Real v. Riverbend Comm. MH CV-98-334-JD 01/26/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael J. Reale
v. Civil No. 98-334-JD
Riverbend Community Mental Health Inc., et al.
O R D E R
The plaintiff, Michael Reale, brings this action against the
defendants, Riverbend Community Mental Health Inc. and Karl
Boisvert, asserting violations of the Americans with Disabilities
Act and the federal Rehabilitation Act, and state law claims of
intentional infliction of emotional distress, breach of contract,
wrongful discharge, defamation, intentional interference with
contractual relations, and a violation New Hampshire's Law
Against Discrimination. Before the court now is the defendants'
motion to dismiss, or in the alternative, for judgment on the
pleadings (document no. 6) .
Background
The plaintiff was initially hired by Riverbend Community
Mental Health Inc. ("Riverbend") on June 16, 1986, although the
record does not reveal his position at that time. Over the next
ten years the plaintiff was repeatedly promoted, ultimately achieving the position of administrative coordinator of
residential services.
For the majority of his tenure at Riverbend, the plaintiff
received favorable evaluations and high praise and commendations
for his work. For example, in a 1993 evaluation by Dr. James
Wells, the plaintiff was found to perform oustandingly in
community relations and marketing, to consistently meet
expectations in the area of professional growth, and to perform
at an above-average level or better in all remaining areas. The
plaintiff also received unsolicited praise from colleagues and
others for his performance at Riverbend.
In 1994, Riverbend's employees discovered that the plaintiff
suffered from Attention Deficit Hyperactivity Disorder, or ADD.1
They also came to perceive the plaintiff as suffering from a
manic-depressive or bipolar disorder. At this juncture,
Riverbend's employees' perceptions of the plaintiff's performance
and abilities declined. His superior, Boisvert, came to regard
the plaintiff as incapable of producing timely, guality written
work. Boisvert and another employee prevented the plaintiff from
participating in employment-related meetings with individuals
that the plaintiff had worked with. The plaintiff was relegated
1The plaintiff uses the terms ADD and Attention Deficit Hyperactivity Disorder interchangeably.
2 to working from a broom closet, and his mental health became the
subject of Boisvert's and other employees' humor. Moreover,
Boisvert dismissed the plaintiff's work-related decisions as
irrational emotional obstructions and the product of the
plaintiff's emotional disposition. Boisvert asserted that the
plaintiff was unable to think and communicate rationally.
Meanwhile, the plaintiff received an unsolicited letter of thanks
from Corinne Stuttz for his helpfulness, presumably for the
manner in which he fulfilled his employment obligations.
After the positive 1993 evaluation of the plaintiff, a lapse
of otherwise routine evaluations ensued. In 1996, Boisvert
initiated a "special review" of the plaintiff in which the
plaintiff received poor evaluations. Boisvert also stated that
"[the plaintiff] has demonstrated a pattern of emotional reaction
in situation [sic] that creates significant obstacles," and was
"impulsive." Compl. at 8. Boisvert refused to provide specific
instances as examples. He also refused to submit the special
evaluation for review by other peers or staff, or to allow for a
second evaluation, as reguired by Riverbend policies.
In June of 1996, Boisvert stated that no one liked or
trusted the plaintiff and claimed that the plaintiff fabricated
information. He gave the plaintiff an ultimatum that he resign
with dignity, change, or be fired. Boisvert's intentions were to
3 exacerbate the situation and take advantage of the plaintiff's
real and perceived difficulties. The plaintiff sought
accommodations to ameliorate the situation, including acguiring
an administrative assistant. Boisvert refused the reguest for an
administrative assistant, although the position had already been
funded. On June 14, Boisvert withdrew his offer to allow the
plaintiff to change his performance and reguired him to resign or
be fired.
The plaintiff, at his doctor's "reguest," asked for a two
week medical leave for health related reasons, providing the
plaintiff an opportunity to recuperate. The plaintiff had
already accumulated two weeks of compensation time and arranged
for contingencies. Boisvert repeatedly called the plaintiff and
demanded that he return immediately, despite the acknowledged
lack of emergency at work. Boisvert wished to interrogate the
plaintiff, but refused to state the subject of the interrogation.
On July 5, 1996, the locks on the plaintiff's office were
changed, and a letter of termination issued on July 11, 1996.
The stated basis for termination was that plaintiff had directed
staff to be uncooperative, shared personnel information with
staff, and destroyed program files. The plaintiff had never
received any other notice of such infractions.
The plaintiff was not offered the process provided in
4 Riverbend's Employee Handbook, and he was never given an
opportunity to hear specific details of the accusations or review
evidence in support of the accusations. He was not paid minimum
severance pay in a timely manner.
On July 12, 1996, Boisvert issued a letter prohibiting staff
from allowing the plaintiff access to Riverbend grounds. The
intent was to create a false impression that the plaintiff was
dishonest, and to embarrass, shame, and injure the plaintiff.
On May 26, 1998, the plaintiff filed this action in the
United States District Court for the District of New Hampshire.
The plaintiff alleges violations of, inter alia, the Americans
with Disabilities Act, the federal Rehabilitation Act, and New
Hampshire's Law Against Discrimination, and brings various state
claims. The defendants move for dismissal or judgment on the
pleadings on all counts. The court addresses the defendants'
arguments seriatim.
Discussion
A. Standard of Review
The defendant moves for judgment on the pleadings under
Federal Rule of Civil Procedure 1 2 (c). Pursuant to Rule 1 2 (c), a
motion for judgment on the pleadings will be granted if,
accepting all of the plaintiff's factual averments contained in
5 the complaint as true, and drawing every reasonable inference
helpful to the plaintiff's cause, "it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Rivera-Gomez v. de Castro,
843 F.2d 631, 635 (1st Cir. 1988) . The court's inquiry is a
limited one, focusing not on "whether a plaintiff will ultimately
prevail but whether [he or she] is 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)).2
B Federal Claims: Americans with Disabilities Act and the
_____ Rehabilitation Act
The plaintiff alleges that Riverbend harassed, mistreated,
discriminated against, and terminated the plaintiff because the
plaintiff actually suffers from ADD and because Riverbend
perceived the plaintiff to suffer from a manic-depressive or
bipolar disorder. Riverbend moves for judgment on the pleadings
on the Americans with Disabilities claim and the Rehabilitation
Act claim on the ground that the plaintiff has failed to allege
2The defendants also move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). "In considering a motion to dismiss for lack of subject matter jurisdiction, a court must accept as true all material factual allegations in the complaint and refrain from drawing inferences in favor of the party contesting jurisdiction." Curtis v. Airborne Freight Corp., No. 98 Civ. 4062, 1998 WL 883297 at *2 (S.D.N.Y. Dec. 17, 1998)
6 that he suffers from a disability as defined by 42 U.S.C.A.
§ 12102(2). Specifically, Riverbend contends that the plaintiff
has failed to allege that he has an impairment, or is perceived
as having an impairment, that substantially limits a major life
activity. The plaintiff contends that he is disabled under the
Americans with Disabilities Act and the Rehabilitation Act both
on account of an actual impairment that substantially limits a
major life activity, and on account of a perception of such an
impairment. The court addresses each basis for finding a
disability separately.
I. Perceived Disability
Under the Americans With Disabilities Act "disability" is
defined as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C.A. § 12102(2) (West 1995); see also, 29 C.F.R.
§ 1630.2(g) (1998).3 At issue in this section is whether the
3The parties do not dispute that the definition of the reguisite disabilities under the Americans with Disabilities Act and the Rehabilitation Act are the same for present purposes. See 29 C.F.R. § 1614.203 (1998) (providing elements under Rehabilitation Act).
7 plaintiff has sufficiently alleged a disability pursuant to part
(C), premised upon the defendant's perception of an impairment
that substantially limits a major life activity.
A mental impairment includes "any mental or psychological
disorder, such as mental retardation, organic brain syndrome,
emotional or mental illness, and specific learning disabilities."
29 C.F.R. § 1630.2(h)(2)(1998). Under proper circumstances,
bipolar and manic-depressive disorders and ADD have been found to
gualify as impairments. See Den Hartog v. Wasatch Academy, 129
F.3d 1076, 1081 (10th Cir. 1997) (bipolar disorder mental
disability); Bultemever v. Fort Wavne Community Schools, 100 F.3d
1281, 1284 (7th Cir. 1996) (bipolar disorder mental disability);
Miller v. Nat'l Cas. Co., 61 F.3d 627 (8th Cir. 1995) (manic-
depressive impairment). The appendix to 29 C.F.R. § 1630.2 (j) (2)
(1998), identifying certain factors useful in evaluating the
substantiality of an impairment, provides that impairments which
significantly restrict a major life activity as compared to the
average person are substantially limiting. Under 42 U.S.C.A.
§ 12102(2) subsection (C) "[a] person is regarded as having such
an impairment if others treat [him] as if [he] is disabled."
Cody v. Cigna Healthcare, 139 F.3d 595, 598 (8th Cir. 1998); see
also, C.F.R. § 1630.2(1) (1998).
The plaintiff argues that the major life activities at issue in this case are working, learning, and societal interaction.
See 29 C.F.R. § 1630.2(1) (1998). Although learning is a major
life activity, and the court assumes societal interaction is a
major life activity for the purposes of this order, there are no
allegations in the complaint regarding these activities, nor are
there allegations from which interference with these activities
can be inferred. Therefore, to be successful, the plaintiff's
claim must depend on a substantial impairment, or the perception
of a substantial impairment, in the major life activity of
working. See id. (working a major life activity).
The plaintiff has alleged that Riverbend and its employee
Boisvert perceived him as suffering from a manic-depressive or
bipolar disorder and knew of his ADD, and that he was harassed
and ultimately terminated as a result of this knowledge and
perception. Specifically, he has either expressly alleged, or
such allegations are reasonably inferred from his complaint, that
Boisvert, upon learning of the plaintiff's ADD and perceiving a
manic-depressive or bipolar disorder, inter alia: (1) stated
"[the plaintiff] has demonstrated a pattern of emotional reaction
in situation [sic] that creates significant obstacles," Compl.
at 8; (2) stated the plaintiff was "impulsive," id.; (3)
prohibited him from participating in aspects of his employment as
a result of such held perceptions and knowledge, id.; (4) rejected the plaintiff's work and decisions as the product of the
plaintiff's perceived and known disabilities, id.; and (5)
ultimately terminated the plaintiff because of such perceptions.
Given reasonable inferences, the plaintiff alleges that
Riverbend's employees perceived him as suffering from manic-
depressive or bipolar disorder, knew of his ADD, and conseguently
treated or regarded him as significantly restricted compared to
an average person, and therefore substantially limited, in his
capacity to work. Because the defendant moved for dismissal on
counts one and two on the same ground, the motion is denied as to
both counts as regards the defendant's perception of the
plaintiff's impairment.
II. Actual Impairment
To establish a disability in fact under the Americans with
Disabilities Act, the plaintiff must show that he has a physical
or mental impairment that substantially limits a major life
activity. See 42 U.S.C.A. § 12102(2)(A); Lowry v. Cabletron Svs.
Inc., 973 F.Supp. 77, 80 (D.N.H. 1997). As discussed above,
courts have found bipolar and manic-depressive disorders and ADD
to gualify as impairments. Again, working is a major life
activity and is the life activity at issue in this case. See 29
C.F.R. § 1630.2(i) (1998).
10 Pursuant to the regulations implementing the Americans with
Disabilities Act, a person is substantially limited in the major
life activity of working if he is:
significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
29 C.F.R. § 1630.2(j)(3) (1998). More generally, the regulations
provide that in evaluating whether an impairment is substantially
limiting, courts should consider:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
29 C.F.R. § 1630.2(j) (2) (1998).
The plaintiff has failed to allege that he is significantly
restricted in his ability to perform a class of jobs or a broad
range of jobs in comparison to the average person similarly
trained, nor has he alleged facts from which one could infer such
a restriction. Indeed, the only allegations in his complaint
relating to his work abilities are associated with his employment
at Riverbend and support a contrary inference, that the plaintiff
is not significantly impaired as he purportedly performed well in
11 the positions he held at Riverbend. The one exception is the
plaintiff's medical leave which he took near the end of his
employment, although this alone, in the context of this case,
cannot support a reasonable inference that the plaintiff was
substantially impaired in his ability to work. This is so
because, among other things, the complaint and reasonable
inferences drawn therefrom lead to a conclusion that the medical
leave was the result of allegedly intentional and improper
conduct on the part of Boisvert to discriminate against and
antagonize the plaintiff. There is no direct relation alleged
nor reasonably inferred between the plaintiff's need for the
medical leave, his impairment, and the duties and reguirements of
his employment.
Nor do the factors identified in 29 C.F.R. § 1630.2(j)(2)
support an inference of substantial impairment. Beyond
identifying his affliction as ADD, the plaintiff does not allege
facts regarding the nature or severity of his impairment. Nor
has the defendant alleged facts from which one could discern the
permanent or long term impact on the plaintiff resulting from the
plaintiff's impairment. On the other hand, given the nature of
ADD in general, it is reasonably inferred that the impairment has
been life-long and will continue to afflict the defendant. See
Criado v. IBM Corp., 145 F.3d 437, 442 (1st Cir. 1998).
12 The court concludes that the plaintiff has failed to allege
sufficient facts regarding the severity of his impairment, its
impact on him, and his resultant ability to perform either a
class of jobs or a broad range of jobs in various classes to
withstand the defendant's motion. The court therefore holds that
the plaintiff has failed to state a cause of action that he
actually has a physical or mental impairment that substantially
limits him in the major life activity of working. The court
dismisses this as a basis for liability in counts one and two.
The plaintiff misses the point when he argues that his
ability to compensate for his impairment at Riverbend does not
mean he was not substantially impaired. The relevant guestion at
this point is not whether the facts support an inference that he
could function in his employment at Riverbend, but instead, it is
the broader guestion of whether the plaintiff has alleged facts
from which one could reasonably infer he was substantially
impaired in the major life activity of working. While not
conclusive of the issue, his allegations about his work at
Riverbend, when combined with the dearth of other allegations
regarding his ability to perform in a class of jobs or a broad
range of jobs, fail to state a claim. Similarly, the mere
allegation of the existence of an impairment such as ADD is
insufficient to state a claim as it does not reach the issue of
13 whether the impairment substantially impairs the plaintiff's
ability to work.
C. State Law Claims
As a preliminary issue, the defendants assert that the
plaintiff's state law claims asserting intentional interference
with contractual relations, breach of contract, wrongful
discharge, and defamation should be dismissed as the court lacks
jurisdiction over the claims. The defendants assert that there
is no common nucleus of operative facts, or, in the alternative,
if the court concludes there is a common nucleus of operative
facts, the court in its discretion should decline to exercise
jurisdiction.
In United Mine Workers of America v. Gibbs, 383 U.S. 715,
726 (1966), the United States Supreme Court delineated the extent
of a federal court's supplemental jurisdiction.
[A] federal claim must have substance sufficient to confer subject matter jurisdiction on the court. . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.
Gibbs, 383 U.S. at 726 (citations omitted) (speaking in context
14 of pendent jurisdiction).4 Even where supplemental jurisdiction
does lie, such jurisdiction is discretionary. It
need not be exercised in every case in which it is found to exist. It has consistently been recognized that [such] jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims.
Gibbs, 383 U.S. at 726.
Section 1367 states that a court may decline to exercise its
jurisdiction where: (1) a novel or complex issue of state law
has been raised; (2) the state claims substantially predominate
over the federal claims; (3) the district court has dismissed all
claims over which it had original jurisdiction; or (4) there are
exceptional circumstances presenting compelling reasons for
declining jurisdiction. Seeking to apply the "common nucleus of
operative facts" standard and advance the policy of efficiency
behind supplemental jurisdiction, courts inguire into both the
relevant facts and the evidentiary overlap likely to occur in
trying the federal and state claims. Lyon v. Whisman, 45 F.3d
428 U.S.C.A. § 1367 (West 1998), providing that a district court with original jurisdiction over any civil action "shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy," essentially codified Gibbs. See Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1175 (1st Cir. 1995).
15 758, 762 (3d Cir. 1995) .
In this case the plaintiff alleges violations of the
Americans with Disabilities Act and the Rehabilitation Act over
which the court has original jurisdiction. The plaintiff's
claims all arise out of his employment relationship with
Riverbend and Boisvert. Although this alone may well be an
inadeguate basis for exercising supplemental jurisdiction, see
Nicol v. Imagematrix, Inc., 767 F. Supp. 744, 747-748 (E.D. Va.
1991), in the circumstances of this case, facts and evidence
relevant to the federal claims will likely overlap considerably
with facts and evidence pertinent to the contested state law
claims.
The existence and nature of an employer/employee
relationship between Riverbend and the plaintiff is relevant to
his federal claims and, inter alia, his state law contract and
wrongful discharge claims. The nature of Boisverts' actions
during the plaintiff's employment, including, among other things,
statements made, inferences intended, and circumstances
surrounding the ultimate decision to terminate, will raise common
factual guestions bearing on the federal discrimination claim and
the state claims of intentional interference with contractual
relations, defamation, and wrongful discharge.
Although issues are factually bound in each case, other
16 courts in this circuit presented with analogous circumstances
have reached similar conclusions. See August v. Offices
Unlimited, Inc., 981 F.2d 576, 578 n.l (1st Cir. 1992)
(jurisdiction over state claims conferred by 28
U.S.C.A. § 1376(a) where claims included, inter alia, state and
federal claims of unlawful discrimination and state claims of
intentional infliction of emotional distress, breach of
employment contract, and wrongful discharge); Godfrey v. Perkin-
Elmer, 794 F. Supp. 1179, 1183-85 (D.N.H. 1992) (jurisdiction
appropriate in Title VII case over state law claims alleging
slander, wrongful discharge, and intentional infliction of
emotional distress).5 Therefore, the court concludes that power
to exercise supplemental jurisdiction exists.
The court also rejects the defendants' argument that the
court should decline to exercise its supplemental jurisdiction.
The defendants do not assert, nor does the court find, the issues
of state law presented by this case to be new or novel.6 See
5Ihe court does not find the cases cited by the defendants compelling due to the varying factual circumstances and legal conclusions of the other courts. See, e.g.. Mason v. Richmond Motor C o ., Inc., 625 F. Supp. 883 (E.D. Virginia 1986).
6Ihe plaintiff does raise a legal issue not previously addressed by the New Hampshire Supreme Court in his claim of defamation, addressed infra in § C(IV). However, given the thorough treatment of the issue by other state courts, indications provided by the New Hampshire Supreme Court as to conclusion it would come to if presented with the issue, the fact
17 Godfrey, 794 F. Supp. at 1185 (issues of wrongful discharge,
intentional and negligent infliction of emotional distress,
defamation, not new or novel). The plaintiff's state claims do
not predominate, nor has the court dismissed the federal claims.
See 28 U.S.C.A. § 1367. Indeed, in light of the common factual
and evidentiary issues between the claims, "given the duplication
and waste of judicial resources that separate trials would
entail, plaintiff would be expected to try them all in a single
proceeding." Godfrey, 794 F. Supp. at 1184.
Nor does the court agree that dismissal is appropriate
because of the threat of jury confusion. All other factors
discussed above indicate that jurisdiction should be asserted.
Moreover, the court must presume the jury capable of following
instructions and sorting through evidence. See United States v.
Lomeli, 76 F.3d 146, 149 (7th Cir. 1996). Therefore, the
defendants' motion to dismiss the state law claims on the basis
of the court's alleged lack of jurisdiction is denied.
I. Count Three, New Hampshire Law Against Discrimination
The plaintiff asserts a claim pursuant to the New Hampshire
that the court will exercise jurisdiction over the other state claims asserted, and the discretion provided for by 28 U.S.C.A. § 1367(c), the court will exercise its jurisdiction over the defamation claim as well.
18 Law Against Discrimination, New Hampshire Revised Statues
Annotated Chapter ("RSA") § 354-A:l-26 (1995). The defendants
contend that no private cause of action exists under the statute.
In Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109,
119-20 (D.N.H. 1995), the court concluded that there was no
private cause of action under the statute. In its analysis, the
court found that the administrative process the statute provides,
which requires that a complainant first exhaust his
administrative remedies before seeking judicial review, and
judicial review must be sought in the state courts, compelled the
conclusion that there was no private cause of action under the
statute. Id. at 120.7 Other courts have since followed this
conclusion. See Carparts Distribution Center, Inc., v.
Automotive Wholesaler's Ass'n, Inc., 987 F. Supp. 77, 83 (D.N.H.
1997); Evans v. Work Opportunities Unlimited, Inc., 927 F. Supp.
554, 556 (D.N.H. 1996). This court finds the reasoning of
Tseteranos convincing and grants the defendants' motion as to
count three.
II. Intentional Infliction of Emotional Distress
7The statute also specifically provides that upon bringing "an action in federal court arising out of the same claims of discrimination which formed the basis of an order or decision of the commission," said order or decision is to be vacated. RSA § 354-A:22, V (1995).
19 In count four, the plaintiff asserts a claim against the
defendants for the intentional infliction of emotional distress.
The defendants have moved for judgment on three grounds: (1) the
plaintiff has not alleged that the defendants' conduct was
extreme and outrageous; (2) the plaintiff has not alleged severe
emotional distress; and (3) as to defendant Riverbend, the
plaintiff's claim runs afoul of the workers' compensation bar.
New Hampshire recognizes the tort of intentional infliction
of emotional distress:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Morancv v. Morancv, 134 N.H. 493, 496 (1991) (guoting Restatement
(Second) of Torts § 46 (1965)). Liability can be imposed upon
the defendants:
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. Generally, 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!"
Restatement (Second) of Torts § 46, cmt. d. The court, not the
jury, is initially responsible for determining whether the
defendants' conduct is sufficiently "extreme and outrageous as to
permit recovery." Id. at cmt. h.
20 As to the first ground for the defendants' motion on this
count, the severity of the plaintiff's distress, the court
concludes that judgment on the pleadings would be inappropriate.
The plaintiff has alleged that he has suffered "great" emotional
distress. The fact that he has not alleged "severe emotional
distress" explicitly is not dispositive. Moreover, although he
has alleged few specific facts indicating the severity of his
distress, the plaintiff has asserted that his doctor directed him
to take a medical leave of absence from his employment to
maintain his health and recuperate. Given the doctor's
directive, one may reasonably infer that the plaintiff's
emotional distress was sufficiently extreme to support his claim
for intentional infliction of emotional distress at this stage of
the proceeding.
The defendants next assert that the conduct alleged was not
sufficiently egregious to support the plaintiffs' claim. For
defendant Boisvert, the court concludes that ambiguity in the
record surrounding the exact nature of his conduct, when viewed
in light of the court's duty to provide all reasonable inferences
in favor of the plaintiff, precludes a conclusion at this time
that the conduct was not extreme or outrageous.
The analysis for Riverbend is complicated by the New
Hampshire Workers Compensation Law. Riverbend argues that the
21 plaintiff's common law tort claim is barred by the New Hampshire
Workers' Compensation Law, see RSA § 281-A:8 (Supp. 1997), and
the plaintiff concedes that its emotional distress claim against
Riverbend is barred as long as there was an employment
relationship between himself and Riverbend.8 However, the
plaintiff argues that the date of his termination is a guestion
for the jury in this case, and that Riverbend's conduct after the
plaintiff's termination provides an independent and sufficient
ground for a claim of intentional infliction of emotional
distress. The conduct forming the predicate of the plaintiff's
claim vis-a-vis Riverbend is therefore more limited than against
Boisvert.
The record indicates that on June 14, 1996, Boisvert gave
8RSA § 281-A:8 provides:
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, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier.
RSA § 281:12 (1987), amended bv RSA § 281-A:8 (Supp. 1994).
22 the plaintiff an ultimatum that he resign or be fired. The
plaintiff then left for a two week medical leave during which
Boisvert repeatedly phoned him, demanding his return to
Riverbend. On July 5, 1996, the lock on the plaintiff's office
was changed. A termination letter was issued on July 11, 1996.9
On July 12, 1996, a letter was circulated by Riverbend to its
employees prohibiting the plaintiff's access to the premises.
Although the plaintiff argues that one could infer the
plaintiff was terminated as of June 14, 1996, the record does not
reasonably support such an inference. The plaintiff himself
described his absence from Riverbend as a medical leave. He
further asserts that he had accumulated two weeks leave and had
arranged for contingencies. Indeed, it is in part the repeated
demands that he return to work, at least for guestioning, on
which he bases his claim of intentional infliction of emotional
distress. Moreover, at one point in his complaint, the plaintiff
himself alleges that he was terminated on July 13, 1996, by a
letter dated July 11, 1996. See Compl. at 4. Given the
inconsistencies of the plaintiff's allegations and arguments and
reading the allegations in the light most favorable to the
91he plaintiff first alleges he was terminated on July 13, 1996, by a letter dated July 11, 1996, see Compl. at 4, and later alleges that a termination letter issued July 11, 1996, see Compl. at 12.
23 plaintiff, the court finds it is reasonable to infer that the
plaintiff was effectively terminated on July 5, 1996, when the
lock on the plaintiff's office was changed. The court therefore
reviews conduct occurring subseguent to July 5, 1996, as the
basis for the plaintiff's claim against Riverbend.
To state a claim for intentional infliction of emotional
distress, the predicate conduct must be so outrageous and extreme
as to "go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community." Restatement (Second) of Torts, § 4 6 cmt. d. The
plaintiff has premised his claim of intentional infliction of
emotional distress in part upon the employer/supervisor and
employee relations between the parties, and upon the repeated and
continuous nature of the defendants' actions. However, these
factors supporting the plaintiff's claim as to Boisvert are
undermined as to Riverbend by the plaintiff's subseguent
assertion that liability should be premised upon limited acts in
a narrow frame of time after the termination of the employment
relationship.
Allegations in this complaint that Riverbend failed to pay
the plaintiff or use its own procedural reguirements, or that it
circulated a letter prohibiting the plaintiff's access to the
grounds after he was terminated, do not rise to the level of
24 intolerable conduct necessary for the claim. Nor, on this
record, are there allegations of accusations or intimations
occurring after July 5, 1996, that support such as claim.
Therefore, the plaintiff's claim asserting intentional infliction
of emotional distress against Riverbend is dismissed. Nor does a
claim of vicarious liability stand. See Censullo, 989 F.2d at
43-4 (1st Cir. 1993).
III. Intentional Interference With Contractual Relations
Defendant Boisvert has also moved for judgment on the
plaintiff's claim that he intentionally interfered with
contractual relations. Under New Hampshire law, the elements of
a claim of intentional interference with contractual relations
are:
(1) the plaintiff had an economic relationship with a third party; (2) the defendant knew of this relationship; (3) the defendant intentionally and improperly interfered with this relationship; and (4) the plaintiff was damaged by such interference.
Jav Edwards, Inc. v. Baker, 130 N.H. 41, 46 (1987) (quoting Emery
v. Merrimack Valiev Wood Products, 701 F.2d 985, 988 (1st Cir.
1983) (emphasis in original)).
Defendant Boisvert contends that as the plaintiff's
supervisor he cannot be liable for intentional interference with
the plaintiff's contractual relations with Riverbend because he
25 was acting as Riverbend's agent, thereby eliminating the third
party necessary to state a claim. Boisvert argues that "a
supervisor is privileged to interfere in a subordinate's
employment relationship." Defs.' Mem. of Law in Support of Mot.
to Dismiss and/or Judgment on the Pleadings at 17. The plaintiff
counters that Boisvert's actions, if motivated by malice and bad
faith, do not fall within the scope of his employment at
Riverbend, and that therefore Boisvert was not acting as
Riverbend's agent when he engaged in such conduct.
In Soltani v. Smith, 812 F. Supp. 1280, 1296 (D.N.H. 1993),
this court concluded that where an individual's decision "'was
motivated by actual malice' , where 'actual malice' is defined as
'bad faith, personal ill-will, spite, hostility, or a deliberate
intent to harm the plaintiff,'" the individual was not acting
within the scope of his employment. Soltani, 812 F. Supp. at
1296 (guoting Piekarski v. Home Owners Sav. Bank, 956 F.2d 1484,
1495 (8th Cir. 1992)). The court in Soltani determined that such
an approach was consistent with New Hampshire's common law
regarding agency, citing Daigle v. City of Portsmouth, 129 N.H.
561, 580 (1980). In Daigle, the New Hampshire Supreme Court
concluded that an individual's actions could not be in the scope
of employment unless it was performed in furtherance of the
26 employer's business. See 129 N.H. at 580 .10 The court in
Soltani was in turn followed by Birkmaier v. Rockingham Venture,
Inc., CV-94-429-SD (D.N.H. 1995). See also, 8 Stuart M.
Speiser, et al.. The American Law of Torts § 31:41 at 1260
(1991) .
The court concurs with the reasoning of the Soltani court
and the Eighth Circuit in Piekarski. A reasonable person could
infer from the plaintiff's allegations that the ultimate decision
to terminate the plaintiff was the culmination of a pattern of
conduct undertaken with actual malice, as defined in Soltani, to
harass and discriminate against the plaintiff. Such conduct
would fall outside Boisvert's agency relationship with Riverbend,
making Riverbend the third party the plaintiff had contractual
relations with. The court therefore denies the defendant's
motion on this claim.
The defendant's reliance on Alexander v. Fujitsu Bus.
Communication Svs., 818 F. Supp. 462, 468-70 (D.N.H. 1993) is
unavailing. In Alexander the court was not presented with
allegations that a supervisor acted with malice, bad faith,
10The First Circuit has similarly interpreted New Hampshire law to provide that an act is within the scope of employment "if it was authorized by the employer or incidental to authorized duties; if it was done within the time and space limits of employment; and if it was actuated at least in part by a purpose to serve an objective of the employer." Aversa v. United States, 99 F .3d 1200, 1210 (1st Cir. 1996).
27 personal ill-will, spite or hostility. The court therefore did
not consider the issue of whether actions so motivated were
removed from the scope of the agency relationship.11
IV. Defamation
_____ In count eight the plaintiff asserts that Riverbend and
Boisvert disseminated and published defamatory information to
third parties regarding the plaintiff, his ability to work, and
his honesty. The defendants seek dismissal because, as a matter
of law, one agent of a corporation cannot be considered to have
published a statement to a third party, as necessary for a
defamation cause of action, where the statement was made to
another agent of the same corporation.12
The New Hampshire Supreme Court has not specifically
addressed the issue whether an agent of a corporation can be
liable for defamation where that agent made allegedly defamatory
statements solely to other agents of the same corporation as in
the circumstances of this case. The Restatement (Second) of
“Although the plaintiff pleads in one part of his complaint that Boisvert was acting as the agent of Riverbend, Federal Rule of Civil Procedure 8(e) provides for pleading in the alternative.
“Although the defendant's argument is vague, the court does not understand the defendant to present an argument of privilege. In any event privilege is subject to abuse, see Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992), and on this record judgment on the issue at this time would be inappropriate.
28 Torts, § 577 Comment (i) (1977), provides that "[t]he
communication within the scope of his employment by one agent to
another agent of the same principal is a publication not only by
the first agent but also by the principal and this is true
whether the principal is an individual, a partnership or a
corporation."
New Hampshire has repeatedly followed § 577 of the
Restatement. See Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 7
(1988) (following Restatement § 577A); Duchesnave v. Munro
Enterprises, Inc., 125 N.H. 244, 253 (1984) (following
Restatement § 577 cmts. (b) and (c)); Thomson v. Cash, 119 N.H.
371, 375 (1979) (following § 577 cmt. (c)). Although there is a
division on this issue, a substantial number of states that
follow the Restatement's version of defamation law have concluded
that the publication reguirement is met where defamatory
statements are made between agents of a corporation. See Pirre
v. Printing Devs., Inc., 468 F. Supp. 1028 (S.D.N.Y. 1979); Bals
v. Verduzco, 600 N.E.2d 1353 (Ind. 1992) ; Heselton v. Wilder,
496 A.2d 1063, 1067 (Me. 1985); Luttrell v. United Tel. System,
Inc., 683 P.2d 1292 (Kan. 1984); Bander v. Metropolitan Life Ins.
C o ., 47 N.E.2d 595 (Ma. 1943) . As the Maine Supreme Court stated
"[t]hose jurisdictions have concluded that there is no good
reason to protect a corporation as opposed to a partnership or
29 individual enterprise." Staples v. Bangor Hydro-Electric Co.,
629 A.2d 601, 603 (Me. 1993). Leading commentators have
attributed the division among states regarding whether intra
corporate communications constitute publication "to a confusion
between publication and privilege." Prosser and Keeton on the
Law of Torts § 113, 798 n. 15 (5th ed. 1984) . Indeed, the older
rule providing absolute immunity for intra-corporate communica
tions is increasingly falling into disfavor as courts are
concluding that the issue is one of privilege. See Richard
Larson, 5 Hofstra Labor Law Journal 41, 50-51 (1987) . This court
predicts that were the New Hampshire Supreme Court presented with
the issue, the court would hold that intra-corporate communica
tions meet the reguirement of publication but are subject to
gualified privilege. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78 (1938). The court therefore denies the defendants' motion as
to the plaintiff's defamation claim.
Conclusion
In accordance with the preceding discussion, the court
grants the defendants' motion to dismiss the plaintiff's claims:
(1) under the Americans with Disabilities Act and the federal
Rehabilitation Act in so far as the claims are premised upon an
actual impairment substantially limiting a major a life activity,
30 see 42 U.S.C.A. § 12102(2)(A); (2) under the New Hampshire Anti-
Discrimination Act; and (3) against Riverbend alleging
intentional infliction of emotional distress. The court denies
the motion in all other regards (document no. 6).
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
January 26, 1999
cc: Tony F. Soltani, Esguire James L. Kruse, Esguire