Parker v . MVM, Inc. 05-CV-380-SM 06/20/06 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Parker, Plaintiff
v. Civil N o . 05-cv-380-SM Opinion N o . 2006 DNH 070 MVM, Inc., Defendant
O R D E R
Plaintiff, Richard Parker, brings this action against his
former employer, MVM, Inc., claiming it unlawfully terminated his
employment. In his complaint, Parker advances common law claims
for wrongful termination and breach of contract, as well as state
and federal statutory claims for age discrimination. MVM moves
to dismiss the common law wrongful termination claim, asserting
that because it is founded on Parker’s assertion that he was
discharged because of his age, it is preempted by the state and
federal statutes prohibiting age discrimination. Parker objects.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff’s favor and determine whether the complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory.” Martin v . Applied Cellular
Tech., Inc., 284 F.3d 1 , 6 (1st Cir. 2002). Dismissal is
appropriate only if “it clearly appears, according to the facts
alleged, that the plaintiff cannot recover on any viable theory.”
Langadinos v . American Airlines, Inc., 199 F.3d 6 8 , 69 (1st Cir.
2000). See also Gorski v . N.H. Dep’t of Corr., 290 F.3d 466, 472
(1st Cir. 2002) (“The issue presently before u s , however, is not
what the plaintiff is required ultimately to prove in order to
prevail on her claim, but rather what she is required to plead in
order to be permitted to develop her case for eventual
adjudication on the merits.”) (emphasis in original).
Notwithstanding this deferential standard of review,
however, the court need not accept as true a plaintiff’s “bald
assertions” or conclusions of law. See Resolution Trust Corp. v .
Driscoll, 985 F.2d 4 4 , 48 (1st Cir. 1993) (“Factual allegations
in a complaint are assumed to be true when a court is passing
upon a motion to dismiss, but this tolerance does not extend to
legal conclusions or to bald assertions.”) (citations omitted).
See also Chongris v . Board of Appeals, 811 F.2d 3 6 , 37 (1st Cir.
1987).
2 Background
After reaching age 6 2 , Parker spoke with representatives of
MVM about reducing his employment from full-time to part-time, so
he might begin receiving Social Security benefits without
incurring tax penalties. Eventually that request was honored
and, although he retained the title “Quality Assurance Manager”
and received the same hourly rate of pay, his work schedule was
reduced to only 11 hours per week. Soon thereafter, however, he
was told that his position was erroneously converted to part-
time. But, rather than simply reinstating him to his prior full-
time position (an option Parker says he both welcomed and
communicated to M V M ) , MVM transferred Parker to another job and
filled his former position with a younger employee. Parker
understandably viewed the transfer as a demotion.
In count one of his amended complaint (document n o . 9 ) ,
Parker asserts that he was constructively discharged when MVM
demoted “him to a position for which he was grossly
overqualified, ill-suited and in which he would be supervised by
younger, less experienced personnel, including one who had been
his subordinate.” Id. at para. 3 1 . He goes on to say:
MVM’s employment action against Parker was not motivated by business necessity but rather by malice
3 and personal animus, predicated on the view that he would ultimately feel he had no choice but to resign rather than continue working under circumstances that MVM knew would be demeaning and intolerable.
Parker was punished for seeking to continue to perform a job he was deeply committed to while obtaining reasonable accommodation from his employer for age- related limitations.
Considering the advancing average age of the American worker and economic pressures extending the age at which workers like Parker can reasonably expect to be able to retire, there is a sound public policy basis to hold MVM legally accountable for its wrongful actions against Parker.
Id. at paras. 32-34 (emphasis supplied).
Discussion
To state a viable claim for wrongful discharge under New
Hampshire’s common law, a plaintiff must allege two things:
one, that the employer terminated the employment out of bad faith, malice, or retaliation; and two, that the employer terminated the employment because the employee performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn.
Short v . Sch. Admin. Unit N o . 1 6 , 136 N.H. 7 6 , 84 (1992) (citing
Cloutier v . A & P Tea Co., 121 N.H. 915, 921-22 (1981)) (emphasis
supplied). See also Monge v . Beebe Rubber Co., 114 N.H. 130
4 (1974). Count one of Parker’s complaint fails to state a viable
cause of action for wrongful discharge for at least two reasons.
First, and most notably, while he certainly alleges that his
former employer acted out of bad faith and/or malice, Parker
fails to allege that he was discharged because he engaged in
conduct which public policy would encourage or because he refused
to engage in conduct which public policy would condemn. Instead,
he says MVM terminated his employment because of his age. The
New Hampshire Supreme Court has expressly held that the common
law cause of action for wrongful termination is not the proper
vehicle by which to seek redress for alleged age discrimination.
We construe Monge to apply only to a situation where an employee is discharged because he performed an act that public policy would encourage, or refused to do that which public policy would condemn. A discharge due to sickness does not fall within this category, and is generally remedied by medical insurance or disability provisions in an employment contract. Nor does discharge because of age fall within this narrow category. The proper remedy for an action for unlawful age discrimination is provided for by statute.
Howard v . Dorr Woolen Co., 120 N.H. 295, 298 (1980) (citations
omitted) (emphasis supplied).
5 Nowhere in his complaint does Parker allege that his
constructive termination was the result of his having engaged (or
having refused to engage) in any particular conduct with public
policy implications. He claims he was demoted because of his
age. Under those circumstances, he cannot pursue a common law
claim for wrongful discharge. As the New Hampshire Supreme Court
has made clear, the common law cause of action for wrongful
discharge is not the proper means by which to remedy a discharge
that was motivated by someone’s status or physical condition.
Instead, that cause of action is properly invoked only when an
employee is discharged in response to his or her having engaged
in a “narrow category” of conduct. Howard, 120 N.H. at 297.
Moreover, the Court of Appeals for the First Circuit has
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Parker v . MVM, Inc. 05-CV-380-SM 06/20/06 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Parker, Plaintiff
v. Civil N o . 05-cv-380-SM Opinion N o . 2006 DNH 070 MVM, Inc., Defendant
O R D E R
Plaintiff, Richard Parker, brings this action against his
former employer, MVM, Inc., claiming it unlawfully terminated his
employment. In his complaint, Parker advances common law claims
for wrongful termination and breach of contract, as well as state
and federal statutory claims for age discrimination. MVM moves
to dismiss the common law wrongful termination claim, asserting
that because it is founded on Parker’s assertion that he was
discharged because of his age, it is preempted by the state and
federal statutes prohibiting age discrimination. Parker objects.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff’s favor and determine whether the complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory.” Martin v . Applied Cellular
Tech., Inc., 284 F.3d 1 , 6 (1st Cir. 2002). Dismissal is
appropriate only if “it clearly appears, according to the facts
alleged, that the plaintiff cannot recover on any viable theory.”
Langadinos v . American Airlines, Inc., 199 F.3d 6 8 , 69 (1st Cir.
2000). See also Gorski v . N.H. Dep’t of Corr., 290 F.3d 466, 472
(1st Cir. 2002) (“The issue presently before u s , however, is not
what the plaintiff is required ultimately to prove in order to
prevail on her claim, but rather what she is required to plead in
order to be permitted to develop her case for eventual
adjudication on the merits.”) (emphasis in original).
Notwithstanding this deferential standard of review,
however, the court need not accept as true a plaintiff’s “bald
assertions” or conclusions of law. See Resolution Trust Corp. v .
Driscoll, 985 F.2d 4 4 , 48 (1st Cir. 1993) (“Factual allegations
in a complaint are assumed to be true when a court is passing
upon a motion to dismiss, but this tolerance does not extend to
legal conclusions or to bald assertions.”) (citations omitted).
See also Chongris v . Board of Appeals, 811 F.2d 3 6 , 37 (1st Cir.
1987).
2 Background
After reaching age 6 2 , Parker spoke with representatives of
MVM about reducing his employment from full-time to part-time, so
he might begin receiving Social Security benefits without
incurring tax penalties. Eventually that request was honored
and, although he retained the title “Quality Assurance Manager”
and received the same hourly rate of pay, his work schedule was
reduced to only 11 hours per week. Soon thereafter, however, he
was told that his position was erroneously converted to part-
time. But, rather than simply reinstating him to his prior full-
time position (an option Parker says he both welcomed and
communicated to M V M ) , MVM transferred Parker to another job and
filled his former position with a younger employee. Parker
understandably viewed the transfer as a demotion.
In count one of his amended complaint (document n o . 9 ) ,
Parker asserts that he was constructively discharged when MVM
demoted “him to a position for which he was grossly
overqualified, ill-suited and in which he would be supervised by
younger, less experienced personnel, including one who had been
his subordinate.” Id. at para. 3 1 . He goes on to say:
MVM’s employment action against Parker was not motivated by business necessity but rather by malice
3 and personal animus, predicated on the view that he would ultimately feel he had no choice but to resign rather than continue working under circumstances that MVM knew would be demeaning and intolerable.
Parker was punished for seeking to continue to perform a job he was deeply committed to while obtaining reasonable accommodation from his employer for age- related limitations.
Considering the advancing average age of the American worker and economic pressures extending the age at which workers like Parker can reasonably expect to be able to retire, there is a sound public policy basis to hold MVM legally accountable for its wrongful actions against Parker.
Id. at paras. 32-34 (emphasis supplied).
Discussion
To state a viable claim for wrongful discharge under New
Hampshire’s common law, a plaintiff must allege two things:
one, that the employer terminated the employment out of bad faith, malice, or retaliation; and two, that the employer terminated the employment because the employee performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn.
Short v . Sch. Admin. Unit N o . 1 6 , 136 N.H. 7 6 , 84 (1992) (citing
Cloutier v . A & P Tea Co., 121 N.H. 915, 921-22 (1981)) (emphasis
supplied). See also Monge v . Beebe Rubber Co., 114 N.H. 130
4 (1974). Count one of Parker’s complaint fails to state a viable
cause of action for wrongful discharge for at least two reasons.
First, and most notably, while he certainly alleges that his
former employer acted out of bad faith and/or malice, Parker
fails to allege that he was discharged because he engaged in
conduct which public policy would encourage or because he refused
to engage in conduct which public policy would condemn. Instead,
he says MVM terminated his employment because of his age. The
New Hampshire Supreme Court has expressly held that the common
law cause of action for wrongful termination is not the proper
vehicle by which to seek redress for alleged age discrimination.
We construe Monge to apply only to a situation where an employee is discharged because he performed an act that public policy would encourage, or refused to do that which public policy would condemn. A discharge due to sickness does not fall within this category, and is generally remedied by medical insurance or disability provisions in an employment contract. Nor does discharge because of age fall within this narrow category. The proper remedy for an action for unlawful age discrimination is provided for by statute.
Howard v . Dorr Woolen Co., 120 N.H. 295, 298 (1980) (citations
omitted) (emphasis supplied).
5 Nowhere in his complaint does Parker allege that his
constructive termination was the result of his having engaged (or
having refused to engage) in any particular conduct with public
policy implications. He claims he was demoted because of his
age. Under those circumstances, he cannot pursue a common law
claim for wrongful discharge. As the New Hampshire Supreme Court
has made clear, the common law cause of action for wrongful
discharge is not the proper means by which to remedy a discharge
that was motivated by someone’s status or physical condition.
Instead, that cause of action is properly invoked only when an
employee is discharged in response to his or her having engaged
in a “narrow category” of conduct. Howard, 120 N.H. at 297.
Moreover, the Court of Appeals for the First Circuit has
interpreted New Hampshire common law to preclude a cause of
action for wrongful termination when the aggrieved employee has a
statutory cause of action arising out of the same conduct.
Title VII not only codifies the public policy against gender-based discrimination (including, but not limited t o , pregnancy discrimination) but also creates a private right of action to remedy violations of that policy and limns a mature procedure for pursuing such an action. Under Wenners [v. Great State Beverages, Inc., 140 N.H. 100 (1995)], the existence of such a remedy precludes the appellant, in the circumstances of this case, from asserting a common law claim for wrongful discharge.
6 Smith v . F.W. Morse & Co., 76 F.3d 413, 429 (1996) (emphasis
supplied).
The Smith decision remains binding precedent in this
circuit. So, since Parker asserts that his employment was
terminated because of his age and since both state and federal
statutes specifically provide a remedy for age discrimination, he
cannot, as a matter of law, pursue a common law claim for
wrongful discharge arising out of alleged age discrimination.
Conclusion
For the foregoing reasons, Parker’s amended complaint fails
to state a viable claim for wrongful termination under the common
law of New Hampshire. Accordingly, defendant’s motion to dismiss
count one of plaintiff’s amended complaint (document no. 12) is
granted.
SO ORDERED.
Steven J . McAuliffe Chief Judge June 20, 2006
cc: Glen A. Perlow, Esq. David W. McGrath, Esq. Christopher Cole, Esq.