Act, which
also precluded Susan Miller's claim.25
Accordingly, the court grants defendants' motion to dismiss
Michael Miller's claim for loss of consortium insofar as it
derives from plaintiff's Title VII and ADA claims; grants the
corporate defendants' motion to dismiss the claim to the extent
it derives from intentional infliction of emotional distress; and
grants the individual defendants' motion to dismiss the claim
insofar as it is predicated on plaintiff's wrongful discharge.
Otherwise, as to the remaining components of Michael Miller's
claim, defendants' motion is denied.
25RSA 2 81-A: 8 (II) states:
The spouse of an employee entitled to benefits under this chapter, or any other person who might otherwise be entitled to recover damages on account of the employee's personal injury or death, shall have no direct action, either at common law or by statute or otherwise, to recover for such damages against any person identified in subparagraph I(a) or (b).
36 Conclusion
For the foregoing reasons, defendants' motion to dismiss
(document 7) is granted as to (1) plaintiff's ADA claim (Count
II) to the extent it is based on acts occurring prior to July 26,
1992; (2) plaintiff's wrongful discharge claim (Count III)
against defendants William H. Price and William B. Price; (3)
plaintiff's intentional infliction of emotional distress claim
(Count IV) against defendants CBC and CBS; (4) plaintiff's
reckless infliction of emotional distress claim (Count V ) ; and
(5) Michael B. Miller's claim for loss of consortium (Count VI)
insofar as it is predicated on plaintiff's Title VII and ADA
claims, plaintiff's claim for intentional infliction of emotional
distress against CBC and CBS, and plaintiff's claim for wrongful
discharge against William B. Price and William H. Price.
Otherwise, as to all other claims, defendants' motion is denied.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
November 29, 1995
cc: John M. Lewis, Esg. Debra Dyleski-Jajjar, Esg.