Page v. Development Services CV-97-622-JD 05/07/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine Page, et al.
v. Civil No. 97-622-JD
Developmental Services of Strafford County, et al.
O R D E R
The plaintiffs, Catherine Page and Estelle Thibodeau, have
filed this employment discrimination action against the
defendants. Developmental Services of Strafford County, Inc.
("DSSC"), their former employer, and Raymond Blodgett, their
former supervisor. The case was originally filed in the Superior
Court for Stafford County, New Hampshire, but, pursuant to 28
U.S.C. §§ 1441 and 1446, DSSC removed the case to this court.
Before the court is DSSC's motion for judgment on the pleadings
against it in counts II, III, V, VII, and VIII (document no. 9) .1
Background2
The plaintiffs allege that they were actually or
constructively terminated from their employment at DSSC both
defendant Blodgett has not joined DSSC's motion for judgment on the pleadings.
2The facts relied on by the court in the resolution of the instant motion are not in dispute. because of a hostile work environment based on sexual harassment
and in retaliation for reporting incidents of sexual harassment
by defendant Blodgett during the course of their employment. The
plaintiffs presented their sexual harassment claims to the Egual
Employment Opportunity Commission ("EEOC") and obtained a right
to sue notice.
The plaintiffs' complaint alleges the following claims:
violation of Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. §§ 2000e to 2000e-17, (count I); common law
wrongful termination (count II); breach of the covenant of good
faith and fair dealing (count III); violation of personnel
policies (count IV); violation of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. §§ 12101-12213, (count V); violation of
the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654,
(count VI); intentional infliction of emotional distress (count
VII); and negligent infliction of emotional distress (count
VIII). DSSC has moved for judgment on the pleadings on the
claims against it in counts II, III, V, VII, and VIII.
Discussion
A motion for judgment on the pleadings will be granted if,
accepting all of the plaintiffs' factual averments contained in
the complaint as true, and drawing every reasonable inference
2 helpful to the plaintiffs' cause, "it appears beyond doubt that
[they] can prove no set of facts in support of [their] claim
which would entitle [them] to relief." Rivera-Gomez v. de
Castro, 843 F.2d 631, 635 (1st Cir. 1988); see Republic Steel
Corp. v. Pennsylvania Enq'q Corp., 785 F.2d 174, 182 (7th Cir.
1986) (standard for evaluating Rule 12(c) motion is essentially
the same as standard for evaluating motion under Rule 12(b)(6)).
The court's inguiry is a limited one, focusing not on "whether
[plaintiffs] will ultimately prevail but whether [they are]
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (motion to dismiss under Fed. R.
Civ. P. 12 (b) (6)) .
A. Wrongful Termination and Breach of the Covenant of Good Faith and Fair Dealing
In count I, the plaintiffs allege that DSSC violated their
rights under Title VII both by creating a hostile work
environment and by retaliating against the plaintiffs for
reporting the sexual harassment by Blodgett. In counts II and
III, the plaintiffs allege claims against DSSC for wrongful
termination and breach of the covenant of good faith and fair
dealing, respectively, based on the alleged retaliation. DSSC
urges that it is entitled to judgment on the pleadings on the
3 plaintiffs' claims in counts II and III because these common law
claims have been replaced by statutory remedies. The plaintiffs
contend that neither Title VII nor New Hampshire Rev. Stat. Ann.
("RSA") § 354-A was intended to supplant the plaintiffs' common
law claims.
The Supreme Court of New Hampshire has ruled that "a
plaintiff may not pursue a common law remedy where the
legislature intended to replace it with a statutory cause of
action." Wenners v. Great State Beverages, Inc., 140 N.H. 100,
103, 663 A.2d 623, 625 (1995); accord Miller v. CBC Cos., 908 F.
Supp. 1054, 1066 (D.N.H. 1995). The First Circuit, faced with
the question of whether an available Title VII remedy for gender
discrimination supplanted a New Hampshire common law wrongful
discharge claim based on the same conduct, has held as follows:
Under Wenners, the existence of [a Title VII] remedy precludes the [plaintiffs], in the circumstances of this case, from asserting a common law claim for wrongful discharge.
Smith v. F.W. Morse & Co., 76 F.3d 413, 429 (1st Cir. 1996). The
plaintiffs assert that the First Circuit's conclusion in Smith is
"clearly inconsistent" with Wenners and invite the court to
"revisit" the First Circuit's holding on that basis. See Pis.'
Mem. of Law in Supp. of Objection to DSSC's Mot. for J. on
Pleadings ("Pis.' Mem.") at 4 n.l. However, there is no
4 principled basis for the court not to apply controlling First
Circuit precedent and therefore DSSC is entitled to judgment on
the pleadings on the plaintiffs' wrongful termination claim. See
also Foster v. Wal-Mart, Inc., Civil No. 94-571-JD, slip op. at
2-5 (D.N.H. Mar. 15, 1996) (dismissing wrongful discharge claim
as supplanted by RSA § 354-A).
The plaintiffs' claim for breach of the covenant of good
faith and fair dealing fares no better. The plaintiffs, pointing
to Frechette v. Wal-Mart Stores, Inc., 925 F. Supp. 95, 99
(D.N.H. 1995), argue that they are entitled to bring the claim
because they can satisfy the public policy element of the action.
They base this argument on the following statement by the court:
It follows that any claim of a terminated at-will employee based on a contract theory must still be brought under the rubric of wrongful termination and, as such, must satisfy the public policy component of that cause of action. Accordingly, the court holds that a separate contractual remedy is not available to an at-will employee who alleges that she was terminated in bad faith but cannot satisfy the public policy prong of the wrongful termination cause of action.
Id. Although the guoted language could be interpreted to provide
some support for the plaintiffs' position, taken in context, it
does not stand for the proposition they advocate. The fact that
a plaintiff may not bring a claim for breach of the covenant of
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Page v. Development Services CV-97-622-JD 05/07/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine Page, et al.
v. Civil No. 97-622-JD
Developmental Services of Strafford County, et al.
O R D E R
The plaintiffs, Catherine Page and Estelle Thibodeau, have
filed this employment discrimination action against the
defendants. Developmental Services of Strafford County, Inc.
("DSSC"), their former employer, and Raymond Blodgett, their
former supervisor. The case was originally filed in the Superior
Court for Stafford County, New Hampshire, but, pursuant to 28
U.S.C. §§ 1441 and 1446, DSSC removed the case to this court.
Before the court is DSSC's motion for judgment on the pleadings
against it in counts II, III, V, VII, and VIII (document no. 9) .1
Background2
The plaintiffs allege that they were actually or
constructively terminated from their employment at DSSC both
defendant Blodgett has not joined DSSC's motion for judgment on the pleadings.
2The facts relied on by the court in the resolution of the instant motion are not in dispute. because of a hostile work environment based on sexual harassment
and in retaliation for reporting incidents of sexual harassment
by defendant Blodgett during the course of their employment. The
plaintiffs presented their sexual harassment claims to the Egual
Employment Opportunity Commission ("EEOC") and obtained a right
to sue notice.
The plaintiffs' complaint alleges the following claims:
violation of Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. §§ 2000e to 2000e-17, (count I); common law
wrongful termination (count II); breach of the covenant of good
faith and fair dealing (count III); violation of personnel
policies (count IV); violation of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. §§ 12101-12213, (count V); violation of
the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654,
(count VI); intentional infliction of emotional distress (count
VII); and negligent infliction of emotional distress (count
VIII). DSSC has moved for judgment on the pleadings on the
claims against it in counts II, III, V, VII, and VIII.
Discussion
A motion for judgment on the pleadings will be granted if,
accepting all of the plaintiffs' factual averments contained in
the complaint as true, and drawing every reasonable inference
2 helpful to the plaintiffs' cause, "it appears beyond doubt that
[they] can prove no set of facts in support of [their] claim
which would entitle [them] to relief." Rivera-Gomez v. de
Castro, 843 F.2d 631, 635 (1st Cir. 1988); see Republic Steel
Corp. v. Pennsylvania Enq'q Corp., 785 F.2d 174, 182 (7th Cir.
1986) (standard for evaluating Rule 12(c) motion is essentially
the same as standard for evaluating motion under Rule 12(b)(6)).
The court's inguiry is a limited one, focusing not on "whether
[plaintiffs] will ultimately prevail but whether [they are]
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (motion to dismiss under Fed. R.
Civ. P. 12 (b) (6)) .
A. Wrongful Termination and Breach of the Covenant of Good Faith and Fair Dealing
In count I, the plaintiffs allege that DSSC violated their
rights under Title VII both by creating a hostile work
environment and by retaliating against the plaintiffs for
reporting the sexual harassment by Blodgett. In counts II and
III, the plaintiffs allege claims against DSSC for wrongful
termination and breach of the covenant of good faith and fair
dealing, respectively, based on the alleged retaliation. DSSC
urges that it is entitled to judgment on the pleadings on the
3 plaintiffs' claims in counts II and III because these common law
claims have been replaced by statutory remedies. The plaintiffs
contend that neither Title VII nor New Hampshire Rev. Stat. Ann.
("RSA") § 354-A was intended to supplant the plaintiffs' common
law claims.
The Supreme Court of New Hampshire has ruled that "a
plaintiff may not pursue a common law remedy where the
legislature intended to replace it with a statutory cause of
action." Wenners v. Great State Beverages, Inc., 140 N.H. 100,
103, 663 A.2d 623, 625 (1995); accord Miller v. CBC Cos., 908 F.
Supp. 1054, 1066 (D.N.H. 1995). The First Circuit, faced with
the question of whether an available Title VII remedy for gender
discrimination supplanted a New Hampshire common law wrongful
discharge claim based on the same conduct, has held as follows:
Under Wenners, the existence of [a Title VII] remedy precludes the [plaintiffs], in the circumstances of this case, from asserting a common law claim for wrongful discharge.
Smith v. F.W. Morse & Co., 76 F.3d 413, 429 (1st Cir. 1996). The
plaintiffs assert that the First Circuit's conclusion in Smith is
"clearly inconsistent" with Wenners and invite the court to
"revisit" the First Circuit's holding on that basis. See Pis.'
Mem. of Law in Supp. of Objection to DSSC's Mot. for J. on
Pleadings ("Pis.' Mem.") at 4 n.l. However, there is no
4 principled basis for the court not to apply controlling First
Circuit precedent and therefore DSSC is entitled to judgment on
the pleadings on the plaintiffs' wrongful termination claim. See
also Foster v. Wal-Mart, Inc., Civil No. 94-571-JD, slip op. at
2-5 (D.N.H. Mar. 15, 1996) (dismissing wrongful discharge claim
as supplanted by RSA § 354-A).
The plaintiffs' claim for breach of the covenant of good
faith and fair dealing fares no better. The plaintiffs, pointing
to Frechette v. Wal-Mart Stores, Inc., 925 F. Supp. 95, 99
(D.N.H. 1995), argue that they are entitled to bring the claim
because they can satisfy the public policy element of the action.
They base this argument on the following statement by the court:
It follows that any claim of a terminated at-will employee based on a contract theory must still be brought under the rubric of wrongful termination and, as such, must satisfy the public policy component of that cause of action. Accordingly, the court holds that a separate contractual remedy is not available to an at-will employee who alleges that she was terminated in bad faith but cannot satisfy the public policy prong of the wrongful termination cause of action.
Id. Although the guoted language could be interpreted to provide
some support for the plaintiffs' position, taken in context, it
does not stand for the proposition they advocate. The fact that
a plaintiff may not bring a claim for breach of the covenant of
good faith and fair dealing without satisfying the public policy
reguirement does not mean that every plaintiff who is able to
5 satisfy the public policy requirement may bring such a claim.
Although Wenners and Howard v. Dorr Woolen Co., 120 N.H.
295, 414 A.2d 1273 (1980), upon which Wenners relied, dealt only
with wrongful termination claims, the language in Wenners
indicates that not only wrongful termination but also other
common law remedies may be replaced by statutory causes of
action. See 140 N.H. at 103, 663 A.2d at 625 ("[A] plaintiff may
not pursue a common law remedy where the legislature intended to
replace it with a statutory cause of action . . .") (emphasis
added). Here, as in Robinson v. Caronia Corp., the plaintiffs'
"claims for wrongful discharge and good faith and fair dealing
are indistinguishable." See Civil No. 92-306-B, slip op. at 6
(D.N.H. Jan. 4, 1996). The conduct alleged by the plaintiffs in
count III is the same prohibited retaliation alleged in counts I
and II. Under these circumstances, the same rule to be applied
to the plaintiffs' wrongful termination claim must also be
applied to their claim for breach of the covenant of good faith
and fair dealing -- both common law actions are supplanted by
statutory remedies. Accordingly, DSSC's motion for judgment on
the pleadings in counts II and III is granted.
6 B. Americans With Disabilities Act Claim
In count V, plaintiff Page alleges that DSSC discriminated
against her on the basis of a disability in violation of the
American with Disability Act ("ADA"). DSSC asserts that it is
entitled to judgment on the pleadings in this count because Page
failed to comply with the administrative filing reguirements of
42 U.S.C. § 2000e-5, which have been held to be applicable to ADA
cases. See Moher v. Chemfab Corp., 959 F. Supp. 70, 71 (D.N.H.
1997). Page's rebuttal to this allegation is twofold: first, by
failing to state this particular defense in its pleading DSSC has
waived the defense; and second, the charge that she filed with
the Egual Employment Opportunity Commission ("EEOC") satisfies
the administrative filing reguirement by providing reasonable
notice that Page intended to pursue an ADA claim.
The memoranda filed by the parties make it appear that Page
included in her claim to the EEOC an assertion that she suffered
post-traumatic stress disorder ("PTSD") but did not check off the
box on the charge of discrimination form indicating that she was
pursuing a claim for disability discrimination. See Pis.' Mem.
at 8; DSSC's Reply Mem. in Supp. of Mot. for J. on the Pleadings
at 4. However, in this case the pleadings of the parties and
supporting exhibits lack even the most cursory details about
Page's ADA claim. Assuming arguendo that DSSC did preserve its
7 right to raise lack of compliance with the administrative filing
reguirement as an affirmative defense, the parties have failed to
provide appropriate supporting documentation necessary for the
court to adjudicate the merits of the argument. Most notably
absent from the filings are copies of the plaintiff's charge of
discrimination form and the EEOC's right to sue letter. Without
this information, at a minimum, the court cannot ascertain in the
context of this motion for judgment on the pleadings that Page
can prove no set of facts in support of her claim which would
entitle her to relief. Therefore, DSSC's motion for judgment on
the pleadings in count V is denied.
C. Intentional and Negligent Infliction of Emotional Distress
DSSC has also moved for judgment on the pleadings on the
plaintiffs' claims against it for intentional infliction of
emotional distress and negligent infliction of emotional distress
in counts VII and VIII, respectively. The plaintiffs have
assented to dismissal of these counts as to DSSC but assert that
the counts against Blodgett should not be dismissed. Blodgett
has not joined in DSSC's motion. The court grants DSSC's motion
for judgment on the pleadings in counts VII and VIII. Conclusion
For the reasons stated above, DSSC's motion for judgment on
the pleadings (document no. 9) is granted as to counts II, III,
VII, and VIII and denied as to count V.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
May 7, 1998
cc: Benjamin T. King, Esguire Mark T. Broth, Esguire Warren C. Nighswander, Esguire Debra Weiss Ford, Esguire